Lexington, Virginia • November 15, 2010
While it may seem counterintuitive, British colonial rule was defined by flexibility. Governing indigenous populations partly by a version (however distorted) of their own legal standards is one of the ways this tiny island nation was able to control for so long millions of people living thousands of miles away.
Consider India, says Washington and Lee University religion professor and law lecturer Tim Lubin. British command and control of the vast country, larger and more diverse than Western Europe, was possible in part because the British tried to codify elements of Hindu and Islamic customary law to settle disputes.
"While the British introduced their own criminal code and court system, traditional ‘personal law,' roughly equivalent to our own Family Law, was used when religious custom could not be dismissed," says Lubin. "Marriage, divorce, adoption, inheritance-all are matters closely governed by religious identity. And it was pragmatic for the British to try to respect those traditions so it would be easier to govern."
"However British ‘Hindu Law' was fraught with problems," Lubin adds. "It erred in treating traditional maxims like statutes, imposing the norms of the small Brahmin elite on diverse groups officially classed as ‘Hindu', and formalizing their idiosyncratic understanding of customary law through precedent-based case law."
This is but one of the many fascinating topics explored in Lubin's new co-edited collection Hinduism and Law, recently published by Cambridge University Press. Covering the earliest Sanskrit rulebooks to the codification of 'Hindu law' in modern times, Hinduism and Law examines how Hinduism and the law relate and interact in areas such as ritual, logic, politics, and literature, offering a broad coverage of South Asia's contributions to religion and law at the intersection of society, politics and culture.
Lubin says the primary goal of the new volume is to expose the long history and controversial present of India's legal system, often overlooked in studies of comparative law or ancient law, to a broader audience. Scholars of history, comparative law, political science and even legal professionals who deal with Hindu law in its contemporary form will find something of interest in the book.
"People don't realize what a rich field of experience South Asia has to offer in helping us think about issues that are quite pertinent to our own parochial concerns in the U.S.," says Lubin.
For example, India's current hot button issues are reminiscent of the culture wars that mark contemporary American politics. India is constitutionally defined as a secular state, but a cluster of pro-Hindu groups and parties have long fought for the establishment of a single common personal law code to govern the entire population regardless of religion, and for legal recognition of India's putatively Hindu character. But while the Hindu Nationalists are constitutionally prohibited from running for office on a religious platform, they do argue for the intrinsic "Hindu-ness" of India as country.
"When we hear conservative Christians speak about ‘values' in the political sphere, it is exactly like Hindu Nationalists describing Hindu-ness," says Lubin. "They want to talk about a cultural rather than a religious sensibility."
Hinduism and Law pays substantial attention to India's contemporary legal landscape, but it begins by surveying Hindu Law's ancient foundations in the Dharmashastra, a huge corpus of Sanskrit texts that constitute the "learned study" of dharma (justice or virtue). In this section of the book, contributors examine the history of this literature, as well as surviving records of pre-modern legal practice, exploring what happens when these ancient concepts get recast as ‘Hindu Law' during British colonial period.
The other two parts of the book look at the interaction between Hinduism and law as they intersect culturally, socially, politically, and legally in the pre-modern as well as independent India. In addition to co-authoring the book's introduction, Lubin contributed a chapter titled "Indic Conceptions of Authority," which examines Indian concepts analogous to epistemic authority and practical authority in the legal sphere, drawing on both scholastic definitions and actual pre-modern legal usage.
"The book not simply about the Hindu Law but about the interactions between Hinduism and society through history," says Lubin. "Several chapters take an interdisciplinary approach, looking to literature, politics, ritual, and theology to illuminate the social and cultural impact of the law. The last third of the book looks at how religion and the religious are dealt with in a secular constitutional legal system - which bears comparison with similar challenges in the West."
Last year, Lubin received two national fellowships for work on his research project "Authority, Law and the Polity in India, 300-1700." He spent the 2009-10 academic year in India supported by a U.S. Department of Education Fulbright-Hays Faculty Research Abroad Fellowship, which is aimed at strengthening area and foreign language expertise among U.S. educators. Lubin continues his research this year with the support of an American Philosophical Society Sabbatical Fellowship.