From Dharma to Law and Back? Postmodern Hindu Law in a Global World

It is an observable fact now that Indian law has developed over the past few decades, away from the outwardly postcolonial and partly aggressively modernist presuppositions of the 1940s and 1950s, towards an embarrassed self-critical assessment of the present and an almost anxious vision of the future. This is what I portray here as a postmodern approach. The earlier, almost blind belief in modernisation and its inherent promises of progress has been replaced by a typically Hindu form of trust in the possibility of a better future, for which all concerned parties have to work. One might call this the dharma of postmodern Hindu law. Building on Masaji Chiba's jurisprudential models my paper's analysis of recent developments in Indian family law and constitutional law illustrates how and why Indian law makers have lost faith in the alleged superiority of western models and have begun to remember some of their own fragments of legal history and conceptual elements which are now reconstructed as building bricks for postmodern Hindu law and Indian laws. Typically, therefore, these postmodern laws tend to manifest themselves in complex processes that involve reconstruction of today's laws by reference to presumably indigenous norms and values as well as Western models. It looks messy and inconsistent, but there is a deeper sense of purpose behind individual developments. This means, then, that the earlier exclusive reliance on modern western models has had to give space for a renewed and vigorous hybridisation of Indian laws and other legal systems. Postmodern Hindu law and postmodern Indian laws are today found in an ongoing process of reconstruction. This is nothing new in itself, since we should long ago have learnt to see all laws as dynamic processes. What is new, however, and thus difficult to comprehend for some, is that 'tradition' and Hindu traditional concepts as legal postulates, for that is what they are, should have become so critical as ingredients of postmodern law making in India. In a global context, this means that Hindu law is neither dead nor defunct, but it has the potential to serve as an instructive model of how postmodern laws are created and operate in practice

Flying Kites in Pakistan: Turbulences in Theory and Practice

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Law as a global entity through Italian eyes and minds

This contribution discusses, from the perspective of global comparative law, how Mariano Croce’s English translation of a major book by an important early-Italian scholar, Santi Romano, allows helpful insights into early twentieth-century Italian thinking about the intrinsically plural nature of law. This debate connects directly to current worldwide discourses about legal pluralism, showing how Romano’s exciting project forms an early precursor of the gradual movement towards obtaining a better grasp of the inner nature of the deeply plural concept of law. Romano’s work, as a remarkably pertinent early contribution, of lasting relevance to global legal theorizing, indicates that a reductionist, positivistic conceptualization of law that ignores the legal agency of common citizens could easily lead to disastrous outcomes through abuses of state-centric powers. Connecting Romano’s early theorizing to many currently ongoing debates in different jurisdictions and legal orders about the plurality of laws, this article seeks to demonstrate the powerful impact that such kind of pioneering work can have even today. It strengthens, above all, the currently growing realization that law is certainly much more than state law, and that people’s laws and their diverse values and ethics should be treated with more respect by legal orders

Human Rights in Southeast Asia

Many challenges exist regarding the discourse over human rights in South East Asia due to the complex relationship between the region’s myriad cultures, laws, religions and political desires. This socio-political environment produces a number of varying, and often contradictory, interpretations of human rights, as well as differing opinions on how they should be implemented. On one hand, some countries in Southeast Asia have internalized international human rights instruments by amending their constitutions in order to provide a semblance of protection for their citizen’s human rights. On the other hand, some countries still operate under authoritarian regimes and continue to violate certain internationally recognized rights for the sake of preserving political stability and economic development. Proponents of such regimes often claim that this is done to maintain both societal and religious harmony. Therefore, the effort to address human rights issues in Southeast Asia must expand beyond the international legal sphere and take into account the intricate relationships and power struggles between the region’s various economic interests, social and cultural norms, and religions. Furthermore, the successful implementation of human rights law in Southeast Asia will require a number of obligations and checks be imposed on the state governments in the region. The specific means by which to promote human rights in South East Asia, and how to reconcile diverging options on the definition and scope of said rights, was the theme of the 2nd Annual Conference of the Centre for Human Rights, Multiculturalism and Migration (CHRM2) and Indonesian Consortium for Human Rights Lecturers (SEPAHAM Indonesia), held in August, 2017, at the University of Jember. This article is a summary of the major points and topics covered during the two day conference

Sanskrit Law: Excavating Vedic Legal Pluralism

In light of currently developing and purportedly postmodern global comparative legal analysis and recent theoretical writing about the ubiquitous phenomenon of law, this paper critically re-examines our somewhat self-congratulatory assumptions of the advances of postcolonial and postmodern legal scholarship and demonstrates that legal pluralism is actually nothing new at all. Ancient Sanskrit sources, which can be excavated because somewhat miraculously we still have some of the relevant texts with their many variant readings, indicate that legal pluralism has existed for thousands of years as a basic fact of human life. Thus legal pluralism is not appropriately seen and discussed today as a contested postmodern phenomenon. Rather it seems to be true, as Griffiths declared with some conviction, that legal pluralism is simply a fact. If this is correct, as seems confirmed even by ancient textual evidence, we have been ignoring this ancient truth at our peril and have simply been engaged in re-inventing wheels also in legal pluralism studies, an admittedly exciting but increasingly tired and overworked seam of academic knowledge about law. I myself assumed uncritically for many years that ancient Sanskrit had no proper word for ‘law’, accepting others’ positivistic and orientalising assertions, without conducting research of my own. Once I began to research the grammar of Sanskrit law in the light of legal pluralism theory, however, it became rapidly apparent that early Sanskrit did in fact develop and begin to distinguish an increasingly large number of terms for ‘law’, though notably not for state law. The admittedly difficult language of early Sanskrit reflects a richly patterned and fluidly evolving understanding of legal pluralism within ancient Indic societies and cultures, showing that various interlinked legal phenomena existed and were thought about thousands of years before our time. Since the purported absence of a single key word for ‘law’ in Sanskrit has given rise to rather misguided assumptions among scholars of Indology as well as lawyers that ancient Indians were somehow deficient in legal theorising and/or lacked a clear conceptualisation of ‘law’, the entire field of knowledge now needs to be re-examined, with some urgency, to excavate the rich plurality of nuanced meanings of what in English we might label as various types and conceptualisations of ‘law’. This article demonstrates that the various Sanskrit terms that were known and used match to a surprising extent the well-known major manifestations of law that have been globally discussed, namely different forms of natural law, socio-legal norms and state-made positivist laws, even globalisation in a macrocosmic sense. Establishing a rough taxonomy of these legal terminologies in Sanskrit, the paper examines in particular to what extent ancient Hindu law could be seen as a natural law system, focused on the key concepts of rita and satya. In addition, dharma, danda, vyavahāra, ācāra and its various forms and other terms relevant to a deeper understanding of the richness of ancient India’s conceptualisations of ‘law’ are briefly examined. The conclusion from this exercise has to be that ancient Indians were much more plurality-conscious and legally aware than we have imagined so far, while retaining the somewhat idealistic presumption that self-controlled ordering and informal settlement of any issues would be preferable to more highly formalised methods. In that respect, too, ancient South Asian cultures and normative systems seem to share much with other non-Western legal orders. The absence of state-centricity, in particular, remains deeply relevant for understanding the messy functioning of Indian laws today

European Islam in the Age of Globalisation and Legal Pluralism

The article argues that polycentric and polyphonic basic principles of pluralist navigation are always needed as balancing tools to preserve sensitivity and awareness of agile agency of various legal, social and religious stakeholders to allow situation-specific forms of navigation. Clearly, this does not mean that ‘anything goes’, but demands that complex hybrid solutions have to be sought. Obviously states must retain a right to determine responsibly how their respective national identity and legal order should develop in conditions, nowadays, of intense pluralist challenges posed by increasingly diverse demographic structures. Especially the presence of many people in the Nordic countries who are Muslims, may have strong links to other legal orders, and feel connected to a religion that they value as part of their own life and identity while also claiming the right to be Danish, Finnish, Norwegian or Swedish, cannot be ignored

Fuzzy Law and the Boundaries of Secularism

First, let me thank Prof Marie-Claire Foblets, Dr Prakash Shah and the whole team organising RELIGARE for inviting me to speak tonight at one of the top three law schools of the country. Well done, Queen Mary! It is also a special delight to thank you, Prof Roger Cotterrell, for being our chair tonight and to express my gratitude for your generous introduction.  &nbsp

Public Participation in African Constitutionalism

This review explores why public participation in constitution-making matters for cultivating responsible governance and for fine-tuning justice, focused on immensely rich African evidence within a broader comparative constitutional law context.        &nbsp