Modernisation and the Law

From status to contract. Sir Henry Maine's proposition in Ancient Law, 1861: that the movement of progressive societies has hitherto been a movement FROM STATUS TO CONTRACT, that is, from rights and duties fixed by birth into a family or a group to rights and duties assumed by agreement between individuals.

Its Indian illustration. A person's capacity to marry, to inherit, to hold office and to contract was fixed by caste, sex and community; the Constitution and the codifying statutes replaced most of that with rules that apply to individuals. That is what every earlier module in this paper has been describing.

And its limit, which is examinable. Maine's proposition is a description of a direction, not a law of nature; and Indian law contains a great deal of unreversed status. Personal law still fixes rights by community; the Presidential lists fix entitlements by birth into a caste or tribe; and the labour and welfare statutes deliberately re-introduce status, because a contract between unequals is not a bargain. The modern welfare State is, in that sense, a partial movement BACK from contract to status, and saying so is worth a mark.

Mobility. Geographical, from village to city, which is [Urbanisation and the Pavement Dweller]; occupational, breaking the link between caste and trade, which is what articles 15 and 16 attack; and social, the possibility of ending in a different position from the one begun in, which is what education and reservation are for.

Specialisation and differentiation. Functions once discharged by one institution, the family or the caste panchayat, are distributed among specialised ones: a court, a school, a hospital, a police station, a registrar. The whole of [Legal Pluralism, and the Forums the State Did Not Create] is about what happens when the old institution does not withdraw.

Secularisation of public authority. Not the disappearance of religion, but the refusal of the State to justify its decisions by religious authority, which is [Secularism] and [The State and Religion: No State Religion].

Literacy, communication and the money economy. Which make the other four possible, and which no statute produces.

Law as an instrument of modernisation

The Constitution itself. The Preamble's justice, liberty, equality and fraternity; the abolition of untouchability; the equality articles; adult franchise; and the Directive Principles, which set out a programme.

The codifying statutes. The Hindu Code Bills, the Special Marriage Act 1954, the Indian Succession Act, the succession amendment of 2005: each replaced a status-based rule with a rule of general application, and each is worked in Module I or III.

The institutions. The Election Commission, the Commissions in Modules II and III, the Legal Services Authorities, the Child Welfare Committee. Modernisation is largely the creation of specialised bodies with rules, and Indian law has done a great deal of it.

And the failures. [What Law Cannot Do: The Limits of Legislating Change] is the answer to any account that treats law as sufficient. A statute changes what may be said about conduct long before it changes conduct.

Law as a record of modernisation

The change in the SOURCE of law. From custom, personal law and usage, to legislation and precedent. The Hindu Marriage Act 1955 is the same subject as the Dharmashastra, restated as a statute a magistrate can apply.

The change in the UNIT of law. From the joint family, the caste and the village to the INDIVIDUAL. The daughter's coparcenary right in 2005, the woman's absolute ownership in 1956, the adult's choice of partner in Shafin Jahan: each moves the unit.

The change in the FORUM. From the caste panchayat and the family elder to the court, the tribunal and the statutory authority; and, in this module, partly BACK again, because [Alternative Approaches to Law] is an argument that the modern court has become too slow, too costly and too distant.

And the change in the LANGUAGE. From a law expressed in a sacred or a foreign tongue to a law expressed in a language a citizen can read, which is [The Language of the Courts and of the Statute Book].

The criticisms

That it is westernisation. The most common, and the next chapter is about it.

That it is unilinear. The thesis assumes one path along which societies move, so that every society is judged by where it stands on somebody else's road. The reply is that the markers above are stated in terms of the organising principle and not of any country's practice.

That it is disruptive. Modernisation dissolves the arrangements that supported people before there is anything to replace them: the joint family before there is a pension, the caste occupation before there is a labour market, the village panchayat before there is an accessible court. Every one of those gaps is a subject of this module.

That it is uneven. It reaches the city, the literate and the salaried first, which is why the disadvantage described in Modules II and III persists after the statutes exist.

And that it is not neutral. Somebody chooses which arrangements are traditional and must go and which are cultural and may stay, and that choice is political. The essential religious practices doctrine, worked in [The Essential Religious Practices Doctrine], is the sharpest Indian example.

A worked example

A State enacts a law requiring every marriage to be registered, and provides that an unregistered marriage shall not be denied validity but shall not be proved except by registration for the purposes of maintenance and inheritance.

Is that modernisation? Yes, on every marker. It replaces proof by community knowledge with proof by RULE; it makes the entitlement portable, so it survives MOBILITY; it transfers a function from the family and the caste to a specialised office, which is DIFFERENTIATION; and it operates on the individual rather than on the group.

Is it westernisation? No. Registration is not a western practice; it is a technique of administration, and a society may adopt it without altering anything else about its marriages.

Is it development? Not directly. It costs almost nothing and produces no income; what it produces is provability.

What does it cost? The woman married in a community whose marriages have never been registered, who cannot produce a certificate, may find her maintenance claim harder rather than easier, which is exactly the disruption criticism. That is why the provision preserves validity and touches only proof.

And what does law contribute? Both roles at once. As an INSTRUMENT it changes what a household must do; as a RECORD it registers a shift that was already occurring, from a marriage known to the village to a marriage that must be provable to a stranger.

What this does NOT mean

It does not mean tradition is irrational. A customary arrangement usually has reasons; the modern demand is that the reasons be stated and be open to examination.

It does not mean modernisation is inevitable. The thesis describes a direction some societies have taken, and reversals are common.

It does not mean law leads it. Sometimes law follows the change and records it, as [Custom as a Source of Law] shows, and sometimes it fails to produce a change it commands.

And it does not mean modernisation is the same as improvement. That is a value judgment, and it is the whole of the next chapter.

Quick revision

Three words: MODERNISATION, a change in the organising principle from status, custom and locality to contract, rule and choice; WESTERNISATION, a change in the content of practices towards one civilisation; DEVELOPMENT, a change in material condition. Markers: rationality; mobility, geographical, occupational and social; specialisation and differentiation of institutions; secularisation of public authority; and literacy, communication and a money economy.

Maine, Ancient Law 1861: the movement of progressive societies has been from STATUS TO CONTRACT. Its Indian limit: personal law, the Presidential lists and the welfare statutes all fix rights by status, so the welfare State is a partial movement back.

Law as INSTRUMENT: the Constitution, the codifying statutes, the specialised institutions. Law as RECORD: the change in the source of law from custom to legislation; in the unit from the joint family, caste and village to the INDIVIDUAL; in the forum from the panchayat to the court, and partly back in this module; and in the language.

Criticisms: that it is westernisation; that it is unilinear, judging every society on one road; that it is disruptive, dissolving old supports before new ones exist; that it is uneven, reaching the city and the literate first; and that it is not neutral, since somebody chooses what is tradition and must go.

Test yourself

1. Distinguish modernisation, westernisation and development. Modernisation is a change in the organising principle of a society, from status, custom and locality to contract, rule and choice. Westernisation is a change in the content of practices in the direction of a particular civilisation. Development is a change in material condition, in income, health, schooling and infrastructure. A society can westernise without modernising and develop without modernising.

2. Name five markers of modernisation. Rationality, in that arrangements are justified by stated reasons rather than by tradition; mobility, geographical, occupational and social; specialisation and the differentiation of institutions; secularisation of public authority; and the spread of literacy, communication and a money economy.

3. State Maine's proposition and its Indian limit. That the movement of progressive societies has hitherto been a movement from status to contract, that is, from rights and duties fixed by birth into a group to rights and duties assumed by agreement. Its Indian limit is that a great deal of status survives, in personal law, in the Presidential lists under articles 341 and 342, and in the labour and welfare statutes, which deliberately reintroduce status because a contract between unequals is not a bargain.

4. In what two ways does law enter the process? As an INSTRUMENT, where the Constitution and the codifying statutes deliberately replace status-based arrangements with rule-based ones; and as a RECORD, where the change in the source, the unit, the forum and the language of law is itself the legal expression of a change that has occurred in society.

5. Give the disruption criticism with an example. That modernisation dissolves the arrangements which supported people before there is anything to replace them: the joint family disappears before there is a pension, the caste occupation before there is a functioning labour market, and the village panchayat before there is an accessible court. Each of those gaps is a subject of this module.