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Course 702: Law, Rights and Culture




Course Requirements: Class presentations-cum-short assignment (800-1000 words) and a term paper (approximately 5000 words)

Much of the social regulation and transformation across diverse jurisdiction occurred/continue to occur through the mechanisms of ‘law’ and ‘rights’. While the notion of ‘law’ in one or another form was familiar to many parts of the ancient and medieval worlds (eg., dharma, lex, jus etc), the idea of rights appears to be a specific outcome of late medieval European developments. However, both law and rights in their contemporary form, viz., as instruments embedded within the framework of nation-states managed by constitutional orders, seems to have emerged as the defining mechanisms of regulation and transformation of social orders only since 17th century. This course aims to explore certain key trajectories through which law and rights emerge and get deployed as such key mechanisms, both in Europe and outside, with an intention to raise new questions, and cast new light that could help us think about law and rights critically.

The course has four modules. The first one deals with revisiting the logic of modern law and rights. The second one deals with the colonial intervention. The third one deals with imaginations of law and rights outside the formal state/constitutional mechanism. The forth one deals with the theme ‘contemporary constitutional cultures’.

Module One: Law as Culture Study and Cultural Studies of Law

Session 1: Law, Society and Culture: Exploring the Linkages in Legal Education

Edson Sunderland (1906), “Law as a Culture Study”, Michigan Law Review, 4(3). Link found here
Arthur Tylor von Mehran (1965), “Law and Legal Education in India”, Harvard Law Review 78 (6). Link found here
Robert Granfield (1986), “Legal Education as Corporate Ideology”, Sociological Forum 1(3). Link found here

Session 2: A cultural study of law

John R. Hall (2000), “Cultural Meanings and Cultural Structures”, History & Theory 39.Link found here
Lawrence M. Friedman (1989), “Law, Lawyers and Popular Culture” Yale Law Journal, 98(8).Link found here
Allan Watson (1983), “Legal Change: Sources of Law and Legal Culture”, University of Pennsylvania Law Review 131(5).Link found here
Richard J. Ross (1993), “The Legal Past of the Early New England: Notes for the Study of Law, Legal Culture and Intellectual History”, William and Mary Quarterly 50(1).Link found here


Module Two: The logic of modern law and rights

Session 3: Constructions of Legal Normativity

John Austin, The Province of Jurisprudence Determined Link found here
Henry Maine, The Ancient Law, Ch. 5. Link found here
John Locke, Two Treatises on Government, Ch. VII, “Of Political or Civil Society” Link found here

Session 4: Constructions of the legal subject

L.L. Fuller, “The Case of the Speluncean Explorers” Link found here
The Trials of Oscar Wilde Link found here
The Crucible (1996). Some useful websites: http://www.swisseduc.ch/english/readinglist/miller_arthur/crucible/
J. M. Balkin, 'Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence', The Yale Law Journal, Vol. 103, No. 1 (Oct., 1993) Link found here

Session 5: From Duties to Rights

Herald Berman, “The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe” University of Chicago Law Review 1978.Link found here
Thomas Paine, 'Of Constitutions' from Rights of Man, Ch. 4 Link found here
Mary Wollstonecraft, Vindication of Rights of Women, Ch. 1 Link found here
Arthur Monahan, From Personal Duties Towards Personal Rights Link found here


Session 6: The Universal- law/ism and its Discontents

Roberto Unger, “Critical Legal Studies Movement” Harvard Law Review 1983, especially pp. 563-576.
Link found here
Nicola Lacey, “Introduction to feminist legal theory” from Lloyd’s Introduction to Jurisprudence
Ashish Nandy, “State” in Development Dictionary, edited by Wolfgang Sachs (1991)
Wang Gungwu, “Power, Rights and Duties in Chinese History”, The Australian Journal of Chinese Affairs (1980)
Link found here
American Anthropological Association, statements on human rights 1947 (Steiner and Alston) & 1999 (http://www.aaanet.org/stmts/humanrts.htm)

Module Three: ‘Civilizational Exports’

Session 7: Understanding Law and Colonialism

John L. Comaroff, “Colonialism, Culture and the Law” Law and Social Inquiry 2001. Link found here
Sally Engle Marry, “Law and Colonialism” Law and Society Review 1991. Link found here
Bernard Cohn, “Law and the Colonial State in India” from Colonialism and its forms of Knowledge. Link found here
Radhika Singha, Despotism of Law Link found here

Session 8: Colonial constructions of the ‘custom’

Mahamood Mamdani, Citizen and Subject, Ch. 4 Link found here
Janaki Nair, Women and Law in Colonial India, Ch. 2 Link found here
Sandra Den otter, “Rewriting the Utilitarian Market: Colonial Law and Custom in mid-Nineteenth-Century British India”, The European Legacy, 2001.

Session 9: Colonial Constitutionalism and the Politics of Dominance and Subversion

Collected Works of MK Gandhi, vol. 1, pp. 186-204; 217-231; 359-392
S. Satyamurthy, Rights of Citizens, ch. Link found here
V. S. Srinivasa Sastri, Selected Writings of V.S. Srinivasa Sastri, 1969, pp. 25-36; 96-113.
Partha Chatterjee, Nationalist Thought and the Colonial World, 1986, chs 1 & 2 Link found here

Link found here

Session 10: Law and the Women’s question in Colonial India

Tanika Sarkar, “Enfranchised selves: Women, Culture and Rights in 19th Century Bengal” Gender and History (2001) Link found here
Sudhir Chandra, Enslaved Daughters, OUP, 1999. Link found here
Lata Mani, Contentious Traditions 1998, ch 1
Janaki Nair, Women and Law in Colonial India 1996 Link found here

Module Four: Law and Rights outside the bounds of Modern Constitution

Session 11: Of Multilayered legality: contribution of legal anthropology

Sally Falk Moore, “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999”, Journal of Royal Anthropological Institute 2001 Link found here
Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective” in Local Knowledge Link foun here
Brian Tamanaha, “A Non-Essentialist version of Legal Pluralism”, Journal of Law and Society 27(2), 2000. Link found here

Session 12: Law and Justice at the Grassroots

Upendra Baxi, “People’s Law, Development and Justice”, in Crisis of Indian Legal System, Vikas 1982. Ch. 11 Link found here
Anna-Maria Marshall and Scott Barclay, “In Their Own Words: How Ordinary People Construct the Legal World”, Law and Social Inquiry, 2003 Link found here
Marc Galanter, Law and Society in Modern India, OUP, 1987. Part II Link found here
Sarah Leah Whitson, “Lok Adalats: An Experiment in Informal Dispute Resolution in India” Hastings International and Comparative Law Review 1992

Session 13: Culture, Custom and Rights: The Indigenous question in contemporary times

The Draft Declaration on the Rights of the Indigenous People Link found here
Irene Watson, “Buried Alive”, Law and Critique, 13, 2002.Link found here
Charles McManis, “Intellectual Property, Genetic Resources and Traditional Knowledge Protection”, Cardozo Journal of International and Comparative Law, 2003.Link found here
Kimberlee Weatherall, “Culture, Autonomy, and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs”, Modern Law Review, 64, 2001.Link found here

Module 5: Contemporary Constitutional Cultures

Session 14: Constitutionalism as a framework of understanding legal cultures

Upendra Baxi, “Constitutionalism as a site of state formative practices”, Cordoza Law Review

Link found here
Kim Lane Schepple, “Constitutional Ethnography: An Introduction”, Law and Society Review (2004).

Link found here
Martha Nussbaum, “Introduction to Comparative Constitutionalism” Chicago Journal of International Law 3, 2002.

Session 15: Discourse of Rights and Politics of ‘Emancipation’: Grassroots Constitutionalism in contemporary India

Rob Jenkins and Anne Marie Goetz, “Theoretical Implications of Right-to-Information Movement in India” Third World Quarterly, 20(3) 1999.Link found here
Upendra Baxi, “Human Rights—Modern and Contemporary”, Future of Human Rights, Ch. 2 Link found here
William n. Eskridge, jr, “Some effects of identity-based social movements on constitutional law In the twentieth century”, Michigan Law Review 100, 2002 Link found here

 




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