The course raises questions about the universalizability of fundamental concepts of Western legal theory in a non-Western context like India. It is paralleling the critique of “normalization” (Foucault) that Partha Chatterjee (2011) has raised in the context of political theory. “Postcolonial legality” (Baxi) in many respects is a continuation of the western tradition, in many respects, however, it also diverges significantly from this paradigm as the experience of modernity does not necessarily follow the same sequential order as it did in the West (“multiple modernities”, Eisenstadt 2003). As a legacy of colonialism, India inherits a personal law system in tension with the Western presupposition of equality. It is precisely the universality of these standards of “normal” modernity that are further called into question by the existence of more informal legal regimes as discovered by legal anthropology in India. We are not looking at these as instances of negative nonsynchronism (Bloch) as the normalized Western paradigm would have it, but try to understand them as an expression of the tacit background understanding of Indian lifeworlds (Habermas). While these can be seen as an expression of their “ethopoiesis” (Foucault) and can therefore not be discounted on prima facie grounds, the paradigm of parallel legality runs into justificatory problems when faced with the differential treatment of women by Indian courts where the practice of bracketing constitutional equality is widespread (Agnes 2004, Dusche 2013, Baxi 2014). We will explore what this means for the factual and for the normative understanding of law (Habermas 1996) and extend the analysis to other contexts where legal pluralism is practiced in India.
Since the syllabi in MCPH are dynamic and regularly updated, this reading list is indicative and amenable to modifications in each session.
Flavia Agnes, Women and Law in India
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India
Upendra Baxi, “Postcolonial Legality”
Michael Dusche, “Women’s Rights in India: Hierarchical Ethics vs. Egalitarian Morality”
Partha Chatterjee, Lineages of Political Society
Jürgen Habermas, Between Facts and Norms
Werner F. Menski, Hindu Law: Beyond Tradition and Modernity