LASSnet 2010: Opening Session (Part 1): Inagural Key Note- Varieties of Variance: Fractures and Fissures in the Great Pyramid
Good evening, and on behalf of the steering committee of Lassnet, I would like to welcome all of you to the second edition of The Law and Social Sciences Conference ('Lassnet'), and also wish all of you the seasons greetings. I know that for a number of you, getting to Pune has been a bit of an adventure, battling the fog, cancelled flights and tiring journeys. We are glad that you are all here, and hope the next four days will make all of this worth it. Who would have thought that inter disciplinary scholarship, in addition to the usual hurdles that one faces, would also have to face the wrath of global warming.
The Journey of the Magi
"A cold coming we had of it,
Just the worst time of the year
For a journey, and such a long journey:
But we do hope that the festive spirits of Christmas will continue over the next four days, and I hope all of you have had your share of plum cakes and wine before arriving, since as you all know some forms of spiritual experiences are not allowed on the campus, but given that one of the core themes of the inaugural Lassnet conference was about 'Peregrinations', we hope that the conversations of the day shall continue into the evening explorations of the charms of Pune.
I arrived in Pune on Christmas day, much to the displeasure of my family, and when I was leaving my ten year old niece asked me what was so important that I had to go on Christmas. I tried describing the event to her. For some reason, she didn't share my enthusiasm for the careers of constitutionalism in South Asia, so I tried my luck with theaters of justice.
No luck on that front either, and finally she said "Don't you have any friends to hang out with?" My feeble answer to her was, Actually I do, and most of them are going to be at Lassnet. I am not sure whether it is a good thing or bad, but the fact of the matter is that for many of us from academic or activist communities, it seems that the lines between our intellectual political pursuits and our personal friendships are often blurred and the conversations that we have with each other mirror the conversations that we have with the world.
Over the course of the past few months, as the event was getting shaped, I have met so many people or exchanged emails which end with, I will see you at lassnet, or lets catch up in Pune. So I do hope that all of you get a chance to talk and catch up over the next few days in this lovely Campus.
After JNU's incredible hospitality and the CSLG and Pratiksha's hyper efficient organizing of the previous edition of Lassnet, we were really at a loss about where we could have the next edition. And while our initial choice was Bangalore, we found it difficult to find any space in Bangalore that had the adequate infrastructure, and most importantly for us, willing to be a partner institution, not just in terms of logistics but someone who shared the intellectual vision and aspiration of Lassnet.
We were incredibly lucky to find in FLAME exactly such a partner. We felt that it was important that given the imagination of Lassnet as a network, that the conference also moved beyond a single city or location, and the idea of moving the conference to FLAME was borne by conversations with Dr Maya Dodd – and subsequent conversations with Mr Parag Shah and Dr Indira Parekh who very generously offered hosting Lassnet at FLAME. Maya has had to deal with endless phone calls and emails from us, from putting together panels to green chillis, and for her patience and infectious enthusiasm, we owe a big thank you.
On a personal note, I must add that a few years ago I had taught a course on law, literature and violence and found Maya's doctoral thesis on the emergency in India and her understanding of constitutionalism to be invaluable, and engaging in exactly the kind of enquiries that one hopes for in Lassnet.
It is clear that FLAME is also animated by the aim of promoting interdisciplinarity at the undergraduate level – an aspiration that all of us here share- in terms of the ways that we think about Law. We wish to thank FLAME – Mr Parag Shah especially, his colleagues, and all the students for their hospitality and for hosting Lassnet. We also hope that all of you get a chance to interact with the students of FLAME as well as other institutions who have come for this event.
There were times in the last year where we really despaired about whether we would be able to pull off the event, because we realized that the word recession was not limited to those who work on wall street alone, and we had major financial challenges that threatened to over run the event. Our conference could not have been crafted without the timely assistance of Recht als Kultur, or Law as Culture Research Program in Bonn, and especially Professor Werner Gephart and all his distinguished colleagues. We are immensely grateful to Recht als Kultur for proving us partial funding for this conference. We would also like to acknowledge the support of Hivos for their support to this event.
The Law and Social Science Research Network (LASSnet) was established in 2008 to bring together social science scholars, lawyers, researchers and students, engaged in the research and teaching of issues connected with the law in contemporary South Asian contexts. The idea was to create a common forum for the exchange of ideas, work, materials, pedagogies and aspirations from a range of different institutional locations and theoretical frameworks. Given how much of our understanding of the law in South Asia has been shaped by the experience of social movements, we also hoped to provide a space in which activists, legal practitioners, and academics could get together to share their experiences. The creative epiphanies and tensions that emerged from such conversations, we felt, might lead to new agendas for both research and practice in the future.
The inaugural LASS conference was held at the Centre for the Study of Law and Governance, Jawarharlal Nehru University, New Delhi, in January 2009. In the inaugural conference of LASSnet, we saw a number of conversations across disciplines among legal scholars, practitioners, activists, anthropologists, historians, philosophers, social theorists, political scientists. For the second edition of the LASSnet conference we have chosen to continue with such inter-disciplinary excavations, and to venture further afield. The first edition of the conference had 35 panels and this time around, we have 49, a testimony to the growing scholarship in the area.
Apart from FLAME, Lassnet 2010 is the outcome of a collaboration between three institutions. The Center for Study of Law and Globalization, JNU, The center for the study of Culture and Society, FLAME and the Alternative Law Forum
Having so many panels of course makes it a little difficult to choose, given the number of parallel sessions that are running, but this time around, we are hoping that we will be able to document atleast the memorial panels and the plenaries, and make them available after the conference, so that even if you miss out on any panel, you will be able to follow the conversation after the conference.
We have been very fortunate in India to have a long tradition of a conversation between law and the social sciences, and from the ICSSR Survey by Prof. Veena Das in the early seventies on the Sociology of Law, and subsequently by Prof Upendra Baxi in the Crisis of the Indian legal system, Sociology of Indian Law, we see Lassnet as a continuation of this rich history. Legal studies in India has been enriched greatly by the range and nuance of work of social scientists, and it is really difficult to name too many countries which have had such a rich legacy.
The decision to choose "Siting Law" as the theme of this conference comes from the recognition that to be attentive to the multiple sites of law is also to be attentive to the role played by the social sciences - in opening out the ways that we think of law. We hope that the sub themes of this edition of the conference allows us to collectively explore the diversity of forms that may exist, both within the formal legal structure as well as outside it.
The routes which social scientists and legal scholars took to the sites of law, and the methodologies that they developed have traditionally been accounted for in terms of their differences. We wish to see this difference as being precisely the common ground on which we stand, and as the basis on which we can cite scholarship about legal experience differently. Our four sub themes this year are
1. Law's Publics: Counter legalities and Counter Publics
2. Law like Love: Law and Affect
3. The Careers of Constitutionalism in South Asia
4. Theatres of Justice
Many distinguished guests, speakers and participants have gathered here, a number of whom have raised their own resources to be here, as a gesture of solidarity to LASSnet – which really at the end of the day is an experiment– towards creating a collective research agenda that deepens and widens our engagement with the law.
If a Lassnet is possible today, it is only because of the foundational work done by scholars and activists across the years, and this year, it is our privilege and honor to pay our tribute to some of these individuals, whose contributions serve as a benchmark for all of us-and we hope for the generation of younger scholars in this field.
The idea behind the memorial panels inspired less by hagiographic intent, than it is by a desire trace the imprints of their work in our own work on legal and social theory in South Asia today. It is our great honour to pay our respects to the memories of Prof. SP Sathe, Prof. Chhatrapthi Singh, Balagopal, Neelan Thiruchelvam, Ram Narayan Kumar and Rhonda Copelon. The work and life of these scholars laid the foundations of Socio legal research which makes an initiative such as LASSnet possible. The memorial panels also speak directly to the intellectual concerns of this conference, and we would like to spend a little time remembering these stalwarts. The individual panels will of course highlight their work and contributions in much greater detail.
S.P. Sathe
We cannot think of Pune city without Professor Satyaranjan Sathe's rich legacy to law and social sciences in South Asia. Professor Sathe would have been one of our most important interlocutors, had he been with us today. Professor Sathe died on the evening of 10th March 2006, leaving behind many landmarks for us to recall here today.
Professor S.P. Sathe was a teacher who taught form 1958 onwards, working at, Benaras Hindu University, the Indian Law Institute, the University of Bombay and he served as the principal of the ILS Law College for 25 years until 1991. As a principal he initiated many important pedagogical innovations including the establishment of legal aid centers at the ILS Law College and in Pune city.
Prof. Sathe's insistence that the relationship between law and justice must be central to legal education speaks volumes to the concerns of LASSnet. Apart from being a teacher, a scholar and an able administrator, Sathe also sang beautifully – sometimes to his lawyerly audiences – perhaps, a lesson for all those interested in law as culture.
In a time when we have a division of labour between those who are engaged in social struggles, and those who are engaged in the production of thought, we can think of no better inspiration than Prof. Chhatrapati Singh, who remains one of the few scholars who bridged the gap between formal philosophy, legal theory and activism by integrating his philosophical concerns with his work on the environment.
After his PhD from the University of Ottawa where he also taught at the Department of Philosophy, Prof. Chhatrapati Singh retuned to India in 1982, and he joined the Indian Law institute where he worked for nine years, steadily moving from an interest in the philosophy of law into environmental legislation and activism.
His first book Law from Anarchy to Utopia sought to explore the ontological connections between western legal philosophy and the Indian philosophical traditions. I must add that when I was a law student in law school and wondering why all our jurisprudence courses had very little by way of thinkers from outside the western canon, Prof. Chhatrapati Singh was always the exception, and we hope that we can see a serious revival of interest in law and philosophy emerging in the years to come.
Ram Narayan Kumar
One of the most detailed and meticulous challenges to the structures of immunity and impunity of violence in post colonial India can be found in the work of Ram Narayan Kumar whose work on the disappearances in Punjab, is well known through the report - Reduced to Ashes which documented the illegal cremation of over two thousand individuals who were killed in police custody in Punjab in 1980s.
Ram Narayan Kumar and his collaborator's efforts resulted in the NHRC issuing monetary compensation to the families of 1245 prisoners who had been cremated.
Ram Narayan Kumar's enduring struggle against structures of impunity and immunity were grounded in the experiences of incarceration by the state for resisting these structures of power – his opposition to the Emergency resulted in a 19 month incarceration. He converted the experience of being a political prisoner into a site of human rights activism, and it is not surprising that the focus of his work was on habeas corpus
At the time of his death, Ram Narayan Kumar, was the former director of the South Asian Orientation Course in Human Rights and Peace Studies, and the full time Director of the Understanding Impunity project.
Rhonda Copelon
On 6 May 2010, Rhonda Copelon died at 65 after a long and courageous battle with ovarian cancer. Her work for 12 years at the Centre for Constitutional Rights marked several critical interventions in the field of reproductive rights for women.
A leading figure on a number of important cases on gender equality in the US, Rhonda Copelon is credited with having pioneered the field of reproductive rights – she was also one of the founders of the Committee for Abortion Rights and Against Sterilization Abuse [CARASA]
Rhonda was closely connected to India through her participation in the International Tribunal on Gujarat in 2002. Given her steady and painstaking work in creating mechanisms that provided for some acknowledgement and judicial relief to survivors of sexual violence, Rhonda Copelon was among the first names that cropped up when the International Initiative for Justice in Gujarat was being constituted in 2002. Other members of the tribunal recall Rhonda's sensitivity in gently and non-intrusively, but with amazing persistence, seeking to record the facts of the circumstances in which the violence was perpetrated, so that the inaction of the police and administration could be pinpointed.
Neelan Tiruchelvam was a scholar, an international activist and a legislator, as well as a practicing lawyer, social scientist and politician. Dr. Tiruchelvam was assassinated on July 29, 1999. Before his assassination, he had worked on a devolution package which he hoped would address the historical demands of the Tamils.
As a peacemaker, he worked to resolve the ethnic conflict in Sri Lanka through non-violent political means, including consensus building, negotiation and constitutional reform. Dr. Tiruchelvam was the founder and Director of the International Centre for Ethnic Studies and the founder and Director of the The Law and Society Trust: two of Sri Lanka's leading research and policy organisations.
In July 2001 scholars from 53 countries voted to award Dr Neelan Tiruchelvam posthumously with the first Law & Society Association International Prize. The prize is "in recognition of scholarship that has contributed significantly to the advancement of knowledge in the field of law and society"
K Balagopal, lawyer, human rights activist, writer, mathematician and one of the most respected individuals in the civil and political liberties movement. Balagopal served as the general secretary of Andhra Pradesh Civil Liberties Committee (APCLC) between 1983 and 1997. Following sharp differences of opinion within the APCLC on how to respond to revolutionary violence he left APCLC and started the Human Rights Forum. Over a period of 26 years, he documented and took up cases of thousands of extrajudicial killings by government forces in Andhra Pradesh and elsewhere.
Balagopal was also a prolific writer and speaker, travelling across the length and breadth of the country participating in fact finding commissions and wrote about issues from encounter killings to SEZs to human rights abuses in Kashmir. Balagopal became a lawyer onlyin the last decade of his life, and despite the short time that he was inpractice had over eight hindred cases at the time of his death.
We hope that the memorial panels will serve in furthering our understanding of the contribution that each of these remarkable individuals made to the world of law and social theory. We would like thank each of the panel co ordinators for the efforts in putting together these panels.
Finally, there are three colleagues of mine in the steering committee who have really been the force behind Lassnet 2010, and without whose passion, commitment and tenacity there is no way that we could have had such a large gathering of people.
Pratiksha Baxi, Sruti Chaganti and Siddharth Narrain are the most remarkable colleagues and fellow travellers to have. Organizing a conference can be a pretty thankless job, and when it is a conference of this scale and size, it requires a selflessness of a kind which is increasingly rare to find.
From working out the intellectual design of the conference, dealing with the absence of money, to and fro emails to hundreds of people, figuring out cheapest flight options, quickest bus routes, to working on their own papers for the conference.
The most incredible part of working with Pratiksha, Sruti and Siddharth has been the fact that through all the crisis of what we have sometimes internally referred to as our 'Allas'net, they have never lost their sense of humour and are able to laugh at the often terrifying, sometimes absurd and mostly tedious parts of doing a conference. Seeing the way they work has convinced me that there is indeed something magical about the number three: From the holy trinity to the Three musketeers to Charlies's Angels- the three of you have been all of this and more.
Finally on behalf of the steering committee, I would like to end with a question for all of us to think about. This is the second large event that Lassnet has organized, but Lassnet was never meant to be an event alone, and it was always imagined as a network. We are not certain whether a large scale event model is sustainable in the long run, and we urge everyone who is here or a part of the network to seriously think about how we collectively take responsibility for Lassnet in the years to come.
It would be great if all of you could spend a little time in the midst of the hectic next few days to think about this. Unless some new institutions volunteer to take the responsibility of the next event, it is unlikely that we will have another event of this scale, but we really need to think about smaller events and meetings that enables us to keep the network active. We hope you will all join us for a discussion about this on Day 03 at 9 PM.
In any case we will have time in the next few days to discuss this more, but for now, welcome again and we hope the next four days will be filled with enough to justify picking up one of the badges made by the creative Flame students which says "Lassnet 2010, I was there ". Thank you
Varieties of Variance: Fractures and Fissures in the Great Pyramid
Speaker: Marc Galanter
I am immensely honored to be invited to inaugurate this auspicious gathering. India was the site and inspiration of my journey from law to law and social science– from law to LASS, so to speak. Today it is my great pleasure to join so many companions on this journey. I want to take this opportunity to sketch some of the exciting possibilities and the challenges that lie before us– and the complexities of addressing them.
Most of us gathered here regard ourselves as students of the Indian legal system– or of comparable entities elsewhere. I want to step back and consider our picture of that system. The cost of stepping back is that we trade off the clarity and precision of a close up view for the blurriness of a more distant one. But [as Wittgenstein reminds us,]1 sometimes a blurry view has the advantage of obscuring distracting details to reveal some of the larger regularities– or in our case irregularities.
` The modern nation-state is closely associated with the idea of a unitary legal system that delivers uniform law at every social and economic location. Legal professionals-- and many citizens—and most of us, I suspect--carry an implicit picture of the legal world that is not too distant from the unity, integration, and hierarchy that informs the conceptions of John Austin and H.L.A. Hart-- something like what Hart and Sacks called the "great pyramid of legal order" —These views concur that the law is an orderly realm organized by principle and purpose. A vast fund of observation and several generations of research supply a mass of evidence that legal life displays many sorts of variance that are not represented in the image of an orderly purposive pyramid. By variance I refer to those features of departure from unity, uniformity, and hierarchic order that we find in all legal systems, at least ones of more than local extent—to different degrees and in different respects, to be sure. I propose to examine some of the principal sorts of variance found in the contemporary Indian legal process and to discuss their implications for effective regulation and access to justice.
I. Varieties of Variance: why legal systems don't display the integration and effectiveness that they purport/aspire to
Let me quickly review some of the sorts of variance that frequently, perhaps typically, accompany large legal systems. I put to one side several kinds of variance that are frequently granted indulgence as normatively commendable or at least unavoidable parts of the architecture of legal systems. Thus the unity of the legal pyramid and the uniform results produced by it may be qualified by a federal structure that contemplates variation on territorial lines; or by pluralism that accepts difference along lines of ethno-religious affiliation. Or it may countenance variable decisions on the basis of the ineffable individuality of particular instances– the phenomenon that Max Weber calls kadi justice although it seems doubtful that that is what kadis do. I mention these because they are dimensions of difference are commended (or at least acknowledged) as part of the architecture of legal systems.
. Table 1: Types of variance: Normatively-embraced variance
Federalism
India, US, Brazil, Australia, Germany
Pluralism
Personal law, Ottoman millet system, kadi justice
In spite of proud boasts of uniformity and equality, legal systems often display species of variance beyond those they normatively embrace. Today I am interested in other sorts of variance that do not enjoy normative commendation and are generally seen as flaws in the body of legality. Because we don't have an accepted and shared vocabulary for these features, I try to give them names that are descriptive and memorable, and to group them in an economic way. The first batch is what I call the enforcement group.
Table 2: Types of variance: the enforcement group
Dualism
Tokenism
Selective enforcement
PADs
Non-enforcement
law as a "dead letter"
Perverse enforcement
enforcement in pursuit of goal different from the ostensible purpose of the law
By dualism3 I refer to the pattern of different practices and outcomes applied to different groups and strata within the population.4 We could think of it as a kind of perverse personal law. A well-known Indian example would be the elaborate protocol of criminal procedure in arrests of the rich compared with the rough treatment accorded to the poor. A second sort of variance is tokenism, the implementation of a major commitment on a symbolic or token scale but not extending it to all who are theoretically covered. (prosecutions under the Protection of Civil Rights Act. A third is selective enforcement– the application of law to certain situations within its avowed scope, but not to others. This includes what Mark Edwards calls "parameters of accepted deviance,"5 by which he refers to the understandings of regulators and regulated about the acceptable leeways and margins in regulated activity. (enforcement against encroachments) A pervasive instance is the administration of speed limits, allowing widely-understood variable amounts of deviance under varying circumstances. Then of course there is simply non-enforcement in which the legal rule is just a dead letter. And of course there is perverse enforcement in pursuit of a goal apart from the purpose of the law or even to defeat application of a legal norm. A particular legal provision may shift from one of these to another—for example, from a dead letter to token enforcement to dualism.
All of these assume that there is some definite rule of law that might be enforced or some accepted standard that might be applied. But in many cases the presence of the rule or standard is itself a matter of contest. The law may be unclear or incomplete; it may be subject to multiple and conflicting understandings; it may conflict with other normative commitments. I call this batch of variances the indeterminacy group.
Table 3: Types of Variance: the indeterminacy group
insufficient clarity (also law being undone by copy errors, noise)
multiple understandings
conflict with other normative commitments
Indeterminacy can be the product of insufficient articulation, as it frequently is in India where impatient legislators or overloaded judges issue unclear and conflicting directions. (My example: even how tort damages to be calculated) But indeterminacy can also be caused by too much articulation. In the United States Supreme Court where nine judges, each supplied with four extremely bright and productive clerks, hear only 75 cases each year, compromises to assemble a majority and multiple concurring opinions can confound clarity. As in India, the normative clarity that presumably comes down through the system is often not really there.
Perhaps we should add to this indeterminacy list a pervasive form of variance that surfaces with some frequency in the most well-equipped and progressive courts and legislatures. I speak of the situation in a legislature or a court undertakes to pursue a clearly stated goal by definite and unequivocal means—but it happens that the means turn out not to lead to the goal and to have unintended consequences. True, the failure here is institutional but it flows from cognitive failure. So perhaps we can call this not indeterminacy but "mis-determinacy."
Table 3a. Misdeterminacy
"mis-determinacy Mis-fired instrumentalism
Indian examples of mis-fired instrumentalism are plentiful: remember the bonded labour case. Let me mention a spectacular American example of inadvertent and perverse consequences— the 'war on drugs'—an immensely expensive undertaking that not only squandered vast resources but consigned hundreds of thousands to prison and diminished life chances. A less dramatic, more typical example, is the decision of the U.S. Supreme Court in Bates v. State of Arizona, where the Court struck down a bar rule that forbid advertising by a low-cost legal clinic, a decision that inadvertently set in motion flows of information that helped bring a bout a transformation of law practice far beyond the results that could have been envisioned by the members of the Court.
Finally, we come to another large family of departures from the great pyramid model that involve the reduction or simplification of distinctively legal forms. These departures are frequently grasped or promoted as cures rather than diseases. I refer to the familiar species of variance that we label "informalism," "alternatives" (or alternative dispute resolution), and in some quarters "non-state justice." By informalism I refer to the selective relaxation of some formal requirements associated with the legal process. By alternatives, I refer to displacement from the adjudicative institutions to alternatives like mediation, arbitration, the ombudsman, in which the outcome is independent of entitlements under state law. Finally, non-state justice entails relinquishing the connection with the state and monitoring by state institutions applying norms associated with the state's legal system. All of these occupy a contested area. They are frequently promoted as welcome innovation and flexibility; but sometimes the same schemes may be suspect as second-class justice or worse.
Table 4. Types of Variance: the Reduction/Simplification group
Informalism
Alternative Processes
Non-State Justice
I do not mean to portray these departures as pathological or deviant or blameworthy. They are among the traits of legal systems– the way they behave in a real world setting with friction and gravity rather than an ideal world of untrammeled motion. The question for a given legal system is not the absence of these features which ones are prominent and how they interact. In a way they are the counterweights to the principl They bear a resemblance to the factors that Lon Fuller famously lists as failing to make law: they are the counterweights to the aspirational principles that constitute the legal– the gravitational pull against....
...the attempt to create and maintain a system of legal rules may miscarry in at least eight ways....The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes [to disaster] are: (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) a failure to makes rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; ;and, finally, (8) a failure of congruence between the rules as announced and their actual administration.6
II. The Indian Situation
I propose to examine some of the varieties of variance found in the contemporary Indian legal process and to discuss their implications for effective regulation and access to justice. I hope you would agree that all of the species of variance are extant in India; there are no endangered species here. I would like to speculate about their presence and their relation to the institutional structure of the Indian legal system.
In we step back and look at the Indian legal system we cannot miss the glaring fracture between what we might call the constitutional layer and the ordinary layers of the system. In using this imagery of multiple tiers or layers, I am not referring per se to the official hierarchy of Supreme Court, High Courts, subordinate courts and tribunals. Instead I mark a cruder division into strata of institutions and actors that are related to different sections of the population in a pattern that resembles the skewed distribution of resources and access that prevails in other spheres of activity, like education and health care.
There is the constitutional tier, comprising the Supreme Court and the High Courts, the site of the work of a few hundred judges and a few thousand lawyers, where adept judges and counsel deliberate intricate issues of legal doctrine, including many issues of wide public import, in elaborated proceedings. This all occurs in English; a great portion of the resulting judgments is published and indexed. it is the intellectually visible part of the system as well as the hierarchic peak that supposedly exercises authoritative control over the vast array of courts, tribunals, government offices that make up the lower reaches of the system.Unlike the peak institutions in many systems, these institutions have an extensive original jurisdiction that is accessible through the medium of a group of highly– so that matters and disputes similar...
The ordinary layer
The third tier
So we have a picture of a system with a high-performing and celebrated top layer, a gridlocked overworked disdained ordinary layer, and a largely invisible third layer that contains both brilliant initiatives like Jan Sanwais and gruesome aberrations like the kap panchayats.
What keeps them separate? What is the dynamic of relations among them?
In answering that we realize that our knowledge is skewed along similar lines. We know a great deal about the constitutional lawyer, little about the ordinary layer, and almost nothing about the third layer. Knowlege stacked in same way – almost all the effort is to study the constitutional tier, some occasional studies of the ordinary tier, and only a trickle about the third tier. So one lesson is that if we are going to have plausible proposals for reform, we have to know more about the second and third tiers– knowing about them is much harder work– have to go out into court rooms and record rooms and interview... formation of LASS is sign of hope for support and sharing – but look at program...
Where does this leave reform possibilities:
Is reform possible– many initiatives– we don't
What about the legal profession– perverse incentives.
First, need to see what is out there– and what works– like the Bombay tiffin wallas.
Lok adalats
I want to emphasize that I am not saying that these are imperfections in India ...instead using a vast canvas of India to discern things that are hard to see. Each of us realized great pyramid not exactly that in his or her little corner, but think that overall...
We have not made as much progress in supplying ourselves with a differentiated vocabulary for describing or mapping the legal process I note that I am attempting this just a hundred years after Roscoe Pound formulated the famous "gap" between the law on the books and the law in action. . The "gap" perspective is an obstacle to this because "the law in action" collapses an immense variety of phenomena into a single undifferentiated mass; the "law on the books" provides an inadequate map to that mass; and the underlying expectation of harmony narrow the range of questions that we ask.7 Nevertheless it command a continuing loyalty, perhaps because it reassures us that at least the knowable law supplies half of what we want to know.
My eclectic advice
There is more out there—how can we get some purchase on it. There is no magic formula—but I can't rfrain from mentioning a few things that seem to me to be important—to make it more likely that our work will about desirable change—but not saying it doesn't happen without-- —one thing is to keep in contact with those who work with it on a day to day basis—another is to listen to the non-professionals who are affected by it—but to keep our independence of them—to know what it looks like from the various roles – not assume that judge or lawyer or party or outside observer has the true and full understanding. and to resist being confined in a single system (my experience with India—you should each have experience in some other legal system—in short to get away from the comfortable feeling of being at home in a particular legal system—combination of deep familiarity and critical distance, remoteness, strangemess—be able to experience the strangeness and contingency. We have not only to overcome our disadvantages, but to overcome our advantages
some of you have done most of these things and most of you have done some of these things—think of it as a checklist
get rid of sense of inevitability—be a possibilitarian—certainly we have not seen all possible shapes of law and society—more to come--
we are believers in indirection—we can affect the world by studying it
nothing as misleading as theory
All of these things can be located in the Indian legall landscape– some more visible, some more pervasive. Federalism and Pluralism are built into institutional structures. Informalism and alternatives (like arbitration and Lok Adalats) are considered useful appendages.
What is the connection between the types of variance and understanding the disarray of the Indian legal (?) system? Variance is not pathology– but our taxonomy can help us identify the fissures and fractures that are associated with the under-performance and perverse performance of the system.
For example, delay/gridlock in the ordinary layer means that appeal to the constitutional layer is transformed into a weapon to prolong cases, outlast an opponent. And ready access to the constitutional tier generates so much precedent that the law becomes indistinct
"Informalism," alternatives, and "non-state justice" occupy a contested area, sometimes commended as welcome flexibility and sometimes suspect as second-class justice or worse
These structures are familiar in India: some difference along territorial lines and parallel bodies of personal law based on ethno-religious affiliation. I think we could find plentiful instances of kadi justice (for example, in the setting of Lok Adalats) but it is not necessarily acknowledged and commended as a decisional style.
But these are hardly the principle sources of departure from the unity and uniformity of the great pyramid of legal order.
I will mention just a few of the these features.
Pad.ma requires JavaScript.
