New Indian peer-reviewed journal
The Review of Agrarian Studies is a new bi-annual peer-reviewed journal of the Indian Foundation for Agrarian Studies, a charitable trust based in India and established in 2003. The journal is published from Kolkata and appears both in electronic and printed form – the latter in collaboration with Tulika Books, one of India’s most important publishers of books in the social sciences. The Review of Agrarian Studies invites articles on agrarian studies – on the forces and relations of production in agriculture and in rural areas, on living standards, and on different aspects of social formations in the countryside. It also carries theoretical and empirical articles on social, economic, historical, political and scientific and technological aspects of agriculture and rural societies.
The online version is available for free at www.ras.org.in or www.reviewofagrarianstudies.org.
Writing and the Recognition of Customary Law in Premodern India and Java
by Timothy Lubin – Washington & Lee Legal Studies Paper No. 2011-18
Explaining what made ancient Greek law unusual, Michael Gagarin observes that most premodern legal cultures “wrote extensive sets (or codes) of laws for academic purposes or propaganda but these were not intended to be accessible to most members of the community and had relatively little effect on the actual operation of the legal system.” Dharmaśāstra certainly can be called a “scholarly” exercise, and it was also intended as propaganda for the Brahmanical cosmopolitan world order. However, this written, scholastic tradition came to provide a model for articulating law “in principle” and “on the ground” in diverse settings even beyond India. This lecture addresses the implications of writing for customary or regional law in South and Southeast Asia. Dharmaśāstra (“Hindu law”) canonizes a particular model of Brahmin ācāra, and as a procedural principle recognizes the general validity of other, even divergent, customary norms, but does not actually promulgate them as justiciable statutes. From the point of view of Śāstra, such rules remain lex non scripta. However, there are a couple of modes in which writing came to play a role in the “recognition” (in Hart’s terms) of customary norms as legal rules: (1) in documents and inscriptions (lekha, pattra, vyavasthā); and (2) in regional adaptations of the Dharmaśāstra genre. The functions of these two broad modes differed but also overlapped, especially in Southeast Asia. I argue that the interplay between them fostered the emergence of formal legal institutions tied simultaneously to the administrative and judicial apparatus of a state and an overarching, transregional conception of legitimate authority.
Keywords: writing, recognition, custom, customary law, comparative, ancient law, India, Java, Hindu, Indic
The full paper is available on SSRN
Book review of Hinduism and Law (2010) Edited by Timothy Lubin, Donald R. Davis, Jr and Jayanth Krishnan. Cambridge University Press
by Amita Dhanda
Published in The Hindu 13/12/2011.
Direct link to the article here.
The continuance of the English common law in post-Independence India and the overbearing influence of Western legal philosophy on Indian legal education have invited critical comments. Both developments, it is argued, have prevented the evolution of a normative system that accords with the Indian genius. Without entering into the difficulties of indigenising the legal system, it can be safely stated that the absence of accessible reading material signally influences the absence of Eastern legal jurisprudence in the curriculums of Indian Law Schools. The essays in the book under review address this problem of Indian legal education by placing the Dharmasastras in their period and time and by demonstrating their contemporary relevance. Hinduism and Lawseeks “to erect the framework of a new field of study on the model of other work in law and religion that focusses on the mutual connections between particular religious traditions and particular legal systems.” The editors draw a distinction between this new field and ‘Hindu law’, which they describe as “the theoretical and practical law as described in Dharmasastra literature.”
Hindu Law is a part of the mosaic, not the entire concern of the book. Consequently even in the part titled ‘Hindu Law’, the interconnection between religious traditions and legal systems is brought home in Davis’s historical overview of Hindu law from classical to colonial times; Olivelle’s narration of the textual history of the Dharmasatra; Michael’s essay on the interplay between the precept and practice of classical Hindu law; and McCrea’s piece on the rules of interpretation which guided Sastric contradictions. Rocher and Sturman show how the demands of political governance influenced what was recognised and what was ignored in the construction of Anglo-Hindu law, while Williams brings forth the political considerations that influenced the debates revolving around the Hindu Code Bill. The influence of these concerns is yet again demonstrated by Narula, in her discussion on the Uniform Civil Code.
The book places a number of contemporary issues in a historical context and thereby helps in deepening one’s understanding. For example, the complexity of the ‘affirmative action’ question can be comprehended when Jenkins’ piece on the subject is read along with Vajpeyi’s essay on ‘Sudradharma’. Lubin’s essay provides an opportunity to revisit the primeval questions of power and expertise and whether authority should vest in the holder of political power or technical expertise. From the standpoint of legal pedagogy, it is profoundly significant that the essay deliberates on this question based on materials that are distinct from the Western positivist tradition. Insofar as the book introduces the field of ‘Hinduism and Law’, it extends an invitation for further work in the area. Be it the contention of Cox that literature was not just a mirror of the times but a source of guidance to the rulers, or Yelle’s hypothesis that ordeals were only the options of last resort, or Malik’s invitation to explore the interplay between the real and the symbolic, with his piece on direct petitioning whereby people importune the Goludev deity in Uttarakhand by writing out (sometimes, even on judicial stamp papers) the issue requiring divine intervention. In the same exploratory mode is Jayanth Krishnan’s piece on the relationship between the Hindu diaspora and the legal systems of different countries. Krishnan admits that his work does no more than open the field for further research. This invitation for research needs to be especially taken up in respect of South Africa because a lot of extant literature, from Indians as well as South Africans, would question his contention that Gandhiji and the Hindus were only seeking out for themselves and not engaging with the discrimination faced by the ‘Blacks’. Be that as it may, the book has established connections between bodies of knowledge that were hitherto unconnected and, thereby, initiated a discourse in which all scholars of the polity and the law should be engaged.