20/06/2004
Beyond
Legal Pluralism
A
Dynamic and Intercultural Approach to Law in India
Christoph
Eberhard
Faculs
universitaires Saint Louis, Bruxelles
Laboratoire
dAnthropologie Juridique de Paris
(first draft of a
paper published in
Indian Socio-Legal Journal XXXI,
2005, p 131-148)
No purely
theoretical solution can ever be adequate to the problem of pluralism ; and
this almost by definition. A problem which has a theoretical answer is not a
pluralistic problem. () Pluralism begins when the praxis compels us to
take a stance in the effective presence of the other, when the praxis makes it
impossible to avoid mutual interference, and the conflict cannot be solved by
the victory of one part or party. () The problem of pluralism arises only when
we feel we suffer the incompatibility of differing worldviews and are at
the same time forced by the praxis of our factual coexistence to seek survival.[1]
This whole
publication illustrates this insight : pluralism is before all linked to
praxis. It is not merely an intellectual problem. It may thus seem surprising
that in our conclusion we propose to go beyond legal pluralism and thus to
engage in some kind of intellectual play. Have we not underlined the usefulness
of legal pluralism in our introduction, highlighting that At this stage of the growth and acceptance of
the concept of legal pluralism, an aspiration can be expressed that increasing
awareness of its utility will ultimately serve the purpose of enriching our
general understanding of law and of the relationship between law and society in
all legal systems, having a colonial past or not (p 5) ? What could be
the use to challenge, an approach in terms of legal pluralism, which indeed
serves the purpose to raise the awareness of the legal community (scholars and
practitioners) to the complexities of the law and society relationships ? And
to point thus to our praxis in trying to understand and put into perspective
Law in action ?
Let us be clear right from the start. As the
subtitle of this contribution suggests, we want to emphasize the need to focus
increasingly on the challenges of dynamic and intercultural approaches to Law[2],
which could then also lead to what we would term a genuinely pluralist approach
to Law, and which could maybe also contribute to a better understanding of
situations of legal pluralism. The point is thus not so much to disqualify
approaches in terms of legal pluralism and to challenge them. It rather
consists in complementing them with a different perspective which is still
dealing with the core question of pluralism, but whose aim it is, rather than
putting the stress on a recognition and a description of an existing legal
pluralism, to draw the epistemological, and maybe even existential, implications
of the recognition of this legal pluralism. Is it not that what we construct
as situations of legal pluralism points to the underlying necessity to open up
towards a more plural view of social reality and of Law ? Maybe this new shift
of perspective will permit to shed some light on what appears as some of the
blind spots of the present work. It may thus also open up paths for possible future
researches. The endeavor seems all the more interesting as classical
conceptions of Indian Law seem to have been fundamentally pluralist. Thus in
the Indian context, an approach which may appear as very new or even
revolutionary to a modern lawyer, may in fact reveal a continuity with
preexisting understandings of Law, although the classical Indian legal pluralism
is obviously different from the present situation. The discussion of a
pluralist approach to Law from an Indian perspective may thus also permit not
only to highlight the challenges of legal pluralism in India, but also to
underline the contributions of the Indian tradition in the intercultural
dialogue on Law or the constitution of more intercultural theories of Law.
It seems to me,
that many contributions to this publication although explicitely dealing with
legal pluralism, do in fact also, at least implicitely, deal with a pluralist
approach to Law, as I will expose it in this article. As Ajit Menon points out
in the first contribution to this volume (p 4) customary law is not necessarily a well articulated phenomena
with clearly defined rules of use (as opposed to rules in use) and procedures
for monitoring and enforcing these rules. A more open-ended approach to
customary law traversing time is used despite the fact that it might erase the
distinction between law and other forms of normative ordering. In terms of
method, this customary law (in the absence perhaps of clearly defined rules of
use) can be disentangled by undertaking a study of land use practices (rules in
use). Examining everyday agrarian practices, the cultivation of land, the grazing
of cattle and the collection of forest produce will help understand how
resources are allocated and for what purposes. These practices constitute the
legal domain though there are few signs of rules or an authority enforcing
it. This shift of perspective where we try to understand Law as legal
phenomena from the point of view of the whole social reality and which thus
seems to be more concerned with a recognition and an understanding of the
plural nature of the legal domain rather than of the coexistence of legal
orders seems to be present throughout this publication. It is closely linked
to the need expressed in many papers to do justice to the dynamic and
intercultural aspects of legal reality, of which state law or modern law
constitutes but the tip of the iceberg. It is
true, as Satyapriya Rout (p 4) points out that One of the important
characteristics of legal pluralism is that instead of viewing law as a static
phenomenon, it conceptualises law as a dynamic force, which can be modified and
negotiated to suit into situations concerned. . Thus a dynamic approach to Law is in no way a novelty of
what I will call a pluralist approach to Law it just constitutes an explicit
shift of perspective which remains implicit in many writings and which is well
illustrated in this quotation : while we start to pluralize our view of
law by recognizing legal pluralism, we are then led to give a new meaning to
Law, a more plural, dynamic and complex meaning. And also a meaning which will
have to take into account what cultures who do not necessarily think in terms
of law have to say about the reviewed definition of the
legal field , thus leading us even further in our pluralization
of legal pluralism. As Amarpal Singh noted in his article (p 4) With this
broad understanding of legal pluralism, when we turn to the Indian paradigm,
the scene is peculiarly pluralist, though glossed over by the common law system
of English origin . But this
endeavour towards a pluralization, and interculturalization, of our theories
should not be understood as a postmodern deconstructive endeavour. If
deconstruction is a necessary moment of our reflexion, the real challenge seems
to lie in the proposal of renewed theories of Law which build on an additive
logic, meaning a logic that tries to do justice to all the encountered
phenomena without reducing their originlaity in an undue manner. It is such a
deconstructive / reconstructive approach that I will try to expose in the
following pages.
As a starting
point, I will discuss some elements presented during the XIIIth congress of the
Commission on Folk Law and Legal Pluralism held in Chiang Mai in 2002 on the
limits and contradictions of analyses in terms of legal pluralism, or more
generally of anthropological approaches to Law which I will put in dialogue
with recent approaches to pluralist approaches to Law, especially from the
Laboratoire dAnthropologie Juridique de Paris (LAJP)[3]
and the Intercultural Institute of Montral (IIM)[4].
This choice may seem arbitrary, but despite the inherent interest of the
material presented at this conference, we must acknowledge that the latter
constitutes the starting point of the present dynamics. It thus seems useful to
go back to the roots, in order to take the reflexions further and thus try to
inscribe our endeavour into a cumulative logic. I will then move to a
presentation of how questions of Law and of pluralism can be put from an Indian
perspective. This will permit to interculturalize our frame of understanding
and to open up doors for genuine intercultural dialogue and will lead to the
proposal of a shift from analyses in terms of legal pluralism to the challenge
of an intercultural and dynamic pluralist approach to Law. The latter is
especially anchored in the approaches of the Laboratoire dAnthropologie
Juridique de Paris and of the Intercultural Institute of Montral. The
presentation will thus also serve the purpose to continue to familiarize an
Anglophone audience with Francophone approaches to the anthropology of Law[5].
What are the stakes
and the limits of legal pluralism ?
The main insights
we would like to discuss here are those presented by Franz von Benda-Beckmans
review article on the state of the art in the field Whos afraid of legal
pluralism ?[6]. The
fundamental question for Franz von Benda-Beckman is that of the definition of
law[7]
for the purpose of its anthropological study. He introduces his reflexion with
a clarification of what one can understand and of what one should expect from
analytical concepts. () in most societies, and probably in all contemporary
societies, there is a great complexity of cognitive and normative conceptions
that constitute forms of legitimate social, economic and political power and
organization ; provide standards for permissible action and for the validity of
transactions, as well as ideas and procedures for dealing with problematic
situations, notably the management of conflict and disputes. () While social
and legal scientists perceptions of such complexity and its implications for
further conceptual, methodological and theoretical ideas vary significantly, we
do not have to prove to anyone that it is there. The question is : How do we get to grips
with the complexity ? With which categories and concepts can we make sense of
it, conceptually and theoretically ?[8].
It appears clearly that legal pluralism is nothing more than a useful concept
in order to try to get to grips with the complexity of social reality when
looked upon from the point of view of its normative characters. It is also
not an all-encompassing concept and does not seek to be the ultimate and
complete explanation of the law and society relationship. As Franz von
Benda-Beckman notes, The concepts of law or legal pluralism are only a
part of our wider conceptual and analytical tools.[9]
We could add that there may be cases in our research where we may want to avoid
these terms. Indeed the critical argument that terming phenomena which are
non-state law, law, or to talk about law in societies which do not have
translations of this word as they share in another worldvision, should be taken
seriously. If indeed, we place ourselves on the stage of ethnography or even
ethnology[10], we may
prefer to avoid to impose foreign concepts on the functioning of a society, and
we may prefer to render the ordering of this society through indigenous terms
and their explanation. But if we want to move towards the general comparison of
human experiences, we will have to construct a frame of comparison. It is clear
that other societies may not have chosen the same kind of frames, and that
every comparison is rooted somewhere there can be no non-located comparison.
And this location is not only linked to the worldvision in which the person
comparing is rooted but also to his aim, to the perspective he is taking in
order to understand a particular thing[11].
But, does this mean that we are irremediably drawn into an all dissoluting
intersubjectivity where nothing can ultimately be known ? Definitely not. If we
do recognize the inherent limits of our endeavor it does very much make sense
to ask how different societies do put the questions and answers to what we
approach as law in our societies and this may lead us to have to revise our
taken for granted assumptions about what law is, and may lead us to review our analytical concept of law,
which it seems, will necessarily have to be pluralized in order to be able to
come to grips with the observed reality - as its modern understanding is
essentially uniformizing.
It should be
noted that on a level, not foreseen by Claude Lvi-Strauss, it could again
become necessary to leave the frame of law or of legal pluralism. Indeed
legal anthropology, and anthropology in general will always partly remain an
opening up of the western scientific window towards other cultures which can
permit us to get more adequate knowledge on human beings from a Western point
of view. But it cannot be ignored that cultures with different worldviews have
developed different epistemologies, and different ways of understanding and
organizing their lives. And one should take seriously the aim of these cultures
to also propose general theories on how we live together. Today it does not
seem sufficient to only open up the Western window. It must also be recognized
that there are diverse windows, and that all these windows cannot be reduced or
integrated into one unique window. There thus emerges a need for intercultural
dialogue, to which we will return in the next section.
But let us now
come back to Franz von Benda-Beckmanns analysis. The four main epistemological
issues he raises are 1) which criteria permit to identify something as being
legal ? 2) How do we deal with difference, meaning how do we indicate the sets
of criteria in which these phenomena vary ? 3) What type of legal complexity
can be termed legal pluralism ? Does legal pluralism require the existence
of more than one legal system or order, or are legal mechanisms sufficient,
and can one speak of legal pluralism within one legal order?[12]
4) And perhaps the most important yet least discussed question : what does
existence or co-existence mean ?[13]
We can see that
the questions on legal pluralism automatically lead us to a reflexion on law
and on its definition. We can note that comparative lawyers also start to get
more and more aware of the need to link their comparison to an explicit legal
theory : indeed how could we compare something if we do not know what ?[14]
Let us see what
insights Franz von Benda-Beckmann proposes. He starts by giving a general
definition of what he calls law. He then deals with the empirical variations of
this cover term and finally puts the question of the relationship between law
and the state.
For Franz von
Benda-Beckmann legal phenomena are objectified cognitive and normative
conceptions, qualified by a number of specific criteria () Law is a dimension
of social organization consisting of cognitive and normative conceptions for
which validity for a certain category of people or territory is asserted. These
conceptions recognize and restrict societys members autonomy to behave and
construct their own conceptions. Through legal conceptions situation images of
elements of the social and natural world (persons, organizations, natural
resources, social relationships, behaviour, occurrences) are constructed,
evaluated and given relevance. Relevance means that definite consequences are
attached to and rationalized by reference to the legal categories of relevance
: a) permissibility, b) validity, and c) simple relevance. Law becomes manifest
in two major manifestations, a) as general rules and and principles that
evaluate typified situation images for typified consequences as conditional
if-then schemes, and b) as concrete law that evaluates concrete situation images
for concrete consequences in terms of as-therefore rationalization.[15]
This being said the question which arises is the one of the actual shape these
phenomena take in human societies. Franz von Benda-Beckmann thus turns to the
question of legal variations. For our purpouse, we will directly turn to his
thoughts on the variation in the existences of law which he presents after
the morphological and as part of the functional variations[16],
and more especially to the question of what happens to law in plural
contexts. It is in these contexts that the self-evident representations of what
law is, get challenged as there exist different competing laws. ()
processes of the reproduction of law usually are more explicit under conditions
of legal pluralism, when people are aware of alternative normative repertoires
and/or procedures in which these can be used. Of course also in the context of
legal pluralism, different participants and decision-makers may refer to the
same law. But they often mobilize different legal repertoires against each
other (folk law against state law, religious law against folk or state law
etc.). They may also accumulate elements of different systems or compound them
to create hybrid forms. But generally the condition of legal pluralism
challenges the exclusiveness and self-evidence of any single normative system.
One is no longer concerned with the question of wether or not to reproduce
elements of the law as against non-legal modes. Choices between legal systems
are thinkable. Orientation at and invocation of one of the alternatives
therefore require an explicit justification. Reference to the rules of one
system () then often get the character of a political and ideological
statement. One not only opts for a limited number of rules that should apply to
a problematic situation, but for the whole sub)system of which these rules form
part. And through this reproduction of one subsystem in view of alternatives,
also the relationship between the subsystems is reproduced.[17]
Although
favouring an analytical concept of law which unlinks the relationship between
law and the state, it appears that an underlying assumption of his approach
seems to be a coexistence of legal systems understood as normative systems.
What seems to be understood by a normative system is a set of norms which can
be clearly identified and which would apply if the specific system is chosen
for conflict resolution. This implicitely refers to the state-law model a
continental European lawyer may spontaneously have in mind : a collection of
general and impersonal norms which preexist a conflict, which are linked
together in a systemic way and which only need to be applied in order to solve
conflicts or to put into forms peaceful social reproduction. Choice of one
legal rule entails the choice of the whole system or subsystem as Franz von
Benda-Beckmann writes. Also in a broader understanding of law as he has exposed
above, not only legal systems as understood from a strictly positivist
lawyers perspective are taken into account. It is interesting to underline his
statement One is no longer concerned with the question of wether or not to
reproduce elements of the law as against non-legal modes. Choices between
legal systems are thinkable.[18]
There is an interesting shift in these two sentences, where it seems that in
situations of legal pluralism non-legal modes suddenly turn into legal
systems. We find this shift very interesting and feel that it synthesizes very
well the whole challenge of the opening up of our concept of law once we try to
understand the legal game in a plural setting and in all its complexity.
Nevertheless, although turning the non-legal which displays legal
characteristics for the legal anthropologist into a legal system permits to
seriously take into account these realities without disqualifying them a priori
from the analysis, it remains that the way it is done seems to mould it into a
very state law informed form. And in my mind, the fact to also open up the
analysis to subsystems or even to an analysis of clusters of law does not
change this predicament very much[19].
Although an analysis in terms of the contexts of law and of legal clusters
seems to enter into a more dynamic and processual, and also more blurred
approach to the legal game than a classical systemic approach, it is clear
that it remains within a systemic analysis. Indeed for Keebet von
Benda-Beckmann () the definition of a problem invokes different sets of legal
concepts, norms, procedures, and institutions () It is implicitely assumed
that the contexts in which problems are defined are fairly clear, if not for
the researcher, then at least for the actors involved. This is not always the
case : legal contexts may be clear, but they are often diffuse, contested, and
they change over time. Moreover it is not always clear what the precise scope
of relevant norms is in a particular context. This paper explores how legal
contexts are shaped, used and changed. I shall argue that understanding legal
contexts requires insight of the systemic character of legal systems.[20]
For the moment let us content ourselves with a critique Monique Nuitjen has
presented to this kind of approach during the Chiang Mai conference in her
presentation of a force fields approach in legal anthropology : () the
limitation of these perspectives, in my view, is the belief that systems of
norms form the basis of social order. Even though they recognize that rules can
be manipulated, they still believe in norms as the basis of social order. However,
in my view, orders are not necessarily rule or norm-based. They are based on
many different elements of which rules wether state rules or customary rules
only form a certain part. In my view, the search for normative orders can
give a distorted and too schematic view of socio-political life. Furthermore,
too little attention is paid to the fact that struggle and power relations are
central components of the patterning process.[21]
This critique could maybe also be applied to Gordon Woodmans approach, who,
although questioning the possibility of legal systems in an approach of legal
pluralism[22] still
proposes to analyze situations from the point of a view of the application of
multiple laws in a given context to given actors, with reference to Jacques
Vanderlindens revised concept of legal pluralism[23].
It is important
to note that the different perspectives on legal pluralism or on legal
phenomena may not be mutually exclusive and are often informed by the diverse
field experiences or areas of interest of different legal anthropologists[24].
The following developments advocating a shift from legal pluralism to a
pluralist approach to Law should thus be seen as complementary to the
developments exposed until now. If we consider that they have a wider scope,
they seem especially relevant for the Indian context, whose whole underlying
worldview is fundamentally pluralist.
It may seem strange to be
pointing out some specificities of the Indian worldview with regards to Law in
the conclusion of a whole issue of the Indian Socio-Legal Journal especially
dedicated to legal pluralism in India. Is that not with what we should have
started ? Or is it even necessary as the whole work has been carried out in an
Indian context ? And am I, a foreigner really the most competent person for
doing this ? Or is the purpose not before all to enter into a potentially
fruitful dialogue between Western and Indian concepts of pluralism, thus
pluralizing our approaches to pluralism which would not be truly pluralistic if
we could in the end reduce them to a new kind of unity ?[25]
My aim here will be to show, to what extent it
seems that imposing a vision of legal pluralism on the Indian legal
reality, may be a way of missing Indias original relationship to pluralism and
to Law, which can in my eyes better be captured in the view of a pluralist
approach to Law. What I will thus try to do here is an intercultural opening
up of the question of legal pluralism via an Indian perspective. This opening
up will then lead to propose in the next section a model or rather a method to
approach Law in a plural way which can complement the former approaches in
terms of legal pluralism.
In the vision of legal pluralism exposed above we
can notice a few underlying assumptions : 1) Law is seen as general and
impersonal norms, which can be identified and abstracted from other domains of
life. The approach is thus an idealistic approach. These norms also have a
tendency to appear in an organized form, as legal systems, and thus have a
systemic and rational character. 2) Law or the legal system is seen as
something external which imposes itself onto people and situations. One has to
submit to these laws or legal systems in order to uphold order. The law or the
legal system is thus superior to those it is supposed to regulate. 3) Law or a
legal system aim for exclusivity : they claim the monopoly of ordering,
controlling social reproduction and conflict resolution. This exclusivity is
linked to their external and superior character : there is no place for a
concurrent legitimate ordering which would stem from either groups on a lower
level within the system or from individuals. 4) Although this is not clearly
apparent in the presentation above, it stems from the inscription of analyses
of legal pluralism in the frame of Western social sciences, that the analysis
centers on social phenomena, e.g. relationships between human beings living
together in societies. The approach is thus mainly anthropocentred and does not
take into account cosmic or divine realities. Legitimacy of law is thus most of
all seen as legitimacy of human made institutions and their implementation,
which puts focus on the relationship between law and power (politics). Transcendental
or non-human rules are not sources of law or only become so if they are written
down and put into legal form by humans. The approach is also rather based on an
analysis in terms of rights than in terms of duties. 5) Legal pluralism arises
or exists because in actual life there is conflict or at least coexistence of
different norms or normative orders which may be in competition for legitimacy.
It is a pluralism of basically monolithical entitities (laws or legal systems)
which overlap, clash, partially intermingle, avoid each other etc.
Let us now have a look at a classical Indian
outlook on Law, centered around the idea of dharma, and contrast it with this
view. In order to do so we will have a look at classical Hindu Law. In doing so
I do not wish to reduce Indian reality to Hindu reality, especially if we
keep in mind that Hinduism is also a concept with monolithic tendencies and
which has been imposed from outside on a basically pluralist reality[26].
I also do not intend to say that modern legal reality should again be attuned
to classical Indian Law and that a golden age has to be recovered. Times have
changed and many articles of this issue of Indian Socio-Legal Journal have
highlighted the complexities of contemporary legal realities between more
traditional and more modern, or even postmodern thrusts, and between diverse
dynamics and logics on more or less global or local scales and on more long or
short term periods. But many articles of this issue have also highlighted the
fact that traditional conceptions of Law do continue to inform the way that
Law in India is thought of and practiced as well by the state and its officials
as by the citizens. So while dealing with classical Hindu law, what seems
important to us is to highlight an attitude towards Law which actually has
informed the way the law from colonizing powers was received on the
subcontinent and which continues to inform the way even modern Law is nowadays
perceived and practiced in India[27].
In order to do so, we will especially build on Werner F. Menskis study Hindu
Law : The search for appropriateness[28].
1) First of all it is important to note that if
law is the central concept in Western societies around which social
organization is structured, other cultures know different concepts which can be
seen as homeomorphic equivalents[29]
to law, meaning equivalents that assume a similar function in the different
cultural context as law does in our cultural context[30].
The Indian homeomorphic equivalent to law is dharma[31].
It should be noted that starting from the Indian dharma, we may find religion
as a European equivalent. There is thus no symmetric equivalence and the notion
of dharma includes realities left aside by law and vice-versa. Dharma is a noun formed with the suffix ma from a root dhar or dhr. The root expresses actions such as to hold, bear, carry, maintain,
preserve, keep. Hence dharma
is the way in which, or the means by which, one holds, bears, carries, or
maintains, and, in accordance with semantic development common in Sanskrit, it
means not only the way of
doing these things, but also the way of doing them. Dharma, then, is the way in which one ought to hold, bear, carry, or maintain.
On a cosmic level, dharma
is the way in which one maintains everything, the way in in which the cosmos or
the balance in the cosmos, is maintained. At the micro level, dharma is the way in which every constituent element
of the cosmos contributes its share to maintaining the overall balance. Each
element has its own dharma,
its svadharma. As long as
each element of the cosmos performs its specific svadharma, the overall balance does not suffer. As soon
as an element, however, deviates from its own dharma, that is, commits adharma, the balance is disturbed.[32]
We can note that although dharma is a universal concept, it insists on diversity by recognizing that
each element of the whole must follow its own dharma or svadharma in order to contribute to the overall dharma. 2) Thus it may appear as less surprising that
the most striking element of Hindu law throughout has been its unlimited
diversity and flexibility, which observers have far too often reduced to a few
basic items, and have taken out of context. Hindu law strongly emphasizes the
rhetoric and practice of plurality, diversity, and of relative justice,
displaying tolerance almost to the point of selfless extinction () Legal
diversity forms such an essential part of Hindu legal philosophy that
uniformity of legal rules can be seen as a manifestation of injustice ()[33].
3) Dharmas foundation and
its sanction are religious, but it is essentially social in the sense that, in
a social order visualized as one with the natural order, the individual who
obeys its precepts performs a duty which is as much social as religious. ()
for authors committed to the religious significance of actions, societys
essential end is the realization of dharma, when each individual can put his duties into effect. So their
structure of law has dharma
as its axis. But even in India religious aspirations do not monopolise all
human activity. () Hindus contrast with dharma (which is the good) both artha (the useful) and kama (the pleasurable) which also motivate human
behaviour[34]. 4) Besides
a recognition of a pluralism and relativity in the notion of dharma which is linked to its situation-specific
spirit, there thus appears another factor of pluralism. Human life is not only
seen as the reflexion of a perfect dharmic order in the real world. Artha and kama also have
their word to say. The view of a dharmic order cannot be equated to modern
visions of order on which modern Western law is based. Indeed in the latter,
order is equated to rational transparency and organization. The social ordering
of society should reflect an abstract rational order and the legal system or
universal law is thus seen before all as a means of uniformizing life according
to the standards of Reason. It appears as a cruisade against chaos, which
seems to be the modern perception of pluralism, and against ambiguity[35].
In the Indian perception we do not find the same idea of an abstract dharmic
system which would have to impose itself on society as the very systemic and
abstract nature of such a system is incompatible with the notion of dharma,
although one can observe, since more or less a century tendencies towards an
essentializing of these conceptions which do lead to very essentialized
outlooks on Hinduism which come close Western systemic views[36].
Thus living laws have always been recognized and ways of articulating it with
the general notion of dharma
had to be found. While the classical period undoubtedly placed a duty on every
individual to contribute to the maintenance of order at any one moment, the
precise nature of that duty depends on social context. This is evident from the
complex concept of varnashramadharma, the duty of an individual according to caste and stage of life () In
seeking to circumscribe dharma for individual cases, important questions must have arisen about the
relationship of the various local and family customs and the smriti rules, especially about the relationship
between custom and dharma
and, at a deeper levelbetween individual discretion and divine Order. () In Manusmriti
2.6 and 2.12 () we find reference to four sources, which tells us a lot
about the living Hindu law : The whole Veda is the first source of dharma, next smriti and the virtuous conduct of those who know
(the scriptures well), also the example of good people and finally the
individual conscience. The Veda, the customs of good people, and ones own
satisfaction they declare to be visibly the fourfold means of defining dharma.[37].
If the first two sources of law are not too problematic to grasp from a Western
legal point of view, a few words should be said on the last two. Sadacara, the third source of dharma can be translated as model behaviour. I will
follow here Menskis more anthropological than philosophical approach for whom
() we should look upon sadacara as the major source of dharma, and thus of Hindu law () in the real
life of almost all Hindus, recourse to scriptural was then (as it is now) a
matter of secondary importance, a kind of last resort. There is no disagreement
that sadacara can refer in
various ways to custom, better perhaps good custom.[38]
As for the source of dharma in individual conscience it should be clear that we
are not in a modern individualistic context with a completely abstractly
autonomous will. As Raimon Panikkar puts it, in the Indian Worldview the human
being is a knot in the web of Reality[39],
he is basically a being interlinked with the rest of reality towards which it
rather has duties than rights. Reference to the individual consciousness must
be understood in the sense that it is in the individual that cosmic dharma
meets with a specific situation and has to be turned into svadharma, the
appropriate action in a given space and time and constellation of facts[40].
Thus not anything goes. 5) Law in an Indian context thus seems to have a
plural nature, and may be seen as resting on three main foundations instead of
only one consisting in general and impersonal norms. The following insights of
Menski constitue a perfect introduction to the plural approach to Law which we
will develop in the next section and which also emphasizes the fact that legal
pluralism is not just a situation or more or less conflictual coexistence of a
plurality of same style law or legal systems, but that Law is a pluralistic
phenomenon which is grounded in, at least, three different fundamental
mechanisms. For Menski, since sadacara should be primarily based on social norms, the Hindu texts would have
to remain a residual source for it if evidence of custom was available. This
confirms that the idealized self-controlled order of Hindu law was primarily
achieved by two types of internal self-regulation, either through an invisible
mental process (asking ones conscience) or through consultation within the
immediate social environment. Both might never strike us (and did not appear to
H.L.A. Hart) as a legal process if we remain fixated on formal legal methods.
If we phrase this discussion in terms of dispute resolution, we see again that
the state, and any formal sources of law, play at best a peripheral role in
classical Hindu law, which remains premised on the supremacy of self-controlled
ordering processes and thus relies heavily on customary laws.[41]
Building on these
insights, let us now move to the presentation of a pluralist approach to Law
such as it has been developed at the Laboratoire dAnthropologie Juridique de
Paris (LAJP)[42] which will
be complemented by the opening up of a truly intercultural and pluralist
horizon such as advocated by Raimon Panikkar and the Intercultural Institute of
Montreal.
At the LAJP legal pluralism has never
really constituted a specific research area, although it is obvious that the
question of pluralism was always present in its research. Indeed from the
moment where one leaves the legal systems point of view for the actors
perspective, one cannot but be confronted to the inscription of the actor in
multiple networks[43],
legal fields[44],
semi-autonomous social fields[45]
or worlds[46]. As for the
question of the definition of Law and the link between legal anthropology and
theory of law it was very explicitely stated in a seminal article for our
Laboratory written by Michel Alliot in 1983 and which deals with the
prerequisites of a non-ethnocentric definition of Law. For Michel Alliot, Whoever wants to
understand the form and the meaning of the legal institutions of a society has
great interest not to relate them to the institutions of his own society - the
connection would be superficial - but to the universe of the society in which
he observes them.[47].
He thus proposes a definition of the legal phenomenon which is emancipated
from the link with the state, a specific set of norms or a particular
rationality and which, he argues, can be found in all societies: Its
generality stems from the fact that it is in the nature of man and of society.
Being, is struggling, individually or collectively. () And the struggles of
its members are not without danger for the group. In the domains a society
considers as vital - and thereupon every society has its own conception- its
existence is only possible insofar as its members control, to the extent they
can, these struggles or at least the practices that result from them. Living in
society, is therefore not only struggling, it is also agreeing on the
legitimacy or the illegitimacy of these practices and on the consequences that
shall be given to them. Social life calls for consensus. The phenomenon is
general because it is linked to the nature of the individual (struggle) and to
the requirements of life in society (consensus) . (...) The law of a society is
thus ordered around the limits of the spheres of action of all the domains it
considers as vital : it is at the same time consensus on these limits and
practices, aimed at, or succeeding in, confirming or displacing them. Thus
defined, law is not linked by its nature to the existence of a state, nor to
the formulation of rules, nor to the recognition of its rationality.[48] Although the article also tackles
different issues we will focus on one of its proposals, namely the idea of
legal archetypes. As we have already noted above when we talked of dharma as an
Indian homeomorphic equivalent to Western law, Law is always linked to a
certain worldview, a certain way to envisage the order of the universe and of
society, a certain mythos[49]. Alliot illustrates this by presenting
three different legal archetypes. The first one is the archetype of
identification, exemplified by ancient China. It is complemented by a logic
of self-improvement through the respect of rites and by a logic of
complementarity of opposites (yin and yang, li and fa, rites and law). The
second is the archetype of differentiation exemplified by ancient Egypt and animist Africa. It is
complemented by an autocentered logic which leads those societies to value
internal regulation over regulation coming from outside, and it also share in a
logic of complementarity of differences, although usually more than two. The
third is the archetype of submission exemplified by Islamic and Western
civilization. It is complemented by a logic of deresponsibilization of society
itself in favour of an exterior entity and which thinks in terms of opposites
excluding each other. These archetypes have bee complemented since, introducing
for example what I have called in respect to the Indian experience an archetype
of articulation which articulates the elements of these three archetypes. But
we will focus on them as they have turned out to point to three main
foundations of Law, which tienne Le Roy has taken as the basis for his theory
of multijuridisme
or multilegalism[50], and which
we have already encountered at the end of our last section. Multilegalism is
not so much about the plurality in a same space, or even person if we think of
Jacques Vanderlindens new legal pluralism[51],
of laws or legal systems. It is not so much about pluralism of legal contents.
It rather points to the pluralism of the legal phenomenon itself which is made
of different building blocks which interact but are valued differently in
diverse cultures in a general way, but also in diverse concrete situations. The
archetype of submission has pointed to an imposed patterning of society via
especially general and impersonal norms. The archetype of identification rather
pointed towards an accepted ordering of society, where Bourdieus habitus or
systems of lasting dispositions for action are prevalent. The archetype of
differentiation revealed a more negotiated patterning of social relationships,
where what is privileged is negotiation in reference to shared models of
conduct and behaviour. The channel for the first is rather norms linked to a
specific power (e.g. the state), for the second it is education and for the
last it is custom[52].
As we can see we find here the Indian sources of Dharma, the written
authorities, the good custom, and the upproval of ones conscience. But these three feet of
Law, should not be frozen they are walking in order to reproduce society or
solve conflicts. As Sally Falk Moore noted process is not only change Processes
of regularization include all the ways in which conscious efforts are made to
build and/or reproduce durable social and symbolic orders. () The continuous
making and reiterating of social and symbolic order is seen as an active
process, not as something which, once achieved, is fixed. The view is taken
that existing orders are endlessly vulnerable to being unmade, remade, and
transformed, and that even maintaining and reproducing themselves, staying as
they are, should be seen as a process. [53]
In that line the three feet of Law are just a photograph permitting to see the
different mechanisms at play in their originality, but real life is the film,
where we move from a recognition of alterity to its complex and dynamic
interactions. That is why in order to understand the legal game in a given situation,
tienne Le Roy advocates to play the game of laws which consists of ten
squares, the last being the square of the rules of the legal game that the
research has been able to identify in a given situation. As I have already
presented this approach in a former publication in the Indian Socio-Legal
Journal[54],
let us just briefly remind its basic traits here :
The game of laws is a model of a processual approach
to Law which has emerged through research of the Laboratoire danthropologie
juridique de Paris in the domain of African land law and agricultural reforms
and for research in the domain of the justice of minors before being presented
as a more general theoretical framework.
It privileges two essential poles : the point of view of the observer
and the individual and collective goals that are sought to be achieved. It
focuses on the dynamic character of Law and thus takes further and complements
Michel Alliots more structural model of the legal archetypes.
The model is presented in the form of a jeu
de loie, a French game
similar to the British Snakes and Ladders game, with ten squares leading to
the rules of the social game, and on which players do not move by throwing
dice but by moving according to the social and legal positions from which
he/she can expect to win (or to lose) advantages in the social game[55].
1. We enter the game
with the identification of the statuses of the involved actors, as there are no abstract
individuals but that human beings are always part of diverse networks, 2. We then move to the resources that they can mobilize in the game and
which can be material, ideological, human 3. These resources will be used according
to certain conducts
which can be more long or short term oriented (strategies or tactics). 4. The actions will be lead according to
certain logics, which
can for instance be in the legal field of a more institutional or of a more
functional nature 5.
We then have to have a look at the geographical scale on which the game is taking place. And
it is important that for the same case different scales may be relevant,
according for example to the resources the diverse actors are able to mobilize.
These scales can go from the most global (whole world), to the most local
(individual) with in-between for example the regional, national, federal levels
etc 6. But the game
is not only played in space but also in time. It is thus important to look at
the different time processes
which can also overlap, from microprocesses of a few days up to megaprocesses
of a few centuries or more. 7.
The next question is the identification of the forums for interaction and of their nature
(conflictual, cooperative for example), 8. This leads to the choice of the patterning of the
relationships or the social orders or social orderings 9. Last but not least in every game there
are stakes. They may
not be the same for all participants and may be more or less explicit or
implicit. There can also be more long term or more short term stakes 10. Going through all these cases, permits
in the end to identify the rules of the game which can consist in diverse mixes of
general and impersonal norms, models of conduct and behaviour and habitus and
their imposition, negotiation or acceptation.
Obviously it appears that the observed reality cannot be made completely
transparent and that changes in any of the squares will result in changes in
the other squares. But this lack of transparency rather than a flaw rather
appears as inevitable once one really allows oneself to leave the comfort of neat
and clear systems in order to enter into the complexity of social life.
On a very general comparative
level, tienne Le Roy[56]
proposes the following table to indicate how different cultures may value
differently the three feet of Law[57],
in their over all organization :
|
Legal traditions |
Privileged Foundation |
Second Foundation |
Third Foundation |
|
Western / Christian |
GIN[58] |
MCB[59] |
SLD[60] |
|
African / Animist |
MCB |
SLD |
GIN |
|
Asian / Confucian |
SLD |
MCB |
GIN |
|
Arab / Muslim |
GIN |
SLD |
MCB |
Let me just note that we should keep in mind that the
jeu des lois reflects an
anthropocentric social sciences approach. It could be useful to introduce
another first square before the one of the statuses of the actors : the one of
our diverse worldviews in which the whole legal game is embedded. Indeed,
there are worldvisions which are less anthropocentered than ours and more
cosmocentered or theocentered[61].
This would change the whole perspective on our cosmic or divine game. But
this is more of the realm of an intercultural approach to Law[62]
that we will present as a horizon after our presentation of the game of laws.
If we follow Menskis developments it would appear that the Indian view would
be in line with what tienne Le Roy has described for the Asian / Confucian
world. This remark immediately makes appear that although an underlying
structure may be the same, different legal universes still behold their
specific flavour. On a structural level we could note that the Confucian view
of Law is dualistic, in the sense that it explicitely recognizes li (rites) and
fa (law) as tools for upholding the social harmony. In contrast, the Indian
view as we have shown above is pluralistic, recognizing explicitely three
different foundations of law (if we do not take into consideration the difference
between shruti and smriti). But the comparative challenge takes us further[63].
We must indeed recognize that in our presentation we
have for the moment stayed in a Western perspective because we start out from
what we consider as homeomorphic equivalents to our law but that homeomorphism
is not symmetric. Thus for example, if in our culture the implicit
presupposition is that Law is Man-centered its homeomorphic equivalents may be
God or Cosmos-centered[64],
which may change the whole picture in a genuine dialogue. It is useful here to
keep in mind the horizon towards which Robert Vachon is pointing in his
critical article on legal pluralism where he advocates the need for a
diatopical and dialogical method : we must recognize that the question of homeomorphic
equivalents to Law or to legal pluralism is already a situated question and is
thus not a universal question, although it may appear to be so from our
cultural window. Robert Vachon thus underlines the need to approach of Law and
legal pluralism rather in terms of symbols than of concepts. For him the study
of legal pluralism is () the study of this common horizon (myth) or reality
which some call law and legal and others dharma etc. and that we have
agreed to refer to as legal pluralism while we could also have called it
dharmic pluralism.[65]
If it seems as important to try to understand the
complex interminglings of diverse traditional and modern trends in the
reflexions on the shaping of the contemporary states and their legal policies[66]
as to work out the specificity of diverse worldviews and the conditions of a
genuine dialogue[67], in the
Indian context we could for the moment probably subscribe to Menskis agenda
who notes that The vigorous debates in South Asia today on how to harmonize
local legal norms and international legal expectations therefore point to the
current reformulation of an ancient truth. It is now being realized in South
Asia that the mechanics of legal positivism cannot provide meaningful justice
to all people. () Justice remains a situation-sensitive, culture-specific
matter. Safeguarding justice still requires searching for holistic solutions to
problems in a particular context at a particular time, and this process cannot
avoid recognizing what local people think is correct. What is right and what is
wrong, in other words dharma,
rests on many feet, as before. The modern state is ultimately unable to do
anything but keep a watch over processes of negotiation. Thus, modern South
Asia, stimulated as much by Hindu as by Muslim, Buddhist and Jaina ideas about
justice and the good life, is now more openly than before rejecting legal
messages from the West that emphasize state-focused approaches to law and legal
regulation to the exclusion of the other spheres. Post-modern India has begun
to rediscover and actively re-employ the ancient Indian model of Hindu
self-controlled order and now tries to reformulate the old ideas in new ways.
This does not necessarily lead to a hinduisation of India as many
modernity-obsessed observers immediately fear. Recourse to Hindu concepts,
wether explicit or implicit, has created a more justice-oriented understanding
of modern law, which can hardly be treated as a negative development. ()While
in economic and in other terms, globalization is a most powerful social force
even in the Indian subcontinent, the legal field is one of the arenas in which
tradition visibly asserts its modernity and where diversity demonstrates its
continuing intrinsic link with unity. The universalistic foundations of Indian
cultures generally, and particularly of Hindu culture, thus provide a
culture-specific model for sustainable legal development of the future ()[68].
It seems that Menskis invitation invites us to
reflect upon legal pluralism in India, by acknowledging Indias traditionally
pluralist approach to Law. This move beyond legal pluralism, towards more
pluralist theories of Law, in line with traditional Indian conceptions of Law
meets with the preoccupations of some general approaches in the field of legal
anthropology which try to move towards more plural legal theories. Despite the
enrichment to the understanding of the Indian situation the shift of
perspective from legal pluralism to a pluralist approach to Law thus seems to
have more general stakes. These in turn may be tackled more easily if we accept
to learn from the Indian experience.
[1] Panikkar Raimon,
1990, The Myth of Pluralism , Harry James Carger (ed.), Invisible
Harmony. Essays on Contemplation and Responsibility, USA, Fortress Press,
210 p (52-91), p 55 & 57.
[2] Whenever I will
write Law with a capital L in this article, I am
referring to Law as legal phenomena, which is not reduced to what is usually
understood as law as general and impersonal rules more or less directly linked
to the State. By using Law, I refer to that which puts forms and puts into
forms the reproduction of societies and their solving of conflicts Western
type law is just one aspect of Law, which may be very dominating in some
contexts, but may only represent the tip of the iceberg of legal phenomena in
other contexts. This view of Law will be further developed in this article in
the third section.
[3] This is a
research center on legal anthropology of the University Paris 1 Panthon
Sorbonne. A lot of research carried out at the LAJP is available on
http://www.dhdi.org.
[4] The IIM also has
an internet site : http://www.iim.qc.ca.
[5] See already for
this endeavor Christoph Eberhard, Towards an Intercultural Legal Theory
- The Dialogical Challenge , Social & Legal Studies. An
International Journal, volume 10, number 2, june 2001, p 171-201 ;
Challenges and Prospects for the Anthropology of Law. A Francophone Perspective
, Newsletter of the Commission on Folk Law and Legal Pluralism, nXXXV, 2002, p
47-68 ; Dialogue with Jacques Vanderlinden. Part 1 , Newsletter of
the Commission on Folk Law and Legal Pluralism, nXXXVII, 2003,
p 72-79. This texts can also be consulted at http://www.dhdi.org.
[6] Franz von
Benda-Beckmann, Whos Afraid of Legal Pluralism ? , in
Pradhan Rajendra (ed.), Legal Pluralism and Unofficial Law in Social,
Economic and Political Development. Papers of the XIIIth International Congress of the Commission on Folk
Law and Legal Pluralism, Vol. III, Kathmandu, ICNEC, 2003, 417 p (275-298). All the upcoming page references refer to
this article.
[7] In our
terminology, we would rather speak of his definition of Law.
[8] Von
Benda-Beckman op. cit. p 276
[9] Von
Benda-Beckman op. cit. p 277
[10] I am following
here Claude Lvi-Strauss definition which sees ethnography, ethnology and
anthropology as three moments of a same endeavor. Ethnography is concerned with
description of different societies. Ethnology with the working out of
fundamental models of these societies and anthropology is concerned with
elaborating general theories on the life of human beings in society via a
comparison of the data which has been produced through ethnography and
ethnology.
[11] See also Von Benda-Beckman
op. cit. p 277. We do very much agree with Franz von Benda Beckmann when he
writes p 278 : So before one enters into conceptual debates, one should be
clear in ones appreciation of the different academic and professional
enterprises, their limitations and implications, and take them into account
when promoting ones own understanding or criticizing that of others. In my
view, many of the discussions about law or legal pluralism suffer from the
tendency to bring these different objectives and resultant concepts down onto a
one-dimensional level of discussion, at which authors look for the one
correct or useful concept for both lawyers and social scientists. It is
particularly under the name of theory that many scholars claim universal
value for their concept in an absolutist manner. In our view this remark underlines
the importance of what we call diatopical and dialogical in the line of the
writings of Raimon Panikkar and Robert Vachon (see for example Christoph
Eberhard, Towards
an Intercultural Legal Theory - The Dialogical Challenge , Social
& Legal Studies. An International Journal, volume 10, number 2, june 2001, p 171-201
& Christoph Eberhard, Challenges and Prospects for the Anthropology of Law.
A Francophone Perspective, Newsletter
of the Commission on Folk Law and Legal Pluralism, 2002, nXXXV, p
47-68).
[12] Von Benda-Beckman op. cit. p 276
[13] Von Benda-Beckman op. cit. p 276
[14] See for example
Bell John, Comparative Law and Legal Theory , Krawietz Werner,
MacCormick Neil, von Wright George Henrik (ds.), Prescriptive Formality and
Normative Rationality in Modern Legal Systems. Festschrift for Robert S.
Summers, Berlin, Duncker & Humbolt, 1994, p 19-31 ; Legrand Pierre,
How to compare now ? , Legal Studies, n 16, 1996, p
232-242
[15] Von Benda-Beckman op. cit. p
281-282.
[16] Von Benda-Beckman op. cit. p 282-284
[17] Von Benda-Beckman op. cit. p
285-286.
[18] Von Benda-Beckman op. cit. p 286.
[19] See in this
context the very interesting paper of Keebet von Benda-Beckmann, The
Contexts of Law, in Pradhan Rajendra (ed.), Legal Pluralism and Unofficial
Law in Social, Economic and Political Development. Papers of the XIIIth
International Congress of the Commission on Folk Law and Legal Pluralism, Vol. III,
Kathmandu, ICNEC, 2003, 417 p (299-315). She writes : As a
sensitizing concept, legal pluralism is generally taken to refer to a component
system of norms, or constellation of various legal systems, though it is
usually emphasized that the term system should not be taken too literally. ()
Law is not an amorphous set of norms and principles but neither is it a tightly
structured system. () Law typically consists of clustered sets of norms,
principles, concepts and procedures. And such clusters provide cognitive and
normative and institutional contexts for interaction. (p 299).
[20] Keebet von
Benda-Beckmann, op. cit. p 299.
[21] Monique Nuitjen,
Land and the Law in Mexico : Towards a Force Fields Approach in
Legal Anthropolgy , in Pradhan Rajendra (ed.), Legal Pluralism and
Unofficial Law in Social, Economic and Political Development. Papers of the XIIIth International Congress of
the Commission on Folk Law and Legal Pluralism, Vol. III,
Kathmandu, ICNEC, 2003, 417 p (353-368) : p 364-365.
[22] He
writes : There is no reason to suppose that, in systems of
customary law or in western state laws, the general population which observes a
law has any great difficulty in accepting mutually incompatible norms. Thus,
the notion that legal norms are organized into systems is
unsustainable. , Gordon Woodman, Why There Can be no Map of
Law , in Pradhan Rajendra (ed.), Legal Pluralism and Unofficial Law in
Social, Economic and Political Development. Papers of the XIIIth International Congress of the Commission on Folk
Law and Legal Pluralism, Vol. III, Kathmandu, ICNEC, 2003, 417 p (383-392).
[23]
Vanderlinden Jacques, Return to Legal Pluralism : Twenty Years
Later , Journal of Legal Pluralism and Unofficial Law,
n 28, 1989, pp. 149-157 & Vanderlinden Jacques, Vers une
nouvelle conception du pluralisme juridique , Revue de la Recherche
Juridique - Droit prospectif, XVIII, 2, 1993, p.
573-583
[24] See Franz von
Benda-Beckmann op. cit. p 292-294. For a good illustration more specifically in
the field of the choice between rather law centered or order and dispute
centered research see also Roberts S., Order and Dispute. An Introduction to
Legal Anthropology, Middlesex, Penguin, 1979, p 185-373
[25] See in that sense already Christoph Eberhard, Penser
le pluralisme juridique de manire pluraliste. Dfi pour une thorie
interculturelle du Droit , Cahiers dAnthropologie du Droit, n2, Paris, Karthala, 2003, p
51-63
[26] If what is
called today Hinduism can be seen as standing for pluralism, as
we will develop it here, the roots of this term should not be forgotten. It is
all the more important to underline them because of the more or less conscious
relationships between Hinduism and Hindutva . First,
from a purely linguistic point of view, I am quite cautious about any isms
which seem to denote a thrust towards unification and theory, or even ideology,
e.g. socialism, liberalism, Marxism, structuralism, etc. and I would even add
such isms as pluralism, multiculturalism, interculturalism. One should
be aware of what isms imply. Second, I would like to quote five insights by
Ashis Nandy, Shikha Trivedy, Shail Mayaram, Achyut Yagnik in Creating a
Nationality. The Ramjanmabhumi Movement and Fear of the Self, India, Oxford
India Paperbacks, 212 p (56-63) : As repeated ad nauseum these days, the
word Hindu is of Arabic/Persian origin and has exactly the same meaning
etymologically as the word India which is of Graeco-Roman origin. None of the
Hindu sacred texts even once mentions the word Hindu. Both of these words have
served for outsiders unacquainted with the complexities of the country, as a
generic name for the different, mainly non-Islamic, but also non-Christian,
communities living in the subcontinent. After this introductory statement and
after mentioning the processes of Hindu responses to the colonial state in
the 19th century, the authors note concerning the new Hinduism :
First, it defensively rejected or devalued the little cultures of India as so
many indices of the countrys backwardness and as prime candidates for
integration within the Hindu/national mainstream. Instead the new Hindus sought
to chalk out a new pan-Indian religion called Hinduism that would be primarily
classical, Brahmanic, Vedantic and, therefore, not an embarrassment to the
modern or semi-modern Indians in touch with the more civilized parts of the
world. () Second, the redefined version of Hinduism allowed those who saw the
new religion more as an ideology than as a faith, to use Hinduism as an
instrument of political mobilization, la European-style national ideology.
() Third, this Hinduism sought to masculinize the self-definition of the
Hindus and, thus, martialize the community. () Fourth, Hindu nationalism not
only accepted modern science and technology and their Baconian social
philosophy, it also developed a totally uncritical attitude towards any Western
knowledge system that seemed to contribute to the development and sustenance of
state power and which promised to homogenize the Indian population. () In
other words, even the Hindus who would constitue the Hindu rashtra are not
expected to be Hindus in the traditional sense. The traditional Hindus are seen
as too diverse, feminized, irrational, unversed in the inticacies of the modern
world, and too pantheistic, pagan, gullible and anarchic to run a proper state.
So, the emphasis is on the new version of Hindus emerging in metropolitan
India, with one foot in western education and values, the other in simplified
versions of classical thought now available in commoditifiable form in the
urban centres of India.
[27] R.S. Khare
writes in that context : Though exasperating to a modern social
reformer and a human rights advocate, this deeply-ingrained cultural lexicon of
karma-dharma and divine justice complex is shared widely by ordinary Hindus,
Buddhists, Jains, and Sikhs in India. It is the peoples
jurisprudence, shaping the prevalent notions of social fairness and justice. It
goes through periodic cycles of rigidity, reform, flexibility, as various
saints, reformers, and leaders try to explicate it from time to time. It
encounters petitions, protests, and upheavals, as well as a rising devotional
faith in the intervening power of the divine will. in Elusive
Social Justice, Distant Human Rights : Untouchable Womens Struggles and
Dilemmas in Changing India , Cultural Diversity and Social Discontent.
Anthropological Studies on Contemporary India, New Delhi, Sage Publications,
1998, 282 p
[28] Werner F.
Menski, Hindu law : the search for appropriateness , in Comparative
Law in Global Context : the Legal Systems of Asia and Africa, London,
Platinium, 2000, 590 p (138-208). For a good introduction to the principles of
Hindu Law also see Sunderlal T. Desai, Introduction, Principles of Hindu
Law, Bombay, N. M. Tripathi Private Limited, 1990, p 1-65.
[29] For an
explanation of the notion of homeomorphic equivalent and the
diatopical hermeneutics which is linked to it see Panikkar
Raimon, Is the notion of Human Rights a Western Concept ? , Interculture, Vol. XVII, n
1, Cahier 82, 1984, p 28-47 and also Christoph Eberhard, Towards an
Intercultural Legal Theory - The Dialogical Challenge , Social &
Legal Studies. An International Journal, volume 10, number 2, june 2001, p
171-201
[30]
See Sinha Surya Prakash, 1995a, Legal Polycentricity , Petersen
H., Zahle H. (eds.), Legal Polycentricity : Consequences of Pluralism in Law,
UK, Dartmouth, 1995, 245 p (31-69)
[31] See for example
Sinha Surya Prakash, 1995, Non-Universality of Law - The Indian way of
life , Nanda Ved P., Sinha Surya Prakash (eds.), Hindu Law and Legal
Theory, Great Britain, Dartmouth, The International Library of Essays in Law
and Legal Theory Series, 1996, 357 p (73-77)
[32] Rocher Ludo,
1978, Hindu Conceptions of Law , Nanda Ved P., Sinha Surya Prakash
(ds.), Hindu Law and Legal Theory, Great Britain, Dartmouth, The International Library of
Essays in Law and Legal Theory Series, 1996, 357 p (3-25)
[33] Menski, op. cit.
p 143.
[34] Lingat Robert, The
Classical Law of India, New Delhi, Oxford University Press, 1998 (1973), 305
p (4-5).
[35] See for example
on these questions Bauman Zygmunt, Legislators and Interpreters - On
Modernity, Post-modernity and Intellectuals, Great Britain, Polity Press, 1987,
209 p and Bauman Zygmunt, Modernity and Ambivalence, Great Britain,
Polity Press, 1993 (1991), 285 p
[36] See for example
Javeed Alam, Hindus and Others in the Making of the Nation , in
Javeed Alam, India. Living with modernity, India, Oxford University Press,
1999, 241 p (103-127) and the chapter Creating a Nationality in
Nandy Ashis, Trivedy Shikha, Mayaram Shail, Yagnik Achyut, 1997, Creating a
Nationality. The Ramjanmabhumi Movement and Fear of the Self, India, Oxford
India Paperbacks, 212 p (56-80).
[37] Menski, op. cit.
p 153-154
[38] Menski, op. cit.
p 156
[39] Panikkar R., Is the
notion of Human Rights a Western Concept ? , Interculture, Vol. XVII, n 1, Cahier 82,
1984, p 28-47, p 42.
[40] It can be
interesting to compare this with the description Rebecca Redwood French gives
of the kaleidoscopic traditional legal system of Buddhist Tibet, which is also
centered on the individuals enlightened mind and takes the shape
of a mandala : () the mandala represented all the basic ideas of
Buddhism : karma, the everpresentness of realms, radical particularity, the
cyclical nature of existence, the Buddha core. The government of Tibet itself was
understood as a multilayered mandala with successive levels of periphery
leading to a core in Lhasa, the home of the Buddha. Hierarchy, social
categories, power relations, legal levels from the households to the Hight
Court, all accorded with this representation. The individual mind at the center
of the personal mandala was also understood as the center of the legal
universe, and the mandala reiterated in symbolic form the movement of the legal
system. Just as Buddhas emanated from the core and aspirants in meditation,
moved from the outer to the inner doors of the mandala, so the legal system was
understood as flexible, allowing movement up and down and between different
procedures, forums and levels. in Rebecca Redwood French, The Golden Yoke.
The Legal Cosmology of Buddhist Tibet, United States of America, Cornell University Press,
1995, 404 p. It can also be interesting to consult Christoph Eberhard, Opening Up Spaces for
Peace. A Dialogical and Transmodern Challenge , Indian Socio-Legal
Journal, Vol.
XXIX, n 1 & 2, p 1-14 which deals with the question of an anthropological
approach to Law via a Buddhist perspective.
[41] Menski, op. cit.
p 156. And
[42] Laboratory of
Legal Anthropology of Paris of the University Paris 1 Panthon Sorbonne.
[43] See for example
Eberhard Christoph (ed.), Le Droit en perspective interculturelle. Images
rflchies de la pyramide et du rseau, numro thmatique de la Revue Interdisciplinaire
dՃtudes Juridiques n49, 2002, 346 p.
[44] see for example
Nuitjen op. cit.
[45] See Sally Falk
Moore, Law and Social Change : The Semi-Autonomous Social Field as an
Appropriate Subject of Study , Law and Society Review, Summer, 1973, p
719-746
[46] Boltanski Luc, Thvenot Laurent,
De la justification - Les conomies de la grandeur, Mesnil-sur-lEstre, Gallimard, Col.
nrf essais, 1991, 483 p
[47] Alliot Michel,
Anthropologie et juristique. Sur les conditions de lՎlaboration dune
science du droit , Bulletin de Liaison du Laboratoire dAnthropologie
Juridique de Paris, n 6, 1983, p 83-117, p 91. This article has been
republished in Michel Alliot, Le droit et le
service public au miroir de l'anthropologie,
(dit par Camille Kuyu), Paris, Karthala, 2003, 400 p (283-305). All
non-English quotations have bee translated into English from the original by
me.
[48] Alliot op. cit.,
p 85-86.
[49] Myth
represents the invisible horizon on which we project our notions of the real.
Panikkar Raimon, 1979, Myth, Faith and Hermeneutics - Cross-cultural studies, USA, Paulist
Press, 500 p (30). It is that in which we believe so much that we do not
believe that we believe it Vachon Robert, 1995, Guswenta ou limpratif
interculturel - Premire partie : Les fondements interculturels de la paix, Interculture, Vol. XXVIII, n
2, cahier n 127, 80 p (38) this issue of Interculture is also
available in English.
[50] Le Roy tienne,
1998a, Lhypothse du multijuridisme dans un contexte de sortie de
modernit , Lajoie Andr, MacDonald Roderick A., Janda Richard, Rocher
Guy (ds.), Thories et mergence du droit : pluralisme, surdtermination et
effectivit, Bruxelles, Bruylant/Thmis , 266 p (29-43)
[51] see Vanderlinden
op. cit.
[52] At the
Laboratoire custom is seen as a specific procedure rather than a specific
content, which is more based on the negotiation of accepted solutions in reference
to shared models of conduct and behaviour, rather than the imposition of a
general, impersonal and preexisting rule in order to solve a conflict. See Le
Roy tienne, Lesprit de la coutume et lidologie de la loi ,
colloque de lARSOM, Bruxelles, La Connaissance du Droit en Afrique, Bruxelles,
ARSOM, 1984, p 210-240
[53]Sally Falk Moore,
Law as Process - An Anthropological Approach, Great Britain,
Routledge & Kegan Paul, 1983, 263 p (6).
[54] See Human
Rights and Intercultural Dialogue. An Anthropological Perspective , Indian
Socio-Legal Journal, Vol. XXVII, p 99-120, especially the section
The Game of Laws (Le jeu des lois) A Dynamic Approach to
Law , p 114-118. The approach is the backbone of tienne Le Roys book, Le
jeu des lois. Une anthropologie dynamique du Droit, France, LGDJ,
Col. Droit et Socit, Srie anthropologique,1999, 415 p
[55] Le Roy op. cit.
p. 35 ff
[56] tienne Le Roy,
op. cit. p 202
[57] GIN :
general and impersonal norms ; MCB : models of conduct and
behaviour ; SLD : systems of lasting dispositions.
[58] GIN : general and impersonal norms.
[59] MCB : models of conduct and behaviour.
[60] SLD : systems of lasting dispositions.
[61] See for example
Panikkar Raimon, The Cosmotheandric Experience - Emerging Religious
Consciousness, New York, Orbis Books, 1993, 160 p
[62] For the
distinction beween an intercultural approach to Law which takes predominantly
place on the level of myhtos and an intercultural legal theory which is rather
located in the domain of logos see Eberhard Christoph, Towards an
Intercultural Legal Theory - The Dialogical Challenge , Social &
Legal Studies. An International Journal, volume 10, number 2, june 2001, p
171-201
[63] For a
presentation of Alliots archetypes complemented by the Indian archetype of
artculation and the archetype of rationlization see Eberhard Christoph, Droits
de lhomme et dialogue interculturel, Paris, ditions des crivains, 2002, 398 p
(129-171).
[64] Panikkar, Raimon, Is the notion of Human
Rights a Western Concept ? , Interculture 82, 1984, p. 28-47
(42)
[65] Vachon Robert,
1990, LՎtude du pluralisme juridique - une approche diatopique et
dialogale , Journal of Legal Pluralism and Unofficial Law, n 29, p
163-173
[66] tienne Le Roys
anthropology of Law is explicitely centered on these questions. See for example
Le Roy tienne, Les Africains et l'Institution de
la Justice, Paris, Dalloz, 2004, 283 p
[67] This has been
Robert Vachons main field of reflexion. For a synthetic overview see
IIM and its journal : an intercultural alternative and an alternative
interculturalism , Interculture, p 4-74.
[68] Menski op. cit.
p 186-187.