ANALYSING THE CONCEPT OF LEGAL PLURALISM IN THE LIGHT OF CULTURE FOR ESTABLISHING A NEW LEGAL ORDER
Author: Jyotsna Singh, II year of B.A.,LL.B.(Hons.) from Dr. B.R. Ambedkar National Law University
Co-author: Nidhi Jain, II year of B.A.,LL.B.(Hons.) from Dr. B.R. Ambedkar National Law University
This article talks about different legal orders prevailing in a single region. It defines legal pluralism and the basic feature that leads to adopting different legal orders is justice. Distinctive legal orders are all based on one basic principle that is justice and this is why legal pluralism occurs as every culture which leads to the making of new legal order should be acknowledged. Although there are many problems with having a multicultural country, legal pluralism solves many of its problems. This article also defines legal pluralism in a theoretical way. Then this article talks about the relationship between legal pluralism and culture and how it establishes new legal order. In one way different cultures are given recognition by making new laws in a single field like different marriage laws in India, but in another way, all cultural laws are united into a single legal order as in the case of UCC.
Legal pluralism refers to the idea that there are multiple laws or legal systems in any geographical territory bounded by the traditional borders of a nation-state.
When it comes to a culturally diverse country like India, it is very difficult to not get into conflict with various religions. The idea of justice can differ from one culture to another and one religion to another. Hence, here comes the importance of legal pluralism. It is the duty and obligation of law to be just and fair, so because of this duty and obligation of law, it becomes important to maintain the checks and balances between the legal plurality and the idea of justice. The main idea of pluralism is to establish that there is justice even with different legal orders. The principle of justice is basic to every legal system.
Justice has always been a difficult concept to grasp; it has taken a lot of scholarly studies, but it remains opaque, ambiguous, and imprecise to this day. The term "justice" has a variety of different meanings. To understand justice, one must first understand what injustice is and how to deal with it. Throughout human history, there have been several examples of this. For example, Mahatma Gandhi began his quest for justice after witnessing injustice; as a result, injustice is the means through which a person grasps the need for justice.
When a person experiences injustice, he or she tries to set things right or, at the very least, find other measures to prevent it from happening again. This is the central premise in Amartya Sen's book The Idea of Justice. He delves into the meanings of the phrases niti and Nyaya, the former referring to regulations and the latter to their application. He argued against Rawls' definition of justice, which described justice as the pursuit of liberty, equality, and opportunity to the greatest extent possible. He views 'justice' through the lens of 'fairness.'
One of the challenges that could jeopardise India's existence is the legal diversity of its personal laws. Legal pluralism refers to society's coexistence of multiple regulatory orders. The impact of legal diversity on personal laws can be examined to see if it is balanced with Sen's definition of justice. The concept of "one law, one nation" makes us ask if justice is fulfilled in a country with such a diverse culture as India, where personal laws are in existence.
Legal pluralism: theory
Every analysed social field appears to have a multitude of legal orders, ranging from the most basic local level to the broadest global level. There are numerous sorts of the village, town, or municipal laws; state, district, or regional laws; and there are multiple types of national, transnational, and international laws. Many civilizations have more exotic varieties of law, such as customary law, indigenous law, religious law, or laws belonging to certain ethnic or cultural groups, in addition to these well-known legal systems.
Legal pluralism refers to the occurrence of multiple legal systems within a single (human) population and/or geographic location. Multiple legal systems are notably common in former colonies, with the law of a former colonial state coexisting with more traditional legal systems (customary law).
John Griffiths theory on legal pluralism
In a 1986 article, John Griffith defined legal pluralism as a governing strategy justified on pragmatic grounds. John Griffiths established a crucial distinction between "weak" and "strong" legal pluralism.
The "weak" type of legal pluralism, which Griffiths refers to as "juristic" legal pluralism, occurs when a legal system provides separate regulations for different segments of the population; for example, when a state creates separate tribunals for each religious/ethnic group, each one uses legal code based on religious law, customary law, etc. This type is "weak" since the various bodies of law are all administered and governed by a single unified legal system in this case. Furthermore, Griffiths questions whether this condition qualifies as "legal pluralism," arguing that it should be viewed as "legal diversity."
The strong version of legal pluralism, which Griffiths refers to as social scientific legal pluralism, occurs where more than one source of law, more than one legal order' is visible in a social environment. In other words, legal pluralism in the broad sense exists only if a single population - a social field, in Griffiths' terminology - functions within the framework of many bodies of law. Only if at least one of these bodies of law remains unacknowledged and unregulated by the state, according to Griffiths, can this happen.
Griffiths differentiates between a social science view of legal pluralism as an empirical state of affairs in society and a 'juristic' view of legal pluralism as a specific problem of dual legal systems that originated when European countries formed colonies that imposed their legal systems on pre-existing systems.
Culture is a broad term that refers to a variety of intangible aspects of social life. Sociologists define culture as the shared values, beliefs, language, communication, and practise systems that can be used to characterise people as a community. Culture also includes material objects that are common to that group or society. Culture is distinct from the social structure and economic components of society, but it is inextricably linked to both, both informing and being informed by them.
Culture plays a crucial part in the formation of social order. The social order is defined as a society's stability based on a collective agreement to rules and standards that enable people to collaborate, function as a community, and live together (ideally) in peace and harmony. For sociologists, social order has both positive and negative features.
Relationship between Culture and Legal Pluralism with respect to India
The Indian Constitution accommodates diversity along the axes of religion, caste, tribe, and language to varying degrees. It was advanced for its time in establishing cultural rights for minorities and affirmative action for historically disadvantaged groups within a liberal democratic framework. The Drafting Committee had to bring these different factions together in a single nation-building process by ensuring that the fear of majoritarianism was mitigated by acknowledging and defending pluralism and diversity through state institutions. After lengthy debates, the Constituent Assembly decided that the state must safeguard all religions equally and accommodate religious and cultural diversity. The Indian Constitution recognises religious pluralism in family law (Hindus, Muslims, Christians, and Parsis), affirmative action in legislatures, government employment, and educational institutions for lower caste and tribal communities, and self-governance rights for linguistic and tribal groups.
The presence of different cultures has led to legal pluralism in various laws in India. There are many problems because of cultural diversity. A society's culture, tradition, and values not only lay the foundation of the laws that govern it, but changes in values and traditions over time also impact and bring about new legislation expressing the society's changed ethos, emphasising the ever-present link between culture and law. Cultural diversity brings about more influence between cultures and legal orders with relation to the culture. Cultural pluralism affects legal orders in an area and gives rise to legal pluralism.
The law is usually thought of as enforcing the community's rational thinking, as well as the majority of people's sense of decency, appropriateness, and morality. The common law, in particular, self-consciously embraces the surrounding community's experience and custom. When the common law mandates a jury to reach a decision based on the reasonable person's view, it aims to impose the community's overall moral judgement, or what it believes should be done in most cases.
But when there are several communities with several theories on rational thinking, it creates several legal orders and one legal order is not enough to cover such communities hence legal pluralism takes its part in this situation. For example in India, marriage laws in India are not based on just one culture but distinctive laws for distinct cultures.
Matrimonial laws in India, including those governing marriage, divorce, and other related matters, are mostly governed by the parties' personal laws, which are codified by statute in most cases:
The Hindu Marriage Act of 1955[i] governs Hindu marriages. According to Muslim law, marriage is a contract. The Indian Christian Marriage Act of 1872[ii] and the Divorce Act of 1869[iii] both apply to Christians in India. The Parsi Marriage and Divorce Act of 1936[iv] governs Parsi marriages and divorces. Furthermore, the Special Marriage Act of 1954[v] applies to people of all faiths. This is a civil law that allows people of various religions, castes, and communities to marry under it. The Special Marriage Act of 1954 would then regulate divorces.
'Mohammedan' or Shari'a law, has its official legal origins in the Shariat Act of 1937[vi], which codified a section of the fiqh (Islamic jurisprudence), though it was practised long before then. Hindu law is an important aspect of the Indian legal system, especially when it comes to family disputes. Hindu law is considered more inclusive than Mohammedan Law because it also includes Sikhs and Buddhists. Christian Law has been acknowledged as a plural jurisdiction since the 2000s, with regulations in the Indian Divorce (Amendment) Act 2001[vii] for Christians on divorce, separation, maintenance, and adoption becoming more similar to those in Britain, resulting in an intricately interwoven legal system.
UCC of Goa is an example of a legal order established by combining legal orders of different cultures. The Uniform civil code (UCC) unifies all of the many religious principles and produces a single religious code of practice.
Under Article 44[viii] of the Chapter on Directive Principles of State Policy, the Constitution mandates the implementation of UCC. The Supreme Court had also argued for the inclusion of UCC as part of the secularism theory in the case of Sarla Mudgal v. Union of India[ix]. The current push for UCC implementation is motivated by a desire to achieve gender equality by embracing the best traditions and harmonising them with modern times.
However, a realistic appraisal of Indian tradition would imply that, given the existing diversity in society, any type of religious unity is difficult to establish. There are several laws, practices, and traditions among Hindus, making it difficult to create a single code of law that will be acceptable to all Hindus across the country. Similarly, there are major peculiarities in the personal laws that apply to the Muslim people.
The constitutional purpose of UCC can only be accomplished if efforts are taken to develop consensus among members of various communities so that people are not compelled in the name of uniformity. UCC will remain a distant ideal until efforts are taken to build an environment of equality without compromising social, cultural, linguistic, or religious heterogeneity. From the standpoint of Sarva dharma sambhava, the true application of secularism is to place all members of various religious communities on an equal basis.
Until a consensus on the UCC's norms and values is reached, the Indian concept of multiculturalism, legal pluralism, and secularism should serve as a guiding light, ensuring that every person of every religion is treated with respect and dignity, and the constitutional duty to bring harmony and the spirit of common brotherhood among all the people of India transcending religious, linguistic, regional, or sectional diversities is effectively carried out.
Legal pluralism in Indian family laws:
Family laws in India
Marriage, separation, divorce, and its repercussions, support for children and other dependents, inheritance, adoption, and guardianship are all covered by India's family laws, often known as personal or customary laws. Many parts of the British colonial period's plural family law system were kept by independent India as a way of cultural accommodation within its heterogeneous society, particularly with regard to Muslim accommodation. India's major religious groups—Hindus, Muslims, Christians, Parsis, and Jews—as well as numerous tribal peoples—are governed by different family laws. Hindu family law also applies to followers of South Asian religions like Sikhism and Jainism.
Complete legal pluralism entails the application of different laws to different cultural groups in all aspects of social life, dispute resolution by different community courts, and a lack of reference to recognised common principles in the formulation and implementation of the law. Religious leaders, religious scholars, and priests are the principal or sole agents of legislation and adjudication whereas religious groups are the social units to which specific rules exist.
In many ways, India's legal diversity is just partial. Except for the laws governing family life, Indians are governed by a consistent set of laws. All conflicts submitted to state courts are adjudicated by Indian judiciaries, which are predominantly trained in Western legal systems. Aside from the state's judiciary, distinct religious and cultural groups have their own community leaders who operate as adjudicative agents. Community institutions that participate in adjudication include Hindu caste associations, Muslim prayer groups, regional Christian churches, and Parsi temples. Family disagreements are also adjudicated by individual religious authorities, caste leaders, and well-known informal judges. This complicated character of Indian legal pluralism allows for some reforms in family law while also preventing rapid change.
Over the last generation, Parliament has amended the laws regulating all Indians, including the prohibition of dowry and the payment of support to destitute women in the event of divorce or separation. It made it easier for Hindus and Christians to divorce, including on mutual agreement grounds. Some state legislatures have given girls the ability to demand the division of ancestral property so that they can access their legal rights to equal shares with their sons.
The judiciary introduced more changes in family law as a result of the growth of public interest litigation, particularly since the National Emergency of the mid-1970s, by trying to interpret some statutes and features of non-statutory law in light of the fundamental rights guaranteed by the Indian constitution. The courts modified family law more frequently than legislatures, and in some cases, this prompted a legislative change. This was true, for example, of the revisions made to the grounds on which Hindus and Christians might seek a divorce, as well as Muslim women's alimony rights.
Though India gives prime importance to personal laws as they are customs followed and ratified by people since time immemorial but in case of a conflict between these personal laws and the interest of the citizens, Judiciary and Parliament from time to time has sideline them to give effect to new laws in the general interest of the public at large. This was done by the Hon’ble Supreme Court in the Shah Bano Begum case[x] which granted the right to alimony under Section 125 of CrPC[xi] to every woman irrespective of their religion. This judgement entitled Muslim woman’s the right to alimony which was against their custom. In another landmark case of Shayara Bano[xii], one of the Islamic customs of triple talaq or instant talaq i.e. talaq-e-biddat was declared unconstitutional as it was discriminatory and contrary to the interest of Muslim women.
Customary Law and legal pluralism
Indigenous peoples and small communities recognise a set of norms, practices, and beliefs as binding rules of conduct known as customary law. Customary law is an integral aspect of their social, economic, and cultural institutions.
Customary law is defined as a collection of customs that are recognised and shared by a community, people, tribe, ethnic group, or religious group collectively. Written law, on the other hand, comes from a formed political authority, and its application is in the hands of that authority, which is usually the State. Customary rights exist when a group of relevant parties agrees that they should be considered "legal."
Customary law is one component of a holistic strategy to conserving traditional knowledge that could incorporate customary and indigenous laws and norms as part of a larger toolkit.
In actuality, customary law and official state law typically coexist today. This condition is consistent with legal pluralism. Previous colonies, where the law of a former colonial government coexists with customary legal systems, are particularly prone to plural legal systems. Economic transactions (sales, rentals, wages, and credit) are usually handled by Western-style law, whereas non-economic aspects (family, marriage, and inheritance) are frequently governed by traditional law. Legal pluralism also exists to some level in nations where indigenous people's legal systems have been accorded some legitimacy. Land and environmental conflicts are common, and they frequently manifest as clashes between traditional and state Legal Systems.
If we are to live together, the West and the East, Christians, Jews, Muslims, Hindus, Buddhists, the otherwise religious, the non-religious, and others, however, defined, there is a general need for more tolerance for otherness in law—for legal pluralism—in our world today. The Western hegemonic notion that monist secular positive state law is the solution to our differences must be challenged. Legal pluralism should be a solution to the problems that our world is currently facing. It should be adopted in law generally rather than a narrow definition. Cultures are an important part of the lawmaking system. In a society with different cultures, the idea of justice should be recognized and all cultures must be given the same importance as each culture. Legal pluralism promotes the idea of justice which is a basic right to every individual or section of society and does not give a monopoly to a single culture.
[i] The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India). [ii] The Indian Christian Marriage Act, 1872, No. 15, Acts of Parliament, 1872 (India). [iii] The Divorce Act, 1869, Acts of Parliament, 1869 (India). [iv] Parsi Marriage and Divorce Act, 1936, No. III, Acts of Parliament, 1936 (India). [v] The Special Marriage Act of 1954, No. 43, Acts of Parliament, 1954 (India). [vi] The Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament,1937 (India). [vii] The Indian Divorce (Amendment) Act, 2001, No. 51, Acts of Parliament, 2001 (India). [viii]INDIA CONST. art. 44. [ix] Sarla Mudgal, & others. v. Union of India, AIR 1955 SC 1531. [x] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. [xi] The Code of Criminal Procedure, 1973,§. 125, No. 2, Acts of Parliament, 1973 (India). [xii] Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1.