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Literary Review
CIVIL SOCIETY
In defence of Hindu Law
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Menski argues that modern legal scholarship has portrayed Hindu law as uniformly oppressive, ignoring its evolving character, its capacity for diversity and flexibility, its welfare potential and the possibilities for freedom it contains. A review by PRATAP BHANU MEHTA.
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HINDU Law is a trenchant defence of two large claims. The first is that Hindu law is a major legal system of the world, a constantly evolving conceptual scheme that has metamorphosed from its ancient origins into a robust postmodern phenomenon. It is a distinctive legal system, vitally alive and defensible. In the course of showing the transformations of Hindu law through history, Menski argues for his second claim: that just about everybody who has written on Hindu law has seriously misunderstood either its normative basis or its practical potency. At a normative level, a motley combination of feminist, colonial and modernist legal scholarship has portrayed Hindu law as uniformly oppressive, incapable of meeting the normative challenges posed by modern conceptions of rights, freedom and equality. They have ignored its evolving character, its capacity for diversity and flexibility, its welfare potential and the possibilities for freedom it contains. Empirically, modernist writers like Galanter, and even unabashed admirers of Hindu law like Derrett have been too premature in pronouncing the death of Hindu law. Despite attempts at codification, reform and the avowed modernist impulses of the State, Hindu law is still very much in operation, not just at the level of informal law outside the State. It inflects the ways in which the State itself interprets and upholds law in a variety of domains: inheritance, marriage, divorce and so forth.
Nor has indigenous scholarship served Hindu law well. The hindutva agenda, Menski argues, is anything but Hindu in its insistence that there be a territorially uniform law imposed by the state; its glorification of the State is far removed from the Hindu emphasis on self governing outside the ambit of the State; and the monumentalisation of Hindu law found in the writings of scholars such as Justice Rama Jois does injustice to its historical evolution and suppleness. Even standard textbooks by authors like Bhattacharjee and Divan, read by generations of law students, also portray Hindu law through largely modernist and positivistic eyes. Aided by overzealous Indologists, all the bodies of scholarship mentioned above make the same mistake about Hindu law: they too quickly assimilate it to positivistic understandings of law. They all err in thinking that Hindu law is a set of formal rules with authoritative status rather than principles of a "self controlled order", they all overestimate the authority of scripture and text in the determination of Hindu law, they all obtusely continue to insist that law is simply what a sovereign promulgates, and that a distinction between law and religion is something self evident. They attach greater importance to top down legal regulation by the modern State than the self-regulatory potential of society itself. The cumulative result is not just a serious scholarly misunderstanding of Hindu law, but a serious misunderstanding of Hindu society itself.
Menski argues that modernist reform impulses are ceding ground to traditional concepts rather than overcoming them in a variety of domains, such as marriage, divorce, maintenance etc., all of which receive a highly original discussion in Part Two. Under a veneer of modern law a lot of "traditional" concepts flourish. This is simply because of the fact that a lot of legal reform is so much out of sync with social realities and norms that it in fact produces adverse consequences. For instance, Menski argues, we are now discovering that liberal divorce laws, often end up making women more rather than less vulnerable, and that judges increasingly take cognizance of this fact. Rather than blindly applying "reformed laws", that are premised upon the State's capacity to protect the vulnerable, judges are increasingly turning to traditional institutions to perform the functions the State cannot. They are in fact reinstating the cardinal tenet of Hindu law, that a well functioning, self-regulating social order outside the state is vastly more preferable to a paternalistic dependence on the state, even if that dependence comes under the guise of reform. Menski is not under any illusion that the "self controlled" order of Hindu society always functioned smoothly, or was always just. But Hindu law is still a vibrant legal system that refuses the primacy of State centred approaches to law; dharma still refuses to grant supremacy to positivist ordinances of the Indian State.
Hindu Law is a major scholarly accomplishment, big but accessible, written with immense verve, panache and ambition. Most of its conclusions will be deeply controversial. Its account of the actual consequences and possibilities of legal reform is debatable. Its emphasis on the self-regulating and potentially liberating character of traditional law is often overdrawn. It seems to often assume that power is coercive only if exercised by the State. And you suspect sometimes that author has engaged in a sleight of hand. The vitality of Hindu law is easy to argue if the category "Hindu" remains, as it always does, elusive even at the end of 600 pages, hiding behind the claim that it is the character of Hinduism to be diverse and flexible. Then a lot of things can be easily made to count as "Hindu." But the importance of this book transcends agreement or disagreement with its central thesis. Its polemics against rival positions are, for the most part, successful and it will become compulsory reading on Hindu law. It is also a powerful cautionary tale for all those who blithely repose their faith in State-led legal reform, codification, standardisation and uniformity. It should remind them that the relationship between law and society is far more complex than modern legal formalism allows us to believe. And above all it rescues the study of Hindu law from the historically unfounded condescension of its critics and the unthinking zealotry of its friends. What exactly Dharma may remain, as Yudhistara said, is very subtle indeed, but, if Menski is right, that is not enough of an argument to think that Statist, modernist legal paradigms are a panacea for our woes.
Hindu Law: Beyond Tradition and Modernity, Werner F. Menski, Oxford University Press, 2003, p.648, Rs. 995.
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