The Flexibility of Law Based on Societal Custom

When we observe traditional societies, prior to the development of a systematised body of regulations and laws, we find that there may be certain basic similarities within a culture, but that the actual application may vary from group to group, tribe to tribe, clan to clan.  There is considerable discretion to take into account varying circumstances, needs and backgrounds.  Thus, law is a fluid concept, applied by the people of a community on their own community.

As law becomes more formalized and organized, this fluidity and variation begins to disappear until finally there is a codified system that gets applied across all people within the society in a more or less uniform fashion, dependent primarily on the vagaries of the specific legal system, the amount of control or influence exercised by the executive in that society, and the discretion permitted to judges in terms of interpreting and applying that law.

Sri Aurobindo observes:  “In its beginning, law is always customary and where it is freely customary, where, that is to say, it merely expresses the social habits of the people, it must, except in small societies, naturally lead to or permit considerable variety of custom. …  This spontaneous freedom of variation is the surviving sign of a former natural or organic life of society as opposed to an intellectually ordered, rationalised or mechanised living.  The organic group-life fixed its general lines and particular divergences by the general sense and instinct or intuition of the group-life rather than by the stricter structure of the reason.”

Sri Aurobindo, The Ideal of Human Unity, Part Two, Chapter 21, The Drive towards Legislative and Social Centralisation and Uniformity, pp. 183-184