Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

SYNOPSIS FOR RESEARCH PROJECT ON

[CUSTOMARY LAW]

For

COURSE ON JURISPRUDENCE

CLASS: B.Com., LL.B (Hons.) 3rd Semester

Submitted by

[UTKARSH KUMAR YADAV]

[B.COM LLB/2016-2017/18]

Academic Session: 2017-18

Under the Supervision of

Mr. Shail Shakya

Asst. Prof. in Law
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University

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 RESEARCH PROPOSAL

a) Title of the Project:

This project is based on the topic Customary Law in the subject of jurisprudence.

b) Proposed Hypothesis:
The aim of this project in the hypothesis sense is to understand the characteristics,
meaning and function of Customary Law through different legal ways.

c) Research Problem:
There are following problems created in this project which are as follows:
1) The way in which diminishing role of the custom in the modern procure law.
2) The binding obligation of the custom.

d.) Research Methodology:

In this project work only, Doctrinal Method for research had used.

e.) Research Questions

There are following questions raised related to the project which are as follows:

1) Whether custom is a essentially a product of natural forces associated with popular

sprit of acceptance by the people or not?
2) Whether for a valid custom morality, public policy, express enactments of legislature
is necessary?

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LITERATURE REVIEW

According to Matthew L.M. Fletcher the literature discussing customary law, traditional
law, tribal custom and tradition, and tribal common law in modern American tribal courts
lacks a compelling theory of the role of custom in tribal court jurisprudence. There are
numerous empirical studies of the use of custom in tribal law and an even more numerous
papers describing custom in tribal law.

According to the Paras Diwan, Custom is the fundamental source of the law. Its role in the
development of personal law such as the Hindu and Personal law is very significant. India in
general, and some in States like Punjab, Haryana, Rajasthan, Uttar Pradesh, Madhya Pradesh,
Bihar and Orissa.

Contemporary customary international law analysis is currently understood to be a struggle

between traditional and modern approaches, implicating significant normative outcomes by the
William Thomas Worster.

INTRODUCTION

Custom was the sole source of law in early times because the law in these days was mostly
unwritten. The Common law in England is nothing but a rule of customary law which prevailed
in English society for regulating human conduct and intercourse intense. These customary rules
had the approval of public opinion. When a state came into existence they gave immediate
recognition to the custom prevailing at that time and thus they were recognized as a valid law.

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 PROPOSED TABLE OF CONTENTS

1. Definition and Nature of Custom

2. Important of Customary Law

2.1. Conventional Custom

2.2. Legal Custom

3. Transformation Theory of Custom into Law

4. Essentials of a Valid Custom

4.1. Custom Must Be Ancient

4.2. Custom Must Be Uniform and Continuous

5. Custom as Source of Roman Law

6. Conclusion

7. Bibliography

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1. Definition and Nature of Custom

According to Herbert Spencer, Before any definite agency of social control is developed there
exists a control of arising partly farm of the public opinion of the living, and the more largely
from the public opinion of the dead. Thus it is tradition passing on from one generation to
another that originally govern human conduct. This tradition is called custom.

2. Important of Customary Law

The diminishing role of custom in modern procures of law making; the custom still occupies
an important place as a source of law even to this day because most of the material contents of
the developed system of law have been drawn from ancient custom.

2.1. Conventional Custom

A conventional custom is also called usage. It is an establish practice whose authority is

conditional on its acceptance and incorporation in the agreement between the parties bound by
it. A convectional custom may either be local or national.

2.2. Legal Custom

Legal customs are those which are operative per se as binding rules of law independent of any
agreement between the parties.

3. Transformation Theory of Custom Into Law

The general criterion which distinguishes social customs from legal custom has already been
discussed above. The lines of demarcation between the two are fluid. While some customs are
non-legal, in the sense that they do not have absolute binding obligation whereas, some customs
have absolute binding obligation.

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4. Essentials of a Valid Custom

Essentials of a valid custom can, broadly, be classified into Formative Essentials and
Operative Essentials. Antiquity, Uniformity/Continuity, Certainty and Conscious acceptance
as of right, etc. are the essential formative elements of a valid custom.

5. Custom as Source of Roman Law

Early Roman law was drawn from custom and statutes, but later during the times of the empire,
the emperors asserted their authority as the ultimate source of law. Most early civilization was
ruled by custom or the arbitrary judgment of kings or priests laws and the punishment for not
following the laws were at the whim of the ruler.

6. Conclusion

Custom exists as law in every country, though it tends to lose its importance relatively to other
sources of law with change of society . Custom are not laws when they arise ,but that they are
largely adopted into the law by state recognition . customary law assumes a binding authority
provided it fulfils certain requirements and provided it is not suspended by law by a higher
authority.

7. BIBLIOGRAPHY

Paranjape, Dr. N.V. jurisprudence and Legal Theory 8th edition , central law agency Allahabad,
2016.

Mahajan s, V.D, jurisprudence and Legal Theory, 5th edition , eastern book company Lucknow
, 2016.

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