The Constitutional Pal

Customary Law and Administrative Law

Have you ever wondered if the roots of modern government stretch deeper than constitutions and courtrooms?

Have you ever paused to think that the rules guiding our modern governments—those dense laws, those formal procedures—might actually have echoes of village gatherings, tribal councils, or stories told by firelight?

While administrative law—the engine of government that keeps public administration running—is often viewed through the rigid lens of statutes, regulations, and formal structures, it has a quiet companion that rarely makes it into the textbooks: customary law.

In this blog post, we take a step back from black-letter law and formal legal systems to ask a deceptively simple question: Does custom still matter in modern governance? And more provocatively—has administrative law quietly borrowed more from age-old traditions than we like to admit?

That will be followed by research that aims to explore any influence that customary laws have on the administrative laws. It would discuss whether the powers and procedures of the executive organ are in any manner sourced from traditional customs and usages. The nascent research questions:

1a. Whether customary law is, if not a source, then an influence on administrative law?

1b. Whether the executive’s functions and powers have any roots in customs and usages of any place?

The Invisible Hand of Tradition

Customary law is often imagined as the opposite of modernity: unwritten, informal, rural, ancient. Think village councils under banyan trees, oral traditions passed down generations, or dispute resolution through elders instead of judges.

And yet, across the world, administrative processes—those daily decisions by bureaucrats, regulators, and government officers—often reflect a logic that predates constitutions. Before we had ministries and departments, we had tribal chiefs, village heads, sabhas, councils, and indigenous authorities. These weren’t just quaint leftovers—they were the original administrative bodies.

Could it be that the executive branch, which seems so modern and impersonal, actually evolved with a kind of cultural DNA shaped by customs and traditional governance?

From Oral to Official

The Overlap No One Talks About

Administrative law is supposed to regulate how governments exercise power—how they make decisions, how they treat citizens, and how they’re held accountable. But the underlying principles that guide this regulation—fairness, openness, reasonableness, listening to both sides—don’t always come from statutes alone.

Many of these values are embedded in customary practices that were followed in communities for centuries. Indigenous systems often had intricate codes of behavior, accountability, and conflict resolution. For instance:

Modern administrative law may look formal, but its skeleton might be carved from these older bones. Maybe what we codify as administrative procedure today was once just good governance—rooted in memory, custom, and the need to maintain balance within a community.

Convergence between customary and administrative systems does exist. Example:

Customary Bureaucracies

We often imagine bureaucracy as a cold, impersonal machine—paper-pushing in fluorescent-lit rooms. But if you look closer, it hums with quiet ritual. Ever noticed how a government office has its own choreography of respect and authority? Knocking before entering, standing while a superior reads a file, waiting to be asked to sit—these aren’t just workplace courtesies; they echo the subtle performances of hierarchy in customary settings.

Think of the rituals that once governed village councils or tribal courts. Elders would speak in order of seniority. The youngest would sit on the ground. Silence wasn’t absence—it was reverence. Even decisions weren’t announced casually; they were proclaimed with ceremony, sometimes with the blessing of the ancestors.

Now compare that to the “ceremonial” aspects of bureaucracy today:

We dress these in procedural language, but underneath, they preserve the grammar of tradition.

Even the design of bureaucratic offices—high tables, separate chairs for visitors, hierarchical desk layouts—can reflect deeply cultural cues about order, legitimacy, and authority. The act of “signing off” on a matter carries a performative finality not unlike the elder’s concluding words in a customary tribunal.

So maybe the bureaucracy isn’t as alien as we think. Maybe it’s just custom in a suit and tie.

The Big Why

Why This Matters Today

So, what’s at stake in tracing this influence?

For one, legal pluralism—the coexistence of multiple legal systems—is not just a quirky feature of “developing” countries. It's a reminder that law doesn't start with a signature on paper. It starts with what people do, what they expect, and how they organize authority around them. As I continue exploring this space, I’m left wondering: how many of our “modern” legal practices are really that modern? How much of the everyday machinery of governance is quietly animated by older, inherited codes of behavior? I don’t have all the answers yet—but I do know this: looking backward may be the most forward-thinking thing we can do.

What This Isn't

Let’s pause for a reality check.

This isn’t a romantic call to return to the “wisdom of the ancients.” Not all customs were benevolent. Many upheld caste, patriarchy, or exclusion. Some silenced voices that law today seeks to empower. To say that administrative law echoes custom is not to say that we should revert to it wholesale.

But to ignore the influence of tradition is to build governance in abstraction—on paper, not in practice. Culture doesn’t just vanish when a new legal order is signed into being. It lingers. It adapts. It sometimes resists, and sometimes quietly integrates.

This inquiry isn’t about idealizing the past—it’s about recognizing what persists from it. Because customs aren’t just old rules; they’re frameworks of meaning. They help people understand why a decision feels fair or not, legitimate or not. And if modern institutions ignore that, they lose more than public trust—they lose moral texture.

It’s a way of noticing what never really went away. This is not nostalgia. This is forensic curiosity. And maybe, it’s also intellectual honesty.

What’s Coming Next

This blog post is just the beginning of a deeper exploration into the relationship between customary law and administrative law—a theme that deserves more attention in both legal scholarship and public policy. My upcoming research will examine whether customary norms have influenced the procedures and powers of the executive branch—and how this influence plays out in practice.

I’ll be looking at legal systems that carry the dual legacy of colonial codes and indigenous customs, asking tough questions about origins, legitimacy, and reform.

If you’ve ever felt like modern governance feels both alien and familiar at the same time—you’re not alone. The answers might lie in the customs we’ve quietly carried forward, even into our sleekest institutions.

Secondly, ignoring the influence of custom on administration can make legal systems less relatable and less effective, especially in countries where formal law still struggles to earn trust. A bureaucrat might follow the statute to the letter, but if they ignore local norms, their legitimacy erodes.

And finally, understanding this influence could actually help us design better, fairer systems. Not by romanticizing tradition, but by learning from it. Why reinvent the wheel of administrative fairness when some communities have been balancing power, listening to grievances, and distributing resources for centuries?

The Customary Brainstorm

Because maybe, in understanding the past, we learn how to govern not just better—but more wisely. This is not just about the law. It’s about memory, legitimacy, and what we choose to carry forward.

Literature That’s Guiding My Inquiry

Fuller’s theory of inner morality in law—particularly his idea that fair procedures are essential for legitimate governance—offers an interesting parallel to customary norms of justice. His work underpins much of modern administrative legal theory and subtly opens the door to understanding how even unwritten laws can shape authority.

A cornerstone text for anyone studying administrative law in India. Jain discusses the evolution of executive power and procedures, and I'm exploring how certain procedural norms (like natural justice) echo community practices that long predate the Constitution.

Baxi critiques the formalistic rigidity of postcolonial legal systems and touches on the tension between custom and codified law. His thoughts are foundational for framing any legal pluralist argument.

Chanock’s work provides a detailed analysis of how colonial legal systems clashed with—and sometimes absorbed—indigenous customs. This lens is useful in understanding how administrative authority often masks older, customary foundations.

While this work is tangential, it introduces an intersectional layer—how custom, colonial administration, and law intersect to shape modern governance, especially in multicultural societies.

I’m diving into constitutional provisions that explicitly or implicitly engage with customary law. Article 13(3), which defines “law” to include custom, opens a door into treating custom as more than just background noise.

These policy documents offer insight into how traditional governance models were adapted—or sometimes tokenized—into administrative systems post-independence.

This study explores how administrative law can enhance accountability and transparency among traditional leaders, advocating for a "living" approach that integrates customary practices into formal governance structures.

Harald Sippel's work delves into the codification and unification of African customary law during colonial times, particularly in Kenya and Tanzania. It highlights the enduring impact of these efforts on contemporary legal systems.

This paper discusses how Indigenous communities maintain their customary laws within and outside formal legal systems, emphasizing their role in addressing challenges posed by dominant cultures. It sets forth a taxonomy for classifying different uses of the customary law of Indigenous peoples that creates space for a common language for identifying and discussing these efforts and how they fit into a multicultural, international legal system.

This research examines the integration of customary law in tribal courts, arguing that it preserves cultural identity and offers a framework for self-governance.

In her book Law and Custom in Korea: Comparative Legal History, Kim analyzes how colonial and post-colonial legal systems in Korea were influenced by customary law, offering insights into the interplay between tradition and modernity.

A former Associate Justice of the Navajo Nation Supreme Court, Austin's work, including Navajo Courts and Navajo Common Law, provides detailed case studies on the application of Navajo customary law within tribal self-governance.

Studies by Yash Ghai and Jill Cottrell have documented how customary law interacts with formal institutions in postcolonial African nations, highlighting the balance between statutory law and local legitimacy. Their chapter, The Rule of Law and Access to Justice in Sub-Saharan Africa (2009) takes an empirical approach to how customary law interacts with formal institutions in postcolonial African nations. It's helping me compare how administrative processes in different systems balance statutory law with local legitimacy.

[Talking] Endnotes:

A few trails I’m still following, questions I’m still asking, and curiosities that might turn into something deeper. Because, this isn’t the end; just the beginning of a longer conversation...

  1. What if “due process” didn’t begin in courtrooms, but under trees, in panchayats, or around council fires? Many traditions had hearing procedures, consensus-building, and expectations of fairness. Are we giving custom too little credit in the genealogy of administrative justice?

  2. I keep wondering how colonial administrations decided which customs to absorb and which to erase. The line between “recognized tradition” and “subaltern disruption” often depended on whether the custom could be turned into an instrument of control.

  3. Legal pluralism is often treated like a leftover feature of postcolonial societies—but what if it's actually the norm, not the exception? Maybe monocultural legal systems are the real anomaly. The rest of the world is just being honest about how people live.

  4. Is custom less about specific rules and more about a way of thinking about authority? Perhaps it’s not about whether a particular procedure was customary—but whether the logic of responsiveness, of embeddedness in a community, carries over into how the executive functions.

  5. There’s something quietly powerful about the idea that the state is never entirely free from its cultural memory. Bureaucrats may wear suits, but the processes they follow might echo elders, consensus circles, and ritualized fairness in ways we don’t always acknowledge.

  6. I’m also fascinated (and skeptical) of how “token” custom is used. Is tradition being respected—or just represented symbolically in modern institutions? There’s a difference between meaningful influence and ornamental inclusion.

  7. And then there’s the hard question: When customary law is brought into formal systems, does it survive? Or does it get reinterpreted to fit the mold—flattened into something “legible” to the state?

  8. What happens to administrative accountability in places where customary authority still holds legitimacy, but formal institutions don't? Are citizens navigating two systems at once—and if so, who do they really trust?