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Democracy and Its Institutions$
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André Béteille

Print publication date: 2012

Print ISBN-13: 9780198080961

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780198080961.001.0001

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Law and Custom

Law and Custom

Chapter:
(p.164) 8 Law and Custom
Source:
Democracy and Its Institutions
Author(s):

André Béteille

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198080961.003.0008

Some disjunction seems to exist between law and custom, especially in societies that are in transition or are undergoing rapid social change. This is the case in India today, where laws have been created based on the principle of equality whereas customs are permeated by hierarchical beliefs, ideas, and values. This article argues that the rhythms of change for customs are not the same as they are for law, particularly in the contemporary world. It discusses the approach to law associated with legal positivism, whose attempt to maintain a strict separation between law and morality has been condemned as sterile. It also examines the concept of law as elaborated by H. L. A. Hart, the attitude of modern Indian law to discrimination on social grounds, whether of gender or of caste, and the legal order created by the Indian constitution.

Keywords:   law, customs, India, legal positivism, H. L. A. Hart, discrimination, caste, gender, legal order, constitution

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