The Method of Tradition and Custom
Chapter Eleven
Syllabus topic 1, "Nature of judicial process"
Pages 44 to 47 of 356
In one line
When the rules give out, a judge may ask what people in this society actually do and actually expect, and treat the settled practice as the standard.
In the wording a student can write in an exam: the method of tradition, which Cardozo also expresses as the force of custom and of the accepted standards of right conduct, directs the judge to determine the content of an open legal standard by reference to the settled practices and expectations of the community. It operates in two ways: custom may supply a rule of law directly, where the legal system recognises it as a source; and, more commonly in a modern system, the accepted standards of right conduct supply the content of legal standards that are deliberately left open, such as reasonableness, good faith, public policy and unfair practice.
The two operations, kept apart
Students conflate these and lose marks. They are different.
Custom as a source of law. Here the practice IS the rule. Indian law recognises this in defined places: personal law, where custom may displace textual law; commercial usage, which supplies the terms of a contract; and the customary law of particular communities preserved under Article 13(3)(a), which includes custom and usage having the force of law within the definition of "law".
Its requirements are strict, and an examiner will expect them. A custom must be ancient, continuous, certain, reasonable, observed as of right and not by permission, and not opposed to public policy or to any express statutory provision.
Accepted standards as the content of an open legal standard. Here the practice is not the rule; it fills a rule the law has deliberately left blank. When a court asks whether a driver acted reasonably, it is asking what the community's accepted standard of careful driving is. When it asks whether a contract term is unconscionable, it is asking against a standard of accepted dealing. The rule is the law's; the content is the community's.
Why the method has force
Because law that contradicts settled practice is not obeyed. A rule that no one follows and no one enforces is a dead letter, and a system that produces many of them loses authority generally.
Because expectations deserve protection. People arrange their affairs on the footing of what is normally done. Defeating those arrangements without warning is itself a kind of injustice.
Because the community often knows better than the court. In a technical trade, the practice of the trade is better evidence of what is reasonable than a judge's intuition.
The Indian illustrations
1. Custom displacing text in personal law. Hindu law recognised customary divorce in communities where it was practised, long before statute did, and the Hindu Marriage Act 1955 preserved it by saving customs in section 29(2). This is custom operating as a source.
The Method of Tradition and Custom
2. The limit, where custom meets the Constitution. Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, is the sharpest modern case.
Facts. The petitioners challenged the exclusion of women between the ages of ten and fifty from the Sabarimala temple, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which permitted it, as violating Articles 14, 15, 17, 21 and 25.
Held. By four to one the exclusion was unconstitutional. The devotees of Lord Ayyappa are not a separate religious denomination, the exclusion is not an essential religious practice, and it violates the right of women to worship under Article 25(1) and their dignity under Article 21. Indu Malhotra J. dissented, holding that a court should not ordinarily interfere in matters of deep religious sentiment and that what is essential should be determined by the community.
Why it matters here. It is the method of tradition losing. A practice of great antiquity and unquestioned community acceptance was held to yield to constitutional guarantees. The dissent is the method of tradition speaking: the community, not the court, should say what its practice requires. That the two are in the same judgment is what makes the case worth citing.
3. Custom yielding to justice. Sarla Mudgal v. Union of India, AIR 1995 SC 1531, shows a formally available practice defeated.
Facts. Hindu husbands converted to Islam and contracted second marriages during the subsistence of their Hindu marriages. The question was whether such a second marriage is valid and whether the husband is guilty of bigamy under section 494 of the Indian Penal Code.
Held. A Hindu marriage solemnised under the Hindu Marriage Act 1955 can be dissolved only on a ground recognised by that Act, and conversion to Islam does not dissolve it. The apostate husband therefore remains married, the second marriage is void as taking place during the lifetime of the first spouse, and he is liable under section 494.
Why it matters here. The manoeuvre relied on a formal reading of personal law. The Court declined to let a practice be used to defeat the obligations of a subsisting marriage, which is the accepted standard of right conduct operating as a limit on the technical availability of a rule.
4. Accepted standards supplying content. In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Court had to say what a "safe working environment" is. It did not invent a standard; it drew on the international standard in the Convention on the Elimination of All Forms of Discrimination against Women and on what a decent workplace is understood to require.
The Method of Tradition and Custom
The limits, and they are severe
Custom can be unjust. This is the standing objection and MU's questions on justice make it unavoidable. Untouchability was custom; the exclusion of women from temples was custom; child marriage was custom. A method that takes the community's settled practice as the standard has no internal resource for condemning a settled practice that is wrong. Article 17 abolishes untouchability precisely because custom would not.
A transformative constitution is at war with it. The Indian Constitution was adopted to change social practice, not to ratify it. Wherever custom and constitutional guarantee collide, the guarantee prevails, and Sabarimala is only the most recent instance.
Whose custom? In a plural society there is rarely one settled practice. The community whose practice counts has to be selected, and selecting it is a judgment the method itself cannot make.
Custom is hard to prove. It requires evidence of antiquity, continuity and observance as of right, and litigants often cannot supply it.
Cardozo himself ranked this method below sociology for these reasons: practice describes what is done, and the law must sometimes ask what ought to be done.
A worked example
A commercial dispute turns on whether a buyer who has taken delivery may reject goods a fortnight later. The contract is silent and no statute settles it.
By tradition. Evidence is led that in this trade, in this market, inspection within a fortnight is normal and rejection within that period is accepted. That practice supplies the content of the reasonable time the Sale of Goods Act leaves open.
Where the method stops. If the practice were that sellers habitually delivered short weight and buyers habitually tolerated it, the court would not adopt that practice as the standard, because a settled practice of wrongdoing is not an accepted standard of right conduct. The word "right" in Cardozo's phrase is carrying weight.
The lesson. The method supplies content where the practice is a genuine expectation honestly held, and fails where the practice is merely what people have got away with.
Distinctions
| Custom as a source | Accepted standards as content | |
|---|---|---|
| What the practice does | is itself the rule | fills a rule the law left open |
| Where it operates | personal law, mercantile usage, Article 13(3)(a) | reasonableness, good faith, public policy, unfair practice |
| Proof required | ancient, continuous, certain, reasonable, as of right, not against statute or public policy | evidence of ordinary practice and expectation |
| Constitutional limit | yields to fundamental rights | yields to fundamental rights |
Quick revision
- Method of tradition: determine open standards by the settled practices and expectations of the community; Cardozo's phrase is the accepted standards of right conduct.
- Two distinct operations: custom as a source of law, and accepted standards as the content of an open legal standard.
- Requirements of a valid custom: ancient, continuous, certain, reasonable, observed as of right, not against statute or public policy.
- Its force: unobserved law is dead, expectations deserve protection, the trade knows its own practice.
- Sabarimala, 28 September 2018: custom of great antiquity defeated by Articles 21 and 25(1), with the dissent stating the traditional method.
- Sarla Mudgal, AIR 1995 SC 1531: a formally available practice defeated by the accepted standard of right conduct.
- Limits: custom can be unjust, a transformative constitution overrides it, whose custom is contested, and proof is hard.
The Method of Tradition and Custom
Test yourself
1. Distinguish custom as a source of law from accepted standards as the content of a legal standard. Where custom is a source, the practice is itself the rule, as with customary divorce saved by section 29(2) of the Hindu Marriage Act 1955. Where accepted standards supply content, the rule is the law's and only its content comes from practice, as when a court decides what is reasonable care or a reasonable time.
2. List the requirements of a valid custom. It must be ancient, continuous, certain, reasonable, observed as of right rather than by permission, and not opposed to public policy or to any express statutory provision.
3. Why is Sabarimala the best case for this method even though the method lost? Because the majority and the dissent state the two positions cleanly. The majority held that a practice of great antiquity and unquestioned community acceptance yields to Articles 21 and 25(1); Indu Malhotra J. held that a court should not interfere in matters of deep religious sentiment and that the community should determine what is essential. The case shows both the force of the method and the constitutional limit on it.
4. State the strongest objection to the method of tradition. That it has no internal resource for condemning a settled practice that is unjust. Untouchability, child marriage and the exclusion of women from worship were all custom, and each had to be defeated from outside the method, by constitutional guarantee. This is why Cardozo ranked the method below sociology, which asks what ought to be done rather than what is done.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.