Between Conscience and Coercion: Internalisation of Customary Law among India’s tribes

Abstract

The process through which norms are absorbed into the moral fabric of a community, thereby transforming them into customary law, is labelled as internalisation. Once internalised, such laws command adherence not through coercive state apparatuses, but through internal mechanisms such as conscience, shame, or fear, depending on cultural context. However, without formal recognition or implicit consent of the authority, customs remain normative practices rather than enforceable law. Customary law, thus, arises from long-standing social practices embedded in the community's ethical and moral values, and carries an informal yet potent sanction of the people. In tribal societies, these customary laws are pertinent in regulating social relations, including inheritance, succession, marriage, divorce, and homicide, to name a few. Such laws derive legitimacy from societal acceptance since time immemorial. They are often enforced through traditional leadership, such as the chief, headman, or elders. However, in contemporary times, the broader constitutional framework of the Indian state plays a crucial role in safeguarding the tribals, especially under the Fifth and Sixth Schedules. These dual legal structures intertwine complexly, often producing frictions between traditional governance and state intervention. This paper examines the intricate internal mechanisms and contemporary challenges of customary law while arguing for it as a form of legal order that contributes to the pluralistic legal landscape in India.