Documenti di Didattica
Documenti di Professioni
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A SOURCE
OF LAW
Salmond's View
Salmond preferred to emphasis on
two main sources of law
Material
Sources
Formal
Sources
Keetons
View
According to Keeton, the sources of law
can be classified into two broad
categories
Binding
sources of law
Persuasive
sources
Kinds of Custom
Convention
al Custom
Legal
Custom
Legal Custom:
Legal
customs are those which are
operative as binding rules of law
independent of any agreement
between the parties.
General
Custom
Requisites of a
Valid Custom
In order to be a valid custom, it must
confirm to certain requirements laid
down by the law. The essential
requirements of a valid custom are :
Reasonablene
ss
Compulsory
Observation
Consistenc
y
Certainty
Continue and
Immemorial Antiquity
THEORIES REGARDING
TRANSFORMATION OF
CUSTOM INTO LAW
There are two main theories in this regard,
namely :
HISTORICA
L THEORY
ANALYTICAL
THEORY
HISTORICAL
The main exponent of historical school,
THEORY
namely, Savigny,
Puchta, Blackstone and
ANALYTICAL THEORY
The main exponent of the analytical
theory of customary law was John
Austin who regarded custom as a
historical material source. He pointed
out that custom derives its binding
force not from its own nature but by
an Act of the Parliament or its validity
has been established by judicial
decisions. Thus a customary rule may
become a legal rule either by