Hindu Law (Beyond Tradition and Modernity)
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Hindu Law (Beyond Tradition and Modernity)

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Item Code: NAL075
Author: Werner F. Menski
Publisher: Oxford University Press, New Delhi
Language: English
Edition: 2014
ISBN: 9780195699210
Pages: 672
Cover: Paperback
Other Details 9.5 inch X 6.0 inch
Weight 810 gm
About the Book

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.

About the Author

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.


Abbreviations xiii
Preface xv
Part I
Historical and Conceptual Background
1 Introduction 3
Tradition and Modernity in Hindu Law 3
Towards a postmodern Legal Analysis 11
Hindu Law Beyond Tradition and Modernity 22
The Structure of the Study 29
2 Rising from the Ashes: Postmodern Hindu Law 37
The Perceived Decline of Hindu Law and its Postmodern Reincarnation 38
The Key Arguments of the Study 49
Moving Towards a Postmodern Condition of Legal Regulation 59
3 Antecedents and Concepts of Traditional Hindu Law 71
Theoretical Considerations: Orientalist Constructions of Hindu Law 72
Analysing Hindu Legal History 77
The Concept of Cosmic Order (rta) in Pre-classical Vedic Law 86
Dharma and Classical Hindu Law 94
Assisted Self-control and danda in Late Classical Hindu Law 107
Vyavabara and Informal Dispute Settlement 112
The Role of Custom in Classical Hindu Law 121
4 The Post-classical Evolution of Hindu Law and its Colonial Distortions 131
Post-classical Commentaries and Digests 132
Methodological Strategies to Harmonize Texts and Customs 136
Medieval Texts and their Purported Secularization 146
Medieval Hindu Law under Muslim Rule 152
The Impact of British Legal Administration 156
The Emergence of Anglo-Hindu Law 163
5 Origins of Modernity in Hindu Law: Emerging Discourses on Reformes and Codification 186
Debating Modernity: Legal and Ideology Challenges of Reforms 186
Early Colonial Debates on Codification and Hindu Law Reform 196
Late Colonial Reform Debates: The Role of the Hindu Elite 204
6 Contesting Modernity: Post-Colonial Evolution of Hindu Law 209
The Modernizing Process of Hindu Law 209
Setting the Debate for Reforms: The 1950s 212
The Onset of Realism: The 1960s 224
Legislative Counter-move: Reforms of the 1970s 234
7 Transcending Modernity: The Postmodern Reconstruction of Hindu Law 244
The Re-indigenization of Hindu Law: Statutory Precursors 245
Origins of Postmodernity: Judicial Reconstruction 246
An Evolving Postmodern Condition: Constitutional Reawakening 258
The Blossoming of Postmodernity 265
Part II
Substantive Hindu Law Beyond Tradition and Modernity
8 Hindu Marriage Law 273
The Traditional Hindu Law of Marriage 274
Conceptual Core: Unity in Diversity 276
The Socio-legal Status of Marriage as a Sacrament 278
Deconstructing Modernist Misconceptions 284
Hindu Marriage Law under British Rule 288
Modernist Reforms to Hindu Marriage Law 292
Modernist Agenda and their Problems 294
Limits of State Law and the Modernist Discourse 297
Contesting Modernity in the Courts 302
Postmodern Evolution of Hindu Marriage Law 306
Towards a Postmodern Discourse 307
An Emerging Postmodern Condition: Case Law Evidence 315
9 Child Marriage 322
Child Marriage in Traditional Hindu Law 326
Colonial Efforts to Curtail Child Marriages 334
The Emergence of Social Activism 335
Colonial Intervention in Early Marriages 336
The Ineffiecient Restraint of Child Marriages 339
Child Marriages in Independent India 345
New Statutory Reforms 346
Perceptions of Social Change 350
Reforms of the 1970s 354
Case Law on Child Marriages: Towards Postmodernity 358
The Postmodern Conditions of Child Marriage Law 365
Social Awareness in the Most Recent Case Law Postmodern Reflections 370
10 Polygamy 374
Traditional Hindu Law on Polygamy 377
Hindu Polygamy under British Rule 383
The Modernist Abolition of Hindu Polygamy 387
Reformist Agenda 387
Statutory Regulation of Hindu Polygamy 389
The Deficient Penalization of Hindu Polygamy 392
The Postmodern Scenario 406
Continuing Modernist Demands for Reform 407
Surrogate Debates on Muslims and Legal Uniformity 411
Limits of Modernist Intervention 417
Divorce 427
11 Traditional Hindu Concepts of Divorce 430
Reforms During the British Period 438
Modernist Divorce Reforms in Independent India 442
The Hidden Agenda of Hindu Divorce Reforms 443
Modernist Representations of the Statutory Scheme 449
The Reforms of the 1970s: Pushing the Limits 455
Postmodern Hindu Divorce Law 463
Backlash Phenomena: Refusing to Legislate Further 464
Modernist Despair and Postmodern Inklings 468
The Psycho-social Basis of Postmodern Hindu Divorce Law 471
Postmodern Judicial Activism in Divorce Law 477
12 Maintenance Law 484
  The Traditional Protective Framework 487
The Lull of the British Period 500
Maintenance Law in Modern India 504
Modernist Arguments for Law Reform 505
Legal Reforms of Hindu Maintenance Law 508
Secular Reinforcement: The Criminal Procedure Code 518
The Postmodern Condition of Maintenance Law 523
Modernist Critiques of Maintenance Law 524
Postmodernity in Judicial Social Engineering 535
Part III
Concluding Analysis
13 Postmodernity and Beyond 545
  Transcending Tradition and Modernity in Hindu Law 547
Postmodernity in India's Legal System 557
Postmodern Hindu Law as Non-western Model Jurisprudence 569
Deconstructing Modernist Discourses of Non-western Laws 576
Postmodernist Challenges to the Concept of Law 585
Hindu Law, Postmodernity, and Globalization 591
Table of Cases 599
List of Statutes 605
Bibliography 610
Index 640

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