Page 118 - Communication Processes Volume 3 Communication Culture and Confrontation

The Indian Legal System 93

The mere knowledge of the existence of rights does not ensure ac-
cess to property. Therefore, as in the past, widows from rural areas
seldom have any rights to land or other forms of property. In order
to understand this continuity of practice, it is necessary to see the
law not as a set of fixed rules and institutions, but as a space of social
interactions (Moore 1978). The density and inter-connections of social
relationships surrounding disputing parties appears to be a critically
important measure of the way in which law has intervened in everyday
life. Consequently, it is very important to analyze the social context of
a dispute and the influence of the context on the legal process (Nader
1965, 1975). It is also necessary to look at the ‘harmony ideology’ of
a community, which is to say, the preference of an agreement over a
fight (Nader 1990).

Conclusion

During each major period of the Indian legal history, regional and
local variations of women’s rights have been reported. Archival records
also show that some women have resisted the Brahman ideology of
pativrata and that the courts have sometimes protected them. The
contemporary Indian legal system has also stipulated through some
legislation that women should be protected. However, at this point
women’s access to property is still quite precarious in spite of the ideol-
ogy of equality entrenched in the Indian Constitution. This illustrates
that modern values can not override multiple concepts of justice, rights
and duties in non-Western societies.
The interplay between various rulers’ definitions of laws, local norms
and customary dispute resolutions instances in pre-British colonial
India created a situation of legal pluralism that does not correspond
to the idea of traditional societies characterized by the absence of laws
and fixed norms of behaviour. The British reinterpretation of ‘trad-
itional law’ as being the Dharmashastras did not take into account the
complexity of the pre-British Indian legal system. The introduction of
a modern legal system by the British did not put an end to all Hindu
customary practices, while sometimes jeopardizing the existing rights
to property of Hindu women living in diverse communities. In terms of
women’s rights, such evidence does not demonstrate the ‘superiority’