Postmodernity and Beyond
Abstract and Keywords
This chapter discusses the concluding analyses in different sections. The author argues that dismissing Hindu law as a traditional religious system of suppression with no relevance to the contemporary world has been a grave mistake. Hindu law is, and will remain, a central element of Indian laws.
The present study has examined the theoretical and historical development of Hindu law from a postmodern approach that critically deconstructs its modernist distortions. Hindu law can no longer be read as an isolated case study of an ‘oriental’ legal system undergoing a unilinear process of modernization that leads to its eventual supersession. The evolution of Hindu personal law since independence suggests that a substantial portion of the world’s population has gently and silently rejected modern Western, state-centric notions of law as unsuitable for their respective conditions of life. Hindu law today retains culture-specific elements which effectively resist globalizing pressures and create space for a future that most modernists would deny to indigenous Asian and African legal systems. The findings of the present study carry important implications for the study of Hindu law itself, as well as highlighting the gradual metamorphosis of law into a broader, multidisciplinary field of scholarly inquiry.
The central challenge of this study has been to enable lawyers as well as non-lawyers to make sense of Hindu law as a major legal system in past and present times. This has been a difficult task, not only because of interdisciplinary complications and specific technical terminologies, but also because of the nature of Hindu law itself. The deconstructivist analysis of this study has shown that Hindu law is not neatly laid out in codes, as we are still constantly told. Ancient Hindu law was primarily located in natural law presumptions and in social environments which may or may not take account of the formal state law that may exist on certain subjects, but not on many others. Law as a phenomenon is much more than the positivist state law of dominant Western theories. In particular, the model of tripartite legal structure proposed by Chiba (1986) proved useful as an analytical tool.1 While official law does not represent the whole field of law, it became evident from analysis of Indian case law that custom and Hindu cultural concepts continue to play a critical role in the evolution of Hindu jurisprudence. There is a need for current research to investigate such important aspects of Hindu law more thoroughly, rather than succumb to simplistic modernist accounts of formal textual prescription and traditional rigidity. Hindu law must be understood as a complex living system (p.546) with many intangible and invisible elements, rather than a single, tangible fossilized relic.
Arguing that Hindu law in India today has reached a condition of postmodernity,2 this study has challenged not only core assumptions of legal modernity, but also traditional and modernist perceptions and constructions of Hindu culture and Hindu law, as well as dominant ideas about law itself. Hindu law is a classic example of a non-Western legal system that refuses the primacy of state-centred approaches to law. Law, from a Hindu perspective, is primarily concerned with natural law ideals, emphasizing self-controlled ordering at all levels and in all situations, a cultural message that Indian law has constructively employed.
The present study has demonstrated in detail that modernist assertions about the displacement of Hindu law are not based on solid research, but arise from ideological presumptions about the innate superiority of formal, supposedly Western legal models. The modernist discourse expected unidirectional assimilation to dominant Euro-American lego-cultural norms and models. In effect it demanded de-Hinduization through abandoning of Hindu customs, traditions, and religion and the adoption of secular, modernist law reforms. However, the modernist discourse, in distorting both the representation and actual structure of Hindu law, itself eventually fell to its own civilizing sword. Slowly, but surely, the modernist process of reform reached a stage where its protagonists and enforcers, particularly the higher judiciary, recognized that Hindu law does not fit into the straightjacket of ‘religious’ and ‘secular’ binaries. It has always been both, and continues to make creative use of its internal plurality to maintain dharma. Indian judges, as the most eminent representatives of the state, have recognized that to maintain a blind adherence to modernist axioms, and dismiss tradition in all its ugliness, would not ultimately be conducive to achieving socio-economic justice, the fundamental goal of the Constitution. In order to govern the vast majority of India’s more than one billion people justly and effectively, Hindu law must be actively integrated into processes of making and implementing law. As a result, Hindu law has continued to play a central role as an Indian personal law and its concepts have arguably become embedded and interwoven within the wider superstructure of Indian law.
Demonstrating that certain traditional conceptual elements of Hindu law have remained relevant for the reconstruction of Hindu law during the postindependence period, the present study was able to show with reference to statutes and case decisions how the resuscitation and unexpected growth of Hindu law in post-colonial India occurred. Without essentializing Hinduness, adopting a socio-legal approach, it has been possible to explain how ancient Hindu key concepts in their contemporary incarnations have contributed to (p.547) the genesis of postmodern Hindu law. Rather than being abandoned for the achievement of a modernist agenda, Hindu law has experienced a process of conceptual remoulding through the justice-conscious actions of an activist judiciary. In turn, it has metamorphosed into a sophisticated legal system that has moved beyond the discursive axioms of ‘tradition’ and ‘modernity’ into a condition of postmodernity.
These findings, undoubtedly polemical,3 raise numerous questions for the study of Hindu law, Indian public law, and Indian family law. Theoretically, they also contribute to the emerging debates in comparative jurisprudence and ethnic minority legal studies. Five issues for critical reflection are examined in turn below: (1) the imperative to study Hindu law from a postmodern perspective as an evolving conceptual entity and a living legal system, rather than in modernist terms as a fixed textual code; (2) the need to analyse the manifestations of postmodernity in the wider system of Indian law; (3) the utility of deconstructing modernist discourses of law in understanding non-Western legal systems; (4) the need for a critical re-assessment of dominant concepts of law, particularly given current debates about the globalization of laws; and (5) the implications of such shifting understandings of law for an increasingly visible, relatively ignored facet of globalization, namely the transplantation of non-Western communities to Euro-American jurisdictions as a result of global labour and migration flows.
Transcending Tradition And Modernity In Hindu Law
The diachronical history of Hindu law examined in this study suggests that it must be viewed both as an ancient, constantly evolving conceptual entity and a living legal system, rather than as a positivist system of regulation based on fixed textual codes. Chapters 3 and 4 showed traditional Hindu socio-cultural (and hence legal) structures as premised on the supremacy of self-controlled ordering, encapsulated in the idealized term of dharma. This method of microcosmic ordering, which need not even involve any visible processes of dispute settlement, as the concept of ‘satisfaction of the individual’s conscience’ (ātmanastuṣṭi) demonstrates, was explicitly dismissed by Lingat (1973: 6) as not legal. This study has illustrated with reference to past and present case law material that such basic Hindu concepts are in fact centrally relevant to understanding the Hindu system of legal regulation. The ideal is that there should be no need for formal legal processes to ascertain dharma. Self-reflective contemplation should be sufficient to make individuals do the right thing at any time, which remains the simplest general paraphrase of dharma.
(p.548) The next level of ascertaining self-controlled order or dharma, namely satisfaction of peer expectations or group norms (sadācāra) has widely been treated as ‘custom’. This central element of traditional Hindu law became formally and legally marginalized once the British obtained control of Hindu legal administration, though without ever managing to remove this important aspect of Hindu practice from the legal scene. Even today, customary law remains a vital aspect of Hindu law for many citizens of India, and even for overseas Hindus. Closer analysis shows that custom has resurfaced in statutes and cases as an integral element of postmodern Hindu legal ordering. Recognition of legal diversity is a systemic part of Hindu legal philosophy, while uniformity of legal rules is treated as a manifestation of injustice. To that extent, it could be said that the ancient Hindus were postmodern without having experienced what we perceive as modernity.
However, this and other characterizations of the nature of Hindu law continue to be contested in various ways. Despite the writings of Derrett (1968b) and others, our understanding of the ancient Sanskrit texts remains unclear. To what extent should they be seen as legal texts? But how can we find universally acceptable answers to such questions, given the absence of agreed definitions of law in the first place? As highlighted throughout this study, images of ancient, divinely given codes offer some Hindus evidence that their cultural system is not only ancient, but also legally authoritative in the highest sense.4 But to what extent is there some truth in the assertion, prominently made by a group of American specialists, that some of the later smṛtis were indeed legal texts written by jurists for lawyers? On this point, I have to criticize my Indological colleagues rather than modernist lawyers and social scientists.
Few scholars are prepared today to undergo the hardship of producing critical editions and readable new translations of ancient Sanskrit texts.5 Such authors are far too experienced not to be aware of the complexity of the subjects they cover. However, while one must admire such Indological scholarship, serious doubts remain over the modernist (mis)representations of Hindu law. My main criticism is that Indological scholars miss the point when they characterize dharma as ‘law’ as understood in common parlance and in positivism-focused legal circles.6 In fact, the concept of dharma as ‘self-controlled (p.549) order’ carries definite anti-positivist legal messages—it seeks to avoid state law. Chapter 3 showed that classical dharma was centrally concerned with self-controlled order and ideally requires no formal legal intervention. The need for law is treated as evidence of decay and decline in moral standards. This seems quite akin in outlook to Marxist idealizing about the ultimate withering away of legal superstructures. But early Hindu assumptions were already developed at a time when formal superstructures were not yet in existence.7 In that sense, dharma not only precedes but virtually pre-empts law. To suggest that the ancient Sanskrit texts are law books of some kind, thus, distorts the important cultural and legal messages that ancient Hindu law contains. They are indeed important normative texts (Olivelle 2000: v), but that does not make them law books in the Western positivistic sense of the term.
However, Lariviére (1989) asserted that the Nāradasmṛti represents Hindu jurisprudence par excellence, treating the concept of vyavahāra as ‘law’ and as a purely secular process described in a Hindu law code. While many Hindus will find it quite agreeable that an American professor should underwrite claims that the ancient Hindus had codes of law, even if just of procedural law, I disagree. Precisely here, secular modernist assumptions about the nature of ‘law’ are rather violently interfering with the internal perceptions on which the ancient Hindu textual sources themselves are built. Superficially, indeed, formal legal processes of dispute settlement can be perceived as secular legal phenomena and as ‘law’. My argument is most definitely not that the ancient Hindus had no awareness of ‘law’ and legal processes: Hindu law is focused on self-controlled order as well as the processing of disputes, but these both seek to avoid creating space for litigation as a secular activity.
If one takes a purely secular approach, what then has happened to the idea of the primacy of self-controlled ordering? More specifically, where is dharma in this equation? Why has it become invisible though it still exists, even if only as the desirable end result of dispute settlement processes? The concept of dharma is surely not absent altogether, but Larivière’s approach has indeed (p.550) outlawed it in the sense that Ugo Mattei identifies,8 so that dharma is now considered irrelevant for the lawyer, while the focus falls on the legal technicalities of dispute settlement. However, the deeper purpose of disputation and settling disputes, as processes of ascertaining dharma, is to protect macrocosmic and microcosmic order, not just to decide disputes. The fact that ancient authors were more or less silent about dharma in this context merely confirms that they took the underlying concepts as known, not that they were superseded.
This means that vyavahāra cannot properly just be read as ‘civil law’. It is first of all a tool of dharma, a technique to bring about order and balance with minimal interference from outside agents, such as judges and the state. The concept of vyavahāra may look secular to an outside observer. But from an insider’s perspective, it is not only religious, in the broad sense in which everything in the Hindu cosmic vision could be said to have a religious dimension (Menski 2002), but is at the same time also social, legal, and everything else that may be relevant in any specific scenario of dispute settlement. A diversity-focused, postmodern interpretation of this ancient concept confirms therefore that, long before the current postmodern age, ancient Hindus were able to handle plurality and interdisciplinarity in a way that reflects the integrated and central nature of dharma as self-controlled ordering rather than technical ‘law’. Rather than being treated as skilfully constructed manuals for ancient litigators, texts like the Nāradasmṛti should therefore be read as expressions of concern for the protection of this dharmic self-controlled order.
Other American Sanskritists working on law-related texts appear to follow Larivière’s lead in portraying certain later smṛti texts as legal documents. Such conceptual errors are exacerbated when Rocher (2002: 4) now asserts that ‘[w]hat is understood as “law” in the West is expressed in Sanskrit by the terms vivāda and vyavahāra, the former corresponding to substantive law, the latter to legal procedure’. These two Sanskrit terms do indeed relate to disputation or litigation, more or less formal processes of dispute settlement, but this is hardly a full equivalent of ‘law’ in its Western sense. Such scholarly misrepresentations of concepts of Hindu law as ‘law’ lull readers into a false sense of certainty and create a misguided view of the nature of Hindu law. The way in which Rocher (2002: 4) describes how the texts ‘determine who can sue whom and in what form, and lay down the rules on how persons who are sued ought to present their defense’ creates the impression that fixed formal rules, rather than situation-specific informal suggestions for solutions to dharmic problems, were produced in the shastric literature. Such comments show that positivist blinkers have continued to affect the work of Sanskritists, resulting in potentially disastrous distortions of the nature of Hindu law and its sources. This, in turn, makes it easy for others to say that this ancient law is now defunct and virtually irrelevant (Galanter and Krishnan 2001). Contrary to their own presuppositions, therefore, the American scholars of Hindu law are producing (p.551) highly relevant material for the postmodern analysis of Hindu law, rather than just documents of antiquarian value. But what they are presenting to us is not ‘the law’ as it ever was, but specific samples of ideas about certain key concepts and processes. Such research is successful in uncovering some building blocks of traditional and post-classical Hindu law, but misrepresents legal processes in Hindu law.
It is remarkable that the pitfalls of such positivist reductionism are also strongly reflected in scholarship on Hindu law produced by Indian legal scholars. As we saw, the whole field of Hindu law was fundamentally redefined through legalistic, modernist interventions during the colonial period, creating the ‘monstrous hybridity’ of Anglo-Hindu law. Among lawyers (and large sections of the general public, too) Hindu law as a term was thereafter no longer used for the holistic entirety of what Hindus perceive as dharma, but became restricted to formal rules based on textual authority, judicial decisions and high-caste normative assumptions.9 The result has been, as we saw particularly in Part II, the creation of strange academic half-truths, such as the claim that Hindu law does not know divorce, while in social reality customary divorces remain widespread.10
This split consciousness is strongly reflected in current legal scholarship, which continues to cling blindly to modernist discourses about law. The wide field of Hindu law has, since colonial times, been divided into Hindu law proper, i.e. rules based on textual sources and Sanskritic conceptualizations, and ‘custom ’. The latter is either not treated as law at all, or only recognized grudgingly when a claimant insists that habitual action, or simply the action followed in a particular scenario, should qualify for legal recognition under ‘customary law’. Many references to ‘Hindu law’ therefore cover only a thin segment of reality and readers are not often told about this. The neglect and contempt of Hindu customs by much of legal scholarship and practice has not only done enormous social damage,11 it has also created a widening gulf between the formal, official Hindu law and unofficial Hindu socio-legal realities. We have had many occasions in this study to observe such discrepancies.
The ancient smṛti texts as a source of legal authority were formally deprived of legal standing and are presumed to have become more or less legally (p.552) irrelevant when statutory interventions codified modern Hindu law, especially during the 1950s and until 1976.12 Superficially, it may appear that all the traditional elements of classical Hindu jurisprudence have been superseded by modernizing developments, so that observers like Galanter can simply assert the irrelevance of Hindu law.13 In addition, knowledge acquisition of traditional Hindu topics has systematically been suppressed through Indian and other education systems, so that students are fed on modernist diets, individuals are indoctrinated as subjects of a positivist state, and teachers are almost everywhere unable, unwilling, or even afraid to bring traditional Hindu law into the academic picture. This is modernist social engineering through education, a process of deliberately promoting the withering away of a branch of knowledge that is actually central to developing self-awareness among those people who consider themselves Hindus. Perhaps it is not explicitly the job of schools and academia to produce order-conscious and socially responsible individuals who can think on their own, can solve problems, and who are aware of justice, but all of these elements would appear to make not only a good Hindu, but also a versatile lawyer and a decent human being. Denying validity to traditional Hindu law as a subject of knowledge damages global knowledge structures.14
In a climate of widespread hostility and ignorance, even among scholars, the academic analysis of Hindu law has been impeded and has become thin.15 In India too, modern scholarship has marginalized Hindu law, declaring it irrelevant to our day and age, opposing it as reactionary, misogynist, and representing everything that an unsatisfactory past and ‘tradition’ stand for. Such obvious political interferences have driven away potential researchers and have further contributed to the paucity of knowledge on Hindu law. Frustration is evident when Olivelle (2000: v) notes:
While I have cautioned above against reading too much formal law into the ancient Hindu texts, I am definitely not denying that the Hindu cultural texts are legally relevant. But they are neither the law itself, in the sense of codes, nor even a dominant source of law. Instead, as Olivelle indicates, they are one potential support mechanism for ascertaining dharma, reflecting a conceptual understanding of law that differs significantly from modernist and positivist assumptions about the nature of the state, law and order, and justice. All of these, in the cosmic vision of the traditional Hindu system of thought, are more or less invisibly linked to macrocosmic order, the conceptual core of Hinduism, which has remained carefully protected from making ambitions uniform for any one sect or group of Hindus throughout times.16 State law has always been merely a servant of Hindu legal order, a marginal force in view of the primacy of internal self-control. Hindu philosophy admits that it is virtually impossible to find the ultimate Truth,17 which did indeed lead many ancients to nihilism in the form of saṃnyāsa and other methods of renunciation from worldly affairs, including the refusal to marry or to maintain a marital relationship.18
Normative texts have had a bad press lately among scholars. Some argue that these sources are unreliable and worthless for historical purposes, (p.553) proposing instead the use of archaeological, inscriptional, and art historical materials for historical reconstruction. Clearly, these are invaluable sources for any study of India’s past. But I think the dismissal of normative texts is unwise and unwarranted and betrays a singular ignorance of these documents. Many scholars unfortunately derive their knowledge of these texts through secondary sources, which often flatten the intellectual landscape and describe these documents as presenting a uniform code of conduct. The divergent views and dissenting voices are silenced. The reality, as anyone who undertakes a close reading of these documents can see, is very different.
Unacknowledged for various reasons, there has always been an inherent tension in Hindu philosophy between uniformity and plurality, based on the conceptual links between the uniforming principle of ṛta and the infinitely plural element of dharma. In this constant struggle at all levels of mental and physical activity, ṛta and its dharmic tentacles seem to pull all Hindus, whatever their position, towards awareness that, at the end of the day, there is only (p.554) one big but unknowable Truth which links everything and everyone together.19 At the same time, inherently complementary in principle as well as contradictory in practice, the unlimited diversity and differentiation of dharma makes for observations of total, messy diversity, in which differentiations of gender, caste, and other status markers blur the underlying picture of uniformity. Such creative conceptual tensions, irresolvable in principle, have been too narrowly perceived as negative by a modernist scholarship that treats traditional Hindu law as static, rigidly hierarchical, and focused on the systematic exclusion of women, low-caste Hindus, and others. Since the sea of Hindu cultural texts allows everyone to pick and choose those elements that suit specific conditions or arguments, there cannot indeed be any agreement on anything. Unsurprisingly, widespread confusions persist over the assessment of Hindu law as a culture-specific entity and a conceptual and real system of legal regulation that rightly claims to be different (Shourie 1993: 9–17).
The process of adjusting law to the people’s needs is also not an unfamiliar concept for Hindu law, given that it is not based on positivist presumptions. A despotic ancient Hindu ruler could not simply terrorize his people through his own dictates and hope to survive for long. Hindu law allows such a ruler to be killed by his own people to protect dharmic order. The ruler’s dharma is to respect the concerns of his subjects, not to lay down the law for them. Traditional Hindu law and personal law regulation were securely established long before Muslim rulers attempted to intervene in Hindu self-regulatory processes.20 The new rulers realized that it would be best to continue the old system, in which different laws for various groups of people within the realm would prevail, while keeping a semblance of ‘official law’ at the top. This reflects political expediency, but also a culture-specific understanding of Hindu law on the part of Muslims, who face similar conceptual problems. The British (p.555) were apprehensive about upsetting their colonial subjects through interference in their religious and social rule systems and somehow knew they could not abolish Hindu law. Hence, neither Muslim nor European colonization and the subsequent top-down modernization of independent India have been able to dislodge Hindu law. Baxi (1986a: 216–7) notes:
The above observations reflect the latent power struggle between state law and people’s law in India. Ambedkar’s modernist radicalism in the 1940s and early 1950s assumed a little too brashly that one could simply do away with ‘Hindu tradition’ through legislation. Not surprisingly, he was defeated and resigned in disgust. The underlying conceptual problems go much deeper than academic focus on the clash of prominent legal personalities has cared to investigate. The critical question is whether positivist state laws can actually abolish an entirely different category of law, such as concepts and principles of ṛta and dharma. The answer to that must be in the negative. Hence, any state that attempts to reform its people’s cultural and religious traditions will generate not only protests, but also a certain level of legal pluralism and of noncompliance.21
Colonization processes superimposed “Western” legal norms, institutions and culture. Even so, most social life still continued to be under the domain of people’s law. In these societies, even after independence and despite massive reassertion of Western legal culture, many vital areas of social life continue to be governed and dominated by non-state legal systems (NSLS), which as often complement as contradict the SLS.
If concepts like ṛta and dharma do not lend themselves for legislative abolition, can their consequences be challenged by state law? Here the official answer must be in the affirmative, because the state law must formally uphold its own claims to supremacy in order to buttress a desired model of ‘rule of law’. But this works only as long as the analyst applies standard legal positivist assumptions. It makes no sense from the analytical perspective of legal pluralism, or Chiba’s (1986) model of the interactive coexistence of ‘official law’, ‘unofficial law’, and ‘legal postulates’. No amount of official law-making will render the other aspects of law irrelevant.
We saw that in post-colonial India neither Ambedkar’s purely secular approach nor Gandhi’s model of return to Hindu values, concepts, and processes were chosen. Instead, a messy compromise was decreed, replicating the ancient shastric duality and doublespeak of texts and customs, leading to a contest between central state legislation and local norms. Post-colonial India (p.556) was neither going to be modern nor traditional: it would have to find a myriad of middle paths. Seen from this perspective, there is a compelling internal logic underpinning the eventual process of moving beyond tradition and modernity.
For a while, though, it looked as though modernism had won the day. Reformist projects were still promulgated in the mid-1970s, but in India this process came to a halt in the early 1980s. In various areas of constitutional law and family law, the legislature and the judiciary realized that social justice for around a billion people could easily be guaranteed on paper, for example in the Constitution of 1950, but would not be achieved in social reality by state intervention alone. It seems that post-colonial Indian lawmakers and policy planners rediscovered the concept of ‘self-controlled order’ and began to integrate the role of ‘the people’ more explicitly into legal planning. In this model, every individual citizen would have to contribute, giving his or her best to the collective effort of nation building and maintaining a viable legal system. The result has been that the purportedly modern Indian state became a postmodern manifestation of the ancient Hindu system of ruling.22
All of this demonstrates that the Hindu spirit within the legal system did not evaporate or vanish, as widely anticipated, but rather reasserted its presence. Significantly, during Indira Gandhi’s Emergency, the Indian Constitution was embellished with a new Article 51-A on fundamental duties through the 42nd amendment in 1976, and India’s superior judges began to talk more openly about duties, not in terms of dharma but in secular language to the same effect. Article 51-A reads like the idealizing edicts of Emperor Aśoka, admonishing all citizens to abide by the laws of the country and to protect its institutions, but to rely on self-controlled order first. India’s postmodern dharma is encapsulated in some key portions of Article 51-A, which suggest the citizen’s obligation:
(p.557) The above ‘excellence in all spheres of individual and collective activity’ under the last heading constitutes a secular rephrasing of dharma, which clearly remains valid today. In a deep national crisis, Indira Gandhi’s multilayered technique to invoke an Emergency forced both Indian constitutional law and the various family laws to re-integrate traditional Hindu concepts of self-controlled order and of assisted self-control, precisely dharma and daṇḍa, without saying so explicitly. Such developments confirm the resilience of all South Asian socio-cultural traditions as legal building blocks of antiquity to be recycled from time to time. Despite constructing an elaborate Constitution with bricks from all over the world, even Japanese law (Shourie 2001: 143) and outwardly following the path of modern, Western-style legal regulation, Indian lawmakers have also retained the tool boxes of the ancient law. To that extent, the postmodern Hindu legal developments analysed in this book reconfirm the place of certain South Asian cultural axioms in today’s world.
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
Hence, the pluralistic basis of traditional Hindu law rings postmodern bells. Modernism and legal positivism as methodologies, and especially legal centralism as a technique to segregate ‘law’ from other aspects of life, have all failed to account for the fact that Hindu legal concepts in their diachronical complexity are alive and well in Indian and Hindu law today. They were not simply replaced as ‘indigenous traditions’ by British colonial interventions or the modern Indian state: Hindu law will remain a central element of Indian laws. Today, within a pattern of personal law plurality, combined with a culture-specific general law, the various Indian and Hindu family laws have metamorphosed into their own specific postmodern conditions rather than remaining stuck in some ancient or colonial pattern. The challenge for analysts of any hue is to recognize the resulting forms of legal pluralism and of postmodern diversity in Hindu law.
Postmodernity in India’s Legal System
The complex processes of Hindu law reconstruction in India reflect a parallel postmodern, seemingly paradoxical, re-traditionalization of the entire Indian legal system. This process should not be understood as following tradition or even hindutva, as is widely feared by modernists,23 but as the application of traditional notions of legal regulation to bring justice for the hundreds of millions of common citizen that little closer within reach (Menski 1996b). According to visible postmodern developments within the Indian legal system as a whole, justice is now recognized not as some universal phenomenon, but as a situation-specific element that needs to be ascertained and confirmed all the time, from case to case. The Indian judiciary, having realized that making wonderful laws, by itself, may help promote justice and equity, but cannot implement (p.558) them through the act of legislation alone, has spearheaded and pioneered new techniques that are now subsumed under ‘judicial activism’ and ‘public interest litigation’.
We have seen that as a huge jurisdiction, Indian law faces specific problems of application which are not new at all, but have gained new relevance in today’s world of globalizing pressures. To remain relevant to all Indians rather than just a tiny privileged elite,24 Indian law had to retain its non-metropolitan spirit and could not just be modernized by transplants from abroad. Over time, this has had the effect that some critical legal provisions, such as the official criminalization of Hindu polygamy, are applied in social reality in direct derogation of what the official law appears to say (Chapter 10). This was virtually inevitable, given that the core concepts of Hindu culture, particularly ṛta and dharma, have remained central concerns in terms of maintaining order, while the Indian state law upholds the image of secular modernity. Rather than blindly applying black-letter statutes and case precedents in modernist fashion, however, postmodern Hindu law is more concerned about situational justice and equity, rather than rigidly fixed legal models.
It seems fair to say that the formally legislated law has become relativized under the influence of a postmodern recognition of socio-legal realities. It is now seen as one of many elements in a complex socio-legal field, rather than claiming to be the dominant force. We found that this process of relativizing state law is not documented in so many words. Generally, the formal claim of the ‘rule of law’ is maintained and legislators would not admit that their rules will not actually be followed. However, the present study has found several instructive examples of purposeful legislative silence in Indian and Hindu family law.25 Some modernist observers are therefore questioning the point of having any law at all (Dhagamwar 1992), while the main problem seems to lie in the unwillingness of modernists to accept and understand the postmodern nature of Hindu law and its impact on Indian laws as a whole.
Various approaches to a deeper analysis of postmodern Hindu legal developments are possible. It is useful to remember that the starting point of (p.559) state intervention in the traditional Hindu legal system was the threat of punishment and retribution, but only when self-controlled ordering did not function. State law was not supposed to come into play automatically, acting only as a support mechanism for assisted self-control. Precisely this kind of need for law exists today. Individuals, male and female, albeit with different means at their disposal to assert their contested positions, still have a propensity to be selfish and greedy, as the ancient smṛtis observed for the kaliyuga. The classical Hindus realized that the need for assisted self-control, rather than the idealistic self-governance model of pure dharma, would be the operative pattern in human life for all times to come (Chapter 3). Since the mythical ‘Golden Age’ never seems to materialize, the Hindu principles of assisted self-control are still as necessary and central in social reality as ever. We also saw that the world, and not just India or Hindu society, remains an androcentric place in which granting space to ‘the other’ poses a daily challenge, not only for those who have to fight for survival. Wealth, social status, and modernist education have provided no brakes on moral corruption and selfish deviousness; in fact they raised even greedier expectations, as trenchantly observed much earlier (Derrett 1970). Indian judges have direct experience of this, in its most cruel manifestations, being for example faced with one dowry murder after the other, virtually crying out in agony themselves that they can hardly bear the responsibility of having to decide such cases.26 The judges are evidently aware that they are needed to protect the legal system as a whole against selfish anarchy, the ‘shark rule’ (mātsyanyāya) of the ancient law.
It could be argued, therefore, that something has gone seriously wrong within Hindu society in terms of internal self-control, otherwise there would not be so many cases. The practice-focused chapters of Part II demonstrated in detail how easily the official law may be abused by selfish individuals. Does this mean that the central Hindu concept of self-controlled order is no longer strongly enough present in the minds of the average Hindu today to facilitate invisible automatic processes of self-control?27 It is indeed incredibly romantic to assume that such a paradise-like state ever existed: the present study firmly suggests that the model of self-controlled order has validity primarily as an ideal that everyone should strive for. It may well be that because of positivist indoctrination, originating in the colonial period and extending to the present, the primary place of social self-control is no longer fully appreciated. Instead, individuals have been taught to be enterprising and selfish, and perhaps to (p.560) look towards the paternalistic state for all kinds of support. Self-controlled ordering does not seem to matter as much as before and it may appear that notions of individual vigilance and scrupulousness in ‘doing the right thing’ have slackened,28 while an overambitious state with its placative formal laws can never exercise full control. Perhaps such a state reaps the bitter fruits of its own exaggerated claims to domination and supervision which, if not effectively executed, must lead to massive disappointment and ultimate disregard for formal state law, creating considerable legal insecurity. At the same time, the realization that the informal non-state legal systems have remained part of the equation allows for a relaxation of the expectation that the state law alone should be governing the social and legal field.
Such intricate balancing acts have escaped the notice of many observers. Modernist discourse on India’s legal crisis often degenerates into a dismissal of the entire Indian scenario as a bottomless pit into which one had better invest as little as possible. One should avoid such one-sided dramatization of deprivation and crisis. As Baxi (2003) claims, it has merely given rise to the production of indifference among scholars.29 The most recent India Briefing (Ayres and Oldenburg 2002) paints a more positive and constructive picture, highlighting that India is a major industrial nation, rich in all kinds of resources, and a functioning democracy despite many doubts. Modernist analysts are now beginning to realize that grand gestures of large-scale reform will not be productive, emphasizing instead a ‘law of small things’.30
Particularly in huge jurisdictions like India, an official state legal system can only realistically claim to preside over all legal processes in an abstract or formal sense. With over a billion citizens, it becomes practically impossible to claim that state law is capable of regulating the day-to-day reality of people’s lives.31 In such conditions, reliance on ‘traditional’ informal, localized self-controlled ordering becomes a self-protection mechanism for the formal law and constitutes a critical element of postmodern legal and political (p.561) reconstruction. The formal state law must still concern itself with giving the right signals about the broader principles of law to the population as a whole. Postmodern states everywhere in South Asia now realize that they cannot perform the various large-scale functions they claimed to exercise.32 The modern state manifestly took on too much, and now has to admit this.
The resulting gap points to a need to engage in private and public postmodern re-education about the value of self-controlled ordering. While the state continues to offer a formal hierarchical framework for dispute settlement and adversarial claims, the deeper message of India’s postmodern state law seems to be that it does not want to be used. Contemporary postmodern Hindu law operates, then, on the basis of a reworked symbiosis of central state law and local legal orders, within an overarching higher order.33 In such a scenario, the focus of postmodern analysis cannot remain fixated—as inevitably happened within modernist paradigms—on the alleged ineffectiveness of the state and its legal machinery.
Postmodern analytical methodology in the field of law recognizes the creative potential and freedom provided by the collapse of the modernist claim to absolute governance, which gives added space to those flexible social forces which have always demanded a legal role. This is not evidence of loss of legal authority, or of a meek surrender to tradition, but reflects a pluralist understanding of law and its operation in postmodern conditions. An intellectually alert postmodern analysis of Hindu law offers helpful conceptual tools for explaining the troublesome image of apparently wayward Indian lawlessness as a crisis of modernist governance, rather than an illness of the traditional social environment. It is manifestly dishonest to blame ‘the people’ when in fact the state law cannot fulfil its self-set tasks. The elitist trend in India to blame the demographic mass for ‘lawlessness’ in the countryside is a diversionary technique of the ruling upper stratum, as identified by Bardhan (1984). The sick unit, it seems, is not Indian society but the state’s formal law, which had earlier become an instrument of exploitation for privileged groups and lost touch with the needs of ‘little’ Indians.
The postmodern analysis presented in Chapters 8–12 clearly shows that modern state law has often had to admit its incapacity to sustain viable solutions. The clearest example of planned non-involvement by the state comes from the law on marriage solemnization. While modernists like Diwan and Diwan (1993) vigorously proposed compulsory registration of all marriages to achieve control over polygamy and other perceived abuses, reformists do not seem to realize that such large-scale legal restructuring amounts to a significant (p.562) shift of legal authority from local communities to the state, away from a pattern of self-controlled ordering towards bureaucratic supervision. Unsurprisingly, in Hindu law, it is still the local community, and not the state, that controls supervision of legal statuses.34 Modernists continue to propose a shift towards direct, bureaucratic state control, which shows that they have not thought about the social implications.35 In a postmodern scenario, this tension resurfaces in every area of law and positivist claims remain as strongly challenged as ever.
Such debates over the extent of bureaucratic state control are closely linked to growing awareness about the crisis of modernist welfare state ideology and practice worldwide. Van Creveld (1999: 361) observes that ‘[i]n both Europe and the United States—to say nothing of developing countries—the expansion of state-directed welfare led to an equally great growth of the bureaucracy’. The costs of bureaucratic growth have certainly been a consideration in India’s fiscal planning, preventing rosy predictions of a full-fledged welfare system. A country that cannot even organize its registration of births and deaths, let alone legal control of marriage registration and divorce, will find it impossible to aim for bureaucratic perfection. Van Creveld (1999: 362–3) argues that an important factor which drove the modern welfare state to the breaking point was its own success, since ‘the various programs had been designed to assist weak population groups such as the elderly, the sick, and, later, single mothers; however, it soon turned out that the greater the benefits offered, the larger the number of those entitled’. Consequently, there had to be cutbacks. By the late 1980s, apart from elementary and secondary education, the dream of using government to ‘lift up’ the masses was clearly in ruins everywhere (Van Creveld 1999: 365).
Despite specific constitutional guarantees, India has not even been able to provide primary education for all young children. In view of the worldwide crisis of the welfare state, Indian policy makers have wisely decided not even to start making ambitious plans and exaggerated promises. This, too, is part of India’s ‘fractured modernity’ (Corbridge and Harriss 2000: 238). The state becomes not a bountiful provider of goods and services, but an arbiter in the contested distribution of scarce resources.36 In the governance of India, such issues of basic justice will inevitably remain crucial. Closely linked to basic needs (p.563) debates and the growing scarcity of even the most essential resources, like clean drinking water, are matters of equality, caste and gender-based discrimination, but such ideological issues must take second place after concerns for bare survival, a lesson that many modernists have yet to learn.
Distress over limited resources, in particular, has propelled the emergence of an activist Indian judiciary, willing to take guidance from anywhere and not fixated by historical linkages to English law. The activist centre for postmodern Hindu legal developments now lies clearly within the realm of the judiciary. While legislative activity in Hindu law has virtually come to a standstill,37 the centre of postmodern Indian law-making has during the early 1980s shifted to the courts, where it has firmly stayed (Shourie 2001; Sathe 2002). Evidence of the key role of judges is difficult to fathom though, and detached interpretation of judicial activism has been disrupted by unhelpful interjections to the effect that judges, as undemocratically appointed office holders, are not suitable —and cannot be trusted—as ultimate arbiters of justice. Such comments indicate a positivist hankering for power through legislatures. However, at the end of the day, everywhere, judges are needed to apply the rules that may, or may not, exist to solve problems brought before them.
Significantly, what has emerged in postmodern Indian law is a new form of Justice, Equity, and Good Conscience. Discarding blind reliance on ‘precedent ’, postmodern judicial methods constitute what Derrett (1970: 12) earlier called ‘an alternative intellectual system’, which is not going to be subject to blindly positivist legislative domination. Judges will tend to speak about law rather than morals or their own values when they explain their role, as they do from time to time.38 Building constructively on important structures provided by the legislature, some Indian judges have gone well beyond legal technicalities.
The Indian personal law system in its postmodern formation, and especially Hindu law within it, demonstrates that progressive, socio-economically sensible and sustainable legal developments can be reproduced within a traditional framework of reference and in a formally fragmented legal system of different personal laws. Unlike most modernists, postmodern analysts are not blinded by ideological reservations about the personal law system, realizing that uniform law has no exclusive patent for modernity, innovation, and ‘the truth’ about legal progress. Legal systems everywhere will have to strive hard to develop cost-effective and justice-focused systems of self-regulation. The debate will go on. While it remains important to use law, as S. Basu (1999: 281) (p.564) reminds us with reference to Carol Smart’s important earlier work, the purported dangers of ‘tradition’ need to be re-assessed in the light of methodological advances in comparative jurisprudential analysis. If ‘tradition’ remained at various levels an integral part of modernity and its post-colonial and postmodern reconstructions, it cannot be so easily dismissed as irrelevant or simply dangerous.
Hindu law clearly has the inherent potential to fall back on informal indigenous cultural concepts of law-making and dispute processing. In many other jurisdictions, there seems to be no recorded cultural tradition of self-controlled order. Modernist positivism has so deeply uprooted social processes that a postmodern reconstruction as in Hindu law seems virtually impossible.39 However, in Asian contexts, there are quite different conditions. Baxi (1986a: 216) emphasized that ‘[t]he precolonial Asian societies were principally governed by the non-state law’ and cryptically wondered, without giving an answer, whether Hindu law in India has moved from dharma to law, and back (Baxi 1986a: 217). This hits the nail on the head, but are we prepared to accept that those traditional legal systems and their methods remain useful today?
India’s experience of a strengthened personal law system, rather than its abolition, demonstrates that age-old and yet contemporary experiences of negotiated norm-finding in the interface between state laws and other normative orders remain relevant today. Not only in terms of economics, justice and well-being cannot be guaranteed by exclusive reliance on global positivist models.40 International conventions and legislative enactments do not feed people in their villages, and Indian judges clearly know this. It follows that if members of society are willing to tolerate their own local arrangements, the state law should not pretend that it has an obligation to interfere. The ever ready assumption that formally uneducated rustics ‘suffer’ from their customary legal arrangements is highly questionable: such people would not operate such rules if they were really so bad. Often, modernist intervention tends to be more concerned with following international political correctness than achieving locally sustainable arrangements for real people. The postmodern Indian legal system recognizes that sustainable solutions lie not in top-down legal models that intervene in people’s daily lives, but in reminding individuals of the primacy of self-controlled ordering. The key message remains, therefore, that state law should be avoided.
Modernists will continue to object that the disadvantaged position of women and other subalterns in this postmodern scenario warrants deep (p.565) concerns over justice.41 Since it is an almost axiomatic modernist presupposition that traditional legal systems such as Hindu law are bad for women, children, and low-caste people, such objections will not be silenced. But while the voices of Hindu women and children may not be adequately heard in local bargaining processes, a solution to such problems is not found by abolishing the allegedly discriminatory traditional system, but by making it work better, especially providing a forum to unheard voices. In this context, removal of existing barriers of access to courts needs to be further examined, but in the postmodern scenario of Hindu law it is clearly not perceived as ideal that courts should be used for every dispute.42
Postmodern Hindu law makes intelligent and creative use of traditional elements. For example, although low-caste status is no longer supposed to exist, given the formal abolition of caste, judges remain aware of such distinctions and explicitly discriminate in favour of women and others who need special assistance. This confirms that modernists’ offhand dismissal of Hindu law as a traditional religious system marked by gendered patterns of oppression has been a grave mistake. Our analysis of case law material confirms that the reworked traditional model is capable, also within an androcentric framework, to balance the scales in favour of women and other groups who need special support to redress manifest imbalances.43 Processes of dispute settlement are clearly weighted in favour of certain groups,44 and it is no surprise that the privileged sections are complaining vigorously that unfair advantages are being given to others.
It is not only intrinsically against the nature of Hindu law to be portrayed as a uniform law, it is also not a viable method of keeping an extremely diverse (p.566) nation together by enforcing uniformity.45 In this respect, too, India is like a microcosm of the whole world. While it is often argued that the coexistence of general and personal laws perpetuates inequality, and that India should therefore have a uniform civil code,46 India has stuck to the principle that the personal law system remains useful but that social and historical imbalances need to be redressed. The resulting policies of ‘protective discrimination’ have created intense resentment. As elsewhere, political dispute has focused on the extent of such reservations rather than the principle, which is now felt to disadvantage those who were historically privileged.47
The Indian state’s evident lack of enthusiasm for imposing a uniform law on every home has gradually become more evident during the 1980s and 1990s. The resulting ‘soft state’, unlike the Western legal centralist type, is not primarily focused on becoming the maker of universally binding legal rules for all citizens. It merely provides a framework for adjudicating conflicting claims brought to the law courts, instead of laying down the law. This is still a form of ‘rule of law’, but of a significantly different type than in Western legal systems —it is in fact the old Hindu law model. In the area of family law, postmodern Hindu law now re-emphasizes traditional interlinkages between individuals and the family. Principled objections to that approach are raised by those modernists who assume that individualism is the most desirable human condition (Rajan 1998). On the other hand, as Derrett (1963c: 177) emphasized with reference to Jivubai v Ningappa AIR 1963 Mys 3, ‘the subsistence of marriages is the concern of the country and not merely of the spouses’. Therefore, where it is still possible to save the marriage, the court is under a positive duty, even on appeal, to attempt reconciliation.48
It is academically inadequate to view such reasonings in Indian law only as some dangerous form of Hinduization. It is dishonest to treat this simply as evidence of politically unacceptable Hindu fundamentalism, the bogeyman of modernist scholarship on South Asia. The major motivating factor has clearly been the search for various aspects of appropriate justice for a billion people, (p.567) and not a desire to return to some imagined glorious Hindu past or Rāmrājya. Simplistic sloganeering cannot replace the necessarily arduous search for justice. Comparative legal analysis indicates that postmodern Hindu and Indian law are no longer simply a form of Anglo-centric elite law, as they were to some extent until the 1960s, made by the leaders of society for themselves and their offspring.49 Indian laws have now matured into a form of legal regulation that respects more explicitly the inherent plurality of differential needs in local societies. Postmodern Hindu law applies a variety of interlocking techniques instead of modernist dogma and is not afraid to innovate. Quite in line with general assumptions about postmodernity, Indian and Hindu laws must therefore be seen today as intricate compromises, not some neat final solution.
Whatever angle we choose to analyse postmodern Indian legal developments, therefore, the essence of the observation remains the same: This elephant is a historically conditioned, culture-specific entity with its own identity. Like a massive untrained pachiderm, Hindu law is not likely to react with swift and direct obedience to any intervention from outside. The Indian elephant called ‘postmodern Hindu law’ defies absolutist state control and will amble along its own, self-chosen path, which is not as predetermined as ‘tradition ’ is supposed to dictate. Contrary to modernist representations, tradition itself is internally plural and inherently flexible, and thus full of creative potential for future reconstruction and perceptive reinvention.
In Indian law, the officially recognized legal position of Hindu law remains unsatisfactory for all those who refuse to grant space to Hindu law and other personal laws.50 Such inherent conceptual conflicts are reflected also in the Constitution of 1950, which is itself a complex compromise between competing claims. The Indian Constitution has been honoured in systematic breaches, as the state itself cannot fulfil most of its modernist promises.51 Social inequality, as well as inequality before the law, have in practice not been wiped out.52 Modernist observers tend to decry this, pointing also to local violations of the official law, such as cases of murder through village justice, with no involvement of the state at all (Chowdhry 2000). However, is this simply evidence of lawlessness, or of complex socio-legal pluralism in action? Chowdhry (2000: 334) observes that in this way ‘a successfully forged alliance between cultural codes, honour and violence justifies the violence and results in a broad complicity that cuts across social groups, gender and age’.
(p.568) Such evidence does not justify entirely negative assessments, although one must appreciate that modernists find self-controlled order of this kind hard to accept. Not just Hindu law but the entire Indian legal system appears to have metamorphosed into a plurality-conscious, situation-specific, relativity-fixated network of rules that different interest groups and powerful individuals seem to manipulate almost at will—as they have always done.53 While no state legal system in the world could claim to be totally effective, and only a despotic police state would make those claims in the first place, Hindu law has always privileged negotiated settlement in a domain that lawyers curiously and quite wrongly refer to as the ‘extra-legal’ sphere. Dismissing the current Indian state as an inefficient specimen of modernist governance simply avoids addressing the complexity of the postmodern legal problematic that the present study has identified for Hindu law.
The emergence of postmodern Hindu law in India has several important implications for the interdisciplinary analysis of South Asian and Hindu law developments, and it affects the conceptual understanding of law itself in a global context. If the story of postmodern Hindu law is actually as ambivalently positive as depicted here, what implications does this have for further legal developments in India, and for the future of personal law regulation in that country, in fact in the world? Equally important would be the question, addressed further later, whether uniform legal regulation of family laws in the now increasingly multicultural states of Europe and the Americas can be defended in the long run as conducive to justice.
In this postmodern phase, it is becoming evident that purportedly universal models have not been found useful in India, while some aspects of ancient Hindu tradition are proving more appropriate to achieve a semblance of justice. The evidence of postmodern Hindu law constitutes a culture-specific Indian manifestation of the current global search for the ideals of natural justice. If this incontrovertible contemporary evidence of Hindu law’s reconstruction and re-traditionalization as a form of postmodernization can teach us a general lesson, it would be the old story that law is not only made by the state, but also by the people who apply such rules and attempt to live by them.
Examining Hindu marriage law (Chapter 8), the purported abolition of child marriages (Chapter 9) and the formal outlawing of Hindu polygamy (Chapter 10), we found that modern state law has evidently had to leave space for the application and recognition of traditional Hindu concepts, be it through explicit legal exemptions, or various methods that have allowed the formally codified law to remain practically ineffective, while retaining some educative functions. Thus, Indian child marriage law continues to uphold the legal validity of under-age marriages in an apparently self-contradictory effort to protect the (mainly female) child’s best interests. While this makes sense from a postmodern socio-cultural perspective, the formal expectations of legal (p.569) positivism are not met: leeway for legal disobedience is built into the formal legal framework. Legal modernity has been used to shelter recognition of traditional normative standards that will, as the lawmaker knows, continue to operate in society. In other words, Indian law-making contains rich evidence of post-positivist self-doubt and of informal recognition of the ‘extra-legal. sphere’54
That law, in its Hindu manifestations as well as elsewhere, should remain in various postmodern scenarios more than just a reflection of the respective state law is not new, but represents a shift away from the oppressive domination of legal positivism. Ehrlich (1913) had argued earlier that the ‘living law’ is never just state-made law on its own. The basic assumption of the historical school of jurisprudence, that law and society anywhere need to work in harmony to achieve good law, is vindicated by the present postmodern analysis of Hindu law. Overlooking what Chiba (1986) called ‘legal postulates’ is not useful for a deep analysis of Asian and African legal systems, and indeed for any legal analysis, ‘culture’ and ‘tradition’ need to be reconsidered as integral elements of postmodern legal reconstruction.
These must be depressing conclusions for modernists. Instead of a universalizing ‘rule of law’, we now have in postmodern Hindu law what was so desperately trying to be avoided, namely a remodelled rule of dharma. The present analysis shows that Hindu law, and with it the personal law system, are so strongly entrenched in postmodern India that they will not be dislodged by positivist interventions.55 Rather than seeking to undermine and abolish well-established systems like the Hindu personal law, postmodernist analysis needs to become more constructive, recognising that personal law regulation may actually be a suitable model for the entire world.
Postmodern Hindu Law as Non-Western Model Jurisprudence
Faced with strong evidence of systematic postmodern legal reconstruction in Hindu law, the time has now come to realize that this is not a freak development or an accident of history, but part of a wider postmodern pattern in non-Western jurisdictions, searching for sustainable solutions to complex socio-legal problems in conditions of massification. Indeed, it may be argued that perhaps the time has now come for countries of the South to assert themselves more clearly against the dominant state-centred models of the North, to openly pursue their own flexible methods rather than simply pretending to follow the West.
(p.570) We saw that new uniformizing pressures of modernist positivism now come from international legal institutions and their representatives. At the end of the day, there may be little real difference between following international standards of human rights and indigenous values of equitable justice. One senses, though, that it is a matter of pride for most Western observers as well as many members of the Indian elite, including some judges, to be seen to be following Western ‘rule of law’ models based on equality and uniformity rather than indigenous traditions of relative justice. The ‘traditionalist’ label is not desirable for most analysts, and the taint of traditionality inevitably attaches to postmodernism as well.
Apart from analysing the conceptual details of Hindu law, it was necessary to examine as well the ‘bigger picture’ of Indian law in the world today, not only as a legal system in its own right, but as a pluralistic model for all non-Western legal systems, if not the world, as is now beginning to be realized.56 It is evident, and more widely accepted today within a postmodernist framework of reference, that non-Western legal systems in various hybrid forms will remain part of the global picture for all times to come.57 This has even given rise to new terminologies of hybridity,58 while the prominent but simplistic (p.571) model of ‘reception’ of certain advanced legal systems in Asia, Africa, and South America is now an ‘old hat’. In fact, Euro-focused postmodernism is not as ‘modern’ as is widely assumed.59 King (1995: 120–1) writes that,
The current postmodernist environment in a legal context is characterized by its explicit emphasis on plurality and difference rather than uniformity, which has enormous implications for legal scholarship as a whole, particularly for comparative law and the study of foreign legal systems. Peters and Schwenke (2000: 801–2) helpfully summarize the complex term of postmodernism:
… the Eurocentrically defined cultural conditions of a so-called postmodernity-irony, pastiche, the mixing of different histories, intertextuality, schizophrenia, cultural chasms, fragmentation, incoherence, disjunction of supposedly modern and pre-modern cultures – were characteristic of colonial societies, cultures, environments on the global periphery (in Calcutta, Hong Kong, Rio or Singapore) decades, if not centuries, before they appeared in Europe or the USA.
Postmodern perspectives suggest that legal scholarship needs to look with more vigour for evidence of legal pluralism and of opposing trends to Euro-American globalization (Legrand 1996). These tend to manifest in complex processes that involve reconstruction of non-Western laws by reference to indigenous norms and values, whatever these may be in detail.60 This process may not simply be attenuated, as has been placatively assumed,61 but may (p.572) actually grow in the future.62 Yet such research goes seriously against the grain of modernist ideologies. So far, the signs are that Western hubris, purported overload of information within national legal systems, and lack of knowledge about Hindu law or modern Indian law impede and prevent processes of freeflowing exchange in the global arena, even within Euro-America.63
Post-modernism is a highly ambiguous term, whose meaning depends on the discipline … in which it is used, and on the prior notions of “modernism” and “modernity”. Roughly speaking, post-modernist thought considers as basic the experience of plurality and difference. It points out that there are highly diverse forms of knowledge, systems of morality, personal plans of life and behavioural patterns. Post-modernist theory welcomes these heterogeneous positions and finds their discordance absolute. It protests against the totalising monopolisation of certain types of rationality and against universalist concepts that raise false allegations of absoluteness.
A closely related problem remains that, for various ideological reasons, cross-cultural legal exchange is supposed to occur only in the direction of modernization, which seems to imply westernization, if not Americanization.64 Hindu law would, in such a developmental model, eventually be submerged in this imagined modern global legal order and there would be no need for a book on the concepts of traditional Hindu law and their modern and even postmodern manifestations. But that is wishful thinking, clearly demasked now in the light of postmodernist realization that plurality and diversity are there to stay, and that Hindu law has partly achieved what modernists have declared to be impossible.
Hence, scholarly observations to the effect that modernizing, globalizing legal trends are all-pervasive are arguably not a faithful reflection of legal developments as they occur in reality all over the world.65 These are merely ideologically grounded assertions of the superiority of modernity and (p.573) rationality.66 In stark contrast, plural legal reality is visible in abundance almost anywhere, provided analysts are prepared to remove their blinkers.67 Like many other non-Western legal systems, Hindu law is not only alive and well, but has, unbeknown even to many contemporary observers in India, not remained at some dark stage of traditionality or irrationality that would make it unsuitable for today’s world. Rather, like all legal systems, Hindu law has dynamically grown and has now metamorphosed into a postmodern legal system that clearly confounds critics, enemies.and indeed many Hindus as well.68
My specialist position as one of very few scholarly experts on Hindu law outside India allows me to claim with some force that it remains necessary for outsiders to explain, also for the benefit of today’s Indians, how they may learn to see the wood for the trees.69 This is not Hinduizing indoctrination, but postmodern comparative legal scholarship in action, which is as yet not properly understood and continues to face ideological rejection as a politically incorrect activity.70 Arguing from within Hindu law perspectives, as I have attempted to do throughout, allows us to re-examine our notions of who are the legal ‘others’, in a fashion that radically upsets traditional modernist assumptions about legal development. In that respect, postmodern Hindu law (p.574) is clearly an alternative model to the dominant Western ‘model jurisprudence’ identified by Masaji Chiba (1986), because it acknowledges legal plurality and diversity at all levels. The critical methodological instrument for conceptualizing all pluralistic legal models seems to be found in an interactively balanced (rather than exclusively dominant) recognition of legal positivism.
If, as Chiba (1986) suggested, law is always a combination of several elements in productive interaction, a more cautious approach to our understanding of ‘official law’, without leading to the exclusion of other legal elements and inputs that do not derive their legitimacy directly from the state, seems to be the key element of postmodern legal analysis and its inherent pluralism. This also implies that ‘religion’, however defined, is never far removed from such comprehensive legal analyses and ‘the very notion of the separation of public and private realms, repeated by so many legal and social theorists, is completely suspect’ (Tamanaha 2001: 67). To understand such reasoning, and to deconstruct what we seem to know about any one legal system, requires a strange mix of commitment and detachment, and enormous effort. Peters and Schwenke (2000: 832) seem to underplay the role of ideology, but observe pertinently that being a postmodern comparative lawyer is not easy:71
This is a huge methodological and intellectual challenge, which anybody working on comparative law would find daunting. It had to be faced here, too. As I demonstrate, an open-minded, interdisciplinary approach is helpful in this context, but raises in turn its own problems when it comes to presentation of the findings, because one ends up speaking in a variety of specialist languages and tends to fall between disciplinary stools. However, at the end of the day, there is no doubt that traditional modernist and Eurocentric legal analysis and methodology would have failed to produce a comprehensive analysis of Hindu law in today’s world.72 Authoritative, doctrinal legal textbooks (e.g. Desai 1998) (p.575) cannot produce such deep analysis either. Recent modernist critiques like Agnes (2000) tend to lack depth and detail, apart from a commitment to objectivity.73 Most modernist writing remains mired in unproductive polemics. It is time to break those vicious circles, knowing that this, too, is ultimately an impossible task, because the writing on which one wants to improve continues to exist and will still be circulated for many years to come.74 Rather than falling victim to postmodern nihilism or throwing in the towel,75 however, regional law experts have only themselves to blame if their field of study does not progress as well as they hoped.
At all stages of comparative research … the real problems are not moral or cultural blindness, ethnocentricity and legal imperialism, but the lack of full knowledge and understanding of foreign legal rules and cultures. Comparativists have — pure and simple — an incomplete knowledge of many hard facts. They must know something about the historical, social, economic, political, cultural and psychological context which has made a rule or proposition what it is. Because thorough knowledge needs hard and extensive study, excellent language skills, good libraries, long experience, probably knowledge of life and legal practice within the foreign system, it is rarely acquired.
Modernist critics, whether men or women, sit at the same high table as legal positivists, who tend to be mostly men, when it comes to evaluating ‘the other’. Both groups—each with its own rationale—haughtily dismiss from their elevated perspective all kinds of non-Western ideas and laws as irrelevant for our days, and have declared them especially bad for women, children, and minorities, as though modern laws had no problems with justice. Although the colonial times are said to be over,76 far too many lawyers continue to fantasize about migration and reception of certain laws,77 and thus continue to dream about their legocentric powers of law-making, imagining what the world would be like if they had the power to call the shots. A growing number of women (p.576) among such modernists and legal positivists have added more spice to gender debates, but it has not solved any problems, as law itself continues to be a patriarchally oriented phenomenon the world over. A reformist agenda that seeks to eradicate patriarchy or the division of genders merely leads itself ad absurdum and leaves a bad taste in the mouth.
This book was never intended to be a delicious serving of romanticized, easily digestible khichri about Hindu law. The present analysis challenges various forms of modernism as well as certain brands of hindutva. As indicated, I am fully aware that writing a critical analysis of this type is not going to get rid of idiosyncratic hostilities, even if they are clearly shown to be little else than politicized constructions. It has been necessary to be harsh at times in view of the need to highlight the starkness and depth of our collective ignorance and stubbornness.78 By arguing for a more open acknowledgment of the global reality of pluralism and of legal diversity, the present concluding analysis seeks to encourage further scholarship on non-Western laws and their continuing role in the global context as well as asserting the presence, against all authoritative predictions, of postmodern Hindu law.
Deconstructing Modernist Discourses Of Non-Western Laws
Positivism-centred modernist legal scholarship has at various levels systematically challenged and attempted to delegitimize non-Western laws such as Hindu law. The claim that such traditional laws, and particularly customs and religion, should have a rightful place in legal analysis and practice is still widely denied today. Positivist and modernist pressures forcefully suggest that the only viable route of development in a rapidly globalizing world involves following so-called rational, secular Western models, shedding indigenous and local cultural, religious, and legal traditions as fast as possible(Rajan 1999). However, as the present study confirms in detail for Hindu law, such attempts to assimilate non-Western legal traditions to modern, Eurocentric models are not achieving their more or less hidden aim of wiping out the allegedly backward elements of non-Western cultures, religions, and traditions.
Modernist, positivism-centred scholarship has begun to notice the metamorphosis of ‘traditional’ laws into postmodern legal constructs, but remains (p.577) unconvinced that this is a healthy development. Continuing to claim the moral high ground, modernists generally refuse to accept that any meaningful progress in terms of justice and protection of individual rights may be made in this way. In the Shah Bano case and its aftermath (see n. 78 above) modernist scholars in conjunction with journalists seem to be actively hiding the truth, because such new postmodern developments ruin their ideological house of cards and vested interests.
Given such troubling difficulties in defining and operationalizing law, it is too ambitious to expect that many Western legal scholars should pay focused attention to non-Western laws within the global legal scenario.79 While nonlawyers encounter their own specific difficulties of access to ‘foreign’ legal materials and concepts, lawyers face enough challenges in working within their own large, technically complex national fields of knowledge and expertise.80 In addition, it appears that lawyers cannot even agree on what ‘law’ is, let alone on how it should be used.
In view of such problems, it is remarkable how easily other social scientists have been impressed by lawyers’ claims that, unlike the allegedly messy social sciences, theirs is a special field of securely fixed knowledge and expertise that is somehow segregated from other forms of knowledge. The image of law as something heavy, complex, and fixed to near perfection is lurking everywhere. For example, picture all those continental law students walking around with huge tomes of commentaries on all kinds of legal codes. They carry the law in their arms, and may even be convinced that this is all the law they need to know. These are not merely polemical snipes at lawyers. Such popular images and assumptions constitute hard and significant evidence that legal centralism exerts its pervasive influence everywhere and keeps nonlawyers at bay in the process as well.
(p.578) But as long as lawyers themselves are not even feeling safe within their own intellectual environment, and to the extent that postmodernism increases rather than decreases the perceived problems of overload and fluidity of knowledge, most lawyers will not even want to step out of their cocoon to research and analyse ‘foreign’ legal systems. This becomes even more difficult if it involves learning new languages and studying different histories and cultural models. Yet not only trained lawyers can make sensible contributions to legal debates about comparative law, jurisprudence and ‘foreign’ legal systems. Peters and Schwenke (2000), cited in the previous section, argued that a postmodern scholar needs to be familiar with virtually every academic discipline that could be related to law, a tall hurdle, which few would wish to attempt. This raises the question whether non-lawyers are not perhaps better equipped to write about postmodern legal theory than technically qualified lawyers.
Many lawyers tend to resist interdisciplinarity, thus constituting another self-imposed barrier against adoption of postmodern techniques and methodologies. Despite some earlier debates, legal centralism has only been challenged quite recently, 1986 being a key year by some coincidence.81 The practical application of such theoretical reorientations is still seriously undeveloped.82 We seem to know a lot about theories, but applying them in practice involves a further level of commitment.83 Positivist legal myths continue to dominate lawyers’ thinking as well as public thought, and influence those non-lawyers who attempt to think or write about law (Pandey and Pathak 1995). At the same time, comparative analysis shows that pure legocentrism and Westernstyle positivist ‘model jurisprudence’ represent hollow claims. Wherever we look, legal positivist analysis on its own is not able to handle the pluralistic challenges that continue to arise now all over Asia and Africa. It is not new, as (p.579) Tamanaha (2001) reiterates, that law is a matter of social convention. Recognition of that principle should mean acceptance that the theoretical and practical experiences and challenges of diversity-conscious legal regulation in many different countries and cultures, often in conditions of much adversity, are just as valid as the supposedly superior Western ‘model jurisprudence’.84
The reluctance of lawyers to address legal plurality in its global manifestations is evident in several other ways. Various techniques to reduce this plurality of legal systems by redefining categories have been employed, so that the global impression of the dominance of Eurocentric perspectives and concepts may be maintained.85 However, global demographic realities suggest that various non-Western legal systems, including prominently Hindu law, will remain theoretically and practically relevant. Over a billion Indians, another overspilling billion of Chinese, as well as other large populations in Asia and Africa, will never turn into Europeans. Rather, it seems now that Europeans and North Americans should learn more about—and from—other parts of the world, also when it comes to law.
However, ‘mainstream’ lawyers are frantically busy with defining away this legal non-European ‘other’ in various questionable ways.86 The persistent British-dominated practice to subsume Indian law and many other colonially linked Commonwealth laws under the ‘common law’ label, while the French are keen to highlight their own civil law family of ex-colonial systems, speaks volumes about post-colonial connections, since these are not relations between equals.87 An even more invidious consequence is the perpetuation of myths (p.580) about Indian law being just some inferior form of English law, so that the very basis for the recognition of legal systems like Hindu law is withdrawn and flatly denied.88 This is not only due to colonial hangovers.89 In such contexts, a public impression is created that Hindu law is merely a matter of religion, which in our secular age is supposed to have no future.90 From that angle, Hindu law is not even perceived as law any more. The same practical effect is achieved by fashionable versions of human rights law. It is amazing that lawyers and others have been getting away with such deficient methodology and oversimplifying arguments for so long. It appears that the media have a lot to answer for, because they create platforms for the strangest of things for curiosity value.91
In view of such widely distorted images of what Hindu law involves, we need not be surprised that expertise in such traditional laws is not present among lawyers, but may be found among historians and other socio-cultural area specialists. Which serious lawyer would want to deal with sadhu law?92 Even if some non-lawyers may be motivated to spend precious research time on such ‘religious’ phenomena, their involvement raises new questions about how such observers will make sense of internal debates among lawyers. The fact that modernist ideology and assumptions about legal positivism are so closely linked, and constantly reinforce each other, needs to be highlighted. It (p.581) seems that many social scientists remain blissfully unaware of such links. One may wonder who educates (or rather misleads) whom here. It is evident that the entire discipline of Indian law, and not just Hindu legal studies, is not sufficiently well linked with other academic enquiries into contemporary South Asian cultures, societies, economies, and political systems. As a result, some persistent misapprehensions reflect more than just lack of interdisciplinarity.93 On the other side, because most Indian lawyers are not well educated about socio-legal issues, they have not been able to contribute significantly to such debates.94
In addition to ideological and subject barriers, a major problem for comparative legal research in a global context today remains lack of relevant knowledge. Without access to Sanskrit and other ancient languages, it is virtually impossible to reassess for oneself what the traditional Hindu textual sources may have been saying about what we might call ‘law’.95 Given that the definition of ‘law’ itself remains contested, enormous risks of distortion and misrepresentation persist.96 Colonial intervention exerted its own distorting influences. The pioneering nineteenth century European translations of Hindu cultural texts are often quite misleading on legal issues and are in urgent need of revision.97 The study of Hindu law has also suffered as a result of the pressures exerted by modern political correctness, directed against all forms of religion and traditional cultures. Hostile ideological premises have meant that studying Hindu law is now widely seen as a regressive activity.98 This denial of legitimacy (p.582) to Hindu legal studies illustrates how quickly and conveniently modernists forget that laws virtually everywhere seem to be gerontocratic and androcentric tools of power and resource allocation in society.
While modernists want to reconstruct the world as they think fit, the impossibility of cutting out religion or culture from South Asian lived experiences need not be discussed here.99 While more readily accepted for Muslims and Islam today, from a Hindu law perspective too, explicit recognition of the role of religion, culture, and tradition cannot be denied. Whether the modern ‘West’ likes this or not, the ‘East’ has different ways of looking at the world. Derrett (1968b: 557) captures this well:100
Equally damaging as pompous attempts to declare religion, culture, and tradition as extra-legal and irrelevant is the modernist technique of not giving due credit to non-Western laws for getting things right, whenever that happens, as it does. Recent studies on the colonial system in India, focussing on the hegemonistic and universalizing claims of the metropolitan lawmakers (Chandra 1998), show that during the early colonial period the British could not quite fathom that traditional Hindu law should know rules that allow women property rights. The colonial masters promptly proceeded to restrict such rights, which led eventually to the Hindu Women’s Right to Property Act, 1937, in which Hindu widows were given something by state law that their traditional law did not actually deny them.
In Europe it is accepted … that you are not free to do what you believe religion teaches you to do, but only what the State allows you to do. In America and Australia the same formula … prevails. You can have what beliefs you choose, provided you do not act upon them in a manner contrary to that determined by the legislators (who may have any or no religion); and nice difficulties constantly arise, especially where the majority think it proper that everyone should do something which a religion forbids.
Current discourses about non-Western laws in various fora and in much of the modernist literature demonstrate that old prejudices about different civilizations and their comparative value are as strong as ever.101 As a result, (p.583) dishonestly biased and often excessively polemical debates highlight only the negative side of complex non-Western realities and discuss only positive Western elements.102 It is blatantly dishonest to behave as though only non-Western systems had problems with justice. Such biased assumptions then legitimize legal intervention from outside or from above, claimed to be necessary because somehow internal mechanisms and legal traditions are not equipped for the task. Legal theory here becomes, all too quickly, a willing handmaiden for colonialist and other hegemonic interventions.
Reservations about the fides of Indian law are by no means unique to Western observers. A leading modernist legal scholar, Kusum (2000: 268) concludes her assessment of fifty years of Supreme Court activity on a highly ambivalent note, writing that ‘there have been some judgements which have a potential of negative fall-out, but it needs to be conceded, that subjectivity and personal opinion of the judge cannot be completely extricated from the process of decision-making’. Kusum seems unwilling to acknowledge that the judges have actually achieved far more than the legislators, and have occasionally gone well beyond the parameters imagined by scholars. Such ambivalence is also apparent when perfunctory references to Hindu tradition or classical Hindu law are made in textbooks and other studies today.103 Recent doctoral candidates still indicate wholly well-intentioned plans to copy just a few details from older works, hoping to capture the essence of something that could be treated as ‘traditional’ Hindu law. Dangerous stereotypes are thus being perpetuated in the name of efficient scholarship. The ghosts of the ‘laws of Manu’, as we saw ad nauseam, still haunt Hindu women and scholars, preventing clear thinking. The remedy lies not in burning old books, but in refining current scholarly techniques to incorporate postmodernist approaches into legal analysis.
The particular issue of ‘essentializing’ and stereotyping has become a rather vexed subject, with much abuse and scholarly politicking. It is evident that a false dichotomy between tradition and modernity has been constructed and that existing debates are to some extent fruitless (Baxi 2002). Modernists routinely accuse traditionalists of essentializing tradition, religion, Hinduism, and Hindu law. In truth, modernists and feminists are equally prone to the risks (p.584) and temptations of stereotyping and using abridged versions of traditional Hindu law. As we saw, even the most intricate use of language may not manage to verbalize the limitless plurality of Hindu law, while the real challenge seems to lie in the application of postmodern awareness. How can one’s work and words adequately reflect postmodern realities in all their complexity? Postmodern methodology suggests that this itself is an impossible aim. So we can only, like the ancient Hindus in their quest for self-controlled order, try our best.
What, though, are feminists and others doing if they insist, by reference to Manu and other ancient sources of alleged legal authority, that Hindu women are at all times subject to men’s control and supervision? Ripping one verse out of an old text, presenting it as evidence of a whole legal system, is scholarly fraud and a form of feminist law-making in its most dangerous avatar. Leading women are in this way telling their subaltern sisters that they are in need of help, while elitist scholars are somehow above most of such restrictions, but may still feel the pinch, for example when it comes to claiming property rights. It is hard to understand how such placative feminist restatements of traditional Hindu women’s dependent status may be creatively used for a strategy of empowering women. All too often, the feminist activist highlights her own role, and frequently that of her organization, in rescuing her less fortunate sisters from male oppression. This particular choice of feminist-cum-modernist methodology further disempowers women as a class and makes them dependent on the state’s benevolence and modernist lobbying.
Through her specific methodological approach, agonizing over various reform proposals in family law of the 1990s, Agnes (2000) clearly demonstrates that feminists and modernists are today seriously baffled by the emerging postmodern scenario. While some writing has begun to capture evidence of legal advances,104 most authors remain blinded by manifest legislative stubbornness, which is at times caused by excessive demands from feminist lobbyists rather than conservative back-pedalling.105 As Arun Shourie (2001: 198 and 239) has observed with regard to certain areas of constitutional law, in India today we must be aware of an unduly prominent culture of ‘grievance mongering ’, a form of unconstructive moaning. This familiar syndrome, again, confuses critique with criticism. Irrespective of whether it is perpetrated by lawyers or non-lawyers, it is not conducive to clear-headed thinking about the public interest in its widest sense, and about the place of Hindu law.
(p.585) Postmodernist Challenges to the Concept of Law
The critical reassessment of modernist representations of Hindu law attempted in this study also points to deep-seated deficiencies in scholarly understandings of law as a phenomenon. While some jurisprudential writing is now beginning to talk of post-postmodernism,106 it is still important for lawyers to understand the theoretical and practical implications of postmodernism, as discussed earlier in the second section in Chapter 1. Most lawyers worldwide go through law schools without being challenged to think deeply about the nature of law. The result is that lawyers tend to become brainwashed legocentrists, to whom Legrand (1996) scathingly refers as ‘technicians’ of the national law rather than skilful comparative lawyers. Even if the supervening aim was more nobly the chance to work for the human rights of others, there is no guarantee that law schools prepare such idealists for asking relevant questions about their own roles and the perceptions of their ‘clients’. While one must admit that all kinds of lawyers are needed, it is difficult not to be polemical about the lack of sensitivity for diversity and legal pluralism in legal education.
Plurality-focused postmodernist legal analysis, it seems, has been deeply disturbing for many sections of the legal establishment, because it unashamedly questions cherished beliefs and myths among lawyers about their own importance. Particularly, it challenges the ideology of legal centralism, dragging law firmly back into an intricate network of interdisciplinarity, rather than giving it separate and dominant status. Further, postmodernism questions how laws are constructed. It challenges certain practical legal axioms, such as the Westminster-style claim that legislatures alone are empowered to make laws,107 while judges just apply given rules, or the supremacy of precedent over the desire to find justice in accordance with the facts and circumstances of a case. Postmodernism, thus, inevitably intervenes in legal debates at various levels, but does so often on the ‘wrong’ side, challenging in particular the certainty that doctrinal, ‘black-letter lawyers’ value so much that they often worship it in print. While doctrinal lawyers (who might not be modernists, of course) continue to emphasize objectivity and certainty, postmodern analysts of various descriptions have introduced troubling references to subjectivity and the socially constructed nature of all rule systems. Postmodern thinking also (p.586) upsets lawyers because it makes them realize that they may have acquired certain types of knowledge, but not others.108
Digging a little deeper, postmodern analysis finds that there is simply no universal agreement on the nature and concept of law itself. Modernist assumptions privilege what is called ‘legal positivism’, the view that law is law because a political (and hence legal) authority says so.109 That explains partly how various forms of abuse of political and legal powers remain attractive to dictators large and small all over the world. The most recent writing on jurisprudence tells us, yet again, that even to ask ‘What is law?’ is wrong and misleading.110
Through the pluralising experience of postmodernism, certainty-focused legal scholarship has become somewhat unsure of itself, while the search for justice continues.111 However, gone are the days when ‘law’ was simply the word of the ruler, when Austin’s maxim was itself ‘the law’, precedent was the dominant rule, and judges did not make law.112 It is increasingly recognized now that pure positivism is not sufficient to explain the totality of legal phenomena, but have lawyers not known this all the time? There is indeed a paradigmatic shift of understanding about law, part of which can be located in (p.587) postmodernist theorizing. Still, young lawyers are constantly being pulled back from the brink of postmodern subjectivity by being made to learn about H.L.A. Hart, whose work represents a celebration of positivism and the Eurocentric assertion that ‘law’ rules the civilized world, while some ‘primitives’ have not even reached a level of organization that involves ‘law’.113 Despite the current lip service to increased sensitivity about discrimination of various types, it is remarkable how easily most lawyers swallow and uncritically adore such intellectual leadership. As Tamanaha (2001: 151) dares to suggest in a scholarly act of patricide, Hart’s theory of law is really quite parochial, and not universally valid.
Hence, there is clearly much more to law and legal theory than Hart and others have been prepared to discuss. Scholars, too, want life to be easier, if only for their readers.114 Tamanaha (2001: 150–1) roundly dismisses Hart’s approach of identifying ‘a single concept of law—the concept of law’. But how do we replace and reconfigurate such a central singular concept without leaving a huge void? Tamanaha (2001: 151) suggests in his analysis that ‘[d]iscerning the core features of state law is a worthy and monumental task. But it does not provide a suitable foundation for a general jurisprudence, because it is too narrow to account for the complex presence of legal phenomena, especially in (but not limited to) non-Western countries’. This line of reasoning clearly acknowledges the existence of legal pluralism, but Tamanaha does not like that concept, inter alia because he sees it as tainted by its closeness to social sciences and particularly its prodigious use by legal anthropologists (Tamanaha 1993). Seeking to preserve the field of law for lawyers, claiming legal pluralism back for jurisprudence, as it were, and retaining a positivist label, Tamanaha (2001: 151–2) proceeds to develop his own theory of law, which is attractively characterized as socio-legal positivism:
However, this seemingly pluralistic approach is not fully carried through to its logical conclusions. Tamanaha’s analysis remains basically hostile to customs and religion, as he is not prepared to go all the way in accepting various forms (p.588) of law that potentially pose a direct challenge to positivist norms. Tamanaha also does not fully answer the question how, for example, ethnic minority customs could be factored into his system of ‘new legal pluralism’ grounded in socio-legal positivism, though he is evidently aware of this issue. At the end of the day, this new legal theory appears as a repackaged form of positivism, based on the liberal idea that people anywhere in the world should decide for themselves if what they are doing is ‘law’. But who finally decides such questions? And does it even matter what is officially decided, given that so much of law, not just in Hindu law, is manifestly located in the realm of the informal and the unofficial, virtually beyond the reach of the state?
Socio-legal positivism recognizes that law is a human social creation. Law is whatever we attach the label ‘law’ to. It will be unflinchingly conventionalist in the identification of what law is. If law is attached by usage to more than one phenomenon, rather than picking one to serve as the standard by which to evaluate the others, socio-legal positivism will accept that there are different kinds or types of law, each with its own characteristic features.
The potential for conflicts over definition and boundaries seems seriously underplayed in this kind of theorizing. Tamanaha does not address the critical issue that in certain legal cultures, like traditional Hindu law, there is not even an equivalent term for ‘law’ in our Western sense. Examining the scholarship on Hindu law and other non-Western legal systems, especially African laws (Menski 2000a, Chapter 5), one may become quite pessimistic about the future of such incomplete postmodern analysis. How will Tamanaha’s model of law ensure that the voices of the subaltern, however defined, will be taken account of?115 What actually, at the end of the day, is law if it can be anything people say? Tamanaha’s most recent attempt to improve on Hart’s analysis looks impressive, but does not offer much help, particularly to specialists of non-Western legal systems.
Other recent jurisprudential scholarship is more explicitly postmodern. For example, Cotterrell (2000) uses the image of ‘Pandora’s box’, from which law teachers and analysts may freely help themselves. This is a sensible way of writing about the challenges of postmodernist methodologies and the plurality of concepts and understandings, but this, too, only increases the lawyer’s woes about legal insecurity. Depending on one’s perspective, current jurisprudence could therefore be said to experience total freedom or, rather more likely, considerable turmoil, searching in the fast-moving postmodernist whirlpool for the lost security of law as a positivist given.
Not only since postmodernism appeared on the scene do we know that all legal systems are tools of power, and thus potentially the most cruel means of suppression. Earlier, Hans Kelsen watched in disgust and surprise as his beautiful theoretical house of cards about ‘pure legal positivism’ was torched by Pakistani political expediency.116 That experience sent some shock-waves especially through the Commonwealth circles of legal thinkers and writers, as
(p.589) though there had been no atrocities in the name of the law before. However, what sticks prominently in the Western mind is not the fact that a leading Western legal theorist so obviously forgot to build reality into his cleverly constructed legal theory and thus deserves full marks only in terms of academic creativity. Rather, it is the fact that this abuse of Kelsen’s doctrine occurred in Pakistan,117 reinforcing the common assumption that ‘undeveloped’ legal systems of the East are prone to such abuses of the cherished ‘rule of law’.118 Specifically on this key concept, Tamanaha (2001: 98) notes, in preparation for his argument that law has no essence:
Tamanaha (2001: 98) therefore correctly finds that ‘the rule of law, as formulated, is substantively empty’ and reiterates later (ibid.:193 and 204) that law has effectively no essence. This raises again the spectrum of the Kelsen problem, namely anything that a government declares to be ‘the law’ thereby gains automatic legitimacy. The ‘rule of law’ model clearly also covers tyrannical regimes that rely on legal modernity to legitimize their hold on power and resources. It appears that Tamanaha’s new approach to legal positivism seeks to evade this problem by stipulating that a better definition of law would be one according to which the conventions of a particular society determine what the law is.
Judging from the frequency with which it is referred to … the idea of the rule of law is the dominant legitimating slogan of law at the close of the twentieth century. Although there are competing versions of what this notion entails, its core characteristics can be stated without much controversy. In the narrowest terms, it means that the government rules through law, and that the government is itself under the law.
Any reassessment of the dominant concepts of law, therefore, invariably drags legal theorists back to old debates on the nature of law, as well as highlighting the deficient understanding of comparative law in a globalizing world. Comparative law must no longer masquerade as cultural imperialism. There is much work to be done in debates about law and legal theory in the world at large, linked with those about law in India and the more specific discussions within Hindu law scholarship.
If modernists believed in the power of law to bring about desirable reforms in society, they now stand deprived of the seemingly safe network of agreed definitions of law, as well as challenged by feminist analysis (not to (p.590) speak here of ethnic and other minorities, who still have less of a voice) for abusing legal powers to weight the legal scales in subtly biased ways that blindfolded justice is not supposed to notice. For a start, we did not need postmodernism to tell us that all legal systems, even the matrilineal ones, are more or less patriarchally focused.119 State legal systems have their own internal psychologies and mechanisms for functioning, reflect androcentric patterns and reinforce them, which means that such laws may not be useful tools for promotion of gender equity, let alone equality. Not surprisingly, feminists now struggle with the argument that modernizing legal reforms almost everywhere still deliver women into the hands of male-dominated justice systems made by almost exclusively male legislatures and judiciaries. But this is a global legal predicament, not an issue unique to Asia and Africa, nor to Hindu law.
Partly as a result of such uncomfortable realizations, modernist law reform by itself is everywhere no longer seen as a panacea. In a postmodern climate, the previously exalted status and power of legislatures is being questioned from many angles.120 Legal centralism, as John Griffiths (1986: 4–5) so forcefully argued, is indeed a myth, while legal pluralism is an all-pervasive fact. Relying on Griffiths (1986) and particularly on Masaji Chiba’s (1986) instructive model of the tripartite structure of law, globally relevant conclusions about the nature of law as an inherent pluralistic and diverse phenomenon with innumerable culture-specific characteristics also make sense when one studies Hindu legal developments. But they are far more difficult to reconstruct for nonspecialists who only studied their own national legal systems and already face difficulties in using the law of neighbouring countries.121 Recent legal writing (Tamanaha 2001) may make perfunctory reference to Chiba’s work, but does not appear to apply his model. Paying lip service to ‘great names’ is not enough in jurisprudential analysis. Unlearning standard myths about law remains apparently a painful and much slower process than adopting new theories.
All of this does not lead to a scenario in which the state is absent or irrelevant. Parekh (1996: 49) rightly concludes that ‘it is too early to write the obituary (p.591) of the modern state’. Rather, postmodernist legal analysis involves a cutting to size of positivist claims that the ‘rule of law’ can achieve miracles and provide sustainable solutions for problems over justice anywhere in the world. To that extent, ‘law’ is partly receding, taking a place in a collectivity of relevant factors, rather than ‘lording it’ over all others. While some lawyers will resent this as a reflection of loss of status and power, many others will understand that a more democratic and socially constructive role of law in a postmodern environment actually opens up numerous new possibilities for creative lawyering and for a deeper understanding of the multiple roles of law. Postmodernism does not challenge law itself, but questions anew why and how law and legal processes continue to be widely misappropriated by certain dominant interest groups all over the world. What has happened to considerations of the wider public interest, even benefit for the universe or, if we prefer a more secular expression, the good of the global community? General appeals to the ‘rule of law’ are manifestly not sufficient safeguards for justice in a globalizing era.
Hindu Law, Postmodernity, And Globalization
The findings of the present study suggest that detailed knowledge of Hindu law will remain relevant not only in India, but wherever Hindus have settled in the world. This is partly due to the nature of Hindu law as a personal law, which moves with the migrant as some kind of ‘cultural luggage’. Modernist discourses are clearly also inadequate when it comes to understanding the legal implications of large-scale migrations of Asian and African people around the world, particularly to the Euro-American honeypots. While lawyers have focused on the globalization of law as understood in the formulation among states worldwide of legal systems conforming to United Nations and World Trade Organization treaties, relatively little attention has been devoted to the legal implications of the globalization of labour and migration. Most modernists do not even accept the need to research such a subject, while positivist lawyers tenaciously argue that there is nothing to study for them, because these are matters of anthropology, not law. Postmodern legal developments suggest, however, that subject-specific boundaries are being crossed everywhere, and that pluralism-focused interdisciplinary analyses will be able to make constructive contributions to worldwide debates about globalization as a pluralizing, rather than uniforming, phenomenon.
My view has been for many years that diasporic migration inevitably creates new legal hybridities that need to be understood by jurisprudential scholarship. This final section focuses on the implications of postmodern legal pluralism among Hindus, who are now living in virtually all parts of the world, experiencing individually and as communities that globalization does not just mean assimilation to Euro-American models. It is my main argument here that the postmodern Hindu law developments in India carry important lessons for the gradually pluralizing states of Europe and North America which, due to the globalization of migration flows, are now being influenced ever more by Asian (p.592) and African legal concepts and are under growing pressure to recognize aspects of such laws.
In short, rather than assuming that the new migrants from Asia will just assimilate to their ‘host’ country and its laws, open-eyed postmodern scholarship needs to be prepared for finding rejection of the axiomatic superiority of Western models,122 as well as a cautious distance to traditional Asian and African concepts.123 The latter remain, however, the major basic building blocks for postmodern reconstruction. The result everywhere, as fieldwork and some new studies show,124 has been the informal emergence of ethnic minority laws. For Britain, this may be encapsulated in the term angrezi dharma, a form of dharma unique to British Hindus. This is a meaningful concept which underpins postmodern British Hindu law, a legal system that according to positivist theory is not supposed to exist.125
It is evident that the modernist resistance against dealing with any matters of personal laws in Western legal systems remains immensely strong, often on (p.593) the ground that personal laws imply backward, medieval standards, with negative implications for human rights. However, there is no point denying that personal laws and their role as ‘cultural baggage’ of immigrant communities are making an increasingly relevant input to postmodern legal analysis. If lawyers, in particular,126 thought for a long time that Asian and African migrants settling in Europe or North America would just assimilate to the legal systems of the host countries, they made a huge conceptual error and miscalculated the internal strength of personal laws, which have been totally ignored in many countries, or redefined as ‘ethnic minority customs’ in others.127 Rather than being stuck in the realm of allegedly static ‘religion’, ‘tradition’, or ‘culture’, everywhere in the world various ‘ethnic minority’ groups are actively engaged in reconstructing their own culture-specific forms of personal laws, mostly outside the formal legal systems of the host jurisdiction.
In a globalizing world, rather than everyone learning English or adopting American law to do business and get on in life, the majority of people (who demographically quite clearly live in Asia) will eventually make Euro-Americans realize the need to learn about non-European languages, cultures, and laws. Failure to do so will not be conducive to business, and bad for international peace at a global level and community relations in the local sphere. As we saw, the impending collapse of modernist debates about legal uniformity worldwide is powerfully reflected in the futile politicized debates over the uniform civil code in India. Significantly, Ugo Mattei (2001: 254) suggests that positivism itself may be the key problem for our lack of understanding for legal plurality and complexity:
A large number of examples could be given from all kinds of inter-cultural contexts, showing that most legal scholars are quick to ‘outlaw’ ethnic minority legal matters and are too conservative when they expect the eventual (p.594) assimilation of non-European migrants. Friedman (1998: 1088) makes the general points that in this age of immigration, ‘legal cultures run the risk of colliding with each other’ and that ‘[t]his kind of culture clash is also a strain on the notion of the rule of law’. He then takes the example of polygamy among Muslims living in Italy to argue (id.) that ‘[t]he Moslem living in Italy will find it easier to adapt to Italian technology than to Italian culture, including legal culture. Convergence will take place—but it is slow and painful at times. It will, of course, be easier for his children’.128 Here, too, assimilation over time is clearly expected.
… legal positivism is the enemy of understanding in the law. It is a reductionist perspective that artificially excludes from the picture the deeper structure of the law (things like legal culture, language of legal expression, revolutionary moments and so on) as well as (in typical postmodern style) the decorative, and symbolic elements of it. Positivism, as a consequence, is unmasked as an inherently formalistic approach, in the sense that form prevails over structure in determining the law’s domain. It outlaws (considers outside the law) deeper structural aspects.
It seems that comparative lawyers, too, have their own agenda, hiding behind clever language in an ongoing debate over whether their goal is ‘solving, rather than simply analyzing, the problem of difference’ (Riles 2001: 15). Indeed, the problem is whether difference itself is actually the problem. Does not the modernist opposition to difference create a climate of war on plurality and diversity, notwithstanding loud proclamations of human rights principles? There is currently still a notable reluctance, if not outright refusal in Europe and North America, to discuss such issues of social and legal pluralism more openly.129 Uniformizing pressures remain powerful everywhere, despite strong evidence that the key to a harmonious future lies in acceptance of ethnic diversity and the crossing of borders, rather than dogged focus on uniformity and nation-state agenda.130
Such conceptual matters concern academics and common people everywhere. Like all humans, Hindus anywhere in the world have to make sense in their everyday lives of the conflicting expectations and contradictory pulls of different normative orders and legal systems.131 As the present study showed in detail, the process of finding appropriate solutions takes place, first of all, in the individual mind, as the ancient concept of ātmanastuṣṭi as the primary source of dharma confirms. From this perspective, Hindu law is a mental construct, a psychological rather than a legal phenomenon. Even at the community level, adjustments will occur more or less invisibly to outsiders and a wider public. In diaspora, for various reasons, it is rare for disputes among Hindus to be litigated before the official courts of the Euro-American realm. Because (p.595) almost all these cases have remained unreported, this is a most difficult field to research.132
While it is not a major purpose of the present study to make a contribution to the emerging debate on ethnic minorities and legal regulation in Europe and elsewhere, it would be irresponsible scholarship not to relate the findings of the present analysis to the currently emerging worldwide debates about ‘ethnic minority laws’.133 A detailed study about this issue in relation to English law discloses grave and persistent problems over human rights implementation within a system of uniform legal regulation which purports to be colourblind and neutral towards culture, when it is in fact neither (Jones and Welhengama 2000). If the evidence from major non-European countries and jurisdictions such as India directly conflicts with the modernist principle of uniform legal regulation, does this not hold any lessons for the world as a whole? Whenever there are socially and culturally distinct groups of people, whether we treat them as ‘ethnic’ groups, ‘communities’, or ‘minorities’, their normative orders will tend to diverge in important details from those of the uniforming, official state legal system. In daily social reality—but significantly not in law—these ‘ethnic minority laws’ will prevail over the norms set by the state, as Hindu principles are asserting themselves over modernist rules in current Hindu law developments in India. However, what is re-emerging in the diasporic context is not Hindu, Muslim, or African legal tradition in itself, as rigid tradition, as is often alleged. In reality, certain elements of those legal systems are being reconstructed into new hybrids.134 The finer balancing of such conflicting forces depends to a large extent on the nature of the respective state and the local participants. In every case, though, as the findings of the present study suggest, the results are culture-specific and situation-sensitive, new hybrid forms of Hindu law, which are undergoing constant change and require much more detailed study.
It is relevant to provide some glimpses here to illustrate the nature of the new postmodern hybridities. In the 1960s and 1970s, some Hindu families in Britain found to their dismay that their daughter or sister could simply be abandoned by a Hindu husband if the marriage had not been formally registered according to English law. The women and their families had no remedies under English law because there had only been a Hindu wedding in the UK.135 After just a few early cases of this kind, none officially reported because of the element of shame involved, there was a rapid adaptation process among Hindus (p.596) in Britain. The core legal message, to the effect that official legal registration of a marriage before a British registrar is necessary to achieve legal validity, was in this way successfully transmitted by the official legal system.
But this did not mean that British Hindus would now only marry under English law and abandon the legally irrelevant Hindu wedding in Britain. Instead, Hindus started marrying twice, first in a registered ceremony, then through Hindu ceremonies, keeping these two elements quite distinct and separate at first.136 The earlier practice among British Hindus was to treat the ‘English’ ceremony of marriage virtually as an engagement, while the couple was only expected to cohabit, maybe months later,137 after the Hindu wedding, which for the spouses and the community counts as the marriage (Menski 1987). Here, as in postmodern Hindu law in India, the community norms are seen to prevail over the official law, but the latter (now not Indian, but English law) remains unaware of such emerging legal pluralism among Hindus.138
British Hindu practice has meanwhile been further modified, to the effect that the preferred method of marriage arrangements now is to select a suitable weekend and to combine the registered ceremony with all the major religious and social functions (Menski 1991a; 1993a) into one big celebration. This socially and economically sensible strategy also avoids the earlier risk of nullity petitions among Asian couples, which were remarkably frequent in the 1970s, but have now subsided.139 After a weekend of celebrations, getting married twice over, the earlier legal insecurities over the status of the spouses, and their very delicate personal relations to each other,140 have now been refigured into a complex network of rules about how to fully legalize a Hindu marriage which are unique to British Hindus. Currently, a yet more intricate process of intertwining the Hindu marriage ceremonies and the registration process can be observed when, in many cases, the English legal ceremony (p.597) becomes a sub-ritual of the Hindu wedding.141 This constitutes evidence of postmodern reconstruction of law in the field of Hindu marriage solemnization in Britain.142 Stubborn unwillingness among scholars and bureaucrats alike to take official notice of the unofficial operation of personal laws among Asian and African immigrant groups and their descendants in Europe has thus led to important changes within the socio-legal fabric of those communities. Ballard (1994) captured this especially well, without writing explicitly about the reconstruction of Asian personal laws in Europe.
As we saw, evidence from India and other countries is now beginning to demonstrate that personal law systems can be more than modern, have enormous capacity to adjust to new circumstances, and can be immensely helpful to women and children, whose basic human rights might be less well protected by a modernist, uniformizing, secular, rights-based model of law.143 The Indian pattern of concurrent operation of personal laws as part of a nation state’s legal system confirms that all kinds of ethnic differences may be treated as legally relevant without endangering a state’s viability and stability. The pluralistic Indian model, despite ugly predictions, has worked and continues to function well, even achieving model character on a global scale (Larson 2001). While the personal law system is made to look like a remnant of tradition and appears like a technique of discrimination on the basis of religious difference, the culture-specific Hindu response to such allegations of discrimination has been to say that if everyone is different, all are ultimately equal.144
Working constructively and trustfully within a socio-legal conceptual framework, rather than refusing to acknowledge postmodern legal realities, has other important consequences for global legal scholarship today. It helps to strengthen the largely silenced claims of Asian and African laws to be recognized as members of the global community of legal systems. It demonstrates that in the global arena of legal discourse, the voices of Hindu law and other ‘Oriental and African’ legal systems have long been neglected and need to be given more attention. It is only too evident that much can be learnt from Asian and African legal experiences, past and present, even if modernists remain reluctant to admit that one can benefit from supposedly ‘backward’ systems of law, and even demand a totally new law (Sangari 1995) without telling us what that would be like. As we saw, one expects perhaps too much from legal centralists in terms of conceptual flexibility and acceptance of ‘the other’. However, (p.598) there is hope, as Rudolph and Rudolph (2001: 56) indicate in their debate on the Indian uniform civil code:
Such conclusions are fully supported by the present study. The postmodern condition of Hindu law, which the present analysis has presented in detail before a multidisciplinary historical backdrop, clearly offers us critical conceptual and methodological tools for further detailed analytical studies of Hindu law, comparative law, legal theory, and the emerging field of ethnic minority legal studies in the globalizing era of the twenty-first century.
The liberal and progressive dream that it is the fate of difference to fade, and for humanity increasingly to repair to a common mold, and the additional dream of rationalists that it is the fate particularly of religion to fade away in face of the triumph of modern science, have receded in the last two decades not only in India but the wider world … Whether regarded as benign or malign, identity formation, in the form of religiously based personal law, seems to be alive and well.
(1) To recapitulate, Chiba (1986) distinguished ‘official law’, ‘unofficial law’, and ‘legal postulates’ and argued that their constant interaction creates ‘law’, thereby challenging the dominance of positivist thinking that law is only what the state says it is.
(2) This explicit emphasis on Indian Hindu law is necessary, since there are many other types of Hindu law in the world, none of which seems to have reached a postmodern condition in quite the same way.
(3) Peters and Schwenke (2000: 829) emphasize that the historical situatedness and the research environment in which we write influences legal study and that ‘heightened reflexivity comprises an awareness of the relationship between one’s research and the Zeitgeist: the comparatists’ themes, goals and approaches are shaped by broad intellectual or theoretical trends or movements, by societal developments and the political climate’.
(4) But Hindus then pay the price for asserting that their legal system is religious law by finding it dismissed as ‘traditional’ and unsuitable for the modern age.
(6) Indologists claim to know this, but the large number of casual references made to the ‘laws of Manu’ and continuing use of positivist language by many writers demonstrates that claim and reality do not coincide. The main damage was apparently done by Bühler?s (1975) translation of the Manusmṛti as ‘The Laws of Manu’, but it did not help that Doniger (1991) retained the same title. More recently, Domenico Francavilla, the young Italian translator of Lingat’s (1973) The Classical Law of India agonized over the choice of an appropriate Italian title that will not create misleading expectations about Hindu ‘law’. The subtitle of Olivelle (2000) indicates that the dharmasūtras are sold to the public as ‘law codes’, probably a marketing device by the publishers: a law book would surely sell better than a book of cryptic sayings by old men. Olivelle himself does not take the view that dharma is just law, but then the language we use should carefully reflect such knowledge. For an appropriately cautious recent example of treating smṛti texts as ‘instructing’, nonbinding guidance rather than legal prescription, see Arp (2000).
(7) This may be wrong, since there is a distinct possibility that the learned people who created the relevant Sanskrit verses about the decline of self-controlled order (Chapter 3) might have been engaged not only in social criticism, but more specifically in critique of early rulers and their abuse of powers. The ancient Greeks were not unique in exploiting legal and political powers; we know what their early philosophers thought about that. For ancient India, the image of general decline in the kaliyuga suggests an element of shoulder-shrugging resignation, as ideal standards were simply not met, and could not ever be met, given the exigencies of life.
(9) In addition, for many social scientists, Hindu law became reduced to certain obnoxious placative rules, such as the ‘law’ relating to women, who should at all times be dependent on men.
(10) Certain claims of this type have been shown to be false. For example, the assumption that all Hindu marriages must include a saptapadī ritual, which would mean imposition of high-caste values on all Hindus, is clearly not underwritten by the current law as found in Section 7 HMA 1955 (see Chapter 8).
(11) This was illustrated in the case of the Tamil self-respecters (Deivaini Achi AIR 1954 Mad 657) who found their marriages legally de-recognized, and occurred as late as 1994 in Surjit Kaur v Garja Singh AIR 1994 SC 135, depriving a Sikh widow of her due entitlements to property.
(12) Hence, Rocher (2002: vii) emphasizes that his aim in re-translating the text of the Dāyabhāga, since it is no longer a direct legal authority, is academic rather than practice-relevant in a legal sense.
(13) Derrett (1970: 400) indicates criticism of Galanter’s early views, which have not been modified, as Galanter and Krishnan (2001: 285–6) demonstrate through their renewed assertions, which do not answer the question that Derrett raised more than thirty years earlier.
(14) Bhambhri (1998) critically notes that social science in India has now accepted the Western intellectual agenda, a process promoted by funds from outside the universities. I found this confirmed in leading Indian institutions of legal education.
(15) Scholarship on Hindu law remains at preliminary levels of observation and analysis (Sivaramayya 1988; Singh 1990; Dhavan 1992). Mansfield (1993) appears to have been influential, as the bibliographical overview in Larson (2001: 349–50) confirms. Interdisciplinary work remains undeveloped (see earlier O’Flaherty and Derrett 1978). Dhagamwar (1992) provides an excellent model of socio-legal analysis.
(16) Hence, even today, there can be no agreement over ‘Hindu’, nor over hindutva and A.B. Vajpayee, the Indian prime minister (cited in India Today 20 May 2002), is quite rightly critical of the political use made of the concept.
(17) We know in particular that the ancient quest of Hindus for ultimate truth (later, it seems, diverted into the more easily manageable search for individual salvation) encountered all the time the basic problem of neti neti, namely that the Absolute ‘is not this, and is not that’.
(18) This is an issue not only for men, but also for women, as the powerful story of princess Mirabai demonstrates. It is now mainly interpreted as a story about individual devotion (bhakti) to a chosen god. However, other layers of meaning, namely social protest and opposition to the dominant male framework are equally powerful.
(19) One may compare the problems that monotheistic religions created for themselves and their followers by insisting that the identity of the Absolute is known— but He (about whose gendered identity Christianity is not absolutely sure, while Muslims insist that God is male) must not be pictured. Thus epistemological traditions that insist and depend on assertions that God is known still do not permit believers to know ‘the full story’. In either case, there will then also be limits to absolute legal authority, important safeguards against terrorism directed at one’s own people in the name of religion.
(20) It is quite wrong to assume that colonial rule produced the personal law system of the subcontinent. Personal laws pre-existed colonial rule everywhere, and merely assumed a new form following colonial intervention. Yet modernist discourses continue to distort our knowledge of Indian legal history. Corbridge and Harriss (2000: 25 and 31) categorically deny that pre-colonial India had anything resembling a ‘civil society’ and also claim, at p. 180, that the British introduced separate laws for Hindus and Muslims in their realm. Parker (2001: 184) faithfully reports that ‘[t]he established historiography of Anglo-Indian law places the origin of the “personal laws” in Warren Hastings’s Plan of 1772’. This is a classic case of myopia among colonial historians, as well as a device to declare the earlier past irrelevant.
(21) The romantic modernist notion that legal transplants function without problems has been insufficiently challenged. Turkey’s continuing struggles to defend secularism and enforce secular family laws are contested (Yilmaz 1999; õrücü 1999b). Ethiopia rejected an imposed codified legal system. Japan and Thailand adopted foreign rules, but translated them into their social environment. Tanase (2001: 190) notes for Japan that ‘[a]n eventual victory of the law is not so certain’.
(22) The heavily contested phenomenon of Indian ‘public interest litigation’ makes an appearance at this stage, demonstrating that the relevance of Hindu legal concepts is not restricted to the sphere of family law.
(23) As members of various elites, modernists are actually seen to be rather conservative in their resistance to the pluralizing implications of postmodern developments.
(24) Such elite law-making is found in T. Sareetha v Venkata Subbaiah AIR 1983 AP 356. A south Indian film star wanted to get rid of her rustic husband once she became famous. Modernist commentators have not disclosed such relevant social facts but complain about the androcentricity of the Hindu law on restitution of conjugal rights (Chandra 1998: 207–8).
(25) India’s child marriage legislation keeps silent about the consequences of marrying children below the stipulated minimum ages, leaving judges to apply and interpret the law. This was evidently done on purpose, to allow society to find the right balance, while educating the public towards gradual acceptance of higher marriage ages (Chapter 9). The activist AP Chief Justice in Panchireddi Appala Suramma AIR 1975 AP 193, was overruled and shown to be wrong in Pinninti Venkataramana AIR 1977 AP 43 FB, which held that child marriages in violation of the state’s law cannot be declared legally void in view of social realities and the need to protect women and children.
(26) In State of Himachal Pradesh v Nikku Ram AIR 1996 SC 67, the judge expresses his disgust over dowry murders: ‘Dowry, dowry and dowry. This is the painful repetition which confronts, and at times haunts, many parents of a girl child … Greed being limitless, the demands become insatiable’ (p. 67).
(27) The simple answer is found in the ancient textual statements that emphasize the need for ‘assisted self-control’ and the threat of punishment: Since the end of the ‘Golden Age’, people have always been lacking in self-control—it is simply part of the human condition.
(28) Sarkar and Butalia (1995), N. Rajan (1998), and R.S. Rajan (1999) vocally oppose suggestions that recourse to Hindu tradition could produce just outcomes. From a policy perspective, Shourie (2001: 403) advises a re-balancing of expectations: ‘Given the circumstances in which the country is placed, I feel that the balance needs to be tilted from the individual towards the community, from rights of the individual towards his obligations’.
(29) However, it is not good enough for scholarship to make politically correct statements. Scholars can and should be more actively involved in analysing constructive solutions to perceived problems.
(30) Popkin (2001: 333–4) envisages a legislative and a judicial role in small-scale change. Chandra (1998: 209–10) concludes that ‘the experience of a hundred and fifty years of legislative effort to remove certain social practices, such as child marriage, and promote others, like widow remarriage, warns against undue optimism’.
(32) Much could be said about Pakistan and its ongoing process of rethinking Islamic legal foundations. Pakistani judges have recently come up with conclusions about Islamic law that mirror postmodern developments in Hindu law.
(33) Somehow, it seems easier to understand and accept this for Islam and Christianity, but it is also an integral feature of Hinduism and other less formal religions in Asia and Africa.
(34) However, the postmodern Hindu law model retains indirect state supervision. Disputes over the validity of a Hindu marriage, for example, can be brought to the courts under section 7 HMA of 1955.
(35) As noted, Agnes (2000: 169–70) realizes that compulsory marriage registration would adversely affect women and children. She discusses various reform proposals, but still within modernist paradigms (ibid.: 172–182).
(36) This is pinpointed by Shourie (2001: 403), a prolific writer and now a government minister: ‘A thousand goals are desirable; each of us would want to secure a thousand things for our citizens – especially in a country like India, scarred as it is with so much deprivation. But not all goals can be pursued simultaneously, not even those things which all of us would agree are bare essentials’.
(38) One of the most recent examples of judicial pontifications about justice (Yadav 2001) makes the point that ‘[w]e being the upholders of value in society are under legal obligation to maintain equilibrium between the rich and the poor, the elite and the non-elite groups of the people’.
(39) Douglas (1998) shows for England that attempts to take lawyers out of the divorce process and to replace them with mediation personnel have been a failure. It appears that one modernist method has replaced another, but the underlying socio-cultural symptoms have not been tackled.
(42) Strong proof comes from explicit recognition of customary Hindu divorces. Further, punishing litigiousness is an ancient strategy, which has begun to be used by Indian judges who may now award punitive damages against husbands who harass their wives through litigation (Kusum 2000: 257–8).
(43) The most persuasive case study in this respect comes from the Hindu law on maintenance for wives (Chapter 12), which allows claims under the traditional law as well as modern Hindu law provisions and criminal law. Direct access to the SC and HC has explicitly been guaranteed in the powerful judicial review mechanisms of Article 32 (for the SC) and Article 226 (for the HC).
(44) This does not mean to say that everything works perfectly. Vatuk (2001: 232) observes that even women who manage to approach a court are put under pressure to change their pleadings: ‘A legal discourse of “rights” is thus transformed into a discourse of “welfare”, whose defining terms are set, not by the woman herself, but by her counselor, her advocate, the judge, and, in the last analysis, by the realities imposed by the society within which she lives’. The same could be said of other types of litigation in which professionalisation of justice has tended to suffocate the voice of the complainant.
(45) Sunil Khilnani (1997: 207) concludes that ‘ultimately, the viability—and most importantly, the point—of India’s democracy will rest on its capacity to sustain internal diversity, on its ability to avoid giving reason to groups within the citizen body to harbour dreams of having their own exclusive nation states’.
(46) Dhagamwar (1989) remains the most activist attempt to raise the agenda in favour of uniformity. Menski (2001, Chapter 6) shows that postmodern legal developments have overtaken the reformist bandwagon, achieving virtual uniformity of laws while retaining the personal law system. Significantly, modernist scholars still see and criticize only the continuation of personal laws.
(47) In principle, the experience of the dilemma itself is similar to that in the USA with its ‘white backlash’. One can predict that India will not be able to turn her back on reservation policies altogether.
(50) A recent important case on this matter is Ahmedabad Women Action Group (AWAG) v Union of India JT 1997 (3) SC 171 and AIR 1997 SC 3614.
(51) The state, through its bureaucrats, is also the biggest violator of legal norms, as is especially apparent from many public interest litigation cases.
(53) To that extent and at that level too, there is continuity between the traditional system and postmodern Hindu law.
(55) Menski (2001) shows that meanwhile a variant form of legal uniformity has been achieved by postmodern Indian legal developments that seek to harmonize the provisions of the various personal laws.
(56) While Freed (1998) suggests in typically blinkered fashion that the interaction of the US states is a useful model for global international legal regulation, Rajeev Dhavan (2001: 320) points out that India’s quest for pluralistic secular legal regulation looks like ‘devising a Constitution for the world’. This challenge is picked up by Popkin (2001: 331), who raises in his conclusion ‘the provocative possibility that, instead of religious India becoming more like the secular United States, the United States might eventually become more like India’. As I wrote this, reports appeared that the Ninth Circuit Court of Appeals in the USA had ruled by a majority of two to one that it was unconstitutional to ask school children to recite the American Pledge of Allegiance by vowing fealty to one nation ‘under God’ (Daily Yomiuri 28 June 2002). This new challenge to the interpretation of the ‘Establishment Clause’ in US law remains subject to appeal. This is significant because it highlights that the Indian form of secularism, as equidistance from all religions (Larson 2001), needs to be better understood as a potential model for handling religious pluralism and its legal implications.
(57) This was also suggested earlier by Chiba (1986), a pioneer of legal postmodernism, through his powerful critique of Western ‘model jurisprudence’ and its false claims to universality. More recently, reviewing a collection of essays (Morigiwa 1998) that centres on Asian alternatives from an East Asian perspective, May (2001: 270) emphasizes that a uniform global legal culture cannot develop because various conflicting and competing worldviews continue to be in existence, so that Kant’s ‘citizen of the world’ remains a nice fiction from a Eurocentric universalizing perspective, but no more.
(58) Harding (2002: 53) suggests that ‘Westernistic’ might describe the emerging legal systems in South-East Asia better than ‘Western’ or ‘post-Western’. ‘Westernistic’ seems also suitable because it reflects the ambition of an impression or a wish, rather than attempting to prescribe a particular legal reality. However, this term still reflects Eurocentrism.
(59) See also Morley (1996). This debate also appears still too Eurocentric in language and thinking. It overlooks the possibility that ‘colonial’ societies may have developed typical elements of postmodern thinking well before colonial times. As new research findings suggest, this was perhaps based on much intercultural communication among early traders and other migrants, including many itinerant scholars.
(61) Galanter and Krishnan (2001: 285) simply reiterate, relying on Galanter’s earlier assertions, that ‘there is no evident support for the restoration of traditional Hindu law’ and suggest that ‘there is at least a slight leaning toward dissolution of the personal law system in favor of uniform territorial law, together with a “secularization ” or de-sacralization of the law of the largest community, and there is no indication of any inclination to devolve the administration of personal law to the religious communities. (ibid.: 286–7). All of this reflects wishful thinking rather than a faithful summary of the current position of Hindu law and deliberate stalling of any progress in research on Hindu law.
(63) The collection of country reports by Drobnig and van Erp (1999: 333) highlights that US lawyers are drowning under masses of domestic law and have no time for foreign laws. The same could be said about Indian lawyers, of course.
(64) In a massive volume of comparative law essays published in Japan (Towards Comparative Law in the 21st Century, 1998), one senior American lawyer suggests that comparative law teachers ‘should be the leaders in international legal harmonization for a number of compelling reasons (Freed 1998: 1071), while a more deeply considered approach to rule of law, legal culture and modernity leads Friedman (1998: 1086) to presume that there is ‘a general legal culture of modernity’. Friedman (1998: 1088) also asserts that ‘[t]he idea of the rule of law, and the notion of fundamental human rights in general, seems to be spreading rapidly throughout the world. These concepts originated in the West, and were elaborated by Western thinkers’. Friedman hence portrays a ‘transition from culture to technology—a technology of modernity’ (id.), but expresses some doubt over the extent of this development.
(65) Friedman (1998: 1083) admits this, too, when he writes that ‘[c]learly, each legal system is and remains unique. Each bears the marks of its history. Every country has its own problems, and its own solutions. This is true even of members of the same “family” of legal system’.
(66) In the context of debates about the future of human rights, Baxi (2002: vi) argues for recognition of pluralized authorship and refutes the assumption that human rights are the ‘gifts of the West to the Rest’.
(67) I cited the instructive methodological discussion by Weinberger-Thomas (1999: 181–3) about the researcher’s dilemma in situations where one’s personal ideology and the observed facts do not comfortably match. This is not only an issue in ‘hot’ topics like satī but evidently in all academic work.
(68) In fieldwork conducted in India on a variety of issues, over two decades, I have repeatedly found that supposedly illiterate Indians seem to have a clearer understanding of certain aspects of Hindu law than formally trained lawyers, whose educational experiences somehow created blinkers that villagers do not have. Strong indications of this surfaced in my fieldwork in Kerala (Menski 1986a; 1986b).
(69) Derrett’s writing shows in many places that he, too, laboured to hold up a mirror to Indians, aware that ‘[p]ontifications from a professor in London are hardly likely to hasten matters’ (Derrett 1970: 439). His sarcastic critique of how elite representatives of Indian law, lawyers, judges, and scholars, deal with Hindu law (Derrett 1970: 399–400) remains valid today. Pompous speeches about Indian law are still being made in prestigious back-slapping exercises in London and elsewhere, cultivating pristine common law connections rather than taking account of messy current legal realities.
(70) Presenting the idea of postmodern Hindu law to Indian law schools has sparked off some defensive comments, which are highly significant for assessing the parlous state of Indian legal education. In one case, a young law lecturer’s reaction to postmodern Hindu law was that ‘these are things we do not want to know about’. That snappy comment says it all: Legal modernization in India is authoritatively perceived as linked to de-Hinduization and internationalization, not to thinking about law and society in their culture-specific Indian environment. The growing perception of a deep crisis in Indian legal education is not surprising, therefore.
(71) This echoes Legrand’s (1996: 239) prominent rhetorical question, ‘[w]ho ever claimed that comparative legal studies should be easy?’. Legrand himself answers this in postmodern terms by emphasizing the need to cultivate ‘a proclivity on the part of the comparatist towards an acknowledgement of ‘difference’’ (id.).
(72) Weinberger-Thomas (1999: 181) eloquently critiques such modernist scholarship, observing that ‘research undertaken on the basis of such presuppositions cannot help but be skewed from the outset’. Peters and Schwenke (2000: 820) emphasize that ‘there is always a Vorverstāndnis’, in other words, premises which we apply even unconsciously, and which constitute a degree of inevitable interference.
(74) An example of such self-perpetuating citation policies is found in Larson’s bibliographical note (2001: 349–50), which relies a little too much on the old ‘standard ’ works.
(75) Harding (2001: 200) raises this possibility in view of the baffling, powerful image of a ‘Thai buddhist monk using the internet to move shares around in order to make profits for his monastery to do good works’. This fits in with recent evidence that Hindus can now order the performance of prayer rituals in distant temples by internet, will receive an email confirming completion of the ceremony, and a parcel with prasād, blessed offerings. A more negative media image is found when scruffy Hindu sages make televised appeals for their own hindutva politics.
(77) The most recent example is the currently debated plan, following the Bonn Agreement of 2002, to make Afghanistan adopt a ‘rule of law’ model to promote national cohesion and inter-ethnic cooperation. Given the large input of human rights lawyers in such projects, there should be more concern about complaints by the Afghanis that such foreign intervention implies new forms of legal colonialism in post-conflict scenarios of reconstruction. An existing legal system is clearly in place, based on Islamic law rather than any formal Constitution. As in Turkey (Yilmaz 1999), formal reception of new laws and their implementation would produce at least two quite distinct, yet interrelated stories of the shape of the new law.
(78) As we saw, the aftermath of the famous Shah Bano controversy over a divorced Indian Muslim wife’s right to maintenance from the ex-husband has thrown up a wildly confused and irritatingly misinformed discourse, whose underlying devious purpose is to contrast the dutifully modernized Hindu law and India’s secular legal system with the recalcitrant and stubbornly traditionalist Indian Muslims. This is not the right place to launch into a specific critique of this issue, but the scholarly web of lies and misinformation around the MWPRDA of 1986 is almost unbelievable. Recent legal writing on the issue seems to derive from local newspapers (Larson 2001: 338), while relevant case law, which has existed in abundance from various High Courts since 1988, remains almost totally ignored (see Menski 2001, Chapter 4).
(79) For example, Harding (2001: 199) complains about the neglect of South-East Asia, but also notes with some surprise that recently the Law Faculty of the National University of Singapore ‘has introduced the study of Chinese and Indonesian law, a development almost unthinkable about 15–20 years ago’ (ibid.: 205 n. 11). In Japan, the Daily Yomiuri of 25 June 2002 reported that in a new wave of Chinese education, some children are now being taught about Confucian sayings in an effort to counterbalance modernist consumerism. May (2002: 270) notes that ‘Asian alternatives’ deserve a higher profile and complains about lack of coverage on Hindu law in a recent comparative study of Asian laws.
(80) Drobnig and van Erp (1999: ix) emphasise that more judges are now beginning to recognize the usefulness of comparative law. However, often the judges depend on lawyers’ expertise rather than their own resources. õrücü (1999: 256) points out that in English law, evidence of foreign law is treated as a matter of fact, to be provided by experts. Thus it becomes critical whether legal practitioners have any knowledge (or even awareness) of such foreign laws as may be relevant. Indeed, there will often be much argument over whether a foreign law should be considered at all. This complex issue is of growing importance, given the many questions about ‘ethnic minority laws’ that are now being raised worldwide.
(81) I am not saying that earlier times did not generate similar debates, far from it. But scholarly writing on this topic which may be accessed fairly easily today dates mainly from the late twentieth century. The earlier, pioneering study by Hooker (1975) is now seen as exclusively concerned with describing and analysing ‘weak’ legal pluralism (and thus really a specific form of positivism) in the colonial and post-colonial context, while Griffiths (1986) expands that model into ‘weak’ and ‘strong’ forms of pluralism and Chiba (1986) constructs his ‘three-level structure’ of law. Notably, in Britain at the same time, Poulter (1986) produced a pioneering study which tried to maintain a liberal façade, but actually denied the legitimacy of the presence of legal pluralism in an effort to protect ‘English core values’. There is more to say about this in the last section of this chapter.
(82) For example, Griffiths (1986) does not go beyond constructing a theory of ‘weak’ and ‘strong’ legal pluralism and declines the chance to provide empirical illustrations. Tamanaha (2001: 248) refers to more recent work by Griffiths on the legal regulation of euthanasia as a case study of legal pluralism.
(83) In this respect, the relationship between legislation and its implementation, which is hardly as automatic as many ‘black letter’ lawyers assume, offers an instructive parallel.
(84) May (2001: 281) cites a Korean law professor who, in an otherwise bland article observes that ‘… we must bear in mind the national and regional particularities in promoting and protecting human rights. In a country where the majority of people is poverty stricken, the major and primary aspirations of the people in that country is to live like a human being, free from hunger, with shelter to protect themselves from the cold, and minimum medical care to ward off disease’. Such comments are also relevant to India, where socio-economic realities and constitutional promise often do not go together.
(85) An example that is only recently beginning to attract some attention is the placative labelling of South American laws as ‘civil law’, as though that was the whole story. South America and most of Africa too, would not even figure in the now widely criticized methods of grouping legal systems in ‘families of law’ (e.g. David and Brierley 1978), which have tended to marginalize non-Western legal systems. The planned OUP Encyclopedia of Legal History (a total of eight volumes, scheduled to appear in 2006) attempts to take account of cultural diversity in legal histories and aims to be fully comprehensive.
(86) May (2001) observes a significant level of Eurocentrism among leading legal writers. Currently, China is taught about the usefulness of common law models, as though there was a new colonial race.
(87) õrücü (1999: 294 n. 208) mentions occasional references to the laws of Ireland, South Africa, and India, and other Commonwealth countries, but these are not used as legal authorities for English law.
(88) When I introduce myself as someone who teaches Indian law, the response is often that I must be a legal historian who teaches English common law as applied in India. Indian law, so goes the popular myth, is basically a corrupted form of English law. Galanter and Krishnan (2001: 271) still write as though the Westminster model was operative in India. If scholars peddle such myths, how can one blame the wider public for being wrongly informed?
(89) Such myths are found in Japan, too, where the popular image of Hindu law is linked with bearded old men in funny clothes who somehow seek to intervene in the running of their country, now by televised appeals to religion.
(90) As noted, agreeing that their system is ‘religious’, Hindus are helping others to dismiss their conceptual and normative systems as ‘traditional’ and legally irrelevant. The Indian press constantly feeds exaggerated religious images, making it difficult just to blame foreigners for misrepresentations. For example, the New Indian Express (Bangalore edition, 13 March 2002) described Govardhan Puri Shankaracharya Swami Adhokshajananda Devtirth, a senior Hindu priest, as ‘Hindu pontiff’. Such assertions appear with great regularity in popular and academic writing.
(91) I was in India in early 2002, when some Paramahaṃsa tried to blackmail the Indian government into constructing a Hindu temple in Ayodhya and proclaimed on television that he would fast until death if his wish was not complied with, because he represented some higher order. The television commentator asked the local collector and others what they thought should be done, only to be told: ‘Marne do’ (Let him die). As far as I know, the old man retracted and still lives. But was this a legal process, or an example of legal drama, or just another media spectacle?
(92) By this I mean here rules stipulated by old, supposedly wise and learned men, who appear from nowhere, especially in televised serials, shout symbolic phrases and demand to be heard because they claim to represent ‘revelation’ and ‘truth’.
(93) Guha (1997: 24–30) attempts to analyse the colonial order in relation to ancient Hindu concepts like daṇḍa, ‘which was central to all indigenous notions of dominance’ (ibid.: 28), but merely represents this as a convenient tool of suppression, ignoring the conceptual framework of ‘assisted self-controlled order’ which has been discussed in detail in the relevant section in Chapter 3.
(94) A notable analytical exception is Baxi (1986b), pointing to some useful early studies. There has not been much progress since, but a lot of politicking, as a survey by Pandey and Pathak (1995) shows.
(95) Bronkhorst (2001: 167) emphasizes that the modern Western scholar, even after many years of Sanskrit training, will never be able to catch up with the traditionally trained Hindu pandit.
(96) For a start, there is no precise Sanskrit equivalent of the term ‘law’ as positivist state law, so that the Mughal qanūn (state-made law) would later appear to fill a conceptual gap.
(97) Olivelle (2000: v) argues that ‘[t]he time is ripe … for a new set of editions and translations using not only current scholarship but also accessible English’. Menski (1984) contains a detailed analysis and new translation of all ancient key texts related to Hindu marriage.
(98) This is strongly reflected in much feminist legal writing. Dhanda and Parashar (1999) studiously ignore Hindu law, while Sarkar and Sivaramayya (1994: 1) are more explicitly negative about the oppression by the two major religions of India. Parashar (1992) focused on discrimination against women by the personal laws, but has since reconsidered some of her views.
(101) Issues that keep coming to the fore are ‘honour killings’, female ‘circumcision ’ for many African women, and consent in marriage. While all of these problems pose real challenges and endanger some women, the issues are used as tools to denigrate everything non-Western as primitive, misogynist, and inherently discriminatory. The question of consent in marriage, now under the catchy heading of ‘forced marriages’, serves to legitimize immigration-related agenda and controls in Britain and the European Union. It also serves as a tool to teach ‘immigrants’ (often third-generation British citizens) that they should adopt the values of their host country by marrying among themselves, rather than ‘importing’ spouses. Human rights arguments are here selectively used to deny certain human rights.
(102) This is another instance of ‘overlapping consensus’. The critical question, simply put, is whether the glass one sees is half empty or half full. Ideologically motivated, blinkered analysis will presume that the cup of legal abuse is never halffilled when it comes to ‘civilized’ Western laws, whereas it is almost filled to the brim in non-Western legal systems.
(103) Many Indian authors have problems with ‘tradition’ in its various forms, and therefore now with postmodernism. Agnihotri and Mazumdar (1995: 1869) struggle to defend their modernist positions against postmodern challenges, portraying regressive appropriations ‘by forces inimical to the goals of the women’s movement’. Such reasoning is really a violent form of conservative academic censorship.
(105) No lessons seem to have been learnt from the Shah Bano agitation by modernists, still miffed that a separate personal law enactment was made for Muslims. At the same time, there is a blatant refusal to see that the public protests resulted in giving Muslims the separate law they wanted, but on terms determined by the government’s fiscal and social welfare concerns (Menski 2001, Chapter 4).
(106) Peters and Schwenke (2000: 829) note that a ‘post-post-modernist approach to comparative law will retain the (self-) critical impetus of the post-modernist critique, reject the postmodernist assertion that objectivity is not attainable in comparative law, and synthesise old and new demands for interdisciplinarity and thoughtful hermeneutics’.
(109) The classic text, after John Austin’s work (1913), is taken to be Hart (1961), now Hart (1994). H.L.A. Hart seems treated like a god in many universities, including Indian law schools, but wrote some rather nasty things about primitive societies that, according to him, have no law. How, then, can this be a universally valid theory of law? Tamanaha (2001) aims to improve on this project through his approach of ‘socio-legal positivism’ (p. 151), but in my view he does not succeed in presenting a credible universal theory, since he again claims that there might be societies without law (p. 201), and is too busy opposing legal pluralism, custom, and religion.
(110) Simon Roberts (1979), in an important study that has been out of print in English, but is available in German and Japanese, argued this a long time back. From a Hindu law perspective, Roberts seems to be talking about rough equivalents to dharma and sadācāra. Tamanaha (2001: 211–4) also begins to talk about ‘order’, without any apparent realisation that he may be circumscribing what Hindu philosophy has said on this theme thousands of years ago.
(111) There seems to be little disagreement that a focus on justice should be of central importance to any legal activity, but positivist theories of law, emphasizing power rather than justice, systematically undermine this and hence cloud the view for the relativity of perceptions about justice.
(112) A growing number of writers now admit that this is a myth and that judges have always made law in some form, and do so more openly now. Chen (1999: 54) acknowledges the importance of judicial law-making in Australia, but also in much wider general terms, to the effect that ‘[t]here is no doubt that strict legalism has gone and is now a thing of the past. It is now well recognised that judges do make law. It is also recognised that the doctrine of precedent is as much an attitude of mind as it is a legal doctrine’.
(114) Misguided attempts by specialists on Hindu law to make the reader’s life easier by translating dharma as ‘law’ or stipulating other simple parallels were discussed in the first section of this chapter. Given the loaded nature of the term ‘law’, serious distortions are inevitable, and we are ever so subtly taught to read Hindu law as if it was a Western-style legal system.
(115) On this, see Spivak (1988). Based on field experience, I would argue that the subaltern can speak, but often do not care or dare to communicate their thoughts. This raises further questions about the nature of law, which may be purposely kept invisible, well beyond the reach of formal and often interventionist legal analysis.
(116) Kelsen (1945: 19) saw law in purely positivist fashion as a coercive order and thus produced a famous theoretical study. Faced with Pakistan’s abuse, he claimed to be surprised and misunderstood, though one could have foreseen the problem.
(117) Indeed, a favourite adjective among journalists writing about Pakistan continues to be ‘lawless’, thus deliberately perpetuating images of a kind of Wild East, in which the rule of the gun dominates.
(118) Tamanaha (2001: 61) expresses this well when he highlights that the methodological approach of historical evolutionism creates a powerful stereotype, leading to the ‘common notion that primitive (or non-Western) society stands in relation to modern (or Western) society as a child does to an adult. It feeds and reinforces the sense of the West that it represents the high point towards which history has aimed’.
(119) On Dalitbahujan assumptions about more equitable gender balances see Ilaiah (1996). Tamanaha (2001: 43–4) shows how feminist legal theorists, in particular, view law as a gendered construct, emphasizing that ‘[t]he essential “maleness” of law is reflected in everything from the “reasonable man” standard, to the adversary system, to the public/private distinction that perpetuates male domination within the family, to predominantly male judges and legislators, to “masculine jurisprudence ” which emphasizes separation over connection and caring … Patriarchal law thus mirrors patriarchal society, ignoring and suppressing women’s interests and values’.
(120) Nandy (2002: 36–60) re-examines images of the state and observes that overemphasis on the state’s role as protector and liberator of society has unleashed dangerous processes that require fresh analysis.
(122) This is closely linked to the rejection of racism, since the false dichotomy of Western and non-Western laws not only assumes that Western law is inherently superior to non-Western laws, but also that whites are more human than others. This raises a number of unsavoury implications, which cannot be explored here. It is evident that Indians in the West experience first-hand that Western legal systems have only achieved equality on paper. Careful reading of jurisprudential work teaches that no legal system in the world actually achieves equality (Dahrendorf 1969; Kelly 1992). With specific reference to British Asians, Ballard (1994: 5) importantly observes that British Asians assimilate ‘on their own terms’, which challenges modernist assumptions about the cutting of roots, identifying instead confident counter-assertions of ethnic superiority when adherence to one’s cultural values and forms of behaviour is seen to be more sophisticated than assimilation to English norms.
(123) This distance is often increased because residence abroad means that the familiar cultural environment has suddenly vanished and become remote. Individual migrants may take some time to realize how little they used to think about their own traditions, but they know probably still less about the cultural minutiae of the new home. This contested space, never just a vacuum, is then gradually filled by new constructs like British Hindu law (angrezi dharma).
(124) The reconstruction of officially informal personal law systems in virtually all countries of Europe and in North America is well under way, but there is much resistance among the legal establishment against accepting the new evidence. For Britain, Pearl and Menski (1998) introduced the concept of angrezi shariat, now also acknowledged in Germany (Rohe 2001: 221), while a study by the Friedrich Ebert Stiftung, Islamisches Alltagsleben in Deutschland (Lemmen and Miehl 2001) confirms the unwillingness to debate such issues publicly and is wary of the resulting ‘judicialization’ of such matters because this bypasses, to a large extent, public debates. Verma (2002) is a new study on Panjabi migrants in Canada and the reconstruction of their communities.
(126) With few exceptions, anthropologists seem to be no better at observing social realities, since they wear the same blinkers as their legal and other scholarly colleagues.
(127) This term was coined for Britain by Poulter (1986) in a pioneering study that is highly regarded by modernist lawyers. Poulter systematically applied legal centralist concepts and his methodology denied ethnic minorities the agency to reconstruct their own hybrid legal systems. For a pluralist critique of this approach, see Menski (1988; 1993a).
(129) The fate of the so-called ‘Parekh Report’ on the future of multi-ethnic Britain (Parekh 2000) is highly significant. It was viciously attacked for asking uncomfortable questions about the meaning of ‘Britishness’ today.
(130) Among social scientists specializing in South-East Asian studies, the importance of crossing borders in social reality and academic methodology is now receiving more attention in border-land studies (Horstmann 2002).
(131) Unpublished research by my student Eric Bakilana, an African from Tanzania, begins to show that evidence of East African Hindu laws and their informal operation today can be collected in abundance if we spend enough time on local fieldwork.
(135) Of course the problem only arose if the Hindu marriage had taken place in the UK, since a Hindu marriage solemnized under Hindu law in India should be recognized by English law under the rules of private international law.
(136) It appears that the explicit purpose was to ‘pin down’ the husband by this official legal tie, without allowing him to consummate the marriage. Arranging this sequence the other way round would still entail risks for the woman of being abandoned by an unscrupulous male.
(137) This gave rise to many nullity petitions in English law among Hindus and Sikhs during the 1970s and into the 1980s.
(138) Meanwhile, English law has had to learn some important lessons and is also beginning to gain first-hand experience of the postmodern reconstruction processes among ethnic minorities. In Chief Adjudication Officer v Bath 2000  FLR 8 (CA), a Sikh case in which the couple had married only in a gurdwara in London thirty-five years ago, the English Court of Appeal had to recognize the widow’s pension claims to avoid blatant injustice. See also Gereis v Yagoub  1 FLR 854, which indicates growing readiness of English judges to consider legal pluralism.
(139) See e.g. Kaur v Singh  AllER 292 CA.
(140) In A v J  1 FLR 110, after their registered wedding, the spouses were evidently confused about the nature of their relationship and the marriage broke up as a result.
(141) This is not only a mental assumption, but becomes a physical fact when the formal registration of the marriage takes place in the same location as the Hindu solemnization.
(143) This reasoning clearly impressed the court of appeal in Chief Adjudication Officer v Bath 2000 FLR 8 [CA].
(144) This argument of ‘new equity’ is also proposed in Australian scholarship (Castles 1994).