Kenya Jurisprudence Law: Customs

Define Custom and essentialsof a valid custom. Discuss its importance as a source of law and also compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the society.  Custom is considered as the most ancient and most important source of law.  Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society.Austin was the first person who discarded the value of the custom.  But the historical school again gave the importance to custom.  The sociological school also gives importance to law with relation to society.In the modern times the precedents i.e. Judge made law and legislation have become over powered to that of customs.

VARIOUS LEGAL Systems RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law :
Romal Law :- Roman Law is known to be the oldest one in the world.  This law is mainly based upon customs of the society. Those customs which were reasonable continued themas law by the Roman jurists.

English Law :- Which is known as common law and in the shapeof un-written and based upon customs and conventions.  Customs which were reasonable and not against the public policies were recognized as law under English Law. According to Pollock, The common Law is customary law. Black stol common includes written law and un-written law.” The written law is based upon the general customs.  In this  way English law also gave importance to the customs as a source of law.

CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to thenation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related with aparticular locality.
3. Family Customs :- Those customs which are related with afamily and have application on a particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions.

ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There should be no contradiction in observing customs.
4. Continuity :-  Customs must becontinuing from the time it was recognized as law. There should not be any break or interruption.  If there  is break for sometimes itdoes not mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances.
8. Immorality:- Customs should  not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.10. Not against the State of Law:-  Customs should not over-ride the legislation . It should not be against the law of the land.

WHEN DOES A CUSTOM BECOME LAW.ANALYTICAL VIEW:-
Austin and Gray are the supporters of analytical school. They say that acustom becomes law when it is recognized by the sovereign in the sense of positive law only.It means that if a custom has been accepted or adopted orrecognized by the sovereign thenit will become a law otherwise there will be no value of the custom in judicial system of the society.

HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main source or base of law  He says that “ consciousness of the volkgiest is the main source of law.”Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society.  The courts also while giving the decisions recognized the customs prevailing in the society.
CONCLUSIONCustom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs.  Custom is one of most fruitful sources oflaw. According to Analytical school a custom when recognized by State or sovereignbecomes law.  According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.