The Evolution of Intelligent Development and Implementation of Law Over Custom

The development of a body of formalised laws in a society mirrors, generally, the development of the mental intelligence and its resetting and restructuring of the vital reactions, habits and customs in the individual human being.  When the higher mental processes become active, they act as a focusing and restraining force on the impulsive vital nature.  Similarly in a societal setting, we see the initial basis of law in the vital principle of reaction to circumstances and an attempt to balance the needs of the individual with the needs of the society, through the creation of rules, habits of response and frameworks of taboo which all rely on the vital force working through the community of individuals.  As with any evolutionary step, the transition from the vital process to the planned intellectual based process involves a series of phases or steps along the way.

Sri Aurobindo notes:  “The first marked sign of a rational evolution is the tendency of code and constitution to prevail over custom.  But still there are codes and codes.  For first there are systems that are unwritten or only partly written and do not throw themselves into the strict code form, but are a floating mass of laws, decreta, precedents, and admit still of a large amount of merely customary law.  And again there are systems that do take the strict code form, like the Hindu Shastra, but are really only an ossification of custom and help to stereotype the life of the society but not to rationalise it.  Finally, there are those deliberately ordered codes which are an attempt at intelligent systematisation; a sovereign authority fixes the cadres of the law and admits from time to time changes that are intelligent accommodations to new needs, variations that do not disturb but merely modify and develop the intelligent unity and reasonable fixity of the system.  The coming to perfection of this last type is the triumph of the narrower but more self-conscious and self-helpful rational over the larger but vaguer and more helpless life-instinct in the society.  When it has arrived at this triumph of a perfectly self-conscious and systematically rational determination and arrangement of its life on one side by a fixed and uniform constitution, on the other by a uniform and intelligently structured civil and criminal law, the society is ready for the second stage of its development.  It can undertake the self-conscious, uniform ordering of its whole life in the light of the reason which is the principle of modern socialism and has been the drift of all Utopias of the thinkers.”


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