TITLE: Rethinking Indian Jurisprudence
An Introduction to the Philosophy of Law
AUTHORS: Aakash Singh Rathore, Garima Goswamy
REVIEWER: Prof. Bibha Tripathi, Faculty of Law, BHU
Routledge is now enriched by publishing the first South Asia Edition 2018, book entitled Rethinking Indian Jurisprudence an Introduction to the Philosophy of Law authored by Aakash Singh Rathore and Garima Goswami. The book under review is a major innovation of its time which gives a kaleidoscopic view of Indian Jurisprudence compelling academicians in general and students and professionals in the field of law in particular to have a personal copy of the first edition.
Aakash Singh Rathore specializes in Legal theory and comparative constitutional law and Garima Goswami has experiences of teaching philosophy. The authors and the publisher are blessed by the comments of legal laureates like Prof. Upendra Baxi, Kalpana Kannabiran and Thom Brooks. Prof. Upendra Baxi has rightly pointed out the book as lively and provocative. It is a book that not only prepares a baseline of Introduction to the philosophy of law but also gives enough food for revisiting Indian jurisprudence.
There are 218 pages devoted to deal with major issues from Introduction to Conclusion including Bibliography and Index. There are seventeen chapters divided into three sub-parts i.e; Elements of Philosophy of Law, Towards an Indian Philosophy of Law and Applying Legal Philosophy to Indian cases. Each chapter consumes seven to ten pages on average. The book is user friendly and successfully communicates the Western and Indian philosophy of law to the readers. The book is free from any typographical error barring a few.
Both the authors have extended different reasons to dedicate the book and tried to diminish the public-private dichotomy through it. Every chapter is ended with a brief but crystal clear conclusion even the introductory chapter. The book has been authored on the basis of the golden rule of drafting precisely and concisely.
The authors have tried to explore the area of philosophy of law, especially in the Indian perspective. The acknowledgment makes it clear that the seeds of the book were sown during coordinating a yearlong project of the paper of philosophy of law under UGC’s E-PG Pathshala program. Readers could also be benefitted with the importance of UGC’s E-PG program to prepare more innovative works for the society.
The authors have meant to revisit the Indian Jurisprudence with a clear understanding that it can be known as either philosophy of law or legal history or legal theory depending upon the particular discipline. The authors have rightly established that without discerning the jurisprudence of law one cannot inculcate a better understanding of provisions of law. The philosophy is always bestowed upon what law ought to be. What had been the conceptual marathon before the enactment of the provisions? Since every student of law must be aware of the moralistic, legalistic, functionalist and sociological concept of law therefore, the book aims to focus on it in India, retrospectively vis-a-vis prospectively.
Futuristic philosophy of law in India has also been used as a canvass to paint the picture of their imagination. Jurisprudence in its original form and content as a subject to be taught in Indian law schools has been an important subject and the present book deliberately delves into the Indian legal system.
In the very introduction of the book, the authors have coherently classified the chapter overview which gives a lucid glimpse of the content of the book. Through this book, one can have a basic understanding of the philosophy of law. Elementary knowledge of big concepts of philosophy to the beginners is sine-qua-non and the book stands up to the satisfaction of epistemological pursuit for the same.
The first five chapters of the book under the caption elements of the philosophy of law are kept under the first domain by the authors as it deals with the dominant traditions and discourses of legal theory axised in Anglo- American world. In chapter one on Law and Morality, the authors have cleared the concept of analytical school, the Hart Fuller Debate and the problem of core and the penumbra. The authors have rightly pointed out that the chapter serves as an important prerequisite for many of the following chapters.
Since Canon Law has survived to contemporary times and is considerably relevant even today exerting a significant influence on the western tradition of legal philosophy and shaped the legal structure of modern legal states. Therefore, the second chapter refers to various Canon Laws as Christian sources of secular law.
The third chapter has explored the original invention of the hypothetical case Speluncean Explorers by American Philosopher Lon L. Fuller. The authors have rightly pointed out in the conclusion of the third chapter that different decisions are not just the result of different facts. On the contrary, the same facts lead to widely different results, all because of the central importance of the philosophy of law.
Fourth chapter has dealt with a postmodern critique of reason and rationality and prepared a base of legal reasoning and reasoning to cope up with the critiques of reason. However, the duo has left the puzzle unsolved at the discretion of readers to decide whether Judges and Lawmakers can make rational and reasonable decisions.
The last chapter of first domain tries to deal with ironical paradoxes of Human Rights in a country like India where most of the people still humming “Bichauna Dharti Ka Bana Are Aakash Odh Le” the binary created by modernist and postmodernist thinkers on universalism and particularism has also been highlighted in the preceding chapter of second domain of the book devoted to deal with the particularities contextualizing the philosophy of law. In chapter six of the second part of the book, the duo cited excerpts of justice V.R. Krishna Iyer to distinguish Indian ethos and philosophy from the western one. Here, it can be submitted that whatever developments in the holistic or humanitarian philosophy of western countries have taken place are influenced by Gandhian, Vivekananda’s, Maharshi Arvindo’s and others. The authors have rightly concluded the chapter by highlighting consistency with the plural society of India as one of the foremost elements of India’s newly emerging indigenous philosophy of law.
Seventh chapter from Dharmshashtra to Modern Hindu Law highlights the legacy of legal framework in place right from the Vedic period for appropriate understanding of the nature of Indian law. The chapter refreshes the transformation done by Classical Hindu Law and the misinterpretations of Classical Hindu text in the era of Anglo- Hindu Law to its limited sphere of personal law or family law in Modern Hindu Law. Hinduism and Hindu Law have been distinctly analyzed on the question of caste discrimination in the eighth chapter on Persistence of Caste as caste discrimination is associated with Hinduism and Hindu Law offers an understanding of legal provisions against such discrimination.
India is being victimized by the vicious politics on caste lines especially at the time of the election. Every party wants to polarize its vote bank on the ground of caste politics. Therefore, the eighth chapter is an absolutely relevant chapter to discuss the issue. The authors have rightly pointed out that unfortunately today’s India –legally, politically and socially is marked by the persistence of caste.
Ninth chapter deals with the politics of ‘Shariyat’ to focus on multiple political meanings of the term ‘Shariyat’ in postcolonial India as there was a debate on Muslim Personal Law even at that time as it is going on at present too. The chapter raises two important questions. First, what are the forms in which ‘Shariyat’ is represented as a political issue? And second, how do these varied political forms draw legal constitutional legitimacy?
Gandhian philosophy has not only affected the Indian jurisprudence but also the western jurisprudence too up to some extent. Therefore, a separate chapter ten is devoted to deal with ‘Gandhis’ affirmation of law, the authors have thoroughly researched literature on Gandhi before penning down and commenting upon Gandhi. As we all are aware that in the present regime we receive innumerable articles debating his assassination on or before 30th January and more and more programmes are organized on 2nd of October over ‘Swachh Bharat Notion’ without sketching the salient features and sobriquets on Gandhi it can be submitted that still we can enrich our philosophy of law with Gandhiyan thoughts mainly the professional ethics.
The other most popular politically important figure has been Baba Saheb Bheem Rao Ambedkar so the eleventh chapter deals with Ambedkarite Jurisprudence. The chapter attempts to discern something as an Ambedkarite vision of law beyond the epithet of being the Father of the Constitution. Ambedkar Saheb gave more priority to societies’ sanction duly legitimized by the state. The chapter has frankly established the fact that the compelling force of an inner world beyond the reach of the law but as a ground for righteous law is to bring a just society.
With the end of part two, there is a beginning of applying legal philosophy to Indian cases in part three containing six chapters as there is diversity and wide-ranging scope of philosophy of law to be inaugurated in Indian philosophy of law while applying legal philosophy to Indian cases.
The first chapter under the third domain which is by sequence twelfth chapter deals with the right to freedom of expression with a question that does it extends to unregulated expressions? Some part of India is infamous for using abusive language based on female genitals. Here, it is submitted that one should not be too frank to theorize abuses in any form. It would have been better had the authors avoided using the term ‘Bakchod’ in the very title of the chapter. It is also submitted that though there are certain platforms even in India like ‘Maha Moorkh Sammelan’ and ‘Budhwa mangal’ etc. In which filthy languages are used and people enjoy the humor too but we should always be cautious towards public order, decency and morality as civilization is not built up in one day and in a civilized society, every private affair should not be publicized.
The thirteenth chapter dealing with equality and reservation rightly concludes that equality of what means equality of opportunities without discrimination on the basis of caste, color, creed, sex or race. While writing about queering law in chapter fourteen the authors have admitted the works done by Arvind Narayan and introduced the readers about queer legal theory in the Indian context. From Naz Foundation to Suresh Kaushal whatever happened in providing some space for the ‘little communities of love’ it is clear that the theme of ‘constitutional morality’ has also brought about a paradigm shift in the way LGBT persons may be thought about in relation to the law.
I would like to congratulate the authors for devoting chapter fifteen on Rape and Security and dealing with crime with a Buddhist vantage point. It can also be referred as ‘Buddhist Criminology’ in contrast with the Durkheimian notion of crime as an integral part of society. In the penultimate chapter, the authors have discussed the ethics of organ donations based on the Iranian model and left a question over the readers to decide that Are the ethical issues circumvented by the legal solution?
The book would not have been completed had the authors not written about on the Jurisprudence of the Indian Supreme Court. The last chapter provides a brief sketch of those five cases which have abiding Jurisprudential relevance over the issue of Basic Structure, Right to Livelihood as Right to Life, Constitutionality of Reservation, Muslim Women’s Right to Maintenance and Protection of Women from Sexual Harassment at Workplace.
The authors have presented a recap of all the three domains of the book in the concluding chapter which is helpful for students to understand the issues more clearly so that they can have a thrust to look ahead for a second volume of rethinking Indian Jurisprudence. I hope the authors will very soon plan to make the dream come true to their readers with the second volume. My blessings are with them for the near and distant future.
-Prof. Bibha Tripathi, Faculty of Law, BHU
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