The Aborted Restoration of 'Indigenous' Law in India,' Comparative Studies in Society and History 14:53-70 (1972)
Abstract
Traditional law'Hindu, Muslim and customary'has been almost entirely displaced from the modern Indian legal system. Today, the classical dliarmai?¢stra component of Hindu law is almost completely obliterated. It remains the original source of various rules of family law. But these rules are intermixed with rules from other sources and are administered in the conmion-law style, isolated from .i?¢stric techniques of interpretation and procedure.* In other fields of law, dharma? ? stra is not employed as a source of precedent, analogy or inspiration. As a procedural-technical system of laws, a corpus of doctrines, techniques and institutions, dharma? ? stra is no longer functioning.^ This is equally true of Muslim law.) I'he local customary component of traditional law is also a source of official rules at a few isolated points, but it too has been abandoned as a living source of law.* 'Legal system* and *law* are employed here in a narrow (but familiar) sense to refer to that governmental complex of institutions, roles and rules which itself provides the authoritative and official definition of what is Law*. In contemporary India, as in other complex societies, there are myriad agencies for making rules and settling disputes which lie outside of the legal system as narrowly and authoritatively defined. Many matters are regulated by traditional legal norms; tribunals of the traditional type continue to function in many areas and among many groups, but without governmental force.s The point here is that they have been displaced from the ofiicial system, powerfully infiuenced by it and in many cases entirely supplanted by it.^ The oficial legal system comprises laws, techniques, institutions and roles which are, with few exceptions, modifications of British or other western models. The first part of this paper examines briefly the failure'or perhaps containment is more accurate'of post-Independence attempts to replace the present legal system with revived indigenous law. The second part attempts to explain this fiiilure and to suggest its implications for the comparative study of legal systems.
