Hindu Law (Beyond Tradition and Modernity)

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In this major work, one of the world’s leading authorities on the subject argues that, regardless of contestations to the contrary, Hindu law remains a living entity. Complex, essentially flexible, and constantly evolving, it has reached a stage of postmodernity.

The book closely examines theoretical and historical developments to show that Hindu law was never a code-based, positivist state law system. Challenging the core assumptions of legal modernity, as well as traditional perceptions, the author argues that Hindu law, custom, and cultural concepts continue to play an integral role in contemporary judicial reasoning and in the formulation of statutes.

This intensively research volume will be invaluable for scholars and students of law, gender studies, religion, jurisprudence, sociology, philosophy, as well as law professionals, social theorists, and discerning general readers.

Werner F. Menski is Professor, School of Law, School of African and Asian Studies, University of London.

This study should not read as an attempt to revive classical Hindu law or to promote any sort of hindutva agenda that claims universality as well as superiority over all rivals. The internal perspective of ‘Hinduism’ as a cluster of belief systems has always been marked by vast scope for dissent and disagreement, and the constructed uniformities of Hindu law and culture, whether ancient or current, do not match the complexities of reality, whenever and however perceived. As an academic endeavour to study Hindu law in its complex conceptual and historical dimensions, this book is not a political manifesto for a Hinduized India or the recreation of some Golden Past or ancient indigenous laws, but a case study of applied jurisprudence.

Since I am one of the very few remaining scholars of Hindu law in the world outside India, it appeared to be my professional duty to provide a fresh detailed analysis of Hindu law as it present itself today. The field has been unduly neglected, largely because of modernist assumptions about the growing irrelevance of ‘religious’ legal systems such as Hindu law. Developments concerning Muslim law have led to a growing realization that non-Western legal orders are not only relevant, but have also acquired increasing prominence in a plural, global world.

My approach and my findings will not please modernists, who still want to see the whole world governed by one giant uniform, but in reality Western style, ‘rule of law’. Rather, this book points to increasing legal pluralization and the never-ending process of legal interactions at different levels of formality and official standing, correlating with recent theoretical work about different forms of legal pluralism and cultural diversity. Today’s Hindu law (and also Indian law as a whole, but that is the subject of another study) contains elements from different layers of the past and the present. This legal reconstruction process never stops, leading today to the emergence of postmodern Hindu law. The present study confirms, therefore, that Hindu law has a temple of its own in the pantheon of comparative jurisprudence and is much more alive and versatile than most observers imagine.

But what is Hindu law? Given the lack of a universally agreed definition of ‘Hindu’, combined with its increasingly politicized bindutva significance, the term ‘Hindu law’ automatically conjures up many dangerous and dark meanings. In these troubled times, in which the outlook on the twenty-first century remains clouded by a worldwide upsurge of radical religious opposition to ‘globalization’ and the hegemony of Euro-American values, our understanding of Hindu law and ‘Hindu’ itself remain more critical and difficult questions than ever before. Yet they raise a whole cluster of poorly understood and hotly contested issues.

It needs to be stressed from the outset that Hindu law is, like African law and Islamic law, a family of laws rather than one single unit. There may be something like an essential conceptual core, but in the case of Hindu law, even that core has remained so flexible, diffuse, and internally diverse that we do well to think and speak of ‘unity in diversity’ rather than imagining a fixed, unified Hindu system. In various senses, thus, there is no such thing as Hindu law, and yet it exists visibly and invisibly, and in manifold manifestations, which now include the postmodern. Since Hindu law cannot ever be regarded as a strictly uniform law- rather it has always been characterized by enormous fluidity and internal plurality- the label ‘Hindu law’ must be taken to cover a large variety of quite different legal systems. Many of its rules are outrightly contradictory, incorporating not only high-caste Sanskritic elements, but also innumerable subaltern, local, and often less prestigious perspective. Given that the totality of Hindu law is so complex, it has become tempting for many writers to pick out certain aspects or rules as placative evidence of what Hindu law was or is, ignoring the multi-dimensional internal contests within it and, thus, the situational relativity of any rule or statement.

It is undeniable that the system of Hindu law has been held together by an identifiable underlying traditional conceptual framework, and in that sense must be seen as sharing sufficient internal coherence to be classified as a single unit, conceptually and historically distinct from other major world legal systems. At the same time, however, as much existing scholarship finds difficult to grasp, Hindu law has also always been a collection of socio-legal systems of parallel complexity, fluidity, and diversity, evading codification and, thus, the control of powerful men in human societies who perennially seek to dictate legal rules to all others. Forever defying such positivist ambitions and asserting against it the inexpressible diversity and sublimity of Hindu consciousness, ‘Hindu law’ exists and survives, albeit not strongly . In fact, it now predominantly languishes as a minor subject of study, often hidden under the label ‘personal law’, in the syllabus of Indian law schools. Hindu law also figures prominently in the public mind, but what does it comprises? It seems that various myths exercise a powerful influence in this field and that the subject is not only extremely complex, but also politically loaded.

In planning this book, it became evident that the simple collective label itself would remain useful. An exhaustive study of Hindu law, more so if combined with Indian family law, is impossible to write, even if one were to spend an entire lifetime on it. I hope that the modest result of quite limited endeavours presented here will spark off lively criticism. No doubt, some of the messages in this book will not please the guardians of certain vested academic and political interests, but that should prove no deterrent. Academic censorship needs to be resisted in this age of political correctness. If the textual concepts of ancient Hindu law as well as the realities of postmodern Hindu law are there for all to see and study, it should not be a matter of whether we like what we find or not. The ancient building of ‘Hindu law’ remains open for inspection and use. Hindu law continues to exist, even if it is distressingly complex for academics who would prefer the world to be simpler, or simply different. What matters above all, however, is what India, and I mean in particular the Indian state, as the major country in which Hindu law plays a central role in society, will make of its legal heritage and its present manifestations in the process of seeking to ensure at least a semblance of justice for well over a billion people- an enormous challenge that no liberal democracy in the history of humankind has ever faced.

The book could not have been written without years of study and the help of many people, including numerous bright students who challenged and probed from all kinds of angles, and thus helped sharpen the central arguments of this book. The novice or ignorant outsider often offers a sharp test for the professed expert’s ideas. We scholars so well to listen to our students, more so in applied jurisprudence classes than elsewhere perhaps, as the issues debated in a book of this kind concern most of us in some form, and in a very personal sense they are not merely an arcane subject of ‘Oriental’ legal studies. The present study on hindu law thus also contributes to the general legal literature, adding dimensions that tend to be ignored or overlooked in mainstream legal work. To have established legal notions questioned and cross examined in debates never loses its fascination for a teacher of non-European laws who, like myself, straddles the global community of major legal systems with one leg firmly in Europe and the other in Asia. We may talk a lot about fatwas, the guru’s word as law, or the ‘rule of law’ in various garbs. At the end of the day, however, and perhaps in South Asian family laws more so than elsewhere, what is right or wrong remains a matter of personal choice and individual conscience, within a culture-specific context, informed by awareness of dharma or shariat, however subconscious and inarticulate that may be. As this book argues, the postmodern study of Hindu law, and of Hindu family law in today’s India and South Asia, needs to re-focus on the concerns of people as individuals who are not only part of families, large and small, of clans, local societies, and nations, but ultimately the universe in a way that Hindus and those who share their universe perceive it.

But who knows about such perceptions; indeed, who wants to know? Even before publication, a book of this kind faces dismissive condemnation as ‘stuff we do not want to know about today’. Given widespread ideological hostility to anything ‘Hindu’, it is no secret that the ivory tower of formal studies on Hindu law has been in danger of becoming a ghost tower. As one of the few remaining Hindu law scholars. I submit with some urgency that Hindu legal studies remain centrally relevant to South Asian scholarship as well as comparative legal studies. Hindu legal studies and related fields need to be filled with fresh life through vigorous conceptual analysis that wipes the dust off the sheets and layers of Orientalist and colonial constructions and shakes the equally dated modernist cobwebs of scholarly politicking about ‘traditional’ Hindu concepts and their submission to the supposedly superior authority of the modern secular law. Yet, as indicated, this should not be read as an aggressive advocation of bindutva in its loaded political sense; rather it must be regarded as a much-needed push for the acceptance of explicitly postmodern scholarship which, while not claiming to be value-free, aims to interrogate and analyse as fairly and comprehensively as possible the relevance of ancient Indian legal concepts for the contemporary world and and its problems. Sadly, writing a book on Hindu law will inevitably be seen as conservative and subversive Hinduizing, but that cannot distract from the need to understand the subject for the very central role that it plays in today’s development processes in India, South Asia, and elsewhere. I hope that the present study and its arguments about postmodernity as an ancient as well as contemporary phenomenon in South Asia will inspire others to take up various aspects in the study of Hindu law- for the field is vast, and serious scholarship remains pitifully slow in covering it.