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The Journal of Legal Pluralism and Unofficial Law
ISSN: 0732-9113 (Print) 2305-9931 (Online) Journal homepage: http://www.tandfonline.com/loi/rjlp20
Religious personal laws as non-state laws:
implications for gender justice
Archana Parashar
To cite this article: Archana Parashar (2013) Religious personal laws as non-state laws:
implications for gender justice, The Journal of Legal Pluralism and Unofficial Law, 45:1, 5-23,
DOI: 10.1080/07329113.2013.773804
To link to this article: http://dx.doi.org/10.1080/07329113.2013.773804
Published online: 08 May 2013.
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Religious personal laws as non-state laws: implications
for gender justice
Archana Parashar
Macquarie Law School, Macquarie University, Sydney, Australia
This article examines the concept of religious personal laws as used in Indian legal
discourse. This concept is used to denote religious laws of various communities that
are claimed to be upheld but not modified by the secular state and also to refer to the
religion related rules followed by communities outside of state regulation. This exis-
tence of various ‘religious’ laws is increasingly being described as legal pluralism.
The ambiguous status of religious personal laws serves to legitimize the continued de-
nial by the state of gender equality to women in family law matters as it creates a space
for rules or laws to operate that do not conform to the Constitutional requirements and
yet are enforced by the state. When legal scholars deploy this concept un-reflexively
they participate in the discourse formation about religious personal laws as exceptional
laws or as (progressive) examples of legal pluralism. In this way they assist the state in
using the concept as a mode of governance. In this article it is argued that the legal
scholars need to accept responsibility for the significant power they wield as discourse
formers and acknowledge the power of naming legal practices. They are the scholars
who can and should deconstruct the concept of religious personal laws. This is neces-
sary for a serious engagement with the issue of what kind of family law would be truly
non-oppressive.
Keywords: religious personal laws; legal pluralism; gender justice; non-state laws;
role of legal scholars in discourse formation; secular state
This article examines how the concept of religious personal laws is used in Indian legal
discourse to create a space for laws to o perate that do not conform to the Constitutional
requirements and yet are enforced by the state. Religious Personal Laws are used as a
mode of governance where their ambiguous status serves to legitimize the continued de-
nial by the state of gender equality to women in family law matters, for example in
succession rules. The main focus of my argument is the role of legal scholars in the
discourse formation regarding religious personal laws as the most suitable or the least
desirable vehicles of gaining gender justice in the context of family laws in India. It aims
to analyze the use of the conceptual tool of legal pluralism by legal scholars in this area
and argues for the legal scholars to accept responsibility for the significant power they
wield as discourse formers. The argument below relies on Hindu law as the example but
it could be extended to all Religious Personal Laws.
1
There are three broad parts to this article and the argument is developed as follows:
the first part explores the meaning of the term Hindu law as understood by lawyers and
other scholars. This will be the background context to explain how the misunderstandings
about the nature and scope of Hindu law had metamorphosed into the concept of Reli-
gious Personal Laws in colonial India. The concept of Religio us Personal Laws (RPLs)
*Corresponding author. Email: archana.parashar@mq.edu.au
Ó 2013 The Journal of Legal Pluralism and Unofficial Law
The Journal of Legal Pluralism and Unofficial Law, 2013
Vol. 45, No. 1, 5–23, http://dx.doi.org/10.1080/07329113.2013.773804
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has continued after independence and the adoption of a constitution that guarantees equal-
ity. In the next part the extant analyses that explain the continued existence of RPLs as in-
evitable are analyzed. The courts have declined to declare the RPLs as unconstitutional,
and at the same time the legislatures have reformed Hindu law to the extent of having al-
most rewritten it but have retained the concept. In this discussion I wish to deconstruct
the discourse around RPLs to challenge the implication that the current Hindu laws
enforced by the state are religious rules and to question the view that the continued exis-
tence of Hindu laws outside of state enforcement constitutes legal pluralism.
In the third part I explore the implications of taking seriously the postmodern insight
about the power of discourse as constitutive of social realities. Scholars must acknowl-
edge their role in knowledge production and in legitimizing ideas with consequences that
follow from those ideas. Primarily it is the discourse of RPLs and how it is deployed that
normalizes the inevitabi lity of RPLs and the accompanying inequalities. It is important to
steer the discourse in the direction of asking how family laws may be constructed so as to
not condone gender discrimination.
2
The state law can and should strive to create norms
of gender justice in family laws. This is not a call to uphold universalism in law and nor
is it antithetical to the postmodern celebration of differences. In the present context, this
necessitates state laws recognizing religious/cultural differences only when they do not
disadvantage any section of the community.
Part 1: What is Hindu law?
This question becomes a relevant question in the context of a worldview that sees religion
and law as separate phenomena. It has been asked primarily from the perspective of west-
ern scholars and colonial administrators. Therefore it is no surprise that inva riably the
answers have focused on the religious nature of Hinduism and implicated Hindu law as a
kind of an exception to the modern and dominant understanding of law as separate from
religion (Menski 2002). However, it is also commonplace to keep repeating that law and
religion have a lot in common as social institutions and religious phenomena (Lubin,
Davis and Krishanan 2010, 1). Yet analyses always proceed to test how far Hinduism
offers a concept of law that is understandable to the western scholar. For example, Lubin
et al. explain that the concept of ‘dharma’ and law are different but then proceed to show
that just like law in the west, Hindu law also knows similar institutions (Ibid, 5).
This is a particular issue for any comparative lawyer who is trying to compare differ-
ent laws. However, the comparison posits law as what exists in the west; that is, it is secu-
lar, separate inter alia from religion, and emanates from the state. Thus the first issue in
studying Hindu law is to unravel its dependence on Hinduism. Lubin et al. make a dis-
tinction between the concepts ‘Hindu Law’ and ‘Hinduism and Law’ as they say that the
former term is applica ble to any legal order or legal tradition that has a connection to
Dharmashastra as its textual canon.
3
It is nevertheless the case that the concept of Hindu
law is often used to refer to any practices that Hindus follow.
4
It is this conceptual confu-
sion that further plays out in analyzing the relationship between state and non-state legal
systems in the form of state laws and RPLs.
The concept of RPLs
The concept of RPLs is a peculiar legacy of colonialism in many parts of the world.
However, the particularities of the concept are formed in specific geographical, political
and historical situations.
5
In the Indian subcontinent the British colonists gradually moved
6 A. Parashar
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from being traders to political rulers and imposed their laws incrementally. While it is
possible to say that they left the religious laws of the populations unregulated the actual
picture is much more complex. This is a widely discussed topic but for the present
purposes I will only briefly narrate the broad contours of the developments because they
help explain the connection between religious and customary rules in Hindu law. It is
widely accepted now that there was no universal body of rules, scriptural or otherwise,
that governed all Hindus and this only complicated the task for the administrators
(Randeria 1999).
The colonial administrators in India ruled with a combination of mutual political
agreements or treaties and conquest. The developments in provincial and Presidency
towns took place differently but initially the British established the courts and provided
that these courts could exercize judicial authority. It was the Warren Hastings plan of
1772 that set the stage for the development of the concept of RPLs. It is article 23 of Reg-
ulation II of the 1772 plan that ‘saved’ the right of Hindus and Muslims to be governed
by their respective religious laws in the matters of inheritance, marriage, caste and other
religious usages or institutions (Ilbert 1907). Other regulations, charters and legislation
followed and in varying language and detail authorized the courts to use religious laws of
Hindus and Muslims in determining disputes about matters that came to be defined as per-
sonal matters (Parashar 1992, 61–76; Parashar 2008).
It is important to remember that before the British arrived in the sub-continent, the
population of Hindus and Muslims considered themselves bound by their respective re-
ligious laws. Even though the Muslim rulers had established themselves firmly as t he
political authority by the thirteenth century and Shariat w as the law of the land, there is
academic opinion that the Hindus were generally left free to be governed by their
religious laws except in matters of crime (Pearl 1979, 21; Sarkar 1959). Neither religion
made a division between personal and other matters for the purposes of i dentifying the
rules that regulated behaviour. This idea of personal laws was introduced by the colo-
nial administrators and reflected the widespread European distinction between personal
and territorial laws. Moreover the ecclesiastical laws governed these personal matters
and thus the British authorities easily made the link between personal matters and
religiou s laws .
It is this link that needs to be emphasized when studying the successive regulations in
British India that ‘saved’ the rights of Hindus and Muslims to be gover ned by their reli-
gious laws in ‘personal’ matters. It is easy to overlook the obvious point that before the ar-
rival of the colonial rulers all aspects of laws were religious laws for both communities. It
is the peculiarities of governance needs of the British that created a small island of laws
that were designated as RPLs. It is also important to reiterate that the exact contours of
what constituted personal matters (and thus personal laws) changed from one regulation
to another.
Further the artificiality of the construct of RPLs becomes even more evident when one
examines how these rules were ascertained and in how they were applied by the judicial
authorities. For example, it is widely accepted that when the religious laws of these com-
munities were mentioned it is not evident whether the administrators meant their scrip-
tural laws, customary usages or both. In the case of Hindu law it is well documented that
the colonial rulers had to find ways of determining what was the substantive content of
Hindu law on the areas to be governed by the religious laws (Rocher 2010; Dhag amwar
1989; Agnes 1995). The early British administrators tried to get the Dharmashastras
translated with the help of local experts the Hindu pandits. The courts in addition sought
the help of Brahmins or pandits to tell them the substantive law in any dispute.
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However, the expectations of these administrators to find fixed and invariable rules
came undone frequently and over time the courts, in the true tradition of common law
judges, started relying on precedents created b y themselves. In addition the courts soon
realized that the religious laws of the communities were not necessarily the scriptural
rules and started giving effect to the customs of peoples. The so-called religious rules of
Hindus (and Muslims) were thus modified in various ways through their interaction with
the British judicial system. As explained above the British trained judges relied on prece-
dents they themselves had helped create. In addition, over time the judges started supple-
menting the rul es with the application of the equity formulae of ‘justice, equity and right’
and ‘justice and right’ and thus provided direct channels for introducing English law into
the ‘religious’ laws of Hindus (Derrett 1963). The effort to apply the customs rather than
the scriptural laws introduced a certain level of artificiality into personal laws, as to be
recognized by the courts these customs had to meet the standards set by English law.
Once recognized by the courts these customs ended up becoming a part of the state legal
system and, as precedents they tended to become fixed and unable to adapt to the chang-
ing conditions of society.
6
These judicial incursions into the religious laws were later supplemented by legisla-
tive actions by the British authorities. The legislative authority of the colonial rulers (un-
like the judicial authority) was unres tricted (Jois 1984: vol. I, 265, 282). However,
initially they refrained from making laws only on ‘personal matters’ while imposing
newly crafted civil and criminal laws in every other area. In this way the construct of per-
sonal laws as religious laws retained currency but gradually many areas that were previ-
ously considered pers onal and thus under religious laws came to be legislated upon. A
few random examples include: The Caste Disabilities Removal Act, 1850, The Hindu
Widows Remarriage Act, 1856, Hindu Inheritance (Removal of Disabilities) Act, 1928,
The Child Marriage Restraint Act, 1929 and the list can go on. There is considerable
debate about the possible explanations for these enactments (for details see Parashar
1992, 66–76) but for the present purposes I only wish to focus on the undeniable fact that
towards the end of the colonial period the so-called religious laws of Hindus stood modi-
fied in substantial ways through judicial and legislative activities of the colonial
administrators.
Part 2: Constitution’s promise of equality but the exception of RPLs
The newly independent state of India set about the task of governance by enacting a
Constitution. The Constituent Assembly debated the issue of RPLs at various stages in
the process of enacting the fundamental rights and directive principles. The main con-
tentious issue was whether the state in enacting social reform measures would be able
to modify the RPLs of any community, given the guarantee of freedom of religion as
a fundamental right. The Con stituent Assembly did not resolve the issue decisively
and, rather than articulating whether RPLs had to conform to the Constitutional guar-
antees and any social reform legislation enacted in accord with these guarantees, it
made the promise of a Uniform Civil Code a directive principle (Ibid 222–227;
see also B Shiva Rao 1968, Vol. II: 56 ff.).The courts and the legislature have ever
since followed suit in maintaining the ambiguities of state powers with respect to
RPLs. The following analysis demonstrates that state institutions are not acting in a
uniform or concerted fashion. Their conduct can probably be described as a juggling
match where efforts are made to juggle interests as needs arise and it is too difficult to
stop the game.
8 A. Parashar
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The Supreme Court of Indi a has repeate dly declined to declare RPLs as unconstitu-
tional because they contravene the guarantee of sex equality. This is despite the fact that
all RPLs manage to discriminate against women to varying degrees and in different areas.
To compound the difficulties the Supreme Court has not taken a consistent stand on the
relationship between the Constitution and the RPLs. For example, in State of Bombay v
Narasu Appa Mali
7
the Supreme Court controversially said that personal laws are not
‘laws in force’ under Article 12 of the Constitution and therefore it was not necessary for
the court to decide whether they should conform to the Constitution. However in a later
decision in C. Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil
8
it has said
that personal laws are laws in force and must conform to the Constitution. In the case of
Mary Roy v State of Kerala
9
the Supreme court said that in accordance with the Constitu-
tional provisions the federal law prevailed over state succession laws for Chris tians, yet
in Daniel Latifi v Union of India it upheld the Constitutional validity of the Muslim
Women’s Act, 1996 when that legislation took away from Muslim women only the very
limited right to ask for maintenance under the federal Criminal Procedure Code.
10
The legislative reform of Hindu laws was one of the major activities undertaken by
the newly independent Indian state (for details see Parashar 1992). In the earlier reforms
of Hindu law had converted a Hindu marriage into a monogamous marriage for men and
brought the legal position of women and men in the matter of marriage all mos t on par. It
had also allowed the marriage to be dissolved in certain circum stances and thus modified
its nature as a sacrament. Most recently the 2005 amendment to the Hindu Succession
Act has fundamentally altered the nature of coparcenary by making daughters coparc-
eners with the brothers and other male members (Agarwal 2008).With this reform the fed-
eral law has caught up with the changes introduced by various state legislatures in giving
daughters equal property rights as the sons or abolishing the concept of Hindu joint family
and taking away a major site of inequality in law.
11
Significantly, the federal Hindu
Succession Act has not abolished the concept of a Hindu coparcenary or joint family
(Agarwal 2008, 306–354).
12
In the context of these legislative changes it is appropriate to reconsider here the ear-
lier question of what is Hindu Law. As explained above the definition of Hindu law as
one ultimately based on Dharmashastras presents as a problem. For argument’s sake, if
one takes the latest reform as the illustration, any one would be hard pressed to show a
connection between the Act’s definition of a coparcenary and the Dharmashastras defini-
tions. However, when the state claims to be enacting ‘Hindu’ law it has the responsibility
to articulate ‘Hindu’ in what sense and why in that particular sense.
13
The legislative defi-
nition of a Hindu in all Hindu law Acts is itself in need of explanation. Similarly, the
legislative process of the 2005 amendment of the Hindu Succession Act show s that the
reforms were not inf ormed by any theological concepts or by the actual social practices
of any section of the Hindu communities.
Moreover, there is not even a suggestion in the entire legislative process that the law
reformers were molding a ‘Hindu religious’ concept. It is of course taken for granted that
the secular legislature can enact ‘Hindu’ law. Thus the categories ‘Hindu’ and ‘H indu
law’ are conflating religion with cultural/community identity. If the label ‘Hindu law’ is
being deployed not as a marker of religious affiliations but of cultural identity and invokes
the majority status of the community it becomes that much harder to justify lesser rights
for women. Yet this is what the state has done in the radical legislative reform of the
Hindu Succession Act in 2005 to make daughters coparceners in the Hindu joint family.
This is amply illustrated by the 2005 amendment of the Hindu Succession Act, which is
path breaking by any account, but it still manages to give women/daughters lesser rights
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than men/sons. For example, it contained a provision that denied the daughters a right to
question the validity of a partition that had already taken place. It included a proviso that
nothing in this Act shall affect or inva lidate a partition or other alienation of property that
had taken place prior to 20 December 2004. Significantly, among the brothers and sisters,
the limitation only applies to sisters. If a brother wishes to question the validity of a parti-
tion or alienation nothing in the Act prevents him from doing so, whenever the partition
had taken place.
14
That said, the progressive aspirations of the 2005 Act are undeniable and one can also
not overlook the practical necessities of implementing change.
15
The state is making an
effort to reform the law despite it being classified as RPLs. This is not the place to engage
in a discussion about the capacity or otherwise of law to achieve gender justice. The sig-
nificant point for the purposes of the present article is that a choice is being exercized by
the state agencies whether to modify any law and how to do so.
16
Moreover, this kind of
differential legislative treatment of men and women would not have been acceptable
without the availability of the concept of RPLs. Legal scholars ought to bring this issue
into the public domain and create the necessary discursive space for asking what is
‘Hindu’ about this succession law?
It is plausible to explain the continued use of the category RPLs as an indicator of cul-
tural identities and may explain how it gets used differently for different communities.
While ‘reforming’ Hindu law extensively the state has refrained from doing so in the case
of Islamic law. A common explanation is that Musl ims are a minority community and a
democratic polity has to protect minority rights.
17
An obvious implication of this argu-
ment is that the relevant difference is that of majority or minority status rather than that
of religious inviolability of any rules. Even though never articulated so, if it is the major-
ity status of Hindus that allows the state to modify its RPLs, the sanctity of RPLs surely
becomes disassociated from the religious aspect of Hindu Law.
At the very minimum it is implausible to explain this conduct by the two main legal
institutions as upholding the religious inviolability of RPLs. It is therefore, disingenuous
to keep deploying the concept of RPLs as a special category of law. It deflects attention
from the very different responses these institutions make to very similar questions and
juggle compet ing interests but in an unpredictable way. When legal scholars still persist
in using this concept, it can only be deconstructed, as an exercize in helping maintain the
hegemony of the state in deciding when to grant or withhold equal rights from women,
and this is the subject for analysis in the following section. If the analogy of the juggling
act of the state is emphasized, one can readily see that the changes are informed by many
factors other than the religious nature of the rules. However, the state does insist on desi g-
nating this law as Hindu and it needs to be explained why. If legal scholars continue to de-
ploy the category of RPLs when actually discussing the cultural practices of the
community, they are responsible for obfuscating the reality that these laws are not about
religion but about one’s identity and specifically identity derived from one’s interpreta-
tion of religion. Just as there is no one form of religion, the same can be said, even more
intensely, for cultural identities. Should the state decide (how and) which identities to up-
hold or enforce through laws? In the absence of any questioning by the legal scholars, the
Indian state continues to perpetuate the ambiguous concept of RPLs and retains the right
to decide which aspects of these laws are modifiable.
If it is not the religious nature or the majority or minority status of the religious com-
munities that matters, another explanation for the existence of RPLs is that they are an ex-
pression of legal pluralism. There are two broad senses in which the idea of legal
pluralism can be used – as non-state law or as the lived practices of people with no
10 A. Parashar
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connection to the state laws. Both of them function to legitimize a gender discriminatory
regime and therefore need to be examined.
The assertions of legal pluralism often conflate the state institutional arrangements of
upholding RPLs and the sociological fact of living laws (but whether they should be clas-
sified as ‘laws’ is the very issue of contention as discussed below).State institutional
responses with respect to Hindu law have been briefly discussed above and it is the sec-
ond issue of actual practices or the so-called living Hindu law that is the focus of the fol-
lowing analysis. I argue that a reliance on the discourse of legal pluralism can create a
false sense of complacency that invokes the status of law for many practices and thus le-
gitimize unfair outcomes primarily for women. Moreover, the use of this concept by legal
scholars and by scholars in the disciplines of anthropology, sociology and critical studies
differs significantly and should be the subject of greater inter-disciplinary dialogues
(Moore 1978; Teubner 1992). All of them answer the question of when a system of rules
is entitled to be designated as law, differently (Mundy 2002; Freeman 2009; Allot and
Woodman 1985; Galanter 1981; Griffiths 1986; Merry 1988, 1997; Beckmann 2002;
Tamanaha 2000). Legal thinkers by no means have a monopoly in this task but the domi-
nant disciplinary understandings of the concept within the legal discipline carry substan-
tial weight (Griffiths 2002). The following discussion aims to emphasize that as long as
the dominant understanding of the concept of law within legal discourse remains un-
changed it is misleading to suggest the existence of legal pluralism.
18
Since the discourse of legal pluralism is deployed in many ways, for the development
for my argument, I wish to focus attention on the simultaneous rise of the concepts of the
modern state and state law. A brief recapitulation of the interconnections between the de-
velopment of the modern state, the rise of the concept of sovereignty as well as positivist
ideas about law and eventual transfer of these ideas to the colo nized count ries will be
used to suggest that the concept of non-state law becomes a meaningful concept only in
the presence of the concept of state law. The latter is in turn dependent on the emergence
of the modern state in Europe. The modern state is characterized by the centralization of
political power in a manner that saw the state become the only source of law. In the pro-
cess of centralizing political power the modern state replaced different kinds of law with
the sta te law in Europe. The concept of sovereignty and state law thus came together in
the definition of a modern state (Poggi 1990; Gill 2003).
A parallel development and in part an effect of enlightenment thought saw the ascen-
dance of the positivist views about law. Together these developments resulted in the heg-
emonic ideas about law as state law and more import antly as secular law because in
positivist view law was separable inter alia from religion. The European colonizers car-
ried these ideas with them to their colonies and inevitably measured the pre-existing sys-
tems of law in these countries against their understandings. It is no surprise that most of
the ‘other’ systems fell short of their definition of law and were variousl y described as
primitive, customary, indigenous or religious laws. In every instance the difference was
mapped against the state law and it was the prerogativ e of the political power to decide
whether and to what extent to accommodate these systems of rules (for introduction to lit-
erature see Hooker 1975).
For example, the spectrum of colonial state responses spans the complete denial of
status of law to the indigenous Australians’ laws to the ‘saving’ of religious laws on the
Indian subcontinent discussed above.
19
Even when the religious laws of the colonized
peoples were ‘saved’ and ostensibly left alone by the colonizers they were not accorded
the same status as state laws. In every instance the state law was law proper and other sys-
tems were placed along an evolutionary continuum. Thus the anthropological accounts of
The Journal of Legal Pluralism and Unofficial Law 11
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primitive societies tied up with the views of legal thinkers that these societies would come
to acquire legal systems as they developed. Therefore, it is important to acknowledge that
the concept of legal pluralism only becomes relevant with the rise of the centralized au-
thority of the modern state. Before the advent of the modern state, the concept of a singu-
lar source of law did not exist (Tamanaha 2007). Paradoxically, once the modern state
becomes the singular source of law, other systems of rules whether religious or customary
need to be classified and the scholars make these claims of a similar status as law. With
the close of European colonialism, at least in the formal sense, the discourse of develop-
ment of primitive societies has given way to the ostensibly more enlightened stance of
postmodernism that sees diversity everywhere and eschews essentialist definitions. Thus
the study of legal pluralism now mostly refers to the efforts of scholars to define law in
non-essentialist and thus multiple ways.
20
Within the discipline of law, the dominant ideology of law continues to be positivist
and legal positivist philosophy does not have the capacity to define as law rules that do
not have the right pedigree. So, too, by definition religious rules cannot be state enacted
rules and thus it is difficult to describe them as legal in the technical, positivist sense. The
dominance of legal positivist philosophy is a disciplinary reality despite there being in ex-
istence a robust challenge from critical scholarship of many kinds. Therefore, the question
whether the multiplicity of systems of rules can be described as legal pluralism is a diffi-
cult question to answer, and in part depends on whom one is talking to; e.g. within legal
scholarship itself there are efforts at conceptualizing legal pluralism with expansive or
non positivist definitions of law (Macdonald and Kleinhans 1997; Davies 2006;
Melissaris 2006). Griffiths makes a distinction between ‘juridical legal pluralism’ and
‘empirical legal pluralism’ and explains that the former refers to a particular sort of legal
arrangement while the latter refers to a social state of affairs (1986). In the context of the
argument in this essay that is concerned with the discourse formation about RPLs as non-
state laws, Griffiths’ distinction does not help conceptually. For even the most traditional
legal thinkers will have no problem accepting that people organize their lives by reference
to many systems of rules.
21
However, these and legal rules are distinct to a greater or
lesser degrees. It is not clear what is gained conceptually by designating all of them as
laws whether state or non-state. In fact such description inadvertently functions as a
further bolstering of the status of state law as ‘real’ law.
Moreover it is important to acknowledge that in the mainstream legal scholarship
the ‘concession’ of describing certain rules as non-state laws is available primarily in le-
gal discourses of the non-dominant varieties.
22
That is, the prevailing mainstream ideas
about law continue to be the positivist ideas and even though the alternatives exist, they
do so as marginal discourses in the discipline of law.
23
This observation is in no way
meant to privilege the positivist definitions of law but simply to describe an existing
disciplinary state of affairs.
24
Thus, when legal sociologists or legal anthropologists talk
about law and when the mainstream lawyers do the same they are operating in parallel
universes.
25
This different emphasis is in turn present in their respective understandings
of legal pluralism as well (Moore 1986; Pospisil 1971). My main concern here is that
the discourse of legal pluralism sanitizes the continuing dominance of the state legal
system and makes it look like there is actual parity among various ‘laws’. Moreover,
this kind of discourse of social scientists does nothing to alter the lawyers’ understand-
ings of law.
Therefore it is important to analyze how the concept of legal pluralism is used by
social scientists and some legal thinkers as well. The disciplinary reality within the dis-
cipline of law needs to be acknowledged as the dominant discourse maker of law. As
12 A. Parashar
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long as the mainstream definition within the legal discipline does not change, the social
science definitions function to create a false impression that plural legal systems are op-
erating. It is necessary to remind ourselves that all laws are not equal in any legal plu-
ralistic situation. An apt example is avai lable in the Australian state response to the
issue of acknowledgement of indigenous laws. Starting from its use of the doctrine of
terra nullius and the consequent idea that there were no indigenous peoples or laws, the
Australian state has come a long way in the landmark decision of the High Court in
Mabo No2,
26
the enacting of the Native Title Act 1993 (Cth) and the national apology
to the indigenous peoples delivered by the nation’s then Prime Minister (Rudd 2008).
However, neither of these events has moved the discourse about recognizing indigenous
laws even a little bit (Anker 2008). The state law continues to be the only system of
rules that is defined as law and even though it is up to this system to recognize the in-
digenous laws – that is, the criteria for recognition are those of the state system – there
is no inclination to do so.
There is ample evidence of contemporary indigenous Australians living by reference
to their laws as understood by them. It would be rare indeed for legal scholars to chal-
lenge the existence of such rules and systems of governance. However, in this situation
the existence of indigenous laws, even though outside of the state legal system, cannot
meaningfully be described as legal pluralism. If it is argued that for the indigenous peo-
ples their laws continue to be laws irrespective of state response, the problem remains
that state laws can and do override these laws at any time and in any situation. Therefore,
the proponents of legal pluralism have to address this fundamental issue of defini ng the
legal systems that exist in plurality. The fact that people organize their lives by reference
to various systems of rules is undeniable but when and how those systems become enti-
tled to be defined as legal systems is as yet an unresolved matter. Definitional problems
are of course not a peculiar problem only for defi ning legal pluralism but are present in
every non-traditional area of a discipline. Howeve r, it is a matter of importance as it helps
focus attention on the power of naming and explains the function of legal scholarship in
creating a discourse of happy coexistence of various laws.
When legal scholars (rather than social scientists) claim the existence of legal plural-
ism, primarily it is the unarticulated but nevertheless significant claim to be providing a
better or more accurate knowledge about the legal systems. The aspirations of authors in
the post structural mode are no different than others in that every scholar is interested in
establishing the correctness of their view about knowledge. The claims about extant legal
pluralism, while the hegemony of state legal systems is intact, create a false sense of in-
clusiveness when in reality there is an urgent need for changing the status quo. This is not
to suggest that the dominant legal discourse is impervious to change but as yet I see no ev-
idence that leads me to believe that genuine co-existence of multiple laws is imminent. In
this context the authors who herald legal pluralism create a make believe world but to the
detriment of the non-dominant sections of society. For, the description of extant commu-
nity practices as peoples’ law is made by the scholars and not by the state or even b y the
peoples themselves.
If in the true spirit of post structuralism one could resist claiming authenticity of
one’s definitions or theory it becomes po ssible to examine another important issue:
when and why any definition or theory finds acceptance and is used widely. For
example, in legal femin ism and other feminist li terature the concept of voice is used to
demonstrate how only the views or ideas of the relatively privileged and powerful mem-
bers of society find acceptance in the official discourses of the state and law (Bassel
2010, 157).
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Part 3: Power of discourse
In this part I will rely on Menski’s (2003) argument about the existence of ‘real’ Hindu
law as lived practices of people in order to ask whether this may be understood as legal
pluralism. In his closely argued book Menski says that there is not one but many Hindu
laws. In his view it would be a ‘fundamental mistake to start with the presumption that in
Hindu law it is the state that is central as a lawmaker, or even law enforcer’ (Ibid, xix).
Instead, he says that Hindu law has been an open system , a matter of concern for everyone
at all levels since at no stage did religion or the state or ancient sages regulate people’s
daily lives. He argues that the phenomenon of self-controlled order explains the role of
Hindu law in regulating people’s lives rather than any positivist principle that depends on
rules, lawmakers, or the state. This legal system is thus unlimited and consists of open-
textured legal informality and legal pluralism and represents a culture-specific form of le-
gal arrangements. It follows that Hindu law exists as people’s lived practices and legal
and other scholars make a mistake when they try to understand it only as state-enacted or
-supported legal rules.
Could this be Menski’s way of saying that Hindu law is primarily non-state law in so
far as people organize their lives without resorting to state laws? For the purposes of the
present discussion, the relevant specific issue is in what sense is it (non-state) law, which
is also Hindu (law)? I suggest that this question shows the necessity of prior agreement
about the definitions of the concepts of Hindu law and non-state law. If for example,
Hindu law, to be called that, must have some eventual connection to Dharmashastras as
discussed above, most contemporary practices of Hindus would not meet this standard. It
is widely accepted that Hindu law, even prior to colonization, varied in different regions
and it was further localized in the form of different local customs. However, this plurality
does not obviate the need for a definition. Therefore, it remains to be established that any
particular contemporary customary practice is ‘Hindu’ in a meaningful sense, that is,
something more than the fact that certain Hindus claim it to be in conformity with Hindu
dharma.
In a more formal application of the rules of Hindu jurisprudence the hierarchy of four
sources of dharma at least requires some reflection on when custom may be an accepta ble
source of rules. However, Menski says that this ranking of sources of rules does not oper-
ate in practical contexts.
27
If so, the question remains as to why simply following customs
is distinctly Hindu? In the context o f my argument here about the relationship between
RPLs and state laws such conflating of Hindu law with any customary practices of Hindus
raises a number of difficult problems. This use of the term ‘Hindu law’ makes a very dif-
ferent argument from the claim that Hindu law is religious law that is the subject of RPLs
discourse. If, however, it is acce pted that RPLs are actually the customary practices of
Hindus, how may they be examined for perpetuating gender discrimination? If the consti-
tution and other laws were creating spaces for customs to operate unchecked it would
amount to discrimination perpetrated by law. A further issue is whether people are choos-
ing to be governed by such customs or are compelled to resort to them. I will discuss the
implications of these questions below.
If the claim about legal pluralism is simply acknowledging the existence of differ ent
customary practices it raises issues that n ot all of these evolving customs are uncontrover-
sial either in their existence or in their content. For a start, it has to be accepted that in
contemporary India, whether in the rural or urban settings, society is complex and frag-
mented rather than simple and harmonious. If a section of any population claims that they
have a certain custom it is not an automatic conclusion that everyone else will agree. I
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make this point specially to illustrate the dangers that lurk for women in romanticizing
community practices as collective agreements or as Hindu law.
Vasudha Dhagamwa r (2003) has made a persuasive argument that the practices that
go in the name of custom can be inhumane. It is not only that certain customs operate but
also the transgression of such customary practices has to be dealt with. Moreover, the
bodies in the non-formal system like the Caste Panchayats get to decide what constitutes
transgression.
28
Dhagamwar gives examples of horrific punishments in the non-formal
system, sometimes made on the spot by those present. Generally, these customs and prac-
tices are not widely known or documented but ‘punishments in the non-formal system
fall heaviest on women of any age whether she be a toddler or a grandmother’ (Dhagamwar
2003, 1489). The existence of these so-called customs is not simply equatable to non-state
law, as it’s the state law that permits the continued operation of customs in many instances.
The Hindu Marriage Act 1955, enacted by the Indian state, regulates the creation and
dissolution of Hindu marriages but it also leaves open the option to follow customs if
community customs exist in these matters. It would be at least problematic to describe the
operation of these customs as outside of the state legal system (Holden 2008).
So too it would be equally contentious to describe as Hindu practices, those imposing
the penalties for transgressing specific customs. For almost certainly those imposing the
penalties would have a different perspective than those subjected to the harsh penalties. It
would be a mockery of justice to say that it is suffic ient that the majority acceptance con-
stitutes the specific practice as customary. In this stance the lower caste men and most
women stand in a precarious position, as they are the ones likely to be subjected to arbi-
trary and harsh punishments by these non-formal bodies. Dhagamwar notes that most of
these penalties would normally constitute criminal offences but the curious relation
between the state enactments and customs creates this zone as free of state law. Thus it is
one state law, e.g. the Hindu Marriage Act, that is allowing another state law, e.g. crimi-
nal law, to be ignored when the Marriage Act allows the operation of customs, and when
any of such customs is allegedly broken the ‘community’ decides the punishment that
would be a criminal act otherwise. I argue that this is not an example of non-state law in
operation but state law choosing selectively to create islands of immunity from state law
regulation.
It is this fact of choosing that needs to be brought to the fore in legal discourse. Thus
the earlier arguments about religion and identity as the explanations for creating the con-
cept of RPLs stand uncovered for what they are – political choices made by the political
actors. Furthermore, people who decide to live by Hindu law principles often are also
making choices whether to use the state mechanisms or com munity mechanisms for
dispute resolution.
29
The choice to invoke community rather than state machinery for en-
forcement of rules has many layered explanations and should not be treated as straightfor-
ward evidence of ‘living’ law. In a different context Holden (2003, 128–129) makes a
pertinent point that traditional panchayats operate with an underlying Hindu system of
thought, but it is erroneous to understand their jurisdiction as purely religious as it would
amount to a disregard of the social and financial implications of the same. It is important
also to keep in view the empirical reality that even in the state legal systems of the indus-
trialized societies a very small fraction of disputes reach the courts. Most of the disputes
that do manage to reach the offici al system are also resolved informally (Galanter 2010,
118). There is no serious suggestion that this is an example of legal pluralism. Thus the le-
gal realist observation about the separation between the official and living law could be
equally applicable in describing the practices of Hindus without designating it legal
pluralism.
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It is the responsibility of scholars engaged in discourse formation to be reflexive about
the importance of naming a system of rules as religious and/or law. The designation has
definite implications for the status they gain as a consequence. When in the context of
Hindu law Menski says it is his professional duty to provide a detailed analysis of Hindu
law as it presents itself today, he is participating in discourse formation that is not neutral
and can be dangerous for women in particular (Menski 2003, xv). By designating as
Hindu law all practices of Hindus he is conflating religion with cultural practices and,
even if inad vertently, further merging religious power with legal power.
It is this power to name that needs to be acknowledged and then exercized self reflex-
ively. In the following discussion, I rely on Himani Bannerji’s (2000) arguments about
the definitional power of discourse, although made in another context, to challenge the
celebratory viewing of RPLs as legal pluralism. She examines the multiculturalism-
diversity discourse in Canada as manifest in the official celebration of diversity and the
attendant mater ial practices in the name of multiculturalism to argue that this discourse
has the definitional power over the lives of non-white women in Canada. This diversity
discourse manages to convey the idea of Canadian society as a progressive society but in
the process there is no theoretical or analytical space left for analyzing relations of power
and ruling. Moreover, this discourse is not new or sui generis b ut constructed by the opin-
ion makers by relying on the liberal notion of plurality. That is ‘by reading the notion of
difference in a socially abstract manner, which also wipes away its location in history,
thus obscuring colonialism, capital and slavery’ (Ibid, 555).
The main function of this celebration of diversity is that it deflects attention from po-
litical and historical as well as continuing realities of power differentials and creates a
picture of happy co-existence by focussing on a few particularities of people’s cultures.
The ethnic cultural issues become the short hand for managing differences and multicul-
turalism becomes ‘a matter of co-existence of value-free, power- neutral plurality, of cul-
tural differences where modernity and tradition, so-called white and Black cultures,
supposedly hold the sam e value’ (Ibid). The effect of this discourse is that conceptually
difference can be understood and celebrated without any reference to the political and
cultural content. Thus discourse becomes focussed on neutral diversity rather than un-
comfortable differences of social class, gender, race or sexuality. She goes on to argue
that difference is a much better heuristic device if not exactly an analytical concept to
tackle situation s that imply and call for politics. The discourse of liberal plurality has a
depoliticizing capacity as it divests the political from the social.
I wish to extend this insight to the construction of the discourses of legal pluralism
30
and more particularly of depicting all customary prac tices as Hindu Law. The issue here
is one of political naming and agency.
31
As legal scholars each one of us must acknowl-
edge that constructions of analytical categories carry material consequences for real
people. When academics celebrate Hindu law as postmodern law in all its diversity or
propose non-essentialist definitions of legal pluralism they do so without having to
consider the very real cost for women who may need to resist the validating label of law
for gender oppressive practices.
The long history of RPLs giving women lesser rights even in state enacted laws
should be a reason for anyone to pause and consider the consequences of depicting them
as religious laws or non-state laws. As I have argued above they are neither religious nor
laws in the mainstream sense of those categories. They are state actions that manage to
justify selective gender discrimination in the guise of upholding religious/cultural auton-
omy of any community. In this discourse, the question about the necessary dependence of
one’s identity on state enforced religious laws is not a topic of serious analysis. When
16 A. Parashar
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legal scholars repeat these claims as inevitable markers of identity they engage in the
creation of authoritative discourse of law, which is functioning to deny women equal
legal rights yet claiming to be progressive as it is inclusive of dive rsity. However, I do
not agree with the analysis of Okin that multiculturalism is bad for women as the problem
is not with differences but lies in not examining, which differences are worth recognizing
(Okin 1999; cf. Anthias 2002). It is undeniable that there is a value judgment involved in
such an examination but no discursive position is a value neutral position. Thus, legal
scholars endorsing the continuation of RPLs need to justify the possibility of consequent
gender discrimination, whether because it is more important to maintain community
identity or religious identity.
Thus legal analysts must explain what is religious about the RPLs in the absence of
any analysis, in theological terms, of the claims made in the name of religious rules/laws.
Whether it is the Hinduttva movement leaders (Kapur and Cossman 1993) or the ultraor-
thodox Mullas, they make claims as political rhetoric rather than based on any serious
study of religious doctrine. However, they are political actors invoking the aid of religion
to legitimize their claims and can hardly be criticized for that. It is an altogether different
matter when the legal scholars simply repeat or endorse these claims. At the very mini-
mum, they need to be aware of their role in creating an authoritative discourse about law,
including RPLs. So too when it is claimed that minority cultural identity is jeopardized
by granting legislative equality to women something more than mere assertion is
required.
Scholars who create the discourse of legal pluralism to describe this situation are also
not really broadening the disciplinary horizons to reconceptualize law to make it more in-
clusive. Rather when they append the label law to very man y social practices, they are en-
abling institutional discrimination by invoking the legitimizing power of the label law.
The power of naming certain practices as law primarily belongs to legal scholars. If this
was not the case, the sociologists and anthropologists could keep pursuing their studies of
societal phenomena without having to bother about naming them as laws. Moreover, the
contemporary anthropological, sociological or critical ways of understanding laws are not
the dominant discourse of the discipline of law. The power of naming becomes even
more evident when combined with the fact that the existing hierarchies of knowledge
within the discipli ne of law determine that ‘law and ...’ studies are definitely the mar-
ginal discourses. Despite the existence of extensive legal scholarship in the critical/post
structural genre, the dominant disciplinary understandings of law continue to be the posi-
tivist or modernist understandings. The extensive critiques of law by feminists and post-
structuralists as yet have not managed to displace the dominant disciplinary views
(For an introduction, see Fineman 2011; Ward 2004). The ‘real’ view of law continues to
be that which the professors and judges who are very far away from any critical views
uphold. In common law countries this is easily substantiated by examining the content of
legal education that primarily focuses on legal doctrine.
While it is essential to challenge the hegemony of the mainstream and modernist dis-
courses of law it needs to be acknowledged simultaneously that in the contemporary state
of affairs the appending of the label ‘law’ carries a message of the authoritative nature of
whatever is designated as law. In this situation, what is being achieved by calling all cus-
toms Hindu law? This labelling is achieving the status of law and thus an implied immu-
nity from questioning of those practices because they are law. The irony is that the
dominant disciplinary view does not agree with this nomenclature so the institutional
view remains unchanged. At the same time in the community a discourse can be floated
that all these social practices are ‘laws’ and therefore authoritative. As a Hindu woman, I
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could probably transgress social customs more easily but when I am told that these are
legal rules, they automatically appear non-discretionary. Thus, neither the dominant dis-
course of law changes nor do the indi viduals attain greater autonomy under legal plural-
ism disc ourses. I wish to emphasize that this is not an endorsement of essentialist
definitions of law but neither is it acceptable to endorse pluralism without self-reflexive
awareness of how that discourse can disadvantage the marginalized peoples.
Moreover, the efforts of legal scholars to define legal pluralism
32
are not even what
the community leaders are seeking. The communities asking for the ‘protection’ of their
RPLs want their laws to be recognized, and applied by the state institutions. There the
aim in the name of cultural identity is state recognition for their RPLs rather than being
told that their practices of not coming to the state institutions is also now seen as law.
33
Elsewhere, Nancy Fraser (2000) has eloquently argued that the politics of recognition is
functioning to displace concerns of redistribution and reifying cultural or group identity.
According to her it is more important to strive for a politics aimed at overcoming subordi-
nation by enabling a person to participate in society on par with every one else (Ibid 113).
I wish to extend this idea to the present context of legal pluralism.
The discourse of legal pluralism is displacing any discussion of the state power exer-
cized through law. By designating community practices as law this discourse is not actu-
ally creating a p ossibility for the co-existence of state and non-state laws as equal entities
or as mutually recognizing each other. The hierarchies remain and the mis-description of
this state of affairs as legal pluralism creates a false sense of achievement. However, this
sense of achievement is only ever available to the legal scholars in the academy.
34
The
subjects of non-state laws must always remain prepared for the state regulation to be
extended to them any time. In Fraser’s terms, our focus should be on the possibility of
eradicating institutionalized relations of soci al subordination. It means that in conceptual-
izing legal pluralism we cannot ignore the institutionalized superiority attributed to the
state legal systems. Nor should it be that anything that is labelled non-state laws is beyond
scrutiny for its capacity to deliver a fair or non-oppressive regime of rules. It is here that
the contributions of anthropologists and socio-legal scholars have a real potential to play
a role in creating a discourse of fairness and non-oppressiveness.
In conclusion, extending these ideas to the specifics of RPLs in India means that we
need to consider seriously the consequ ences of conceptualizing them as some sort of
‘special’ laws. It is no more progressive to refrain from questioning the problematic
aspects of legal pluralism discourse than to claim that it is for the minority women only
to decide whethe r they wish to live by their (sometimes, misogynistic cultural practices).
Feminist scholars have grappled with these issues for a long time and halting ly come to
the stage where critical reflexivity in arguments is accepted as more important than the
desire to appear non-imperialist.
35
I suggest that in RPLs discourse it is imperative that
legal scholars discharge their responsibility to create the space for articulating what would
constitute gender just laws for all women. This is not to distract from the valued contribu-
tions by scholars in other disciplines but is meant to bring home the responsibility to legal
scholars to be ever vigilant about the conceptual categories used in their discipline.
Notes
An earlier version of this article was presented at the 2012 International Conference on Law
and Society, Honolulu on Non-State Law and Governance in South Asia and in the Diasporas.
1. I anticipate an objection that Islamic law is divine in its origin and thus cannot be modified by
human agency. Without going into this controversy my stance is that all religious laws make a
18 A. Parashar
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similar claim and none of them have been able to oust state jurisdiction to legislate. Many
Islamic states have legislatively modified aspects of shariah rules.
2. Gender just family laws would at the very minimum give equal legal rights to men and women
during the continuation of marriage and at its dissolution. For instance, during the existence of
a marriage these rights would include the guardianship rights of husband and wife, the owner-
ship of property and at the end of a marriage by divorce rules about the custody of children
and division of property. At the end of marriage by death they would include rules of succes-
sion and testamentary powers.
3. They explain that the term ‘Hinduism and Law’ refers to Hinduism’s relationship to legal
ideas and institutions etc. as a separate or separable matter from Hindu law (Ibid, 6).
4. For example Werner Menski uses the concept of Hindu law in this manner. I will discuss this
usage later (Menski 2003).
5. All legal systems deal with plural laws but in very different ways. Therefore it is important to
pay attention to the specific details in each situation (Grillo, Bollard, Ferrari, Hoekema,
Maussen and Shah 2009).
6. In another context see Chanock (1985) for the argument that such customary rules have no
realistic relation to peoples’ practices; see also Snyder (1981).
7. AIR 1952 Bom 84; in this case, a Hindu male asked the SC to declare Hindu Marriage Act
1955 unconstitutional as a law that contravenes Art 14. He argued that Muslim men are treated
differently and allowed the right to polygamy while Hindu men are denied the same right. The
court rejected the argument but said that personal laws are not ‘laws in force’.
8. (1996) 8 SCC 525.
9. AIR 1986 SC 1011.
10. (2001) 7 SCC 125.
11. See The Kerala Joint Hindu Family System (Abolition) Act, 1975 The Andhra Pradesh Hindu
Succession (Amendment) Act, 1985; The Tamil Nadu Hindu Succession Amendment Act
1989, The Maharashtra Hindu Succession (Amendment) Act, 1994; The Karnataka Hindu
Succession (Amendment) Act, 1994.
12. For a critique of this amendment in failing to give women complete parity with men see
Parashar and Nagarajan (2012, forthcoming).
13. It is undeniable that there is no one or singular form of Hindu religion, just like any other
religion but if the category is to be used it has to be delimited also.
14. This provision was subsequently declared unconstitutional because it differentiated between
the rights of coparceners on the ground of their sex; see R. Kantha v Union of India AIR 2010
Karn 27. For further details see Parashar and Nagarajan (2012 forthcoming; see also Saxena
2011, 285ff).
15. The explanation presumably for thus restricting the rights of daughters was that they were the
‘new’ owners of property and they should not cause earlier property settlements to be disturbed.
16. For an analysis of the effects of law reforms in Hindu succession laws see (Basu 2001); see
also Majumdar (2003) who argues that women gaining increasing property rights but then not
claiming them are not contradictory developments.
17. The more common argument is that Islamic laws are un-modifiable because of their divine na-
ture. It is a topic of extensive debates but one I will not address here.
18. It is salutary to pay attention to the argument of Greenhouse that scholars must make a distinc-
tion between legal pluralism and cultural pluralism (Greenhouse 1998).
19. I wish to emphasize that the mainstream definition of law has been used to the detriment of in-
digenous peoples and their laws but it would be na
€
ıve to suggest that ifonly the colonizers had
accepted the situation as one of legal pluralism it would have led to a different outcome or
power relations.
20. One consequence of this shift in scholarly focus has been that writings about legal pluralism
are no longer dealing with the after effects of colonialism in formerly colonised societies.
However, as the postcolonial literature has made evident the analysts of postcolonial societies
necessarily have to reckon with dominant discourses and in legal pluralism discourse this
means dealing with celebratory discourses of multiplicities of law; see Santos (2002); for
essays on Indian law and pluralism see Eberhard and Gupta (2005) and various articles in
volume 31 of Indian Socio Legal Journal.
21. Fiske and Ginn (2000) suggest that it is more useful to talk about plural legalisms. This phrase
better describes the discursive formations that co-exist within a single legal order.
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22. Brian Tamanaha makes a distinction between legal pluralism and normative pluralism (1993)
Cf. Voyce (2007) for an observation that different approaches to legal pluralism raise the
question of whether these parallel laws were accomplished by cooperation, subservience or
resistance.
23. For example, Cotterrell (2008) could describe the contemporary critiques of law as in his sem-
inal Politics of Jurisprudence as varieties of skepticism; that things have not changed that
much is evident in the continuing debates about the nature and scope of legal education in
common law countries where the prioritizing of legal doctrine is a manifestation of the con-
tinuing dominance of positivists’ view of law but this is too big a topic to be discussed here.
24. It is of course extremely important to challenge the dominant disciplinary discourse and the
contemporary, innovative scholarship in law is overwhelmingly critical in genre. However,
the point I wish to make here is that there is a very wide gap between this scholarship and the
mainstream views about law. I will return to this issue later.
25. This definitional disconnect is evident in for example, Van den Bergh (1986).
26. Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1.
27. It is of course undeniable that Hindu law has always included customs (sadacara) as a source
of rules and Menski’s main argument in this book is that the central theme of Hindu law is the
phenomenon of self-controlled order rather than being subject to top down rules of law. But as
Davis (2003, 741–743) argues even then it is a big leap of faith to suggest that formal enforce-
ment of law is superfluous or unnecessary; see also Michaels (2010); Lariviere (2004).
28. Caste panchayats are different from the statutory panchayats and are more unaccountable in an
official sense, see Galanter and Baxi (1989).
29. Solanki (2012) argues that shared adjudication between state and other bodies can enhance
gender justice; cf. Basu (2012) who argues that feminists should strive for substantive rights
rather than accept that mediation is a better alternative.
30. See also Fisk and Ginn (2000, 115–120) for a discussion of how to analyze discourse forma-
tion in legal writings.
31. I am borrowing this phrase from Bannerji, note above, 556.
32. See Roberts (1998) for the argument that the concept of legal pluralism is primarily con-
structed by legal academics.
33. This is more evident in India in the case of Muslim law and the demands for state recognition
made in the name of the community. Flavia Agnes is the well-known proponent of the view
that any changes in their law must be acceptable to the Muslim community and there is no sug-
gestion that the state institutions should stop upholding these laws.
34. For example, Tamanaha (2000, 318) argues that a non-essential conceptualization of legal plu-
ralism means no form of law is placed in a hierarchy above any other but surely this is not the
experience of Indigenous Australians. The scholar no doubt has the freedom to conceptualize
thus but in the process the politics of change should not fall out of the picture.
35. See for a collection of essays on this matter the journal Ethnicities, 2008 (8); also see Phillips
and Saharso (2008).
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Legislation and Cases
The Andhra Pradesh Hindu Succession (Amendment) Act, 1985;
The Caste Disabilities Removal Act, 1850,
The Child Marriage Restraint Act, 1929
The Hindu Inheritance (Removal of Disabilities) Act, 1928,
The Hindu Widows Remarriage Act, 1856,
The Karnataka Hindu Succession (Amendment) Act, 1994
The Kerala Joint Hindu Family System (Abolition) Act, 1975
The Maharashtra Hindu Succession (Amendment) Act, 1994;
The Tamil Nadu Hindu Succession Amendment Act 1989
State of Bombay v NarasuAppaMali AIR 1952 Bom 84
Mary Roy v State of Kerala AIR 1986 SC 1011
C. MasilamaniMudaliar v Idol of Sri SwaminathaswamiThirukoil (1996) 8 SCC 525
Daniel Latifi v Union of India (2001) 7 SCC 125
Maboand Others v. Queensland (No. 2) (1992) 175 CLR 1 (Mabo No 2)
R. Kantha v Union of India AIR 2010 Karn 27
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