Compare the role of custom as an agency of social control in primitive and modern industrial societies. (1996)
Custom is an established, socially approved way of acting, sustained by tradition and group approval rather than by an enacted rule. William Graham Sumner (Folkways, 1906) distinguished folkways, which draw mild disapproval when broken, from mores, which are felt to be vital to group welfare. Henry Maine’s movement “from status to contract” (Ancient Law, 1861) suggests the contrast: in simple societies custom is the law, whereas in industrial societies it retreats behind formal law without disappearing.
Criteria-wise comparison
| Criterion | Primitive / tribal societies | Modern industrial societies |
|---|---|---|
| Place in control | Primary agency; custom, law and religion are fused | Secondary to law, bureaucracy and market rules |
| Source of authority | Ancestors, the sacred, elders | Enacted legislation and the state; custom survives by habit and convenience |
| Sanctions | Diffuse: gossip, ridicule, withdrawal of reciprocity, ostracism, supernatural fear | Mostly informal disapproval; formal penalties belong to law |
| Scope | Covers almost all of life: marriage, property, work, ritual | Confined to etiquette, dress, family ritual, professional and business conventions |
| Uniformity | High, in small homogeneous groups | Plural and contested across class, region and religion |
| Change | Slow; innovation suspect | Rapid; fashion and law erode custom |
What the comparison reveals
1. Primitive custom is not blind obedience. Bronisław Malinowski (Crime and Custom in Savage Society, 1926) rejected the idea of “automatic submission to custom” among Trobriand Islanders. Rules were kept because of reciprocity: fishermen and gardeners were bound by mutual obligations, and failing them meant losing future support. When the youth Kima’i was publicly shamed for breaking clan exogamy, he took his own life. Custom worked through public opinion and self-interest. Émile Durkheim called law in such societies repressive, expressing a strong collective conscience.
2. Custom survives in modern society. Max Weber (Economy and Society, 1922) noted that much conformity rests on usage and convention, not law. Queues, gift-giving, dress codes and the informal norms of workplaces regulate daily life, and law itself often codifies custom.
3. Modern law recognises custom.
- The Hindu Marriage Act, 1955 (Section 3(a)) accepts a custom if it is ancient, certain, reasonable and not against public policy.
- Article 371A protects Naga customary law, and the Sixth Schedule lets district councils administer tribal customs.
- The Uttarakhand Uniform Civil Code, in force since 27 January 2025, exempts Scheduled Tribes, leaving their customary law intact.
- In May 2023 a Constitution Bench of the Supreme Court upheld the Jallikattu law, treating the bull-taming sport as part of Tamil Nadu’s cultural heritage.
4. Custom can defy law. Child marriage persists despite statute. NFHS-6 (2023–24) found that 20.1% of women aged 20–24 had married before 18. Caste and khap panchayats still enforce endogamy through boycott.
Conclusion
Custom’s role changes in form and scope more than in existence. In primitive societies it is the main, comprehensive agency of control. In industrial societies it becomes a background regulator of everyday conduct that law must either absorb, protect or confront. Effective law in India depends on bringing custom along with it rather than simply overriding it.