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

Menski, Werner

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Abstract

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 The earlier, almost blind belief in modernisation and its inherent promises of progress has been replaced by a typically Hindu form of trust in the possibility of a better future, for which all concerned parties have to work.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.

Item Type: Working paper
Series Name: Heidelberg Papers in South Asian and Comparative Politics
Volume: 20
Date Deposited: 05. Feb 2004 13:55
Date: 2004
ISSN: 1617-5069
Faculties / Institutes: Service facilities > South Asia Institute (SAI)
Service facilities > Südasien (Sondersammelgebiet
Subjects: 320 Political science
Controlled Keywords: Indien, Hinduismus, Rechtswissenschaft, Familienrecht, Rechtsvergleich
Uncontrolled Keywords: India , Hindu Law , Jurisprudence , Family Law , Comparative Law
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