ANR Programme 2009-2013
image of courtroom
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

June 2011: At the Frontier of the Non-State

At the Frontiers of the Non-State: Legal Regulation and the Rule of Law in South Asia

June 10th, CEIAS (EHESS), Paris

Programme and Abstracts

Autopsies of the Tribal Corpse: Law, Politics and the Mediations of Custom in Western India - Devika Bordia (CNRS -UPR 299)

In cases of contested death in the Bhil and Girassia tribal regions of Rajasthan, autopsies are conducted in public and in front of the entire village. In this paper I focus on the negotiations between tribal leaders of panchayats or village councils, and police officers and lawyers during and after public autopsies in order to demonstrate how the irregular and fractured ways in which the state operates shrinks the spaces of political action and solidarities that can be formed among marginalized people.
The practice of public autopsies is closely connected to the custom of the exchange of blood money where a sum of money is paid by the family of the person found guilty of murder or causing death to the family of the victim. Non-tribal legal practitioners believe that tribals are incapable of understanding the abstractions associated with state law and are more effectively governed by custom and panchayats or village councils. They believe that autopsies must be public because Bhils are incapable of comprehending medico-legal reports and will contest the report unless they are witness to all investigations. In these ways, non-tribal legal practitioners reproduce historically constructed practices and ideas about the mental, social and physical aspects of tribal life that are seen as different and civilizationally inferior to non-tribals. Tribal leaders of panchayats are responsible for mediating blood money negotiations and interacting with police officers and lawyers. In the last thirty years, panchayat leaders have been associated with indigenous rights movements, non-government organizations, local institutions of self-governance and democratic politics. Through these associations, tribal leaders have gained legal and political skills and competencies that enable them to manoeuvre through spaces from which they were historically excluded. While there are now multiple avenues and directions for political action, I argue that these potential pluralities shrink as tribal leaders engage in legal practices like public autopsies that reproduce ideas about the inferiority of tribal life.

Courts as Customary Institutions in Afghanistan - Antonio De Lauri (University of Milano-Bicocca)

Why can the work of judges be understood in terms of “compromise”? At what conditions are the decisions of judges accepted by litigants? What is the relation between customary norms and legal practice?
In Kabul, the complex fabric of customary practices, state judicial mechanisms, references to principles of Islamic law, and absorption/imposition of allogenic models of justice constitute the normative substratum that connotes daily practices to which individuals and families resort to solve problems, resolve conflicts and take decisions. Such interweaving does not imply, in practice, a clear distinction between the several normative reference systems. In short, empirical evidence leads one to view each in strict relation to the others.
In the cases that I observed in the courts of Kabul, the “culture of settlement” emerged as a fundamental characteristic. Usually, the court plays a mediating role, with the objective of finding an acceptable solution for all the parties involved without upsetting the pre-existing social equilibrium. In the daily application of judicial procedures, the order of reference of law is grounded upon customary references and historically rooted social practices. The “culture of settlement”, resorting to customary practices, and the interaction between forms of authority and strategies of legitimisation configure the field of action of judges, which is consumed in a poetic of compromise in which the sacrifice of the ideals of justice is justified by the grammar of survival.

The Case of Ayesha, Muslim ‘Courts,’ and the Rule of Law: Some Ethnographic Lessons for Legal Theory - Jeff Redding (CNRS-UPR 299/Saint Louis University School of Law)

In this Article, I demonstrate how a non-state Muslim legal venue in Delhi, India behaves in ways which are highly evocative of rule of law ideology’s idealization of state courts and how they (should) operate procedurally. To do so, I closely examine the circumstances and experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a Delhi dar ul qaza to exercise her Islamic divorce rights in India, and who I interviewed at length as part of a larger project concerning contemporary systems of non-state Muslim civil dispute resolution. From Ayesha’s recounting of the practices and procedures of the dar ul qaza that she used to obtain a divorce from her husband in 2008 in Delhi, it is clear that this non-state legal venue’s crafting of its procedures after the fashion of idealistic ‘best practices’ in state court procedure is not perfect. However, it is also debatable whether such mimetic crafting, were it to succeed, would actually be a good thing. And indeed, while I demonstrate in this Article congruencies between (actual) non-state and (idealized) state legal practice and procedure, I also aim in this Article to trouble any easy conclusion that rule of law ideology actually provides one with a theory about courts and court procedure that is - in fact - ideal.