Complexity of The Hindu Law

complexity of the
classical, colonial, and postcolonial forms of Hindu law. The relevance

of the present work for comparative and international law stems from the
part that India continues to play as a role model for the development of
international law among postcolonial states Furthermore, it is nearly
axiomatic that a viable international law can only be predicated on a
proper understanding of and respect for the diversity of legal systems
which comprise its constituency.3 It is hoped and expected that this work
will generate considerable new interest in the history and contemporary
state of Hindu law, especially as it pertains to comparative and interna
tional legal problems.
In its most common current denotation, Hindu law refers to a system
of personal laws in India first inculcated by the British and subsequently
maintained and guaranteed by the Constitution of India4 (1950) after In
dian independence in 1947. Textbooks on Hindu law available today
refer primarily to this system? Originally, however, the term was coined
by British Orientalists and administrators in the late 18th century to refer
to the general system of law prevailing among the Hindu majority before
British colonial encroachments, as opposed to the "Muhammadan law"
of India's politically dominant Mughal dynasty. The British made a
much-discussed mistake 6 in assuming that Indian Hindus were governed
*
Donald R. Davis, Jr. is Assistant Professor in the Department of Languages & Cul
tures of Asia at the University of Wisconsin-Madison. His interests and publications center on
the relationship of religion and law in medieval India.
1.
WERNER F. MENSKI, HINDU LAW: BEYOND TRADITION AND MODERNITY (2003).
2.
MENSKI, supra note 1, at 214.
3.
See Philip Bobbitt, Public International Law, in A COMPANION TO PHILOSOPHY OF
LAW AND LEGAL THEORY 96 (Dennis Patterson ed., 1996).
4.
INDIA CONST.
5.
The leading Hindu law textbooks are: SATYAJEET A. DESAI, 2 MULLA PRINCIPLES
OF HINDU LAW (18th ed., 2001); RANGANATH MISRA, MAYNE'S TREATISE ON HINDU LAW
AND USAGE (12th ed., 2003).
6.
For details of the early history of the British administration of law in India, see
Ludo Rocher, Law Books in an Oral Culture: The Indian Dharmafastras, 137 PRoc. AM.
PHIL. Soc'Y 254 (1993) and Richard W. Lariviere, Justices and Panditas: Some Ironies inMichigan Journal of International Law
by a set of religio-texts known as Dharma.dstra, the treatises on
dharma, duty in a broad sense, and, similarly, that Indian Muslims were
governed exclusively by the Shari'a. Gradually, increasing British colo
nial hegemony whittled away at pre-existing civil, criminal, and
administrative law, leaving behind at best fragmentary vestiges of these
already competing Indian legal systems in the form of Anglo-Hindu law
and Anglo-Muhammadan law, respectively. Both of these hybrid systems
were innovations that relied heavily on British ideologies and presuppo
sitions of law. More specifically, however, the British preserved these
personal law systems (including family issues such as adoption, mar
riage, divorce, etc.) because they considered them "indigenous." All
other areas of law were subject to massive reform and Anglicization.
Modem Hindu law is the heir of this highly circumscribed system. There
are thus three broad periods in the academic discourse on Hindu legal
history: classical Hindu law (ca. 500 BC-1772AD, but which obviously
deserves further periodization), Anglo-Hindu law (1772-1947), and
modem Hindu law (1947-present).
Menski's work focuses on the history and development of Hindu law
in all its senses and periods. The expressed concern of the book is to
substantiate a claim that Hindu law exists in a postcolonial world, de
spite some pronouncements of its death as a legal system.7 As part of this
Contemporary Readings of the Hindu Legal Past, 48 J. ASIAN STUD. 757 (1989). The nature of
the mistake has to do primarily with the British assumption that Dharmaidstra texts repre
sented a kind of black-letter code of religious law. More specifically, as Lariviere points out, it
was a "well-intentioned misunderstanding" which led the British to view these texts as reli
gious in nature and to view the authors of the texts as priests, taking the whole system as
roughly comparable to the ecclesiastical court system in Britain at the time. Lariviere, supra,
at 759.
7.
Menski discusses these pronouncements of "death" and "supercession" in the open
ing chapter. In particular, Menski is critical of MARC GALANTER, LAW AND SOCIETY IN
MODERN INDIA (1989), a series of essays from the 1960s that insisted on the importance of
studying Indian society when studying Indian law. The perhaps surprising result of this insis
tence, however, was Galanter's use of the Indian case to argue against what is allegedly
"'normal' in legal systems; that law is historically rooted in a society, that it is congruent with
its social and cultural setting, and that it has an integrated purposive character." Id. at 52. By
contrast, according to Galanter:
The Indian experience suggests a set of counter-propositions. It suggests that nei
ther an abrupt historical break nor the lack of historical roots prevents a borrowed
system from becoming so securely established that its replacement by a revived in
digenous system is very unlikely. It suggests that a legal system of the modem type
may be sufficiently independent of other social and cultural systems that it may
flourish for long periods while maintaining a high degree of dissonance with central
cultural values.
Id. While Galanter's views here may overstate the gap between law and society in India to
some small degree (he softened his own position to some extent later, see id. 98-99), Menski's
view of Hindu law insists on a rigid and absolute connection of Hindu society and Hindu law,
one predicated on vague definitions of all these terms and one that refuses to acknowledge
[Vol. 25:735Traditional Hindu Law
claim, Menski speaks not merely of Hindu law in the restricted sense of
the specifically identified set of personal laws by that name, but also of a
vibrant system of "unofficial law" that continues to function outside of
and in spite of the official legal world based formally on the Constitu
tion. Both the colonial Anglo-Hindu law and law in independent India
are viewed in these terms. On the transition from the former to the latter,
Menski states, "In social reality, all that happened was that the official
Indian law changed, while more and more of Hindu law went under
ground, populating the realm of the unofficial law."' From here, Menski
begins to articulate his position that "living" Hindu law is very poorly
represented by any of the official or state laws seized on by some schol
ars of India's legal history, whether that be the classical Hindu
lawbooks, 9 the law developed under British rule, or the present-day
Hindu legislative enactments and case-law. Menski thus commits himself
to an odd view that Hindu law is a permanent, but "invisible presence"'
that lurks under the radar of official law, but in fact accounts for much
more of law's operation in society. In the end, Hindu law for Menski
exists neither in Dharmadstra for the classical period nor in the systems
of Anglo-Hindu or personal Hindu law in the modem period because
both allegedly miss the "invisible" operation of "real" Hindu law. This
alleged "invisibility" leaves Menski in the awkward position of saying
that Hindu law, in his rather idiosyncratic sense, refers to none of the
things with which it is commonly associated, but rather to something for
which we have but scanty, anecdotal evidence.
However, one point Menski makes in the course of this argument
does strike me as important and largely overlooked. The great misunder
standing that led the British to accord the status of code and legislation
to the Dharmafdstra texts resulted not only in a dismal failure to deliver
justice to Indians, who never looked upon these works as codes of law,
but also in an attempt to expurgate unwanted elements of Hindu law by
means of colonial legislation." Moreover, the same policy was pursued
after independence as well: "it appears evident that the early post
colonial Indian state made a critical mistake if it assumed that it could
rewrite Indian law, reform Hindu law out of existence, and eventually
create a uniform national legal system, claiming to promote social
almost any influence of colonial and postcolonial law reforms on

Complexity of The Hindu Law

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Complexity of The Hindu Law

Uploaded by

Copyright:

Available Formats

complexity of the

classical, colonial, and postcolonial forms of Hindu law. The relevance

You might also like