Custom and Precedent
A custom is a regular pattern of behavior that people choose to follow consistently. Customs have a significant impact on shaping human behavior in every society. The term ‘custom’ originates from the French word “costume,” which conveys the idea of tradition, practice, or usage. However, precedents are decisions that provide guidance for the courts in handling similar matters in the future. Now we will explain the similarities and differences between custom, legislation and precedent
Relationship Between Legislation and Custom
- Law can be derived from both legislation and custom.
- Legislation and custom serve a similar purpose in society, as they both aim to regulate human behavior.
- It is observed that a majority of the population adheres to both.
Differences Between Legislation and Custom
To understand the nature of customs and legislation, an insight into their differences is necessary. The differences between the two are as follows:
- Legislation is created by the sovereign through its definitive power, while custom is a practice that has evolved over time.
- Legislation needs the presence of an authority to bring it into effect. In the absence of a competent authority, the concept of law would lose its meaning, as people would not feel compelled to follow it. A custom is not bound by any requirements, as it is embraced and encouraged by individuals willingly.
- Legislation derives its authority from the will of the State. Customs gain their authority from the collective will of the people.
- Legislation holds a higher level of authority compared to customs.
- Legislation offers greater flexibility than customs as it can be modified to align with the evolving demands of society and the current circumstances. Customs, on the other hand, go through a more gradual evolution and are not as easily changed.
- Legislation no longer exists once it is abolished by the sovereign. Customs lose their significance when they are gradually abandoned by those who once upheld them.
Difference between Legislation and Precedent
There are certain differences that arise between legislation and precedent.
| Basis | Legislation | Precedent |
|---|---|---|
| Aim | The primary aim of the legislation is to make law. | The aim of precedent is to interpret and apply the law. |
| Authority | Legislation is enacted by the state. | Precedents are set by the courts. |
| Power | Legislation has the power to abrogate any law, be it statute or precedent. | Precedents can only stop the operation of a rule if it violates the provisions of the Constitution. |
| Ease of Understanding | Legislation is clear, concise, and codified. This makes it easier to understand and follow. | Precedents, on the other hand, are not easily understood by everyone as one has to go through the entire case law in order to identify the precedent. |
| Lawmaking | Legislation makes rules by anticipating the requirements of society. | Precedents make rules only when a case arises before the courts. Precedents are dependent on litigation (trial). |
| Applicability | Legislation is mostly prospective and can be retrospective at times if it chooses.[1] | Precedents are retrospective in nature. |
| Method used | In legislation, a deductive method is used. (general to narrow) | In precedents, rules are laid down using the inductive method. This is because courts pick laws from statutes and apply them. (narrow to general) |
Legislation and Precedent: Which is Superior?
Abrogative power
Legislation has abrogative power. It is not only a source of new law but can also alter or abolish it if needed. Precedent has no such power.
Efficiency
Legislation allows an advantageous division of labor which results in increasing efficiency. The duty of the legislation is to make law while the duty of the judicature (system of court, judges) is to interpret and apply the law according to the nature of the cases.
Declaration
Legislation is formally declared. Justice requires that laws should be known before they are applied and enforced. It is not possible in the case of precedent.
Provision for future cases
The legislation makes rules for cases that have not yet arisen where the Precedent must wait for the occurrence of some dispute before the court-given decision. The precedent (earlier decision) is dependent whereas legislation is independent of the accident course of litigation.
Form
Statute law is generally superior to case law in point of form. It is very clear and easily accessible.
Rule of law
Legislation ensures the rule of law. But the broad generalization and unconsidered or unexplained decisions tend to substitute judicial flat not only for the rule of the democratic majority but also for the rule of law. Precedent or custom cannot exist opposite to statute (written) law.
Conclusion (Legislation and Precedent)
Legislation is widely regarded as the primary source of law. After carefully examining the distinctions between legislation, custom, and precedent, it becomes evident that legislation holds the greatest influence and carries the highest level of authority. The codification of laws aims to enhance accessibility and comprehension for all individuals, regardless of their background or nationality. When information is presented in a structured manner, it becomes more appealing as a source of knowledge.
Legislation is widely utilized by numerous countries as a means of establishing and governing various aspects within their borders. Some countries have also incorporated certain customs of their society into their laws. India is one of those countries. When making the decision to include a custom into the country’s law, it is important to carefully consider a variety of factors. Precedents, on the other hand, also have a significant impact on the country’s overall legal ecosystem. Therefore, it is evident that all three contribute to the functioning of a country.
[1] In prospective studies, individuals are followed over time and data is collected as their characteristics and circumstances change. In retrospective, individuals are sampled and information is collected about their past.
