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Messy Compromise?


Vasanthi Srinivasan

HINDU LAW: BEYOND TRADITION AND MODERNITY
By Werner Menski
Oxford University Press, New Delhi, 2003, pp. xxii 648, Rs. 995.00

VOLUME XXVIII NUMBER 7 July 2004

“This study should not be read as an attempt to revive classical Hindu Law or promote any sort of hindutva agenda…”(p. xv) Armed with this disclaimer, Werner Menski launches into a pathbreaking exposition of Hindu law as a fluid, internally diverse and situation-specific system of concepts and norms. Fully aware that there is no single monolithic system, Menski prefers to speak of ‘Hindu law’ in the singular because of the emphasis on self-controlled order across space and time.   The introduction lays out how Hindu law has been ‘distorted’ by three kinds of scholars—orientalists and legal positivists who claim that Hindu law is an ancient, divinely revealed “code” or “Law” suppressing its diversity and contradictions; modernists who are embarrassed about the continuing relevance of Hindu law and feminists who engage with personal laws only to expose their ideological and political bias. Growing skepticism about modernity in general and formal law in particular calls for a fresh assessment.   Adopting a postmodern approach, Menski highlights the fluid subjectivity, situational sensitivity and decentred ethos of Hindu law as it is lived by many Hindus and perhaps many Indians (p. 22 & p.121). Tracing the antecedents (chapter 3), he points out that Hindu law is not a religious but a ‘chthonic legal system’ without a definite origin in a doctrinally central event or theory despite assertions to the contrary (p.79). Its conceptual starting point lies in the idea of a pre-existing macrocosmic order (rta) that provided the model for social order and individual conduct. Ritual reenactment of macrocosmic order gave way to dharma as self-controlled order at an individual and local level; far from being unitary or univocal, dharma was articulated in terms of stages and goals of life, caste status, specialized functions of a King and so forth. Thus, “a Hindu who seeks guidance as to what is appropriate is at sea, so to say, floating on a bed of conceptual support structures that demand of every individual at all times to actively stay afloat by striving to do the right thing” (p. 98).   Because human beings are selfish and greedy, self-controlled order had to be induced and reinforced. Herein comes danda or the punishing rod which is best seen as a symbol of ‘assisted self-control’, a deterrent threat designed to encourage individuals to follow dharma on their own (p.109). Rajasasana or the ruler’s verdict came to be recognized as a valid means of ascertaining ...


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