Custom is the oldest source of law. Explain the criteria which must be satisfied before a custom can be applicable as law

  • A custom is an embodiment of a principle of utility or justice that has commended itself. A custom may be relied upon as a source of law in the determination of certain civil

However, not every custom is applicable as law. For a custom to be relied upon as a source of law, it must: exhibit certain qualities:

  • Reasonableness: a good local custom must be reasonable. It must be consistent with the principle of
  • Conformity with written law: a local custom must be consistent with statute law.This is because parliament is the Supreme Law making body and has authority to render a rule of custom inoperable.
  • Observance as of right: a good local custom is that which a community has observed openly and as of right, that is to say not by force or by stealth, nor at will.
  • Immemorial antiquity: the local custom must have been observed since time immemorial. Time immemorial means that no living person can attest as to when the custom did not
  • Civil cases: a local custom can only be relied upon by a court of law in the resolution of civil disputes.
  • Subject to or affected by: for a rule of custom to be relied upon as law one or more of the parties must be subject to it or affected by
  • Repugnance to justice and morality: a custom will only be relied upon by a court of law if it is not repugnant to justice and
  • Proof: the party urging the court to rely on a particular rule of custom must prove by evidence, unless the custom is a matter of public notoriety.

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