The Germinal Contribution of J.M. Duncan Derrett to the Study of South Asian Comparative Law and Social Change

Session #5: Saturday, 10 January, 14:15 - 16.00 (CSLG)

Panel coordinator(s): Upendra Baxi, Law, University of Warwick (BaxiUpendra@aol.com)

Chair/discussant: Upendra Baxi, Law, University of Warwick (BaxiUpendra@aol.com)

Panel description

Panelists, paper titles, and abstracts

  1. Upendra Baxi, Duncan Derrett and the Comparative Method
  2. Werner Menski, Situating Duncan Derrett in the Landscape of Postmodern Hindu and Indian Law
  3. Alex Fischer, Revisiting Derrett’s “Death of a Marriage Law” – The Living Dead or Avatars of Hindu Law?
  4. Oliver Mendelsohn, Professor Derrett, Indian marriage, and the proponents of a Uniform Civil Code: whose is the "progressive" position?
  5. Vasudha Dhagamwar, Two Cheers for the UCC, None for Other Options: Professor JDM Derrett on Codification and Code - Hindu or Uniform

Panel description

This panel seeks to critically affirm the legendary contributions of John Duncan M Derrett. Professor J.D.M. Derrett pioneered not just an explicit itinerary of the times of postcolony and the vicissitudes of futures of the multiplex pluralities of the postcolonial Indian law and jurisprudence but also teased us all towards redefinitions naming and understanding the tasks of the frames of comparative ethnographical studies of law and jurisprudence. In his prime time, between the 1950s and 1980s, Derrett exemplified some best virtues of legal and social caparison within, and across, South Asian law and social theory/science discourse. In this respect, surely, his more historical research, in particular, continues to be of lasting value. Keeping his fingers on the pulse of the Indian nation, as it emerged and its laws developed, this towering polymath, if ever there was one, produced an amazing amount of diffuse and often poignant writing that teaches us how past and present work together, how law and culture interact, and how values deeply influence law and social change. Working in the comparative Law School of SOAS in London, dominated by Eurocentric colonial presuppositions at the time (and perhaps even now), it took Derrett and his colleagues some time to realise that postcolonial Asian and African laws could not just be carbon copies of Western models and would not just follow ‘the West’, rather developing their own culture-specific identity postulates, as the Japanese jurist Masaji Chiba would later call this in the mid-1980s. Without admitting this explicitly in so many words, however, Professor Derrett became a protagonist of postmodern South Asian legal studies and laid solid foundations for a deeper understanding of South Asian comparative law and social change. His last book on Indian family laws in particular, The Death of a Marriage Law (Derrett, 1978) published a few years before his retirement from SOAS in 1981, testifies to the wisdom of a sage, allegedly since living in vanaprastha on the banks of the Thames, but really somewhere in idyllic rural Gloucestershire. Celebrating and analysing Derrett’s legacy, this panel brings together socio-legal specialists for a discussion of past, present and future in the study of Indian and wider South Asian laws and societies and their current and their howsoever troubled and indeterminate future manifestations.

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Duncan Derrett and the Comparative Method

Upendra Baxi, University of Warwick, Law School (BaxiUpendra@aol.com)

Duncan Derrett is not known as a comparativist - although he wrote an excellent introductory book on comparative law -- at least among the eminent dogmatic practitioners of comparative law and jurisprudence. Based on a four volume study Essays In Classical and Modern Hindu Law and particular Volume 2 (Consequences of the Intellectual Exchange with the Foreign Powers), I here suggest some ways in which reading Derrett may contribute to the craft of comparison.

Perhaps, a most important message of Derrett remains this: comparison best occurs not so much through institutional histories but via micro-studies of histories of ideas. Understanding the sources and scale of diffusion of idea constitutes for Derrett the principal problematic of comparative method. Even when sceptical of some elements within the offerings by Professor Giuseppe Mazzarella, an eminent Italian exponent of Hindu law, Derrett does not deny the importance of a field named as 'juridical ethology’ presenting five aspects for comparison: ‘morphological, genealogical, stratigraphic, psychological, and philosophical.’ Indeed, for him such 'ethnology' best proceeds from a wise combination of internal and external perspectives on law and justice. The inherent diversity of these perspectives remains an important resource for the tasks of comparing the comparable and even the incomparable. Further, Derrett maintains that comparative studies ought to explore the 'loss of belief in law.' The Derrett corpus and legacy present some fascinating challenges for the study of law in society and for cross-cultural comparison.

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Situating Duncan Derrett in the Landscape of Postmodern Hindu and Indian Law

Werner Menski, SOAS, University of London (wm4@soas.ac.uk)

In his extremely rich final book on developments in modern Indian family law, The Death of a Marriage Law: Epitaph for the Rishis (New Delhi et al: Vikas, 1978), Professor J. Duncan M. Derrett discussed specifically the implications of the Marriage Laws (Amendment) Act of 1976 in India. He claimed, no doubt for the sake of argument and tongue-in-cheek, that ‘for practical purposes, Hindu law died on the 27 May 1976’ (p. vi). He noted the growing divergence between statute law and social facts, and he ‘attempts to reconcile Hindus to their fate’ (p. xviii), holding up a mirror to the Hindu elite and its confused self-mortification, in yet another burst of optimism expressed through top-down law making (p. xxvi).

Highlighting at first sight the ‘death’ of Hindu law, however, Derrett (1978: 206) finally admitted that he had turned into a deeply philosophical comparative lawyer rather than relying on his strong earlier positivistic roots - and ventured to predict the future role of Hindu law:

Its ethical element may undergo a renaissance and, free from the handicap that judicial knowledge could be taken of it and portions of it applied as if it were statute, it will be conveniently placed for scholarly research and spiritual investigation in a way that has been denied it for a century or more. The defensive, apologetic and ‘whitewashing’ approaches will disappear, as they should.

These wise words anticipate the development of new standards - secular standards, by the looks of it - around which the immensely plural societies and laws of postcolonial India would need to be reconstructed. Derrett here opened up possibilities for the study of postmodern Indian laws, not just postmodern Hindu law. To that extent, then, he was claiming to mourn the death of ‘his’ subject, Hindu law, which he now saw metamorphosing into what Chiba (1986) would come to call the ‘identity postulates’ of a legal culture, underpinning the emergence of a new pluralistic legal ethics for India. This new, and yet old, postmodern India, with elements of many different legal cultures in a globally interconnected world, would retain many cultural specificities, old and new. These have made the study of Indian laws so rich and rewarding for many people – and manifestly a growing number - all around the world. There is thus no reason to mourn the death of Hindu law, or indeed of Indian laws, also in the age of globalisation.

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Revisiting Derrett’s “Death of a Marriage Law” – The Living Dead or Avatars of Hindu Law?

Alex Fischer, Law, SOAS (alexfischer@soas.ac.uk)

J. Duncan M. Derrett has framed his final book on Hindu law (1978) from funerary imagery. Set in the form of the epitaph, Derrett’s critical analysis of law reform in 20th century India begins with and culminates in the conclusion that “Hindu law died on the 27th May 1976” as the President gave his assent to the Marriage Laws (Amendment) Act. At the same time, as William Wordsworth reminds us in his "Essay upon Epitaphs", the original impulse for Derrett’s choice of literary genre is a belief in immortality and the desire to render eternal the memory of the deceased. In fact, the book’s posthumous construction of Hindu law celebrates the ‘life’ and the achievements of the deceased, thus immortalizing the laws called Hindu law, and enlisting the dead in the ideological debates underlying contemporary family law reforms, both in India and abroad. Far from agreeing to a burial or cremation – “the past, though dead, now lies around unburied” – Derrett asserts the continuing role of the Hindu-law-ways by highlighting the contemporary importance of the cultural values Hindu law is said to represent. Set in the context of the Hindu Succession (Amendment) Act, 2005, this paper revisits Derrett’s curious concepts as well as the representations of Hindu law they entail; the nature and role of ‘dead law’, as opposed to our images of the ‘living law’, raise interesting questions for comparative legal theory as Derrett’s leitmotiv invites us to explain not only ‘what law is’ but also how law ‘dies’ and ceases to exist.

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Professor Derrett, Indian marriage, and the proponents of a Uniform Civil Code: whose is the "progressive" position?

Oliver Mendelsohn, School of Law, La Trobe University (O.Mendelsohn@latrobe.edu.au)

Professor Derrett was deeply steeped in Hindu law, and he wrote profusely and often critically about judicial decisions that purported to apply the body of Anglo-Hindu legal principles to problem cases. Derrett opposed too uniform and too textual an approach to the application of ‘Hindu law' to marriage. He also wrote critically about the legislative over-simplification of Hindu marriage law following Independence. Meanwhile, many Indian feminists were developing a strong critique of Indian marriage law from a stance perfectly opposed to that of Professor Derrett's work. Their proposition was that India needed a Uniform Civil Code so that all Indian women, including both Hindus and Muslims, could enjoy the one legal regime for marriage. My paper will revolve around these highly diverse positions to see whether any reconciliation is possible between them. The object of the paper is to work towards appropriate policy options in relation to the future regulation of marriage by the Indian state.

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Two Cheers for the UCC, None for Other Options: Professor JDM Derrett on Codification and Code - Hindu or Uniform

Vasudha Dhagamwar, Legal Activist and Academic, Pune (vasanti@bol.net.in)

In his Hindu Law Past and Present as well as in his four volumes of his own, Essays In Classical and Modern Hindu Law Professor JDM Derrett is ambivalent about the merits of a Uniform Civil Code or UCC for all Indians. He is also not too enthusiastic about codifying just Hindu law. Essentially, he is not happy to abandon the past too hastily. Rather, he would like to hasten slowly. With regard to Hindu law, his reasons are many. He dislikes the ignorance of Dharmashastras displayed by modern scholars who opt for rapid change. In other words, he is upset by the fact that change seems to come not out of knowledge but out of ignorance and hostility. Secondly, he cautions us that the Hindu elite who want the change do not represent the huge majority of rural Hindus. Thirdly, Derrett goes back into the history of Anglo Hindu law and finds that imposition of changes in societal matters e.g., marriage adoption and succession has done more harm than good. Most importantly, he sees it as the creator of a dislike of law. This was because the rule and procedure ridden English law administered by courts was foreign to India. Yet on balance Derrett opts for codification of Hindu law which includes reform and is for him the first step towards the UCC for all Indians. He demolishes all arguments and objections offered by anti-reformers although curiously, he does not apply the same yardstick to those very arguments when offered by minority (Muslim and Christian) leaders. He expresses a pious hope that somehow UCC will happen.

While agreeing with many of Derrett’s arguments particularly about the ignorance of the Dharmashastras, this author extends her unease to include the ignorance of law givers and reformers to local conditions and languages. However this author is not convinced that the dislike of law stems solely from imposition of Anglo- Hindu law or that the imposition could be avoided under all circumstances if justice was to be done. Widow re-marriage was one such example. The half hearted reform of child marriage is another. And of course the Act to regulate Sati is a major example, predating the Queen’s declaration in 1857. Another of her fundamental objection derives from what she calls invasion of criminal law by religion, custom and customary law which is rampant today, sheltering as it does behind a plethora of personal laws. The existence of multiple personal laws has converted that space into private space where outsiders may not interfere. This has largely benefited men. No one from any community or interest group spoke for Imrana or the tragic Gudia. Like Derrett but for different reasons she gives two cheers for UCC and rejects the multiplicity of family laws that confuse us at every turn.

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