Course 902: Culture and Comparative Constitutionalism: Modernity, Cultural Difference and the Pathways of Law
LAW, like science, (economic) rationality, modern nation-state and such other key sites of ‘modernity’ in the last two centuries has played a central role in the way societies view and refashion themselves and also refashion ‘other’ societies wherever that was possible—through outright colonialism, or occupations etc. What law has done to the world, both of the colonised as well as the coloniser’s, during the last two centuries is simultaneously astonishing in terms of the scale of social change it has ‘engineered’, and devastating in terms of its impact on depleting diversity of ‘cultures of legality’ that existed outside the ‘modern’ frames of regulation and governance. Many core concepts of modern life, such as property/ownership/authorship, family, marriage/relationship, citizenship (or rights and responsibilities) etc have undergone radical changes. Such tumultuous changes could not have been possible without various forms of coercion, violence, ignorance and/or deliberate disregard for non-modern notions/cultures of legality and such other strategies of modernity.
The discourse of law, however, has two neatly separated compartments—one at the location of its ‘professional’ knowledge (law schools, courts etc) and the other in the academic (largely social science) studies of law. The former still deals with ‘law’ as though a universal analytical category that could be compared between jurisdictions without much difficulty (of judicial decisions, legislative practices, definitions of rights and responsibilities etc). The ‘diversity’ in legal practices therefore is in terms of ‘cultural adaptations’ of norms, institutions and practices; this is the body of work that is often referred to as comparative legal studies. The later on the other hand, raises methodological as well as epistemological questions in the existing comparative project, for the comparisons tend to face difficult questions beyond the technical analysis (of institutions and litigation practices). The ‘culture question’ thus emerges as a serious source of disruption in the existing methodologies of comparative law.
This course will attempt to engage with some of the core concerns and challenges that emerged in these two sites of debates in law with a view to think the possibilities of productive bridging of the sites and through that rethink the project of comparative law/comparative constitutionalism.
Module 1 – Legal Cultures versus Cultures of Legality
Week 1 – August 19:
a. Modern Law, making sense of the Enlightenment Elephant
i. Lon Fuller, “the Case of the Speluncean Explorers”, Harvard Law Review, 49(2), 1949. Link
ii. Graham Hughes, “the concept of law”, in Dictionary of History of Ideas.Link
iii. Henry Maine, “The Early History of Contract”, in Ancient Law(London:John Murray,1908) Link , Link
iv. W.T. Murphy, “The Oldest Social Science? The Epistemic Properties of Common Law Tradition”, Modern Law Review, 54(2), Link
b. The Radical Engagement: de-myth-ologizing modern law
c. Coming to grips with the Law’s Other: the making of the ‘Custom’ in modern law-1
This session would explore the historical modes whereby the colonial state produced the “law” in India, through an engagement with texts and practices/ custom. What forms did this engagement take? I would argue that the colonial state engaged with both texts and practices as norms, as the readings indicate. A further question would be this: What does this encounter tell us about the cultures that interacted and cultural difference?
Can we perhaps differentiate between normative and non-normative cultures, and how?
i. Nandini Bhattacharya-Panda, ‘The Tradition of the Dharmasastras and Invention of Hindu Law in Early Colonial Bengal’, presented at the conference, “Critical Approaches to the Study of Law and Religion inIndia”, organized by the Centre for the Study of Culture and Society, Bangalore, in collaboration with the Christ College of Law, Bangalore,on 30th August 2008 at Christ University, Bangalore.Link
ii. Lata Mani, (1989), ‘Contentious traditions: The Debate on Sati in Colonial India’, in K. Sangari and S. Vaid (eds.), Recasting Women, New Delhi: Kali for Women.Link
d. Legal Cultures or Cultures of Legality?
i. Clifford Geertz, “Fact and Law in Comparative Perspective”, in Local Knowledge. Link
ii. Sumit Guha, “Wrongs and Rights in the Maratha Country”, in Changing Concepts of rights and justice in south asia (New Delhi: OUP,2000).Link
iii. Peter D. Rush, ‘Surviving Common law: Silence and the Violence internal to the legal sign”, Cardozo Law Review, 27(2), 2005.Link
ii. Comparative Law and Constitutionalism: understanding the ‘how’ and ‘what’
a. Pathways of Law? Diffusion of Law, Legal Transplants etc.i. William Twining, “diffusion of law: a global perspective”Link
ii. William Ewald, “the logic of legal transplants”, AJCL 43(4), 1995. Link
iii. Alan Watson, “Legal Transplants to legal Formats”, AJCL 43(3), 1995.Link
iv. Geoffrey Samuel, “Epistemology and Comparative Law”, in Epistemology and
Methodology of Comparative Law. Link
b. Culture question in comparative methodologies
i. Henry Maine, Village Communities in the East and West, ch1. Link
ii. John and Jean Comaroff, “Colonialism, Culture and Law”, Law and Social Inquiry 2001. Link
iii. David Westbrook, “Theorising the Diffusion of Law”, Harvard International Law Journal, 47(2), 2006.Link
iv. Mark Van Hoecke and Mark Warrington, “Legal Cultures, Legal Paradigms, Legal Doctrine: Towards a new a new model for comparative law”, ICLQ 47, 1998.Link
iii. Universal Values, Constitutional Norms and Cultural differences
a. The (Im)possibility of Universal Human rights-1
What does it mean to introduce the question of culture in law? And to introduce the question of cultural difference? Do the notions of human rights, human dignity and human justice that inform the law emanate from a certain ontology of the human, which is cultural, or specific to a certain culture, i.e. the West? A culture that commands respect for the human on the basis of a theistic ontology (an ontology of the human as being cast in God’s image) or a secular-scientific ontology (the human as being a rational agent). A culture that produces ontologies of the human that thus straddle the domains of both value-free naturalism / nature and value-laden, moral culture.
A feature central to Western legal systems is also that the principle of respect for life, integrity, well-being, property, is formulated in terms of rights. “The notion of a right, also called a ‘subjective right’ as developed in the Western legal tradition is that of a legal privilege which is seen as a quasi-possession of the agent to whom it is attributed.” (Taylor 1989, p. 11) The subject who has the privilege of the right is thus also an agent who has a role in establishing or enforcing the right or immunity: who acts, so to say, to put the right into effect.
What difference do other cultures present to these premises? Do they share this ontology of the human? Do they moreover present different configurations of subjectivity and the subject’s agency / action? Are these differences incommensurable? This session will engage with these questions.
i. Charles Taylor (1989), Sources of the Self: The Making of the Modern Identity, Cambridge, Massachusetts: Harvard University Press.Chapter 1: Inescapable Frameworks.Link
ii. Balagangadhara, S. N. (1987) ‘Comparative Anthropology and Action Science: An Essay on Knowing to Act and Acting to Know’, Philosophica 40 (2): 77–107.Link
b. The (Im)possibility of Universal Human rights-2: Interrogating Relativism.
i AAA statements on universal human rights Link
ii. Ashis Nandy, “Towards New Cosmopolitanism”, Inter-asia cultural studies 1998.Link
iii. Macau Mutua, “Complexity of Universalism in Human Rights”, in Human Rights with modesty: the problem of universalism 2004.Link
c. The (Im)possibility of Universal Human rights-3: Looking Beyond the‘Cultural Impasse’
i. Gayatri Spivak, “Righting Wrongs”, in Amnesty Lectures on Human Rights-2002 (New York:OUP, 2004) Link
ii. Upendra Baxi, :Two Notions of Human Rights: Modern and Contemporary”, in Future of Human Rights.Link
iii. Alain Supiot, Hom Juridicus: On the Anthropological Function of the Law, Ch.6 Link
iv. Terence Turner, “Human Rights and Human Difference”, Journal of Anthropological Research, 1997.Link
d. Modern Constitutionalism: Mediating Cultural Difference
i. Upendra Baxi, ‘Constitutionalism as a site of State formative practices’, Cardozo Law Review Link
ii. Partha Chatterjee, Politics of the governed. Link
iii. Lynn S. Khadiagala, “The failure of popular justice in Uganda: local councils and women’s property rights”, Development and Change, 32, 2001.Link
iv. Susanne and Lloyd Rudolph, “Living with difference in India: Legal Pluralism and Legal Universalism in historical context”, in Religion and Personal Law in Secular India Link
v. Peter Geschiere, “Witchcraft and the limits of the law’, in Law and Disorder in Postcolonial 2006. Link
vi. Sarah Song, Justice, Gender and the politics of multiculturalism (Cambridge: CUP, 2007), ch. 4.Link
vii. Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and women’s rights (Cambridge: CUP, 2004), ch. 2 Link
viii. Mohammad Mazher Idriss, “Laicite and the banning of the hijab in France” Legal Studies.Link
iX. Reflections on Liberalism,Policulturalism and ID-ology:Citizenship and Difference in South Africa. John and Jean Comaroff, Social Identities,Volume9, No 4,2003 Link
ii. Ernesto Laclau, “Subject of Politics and the Politics of the Subject”,Differences 7(1), 1995.Link
f. Rethinking the comparative constitutionalism project
i. Anton Schutz, “Thinking the law with and against Luhmann, Legendreand Agamben”, Law and Critique, 11, 2000.Link
ii. Upendra Baxi, “Transformative Constitutionalism”.
iii. Albert H.Y. Chen, “Comparative Reflections on Human Rights in Asia”,in Human Rights in Asia, Routledge, 2006.Link