Previous works in the domain

Previous Works

Most studies on the anthropology and history of law and justice in India have focused on the question of legal pluralism.

This corresponds to a well-established tradition, exemplified by the pioneering work of H.Maine at the end of the 19th century, and to the current focus on interacting normative orders by scholars working on post-colonial societies. In the field of Indian studies, apart from the monumental History of Dharmashastra by P.V. Kane, major works developed around the 1950s and 1960s, which included studies on the various sources of the law (1) and sociological approaches underlining the "tactical" possibilities allowed by Indian legal pluralism(2). The official system provides new opportunities for pursuing "traditional norms or concerns", while helping to transform them (3).  Recently, studies based on ethnographic fieldwork have highlighted the existence of local procedures of rendering justice, and of a complex interaction between the official representation of South Asian legal traditions and the everyday practice of justice-making, informed by a pragmatic combination of older and newer legal procedures (4).

Many authors have laid the emphasis on the contradiction and oppositions between an "alien" state versus an "indigenous" custom. Such a contrast has been discussed by historians, who underlined that the coexistence of a centralized political power and of local dynamics of loyalty and authority have existed even during the pre-colonial period. They also criticized the culturalist focus of many studies, which prevented an understanding of "how the structural distribution of political authority is related to processes of production and social reproduction" (5).

Works on the legal system in South Asia also include sociological studies on legal professions.(6) Numerous Indian jurists and University Professors of Law regularly publish material in specialised Journals devoted to Indian legal studies. They mostly focus on legal texts or on the interpretation of statutes and court judgments from a legal point of view. Socially committed studies have recently increased, while a number of recent works explore the social, political and socio-legal implications of legal texts, of judges' decisions, or of other judiciary reports, with the intention of denouncing social injustice or the dysfunctioning of the system. This commitment to socio-legal activism tends to blur the distinction between jurists and committed social scientists, for instance in debates on a unified civil code versus personal law, or on the reservation policy, gender inequality, human rights or environmental protection.(7)

 

(1) For instance: J. Duncan M. Derrett (Hindu Law Past and Present, 1957; Religion, Law and the State in India, 1968); R.Lingat (Classical Laws of India, 1973 [1967]); P.V. Kane (Hindu Customs and Modern Law, 1950); W. Menski (Hindu Law, Beyond Tradition and Modernity, 2003); works of R. Lariviere and of W. Menski point out the colonisers’ misunderstanding of equating the classical texts of Hinduism with positive law; cf. also R.D. Baird, ed. (Religion and Law in Independent India, 2005).

(2) The precursor of these field-oriented studies is M. N. Srinivas, who concentrated part of his research on detailed reports of village disputes (A Study of Disputes, 1964). He introduced the idea of the "bi-legality" of Indian villagers by which he wanted to describe villagers' attitudes to using both 'indigenous' and official law in accordance with their own estimations of propriety and advantage. See also B.S. Cohn ( “Some Notes on Law and Change in North India”, An Anthropologist among the Historians and Other Essays, 1990).

(3)M. Galanter (Law and Society in Modern India, 1989);  I. Deva, ed. (Sociology of Law, 2005); Galanter and Upendra Baxi (“Panchayat Justice: An Indian Experiment in Legal Access”, in Cappelletti & Garth, Access to Justice vol.3, 1989).

(4)R. Hayden (Disputes and Arguments Amongst Nomads, 1999); L. Holden (“Custom and Law Practices in Central India: Some Case Studies”, South Asia Research, 2003; “Official policies for (un)official customs: the hegemonic treatment of Hindu divorce customs by dominant legal discourses”, Journal of Legal Pluralism, 2005;  Hindu Divorce, 2009); E.P.Moore (Gender, Law, and Resistance in India, 1998); S. Randeria (“ ‘The State of Globalization’ ” Theory, Culture & Society, 2007). See also the works of C. Eberhard, particularly Eberhard and Gupta, eds. (Legal Pluralism in India, 2005).

(5)M.R.Anderson (“Classifications and Coercions: Themes in South Asian Legal Studies in the 1980s”, South Asia Research, 1990); Anindita Mukhopadhyay( (Behind the mask. The Cultural Definition of the Legal Subject in Colonial Bengal (1715-1911), 2006); Radhika Singha (A Despotism of Law : Crime and Justice in Early Colonial India, 1998).

(6)for instance C. Morrison (“Social Organization at the District Courts. Colleague Relationships among Indian Lawyers”, in I. Deva (ed.) Sociology of Law, 2005); R.L. Kidder (“Formal Litigation and professional Insecurity: Legal Entrepreneurship in South India”, Law and Society Review, 1974).

(7) Sathe (Judicial activism in India. Trangressing Borders and Enforcing Limits, 2002); A.G. Noorani (Citizen’s Rights, Judges and State Accountability, 2002). Upendra Baxi has  compiled a set of essays (Crisis of the Indian Legal System, 1982), where he tried not only to analyse the reason for this "crisis", but also to propose solutions. See also Flavia Agnes (Law and Gender Inequality, 1999); G.J.Larson, ed. (Religion and Personal Law in Secular India. A Call to Judgement, 2001 ); V. Dhagamwar (Role and Image of Law in India. The Tribal Experience, 2006); Menski, ed. (South Asians and the Dowry Problem, 1998).