5.1 Doing Legal Philosophy in India: Reflections on the Legacy of Chhatrapati Singh

Session #5: Wednesday, 29 December, 11.00 am - 1.00 pm (Chanakya 1)

Panel coordinator(s): Arudra Burra/Mathew John (*)

Chair/discussant: Mohini Mullick (*)

Panel description

Panelists, paper titles, and abstracts

  1. Upendra Baxi, Chhatrapati Singh and the Idea of a Legal Theory
  2. Sanil V., Critique and the Possibility of a Science of Law
  3. Navjyoti Singh, Chhatrapati’s unfinished project on Dharma and Obligation to be Just
  4. Rajeev Bhargava, Revisiting 'Law from Anarchy to Utopia'

Panel description

Legal philosophy has been a neglected aspect of Indian legal scholarship. With notable exceptions, very few Indian scholars have explored how philosophy illuminates legal questions and helps resolve legal problems. In this context the exceptional scholarship of Chhatrapati Singh assumes considerable significance. Chhatrapati Singh studied philosophy at St. Stephens College (Delhi) and at the University of Ottawa (Canada) where he obtained his doctoral degree. Returning to India in 1982, he joined the Indian Law Institute (ILI) where he worked for nine years. During this time he published his first book, Law from Anarchy to Utopia, a path breaking philosophical exposition on the nature of legal rules and their role in sustaining a just order. During his years at the ILI, his interests steadily moved towards issues in environmental law and in 1991 he became the founding Director of the Centre for Environmental Law (World Wide Fund for Nature, India). Exploring conceptual issues in environmental activism, his notable publications in the field include Common Property and Common Poverty: India Forests, Forest Dwellers and the Law (OUP 1986), Water Rights and Principles of Water Resource Management (1991) and India’s Forest Policy and Forest Laws (2000). By the time of his death in 1998, Professor Singh had left behind a large body of scholarship which included numerous co-edited volumes and articles on topics ranging from the ontology of law, Wittgenstein’s theory of language, a general theory of numbers and papers on Indian legal and moral philosophy, a topic that captured his interests from his earliest to his last work. Taking Chhatrapati Singh's work as a starting point, the Panelists examine various ways in which philosophy can contribute to the understanding of the law, not only in its more abstract aspects, but in its various contemporary manifestations.

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Chhatrapati Singh and the Idea of a Legal Theory

Upendra Baxi, University of Warwick (Emeritus) and University of Delhi (Emeritus) (*)

Full text of Professor Baxi's paper

Chhatrapati Singh (CS) was India’s finest legal philosopher and continues to be the only post-Independence Indian legal philosopher. And yet, he is the least read not just in the Indian law schools but also departments of politics or philosophy; better known for his work on common property resources and rights, water law and jurisprudence, environmental law generally, and legal education and research. This essay is a reflection on the conception of law and social justice set forth in his germinal text, Law from Anarchy to Utopia (LAU).

According to CS, while a theory of law should be presented as a ‘metaphysical’ rather than a ‘political’ ideal, the distinctive province of legal philosophy is constituted by concerns about peace and justice; the idea of law itself does not make much sense outside these concerns. When law is distinguished from the social practices occurring under its name, it can be fruitfully reimagined as seeking to ‘maximize the conditions under which each individual or group of individuals can realize themselves and attain their moral ends.’ The philosophy of law should be seen as an emancipatory enterprise, one that must take precedence over all other social philosophies.

LAU presents a sophisticated picture of the law articulated in this way, as a substantive alternative to legal positivism, which draws imaginatively upon Kant, Leibniz, and a subtle reconstruction of the idea of a dharmashastra. In presenting, critiquing, and extending CS’ contribution to the idea of a legal theory, I hope to convince political theorists and scholars of jurisprudence to take a fresh look at an important and neglected contribution to legal scholarship.

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Critique and the Possibility of a Science of Law

Sanil V., Indian Institute of Technology, Delhi (*)

Chhatrapati Singh sets for himself two objectives: to provide modern law with a secure foundation, to prepare the ground for a new reception of Indian tradition in philosophy of law. His book Law from Anarchy to Utopia is an attempt to combine both these tasks in a productive manner. Securing the foundation of modern law demands a re-examination of the relation of modern western philosophy to its own tradition. He realized that a post-Kantian project to ground the idea of law has to take necessary recourse to the pre-Kantian metaphysics of Leibniz. However, this is not a regression to pre-critical naiveté. Chhatrapati returns to Leibniz not because of the embarrassing persistence of metaphysics within critical philosophy. For him modernity is not an abrupt break with the tradition of metaphysics. Instead it is a break with the metaphysical idea of tradition. Modernity while freeing thought from the blind authority of tradition allows us to have a free relationship with the traditions of thought. Chatrapati’s return to tradition - both the pre-critical metaphysics of the West and Indian philosophy - is made possible by this free relationship which is constitutive of modern thought. However, Chhatrapati was too much of a post-Kantian to accept the availability of Indian philosophy as a set of doctrines or texts.

In this presentation I shall briefly examine Chhatrapati's approach to Dharma sastras. He rejects the claim that these texts are codification of customary laws. Nor do these sastras speak to us through works of sociologists, lawyers or philosophers. These sastras seem to be making a claim on constituting an independent science of law. We moderns need to pose a critical question to such sciences - what are the conditions under which a body of knowledge can claim to be an independent science? To pose this question, Chhatrapati thinks, we need to establish an ideological continuity with these sciences. However, he knows that the modern idea of law does not allow us to look for continuity with a science of law. In the modern academy legal science does not even figure in the list of social sciences. Chhatrapati holds positivism responsible for the absence of a modern legal science.

Chhatrapati tries two routes to establish "ideological continuity" with classical Indian legal philosophy. One of them involves a careful sliding behind the critical mode of thought as it happens in his post Kantian retrieval of Leibniz. I see this move as one of overcoming the critical moment without regressing into pre-critical naiveté. The second route is through a critique of positivism. I think the former route offers more possibilities than the later. Critique and positivism are strange bedfellows. Despite their enmity they both are made possible by the same conditions which define modern thought. Following Michel Foucault I would call this condition human finitude. Under this condition, thought in its very nature is called upon to encounter its limits and recognise these limits as the ground of its freedom. Such thought of finitude is so immediately practical - crisis ridden and also anxious- in nature that it cannot propose a theory of practice or ethics. Communitarian critique of modern thought misses this in-eliminable and debilitating practical orientation of modern thought. To think the possibility of a science of conduct we need to overcome this critical and practical orientation of modern thought and its ontology of human finitude. I think such a move is necessary to engage with the question of emancipatory violence in modern society. Chhtrapthi's thought contains the intimations of such a project.

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Chhatrapati’s unfinished project on Dharma and Obligation to be Just

Navjyoti Singh, Centre for Exact Humanities International Institute of Information Technology, Hyderabad (*)

For Chhatrapati if notions like Justice, Law and Norms stand in need of conceptual and foundational clarification, so do notions like Dharma, Karma and Artha, His quest was grounded not merely for the sake of upholding Indian sensibilities but for the sake of the universal understanding of ‘practical reason’ and propensity of life. Chhatrapati saw vital moves in Leibniz and Kant which could ‘reform and cleanse’ modern discourse on the foundations of law and justice. Such a ‘clearing’, which he painstakingly undertook, was not only inspired by but would eventually make way for the possibility of a full-blown ‘true dharmasastra.’ What would be the shape of such a ‘true dharmasastra’, Chhatrapati left only few hints?

Following Kant he argued that basic legal propositions are “<normatively synthetic> / <a priori> / <de re necessary> propositions.” This helps steer clear of the pitfalls of legal positivism and natural law theories in understanding juristic normative system. According to Chhatrapati, substantive properties of such a system are best elaborated by turning to Indian notions and their analytics. It is the substantive aspect of de re, a priori and synthetic, which calls for the appropriation of the notion of dharma. In the paper, I shall conceptually develop notion of dharma, such that Chhatrapati’s equation ‘idea of law is idea of dharma’ stands illuminated. Through analysis of dharma, substantive properties of juristic normative system and its formal features can be seen to be grounding well the theory natural to law.

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Full text of Professor Singh's extended abstract

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Revisiting 'Law from Anarchy to Utopia'

Rajeev Bhargava, Centre for the Study of Developing Societies, Delhi (*)

Law from Anarchy to Utopia is a systematic and sustained philosophic reflection on the nature of law and rules in the limited body of Indian academic writing on law. In the book Singh claims that a “(p)hilosophy of law must take priority over all social philosophies because it discusses the conditions of peace and justice which are necessary for economic, political, religious, scientific and cultural growth, including the growth of all other social philosophies. Singh argues this position by critiquing legal positivism through concepts that are fundamental to the Indian dharmasastra tradition of legal thought. In so doing, he claims to offers a metaphysics of law that draws from important western philosophers like Kant and Leibniz as well as the Indian dharmashastra tradition. As the complete title of Singh's work suggests it is a work that seeks among other things to outline the ontological foundations of law. Through a close reading of Singh landmark book this paper interrogates this idea and raises the question – 'Can there be an ontological foundation of law?'

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