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.