Questioning the axioms

What if law does not dictate how people live or die but allows old customs and traditions to do their work?

Written by S N Balagangadhara | Published:January 21, 2016 12:09 am

law and order, religious law, india news, india intolerance, india secularism, india rituals, india jains,

There are three ideas in the West about law that are taken as axioms. First, that all societies are founded on law; if they are not, they ought to be. The second is that law teaches and educates a people. The third is their corollary: Only thus do a people become a nation. As far as I know, none has shown their empirical truth or proved that they are logically necessary. But their truth-value is not doubted. When they ruled India, the British followed these axioms: They tried to educate us through law, they interfered in our festivals and social practices and the state tried to educate a barbaric people by enacting “just” laws. Romulus gave law to Rome and made it into a state; Moses gave law to a people and made them into a nation; Mohammed is a lawgiver; so is Manu in India. These ideas are not dated, apparently. Today, all these ideas enjoy the same currency they had during colonial rule.

Our prime minister launches a programme, Swachh Bharat, enjoining the state to teach public hygiene to Indians. Strange, because most Indians are focused on their hygiene: Many bathe three times a day, even more do so twice and most at least once. Most Indians are keen on sweeping the floors of their houses at least once a day. Yet, our public spaces do not enjoy the same attention. Instead of figuring out how and why a hygienically oriented people think about public spaces differently, the state takes upon itself the role of a teacher that should educate an unhygienic public.

A few years ago, I was invited to meet some sadhus at the Swaminarayan temple in Delhi. We were informed that my female students should not accompany me and my other male students, because these sadhus practise strict brahmacharya. My students were aghast at this discrimination against women, which increased when they discovered that women are not allowed temple entry during certain hours when the sadhus come to perform puja. I tried explaining to them that these practices are not directed against women (or anyone else) but that these are the practices of the sadhus as demanded by the vows of strict brahmacharya. They were as unconvinced as my colleagues in Europe: It is clearly a case of sex discrimination. I am sure that it will not be long before someone in India steps to the court, challenging the practices of the devotees of Swaminarayan.

The courts would then interfere in the practices of a people: The Jains are violating the law when individuals decide to leave this world in a way that is respected by a people; the people in Karnataka are not allowed to observe ways of serving in temples and perform old practices because they violate human dignity; the devotees of Shabari Ayyappa discriminate when they do not “allow” menstruating women to join some practices; one must follow Muslims and Christians in terms of dress codes while visiting temples; certain games and practices are not allowed because they inflict pain either on animals or by people on themselves. The list goes on endlessly. Practices of different communities, no matter how old and venerated, should have their foundation in law. Otherwise? They are barbaric, of course.

However, what if the staid ideas from the West are not god’s own truth? What if a society is not founded on law but sees law as a part of society that merely provides a reasonable solution to human conflicts? What if law does not create a nation and that groups become a people precisely because of the colourful variety of their local practices? What if law does not educate people but merely regulates reasonable interactions amongst them? What if law does not dictate how people live or die but allows old customs and traditions to do their work? Surely, positive answers to these questions do not mean that one countenances all practices because they are traditionally sanctioned. What is being asked is something different: Allow reason or law to criticise unreasonable behaviours but do not make either of the two into a foundation for human interaction. What does this statement mean?

Here, the practice of slave-owning is not being defended on grounds of its venerable ancestry. Nor is it being suggested that the practices of a people, which is what tradition is, are immutable. After all, traditional pujas, say Ganesh Puja, have adapted themselves well to modern technology. Human traditions can be criticised if found unreasonable, which means leaving normative judgements behind, or when they directly harm others. But no evaluation, rejection or change of a way of living because, under a specific description, it violates some or another normative principle.

However, going in this direction requires a belief in the validity, acceptability and value of one’s way of living. The way Christians and Muslims dress in their places of worship is not an argument for other Indians not to dress the way they normally do in their temples. How the West arranges its own society is not a knockdown argument in favour of its civilisational priority or primacy, or proof of the inferiority of other ways of organising social life. While this consideration is perhaps abstractly acceptable, the Indian intelligentsia does not obviously believe in its truth. If it did, it is not possible that people seek the intervention of the apparatuses of the state in matters of human practices that carry the stamp of a tradition.

Looking from the outside, my vantage point, the Indian intelligentsia is increasingly imitating the West. However, apart from its thoughtlessness, this move is not as simple as it appears at first sight. When we take over ideas from the West, we must remember to understand them as cultural beings. The culture from within which we look at the West and appropriate its thoughts remains undeniably Indian. As a result, what we think the state is, and why and how we use the courts of law, have to do with the way we, Indians, understand the West from within the framework of our culture and traditions. What guarantees us that this understanding is not flawed? How do we know we are not distorting meaningful ideas in our attempts to follow Western “theories”?

The writer is director, Research Centre Vergelijkende Cultuurwetenschap (Comparative Science of Cultures) at Ghent University, Belgium.

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  1. K
    Jan 21, 2016 at 12:07 pm
    ... Before answering many other questions the primary query to be addressed is, 'in the beginning there was God' by every dogmatic follower everywhere any time..
    1. R
      Jan 21, 2016 at 7:45 am
      "Moses gave law to a people and made them into a nation; Mohammed is a lawgiver; so is Manu in India. " ........ Lawgiver, my foot. One of these people raped children. Guess who? It also explains why the cult they came from him is so immoral and violent.
      1. D
        Jan 21, 2016 at 8:44 pm
        The author's biography indicates he is a Director of a 'Comparative Science of Cultures'. I would like to understand, how he attempts to use the rigour of science and use it to study culture, which is mostly the development of various practices of the Human Race, of which a large portion of which have no basis in Scientific fact. Preserving a study of a culture is different from the practice or promotion of redundant and unscientific practices that seem to deprive a significant portion of the potion. Is the historicity of a culture the sole determinant of how much value we should place on it? Should we allow the Bohra Muslims to mutilate their women in the name of Religion and Culture? I don't know if it was the author's fault or the editor's but there seems to be a hanging sentence that makes no sense here "But no evaluation, rejection or change of a way of living because, under a specific description, it violates some or another normative principle. " and therefore i get absolutely no clarity on whether Female Genital Mutilation or slavery should be stopped or merely criticised or whether the criticism itself is bad. In any case the Indian State in 1950 gave itself a very different culture, it gave itself a Consution and this consution incorporates within itself the desire to be 'Secular' and also to inculcate 'Scientific Temperament', therefore the State can and in fact has a duty to oppose unscientific and discriminatory practices that strike at the roots of the Consution. Now if Sabarimala existed on completely private property, paid taxes and had no help or control of the Secular Democratic State of India, then it could allow whoever it wished to allow as long as it did not engage in blatantly illegal practices. However, since Sabarimala does not exist in such a private cocoon it has to amenable and in fact be made to be subservient to the Indian Consution. The march of Human Civilisation is littered with failed ideas that are disproved time and again by the rigours of scientific proof. So yes, if people are so worried about aping the west and whether what we copy is even worth it or not, the test is simple our these new values compatible with our consution and if they are then are they more or less in tune with the Consution than the cultural phenomenon it seeks to replace. Frankly unscientific and ic restriction of women from public spaces that are funded by tax payer money (even if clothed with religious character) are completely incompatible with the Indian Consution and therefore Indian values.
        1. d
          Jan 21, 2016 at 2:02 am
          Last sixty years rule of a political party has appointed committed and dedicated person in all pillars of democracy except the one which gets elected. These committed is in operations to damage the credibility of new system. At some position they openly support previous regime and want to wait till its back. Since the political and social is biased and committed to damage the existing system, these issues will grow and create unrest.
          1. d
            Jan 22, 2016 at 2:19 pm
            Laws and legal process and system not accepting old system and values is not fare. After all how can a system framed by foreign origin can do justice with dos and don'ts of our system more than thousand of years. Criminal practices such as SATI and atrocities is a different issue and can't be used as argument every time to oppose a tradition.
            1. J
              Jan 21, 2016 at 6:21 am
              Time to question all ideals, ideologies and systems imposed by The West during colonial period on their subjects.Eg consider 3.5 crore cases pending in our courts.By a Judge's own admission, this could take 200 years to clear.This is the result of British jurisprudence that we "inherited" and imposed on gullible people.Reason why after 70 years of independence, 99% of Indians are dead scared of approaching our courts for justice.Only the criminals and criminal minded businesspersons are happy with this situation.That is the "rule of law" we are condemned to.
              1. K
                Jan 20, 2016 at 11:32 pm
                Well. None in right mind will say India is democracy. It is anarchy. It is due to different way of thinking and not following laws. India has worst record of law abiders and that is why you see so many problems. You may not like western way to do things but I think all western countries works, India is not working. Think about it. What India needs strict enforcement of laws and removal of laws based on caste and religion.
                1. L
                  Jan 25, 2016 at 7:30 am
                  thanks for a good article Sir
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