role of custom in Indian legal system
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... it is given in scholarly works is great, its importance is "slight and decreasing". ... The legal criteria defining a custom are precise. ... in force, "some of them operating quite independently of the formal state legal system". ... In India many customs are accepted by law.
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Role of Custom in Indian legal system:
- Custom is considered as the source of law which is essential in all legal systems.
- Because it is beyond the uncertainty that they arrived before the law.
- Customs have the rules of conduct which are commonly observed.
- A Custom is an organised mode of social behavior within the community.
- According to the theory of Austin’s, customs become law when they are approved by the state.
- But the state does not accept every law, it accepts only those law which was acceptable by their state people reasonableness.
- Only those customs are approved by the state which meets a certain level of general reception and utility.
- The Hindu Code describes tradition and use as any practice which, having been practiced consistently and universally for a long time.
- Any tradition which has acquired the force of law in any local area, caste, nation, party or family if it is certain and not arbitrary or contrary to public policy.
- Practice can not be law unless it is approved by the sovereign.
- According to him, traditions become law only after state recognition.
- Practice can become' true practice' only if it is recognized by the state before it is simply' good morality' in the eyes of the Indian legal system.
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