ACKNOWLEDGEMENT

No man is an island and thus I take this opportunity to thank all the people who have
helped me in completing this project. First of all I would like to thank the Almighty for
showering his blessings in not only helping me complete this project but also making
me a part of this university.

I would like to express my special thanks to Professor (Dr) Paramjit Singh Jaswal,
Vice Chancellor, and Professor (Dr) G.I.S. Sandhu, Registrar, Rajiv Gandhi National
University of Law, for giving me the opportunity to deal with the topic in detail and
presenting it in the form of this project.

I would also thank my parents and teachers who guided me and supported me.

I would also thank the staff in the library who helped us in finding the source
material.

I am also grateful to my friends and classmates who helped me throughout.

Thus I express my sincere gratitude to all the people.

1
 CERTIFICATE

Dr. Gurneet Singh Place: Patiala

Rajiv Gandhi National University of Law Date: 06-09-2018

This is to certify That the dissertion entitled: Legal Research and

Methodology project: “Relevance of Norms, Customs and Values in
Law”, submitted to Rajiv Gandhi National University of Law, Punjab in
partial fulfillment of the requirement of the B.A LLB(Hons.) course is an
original and bonafide research work carried out by Ms. PREETKIRAN
KAUR under my supervision and guidance. No part of this project has
been submitted to any university for the award of any degree or diploma,
whatever.

Dr. Gurneet Singh

2
 TABLE OF CONTENTS

1. All What is Important for a Law Student

1.1 Introduction 4
1.2 Main Objectives 4
1.3 Research Methodology 5
1.4 Review of Literature 5

2. Introduction 6

3. Identifying the essence of Norms 6-7

3.1 Evasive boundary between law and social norms 7
3.2 Legal Positivistic Perspective 7-8
3.3 Connection of Social norms and State laws 8-9

4. Introduction to Customs 9
4.1 Classification of different kinds of Customs
4.2 Endogeneous Relationship between law and custom 10
4.3 Inter-twining of customs with different fields of law 10-12

5. Introduction to Values and Morals 13

5.1 Conflict of laws and morality 13-14
5.2 Should law enforce morality ? 15

6. Conclusion and Suggestions 16

7. Bibliography
16
16

3
CHAPTER 1: ALL WHAT IS IMPORTANT
FOR A LAW STUDENT

1.1 INTRODUCTION

Life is all about learning and a law school gives us plethora of opportunities to
learn and grow. With the passage of time the learning trends and patterns have
changed. This project has been very instrumental in widening my knowledge
base. My Legal Research and Methodology project was based on the topic –
‘Relevance of norms, customs and values in Law’. To have a clear understanding
and deep insight, project has been divided into three main parts – customs,
norms and values.
Customs, norms and values have played a significant role in the development of
law today. Law in India has evolved from these basic building blocks.
Cent percent efforts have been made to research effectively and cover all these
aspects properly.

1.2 MAIN OBJECTIVES:

Main objectives of research are:-

 To explore new ways of learning law
 To analyse the advantages and disadvantages of studying law.
 To understand the importance of new ways of learning law
 To understand the attributes of a good research paper.

4
 1.3 REVIEW OF LITERATURE
This topic explores the literature available directly or indirectly related to the topic
to understand what is already done and what needs to be done and connects the
previous body of literature with the current work. The chapter present an
overview of the relevance of norms, customs and values in law.

1.4 RESEARCH METHODOLOGY

I adopted doctrinal research methodology for my project. Doctrine means a set
pattern of rules and concepts which have been established. Hence doctrinal
research methodology involves analysis of case law, arranging, ordering and
systematizing legal propositions and study of legal institutions though legal
reasoning or rational deduction.1

1.5 CHAPTER SCHEME

I have adopted the following chapter scheme for my project:

1. Introduction

2. Identifying the essence of nrms.

3. Introduction to Customs

4. Introduction to values and morals

5. Conclusion and Bibliography

1
Dr.SR Myneni, Legal Research Methodology, Allahabad Law Agency, Faridabad, 2017

5
 CHAPTER 2 : INTRODUCTION

Law is an extremely broad subject which is defined as the body of rules and
regulations that governs human behavior in a society. It establishes a code of
conduct for the human beings. Law, like society is not a static, immutable entity
issued once and for all; they are under constant development and social-
historical evolution. 2 It has evolved over the time and originated from customs,
norms and morals. In earlier times, law was considered to be synonymous with
morals and customs. But with changing times, the definition of law has also
changed and it is no more confined to ethics, norms and traditions. Indian law
recognises many Indian social customs are legally valid, such as various forms of
the Hindu marriage ceremony that are originated as customs but now form a part
of Hindu Marriage Act and are given legal validity. Similarly, theft was considered
as a moral wrong earlier but now it is considered a crime and due punishment is
given under the IPC.

CHAPTER 3: Identifying the essence of

Norms
Social norms shall mean a rule that is neither promulgated by an official source, such
as a court or a legislature, nor enforced by the threat of legal sanctions, yet is
regularly complied with3. According to Salmond, ‘custom is the embodiment of those
principles which have commended themselves to natural conscience as principles of
truth, justice, and public utility.’ 4 It is a guideline or an expectation for behaviour of
any individual. Each society makes up its own rules for behaviour and decides when
those rules have been violated and what to do about it. Norms change constantly

2
Chia Jui Cheng, Customs Law of East Asia,Wolters Kluwer
3
www.jstor.org
4
www.jstor.org

6
and different groups, regions and countries have a different set of norms. Norms
were the guiding lights of the people in the olden times when they believed that the
society is supreme and they had to obey the guidelines laid out by the society.

3.1 EVASIVE BOUNDARY BETWEEN LAW

AND SOCIAL NORMS
Ever since the early twentieth century, constant efforts are being made to define law
and distinguish between law and norms in the society. According to Eugen Ehrlich as
he pointed out in his book, there is no real difference between norms and society.
Both are considered as the rules of conduct for the individuals. Norms can be
classified as social and personal norms. Breaking a social norm leads to punishment
from the society whereas breaking a personal norm leads to punishment from the
individual self in the form of a bad conscience and guilt. Ever since SoL has
emerged as a scientific discipline, the pivotal task has been to define and distinguish
between law and norms. Legal norms are merely one of the rules of conduct and
thus there is a difference between norms (personal, legal and social) and law.

3.2 LEGAL POSITIVISTIC PERSPECTIVE

Hans Kelsen , introduced the word ‘norm’ to the legal discourse and argued law is a
system of norms, norms being ‘ought to do’ statements. These statements would
describe certain code of conduct for the people in the society . At that time he made
several attempts and described law on the lines of social sciences. Kelsen argued on
jurisprudence as the pure theory of law. Furthermore, Kelsen was influenced by
Hume’s law and firmly believed in the distinction between ‘is’ and ‘ought’, and in the
impossibility of deriving ‘ought’ conclusions from factual premises alone.5 In his
book, Fundamental Principles of the Sociology of Law (2001) he opined that just

5
ibid

7
legal norms are just like other rules of conduct. He believed that there is no
ontological difference between law and norms. This perspective forced Kelsen to
explain how law is possible. legal positivism is the view that a law is only valid if it is
made by the right practice for the state creating the law (e.g. laws passed through
parliament) it does not matter if we even like these laws, just as long as they are
made using the right process (Austin).

3.3 CONNECTION OF SOCIAL NORMS

AND STATE LAWS
Social Norms are unwritten rules of general conduct which are accepted in the
society. The are approved by the people living in the society and function on their
basis. There is much research done on the influence that so called social norm have
on our behaviour, and it refers to the influence important others have on us, such as
family, friends, and other people, whose opinion we value as important. 6 It is on this
pretext that an individual’s behaviour is affected by the practices carried out in the
society and the rules framed by them become a cause of action for a number of
reasons. State laws refer to the laws or body of rules and regulations promulgated by
the State for the welfare of their people. The concept of state laws is relatively new
and were earlier called as social norms. In earlier times, the practices of the one in
the power were considered ideal and were supposed to be followed by the people.
When it was practiced by everybody, slowly and gradually became a norm followed
in the society hence a social norm. With further passage of time, the legitimate
norms were passed by the legislature and became laws and some still remain as
social norms.

6
www.slu.se

8
CHAPTER 4: INTRODUCTION TO
CUSTOMS
Custom is a habitual course of conduct observed uniformly and voluntarily by the
members of a society. Custom is to the society what law is to the state. In all
societies of the world, custom has enjoyed a very high place in varying degree in the
regulation of human conduct.7 Whenever a group of people in the society come
together, consciously or unconsciously they start following the same habits which
later turn into customs, some definite rules governing reciprocal rights and
obligations. They get approval by the people and are hence followed by generations.
In all societies of the world, custom has enjoyed a very high place in varying degree
in the regulation of human conduct.8 Custom is considered to be one of the oldest
sources of law in the history. They have been the most potent source of modification
of the ancient law. In the earlier times, conduct of the people was affected by the
ongoing practices in the societies. According to Salmond, there are two reasons for
transformation of customs into laws. First, they become a body of those principles
followed since generations and thus following them becomes a moral obligation.
Secondly, the rational basis help it in being performed and never lets it get
extinct. Salmond adds, ‘’justice demands that, unless there is good reason to the
contrary , men’s rational expectations shall, so far as possible, be fulfilled rather than
frustrated.9

According to Keeton, main reason for development of law from custom is that the
entire process of formation of law was undertaken by the people of the community
themselves before state could interfere

7
ibid
8
ibid
9
ibid

9
4.1 Classification of different kinds of
Customs
They are generally two kinds of customs i.e. legal and conventional. The legal
customs are the one which are binding on both the parties due to rule of law and on
which the legal authority is absolute. It has the force of law proporio vigour. They are
further of two types : General and Local. Local custom applies to the local area
whereas general custom is prevalent in the entire country. General custom serves
the purpose of the law of land. Local custom although applicable only on a local
community yet they should be rational, reasonable and should conform to the statue.

Conventional customs are the ones which have the binding power on the parties until
they are expressly mentioned not to have so. If this obligation has to be excluded, it
needs to be excluded by expressly mentioning in the terms. The authority is
conditional in case of conventional customs. There was a time when common law
was considered same as the general custom.

There are some parameters which the jurists have laid down for a valid legal custom.
They are mainly : Continuity, Rationality, Consistency and must be in accordance
with the statue.

4.2 ENDOGENEOUS RELATIONSHIP

BETWEEN CUSTOM AND LAW
A valuable discourse examines how customs may determine both de facto laws and
formally enacted laws, including the court precedents that are rendered.10 Customs
always have an impact on the laws in the society by either codification of customs
into laws or modifications of the existing laws. It is believed that customs do have an
impact on the verdicts given by the Honourable courts. Further these precedents are
of supreme importance to the governments, policy makers and think tanks. They
have to frame laws or ordinances, make policies which further determine the
behaviour of the individuals in the society. Across disciplines, scholars have studied
10
users.nber.org

10
and documented the ideology that how a legal framework is prepared with the
prevalent customs in the society. Hence, one cannot deny the fact that laws can also
determine customs.

4.3 INTER- TWINING OF CUSTOMS WITH

DIFFERENT FIELDS OF LAW
Custom not only pervades law but also informs the law. The influence of customs
can be seen when we study the impact of customs on the following fields of law:

 Law of Torts

The link between torts and customs can be seen in three main doctrines of
Law of Torts which actually constitute the main part of it : negligence, product
liability, and medical malpractice.
To begin with the tort of negligence, courts presume that a defendant who
fails to comply with safety related customs prevalent in her industry acts
negligently.11
When the case of product liability arises, manufacturers and customers both
refer to the the customs in determining the quality of products alongwith the
product design. Courts also refer to the industry customs to determine the
defect or flaw in the product.
Similarly, in the case of medical malpractice doctors refer to the set standards
of ‘customary care’ to ensure proper treatment to his patients. A patient files
his suit in the court against the doctor on the basis of violation of the
customary care that was required to be taken. The law of torts relies on
custom not only directly, by associating custom with precautions against harm
that a reasonable person ought to take, but also indirectly, through evidentiary
rules and presumptions that bolster the centrality of custom to adjudicative

11
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1365&context=mlr

11
 determinations of fault12. Thus, customs are treated as a benchmark against
which a person’s liability in tort is determined.

 Intellectual Property Law

Custom has a significant influence on what is considered “fair use” in intellectual

property law13. Customs are a kind of identification mark of the legacy of many
indigenous people, tribes and local communities. IPR protects these identity marks
of the natives of a particular region/area. It can include use and access to natural
resources, rights and obligations regarding usage and maintenance of land, cultural
heritage, etc. It plays a pivotal role in protecting the legal identity of the people.
Thus, IPR with respect to customs can be defined as “law consisting of customs that
are accepted as legal requirements or obligatory rules of conduct; practices and
beliefs that are so vital and intrinsic a part of a social and economic system that they
are treated as if they were laws”.14

 Law of Contracts

Contract law fills in the gaps of commitments based on customary

practices.15 In the early nineteenth century when the law of contracts had
not been yet codified, the customs prevailing decided the terms of the
contract. For example, earlier barter system prevailed when goods were
exchanged with goods and money played no role in that. Hence, then the
terms of contract were defined by the custom prevailing in the society i.e.
of barter system.

12
Ibid
13
https://law.duke.edu/customlaw/
14
http://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf
15
https://law.duke.edu/customlaw/

12
 CHAPTER 5 : INTRODUCTION TO
VALUES AND MORALS
Ancient Greek writers believed that there is no distinction between values
and law. Morals or values are the ethics of what we ought to do i.e. what
is right, what is wrong or what is the right way to do it.
But soon people began to realise that there is a difference between what
is legally right and what is ethically right. Legally right is based on the
principle of justice and equity whereas morals are majorly based on ethics
and ‘what ought to be’. The contrast between what the state demands
and what the gods demand is not the only way that this legal v. moral
distinction is expressed.
In the modern world, morality and law are almost universally held to be
unrelated fields and, where the term "legal ethics" is used, it is taken to
refer to the professional honesty of lawyers or judges, but has nothing to
do with the possible "rightness" or "wrongness" of particular laws
themselves.16
Although law and morality do not perfectly coincide with each other yet
there is an interdependence between the two.
Morality mean the standards/parameters against which we judge human
behaviour and set forth paths for other people in the society.

5.1 CONFLICT OF LAWS AND MORALITY

Enforcement of morality through law is being propounded since ages and
being a convenient and ideal concept , it is riddled with contradictions
when applied in a realistic realm. Morality often passes judgement on a
person’s intentions and character it has a different scope than the law.

16
www.cormacburke.or

13
Although both law and morality seek peace of mind and propagate equity and justice
in the society. The concepts of morality and law both affect the same thing: the way
we live. But it is believed nowadays that law is absolute and it is even more
important than morality. Although today one can argue that as long as law permits
certain social practices such as same-sex marriage, abortion and legislation of
prostitution should not be considered as legally wrong, they are moral problems of
modern world, which proves that moral principles are still stronger than legal
principles.17 . However at the same time they are in a conflict. In recent years there
are some examples to show the conflict and to understand that moral principles are
still stronger than legal principles such as same-sex marriages, abortion and
legislation of prostitution.18

The aim of law is that people should be governed by accepted rules and
regulations which are general and abstract and applied equally to all the
individuals in the society. The essence of morality took birth with the cradle of
human civilization. When people try to give moral justification, they try to take a
stand based on ethics or what is ethically acceptable whereas a legal standing
is based on what is just and not what is ethically followed or practised in the
society. There are some cases where even if a moral breach is bad for society,
the social costs of trying to enforce morality in such cases would be worse than
even the bad breach. Hence, martial law is not the sort of thing democratic
societies generally tend to have, even if it would make streets safer; wire taps
are not permitted for just any speculative purpose; confessions cannot be
coerced; and guilt must be proved by the prosecution beyond reasonable
doubt, even if guilty people sometimes go free, because we have made the
decision that it is better to free the guilty in cases difficult to prove reasonably
than to risk convicting the innocent.19

17
https://www.grin.com/document/335717
18
ibid
19
www.cormacburke.or

14
 5.2 SHOULD LAW ENFORCE
MORALITY ?
Now the pertinent question which arises is that should law enforce morality ?

Morality is the internal sense of right and wrong peculiar to the individual; a
result of teaching, upbringing, indoctrination and the human condition itself. It is
pointless to try to distinguish rules against such activities from "morality,"
because even a system that is based on no regulation except against such acts
is based on a moral judgment that people should be free to do what they will,
so long as there is consent.20 Government works for the benefit of the people
and should enforce morals, rules which are just like equal protection before law,
equal pay for equal work. Above everything, law always tries to function
against and prevent immorality. Laws framed in the society against theft,
murder dacoity, rape function on moral grounds. But there are still some laws
which are bound by the roots of ‘morality’ but actually are against morality. For
instance, Section 370 of the Indian constitution criminalises homosexuality.
This is illegal but there is nothing immoral. Hence, to conclude I would say that
enforcing morals in the name of law and informing about morals is a different
concept. Hence, the task should be informing rather than enforcing.

CONCLUSION AND SUGGESTIONS

The relevance of norms, customs and values is very relevant till now. They hold
an important position in determining the laws and legal framework today.
Relevance of norms, customs and values need a proper and deep insight
before arriving at a conclusion. The idea that they are still relevant is not
objective. In the above project, consistent efforts have been made to justify

20
http://www.debate.org/opinions/should-the-government-enforce-morality

15
their relevance. Ever since the early twentieth century, constant efforts are
being made to define law and distinguish between law and norms in the
society. They are two overlapping concepts and it cannot be denied that they
influence law. The norms are actually brought into existence by the
experienced and these rules have been running in posterity for so long hence
their validity and essence is satisfying.

Moral arc of the universe bends at the elbow of justice. Enforcement of morality
through law is being propounded since ages and being a convenient and ideal
concept , it is riddled with contradictions when applied in a realistic realm.
Morality often passes judgement on a person’s intentions and character it has a
different scope than the law.

Custom is a habitual course of conduct observed uniformly and voluntarily by

the members of a society. Custom is to the society what law is to the state. In
all societies of the world, custom has enjoyed a very high place in varying
degree in the regulation of human conduct.

BIBLIOGRAPHY:
Morality of Law by Lon. L Fuller

Concept of Law by H.L.A Hart

Introduction to the Principles of morals and legislation by Jeremy Bentham

Law and Social Norms by Eric A. Posner

16