Synopsis: : Hindu Law Beyond Tradition and Modernity Oxford India Paperbacks |
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In this major work, one of the world's leading authorities on the subjeet argues that, regardless of contestations to the contrary. Hindu Law remains a living entity. Complex, essentially flexible, and constantly evolving, it has reached a Stage of postmodernity.
The Book closely examines theoretical and historical developments to show that Hindu law was never a code-based, positivist State law system. Challenging the core assumptions of Legal modernity, as well as traditional perceptions, the author argues that Hindu law, custom, and Cultural concepts continue to Play an integral role in contemporary judicial reasoning and in the formulation of statutes.
This intensively researched volume will be invaluable for scholars and students of law, Gender studies, religion, jurisprudence, sociology, philosophy, as well as law professionals, social theorists, and discerning general readers.
Werner F. Menski is Professor, School of Law, School of African and Asian Studies, University of London.
Preface
Part I : HISTORICAL AND CONCEPTUAL BACKGROUND :
1. Introduction :
i. Tradition and Modernity in Hindu Law
ii. Towards a Postmodern Legal Analysis
iii. Hindu Law Beyond Tradition and Modernity
iv. The Structure of the Study
2. Rising from the Ashes: Postmodern Hindu Law :
i. The Perceived Decline of Hindu Law and its Postmodern Reincarnation
ii. The Key Arguments of the Study
iii. Moving Towards a Postmodern Condition of Legal Regulation
3. Antecedents and Concepts of Traditional Hindu Law :
i. Theoretical Considerations : Orientalist Constructions of Hindu Law
ii. Analysing Hindu Legal History
iii. The Concept of Cosmic Order (rta) in Pre-classical Vedic Law
iv. Dharma and Classical Hindu Law
v. Assisted Self-control and Danda in Late Classical Hindu Law
vi. Vyavahara and Informal Dispute Settlement
vii. The Role of Custom in Classical Hindu Law
4. The Post-classical Evolution of Hindu Law and its Colonial Distortions :
i. Post-classical Commentaries and Digests
ii. Methodological Strategies to Harmonize Texts and Customs
iii. Medieval Texts and their Purported Secularization
iv. Medieval Hindu Law Under Muslim Rule
v. The Impact of British Legal Administration
vi. The Emergence of Anglo-hindu Law
5. Origins of Modernity in Hindu Law : Emerging Discourses on Reforms and Codification :
i. Debating Modernity : Legal and Ideological Challenges of Reform
ii. Early Colonial Debates on Codification and Hindu Law Reform
iii. Late Colonial Reform Debates : The Role of The Hindu Elite
6. Contesting Modernity : Post-colonial Evolution of Hindu Law :
i. The Modernizing Process of Hindu Law
ii. Setting the Debate for Reforms : The 1950s
iii. The Onset of Realism : The 1960s
iv. Legislative Counter-move : Reforms of the 1970s
7. Transcending Modernity : The Postmodern Reconstruction of Hindu Law :
i. The Re-indigenization of Hindu Law : Statutory Precursors
ii. Origins of Postmodernity : Judicial Reconstructions
iii. An Evolving Postmodern Condition : Constitutional Reawakening
iv. The Blossoming of Postmodernity
Part II : SUBSTANTIVE HINDU LAW BEYOND TRADITION AND MODERNITY :
8. Hindu Marriage Law :
i. The Traditional Hindu Law of Marriage :
a. Conceptual Core : Unity in Diversity
b. The Socio-legal Status of Marriage as a Sacrament
c. Deconstructing Modernist Misconceptions
ii. Hindu Marriage Law under British Rule
iii. Modernist Reforms to Hindu Marriage Law :
a. Modernist Agenda and their Problems
b. Limits of State Law and the Modernist Discourse
c. Contesting Modernity in the Courts
iv. Postmodern Evolution of Hindu Marriage Law :
a. Towards a Postmodern Discourse
b. An Emerging Postmodern Condition : Case Law Evidence
9. Child Marriage :
i. Child Marriage in Traditional Hindu Law
ii. Colonial Efforts to Curtail Child Marriages :
a. The Emergence of Social Activism
b. Colonial Intervention in Early Marriages
c. The Inefficient Restraint of Child Marriages
iii. Child Marriage in Independent India :
a. New Statutory Reforms
b. Perceptions of Social Change
c. Reforms of the 1970s
d. Case Law on Child Marriages : Towards Postmodernity
iv. The Postmodern Condition of Child Marriage Law :
a. Social Awareness in the Most Recent Case Law
b. Postmodern Reflections
10. Polygamy :
i. Traditional Hindu Law on Polygamy
ii. Hindu Polygamy Under British Rule
iii. The Modernist Abolition of Hindu Polygamy :
a. Reformist Agenda
b. Statutory Regulation of Hindu Polygamy
c. The Deficient Penalization of Hindu Polygamy
iv. The Postmodern Scenario :
a. Continuing Modernist Demands for Reform
b. Surrogate Debates on Muslims and Legal Uniformity
c. Limits of Modernist Intervention
11. Divorce :
i. Traditional Hindu Concepts of Divorce
ii. Reforms During the British Period
iii. Modernist Divorce Reforms in Independent India :
a. The Hidden Agenda of Hindu Divorce Reforms
b. Modernist Representations of the Statutory Scheme
c. The Reforms of the 1970s : Pushing the Limits
iv. Postmodern Hindu Divorce Law :
a. Backlash Phenomena : Refusing to Legislate Further
b. Modernist Despair and Postmodern Inklings
c. The Psycho-social Basis of Postmodern Hindu Divorce Law
d. Postmodern Judicial Activism in Divorce Law
12. Maintenance Law :
i. The Traditional Protective Framework
ii. The Lull of the British Period
iii. Maintenance Law in Modern India :
a. Modernist Arguments for Law Reform
b. Legal Reforms of Hindu Maintenance Law
c. Secular Reinforcement : The Criminal Procedure Code
iv. The Postmodern Condition of Maintenance Law :
a. Modernist Critiques of Maintenance Law
b. Postmodernity in Judicial Social Engineering
Part III : CONCLUDING ANALYSIS :
13. Postmodernity and Beyond :
i. Transcending Tradition and Modernity in Hindu Law
ii. Postmodernity in India's Legal System
iii. Postmodern Hindu Law as Non-western Model Jurisprudence
iv. Deconstructing Modernist Discourses of Non-western Laws
v. Postmodernist Challenges to the Concept of Law
vi. Hindu Law, Postmodernity, and Globalization
Table of Cases
List of Statutes
'... Big, but accessible, written with immense verve, panache and ambition... the importance of this book transcends agreement or disagreement with its central thesis... compulsory reading on Hindu law." - The Hindu.
'Menski persuasively demonstrates how Hindu statutory and case law have accomplished a messy compromise between textual traditionalism and modernist centralism... This book is extensively researched, delightfully spirited and refreshingly original." - The Book Review