Week XI

Sharad Verma,
1003033656

In Sally Engle Merrys piece on legal pluralism, she refers to Griffiths who distinguishes
between the social science view of legal pluralism as an empirical state of affairs in society, and a
juristic view of legal pluralism as a particular problem of dual legal systems created when
European countries established colonies that superimposed their legal systems on preexisting
systems. (Merry, 871) Griffiths describes that a legal system is pluralistic in the juristic sense when
the sovereign commands different bodies of law for different groups of the population varying by
ethnicity, religion, nationality, or geography, and when the parallel legal regimes are all dependent
on the state legal system. (Merry, 871) Merry provides an elaborate survey of the social science
view of legal pluralism, and presents her conclusions as to what the implications of focusing on
legal pluralism for future socio-legal research will be.

Of particular interest to me is her view that this perspective requires a shift away from an
essentialist definition of law to an historical understanding since any situation of legal pluralism
develops over time through the dialectic between legal systems, each of which both constitutes and
reconstitutes the other in some way. (Merry, 889) This approach to multiple legal orders and a
historical inquiry as to their differing content provided me perspective regarding the ongoing debate
in India for a Uniform Civil Code, a Directive Principle in the Constitution of India1 . The current
legal scenario in India is such that while the criminal laws are uniform and administered throughout
the country on equal terms, the personal (civil) laws governing familial relations are religion-based.
A clear example of this is the fact that a marriage relation between two Hindus is legally recognised
upon the performance of Sapta-padi2; whereas a marriage in Islamic terms is solemnised with a
Nikah. Apart from the difference of ceremonies, it can be seen that both traditions are essentially
ceremonial.

How these varying systems of personal law affect individuals explains the contrary demand
for a Uniform Civil Code. The dichotomy exists not just in terms of the solemnisation of marriage,
but the consequent rights and the nature of the union. While the traditional conception of marriage
in Hindu law was a religious sacrament, the Hindu Marriage Act, 1955 transformed it from an
ancient and vedic sanskara to modern and dissoluble contract3. It also introduced for the first time
the principle of monogamy4 . This attempt at social reform is criticised in retrospect, because it was

1 Art. 44 of the Constitution.

2 Section 7 of The Hindu Marriage Act, 1955.
3 P.H. Prabhu (2011), Hindu Social Organization, 164165.
4 Id.
limited to the Hindus5 . One finds that aspects such as polygamy in Islam were not out-lawed, and
remain legally relevant even today due to their traditional underpinnings.

However, Sally Merrys historical approach when applied to analyze why polygamy was
allowed in Islam, exhibits a different picture. Karen Armstrong explains that the condoning of
polygamy should not be seen as a piece of pure male chauvinism it was a piece of social
legislation.6 Armstrong claims that When Islam came on world scene in the seventh century of the
Common Era, it inherited the existing marriage system.7 When one analyses the Arabic society that
predated the rise of Islam, Jean Paul Charnay explains that the particularly murderous wars may
have brought about and increase in polygamy wing to the resulting surplus of nubile women over
men.8 Seen in the light of this fact, the Quran itself indicates that the issue of polygamy in Islam
should be understood in the light of community obligations towards orphans and widows, in terms
of the restrictions it imposes on such a practice9.

This expectation to secularize10 personal laws essentially exemplifies Merrys reference to

Griffiths, who expresses that legal problems of the juristic kind confront leaders of many post-
colonial societies, who widely regard their complex legal systems as frustrating, messy, and
obstructive to progress (Merry, 871). Apart from the modern concerns of womens rights and
equality, conscious realisation of the fact that polygamy was legitimised in a particular historical
and social context, situates particular sets of relations between particular legal orders in particular
historical contexts (Merry, 889) and allows a more objective assessment of Islam and its traditional
concerns, especially whether the prospects of a Uniform Civil Code constitute a threat to such
practices, sans the factors that granted legitimacy to them.

However, the perceived secularization of the law through the UCC is an active attempt to
adopt conceptions of family relations that were not indigenous, but were initially imposed upon the
subjects by the colonial administrators11 . It is interesting to note that this situation exhibits the
mutually constitutive under-standing of state law and non-state normative orders (Referring to
Sugarman, 885), which Merry describes as the dialectic between legal systems, each of which both
constitutes and reconstitutes the other in some way.

5 Id.
6 Karen Armstrong, Muhammad, 190.
7 Id.
8 Charnay, Islamic Culture and Socio-economic Change, 62.
9 Quran (4:3).
10 Granville Austin, Working a Democratic Constitution, 22.
11Michael Mann, Torchbearers Upon the Path of Progress: Britain's Ideology of a "Moral and Material Progress" in
India,