Every now and then, and with varying levels of intensity, the debate regarding the position of customary bodies and laws flares up afresh in highland North-east India. Through the Sixth Schedule and a range of specifically-tailored constitutional amendments, customary laws and procedures supersede (in most places) India’s general laws and jurisprudence. They institutionalise — amongst other special rights and provisions — the historical and cultural difference of the highlands vis-à-vis India’s so-called “mainstream”.

But whereas in places across the globe, the debate about customary law pertains to its applicability in the contemporary epoch with many theorists and politicians, this is not what is at stake in highland North-east India. The ongoing prominent position of customary bodies and laws in the lives of many highland “North-easterners” is because of the intricate connection it holds to their sense of being in this world, the right to their difference and the politics of identity, and those readily override the pragmatics of a universal legal code.

Instead, the debate often surrounds the proposed codification of customary laws, especially with politicians calling for them to be streamlined into a neat “lawbook of customs”, as it were, that would then function as the indisputable point of reference to adjudicate rights over land and its resources, disputes, inheritance and other issues. Most recently, this desire was expressed anew by the political establishment in Nagaland. Such codification, however, would connote the beginning of the end of customary law.

The possibility of codification hinges on a particularistic view and vision of what customary law is and represents, which is that of clearly traceable traditions that are historically stable and backward-looking and thus, immune to changing contexts. This view further perceives the constitutive logic, form and functioning of the orality of traditions and customs as similar to the textuality of a written document. This equation of customary law with the days of old and the conviction, however, that oral traditions and customs can be captured, reduced and “frozen” into a written text is highly problematic.

To start with customary law in its “authentic”, pure and traditional form doesn’t exist and has never existed. Customary laws are not commandments hewn in stone. Per contra, they permit for a certain drift in form, content, and emphasis, and when political contexts, religious beliefs, ideas of justice, or moral values change, customary laws usually follow suit, not overnight or in a revolutionary fashion but gradually and organically as society continuously adapts and reinvents itself.

While customary laws are capable of truthful oral transmission across generations, it is precisely their orality that also enables their strategic reinterpretation, adjustment and change when a community so desires, an elasticity that contrasts written laws that tend to become rigid and fixed — hence the concept of “archaic laws”.

The case of Naga customary law (itself highly diverse, often varying from one tribe and village to the next) is a case in point. Much of what is today celebrated as Naga customary institutions bear a heavy imprint of colonial overrule and Christian conversion. To illustrate, while gaonburas (village headmen) and dobashis (whose literal translation is that of “two languages” and thence of interpreter) are today seen as the custodians of customs, these now traditional officers emerged only during the colonial era. On the other hand, the contemporary values of compromise, reconciliation and forgiveness that now guide customary court deliberations and decisions are clearly inspired by Christian teachings and very different from the “rule of retribution” that structured earlier versions of Naga customary law.

This makes critics of customary law describe “Naga traditions” as a colonial vestige or a Christian product, rather than a “pure” traditional species of authority. Such a reading, however, is misguided by a static view of customary law as an ancient fossil inherently adverse to change.

A more fruitful reading is one that focuses on the spirit of customary law and to see this as the political-moral embodiment of a society’s own conception and normative imagination of its social self, which is ever evolving. If the colonial archive reveals how, in days bygone, customary punishments for, say, thieving included the culprit being beaten, stamped upon in the mud, or sold as a slave, any such suggestion today would be immediately objected to on moral grounds, precisely because this contravenes the contemporary spirit of Naga customary law.

Clearly, something has changed in the Naga ideas of justice and punishment, a change that most would agree is for the better but simultaneously a change that remains distinctly reflective of Naga society in its contemporary outlook. Other such changes in the spirit of custom may emerge over time, including towards recognising gender equality.

Acknowledging customary laws’ malleability over time, Justice DM Sen spoke with profound wisdom when he objected, in the mid-1970s, to an early proposal by the Nagaland government for codification, “I am very much against codification. The moment you codify you make it final and firm and rigid. The societies, the tribal societies are developing much faster than any other societies and you yourself do not know what you are going to retain and what are you not. So codification means binding yourself.”

Why then is the Nagaland government, like others in the region, pushing for codification? The reason seems fairly simple. Customary law takes the community’s rights and interests, not the state’s, as its focal point and therefore carries counter-hegemonic potentialities.

Its logic and spirit is different from that of the sovereignty of the state and general law in that it protects and patrols the sovereignty of the community, including alienable rights to land and resources (and over the conditions of their extraction), future visions, instruments of social control and ultimately over what constitutes the good life, and such visions may readily contravene state interests. It is this vision that conjures the spirit of community, of whose actualisation customary laws are contributing parts, more than an end in themselves.

In this context, what codification would entail is the incarceration of the inherently evolving spirit of custom into the conceptual terms of written laws; to inject, that is, legal formality into it and to then bring them into the realm of the juridical that is dominated by institutions and stakeholders — not of community, but of the state. Doing so would allow the state to treat each customary law in isolation, inspecting it from all sides and angles in search of ambiguities and loopholes, in the same way as written laws always carry the possibility of their bypassing and undercutting, possibilities that lawyers are trained to specialise in and capitalise on. Codification then prepares the stage for customary laws’ circumvention.

And perhaps this is the deeper purpose behind the proposed codification — the state’s attempt to transform the oral into the written, the flexible into the fixed, the rendering of the illegible legible, and the reduction of the “spirit of custom” to the “law of custom”, and ultimately, make it subservient to state governance.

The hunch is that such circumvention is especially desired, from the state’s vantage, in relation to land acquisition for infrastructure development and control over natural resources, both of which (land and resources) currently exist outside the immediate reach (and revenues) of the state.

The threat of circumvention apart, crucially, codification would evacuate the spirit from customary law, thus freezing it in time, and so smother the very feat that explains its remarkable resilience — its genius, that is, to change and reinvent itself in accordance with changing times.

The writer is a social anthropologist and teaches in the department of social sciences at Royal Thimphu College, Bhutan.