Jaina Law As an Unofficial Legal System

14 JAINA LAW AS AN UNOFFICIAL LEGAL SYSTEM Werner Menski Against a background of comparative jurisprudential analysis, this chapter demonstrates that despite its formal amalgamation into Hindu law in India during 1955–1956, Jaina law continues to manifest itself in various unofficial and semi- official forms. Thus, it is not productive to dispute whether Jaina law existed or exists. The need is rather to research what culture-specific manifestations Jaina law has been taking, and what role it continues to play in maintaining a separate Jaina identity. The chapter suggests that two major factors have affected the visibility of Jaina law. While the official legal recognition of local customs under Hindu law could potentially act as a protective umbrella for Jaina law, strict evidence requirements have restricted the scope for official legal recognition and inclusion of Jaina religio-cultural elements. Further, strengthening this process of keeping Jaina law within the unofficial realm appears to be a deliberate traditional strategy, by Jainas as individuals and as a community, to keep a cautious distance from the processes of official law and the law courts. Much of Jaina law is therefore found in unreported cases from lower courts, and in unrecorded private agreements within the context of ‘family arrangements’. The problem of understanding law On a global level, legal debates now acknowledge more widely that the dominant approach of Western legal positivism or ‘model jurisprudence’ (Chiba 1986), which simplistically assumes that all law comes from the state and appears in more or less codified form, remains deeply problematic, academically incoherent and socially unrealistic. A conceptual analysis of traditional and modern non-Western legal sys- tems inevitably shows that this eurocentric methodology and perspective of certain legal models fails to record many culture-specific forms of law (Menski 2000). Since, somehow, comparative jurisprudence still stops at the Bosporus (Örücü 1999: 31), it is no surprise that Jaina law has been treated as an exotic specialist subject with little practical relevance. As a result, there is hardly any writing on Jaina law. Within this wider context, the question whether there is something worth studying which we might call Jaina law turns out to be quite complex. Common 419 WERNER MENSKI sense would suggest that if Jainas and Jainism exist, there must also be something like Jaina law. However, such a theoretical acceptance of the existence of Jaina law relies on common sense and on a broad, non-technical definition of ‘law’ as a culture-specific human phenomenon, rather than the technical, positivist view of ‘law’ as a body of rules made by some ruler or a state. An interdisciplinary analysis of this problem requires explicit recognition of the fact that lawyers as practis- ing professionals and as academics operate without a universally agreed definition of ‘law’ (Menski 2000). Still, many lawyers and social scientists follow only the dominant Western legal methodology of positivism and try to define away non- state law by labelling it ‘custom’, ‘convention’ or ‘culture’. Such forms of law then become more or less unofficial. It is important to be aware that Indian jurisprudence has been deeply influenced by such dominant theories of positivism. Thus it would appear that modern India has abolished Jaina law and that, at any rate since the introduction of the Hindu Marriage Act of 1955 and other Hindu law legislation of 1956, Jaina law no longer exists as a separate personal law.1 For ‘black letter lawyers’, that would be the end of the story – Jaina law has now ceased to exist, and there is nothing to study. However, from a variety of perspectives Jaina law continues to exist, albeit now at an unofficial level.2 In view of the multiple challenge of conflicting perspectives, relating to law and – no less relevant – concerning the identity of Jainas themselves as a religious community, it becomes difficult to ascertain to what extent Jaina law exists. Even if we find that many people (including numerous Jainas themselves) perceive Jainas as Hindus, or as part of Hinduism in some form, the problems of identify- ing distinct Jaina social and legal identities remain. There will be specific situations in which Jaina families and individuals will want to follow particular rules as an expression of their very own Jaina identity and way of life. In the present article, rather than focusing on the distinction between Jainas and Hindus, I shall argue, from a socio-legal perspective, that wherever there are Jainas, there will also be some manifestation of Jaina law, if not official, then unofficial. The diasporic and transnational dimension Before turning to the law, it may be useful to consider Jainas briefly as forming a transnational community with its own complex identity.3 If, in India itself, Jainas have been rendered more or less officially invisible, nothing stops the globally dispersed Jainas in diaspora, if they wish to do so, from reconstructing and re-asserting their separate identity and ethnicity, including elements of their own personal law.4 Jainas have been making notable public statements about their presence in diaspora and about the contributions that Jainism can make to the well-being of mankind and all creations. In Britain, one may think of the impres- sive Jain Centre (or Jaina Mandir) in Leicester and its aims, community facilities like the Oshwal Centre in rural Hertfordshire, or the Jaina Studies Programmes at De Montfort University and now at SOAS. There are many more manifestations of the private and public face of Jaina life all over the world. 420 JAINA LAW AS AN UNOFFICIAL LEGAL SYSTEM Jainas tend to be gentle, soft people, not aggressive lobbyists and violent demonstrators for their cause. Such relatively quiet and unobtrusive modes of asserting Jaina identity may not be sufficiently loud to remind lawyers, and oth- ers who claim to make or influence law, that there is indeed something like Jaina law. Perhaps, therefore, a task of the future is to assert Jaina legal identity more effectively than has been done so far, not through violence, but in a targeted, strategically planned fashion which overcomes the current purposeful silence. Even in Britain, it is not too late: The legal reconstruction process of multi-ethnic Britain is only just beginning to move into a more public arena, as evidenced by a recent Runnymede Report (Parekh 2000). Relevant academic writing is beginning to cover general legal issues (Jones and Welhengama 2000), and one finds more specifically anthropological assessments which are relevant also to Jainas (generally Ballard 1994: 1–34, specifically Banks 1994), and evidence of specific strategies of Jainas in planning law (Gale and Naylor 2002). However, as we shall see, there are several factors impeding Jaina activism in giving a higher profile to aspects and manifestations of Jaina law. The legal evidence As soon as one opens one of the leading law books from India which many practitioners use, doubts about the existence of Jaina law resurface. The 17th edi- tion of Mulla’s Hindu Law (Desai 1998: 825–826), states under the heading ‘Law applicable to Jains’: It is too late in the day to contend that Jains are not included in the term ‘Hindus’. The Jains are governed by all the incidents related to the Hindu Joint Family, as was held by the Supreme Court. The ordinary Hindu law is to be applied to Jains, in the absence of proof of special customs and usage varying that law. Those customs and usage must be proved by evidence, as other special customs and usage varying the general law should be proved, and in the absence of proof the ordinary law must prevail. So the technically correct view appears to be at first sight that today, there is officially no Jaina law in India, since it was subsumed under Hindu law for the purposes of unification and codification of India’s modern Hindu law. Perhaps there was Jaina law in the past, but it no longer exists. Yet a careful re-reading of the above quote shows that the abolition of Jaina law is not total and complete, since special Jaina customs and usages, if they can be proved, may still be legally recognised. Since Mulla’s Hindu Law and some other legal texts state so bluntly that Jainas have been governed by Hindu law at least since the 1950s, two further questions arise. First, when, how and why did this take-over by Hindu law happen? In other words, in what form did Jaina law exist before 1955–1956 and why was it 421 WERNER MENSKI abolished by the stroke of a pen? Second, given the official position that Jaina law has been taken over by Hindu law, what is the scope for arguing today that Jaina law still exists? Desai (1998: 826) provides some further hints about possible answers to the second question, indicating the scope for pleading specific customs: There is, however, nothing to limit the scope of the enquiry to the particular locality in which the persons setting up the custom reside. Judicial decisions recognising the existence of a disputed custom among the Jains of one place are relevant as evidence of the existence of the same custom amongst the Jains of another place, unless it is shown that the customs are different; and oral evidence of the same kind are [sic] equally admissible. Where, however, a custom is negatived by a judicial decision in one place, like Madras, the fact that among Jains in the other states such a custom has been upheld by courts does not warrant a general presumption of the prevalence of the custom in the Madras State.

Load more