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Law and Society in Modern India.

This volume contains a collection of thirteen articles by Marc Galanter, the Evuje-Bascom Professor of Law at the University of Wisconsin at Madison, and one of the most, if not the most, prolific writers on modern Indian law and law-related topics in the United States. Ten of these articles appeared earlier, between 1967 and 1986, "in scattered publications, most not readily available in India, |which~ means that they reached few among those for whom they were written." Three articles are new and were written specifically for this volume: "Missed Opportunities: The Use and Non-use of Law Favourable to Untouchables and Other Specially Vulnerable Groups," "New Patterns of Legal Services in India," and "Epilogue: Will Justice Be Done?"

The "Epilogue" is a very personal piece, both interesting and disquieting. It is interesting because Galanter reflects on his more than thirty-year-long contact with India, from the time when, in 1957, one year after graduating from law school, he went to India to study the abolition of untouchability: "I encountered a world vastly different than my training |in an American law school~ had led me to expect or equipped me to deal with," and he talks about the many lessons which the study of law and justice in India taught him. He refers to the fortunate fact that, since the time when he started his research, "there has grown up a vigorous scholarly community devoted to social research on law," but he is silent on the pivotal role which he himself played in having a sizable section of that community focus its research on India. On the other hand, he rightly draws attention to the less fortunate fact that, even after Independence, "legal intercourse between India and the United States has been heavily one-directional." A whole generation of young Indians came to study at our law schools, but, with the exception of the Emergency and the Bhopal disaster, India itself "has been invisible to the American legal academy and to the world of law practice" (ibid.). None of our 200 law schools has a program focusing on India; none of our 6000 law teachers is paid to specialize in Indian law.

The disquiet which I alluded to earlier was not so much caused by the statement in the epilogue that "during the past dozen years, most of my research has been on the United States." Working on American law has not prevented Galanter from continuing to publish on India. His major book, Competing Equalities: Law and the Backward Classes in India, was published in 1984. In fact, he acknowledges how much of his theoretical work has benefited from research in and on India. We know that "Why the 'Haves' Come out Ahead: Speculations on the Limits of Legal Change" (1974) owes much to the study of litigation under the Untouchability (Offences) Act, 1955 (in The Untouchables of India, ed. M. Mahar, 1972). "Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law" (1981) was the outcome of Galanter's attraction to pluralism, which may come naturally to him, but which, again, found its first expression in an Indian context, in "The Problem of Group Membership: Some Reflections on the Judicial View of Indian Society" (1962, followed immediately, in 1963, by a critique of the Supreme Court of Israel, in "A Dissent on Brother Daniel"). What does alarm me is that Galanter compares himself to a "seeker who pursues his quest to a distant city where he discovers a puzzling map which finally reveals to him that the treasure he seeks is buried in his own back yard--which he then returns to unearth" (p. 299; emphasis mine). Sentences such as this, plus the decision to publish a volume of collected articles, and the addition to it of an "epilogue," create the impression of a scholarly testament and of a farewell to the study of Indian law and society. That would be a terrible loss to scholarship on law in India.

Marc Galanter's articles are preceded by a lengthy, 82-page-long introduction by Rajeev Dhavan, formerly a Reader at Brunell University and now a practicing lawyer in India, who acted as the editor of the volume. Dhavan's introduction is divided in two parts: "The Jurisprudence and Sociology of Modern Indian Law," and "Marc Galanter on Indian Law." The remaining 30 pages contain end notes.

Except for a few references to the rsis, the dharmasastras, and the earlier tradition generally, the first part is devoted primarily to an examination of "the various strands of scholarship" on Hindu--and Indian--law in the course of the last two centuries, both under the British Raj and in independent India. There is hardly any aspect of Hindu and Indian law that is not touched on, somewhere. In addition, every statement, often every sentence, is supported by extensive bibliographical references. I wish these notes had been printed as footnotes rather than as end notes. Constantly having to turn pages in search of the relevant notes is distracting, and, many inaccuracies in names and titles notwithstanding, the notes are informative and valuable for non-specialists and specialists alike. According to Dhavan, however much has been written on Hindu law, very little has been achieved; the ultimate task of interpreting the data correctly remains to be done, especially in the area of the relationship between law, the state, and political economy--"political economy" is a term that recurs throughout the introduction. As far as traditional Hindu law is concerned, "the efforts of the rishis have been commented on, but not been sufficiently critically examined and evaluated." In his opinion, even Kane's History of Dharmasastra, which, he acknowledges, "stands over twentieth century Hindu law scholarship like a colossus ... did not develop sociological insights into the development of Hindu law" (ibid.). Many scholars continue to write on pre-British Indian law, but "some of their work is mechanical, uninspired and demonstrates a rote learning rather than imaginative interpretation" (ibid.). Dhavan is equally pessimistic on the study of modern Indian law. For instance, "the working of Indian law has not received systematic consideration"; "ironically, there has been very little systematic work done on Indian litigation"; "a well-rounded literature on the Constitution does not exist"; "a proper analysis of how the form, substance and process of village law relates to the political economy needs fresh and separate attention." Indian jurists and Indian law schools are singled out for severe criticism: "scholarship on Indian law reached its nadir when India became independent"; "the fact remains that the passing of the Constitution did not stimulate a revival in Indian studies of law"; "apart from some notable exceptions, Indian law schools were, and are, not the source of a new-found theoretical nourishment." At the individual level, Dhavan provides interesting comments on the role played by such prominent people as one-time Chief Justice P. B. Gajendragadkar, Justice V. R. Krishna Iyer, and his own father, Justice S. S. Dhavan. J. Duncan M. Derrett, who, for obvious reasons, figures prominently in the volume, is said to have made "a serious attempt to look at Indian law and society" and is credited with "many insights"; yet, "Derrett's writings display an imperfect understanding of the political economy of the Indian State and the extent to which the Indian State balanced and manipulated power, status, and authority on the basis of class, caste, and economic purpose." Many of Derrett's widespread articles might more conveniently have been referred to via his more easily accessible Essays in Classical and Modern Indian Law (4 vol., 1976-78).

Dhavan's dialogue with Galanter starts on p. xxxvii, well before the beginning of the second part. Again, he is critical. In Galanter's writings as well, he feels, "what is missing ... is precisely the context of political economy within which the terms 'modernity' and 'tradition' must be understood." Occasionally, it is said that "Galanter does not really explain this," or even that "Galanter is more concerned with marking out a tentative domain of research than providing an understanding of modern law." Galanter is described as "a liberal pluralist ... rather than a dispassionate social scientist," and Dhavan is skeptical about "Galanter's passionate belief in a voluntaristic pluralistic society in which all kinds of group life can co-exist alongside each other." All in all, however, Dhavan provides a detailed, thoughtful, and incisive analysis of Galanter's opus; he became, in Galanter's own words, "a reader who reads one's work with an intensity that matches its writing." I was pleased to note that "in the main, Galanter--following Rocher, Derrett, and, ultimately, Nelson--feels that the British may have been wrong in giving so much prominence to the dharmasastra." I must point out, though, that the immediately following sentence: "Rocher depicts dharmasastris as a talking club of jurists--quite like jurisprudes in our day" is a misrepresentation. Perhaps Derrett, but neither the late James H. Nelson nor I would refer to the dharmasastrins as "jurists."
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Author:Rocher, Ludo
Publication:The Journal of the American Oriental Society
Article Type:Book Review
Date:Jan 1, 1993
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