22 Pages Posted: 23 Mar 2013 Last revised: 15 Feb 2015

Date Written: March 22, 2013

Abstract

Current approaches within legal history do not allow for for conceptual clarity in cross cultural and global contexts. Legal functionalism has been identified as one of the problems that impede the production of knowledge from a comparative legal perspective. However current scholarship in comparative law, legal history and legal theory appear to be unable to address this challenge.

This article proposes an alternative route through the realm of cultural studies and the framework of “Orientalism” developed by Edward Said which identifies a particular way of speaking about the East which is characteristic of Western discourse. It inquires into how the history of law in India can be studied through the illustration of the British colonial encounter with “Hindu law.” It rejects the characterisation of legal history as a movement from custom to codification or the secularisation of religious law .It demonstrates how such a characterisation can be formulated only within the background of Western social theory using Max Weber’s sociology of religion as an illustration. It shows the inconsistencies in Weber’s account and the logic behind these inconsistencies which are related to the European experience of “religion” in India. The pattern of these inconsistencies is used to frame certain questions for the study of Hindu law as a historical category. In doing so, it sets an agenda for the study of Hindu law and provides for a new approach by which legal history can borrow from comparative law and not by merely understanding borrowings as legal transplantation.