Legal Pluralism : The Essence of India’s Classical Legal ordering
Dr. A. P. Singh
Lecturer (Law)
Govt. Dungar College
Bikaner (India)
First draft of an article published in Christoph Eberhard & Nidhi Gupta (eds.), Legal Pluralism in India, Special Issue of the Indian Socio-Legal Journal, Vol. XXXI, 148 p (95-106)
Introduction
The coming of the world closer as a result of increasing mechanisation of life and scientific and communication revolution has given rise to renewed interests in inter cultural studies the world over. This is a significant development for a legal theorist, in as much as normative diversity or how the different cultures construct their normative universe present the problem of normative validity in new forms. The multicultural setting of Indian civilisation presents a unique model of legal plurality capable of accommodating diverse normative orderings. It is not that the presence of a multiplicity of normative orders or the gap between local law-ways and the most authoritative legal doctrine are phenomenon unique to India. However, while in the western context the plurality of normative orders has been presented to be marginal or even pathological at one time, in India the diversity of normative ordering has been openly embraced[1] and plurality celebrated with aplomb. In this paper I attempt to present one aspect of this legal plurality in India’s classical legal ordering and seek to argue that a better appreciation of this might provide fresh ideas about law and legal process and the interactive relationship between legal and social system.
1. Legal Pluralism : The Concept.
By legal Pluralism, I mean a situation wherein two or more legal systems coexist in the same social field, interacting, interpenetrating, mixed or overlapping and sometimes even superimposed upon one another. According to Pospisil, “Every functioning subgroup in a society has its own legal system which is necessarily different in some respects from those of the other subgroups, such as family hierarchy ranked and essentially similar in rules and procedure”.[2] Legal Pluralism is constituted by an intersection of different legal orders i.e. by inter-legality. Inter-legality is the phenomenological counterpart of legal pluralism. For the proper understanding of this concept it is also necessary to contrast this with the dominant understanding of law in the western world, and which many parts of the third world have inherited much in form and substance. This understanding is of legal formalism or legal positivism wherein the legal rules and reports of case law are taken as the universe. This approach remains predominant in legal education and legal research and it tends to render law as distinct, unified and internally coherent. Legal centralism, i.e. notion that lawyers, court and prisons are the only form of ordering, that law and ordering takes place in court houses and law offices and that the law owes its existence to the state system, the politically superior sovereign, continues to rule the roost.
The law in the broad sense of the whole legal system with its institutions, rules, procedures, remedies, is society’s attempt through state to control human behaviour and prevent anarchy, violence, oppression, and injustice by providing and enforcing orderly, rational, fair and workable alternative to the indiscriminate use of force by individuals or groups in advancing or protecting their interests and resolving their controversies. This logic puts legal institutions and the state at the core of all social discipline. An active Hobbbesian war of every man against every man turning life into solitary, brutish, nasty and short, is hinted at darkly as the violent alternative.
At least in theory the sovereign power, the ultimate, legal authority in a polity can legislate on any matter and can exercise control over any behaviour within the state. Indeed in a highly centralised political system, with advanced technology and communication apparatus, it is taken for granted that legal innovation can effect social change.[3] Roscoe Pound perceived the law as a tool for social engineering. Underlying this view is the assumption that social processes are susceptible to conscious human control and the intrument by means of which this controls is to be achievecd is law. In such a formulation, law is a short term measure for a very complex aggregation of principles, norms ideas, rules, practices and agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex law thus condensed into one term is abstracted from social context in which it exists and is spoken of as if it were an entity capable of controlling that context. Pospisil remarks that “the law of western society traditionally is analysed as an autonomous logically consistent legal system in which various rules are derived from more abstract norms.”[4] These norms are arranged in a sort of pyramid derived from a basic norm or sovereign will such an analysis presents a legal system as a logically consistent whole, devoid of internal contradictions whose individual norms gain validity from their logical relationship to the more abstract legal principles implied ultimately in the sovereign’s will and in a basic norm.
Legal Pluralism sees no reason why law should be associated with state system or be considered as coterminus to it. Ordinary experience indicates that law and legal institutions with their whole panoply of courts and law enforcement agencies can only affect a degree of intentional control of society, greater at sometime less at others. That limited degree of control and predictability is daily inflated in the folk models of lawyers and politicians all over the world. The social reality is a peculiar mix with rules and other actions that is choice making, discretionary, manipulative, sometimes inconsistent sometimes conflictual. Much legislation today either does not achieve what it purports or sets out to do or when it does achieve specified goals, it also spins of many side effects that were not anticipated. Conventional failures or unexpected side effects tend to attribute particular instances to inadequate information or bad judgement or political deception. That is as it may be in particular cases. But it is possible that there are also deeper causes of transformation that operate pervasively even under the best conditions of information, expertise and relative political honesty.[5]
It may be noted that legal pluralism stems from sociological pluralism, and no society is completely homogenous. Even segmentary societies in a sense are divided. According to J. Griffith, individual social fields are not uniformly governed by a single system of law. Several kinds of laws are normally found to be in operation. Legal pluralism as such consists in the multiplicity of forms of law present within any social field. It might appear rather curious as to how under these conditions are unitary legal myth took root in societies, with most divisions. Norbert Rouland believes that precisely because the state needs to extend its influence over deeply heterogeneous societies, the state needs to deny the existence of these divisions and perpetuate the myth of unity. This is an imperative which does not exist to the same extent in traditional societies, which are also plural and where political authority is less differentiated than in modern societies and has less sweeping political ambitions.
Sally Falk Moore, talks about semi-autonomous social field instead of sub groups. A semi-autonomous social field is defined and its limits identified not by its type of organisation but a character of a processual type, residing in the fact that it gives birth to norms and by constraints or incentives ensures their application. The space within which a certain number of corporate groups are in relation one to another constitutes a semi-autonomous social field. A large number of fields of this type may be connected one to another in such a way that they form complex chains, in the same way as the network of social relations which link individual, may be compared to chains which have no ends. The interdependent connection of a large number of semi-autonomous social fields constitute one of the fundamental characteristics of complex societies.
J.Griffith,[6] talks of two kinds of legal pluralism. Pluralism tolerated by the state and pluralism, which escapes the control of the state. The later kind of pluralism, according to Griffith is authentic pluralism. It is the sworn enemy of the unitary ambitions of the state and the state seeks either to eliminate the pluralism by prescribing certain practices or to regulate it by recognising certain manifestations of pluralism by enacting statutes for minorities etc. This kind of pluralism is merely an eyewash or a façade and serves the interests of unitary and centralising polity.
Once the plurality of legal system is established it becomes possible to look at the legal phenomenon without the presence of an archaic state system with all its institutional panoply. As Griffith puts it, law does not in the nature of things enjoy any particular relationship with the state and does not need the state to function. The concept of universalism and thereby looking the other from the so called universalistic viewpoint requires a thoroughgoing rethinking. And this rethinking on the part of legal scholars have proved it beyond doubt that traditional and modern societies are not as far apart as were originally thought out to be. Norbert Rouland, after studying the kinship, landholdings and contractual relations concludes that “inspite of evolutionist prejudices, there is no radical distinction between law in modern societies and traditional societies. Human kind has from its origins shown such a capacity for invention that it would be illusory to believe that modern societies are more evolved than traditional societies. In the field of law many traditional societies have not only found solutions, which are original when compared to our own, but in addition already know what we claimed to have invented. Law judgement, punishment, the married couple contracts and so on. The richness of their experiences forces us to rethink our notion of unilinear direction in history.”
For the purpose of understanding this pluralist character of law, Etienne Le Roy talks about multi-legalism, that permits to open up the western view of law, based on the perception of law as norms and as general impersonal rules, to a more pluralist approach to legal phenomenon. To illustrate the multi-legalist approach to law Etienne Le Roy, develops the concept of Legal Tripod, the three feet of law, or the foundation of law. These three feet of law consists of general impersonal rules (State law) Customs, and Habitus, (System of lasting dispositions). These three feet of law are valorised by different societies in different manners. For example western system would put the three feet in the priority order of , rules, customs, and habitus, the animist tradition of Africa would put them in the priority order of custom, habitus and rules and so on. Similarly, different societies valorise different conceptions of individual and social order depending on their different cosmo-visions. To understand this dynamic complex whole in their own setting multi-legal approach can be of great help. It may help a western observer to move away from his own anthropo-centric vision and engage in a dynamic processual anthropology, wherein the question on rule of law or human rights can take different turn, when it is no man, but the cosmic or divine that play the central structuring principle of a world view. This may also help in the overall understanding of the working of legal phenomenon in the western world itself.
2. Understanding the Indian Paradigm.
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. India a veritable microcosm of the world has always been a queer mixture of various faiths, religions, a place where the cultures of the world meet, constituting an environment of composit culture. It was for this reason that Pandit Jawaharlal Nehru called India the “the museum of world religions”. Indeed, the very paradigmatic setting of India has been pluralist all along. Even today the land mass called India, spread over 3.28 million sq km of area inhabited by a thousand million plus population, with every imaginable kind of a weather pattern from minus 40 degree celsius in greater Himalyan region to 50 degree celsius temperature in the deserts of Rajasthan and temperate weather of coastal regions, 20 official languages written in 16 different scripts, around 2000 dialects, 16 well demarcated agro-climatic zones and almost all religions of the world well and adequately represented, presents a mind boggling variety and plurality. And all this has a bearing on India’s liberal , secular, republican , politico-legal system. Within this variety the legal ordering of Hindu social setting itself presents a varitable mixture of faiths, beliefs, customs and traditions.
“ Indian Culture”, concludes Shri Aurobindo, “did not deface nor impoverish the richness of the grand game of human life, it never depressed or mutilated the activities of our nature. On the contrary, subject to certain principle of harmony and government , it allowed them their full often their extreme value. Man was allowed to fathom on his way all experiences to give to his character and action a large rein and heroic proportions to fill in life opulently with colour and beauty and enjoyment”.[7] Indeed Indian spirit reveled in variety and plurality.
For the purpose of understanding the classical legal ordering of India, in its proper perspective, it is necessary to contrast it with the concept of legality which characterise the western legal ordering. Law in its proper sense is understood to express the will of all represented by the state system. Even in cases where the law has declared merely customary law or case law in the form of codes, “its imperative force”, writes Robert Lingat, “resides entirely in the popular will or constitutionally established authority which has sanctioned it, and not in the power of the usage or custom that lies behind it and has in a sense given birth to that law”.[8] Law which effectively governs relations amongst people in directly derived from this law i.e. sanctioned by the sovereign. In classical Indian legal ordering this notion of “Legality” has been replaced by the notion of “Authority”. The precepts of smriti are an authority because they are the expression of a law, which rules human activity in the sense we understand that word in natural sciences.” Every one knows that nobody can escape from that law and therefore every body tries to conform to those standards. Intrestingly enough this law has no constraining power in itself. It really puts forward an ideal a “lightpost” that everybody attempts to conform to , but in his own way. Here comes into picture the custom. And though the custom may not be able to meet the standards of precepts perfectly, it in no way diminishes the authority of that precept. The “text of law floats alone, incessantly worked upon, discussed and orientated in diverse ways.”[9]Manusmriti, undoubtedly the most reliable source of classical law of India, was nevertheless, never found in a uniform application all over India. Custom prevailed, though very often in variance with Manusmriti, but never opposed to it, and thus preserving the authority of Manusmriti precepts. The law in action, contained within itself a variety of solutions permitting interpretations to diversify its effects according to plans and periods. Such a system may not appear perfect for a mind trained in western legalism, but it presented a perfect paradigm of pluralistic governance in a country of mind boggling variety and diversity of population. “Profiting from maximum flexibility , the Hindu system sustained the unity of Indian world, thanks to the undisputed authority of law. That unity was not realisable at a lower level but realised at the higher level in an ideal participation amongst all Hindus.[10] That ideal received the dynamic imparted to it by faith by Hinduism itself with the result that the custom and written law were inextricably woven together to give rise to law.
Thus the flexibility, diversity and pluralism has always been the hallmark of India’s legal ordering. However the British conquest with legal and judicial reforms accompanying it for the purpose of securing a better administration of justice so as to enable the colonial masters to collect more and more revenue from the already parched lands of Indian peasantry brought the concept of legalism in its tag. In 1772 when Warren Hastings laid the foundation for civil courts of Diwani in Bengal and Bihar and Orrissa, it appeared to be a rather inoffensive move. However for the Indian legal system particularly for the Hindu legal ordering it introduced a paradigm shift in as much as the concept of authority came to be substituted by the concept of legality in the longer run. The “floating text” of law now came to be mortified in the rule of “stare decisis”. Now the judgement was to be delivered by an English judge, though following the opinion of a pandit, in default of a detailed knowledge of his own, this judgement was to become the source of law for future cases. Whilst in the classical system the judgement had no other object or effect but to put an end to a dispute brought before the judge, the judgement in the classical Hindu system left the authority of the law intact always available thereafter for new interpretations, but now the English judge was called upon to define law and fix interpretations once and for all. The judgement which in the classical system was basically one of the ways in which the law could be understood, now in the hands of an English judge became a sole and valid expression of law. “The commentaries and digests which were nothing more than diverse forms and interpretations of the preceptual or scriptural law came to be refered as the records of customary law and once the judicial interpretation was put on it in the form of a gloss, the art of commentaries and digests started being dried up, for now the law was to be found in the rule of stare decisis and the preceptual law or scriptural law, the authority so far, ceased to exert any influence on this new legal rule.[11] This way the reform intended to ameliorate the judicial administration ended in subverting the traditional pluralism. This way the new English judge who was intended to be the interpreter of scriptural laws turned out to be the creator of laws for future generations. Thus the dynamic plurality of flexible diversities, turned into sterile legality, thwarted and suppressed the fecundity of an open ended system capable of accomodating every conceivable faith or belief system.