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Menski, Werner F (2002) 'Hindu law as a 'religious' system.' In: Huxley, Andrew, (ed.), Religion, law and tradition: Comparative studies in religious law. London: Routledge, pp. 108-126.

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Abstract

In view of the briefings from the conference organisers, I endeavour to skirt around the originally given three questions by not providing a clear answer about the usefulness of delineating legal families, their potential labelling as ‘religious systems’, and the issue of whether Hindu law should be included under the label of the religious systems family. This is so for a variety of reasons. First of all, perhaps one should admit that we, as a collectivity of legal scholars of various orientations and specialisations, are unlikely to know the answers to these three ‘big questions’ because they all concern issues of religion. Since we do not even see eye to eye on what we mean by ‘law’, how can we expect to come to agreed conclusions on ‘religion’ or ‘religious law’? Anyway, I shall try to add some thoughts to the debate by providing a focus on perceptions arising from classical Hindu legal philosophy, which is at the same time religious and secular, and hence makes the stipulated basic distinction seem impractical, if not outrightly nonsensical. If this stance is not accepted, I am thrown back to my initial assertion that ‘once religious, always religious’ would be a better title, since there can be no doubt that Hinduism is a major religious system and that Hindu law, arising from it, is based to some extent on such religious foundations, which may well be as much social as religious, but which we somehow perceive as traditional and as religious. If Western-style, Christian legal systems have been able to shake off the flakes of their religious membranes, why should the same process not have been possible for Hindu law? Are we dealing with different shades of deliberate obfuscations about ‘religion’ rather than legal debates? Does it suit us to call ‘the other’ religious, to buttress our own insincere assertions of secularity? Is it possible to speak of a positivist, secular Hindu legal tradition? Too many questions arise at once, so I shall make a beginning from the periphery instead of diving straight into the ocean

Item Type: Book Chapters
SOAS Departments & Centres: Legacy Departments > Faculty of Law and Social Sciences > School of Law
ISBN: 9780415515351
DOI (Digital Object Identifier): https://doi.org/10.4324/9780203037560-11
Date Deposited: 09 Dec 2007 13:37
URI: https://eprints.soas.ac.uk/id/eprint/2755

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