Law Addressing Diversity: Pre-Modern Europe and India in Comparison (12th to 17th Centuries)

Law Addressing Diversity: Pre-Modern Europe and India in Comparison (12th to 17th Centuries)

Thomas Ertl / Gijs Kruijtzer, Project 'Handling Diversity: Medieval Europe and India in Comparison (13th - 18th Centuries)', University of Vienna
From - Until
22.05.2014 - 25.05.2014
Conf. Website
Uroš Zver, Department of History and Civilization, European University Institute

On 22-25 May 2014 the University of Vienna's project on 'Handling Diversity: Medieval Europe and India in Comparison (13th - 18th Centuries)' held a workshop on the relation between law and diversity under the title 'Law Addressing Diversity: Pre-Modern Europe and India in Comparison (12th to 17th Centuries).' The workshop convened by Thomas Ertl (Vienna) and Gijs Kruijtzer (Vienna), was the first of two such meetings aimed at bringing together historians of the subcontinent and Europe to compare social strategies relevant to cultural, religious, ethnic, and political diversity. The next meeting, to be held in Delhi on 5 November 2014, will focus on the 'Structure and Representation of Power'.

The Vienna workshop, which may be considered as a stepping stone to a longer-term collaboration among the authors that will, among other things, give us an edited volume in the near future, drew out a number of important methodological issues.

In a time of unrelenting regional specialization, the underlying project is a comendable effort to confront recent work on two regions which, though sharing many commonalities conducive to comparison, have seen that comparison suffer from the persisting asymmetry in our knowledge. While historians of South Asia will typically have a reasonable grasp of European history – and be comfortable in drawing comparisons with Europe – the reverse is rarely the case. This dynamic is reinforced by the imposition of 'Western' analytical categories, like 'modernity' in INDRANI CHATERJEE's (Austin) paper on women in Bengal, and by the seemingly inescapable linguistic constraint of using English as the common language of analysis, a recurring issue addressed by DANIEL SCHÖNPFLUG (Berlin) and others. Reversing the direction of comparison, by using, say, the concept of sharia (translatable as 'the way'), to consider European forms of legalities with new eyes, could embolden the comparative exercise and help explore the bias inherent in imposing European terminology (be it English, German or Latin) on the deconstruction of subcontinental ideas and practices that may be grounded in substantially different registers and regimes of meaning.

The workshop's ambition extended to bringing into dialogue the work of scholars from three different continents, working in different disciplines. It laid bare that unless prompted to consider potential differences ahead of time, historians looking at very different legal contexts would often assume the notion of law itself to be more or less constant. The discussions among participants clearly bore out the need for a continued debate, and some agreement, on commonly preferred terms and concepts, in order to enable those doing the comparing to in turn address each other's cases and concerns in a mutually representative analytical framework.

In light of the strained application of its meaning in some cases, and especially in the South Asian context, the term 'law' was among those needing further scrutiny. Although it is not likely the term can be dispensed with altogether, it may nonetheless be sensible to avoid it, as much as possible, if the discussion is to move beyond what is perceived as semantic incommensurability. Elsewhere, historians have already begun to avoid using commonplace yet controversial terms like 'identity', finding them to obfuscate more than they clarify. Whether future discussions comparing law in Europe and South Asia could benefit from foregoing the term 'law' for other analytical categories such as 'rules', 'arbitration' or 'morality', remained an open question.

One of the most interesting issues discussed touched the problematic nature of so-called customary law, connected with the unclear limits of yet another contentious category; that of the state. SUMIT GUHA (Austin) suggested it might even be possible to say custom is itself a device of the state, which would require us to reconsider the validity of the notion of legal pluralism underlying most of our discussions. Considering in the South Asian context the adjudication by the state at the local level, and the utilitarian rationale of local communities in maintaining a shared legal space with the state, FARHAT HASAN (Delhi) wondered if customary law of local groups can really be considered autonomous? Furthermore, what do we make of claims to custom through invocation of mythological or religious pasts, which, though not a corpus, form the basis for a process through which things can be claimed to be custom? Pitching customary law against imperial law, itself a genealogy of the Enlightenement, as evident in ANDRÉ WINK's (Madison) paper on law and society in medieval India, often seems to suggest that in so-called sharia empires, state law is, ostensibly, a superimposed system bouncing off 'hindu masses'. Yet, as APARNA BALACHANDRAN (Delhi) observed, the invocation of custom, and the everyday policing of the population, do not allow for the sharp contradistinction of state and local.

A consensus did emerge on the need to return to a deeper discussion of such concepts that will be conducive to the comparative exercise, and of restricting the initial discussion to preliminary, 'medium range' theories, as proposed by DANIEL SCHÖNPFLUG (Berlin), that might clear the field for more robust comparative findings further down the line. As is so often the case in efforts to reconceive our understanding of historical problems, it may very well be necessary to invent a new, less tainted vocabulary for the purpose of this comparison, in order to be able to side-step some of the problems attending the use of the language of legal theory by historians and social scientists.

The good news is that the comparative method employed in the Vienna workshop not only problematises the use of conceptually or linguistically biased legal terminology, but also provides the tools for a discussion less reliant on a single frame of reference, by way of continuous mutual illumination. After all, such attempts at comparative work on Europe and South Asia enable intellectual rapprochement, improvisation, and ultimately, a change in the relative perspectives of all participating historians. It gives us much to look forward to when the group meets again in a few weeks in Delhi.

Conference overview:

Kings and lawmakers
Chair: Karl Härter (Frankfurt)

Corinne Lefèvre (Paris), Imperial Management of Legal Diversity: The Mughal Case (India)

Sanjog Rupakheti (New Orleans), Status Differentiated Law and State Formation in Early Modern Himalayan South Asia (I)

Cynthia Neville (Halifax), The Limitations of Royal Justice in Later Medieval Scotland (Europe)

Courts and court practices
Chair: Julie Billaud (Halle/Saale)

Farhat Hasan (Delhi), The Qazi’s Court in Mughal India: Imperial Laws and Local Practices (I)

Sara M. Butler (New Orleans), Rejecting the Common Law: Standing Mute in Medieval England (E)

Legal Pluralism
Chair: Rohit De (New Haven)

Nadeera Rupesinghe (Leiden), Legal Pluralism in Early Modern Sri Lanka (I)

André Wink (Madison), Law and Society in Medieval India (I)

Mia Korpiola (Turku), Legal diversity – or the Relative Lack of It – in Early Modern Sweden (E)

Transition to Modernity
Chair: Alexander Fischer (London)

Indrani Chatterjee (Austin), Disempowering Women and Becoming Modern? The Case from Fortress Bengal (I)

Daniel Schönpflug (Berlin), Constitutional Law and Diversity in the French Revolution: National and Imperial perspectives (E)

Regulating Groups and Categorizing People
Chair: Tilmann Kulke (Florence)

Sumit Guha (Austin), The Adjudication of Religious Headship (I)

Karl Shoemaker (Madison), Muslims as a Legal Category in European Canon Law (E)

Jovan Pešalj (Vienna), The Habsburg Legislation Concerning Ottoman Migrants (E)

Law and Religious Groups pt. 1
Chair: Paolo Sartori (Vienna)

Ali Anooshahr (Davis), Muslims among non-Muslims: Creating the Islamic Identity through Law (14th century and onwards) (I)

Stephan Wendehorst (Vienna), Catholics, Protestants and Jews: The Holy Roman Empire, Legal Pluralism and Religious Diversity (E)

Law and Religious Groups pt. 2
Chair: Paolo Sartori (Vienna)

Blain Auer (Lausanne), The treatment of minority and non-Muslim communities under Muslim rule (1200-1400) (I)

Customary Law

Najaf Haider (Delhi), Customary Law in Mughal India (I)

Aparna Balachandran (Delhi), The Law of Mamul: The History of Custom in Colonial and Pre-Colonial India (I)

Ada-Maria Kuskowski (Dallas), When Law had Personality: The Nature of Diversity in the Age of Personality of Law (E)

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