The late Masaji Chiba’s contributions to the study of law are vital. He was a strong Asian voice amidst the hubristic cacophony created by Western legal theorists, which has been crowding out other voices in the world. His insights are largely overlooked by Western legal scholars and this continues to be the case even within studies connected to the field of legal pluralism to which he contributed the most among Asian scholars.Footnote 1 This may be because, or despite the fact that, he often saw through the problems and deficiencies inherent to ‘Western model jurisprudence’ which was parasitically adopted by non-Western scholars and countries; and he was not afraid to say so openly—or as he would say, “frankly”!Footnote 2 This overlooking is to the detriment of legal scholarship generally. My own experience is that one can go back repeatedly to Chiba’s works to discover previously unnoticed insights.
Werner Menski first introduced me to Chiba’s work, and I began to take a deeper look at Chiba’s writing in connection with my work on cultural diversity and legal pluralism in the British context.Footnote 3 At the time, I was not yet preoccupied by the question of religion to the extent I subsequently came to be. Eventually, perhaps, the 9/11 effect took hold of me too! I received a Chiba Grant (Beca Chiba) to study at the International Institute for the Sociology of Law at Oñati, Spain in 2005, specifically on the question of religious reconstruction among Britain’s South Asian diasporas.Footnote 4 Probably, Chiba had presciently realised that studies of non-Western law would be neglected in Western legal circles and made sure that the grant he had endowed was dedicated to that potentially enormous field of research.Footnote 5 Meanwhile, the bombings in London of 7/7 took place just a few days before I arrived in Oñati. This was the start of a concern with religion and law which is still with me and which I now attempt to take beyond the British context.
In his English language writing, Chiba does not elaborate about his idea of religion and he certainly does not try to lay out some kind of theory of religion. Rather, he is interested throughout his work to elaborate on and refine meta-level concepts in order to delineate the chief characteristics of legal pluralism, especially legal rules, legal and identity postulates, official and unofficial law, indigenous and transplanted law, trans-state law, and so on. How, then, does Chiba use the term ‘religion’? Religion features as one aspect of legal pluralism in the theory set out by Chiba and, for him, it belongs under the general rubric of ‘legal postulates’.Footnote 6 Legal postulates inform official and unofficial laws by founding, justifying, or orienting them, and legal postulates are not exhausted by religion. Chiba’s choice of the term ‘legal postulates’ seems to have been motivated partly by the fact that he figured out that the term ‘natural law’ was too identified with Western culture to be of use as a meta-level idea in a multicultural world.Footnote 7 This was an interesting move by Chiba which is in itself worthy of notice in that it represents an instance of his attempts to specify the limit of concepts derived from one particular culture and to go beyond the Western concepts which were (and are) tying down legal theory within its Eurocentric cocoon.Footnote 8
As a feature of Japanese culture, Chiba regarded Shinto as a religion, describing it as “originally an indigenous folk religion” which was subsequently “ideologized as the State Shinto”.Footnote 9 He saw Hindu law as a “religious law”.Footnote 10 These observations are hardly exceptional to Chiba since the conventional wisdom in today’s world is that Shinto is a type of religion, and so is Hinduism. It is still strange in most circles for people to say that neither Hinduism nor Shinto are religions; or that neither is even a coherent unit of discourse as generally implied by their portrayal as kinds of religious entities. Yet, these are precisely the sorts of claims that are made in this article, which will open up the possibility of asking further questions about Asian legal systems.
It is well known in some circles that a lively debate has been raging about the possibility or impossibility of legal transplants and the bearing that culture or the nature of societies has on the success or quality of legal transplantation. The protagonists in this debate have been Alan Watson and Pierre Legrand.Footnote 11 Not untypically, Chiba’s investigations into the problem were ignored by them. Chiba advised us to look deeper at the dynamics of transplanted law, which he defined as that law “which was received from foreign cultures or imposed by foreign countries”.Footnote 12 He advised that we should look at the whole working structure of a socio-legal entity from a historical viewpoint and should pay attention to its identity postulate in order to assess the fate of any transplantation. As Chiba noted:
the whole process and outcome must be viewed with the total history of the people concerned – a history in which they have endeavoured to preserve their cultural identity in law against other peoples. Here, then, is hypothesized one or more basic legal postulates of a country functioning throughout its history to provide the people with the criteria with which they are enabled to determine, from among many possibilities, what kinds of law they should develop selectively and … what foreign law and to what extent it should be received or rejected in order to preserve their cultural identity in terms of law. Such a postulate or postulates cannot be of a received nature insofar as each group of people concerned has preserved its national identity in history, but must be of an indigenous nature, however it or they may have involved or assimilated received law. The “identity postulate of indigenous law” may thus be an appropriate name for such a postulate or postulates.Footnote 13
Chiba saw that there were different identity postulates in different countries; Dharma in India, Shinto in Japan, and Islam in Iran or Egypt which do the work of selecting what transplanted laws are chosen and the way in which they function. Therefore, the reception of transplanted law should tell us something about the nature of the identity postulate of any socio-legal entity and may also allow us to propose further hypotheses about the fate of transplanted laws. Chiba revised the description of the ‘identity postulate’ to account for legal change over time and for different foreign influences and he therefore renamed it the “identity postulate of a legal culture” so that the term may signify a combination of indigenous and transplanted factors.Footnote 14 He drew attention to the possibility of competition and struggle as well as a change in an identity postulate as a result of negligible, transformative, or destructive influences. This article points to just such a potential for change within socio-legal entities, albeit with as yet inconclusive results.Footnote 15
The question here is: what is the fate of legal transplants when those transplants arrive from one culture, the Western culture, which is religious, to another culture that has no religion? To test the fate of received law, I take two different types of indigenous law, drawn from cultures whose identity postulates are derived from non-Semitic or ‘pagan’ elements - Japan and India. In both cases we try to discover what occurs when religion and ideas linked to it are transplanted from the Western culture. The more specific claim here is that dysfunctional effects result when certain kinds of legal ideas, embedded as norms within the Western culture, which are constituted by a religion, Christianity, are transplanted into those non-Western cultures that do not have religion. I want to specifically discuss the fate of ideas linked to religion such as the freedom of religion and the separation of religion and state, as enacted within the legal orders of non-Western countries. The further claim here is that these ideas break down, get distorted, become absurd or nonsensical, and even potentially conflict-inducing when placed in a culture where the identity postulates are not religious. As Chiba foresaw, this process can even lead to the identity postulate of a legal culture being altered or destroyed. This could occur as the secular state engages in the process of suppressing what it implicitly regards as false religion or idolatrous practices existing within the indigenous culture of the people.
I. RELIGION
A number of researchers have argued that the type of religion presupposed by studies of comparative religion and the human sciences more generally is Christianity, or they have voiced doubts about the validity of the claim that religion is a property of all cultures.Footnote 16 The strongest challenge against the claim of universality of religion has been mounted by S.N. Balagangadhara and his seminal research programme on the Comparative Science of Cultures.Footnote 17 Balagangadhara’s work has attracted some critical acclaim among scholars although it must be said, at the same time, that those Western scholars with whom I have had discussions are not willing to engage properly with his work, which is to the general detriment of various fields in the human sciences, including law.Footnote 18 Even though law and religion studies have attracted much research funding in recent years we find no serious attention to Balagangadhara’s work in that connection.Footnote 19
Balagangadhara draws attention to an often encountered inconsistency involved when the criteria indispensable to describing the Semitic religions - God, holy books, founders, doctrines, etc. - are the very ones dispensed with when applied to other traditions while yet claiming that they are religions too. He shows by reference to Christian sources that the persistent retention of the claim that religion is a universal, despite that inconsistency, can be put down to theology. Balagangadhara shows that this pre-theoretical and empirically untested theological assumption has subsequently seeped into the human sciences in secularised form (and it affects some theorising in the natural sciences too). That is why the social sciences today also claim that all cultures have religion. Taking the point further, with reference to historical evidence, he shows also how Europeans when travelling to Asia and other lands ‘discovered’ religion because it was a presupposed property of other cultures, and how they brought unrelated phenomena together under the rubric of various ‘religions’. We will return to this point.
Balagangadhara also offers a hypothesis of religion. He does not assert the existence of religion as a matter of mere language or discourse as other writers who build, for instance, on Wittgenstein or Foucault have done.Footnote 20 Neither is Balagangadhara after a definition of religion. Rather, he wants to examine religion as a phenomenon in the world and draws out its properties by proposing a hypothesis of religion.Footnote 21 Balagangadhara does not, however, argue that language use must not be taken seriously. It should, but it can provide us with a picture only of some conventional understanding, which may not be universal, but particular to a culture. He narrows down the search by examining the terms under which Judaism, Christianity, and Islam recognize themselves and others as religions.Footnote 22 These terms are as follows: (a) rivalry with respect to doctrinal aspects including in relation to the nature and existence of God; (b) that beliefs determine the difference between individuals and between communities; (c) because the actions of the faithful are embodiments of such beliefs, the different practices of individuals – to the extent these are relevant to religious practices – are expressions of competing religious beliefs; (d) consequently, that conversion from one religion to another means rejecting one set of beliefs and practices and embracing another set on grounds of truth and falsity, it being vital and necessary that believers believe in the truth of their beliefs. Using this ‘Semitic concept of religion’, Balagangadhara is able to explain, in a single hypothesis, why, on the one hand, Judaism, Christianity, and Islam recognised themselves, each other, and certain others as religions under particular terms of description and, on the other hand, why the pagan traditions of Rome and India did not recognise themselves and the others (Judaism, Christianity, and Islam) under these terms of description. That is why the followers of these pagan traditions could only respond with indifference and incomprehension to the characterisation of religious rivalry.
While Judaism, Christianity, and Islam may be exemplary instances of religion, Balagangadhara proposes that religion itself is an “explanatory intelligible account of both the Cosmos and of itself”.Footnote 23 This account says that the cause of the Cosmos is the Will of God, and all that was, is, and will be is an expression of His Will. God’s intentions can be known by studying the Cosmos and His revelation. This kind of account fuses God’s intentions or reasons for acting and the causes of His actions into a single explanation; He is the perfect being whose reasons can be read off his actions, which are His creation and the revelation He sent. A religious person thus experiences the Cosmos as both a causally explainable and an intelligible entity, a way of structuring the experience of the world that is not available to those without religion. Life is part of a bigger plan, and human life and death have a meaning and purpose, making it possible to ask questions about that meaning and purpose, answers to which are to be discovered. Within a religion, faith distinguishes a truly religious person from one who merely accepts that God is a creator of the Cosmos and follows its ethical rules. Faith allows the making of a distinction between those who adhere and do not adhere to religious truth (there can only be one truth), and to have faith is the other side of the coin to being intolerant, since a believer cannot accept that other religions are ‘equally true’. As Balagangadhara notes, “Intolerance, then, is necessary to being a religious person.”Footnote 24
That people from cultures which have religion also have a cognitive compulsion to ‘find’ religion in other cultures was also sensed by Staal, who observed that:
[t]he inapplicability of Western notions of religion to the traditions of Asia … is also responsible for something more extraordinary: the creation of so-called religions. This act was primarily engaged in by outsiders and foreigners, but is sometimes subsequently accepted by members of a tradition. The reasons lie in the nature of Western religion …. In most parts of Asia, such religions do not exist, but scholars, laymen and Western converts persist in searching for them. If they cannot find them, they seize upon labels used for indigenous categories, rent them from their original context and use them for subsequent identification of what is now called a “religious” tradition. Thus there arises a host of religions: Vedic, Brahmanical, Hindu, Buddhist, Bon-po, Tantric, Taoist, Confucian, Shinto, etc. In Asia such groupings are not only uninteresting and uninformative, but tinged with the unreal.Footnote 25
First of all, Staal’s claim about the inapplicability of Western notions of religion to Asian traditions (by “Western” Staal refers to all three Semitic religions) seems analogous to Jun’ichi Isomae’s reference to fellow Japanese scholars Seki Kazutoshi and Ama Toshimaro who, says Isomae, “agreed that the Western concept of religion was not suited to the analysis of non-Western religious phenomena”.Footnote 26 In effect, both say that we require a more extended concept of religion that fits Asian religious phenomena.Footnote 27 At this point, the usefulness of Balagangadhara’s theory becomes more evident. As noted, Balagangadhara’s own evidence shows how the terms of description of the Semitic religions were incomprehensible to followers of the Roman pagan and Indian traditions. Rather than arguing for the stretching of the concept of religion to fit Asian realities, which Balagangadhara already identifies as having been routinely done to account for Asian phenomena, and which he shows as resulting in contradictory ideas of religion, he accounts for why the Semitic concept of religion makes no sense to those from Asian cultures. It makes no sense because they lack an explanatory intelligible account; ergo they lack religion. His theory therefore explains why the doctrinal rivalry inherent to the Semitic religions is incomprehensible to Asians and why they are indifferent to it. Rather than explaining that Japanese beliefs “in the workings of unseen presences” are evidence of a form of religiosity, Isomae would have been better off adopting Balagangadhara’s explanation for Isomae’s own observation that:
because Japanese are uncomfortable in using the word ‘religion’, with its connotations connected to Christianity, they often want to assert that they do not want to believe in ‘a religion,’ and end up expressing the difference by saying ‘Japanese are not religious.’Footnote 28
Staal also noticed that there was something “unreal” about the groupings constructed by outsiders and foreigners. Balagangadhara explains the status of these ‘creations’ in the following way:
[T]he West did two things: (a) created ‘Hinduism’ and ‘Buddhism’ etc. as coherent and structured units and (b) did so as religions. The issue is not whether western culture created a monolithic religion instead of recognizing the multiplicity of theories and practices that go under the label ‘Hinduism’. It is not even whether they experienced ‘Hinduism’ as a monolithic entity. Instead, it lies in the fact that ‘Hinduism’, as a concept and as an experiential entity, provided the westerners with a coherent experience. To the extent it is a concept, it is a human construct, like all other concepts. It is also a construct because, as an experiential entity, it unifies the western experience. However, this concept has no reference in the world, i.e., there is no ‘Hinduism’ (whether as a religion, or as a multiplicity of religions) in the Indian culture.Footnote 29
Balagangadhara explains further the ontological status of the “experiential entity” that is Hinduism:
In his Orientalism, Said distinguishes between the Orient as a place and ‘the Orient’ as an entity that exists only in the western experience. Similarly, one could argue that ‘Hinduism’ is both a false description of Indian reality and it is an imaginary entity. It is false not because the West gave a false description of some reality (‘Hinduism’ in this case) but because they falsely assumed that their experiential entity was also a real entity in the world. It is imaginary in the sense that it does not have an existence outside the experience of western culture.Footnote 30
Balagangadhara writes that, in the process of making an entity like Hinduism (or Shinto, for that matter), tradition is cast as another religion, and provided with a ‘foundation’ which inscribes its falsity.Footnote 31 The otherness of the traditions, based as they are upon ancestral practices and human knowledge, thus disappears in this account: “Having no ‘other’, religion merely postulates other religions. It is impossible that India does not have religion; it merely has another religion.”Footnote 32 Perhaps we should speak about this process as ‘anothering’. When religions were found, they were opposed to whichever idea of truth Europeans had brought with them and invariably described by them to be false religions. It followed that the practices of the natives identified as regressive, being inconsistent with the ethical values of the Europeans, should be reformed. This theme continues in secularised form today. In some cases, notably in the Americas and Africa, where Christianity has spread the most, there were even discussions about whether the native peoples were humans and therefore whether they could receive the Christian message.
After the Reformation, ideas specific to Protestantism, for example the split between the temporal and secular public sphere and the private realm of the conscience and religion, were also brought to Asia. The Reformation had set one Christian movement against another, with Protestants claiming that Catholics (and other Protestants) were idolatrous, setting off a chain reaction that continues today. As De Roover explains, the chief problem the Protestants identified with Catholicism, and with other Protestants, was the presence of idolatry within their practices, while the realm of the ‘secular’ was conceptualised as containing the set of sanitised practices to which they were indifferent.Footnote 33 The Enlightenment pushed this process further, with the state ideally becoming neutral and secular, thus not tied to any religion, while assuring freedom of religion and conscience. This phase of secularisation was a consequence of, and implicitly carried forward, Protestant critiques in so far as they required a secular state as a way of guaranteeing that no man-made accretions should influence true worship. Otherwise it would amount to idolatry.Footnote 34
The building blocks and “intelligibility conditions”Footnote 35 of Enlightenment ethics, grounded as they are on a Christian anthropological framework, have since receded into the background within Western jurisdictions to the extent that the link of modern law to religion is often denied (even though legal ideas, and the very idea of law in the West, derive from theology); the separation between law and religion is seen as incomplete (thus presupposing the normative force of the public-private divide of Protestant theology); or such separation is criticised, now often in the guise of ‘post-secular’ critiques (while accepting the theological descriptive basis of secularism). As Balagangadhara points out:
the lines of distinction between the ‘religious’ and the ‘secular’ spheres are drawn within a religion. Historically speaking, this demarcation is the work of Christian theology and our political theories are Christian theologies in disguise. The enlightenment thinkers repeated this Protestant story and this has become our ‘secularism’.Footnote 36
This is part of the process which Balagangadhara identifies as ‘secularisation’, which is one of two ways (the other being conversion) in which Christian theological ideas spread and become universalised. Secularisation can therefore be seen as the extension of specific clusters of Christian ideas into the general or common place conceptual framework of a society, functioning as (topoi) which are either heuristic tools for the development of theories or components of such theories.Footnote 37 As those topoi spread, they lose their ostensibly Christian character, and mix in various ways to assume their specific characteristics. Importantly, Christian commonplace ideas are also extended to other societies according to what is assumed to be a universal framework. While there may be a number of agencies for effecting secularisation in this manner, legal transplants appear to be a key tool for generalising Christian topoi in a secular guise. While modern Westerners have been losing their ability to relate contemporary secularised frameworks to their theological background, to Asians they have made even less sense, even though many Asians have taken over the Western description of the Asian cultures. Let us turn to the processes which were set in motion once religion was found or ‘created’ in Asian contexts.
II. JAPAN
Chiba draws our attention to the fact that, in its long history, Japan had extensive contacts and legal transplantation experiences, especially with Korea and China.Footnote 38 However, the question of religion did not arise until contact was made with the West. The introduction of Catholic Christianity to Japan in the 16th century does not appear to have led to major legal reforms, although Catholicism was prohibited by the 17th century. It did, however, give rise to the Japanese word for ‘religion’, shukyo, which is said to derive from the Chinese word, tsung-chiao, which is translated by C.K. Yang as “doctrine of faith”.Footnote 39 Otherwise, as Isomae observes, “[i]n the Tokugawa period, however, Christianity was equated with Catholicism, which tended to be neglected by Japanese scholars in the modern era due to its ritualistic character.”Footnote 40 Conversely, this indicates that they were not interested in doctrinal foundations for practices as the Christian themselves were. It underwrites Balagangadhara’s observation that Asians cannot comprehend the nature of religion and view Christian practices as a tradition among other traditions and, as such, they may be indifferent to it.
During the Meiji period, and with increased contact with Western countries and the introduction of Protestantism in Japan, things began to change. As Kayaoğlu shows, this was a period of “legal imperialism” during which legal concessions were demanded by Western powers and, to resist them, the very nature of the state and legal system changed in the target countries, including Japan.Footnote 41 The major controversies regarding religion also started in the late 19th century when there were several linked developments. Religious studies were established as a discipline at Tokyo University and later elsewhere. Several religions came to be identified including Buddhism, Shinto and Christianity. The process of anothering had been set in train. In a pattern that is reflected well in Japan (and in parallel Indian developments), Buddhism, for instance, began to be reconstructed with efforts being made to purge it of its “superstitious elements”.Footnote 42 The Greater Japan Imperial Constitution (Dai Nippon Teikoku Kenpo) was promulgated in 1889. Along with the sovereignty of the emperor, it formally established Shinto as the state religion, while a stipulation for freedom of religion was also included. Already we see a transformation of the language here. Shinto was now regarded as the state religion while the vocabulary of religious freedom simultaneously became important. The dissemination of the Imperial Rescript on Education that same year likewise confirmed the government’s intent to use Shinto to implement policies of national education, particularly a code of national morals.
Consistent with the splitting of the private and public spheres according to a Western logic, however, we find that this also led to a further tension within the Japanese political and legal system. As Isomae observes:
Broadly speaking, the debate over national morality refers to policies by the government and conservative elements to enlighten the people through moral instruction .... It was intended to coincide with the provision for religious freedom, with religious choice to be entrusted to each individual. But as policies of national education began to be seen as at odds with the constitutional guarantee of religious freedom, its proponents shifted the rhetoric of their argument to the need for moral instruction. During this time, Shinto gradually split into two camps: Religious Shinto, which followed denominational teachings, and Shrine Shinto, which, in addition to reverence for the portrait of the emperor, came to emphasize reverence for shrines as a moral obligation of the people in their loyalty to the Imperial system. As may be expected, there were naturally those who voiced misgivings that reverence for shrines and the portrait of the emperor constituted a form of religious conduct which conflicted with the beliefs of the individual and encroached upon religious freedom.Footnote 43
The main lines of secularisation were therefore becoming clear by the early years of the 20th century. On the one hand, the split between religious Shinto and shrine Shinto was an attempt in Japan to correspond to the religion (private) - secular (state) divide. The problem remained, however, that the association of Shinto with formal state activity, for example through shrines and through education, was liable to be attacked on grounds of freedom of religion.Footnote 44 On the other hand, there was also a feeling that Shinto was in need of protection against Christianity and Buddhism given that Shinto had been reduced to a ‘folk religion’, and this became an ingredient feeding the nationalist sentiment that Japanese culture was under assault. Events subsequently went out of control with the rise of militarism and the onset of the long Asian war. Since the Second World War, state Shinto has become associated with nationalism and sections of Japanese society take a position against state support of it. However, officials and organs of the state have since often supported Shinto ceremonies such as the commemoration of dead soldiers and seasonal rituals, demonstrating what Chiba had noted about the persistence of indigenous legal postulates in Japan.Footnote 45
This more or less open support for Shinto co-exists with tensions created within the legal system against support for it. After the Second World War, the American occupation authorities issued an order for the dismantling of state Shinto. The Japanese Constitution (in effect from 1947) enshrined in Article 20 the freedom of religion, a prohibition upon the state conferring any privileges on any religious organisation, a prohibition on compelling participation in religious acts, celebration, rite, or practice, and a prohibition on the state taking part in religious education or any other religious activity. The word used for religion in the Constitution is shinkyo (belief teaching), which is not used widely. It looks as though the model for Article 20 is the American ‘wall of separation’ between religion and the state although it goes beyond the wording of the United States’ constitutional provision in some respects.Footnote 46 In discussing the “most significant debates” on this article within the National Diet (both in the House of Peers and House of Representatives) when this provision was being debated in 1946, Inoue notes that the debates “demonstrate that the Japanese had difficulty appreciating the significance of the American idea of religious freedom, separation of state and religion, and non-interference by the state in religious education.”Footnote 47
The vocabulary of freedom of religion, religious neutrality of the state, the secular nature of the state, and even the separation of Church and state are nevertheless a constant feature of Japanese court judgements either upholding or rejecting challenges to state actions in support of ‘religion’. These invariably involve ceremonies associated with Shinto, such as breaking the ground prior to the construction of a building, enshrinement of a member of the self-defence forces in a Gokuku (guardian of the state) shrine, and rituals at the Yasukuni shrines of the war dead.Footnote 48 What is remarkable for the purposes of the present article is not whether judges either support or reject claims against state involvement in Shinto ceremonies, but rather the confidence with which they use the kind of language referred to above, which is embedded within a Protestant framework, for understanding Japanese traditions. It raises questions about how such language makes sense to Japanese judges themselves, to officials, or to Japanese people who operate out of a cognitive framework of a completely different order; about how it relates to their experience of the world; and about how such a transplanted framework can be said to have been successfully absorbed into the Japanese legal order and society.
Isomae draws attention to the fact that native elites, as intellectuals and religious studies scholars, have continued to act as the bearers of a conceptual discourse that was under the direct influence of Western society. Beyond grasping the cultural gap between Japan and the Western world Isomae argues that:
[o]ne is also obliged to consider the dynamics of power internal to Japan that have involved the cultural hegemony of native elites, who are oriented towards the conceptual world of the West, over the general populace who remained outside the bounds of that world.Footnote 49
Thus, taking very seriously Chiba’s claim that the fate of legal transplants is conditioned by the nature of the indigenous identity postulate of a socio-legal entity, we need to research more clearly how a framework developed within a culture that has religion is changed and distorted, and creates the potential for conflict, when it enters into an Asian cultural context where there is no religion.
III. INDIA
European contact with India gave rise to several phases in the accumulation of knowledge and the construction of Indian realities in the experience of the West.Footnote 50 Indians came to be regarded as ignorant, idolatrous, immoral, heathen devil worshippers held in their sorry state by wily priests, the Brahmins.Footnote 51 Over time, several different ‘religions’ were constructed: Hinduism, Buddhism, Jainism and Sikhism and, by analogy with the Reformation critiques by Protestants of Catholicism, all of them, except Hinduism, were cast as protest or reform movements against the domination by Brahmins. As Oberoi has noted, new boundaries were being created.Footnote 52 Thus the work of converting Indian traditions into a series of ‘religions’ was underway, once more instantiating the process of anothering.
As De Roover and Balagangadhara have explained, British legal recognition followed the understanding that the rulers should not intervene in the affairs of the conscience of their Indian subjects.Footnote 53 The British were reading Indian society according to their own understanding of state-religion relations and, specifically, their respect for indigenous legal traditions followed the requirements of liberal toleration originating in the Protestant Reformation. The legal rules of the populace were to be found in textual sources and defence of indigenous mores, for example the practice of sati, also came to be based on the textual origin of the practices. This way of acting evidently mirrored the Christian understanding, privileging the sacred text as the source of the beliefs motivating practices.Footnote 54 It was thus that the ‘secular’ state in India emerged in the early modern period, setting the basic contours of the debate on non-interference in the personal laws of Indians that continued well into the post-colonial period. The recourse to textual sources for the ascertainment of indigenous laws was supplemented by consulting experts in the shastra, a practice that came to be abandoned, and replaced by forcing Hindu law into the framework of the common law. Portions of it were reformed by statute on the ground that certain practices, such as child marriage, needed to be rooted out, and this was often championed by Indians working in the colonial legal system.Footnote 55
However, as De Roover observes, the idea of purifying Hindu law of its man-made accretions never went away.Footnote 56 De Roover shows that although the language of ‘false religion’ and ‘idolatry’ was no longer significantly invoked by agents of the secular state from the 19th century, the idea remained implicit in the reforms by the secular colonial Indian state in that it was held that the ‘pure’ elements of Hindu law should be distilled and observed, in so doing undermining the diversity of Indian traditions. Repeated attempts were made to write codes reflecting a distillation of Hindu law in this way, while subjection to the English paradigm of judge-made law did its own work in undermining customs.Footnote 57 As De Roover notes, “[t]he conceptual realm of false religion had been secularized in the sense that it became an implicit criterion presented as though it were internal to Hindu religion”.Footnote 58
It appears as though the idea of doing away with Indian traditions was revivified in the early post-colonial era when a major attempt at reforms to the Hindu personal law was made. Rhetorically, at least, the principle that there would be no interference in the personal law of a community without a demand from that community was observed. That was until the 1930s when changes were made to Muslim law on the basis of demands by ulema, who portrayed themselves as representing the Muslim community, after a sustained campaign for asserting the primacy of Islamic law over custom among Muslims.Footnote 59 Rina Verma Williams, who develops a fascinating account of the continuity between the colonial and post-colonial periods in Indian state policy regarding personal law, says that:
[t]he government would claim to be following community opinion but in reality few systematic attempts were made to determine what that opinion might actually be. Where there was evidence of community opinion, it was often divided and inconclusive. Ultimately, government leaders relied on the views of a faction of community leaders (religious and/or political) that supported the position the government advocated.Footnote 60
Statutory reforms of Hindu law were championed already prior to independence but were pushed to the fore in its aftermath by the reformist Prime Minister, Jawaharlal Nehru, and B.R. Ambedkar, the first Law Minister, who had already successfully included Article 44 as a Directive Principle looking to a future Uniform Civil Code. However, Nehru assured Muslim spokespersons that, “personal law is part of religion. It is obvious that no change can be imposed from the top”.Footnote 61 For Hindu law, Menski makes the following observation:
By the time of India’s independence, the secularized views of Hindu law had gained prominence to such an extent that some legal positivists, led by Ambedkar, could argue for the total abolition of Hindu law as a manifestation of oppressive religion and irrational ‘tradition’ which had no place in a free, modern world. From this radical reformist perspective, there was also no room left for the legal recognition of Hindu customs.Footnote 62
The reform to Hindu law resulted in four pieces of legislation referred to as the “Hindu Code Bill” (the language is itself reminiscent of the earlier colonial debates on codification) reforming various aspects of Hindu personal law. The legislation was applied to those who are Hindus “by religion”, but included Buddhists, Jains and Sikhs. By this time the legal language had changed to the extent that it clearly showed the internalisation of the process of anothering through previous centuries of Western contact during which various religions had been constructed out of the Indian traditions. The proposed legislative changes were resisted by the Hindu Mahasabha and some prominent members of the ruling Congress party, including the President, Rajendra Prasad, and Vallabhai Patel, and concessions were demanded, especially as to the recognition of custom, while the Hindu joint family system fell out of the scope of the legislation.Footnote 63
The Hindu legislation of the 1950s can be interpreted in a number of ways: one may conclude that it was a messy compromise not achieving much in the end; that it left out of its scope much of relevance; and it was not in fact the first step toward the achievement of the Uniform Civil Code because, significantly, Muslim personal law has remained largely out of reach of legislative change.Footnote 64 There is, however, another way to look at the matter. The proponents of the 1950s reform often justified it by saying that they merely continued what the British had initiated and questioned why there should be an objection now that an ‘indigenous’ government was doing the same work. Advocates for reform, notably Nehru, were also deeply impressed by the idea of a secular state, seeing religion as superstitious dogma responsible for conflict. The ideal was that a Uniform Civil Code of India should show no trace of religion, and the first candidates for reform should be the Hindus. Noting the lack of any desire for general reform of the legal system inherited from the colonial state, Menski sums up the background thinking and the results:
The approach to Hindu personal law appeared to be quite different, however, as the modernizing post-colonial state developed an appetite and ambition for personal law reform. The ambition had been nurtured during the final decades of British rule, partly as a result of the British forms of ‘civilizing mission’ and its perceived fruits in the form of social reform movements. Almost by definition, the modernization of Hindu law in India was perceived as a historical opportunity for removing ‘tradition’, a chance to wipe out the remaining vestiges of traditional norms in the Hindu personal law as they had developed and sheltered under Anglo-Hindu law. It was a revolution, but it remained by its nature incomplete. In reality, despite all the hype, the reformed law was no more than a half-way house in the ongoing legal process of harmonizing law and society.Footnote 65
As Menski observes here, the 1950s reforms to Hindu law were a continuation of the “civilizing mission” started by the British and founded on hostility to tradition. According to the reading of developments proffered here, it appears as though the task, initiated by the colonial masters with their Protestant background, of removing idolatrous practices of a false religion, had been taken over by the post-colonial state. However incomplete this process may have been, as Menski notes throughout his major work,Footnote 66 the continuous problematisation has made a conceptualisation of Hindu law, or Indian traditional laws in general, as centrally composed of diverse ancestral practices, ever more difficult to articulate. Consequently, they are constantly pushed into the ‘unofficial’ sphere, as Chiba might say, where they continue to exercise their pull.
IV. CONCLUDING THOUGHTS
We can return to think again about Chiba’s observation that the preservation of a people’s cultural identity in law, in the face of transplanted law from foreign countries, is conditioned by their identity postulate of indigenous law. In light of this hypothesis, how should we evaluate what has occurred to Japanese and Indian people when they have absorbed a predominantly Protestant Christian framework of law? In the case of the absorption of the Western norm of religion and the secular, and its linked concepts such as religious freedom, the separation of religion and state, etc., the evidence indicates that the state systems in Japan and India have come to assume an alien, religious identity, have transformed their understanding of their own people, and have attempted to reform the law of their people in accordance with this alien framework of secularisation. In the process, the people have become just another group of religious people and they now experience ‘religious’ nationalism, religious conflict, and battles for their religious rights. Their experience has come to be distorted and occluded in part through the agency of their official legal systems. Balagangadhara speaks of ‘colonial consciousness’ to refer to the absorption of experience occluding structures of religion with respect to Indian culture.Footnote 67 Should we apply the same reading to the Japanese case even though there is no direct colonial relationship between Japan and the West? What is the role of violence here? Where does it leave Chiba’s hypothesis that the identity postulate of indigenous law is the mechanism of retention of a people’s cultural identity? What implications do the findings presented here have for steering a future course of action for the study of Asian legal systems?
