I. Introduction
The nature and scope of indigenous law in any society can be studied from a number of perspectives (see Baxi, 1979c). One can study it from the perspective of the state legal system (SLS), for example, ascertaining primarily the enclaves of “customary” or people's law tolerated or legitimated by it and examining the impact of SLS on such enclaves and vice versa.
But I find such a perspective too limited and too hegemonical. It is limited for the very reasons for which all “top-down” perspectives are limited. “Top-down” perspectives deny existence or value to those areas of social reality and process which are uncongenial to the establishment or official Weltanschauung. They also turn out (whether so intended or not) to be hegemonical by favouring the assumption that patterns of legal and social rationality institutionalized in the SLS are inherently superior, if not manifestly so, to those institutionalized in the “folk”, “group”, “people's” or non-state law. The pre-colonial Asian societies were principally governed by the non-state law. Colonization processes superimposed “Western” legal norms, institutions and culture. Even so, most social life still continued to be under the domain of people's law. In these societies, even after independence and despite massive reassertion of Western legal culture, many vital areas of social life continue to be governed and dominated by non-state legal systems (NSLS), which as often complement as contradict the SLS. In this paper, I attempt to look at indigenous or people's law in India on its own terms, as providing alternate modes of social action and ordering, and trace briefly the patterns of relationship between SLS and NSLS in what appears often as a struggle for hegemony. In the process, I naturally neglect to list and analyse areas where the SLS had tolerated, legitimated or co-opted congenial elements or aspects of NSLS.1 This kind of cataloguing, while helpful, may only provide a static, and often distorting, focus as far as the Indian sociojural experience is concerned. This paper deals first with the manner in which the classical Hindu law dealt with the notions of dharma and “custom” and the struggle, under the British regime, on behalf of the “high-culture” law to overcome the people's law. We then examine more specifically the relations between SLS and NSLS in contemporary India. The account is merely illustrative of a process of pluralistic growth and development, which cannot be grasped by an exclusive focus on NSLS.
More on the topic I. Introduction:
- I. Introduction
- I. Introduction: Defining “Health Food” in Taiwan
- I. Introduction
- Chapter I. Introduction
- I. Introduction
- I. Introduction
- Table of Contents
- LAW OF SUCCESSION
- CONTENTS
- I. INTRODUCTION: A PROSAIC APPROACH TO THE RULE OF LAW