All posts by Zoe Headley

Review of Agrarian Studies

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

Writing and the Recognition of Customary Law in Premodern India and Java

by Timothy Lubin – Washington & Lee Legal Studies Paper No. 2011-18

Abstract:

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

 


 

Political governance and religious traditions

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.”

Interconnection

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.

Contemporary issues

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.

For the summary and table of contents, please see   Other news & events.

“Workshop explores village judicial practices”

The Hindu  24/11/2011

The French Institute of Pondicherry along with the University of Pondicherry organised a two-day exploratory workshop on village judicial practices recently, a release said.

READ THE ARTICLE IN FULL

To read the full version of our press release, please see below:

Tamil village judicial bodies

The University of Pondicherry and the French Institute have jointly organized a two day Exploratory Workshop on village judicial practices. The workshop was inaugurated on the 14th of November by Professor D.Sambandam (Dean of Social Sciences, PU.). Over these two days, Justice David Annousamy, Dr Eric Denis of the French Institute, Professor V. Rogotham (Head of History), Professor K.Rajan, Professor Chellaperumal, addressed a team of over 20 elders from south central Tamil Nadu who discussed the procedures and practices as knowledge-holders of caste-based village judicial customs.

The objective of the workshop was to explore the contemporary practices of village judicial assemblies and thereby gain deeper knowledge on Tamil customary legal procedures which have been largely discarded by academic research and misrepresented in the media.

During the colonial period, Tamil customary law was never codified and by and large, the British judicial administration took the view of caste as a self governing body entitled to adjudicate according to custom.. Following Independence and the coming into being of the Constitution, the Indian State did not actually interfere with that age old arrangement.

Though there have been several attempts to set up government-sponsored local judicial assemblies (nyaya panchayat) as a door-step access to state justice, these have largely failed to be functional  in most Indian states. Instead, the traditional or non-state caste-based judicial assemblies have continued to adjudicate conflicts in a wide number of rural areas. The judgments passed by these traditional panchayats have not only co-existed alongside state courts but in many instances the decisions and judgments taken ‘under the banyan tree’ were recognized by the judges sitting in the courtrooms.

However this arrangement is under challenge in several parts of the country without suggesting any viable substitute. In Tamil Nadu, since 2003, several court cases have indicted ‘panchayattars’ that is the men who adjudicate in village judicial assemblies which have come to be labelled ‘katta panchayat’. Many of the participants in the workshop expressed their disagreement with this negative labelling and explained over the two day workshop how their judicial practices are based principles of natural justice, on evidence on deliberation among members. They aimed at helping the parties reach a reasonable compromise and in default to give a just decision based on reason which was in general well accepted.

The participants insisted that they should not be confused with occasional self styled panchayats working in semi-urban centres whose practice may be objectionable and intimidating

Justice David Annousamy, former judge from the Madras High Court and author of a number of publications in Tamil, French and English, who gave an insightful opening speech for the workshop opined that village panchayats were doing a yeomen service in solving a large number of cases quickly, that what they needed was an exposure to modern Human Rights.

 

Workshop invitation distribution

The first  Clac experimental workshop, which will take place on the 14th and 15th of November in Pondicherry University, is bringing together 21 men from various villages and localities to dicuss village judiciary practices and customary law.

As per local custom regarding invitation, we had to pay a personal visit to each of the men in order to hand over by hand the invitation, doing otherwise would have been considered careless and even rude.

Here are a few photos from the invitation tour which was done by the members of the team (Krishnasami, Selva Kumar, Muthu Kumar and Chandran)

Tavamani Tevar in front of his house © EAP 458
Tavamani Tevar receiving the workshop invitation © EAP 458
Virumandhi Tevar in his shop © EAP 458
Virumandhi Tevar's shop in Karumathur© EAP 458
Thangapandi receiving invitation © EAP 458
On the road to the next panchatattar© EAP 458
Meeting with Manirasu on the side of the road© EAP 458
Manirasu receiving invitation © EAP 458
Inside Servaikkarar Tevar's house© EAP 458
Servaikkarar Tevar receiving invitation© EAP 458
Solaimalai Maravar receiving invitation© EAP 458

Clac workshop announcement

First CLAC Experimental Workshop on Tamil Customary Law

This experimental workshop will bring together for the first time men who are actual practionners of Tamil customary law, known as panchayattars, to discuss over two days a number of issues on the contemporary practices of caste panchayats and village panchayats in Tamil Nadu. The Panchayattars, coming from 5 different castes (Pramalai Kallar, Ambalakarrar, Maravar, Goundar, Nadar) have been met either through personal fieldwork or during the EAP 314 pilot project. Though there will be ample space for open discussion, the workshop will be articulated around several sets of specific questions. The workshop will take place exclusively in Tamil.

Programme

 

Monday 14th of November

 

09h00 – Welcome address by Prof. Venkat Raghotham

(Head, Department of History, PU)

09h10 – Opening address by Prof. D. Sambandham

(Dean of Social Sciences and International Studies, PU)

09h20- Inaugural address by Justice David Annoussamy

10h00- Vote of Thanks by Dr. Zoe E. Headley

10h00 – Presentation of the structure and content of the workshop – Zoe Headley

10h05 – Session 1 A: Issues of locality and scope of jurisdiction of panchayat

10h30- Tea Break

10h45- Session 1 B: Issues of social composition of panchayat

12h15 Lunch break

13h30 Session 2 A: Types of offences and crimes

15h00 Tea break

15h30 Session 2 B: Issues of panchayat opening and closing procedures

17h30 End of Session

 

Tuesday 15th of November

 

9h00 – Opening address by Dr Eric Denis (Head of Social Sciences, IFP) and Professor A. Chellaperumal (Head of Anthropology, PU)

09h30- Session 3 A: Issues of proof and ordeals

10h30- Tea Break

10h45- Session 3 B: Issues of fines

12h15 Lunch break

13h30 Session 4 A: Physical punishment and social boycott

15h00 Tea break

15h30 Session 4 B: The panchayat, the judiciary and the press

17h30 End of Session


Organised by:

Dr. Zoe Headley (CNRS -CEIAS, France)

S.Ponnarasu (IFP -PondicherryUniversity)

With the help of:

S. Selvakumar (IFP-EAP)

V. Muthukumar (IFP-EAP)

P.Chandran (IFP-EAP)

K. Krishnasami (IFP-EAP)

 

Collection 11 in progress

 

Krishnasamy examining letters to be digitized with the document holder in his living room. Our "home-made" portable photo stand is in the lower right hand corner

We are presently working on a large collection belonging to the family of an Anuppa Goundar Zamin family in Madurai district. The documents we are digitizing will eventually become “collection 11”.

The Zamin’s documents have been stored in a relatively neat and orderly fashion, unlike some collections where the documents were balled up together, which is making the digitization process less complicated and time consuming.

One of the two chest holding the family documents being opened for us....

So far we are not able to estimate the number of documents kept in the two wooden chests. During the first set of digitization around 1 000 photos have been taken. As is often the case in our project, the document holder is not quite sure of the contents of many of his documents.

...and the contents dispersed on the floor...

This first set of digitized documents is being painstakingly identified by Selvakumar, Muthukumar and Chandran who joined the project a month ago. The collection contains a vast majority of paper documents.  Among these a fair amount of land related documents (village leases, land sales, rentals, auctions, etc.), dispute documents (complaints, judgments, legal notices, etc.).

Though there are very few documents in English, the earliest document among those identified so far is a handwritten notice in English from dating from 1802 . A notebook dated from 1867 presented by the Madurai District Collector contains a number of handwritten copies of copperplates which were apparently lent by the Zamin to the British officer for the purpose of reproduction. The copperplates reproduced are said to have been issued by Tirumalai Nayakkar arounf the 1660s, thus latter that the copperplates of Collection 1 (which have been authenticated by the Archaeological Survey).

The second phase of the digitization process should be completed by the end of the month of October.

Here are a few more samples from the fieldwork and the collection:

 

 

 

A taste of golden rice …

Straying somewhat from the purpose of this research project, but delightful nonetheless, here is an appetizing artifact photographed among a vast collection of objects and documents dating from the golden years of the former Palayakkarar (later Zamindar) family of Uttukuli which we met last week during a document field search in Kongu Nadu :

 

Front side....

 

 

... et bon appetit !

 

Several gold leaves still remained in the leaflet, not so tasty after all…

 

Experimental Workshop on Tamil Customary Law

An Experimental Workshop on Contemporary Knowledge and Practice of Tamil Customary Law

organized with the support of :

IFP / CEIAS  / JustIndia

and the help of:

the Department of History (Pondicherry University)

 

Date:  14th and 15th of November 2011

Venue:  Pondicherry University

Language:  Tamil

This experimental workshop intends to bring together for the first time men who are actual practitioners of Tamil customary law, known as panchayattars, to discuss over two days a number of issues on the contemporary practices of caste panchayats and village panchayats in Tamil Nadu. The Panchayattars, coming from 5 different castes (Pramalai Kallar, Ambalakarrar, Maravar, Goundar, Nadar) have been met either through personal fieldwork or during the EAP 314 pilot project. Though there will be ample space for open discussion, the workshop will be articulated around several sets of specific questions. The workshop will take place exclusively in Tamil as most of the panchayattars do not speak any English.

Please note that the workshop will not be open to the public. Should you want to attend, please write to the CLAC coordinators before the 15th of October (project.EAP458@gmail.com). However, feedback on the outcome of the workshop will be circulated through this notebook. The workshop will be recorded and a transcription in Tamil and summarized translation in English will be circulated.

This workshop has been made possible through the financial support of the IFP, the CEIAS, Just-India and help of the Department of History of Pondicherry University.

Recent Publication: Hinduism and Law

Hinduism and Law: An Introduction

2010. Edited by Timothy Lubin, Donald R. Davis, Jr and Jayanth Krishnan. Cambridge University Press

Summary:

Covering the earliest Sanskrit rulebooks through to the codification of ‘Hindu law’ in modern times, this interdisciplinary volume examines the interactions between Hinduism and the law. The authors present the major transformations to India’s legal system in both the colonial and post colonial periods and their relation to recent changes in Hinduism. Thematic studies show how law and Hinduism relate and interact in areas such as ritual, logic, politics, and literature, offering a broad coverage of South Asia’s contributions to religion and law at the intersection of society, politics and culture. In doing so, the authors build on previous treatments of Hindu law as a purely text-based tradition, and in the process, provide a fascinating account of an often neglected social and political history.

 

Table of contents:

Introduction -Timothy Lubin, Donald R. Davis, Jr and Jayanth Krishnan

Part I. Hindu Law:

1. An historical overview of Hindu law Donald R. Davis, Jr
2. Dharmaśāstra: a textual history-Patrick Olivelle
3. Hindu legal practice in premodern India -Axel Michaels
4. The creation of Anglo-Hindu law -Rosane Rocher
5. Marriage and family in colonial Hindu law -Rachel Sturman
6. Hindu law as personal law -Rina Verma Williams

Part II. Law in Ancient and Medieval Hindu Traditions:

7. Hindu jurisprudence and scriptural hermeneutics -Lawrence McCrea
8. Indic conceptions of authority -Timothy Lubin
9. Śūdra Dharma and legal treatments of caste -Ananya Vajpeyi
10. Law, literature, and the problem of politics in medieval India -Whitney Cox
11. Hindu law as performance: ritual and poetic elements in Dharmaśāstra -Robert Yelle

Part III. Law and Modern Hinduism: 12. Temples, deities, and the law Richard Davis

13. In the divine court of appeals: vows before the God of justice -Aditya Malik
14. Contemporary caste discrimination and affirmative action -Laura Dudley Jenkins
15. Law and Hindu nationalist movements -Smita Narula
16. Legally and politically layered identities: a thumbnail survey of selected Hindu migration patterns from South Asia -Jayanth Krishnan

Seminars and Workshop (2011-2012)

 New Perspectives on Village Judicial Assemblies and Customary Law in Tamil Nadu

SEMINARS AND WORKSHOP (2011-2012)

IFP – CEIAS, and with the support of Just-India

The scope of scholarly knowledge of the procedures and practices of village judicial assemblies and more largely of Tamil customary law is extremely limited. For one, during the colonial period, tamil customary law was never codified unlike some other regions of the British Empire. When questioning how they should deal with issues of caste customs, the British judicial administration by and large took the view of caste as a self governing body entitled to adjudicate according to custom and finally, in 1827, caste questions where expressly excluded from the cognizance of civil courts.

Besides the meagre information provided by the colonial literature on this issue, the academic input over the last fifty years has been relatively fragmented both from an anthropological and historical point of view. Since the wave of village studies has withered away in the 60s, little ethnographical attention has been given, especially in this region, to the actual procedures and processes which shape contemporary practices of caste-based judicial assemblies. Instead, researchers’ attention has been largely framed by the paradigms of legal pluralism examining the decision making processes of villagers when choosing the forum(s) in which to settle their disputes, emphasising the pragmatic evaluations they make of the advantages of state law versus local caste custom. These stimulating studies examine motivations, strategies and outcome but unfortunately rarely shed light on the actual procedures and transformations of caste-based judicial assemblies.

Following Independence and the drafting of the Constitution, the Indian State did not take any steps to legislate, for or against, these caste-based judicial assemblies, leaving them in the shade of a constitutional void. There have been several feeble attempts to set up government-sponsored local judicial assemblies (nyaya panchayat) as a door-step access to state justice but these have largely failed to be functional, trusted or properly funded in most Indian states. Instead, the traditional or non-state caste-based judicial assemblies have continued to adjudicate conflicts in a wide number of rural areas. The judgments passed by these non-state panchayats have not only co-existed alongside state-law but in many instances the decisions and judgments taken ‘under the banyan tree’ were recognized and accepted by the judges sitting in the courtrooms.

However this status quo is coming to an end in several parts of the country. In Tamil Nadu, since 2003, several court cases involving ‘panchayattars’, that is the men who adjudicate in village judicial assemblies, have put these non-state panchayats in the firing line of both the government and the media. The latter first expressed their surprise at the very existence of these assemblies and the pervasive hold of customary law on local rural society which was thought by many to be obsolete. Subsequently, a number of judges and government officials began to contemplate a ban of these “criminal courts” thereby drawing attention to the ongoing disjunction both between State law and non-state law most acutely felt within the growing urban-rural divide. The present day situation is a very real turning point for these non-state panchayats which the Tamil government is promising to do away with. In a foreseeable future, these panchayats will either cease to be held openly or simply disappear under the threat of lawsuits.

An important step has been taken to improve our knowledge and understanding of these assemblies in both with the EAP 314 project and the EAP 458 project. However, though gathering archival information is both crucial and urgent (much of the material is rapidly deteriorating), the documents digitized do not shed light on the contemporary shape and function of caste courts and Tamil customary law. Hence, within the framework of the Caste, Land and Custom project, we will be organizing several workshops and seminars  to broaden our understanding and knowledge on village judicial assemblies and Tamil customary law.

Forthcoming events

November 2011

Experimental Workshop on the knowledge and practice of Tamil customary law

In collaboration with the History Department, Pondichery University

January 2012

Multidisciplinary Seminar on Caste Customs and Representations of Non-State Law in Tamil Nadu.

Harvest time in Kallar Nadu

Kallar Nadu, one of our two target regions for this project, is largely a rural area wedged between two urban centers: the temple city of Madurai and the town of Usilampatti.

Map of Kallar Nadu. Source: Zoe E. Headley (2007) Les Voleurs d'Indra: Perceptions, Reseaux et Enjeux Identitaires d'une sous-caste tamoule. Unpublished Phd Dissertation.
MAP OF KALLAR NADU. Source: Zoe E. Headley (2007) Les Voleurs d’Indra: Perceptions, Reseaux et Enjeux Identitaires d’une sous-caste tamoule. Unpublished Phd Dissertation.

For many of the documents holders, their main source of wages and/or revenue comes from agriculture.  The main crops in this region are paddy, millets and pulses as well as some oilseeds, cotton and sugarcane.

In Tidien-February 2010 © Zoe Headley

It is not uncommon for us to have to adapt our timetable to the constraints imposed by harvesting,

In Tidien © Zoe E. Headley 03/02/2010