Law as Contested Communication

About the Speaker

Farhat Hasan teaches Medieval Indian History at Delhi University. He was a lecturer and reader at Aligarh University before this. He is the author of State and Locality in Mughal India: Power Relations in Western India, 1572-1730 (Cambridge: Cambridge University Press).

Abstract

The effort, in my presentation here is to explore the early modern legal order in activity, as a communicative process among social actors that was marked by incessant conflict and change. Focusing on the Mughal period in South Asia, I suggest that the legal order was crucially shaped by initiatives from below, and we get a flawed, if not erroneous, picture if we keep the spotlight on the imperial court, legal-sacral texts, and the literate practices of the state. While the Mughal empire was indeed a huge paper regime, and saw a rapid expansion in ‘pragmatic literacy’, I argue here that literacy inter-penetrated, in the state legal spaces, with performativity and oral traditions, in shaping the legal order. The qazi’s archive in the localities left behind their traces, and one of the efforts here is to recover, in their partial and imperfect forms, the oral and performative practices that accompanied, and encircled the state’s literal juridical practices. While I eschew state centralism, I also suggest that the obliteration of the agency of the pre-colonial state in the models of legal pluralism is mistaken. Furthermore, the level of discreteness in the diverse normative orders that is suggested by legal pluralism ignores the overlaps among them, and, more importantly, the communications between them. These communications, I argue, served to push the state, through initiatives from below, into a position of ‘juridical primacy’, for the state was not just seen as the mediator between competing norms and laws, but was also considered as the protector of the shared normative system. In order to study the legal order, we cannot afford to ignore the state, but then the state should itself be seen as a social formation, constituted and reproduced in the local legal spaces by the social forces. The framework that I venture to suggest should hopefully be of some relevance for the study of the legal order in not just the Mughal empire, but the other early modern empires in the Eurasian world, before colonialism, as well.

Report

Professor Hassan elucidated that law is often seen as an instrument of the state. In other cases, it might even be seen as equivalent to the state. This approach generates certain problems such as emphasising the role of the state while overlooking social agency. One model, according to him, that can help resolve this problem is: legal pluralism. This model is prevalent in South Asian history, for example: he mentioned that cases of runaway brides, rapes etc. were quite often resolved by the Panchayats instead of the state. So, several other bodies, apart from the state, were exercising legal authority.

There are certain ideas about legal pluralism that are important to consider before his argument is elucidated further. One, he posits legal pluralism as not a static formation but rather a process; the legal order was reproduced by the agency of social actors. Thus, there is a need to look at it as a socially interactive and evolving force. Two, the role of the state in shaping legal pluralism is essential as well.

Having established that, we can further discuss his argument. Despite the presence of legal authority with the local bodies, some cases and disputes were resolved by the state too. This, he hypothesizes, is indicative of stress on the local adjudicative bodies - which was evident through people’s cases shifting from local to state bodies. This stress could have been due to the expansion of trade followed by monetization which led to the installation of other overarching bodies of adjudication over, above, and outside the community. In addition, a greater use of paper could have also given an edge to the state.

All these factors can contribute to positing the state as antithetical to society. This is where the problem emerges says professor Hassan. Instead of viewing the state as antithetical, it should be viewed as a part of the society. The state is a social formation itself so it is only partially differentiated from society. Thus, a shift from local to state bodies should not be seen as an erasure of legal pluralism but rather a means to a more embedded and enhanced local pluralism.

Thus, Professor Hassan argues that in the Mughal period, the state legal space was more social than adjudicatory; it was inclusive, participatory and a plural space. Bifurcation of custom from law was rare in the Mughal age; thus, intersubjective communications in this space led to the emergence of a shared normative order in the state.

By Gayetri Nayar, Undergraduate Batch of 2021