Droit et Cultures (Jun 2014)
Remise en cause de l’internalisme relatif au droit et à l’obligation légale.Les orientations indiennes classiques
Abstract
My effort here is to produce a reflexive reading of law and legal obligation as informed by classical «Indian» orientations on the question. I take as a point of departure the reflections encoded in the seminal work of the French scholar Robert Lingat who has sought to described a prior condition of the law in India which, while not owing its existence either to legislative acts or to judicial decisions, is yet armed with a power of constraint that is not internal to it. Having substituted the notion of authority for that of legality, the classical legal system of India is anomalous in the strong sense of the term; and, as such, illustrates a strong form of exteriority called forth by the self-closure of the classical system. Indeed, taking seriously Lingat’s claim that duty and authority are constitutive for classical Indian notions of law and legal obligation requires making sense of this ‘exteriority’ and of how, as theorists given over to articulating the boundaries of law in given historical and cultural contexts, we are to deal with it.Doubtless, my reflexive reading of law and legal obligation as informed by classical Indian notions will steer clear of two pitfalls. The first is an etymological inquiry into the Sanskrit term dharma, an inquiry for which I am anyway totally unequipped. Although reference will be made in a general way to what Sanskritists take to be its initial meaning, this term will function primarily as a guidepost orienting an inquiry into the normativity of law and its associated frameworks of legal obligation. The second trades in the notion of an «internalism» about law and morality/ethics for that of an abstract examination of the ‘binding force’ of legal norms. On this view, examinations of the nature of law within determinate schools of legal philosophy and Western jurisprudence are not only largely metaphorical but they also conceal what is in effect an indeterminate ground of debate about the necessary and sufficient conditions for what counts as law over time and across cultures.
