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402: Law, Rights and Culture




Credits: 2
Course Requirements: Classroom presentations and a term paper (5000 words)

This course aims at exploring the interplay between culture and Law-Rights in such a way that certain interdisciplinary concerns in the research and teaching of law in general, and legal theories and philosophies in particular in regular law schools and departments, are addressed. The course however does not have a clear hypothesis. It is exploratory in nature and addresses four themes, which I believe are important, and could potentially not only illuminate our understanding on them but also redefine legal pedagogic engagement. The first theme explores into the histories and philosophies of "path-making" in modern law with the help of a set of critical texts with a view to critically reflect on the question of 'normativity'. Similarly the second theme will address what is by now a well-explored theme in cultural studies, viz., "cultural translations and the problem of intelligibility". I hope the readings chosen for the them adequately represent the complexity of the issue and also help us grapple with the core concerns. The third theme broadly looks at the contributions of anthropologists to the understanding of custom and law, including the negotiations of rules and laws outside the realm of state. The fourth theme attempts at addressing some of the keenly contested contemporary concerns in law and society studies such as the imaginations of "secularism" and identity politics.


Readings:

Session One: 'Enculturing' Law and Rights
Readings:
1. Austin Sarat and Thomas Kearns, eds. Law in the Domains of Culture , chs. 1 and 2.
2. Robin West, "Disciplines, Subjectivity and Law" in Austin Sarat and Thomas Kearns, eds, The Fate of Law.

Module One: Law and the Construction of the Other

Session Two: Modernity and the Nature of Legal Discourse
Readings:
1. Lon L. Fuller, "The case of the Speluncean Explorers". Link found here
2. Samuel Thompson, "The Authority of Law".
3. Henry Maine, The Ancient Law link found here
4. Bentham, Selections from Theory of Legislation. Link found here
5. Peter Fitzpatrick, Modernism and Grounds of Law.

Session Three: Colonialism and the 'invention' of custom
Readings:
1. Malinowski, Crime and Custom in Savage Society.
2. Janaki Nair, Women and Law in Colonial India. Link found here
3. Mahmood Mamdani, Citizen and Subject Link found here
Session Four: From Status to Contract: Paths of Colonial law
Readings:
1. Bernard Cohn, "From Indian Status to British Contract". Link found here
2. Eric Stokes, The English Utilitarians and India. Ch. III.
3. Sanjay Nigam, "Disciplining and Policing the 'Criminals by Birth'".
 4. Ronen Shamir and Daphna Hacker, "Colonialism's Civilising Mission: The Case of the Indian Hemp Drug Commission".

Module Two: Cultural Translations and Questions of Intelligibility

Session Five: 'Cultural Difference'
Readings:
1. A.K. Ramanujan, "Is there an Indian way of Thinking?"
2. Ashis Nandy, "History's Forgotten Doubles". 3. James C. Scott, "Geographies of Trust...",  ;Link found here
4. Partha Chatterjee, "Community in the east" Link found here
5. Comaroff, "Colonialism, law..." Link found here
Session Six: 'Legal Cultures': Adapting to Modernity
Readings:
1. Sally Engle Merry, "Resistance and Cultural Power of Law. Link found here
2. Alan Hunt, "The Role of Law in the Civilizing Process and the Reform of Popular Culture".
3. R.S. Khare, "Indigenous Culture and Lawyer's Law in India".
 4. Robert Porter, "Strengthening Tribal Sovereignty through Peacemaking: How the Anglo-American Legal Tradition Destroys Indigenous Societies".

Session Seven: Cultural Translations: Native Discourses of Rights
Readings:
1. Satyamurthy, Rights of Citizens Link found here
2. Sudhir Chandra, Enslaved Daughters. Link found here
3. Upendra Baxi, Future of Human Rights, ch. 3. Link found here
 4. Satish Sabharwal, in Satish Sabharwal and Hieko Seivers eds., Laws, Rules and Constitutions.
5. Sumit Guha, in Satish Sabharwal and Hieko Seivers eds., Laws, Rules and Constitutions.

Module Three: Ethnographies of Law and Rights

Session Eight: Going beyond the state: A Perspective on Legal Anthropology
Readings:
 1. Sally Falk Moore, "Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999". Link found here
 2. Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective". Link found here

Session Nine: Customary Law and Customary Rights
Readings:
5. A.R. Radcliffe-Brown, Structure and Function of Primitive Society, chs. XI and XII.
6. A.I. Pershits, "The Primitive Norm and Its Evolution".
7. Carol Greenhouse, "Looking at Culture, Looking for Rules".
8. Bernard Cohn, "Anthropological Notes on Disputes and Law in India".
9. Donald R. Davis, Jr. "Recovering the Indigenous Legal Traditions of India".
10. Sumit Guha, "Wrongs and Rights in the Maratha Country: Antiquity, Custom and Power in Eighteenth Century India".

Session Ten: Grassroots (Indigenous) Law
Readings: 1
. Anna-Maria Marshall and Scott Barclay, "In Their Own Words: How Ordinary People Construct the Legal World". Link found here
2. Marc Galanter, Law and Society in Modern India, Part II. .Link found hete

Sarah Leah Whitson, "Lok Adalats: An Experiment in Informal Dispute Resolution in India".

Module Four: Contested domains: Law and Rights in contemporary debates on Secularism and Identity Politics (With Mathew John)

Session Eleven: Am happy to go with any text you might find useful but my suggestions would be Nandy, Bhargava and Donald Smith.

Session Twelve and Thirteen:
(i) Everson v. Board Of Education Of Ewing 330 US 1 (1947). Link found here
(ii) Wisconsin v. Yoder 32 L.Ed.2d 15.
(iii). Constituent Assembly debates.
(iv) Text of Indian constitution Arts. 25-28. Link found here
(v) The Commissioner Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of Shirur Mut AIR 1954 SC 282. Link found here
(vi) S.R. Bommai v. Union of India (1994) 3 SCC 1.
(vii)Sastri Yagnapurushadji And Others v. Muldas Bhudardas Vaishya AIR 1966 SC 1119.
(viii) Ramesh Yashwant Prabhoo (Dr.) v. Prabhakar K. Kunte, (1996) 1 SCC 130.
(ix) State of Karnataka v. Praveen Togadia 2004 (4) SCC (May 14th).
Session Fourteen: Concluding Reflections Readings:
1. Guyora Binder and Weisberg, "Cultural Criticism of Law".

Session Fourteen: Concluding Reflections
Readings: 1. Guyora Binder and Weisberg, "Cultural Criticism of Law".




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