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Publisher: SOAS School of Law Research Paper No. 05-2010
Languages: English
Types: Book
Subjects: 4000, working_papers_sl
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.\ud \ud 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’.\ud \ud 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.
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