Abstracts

Animal Sacrifice under Judicial Scrutiny: Gods’ authority, Sanskrit Texts and Questions of Law in India

Courts of law in contemporary India may sometimes become real battlegrounds where incompatible points of view about religion clash with each other. Unlike non-judicial spheres of ritual or sectarian controversy, where arguments are directly expressed by the people concerned by the issue and are mostly of a ritual, moral or philosophical nature, arguments in court must be given legal relevance or be inscribed within a legal framework in which the reasoning, vocabulary and procedure are mastered by law professionals. These legal representatives of the parties (of petitioners or respondents), who are sometimes personally committed to their client’s cause, try their utmost to showcase their writing talent and their oral eloquence to win over the courts’ opinion.

In this paper I will analyze the variety of contrasting arguments put forward by the parties in an appeal that was brought before the Indian Supreme Court to challenge the decision given in 2014 by Himachal Pradesh High Court to totally ban animal sacrifices in this State. On the basis of court documents, newspaper articles and ethnographic material, I will show how the points of view of the various actors implicated in the case revolve around three sources of reference— Sanskrit texts, gods’ authority and case law. The analysis also shows how what is at stake does not only concern different ideas or values (regarding religion, morality, modernity, cruelty), or different discourses on ‘rights’ (right of religious freedom, human and animal rights, statutory rights) but also constitutional issues concerning ‘spheres of authority’, ‘excess’ or ‘abuse of jurisdiction’, and eventually the ‘separation of powers’ between state institutions.

The Debate on Cross-Cousin Marriage in Medieval Hindu Law

Within the Indian subcontinent, the practice of cross-cousin marriage—that is, the practice of a man marrying the daughter of his maternal uncle or his paternal aunt—has long been recognized as especially characteristic of South India, where it continues to be widely practiced to this day. One clear piece of evidence of the great antiquity of this custom in the region comes from the Baudhāyana Dharmasūtra, a text dating to probably the second century BCE and among the very earliest works of the classical Hindu legal tradition known as Dharmaśāstra. When discussing the customs unique to the North and the South, Baudhyāyana (1.2.3) lists cross-cousin marriage as a distinctively Southern practice. And, importantly, shortly after listing these regional customs, he (BDh 1.2.8) goes on to state that they should all be rejected as baseless, given that they are in conflict with the traditions and texts of learned gentlemen or what are called śiṣṭas in Sanskrit. From a historical perspective, scholars would account for Baudhāyana’s rejection of cross-cousin marriage as the result of two indisputable features of the Dharmaśāstra tradition: its ethno-centric character and its North Indian origin.

Within the Indian subcontinent, the practice of cross-cousin marriage—that is, the practice of a man marrying the daughter of his maternal uncle or his paternal aunt—has long been recognized as especially characteristic of South India, where it continues to be widely practiced to this day. One clear piece of evidence of the great antiquity of this custom in the region comes from the Baudhāyana Dharmasūtra, a text dating to probably the second century BCE and among the very earliest works of the classical Hindu legal tradition known as Dharmaśāstra. When discussing the customs unique to the North and the South, Baudhyāyana (1.2.3) lists cross-cousin marriage as a distinctively Southern practice. And, importantly, shortly after listing these regional customs, he (BDh 1.2.8) goes on to state that they should all be rejected as baseless, given that they are in conflict with the traditions and texts of learned gentlemen or what are called śiṣṭas in Sanskrit. From a historical perspective, scholars would account for Baudhāyana’s rejection of cross-cousin marriage as the result of two indisputable features of the Dharmaśāstra tradition: its ethno-centric character and its North Indian origin.

As is generally known, of course, Dharmaśāstra spreads well beyond its Northern homeland during the course of the first millennium to become essentially a pan-Indian legal tradition, albeit an elite Brahmanical one. And this historical development thus raises the intriguing question: How did the South Indian custom of cross-cousin marriage interact with the Dharmaśāstra tradition during the medieval period, given that the tradition’s foundational texts seemingly prohibit it? It is precisely this question that this paper aims to address. It will begin by focusing on our earliest sustained attack on cross-marriage, which is found in a commentary on the Yājñavalkya Smṛti ascribed to a twelfth-century king of Goa by the name of Aparārka. Following the discussion of Aparārka, this paper will then deal with our two earliest surviving legal defenses of cross-cousin marriage, both unsurprisingly composed by South Indian authors. The earlier of these defenses comes from Devaṇabhaṭṭa’s thirteenth-century Smṛticandrikā and the later from Mādhava’s fourteenth-century commentary on the Parāśara Smṛti. Finally, this paper will demonstrate how the Smṛticandrikā’s defense of cross-cousin marriage in particular inspired the composition of a particular fifteenth-century inscription in the South Indian kingdom of Paḍaivīḍu and led to slight, but legally significant changes in the Brahmanical marriage practices of that region.

Petitions and Partitions in Eighteenth-Century Marwar

Whether brahmins or leatherworkers, most eighteenth-century residents of Marwar knew they could turn to the Rathor government if familial or caste-based mechanisms of dispute resolution failed to resolve their complaints. And turn they did. The archives of the eighteenth-century Rathor administration are replete with petitions (araj) submitted either directly to the crown (Shri Hajur) in Jodhpur or to one of its provincial headquarters (kachaidi and chauntara). Nandita Prasad Sahai has pointed to the significance of custom (wajibi), locally varied and always malleable, in guiding state decisions in such disputes. This paper will show that in the course of the latter half of the eighteenth century, the Rathor state began, in adjudicating certain arenas of social and religious strife, to move away from a reliance on custom and ruled instead on the basis of moral precepts derived from religious life. These rulings were of a more universal nature, overriding localized and variable custom. In exploring the tensions between customary practice and law, this paper argues that the legal apparatus of the state was indispensable in refiguring social life in eighteenth century Marwar, making possible the forging of new solidarities while aiding the dissolution of others.

The Religious Construction of Legal Subjectivity in Classical Hindu Law

Every legal system must define who and what count under the law as legal subjects. Laws neither constrain nor protect people or beings who are not recognized as legal subjects. Questions of who matters under the law reveal a lot about the nature of a given legal tradition. Changes in legal subjectivity in turn say a lot about its history. In this paper, I examine the ideal legal subject defined in Dharmaśastra, the early texts of the Hindu Law tradition (namely, the male, Brahmin householder), changes in how legal subjectivity was understood, and how it expanded over time. From this examination, I will argue that narrow, religiously grounded definitions of legal subjectivity in Dharmaśastra encouraged efforts to assimilate to that legal ideal and, at the same time, produced regular expansions of the legal subject in ways that changed the tradition. I conclude by suggesting that the pattern seems common to many legal traditions in ways that are worth closer attention by legal historians.

Don Davis Every legal system must define who and what count under the law as legal subjects. Laws neither constrain nor protect people or beings who are not recognized as legal subjects. Questions of who matters under the law reveal a lot about the nature of a given legal tradition. Changes in legal subjectivity in turn say a lot about its history. In this paper, I examine the ideal legal subject defined in Dharmaśastra, the early texts of the Hindu Law tradition (namely, the male, Brahmin householder), changes in how legal subjectivity was understood, and how it expanded over time. From this examination, I will argue that narrow, religiously grounded definitions of legal subjectivity in Dharmaśastra encouraged efforts to assimilate to that legal ideal and, at the same time, produced regular expansions of the legal subject in ways that changed the tradition. I conclude by suggesting that the pattern seems common to many legal traditions in ways that are worth closer attention by legal historians.

The Not-so-long Arm of the Law: Monastics and the Royal Court

This paper explores the interactions between religious specialists and the courts in early and medieval South Asian sources. It begins with comments on the reputation of the courts and lawyers and moves to an examination of stories embedded in Buddhist and Jain monastic rules in which a monk or nun either brings a case to court or is summoned to the court as a defendant. It concludes with some general comments on the careful definition of independent spheres of authority in these texts and the major concern that motivated their suspicion of the law: a need to protect the religious community from slander and popular disapproval. This need to protect society, however defined, marks Brahmanical law codes as well, and the paper suggests that some parallels can be seen to arguments used today in cases where religious issues are involved.

Framing Religion in Constitutional Politics: A View from Indian Constitutional Law

Modern constitutions are texts of power that framed to make explicit claims on vast swathes of social and cultural life, religion being no exception. Against this background the Indian constitution grants the state significant powers that are, in the nature of modern law, framed in the language of the normative necessity or ideological inevitability. While many of these powers are vital to shape the ethical horizons of constitutional practice it cannot be presumed that these powers are unqualifiedly legitimate. Accordingly by outlining the practice of religious freedom in the Indian Constitution this essay will argue that the legitimacy of the normative claims of Indian constitutionalism cannot be taken for granted as their epistemic frames misunderstand, distort and flatten out various Indian traditions of religion, spirituality and ethical striving. Consequently the paper will examine the divergence between social facts and constitutional norms as an important axis to examine the constitutional practice of religious freedom in India

Making Ahmadis Legible: Texts and Practices of State and Law in Pakistan

Ahmadis are followers of Mirza Ghulam Ahmad (1835-1908) who believe him to be the promised Messiah and a Prophet in some sense of the term. Ostracized by most Muslims as heretics for believing in the idea of a prophet after the Prophethood of Muhammad, Ahmadis have faced violence and persecution in Pakistan since its establishment. In my paper, I will trace the historical trajectory of exclusionary trends against the Ahmadis which has led to, what I call, a criminalization of Ahmadi identity in Pakistan. This is because a belief in the prophethood of Ahmad as a derivative of Prophet Muhammad’s prophetic authority, I would suggest, has been equated with blasphemy in the legal-juridical language of the state. This I will show by offering a close reading of important texts, such as the proceedings of the national assembly which voted unanimously to declare Ahmadis as non-Muslims in 1974 and various court cases dealing with the ‘Ahmadi issue’ over the years. This will help understand the shaping of a legal discourse and statist narrative that, in turn, has normalized the practice of social violence and apartheid against the Ahmadis. The impetus for the criminalization of Ahmadi political and religious identity, I argue, has a parallel with the Jewish Question of Nazi Germany – the impetus for making the ‘similar’ marked out as ‘recognizably different’. Ahmadis – in their names, appearances, religious beliefs, and rituals – are similar to ‘other Muslims’; hence, necessitating an enforcement of distinction or making Ahmadis ‘legible’ through violence normalized by the language of law and practice of state so as to maintain communitarian boundaries.

Religious Rights and Buddhist Monastic Law in Contemporary Sri Lanka

A particular story about religion and law percolates up through many recent studies of Buddhist monastic law.  This narrative involves a move from fluidity to closure: as the era of the modern nation-state draws near, Buddhist monastic law takes on the rational formalistic qualities that many scholars associate with modern legal culture.  Relying on this narrative, one might expect that in the contemporary era of nation-states, fixed borders and centralized, constitution-based legal regimes, monastic law would further become homogenized. These expectations are, however, not entirely accurate. While certain state-legal structures do push monastic law in the direction of greater codification and routinization, others push monastic law in the other direction, towards greater fluidity, irresolution and multiplicity. In this paper, I draw upon a number of recent Supreme Court cases to analyse the ways in which Sri Lankan constitutional practice has destabilized conceptions of Buddhist monastic law and, in fact, opened up new opportunities, spaces and incentives for contesting visions about its nature and function.

The Case of the Purloined Papers, or, How to Get Away With Libel

In 1908, complainant Amar Singh brought suit against Dharmpal, a prominent Arya Samaji who had allegedly purloined a set of papers from Amar Singh’s almirah. These papers included a confessional letter from Amar Singh to his guru, Satayananda Agnihotri of the Dev Samaj, vividly describing Amar Singh’s erotic pleasure in brushing up against female passengers on a crowded train. Amar Singh was displeased when he discovered his confession reproduced verbatim in the pages of Agni, Dharmpal’s 1907 tract against the Dev Samaj.

District Magistrate Parsons, who initially dismissed the complaint, felt that the charge of theft had been brought inappropriately. Instead, he advised that Amar Singh bring suit under one of the sections of the Indian Penal Code addressed to religious controversy. That Amar Singh had charged Dharmpal with theft, rather than with religious offense or even libel, was, Parsons suggested, simply a practical matter: he thought that theft would be easier to prove. It wasn’t. Through a series of contorted arguments, Dharmpal’s lawyers insisted that although Dharmpal had viewed, transcribed, and published the contents of Amar Singh’s papers, this did not in fact constitute theft. The originals of the letters had allegedly been returned, and the legal protection of property extended only to the “corporeal” object of the text—but not the information in it. In the initial hearing, Parsons expressed alarm at the radical implications of this argument for notions of privacy. Even so, a weakened version of it seems ultimately to have been part of what swayed the court to rule in Dharmpal’s favor. His theft was, at best, an ambiguous act. Consequently, he got away with a publication that might otherwise have qualified as libelous or offensive to religious sentiments. Particularly given its connection to the written religious confessions that were part of the practice of Lahore’s Dev Samaj at this time, Amar Singh v. Dharmpal raises a set of critical questions about the construction of the public/ private divide. Here, we see how the contest around the boundaries of the colonial public took shape in relation to religion, sexuality, and print media as those three cultural fields become entangled with

Particularly given its connection to the written religious confessions that were part of the practice of Lahore’s Dev Samaj at this time, Amar Singh v. Dharmpal raises a set of critical questions about the construction of the public/ private divide. Here, we see how the contest around the boundaries of the colonial public took shape in relation to religion, sexuality, and print media as those three cultural fields become entangled with colonial law.

This presentation thus uses Amar Singh v. Dharmpal to frame a theoretical inquiry into the concept of “the public” in colonial India. Although I will focus on this particular court case, I also hope to use the presentation to preview some of the ideas that I’m developing in my current book project on the political theology of public speech.

Beyond Politics. Religious Practices and Civil Rights in India

Judicial activity mobilizes legal categories and reasoning that frame any issue at stake – including religious ones. The present contribution aims at showing that part of this action is beyond particular policies of reform or of secularism and is integral to ‘modern’ law. The paper takes up a few cases where the jurisdiction of a civil court in disputes concerning religious issues was contested. The court had then to decide whether the case was cognizable or not, and make explicit why. Indeed, since British times and long before the promulgation of the Constitution, the distinction between private and public, and the law on property, have led to the affirmation that the right to worship, and in certain circumstances the right to a religious office, were civil rights. Courts have the jurisdiction to decide on these rights even if it entails their ruling on associated rites or ceremonies. Indian courts have thus an intrinsic capacity of deciding religious matters (through litigations bearing on civil rights) in different religious contexts, e.g. Hinduism, Jainism, Islam, or Christianity. The paper will comment on some judgments, chosen from the end of the nineteenth century to the present day, with a view to discuss the often disputed limits of this judicial intervention and the resulting entanglement between law and religion.

Placing Faith: On the Rhetorics and Rationales of Representing Ex-Indentured Indians in Malaysia