As India acquired independence from British rule in 1947 and became a new nation state, its republican constitution of 1950 inaugurated an unprecedented era of political absolutism in the country, where apart from the vanishing procedural restraints of modern constitutionalism, there are potentially no substantive limits on the ever-increasing politicization of extant social life. This explains why its postcolonial legal imagination has been so centred on the primacy of public law over private law, more so perhaps than in most other constitutional societies in the world today. Yet even though there now exists a growing body of literature examining various topical issues in Indian public law, the identity of its legal system as a whole has largely remained underexplored in comparative law scholarship. Professor (Dr) Mahendra P Singh, who is one of India's pre-eminent legal comparatists, has sought to address this lacuna throughout his teaching career, and more recently by chairing a full-fledged research project on the identity of the Indian legal system at the National Law University in Delhi. It is heartening to know that the findings of this research project have finally been compiled and published in a richly detailed volume which Professor Singh has co-edited with Dr Niraj Kumar, both of whom were assisted in the enterprise by a team of researchers comprising Akhilendra Pratap Singh, Raikamal Roy, Saika Sabir, and Zainab Lokhandwala.

The book takes as its starting problematic the apparent lack of harmony between the ‘habits and behaviour’ of the diverse populations of India on the one hand, and the official laws and the formal legal system of the postcolonial constitutional state on the other. In his prefatory remarks, Professor Singh reads this disharmony not as a natural feature of a chaotic orientalist society, but rather as resulting from India's somewhat easy identification with the common law system, which was a British colonial transplant that had come to disrupt a heterogenous social domain possessing its own millennial histories of indigenous legalities. Although not guided by a homogenous nationalist ideology, he nevertheless believes that the persisting gap between normativity and efficacy must be bridged in the interest of the efficient functioning of the legal system, and commends for this purpose greater governmental recognition of the prevailing culture of legal pluralism in the country.

With a view to interpreting the multiplicity of Indian legal practices in light of the emergent understanding of legal pluralism, this work makes a welcome departure from normative and doctrinal approaches dominant in legal academia today, and chooses to draw its key juridical and empirical insights from the historical and sociological schools of jurisprudence, supplemented by interdisciplinary knowledge obtained from the social sciences more widely. It elaborates the core argument in three substantive chapters, mainly by surveying and engaging with the primary and secondary literature on the career of law and society in precolonial, colonial, and postcolonial India. Chapter One provides a historical sketch of the formation and evolution of the state legal system from the ancient to the modern period. This is followed in the next two chapters by a detailed elaboration of the various extra-legal deviations from state-sanctioned practices and the different alternative regimes of non-state legalities accommodated or tolerated by the system in more contemporary times, despite its clear preference for a culture of legal uniformity. In particular, the book discusses the prevalence of religion-based personal laws, customary entitlements for traditional communities, and the constitutional and legislative scheme for tribal autonomy, to make its case for moving beyond common law statism and instead treating India as a hybrid or mixed legal system, shaped by both European as well as local influences. It ends by supplying two extensive indices containing materials from judicial documents and anthropological surveys on the state's recognition of customary laws, and the popular reliance on non-state legal regimes in postcolonial India.

While the authors must be commended for having succeeded in making space in the Indian constitutional landscape for legal pluralism and social heterogeneity, as opposed to the undue emphasis on legal uniformity and national homogeneity in official discourse, I am not entirely convinced by their identification of the colonially-transplanted modern state and common law as the chief sources of the problem that this research seeks to address. In fact, they tend to conflate these two categories throughout the work, and thereby overlook the curious absence of the idea of the modern state as a persona ficta or fictional person from the culture of the common law in metropolitan Britain itself.Footnote ¹ To be sure, the authors eschew the rationalizing abstractions of the continental world, and in effect favour a British empiricist construction of the state as a governmental apparatus of rule, administered by ‘real persons’ having ‘real powers’. However, even such a reductively positivist understanding of the state remains antithetical to the common law mind, which has historically conceived the law not so much as a sovereign command, but more as a continually adaptable customary inheritance anchored in an ‘unbroken tradition’ with an ‘immemorial past’.Footnote ²

Once the governmental state and the common law are distinguished from each other on the basis of their different conceptualizations of ‘law as command’ and ‘law as custom’ respectively, we see that the dissonance between ‘state law’ and ‘non-state law’ relied upon by the authors was in a way internal to metropolitan public law thought itself. This distinction then travelled to the colonial field, and after due recontextualization, found expression in the two rival justificatory logics of the utilitarian ‘ideology of improvement’ and the conservative ‘ideology of protection’ fashioned in the nineteenth century to legitimize British domination of India's indigenous society.Footnote ³ While proponents of the former called for an interventionist state based on increasing centralization and codification of general laws, supporters of the latter favoured a non-interventionist state conferring greater recognition on caste, religion, and tribe, and the particular communitarian forms of life associated with them.

Notwithstanding their apparent incompatibility, these two governing ideologies were equally integral elements of the colonial enterprise. The ideology of improvement was supplemented by the ideology of protection, especially when it became necessary to restore the faith and trust of the disaffected native population after the so-called ‘Sepoy Mutiny’ of 1857. We must remember here that British rule in India resonated more with the Greek style of colonization rather than the Roman model of imperialism, since it did not attempt to assimilate or integrate all dependencies under a single jus and imperium in the same way as the French had sought to do, and mostly left the conquered subjects to their own devices in the cultural domain of ‘indirect rule’.Footnote ⁴

This is not to deny or overlook the immensity of symbolic and systemic violence involved in the very production of the cultural sphere of indigenous society through different forms of colonial knowledge, and its subsequent regulation on the basis of the rationalizing and modernizing propensities of colonial legality.Footnote ⁵ We must however move beyond juridical specificities of colonial and metropolitan legal systems – and also of the common law and the civil law, for that matter – and instead interpret the radical break signified in the process of rendering a complicated concrete particularity into a simplified abstract universality as a constitutive feature of the concept of modern law more generally.

Although derivatively associated with Enlightenment Europe, modern law has extricated itself from its original context and become a genuinely global concept today, travelling across the world as a purely empty form in a manner akin to the free circulation of capital, and capable enough of adapting to the distinctive peculiarities of every novel setting in which it finds itself situated.Footnote ⁶ Just as capital has managed to make the discourse of community subservient to its totalizing logic, modern law has in the same way been able to appropriate and incorporate the discourse of legal pluralism within the global grid of liberal multiculturalism. In other words, far from overcoming the supremacy of modern law, legal pluralism ensures its postmodern fulfilment by facilitating the survival of premodern traditions in the sublated form of group rights and social identities.

Since legal pluralism is hardly incompatible with modern law, my worry is that the book only ends up contributing to the smooth functioning of the Indian legal system as a whole, without proceeding further to interrogate its more fundamental constitutive antagonisms. There are two real antagonisms which any new Indian legal theory must necessarily grapple with today.

The first irreconcilable conflict pertains to the very imagination of the Indian constitutional order, conceived either as a spontaneous and sui generis system of social norms anchored in everyday ethical practice, or as a futuristic and politically-oriented creative project of collective self-transformation.Footnote ⁷ During its founding moment, after all, there arose a radical dissensus between the father of the nation MK Gandhi, who associated ethical action with principles of neighbourliness anchored in pre-existing socialities of village, caste, and religion, and the Dalit intellectual BR Ambedkar, who sought to reconstitute the political sphere afresh in line with the principles of liberty, equality, and fraternity. Although the intermediary position of Prime Minister Jawaharlal Nehru favouring a strong centralized state legitimized by a nationalist imagination of unity in diversity was what prevailed eventually, it has neither been able to fully subsume the Gandhi-inspired anti-legalist and anti-statist politics of civil resistance, nor has it succeeded in suspending the insurrectionary and agonistic politics of caste-based affirmative action and reservations in public offices inaugurated by Ambedkar.

A second, equally profound conflict is between the empty form of modern law and its uncontainable excessive surplus of a-legality. There is in India today a relatively small formal domain of civil society made up of the bourgeois elite and operating in accordance with universalist and particularist rights of citizenship. It is however countered under the conditions of mass electoral democracy by a much larger informal domain of political society, where disadvantaged population groups negotiate with governmental authorities for the provision of welfare benefits by having exceptions carved out in their favour from the normal application of the law.Footnote ⁸ Such a contradiction between civil society and political society can be explained only in terms of the entangled yet antithetical relationship between law and legality on the one hand, and the a-legal politics of subalternity and sovereignty on the other.

In this short book comment, I have appreciated the work under review for presenting the Indian legal system as an appropriate subject for socio-juridical enquiry without resorting to a strict normative or doctrinal register. But moving beyond its insistence on engaging with the tension between state law and non-state law, and legal monism and legal pluralism, I have made a case for interpreting India's constitutional order with reference to the two more fundamental conflicts between social system and political project, and modern law and the politics of a-legality. My suggestion is that even while welcoming this much needed intervention in Indian legal studies, we must not squander the opportunity thus opened up to pursue a more direct intellectual engagement with the question of the Indian political itself.