Hindu Law: Book Review

Yet to be revised and edited

Hindu Law, Werner F. Menski, Beyond Tradition and Modernity, Oxford, (2003) 2005, Second impression

Review

All these years my understanding of law in general and Hindu law in particular was something related to the British legacy.  And, apart from constitution, it is a main subject for lawyers to worry and we common people need not think about it.  Of course those who have (civil) law suits needs to worry about the court proceedings and the cost involved the litigation.  But they too need not and couldn’t worry about all the content of law itself.  But this scholarly and timely book not only opened my eyes to understand all the important and complicated legal procedures but also hit hard on my conscience to the need to understand on such crucial subject which is part of my culture and tradition and not merely a subject related with lawyers, court and judges.1  While the pseudo-secularism conveniently created an artificial division if religion versus secularism, the religious fundamentalism pushed every human values to one of its extremes.  And the common man, caught between rock and hard place worried more about her day to day survival than all the views which in every way control the very life in which she wants to survive.  Though Law is not an every day concern of common people, yet we all need to know the way it is formed, framed and fixed to control our lives.  At least those who can influence the common people at the gross root level should know about it so that they can help all to survive with minimum struggle. And this book is a must for them.  Because:

…law is a matter of social convention [and not positivist state law imposed from outside]….—p.579   And such a social convention which gives meaning to our life is often becomes a victim when it become a subject for scholars to study and change based upon their elitist ideology.2  Though such scholars too part of our society, yet their view most of the time prevails when crucial decision are taken by the govt. to form policies2a to govern vast majority of common people for whom such ideology often become a stumbling block than offering any support to survive.3  For example:

Positivism-centred modernist legal scholarship has at various levels systematically challenged and attempted to delegitimize non-Western laws such as Hindu law. The claim that such traditional laws, and particularly customs and religion, should have a rightful place in legal analysis and practice is still widely denied today.  Positivist and modernist pressures forcefully suggest that the only viable route of development in a rapidly globalizing world involves following so-called rational, secular Western models, shedding indigenous and local cultural, religious, and legal traditions as fast as possible (Rajan, Rajeswari Sunder (ed.).  Signposts: Gender Issues in Post-independence India. New Delhi: Kali for Women. 1999).  However, as the present study confirms in detail for Hindu law, such attempts to assimilate non-Western legal traditions to modern, Eurocentric models are not achieving their more or less hidden aim of wiping out the allegedly backward elements of non-Western cultures, religions and traditions.—p.576

            Every social system functions with its own inherent mechanism shpped by various values handed over through tradition.  And to help people to live naturally in their social system, it is important to include those elements that are not opposed to common good.  Ignoring this because of some prejudice and try to impose new system either from above or from outside will not help anyone.4  Such move will be ignored by common people and will become very costly to be implemented strictly by any authority.  This is proved through various laws imposed on Indians through various law reforms.  However as Menski scholarly demonstrates, our learned Indian Judges most of the time provided proper deterrent to save both the people and the justice.

Notes

1.         When I introduce myself as someone who teaches Indian law, the response is often that I must be a legal historical who teaches English common law as applied in India. Indian law, so goes the popular myth, is basically a corrupted form ofEnglish law.  Galanter (Marc) and (Jayanth) Krishna (‘Personal law systems and religious conflict: A comparison of India and Israel’. In Gerald James Larson (ed.): Religion and Personal Law in Secular India: A Call to Judgment.  Bloomington and Indianapolis: Indiana University Press, pp. 270-300. 2001:271) still write as though the Westminister model was operative in India. If scholars peddle such myths, how can one blame the wide public for being wrongly informed?—notes, 88.p.580

2.         What, though, are feminists and others doing if they insist, by reference to Manu and other ancient sources of alleged legal authority, that Hindu women are at all times subject to men’s control and supervision?  Ripping one verse out of an old text, presenting it as evidence of a whole legal system, is scholarly fraud and a form of feminist law-making in its most dangerous avatar.  Leading women are in this way telling their subaltern sisters that they are in need of help, while elitist scholars are somehow above most of such restrictions, but may still feel the pinch, for example when it comes to claiming property rights. … All too often, the feminist activist highlights her own role, and frequently that of her organization, in rescuing her less fortunate sisters from male oppression. This particular choice of feminist-cum-modernist methodology further disempowers women as a class and makes them dependent on the state’s benevolence and modernist lobbying.—p.584

2a.       Digging a little deeper, postmodern analysis finds that there is simply no universal agreement on the nature and concept of law itself. Modernist assumptions privilege what is called ‘legal positivism’, the view that law is law because a political (and hence legal) authority says so.  That explains partly how various forms of abuse of political and legal powers remain attractive to dictators large and small all over the world. The most recent writing on jurisprudence tells us, yet again, that even to ask ‘What is law?’ is wrong and misleading.—p.586

3. …The study of Hindu law has also suffered as a result of the pressures exerted by modern political correctness, directed against all forms of religion and traditional cultures. Hostile ideological premises have meant that studying Hindu law is now widely seen as a regressive activity….—p.581

4.         Current discourses about non-Western laws in various for a and in much of the modernist literature demonstrate that old prejudices about different civilizations and their comparative value are as strong as ever.¹⁰¹  As a result, (p.582) dishonestly biased and often excessively polemical debates highlight only the negative side of complex non-Western realities and discuss only positive Western elements.¹⁰² It is blatantly dishonest to behave as though only non-Western systems had problems with justice. Such biased assumptions then legitimize legal intervention from outside or from above, claimed to be necessary because somehow internal mechanisms and legal traditions are not equipped for the task.  Legal theory here becomes, all too quickly, a willing handmaiden for colonialist and other hegemonic interventions.—pp.582-83