Political Obligation through Hart's Rules in South Asian Polycentric Orders — Epoche C2
Two quite different things called a panchayat A gram panchayat in India is an organ of the state: it exists because Part IX of the Constitution, inserted by the Seventy-third Amendment of 1992 and in force from April 1993, requires every state to constitute panchayats at the village level, with five-year terms under Article 243E, with not less than one-third of the directly elected seats reserved for women under Article 243D, and with a schedule of twenty-nine subjects that state legislatures may devolve to them. A khap panchayat is something else entirely: a caste or clan council, unelected, with no statutory basis, whose pronouncements on marriage and residence have no legal force whatever and are in several respects unlawful. The earlier version of this essay ran the two together, and the confusion is worth clearing at the outset, because the whole interest of the Hartian analysis lies in what it says about bodies of the second kind — the ones the state has not constituted and does not authorise. The confusion compounds when Nepal is added, as the earlier version added it. From 1962 to 1990, twenty-eight years, 'panchayat' in Nepal named the state's own party-less constitutional structure, introduced by King Mahendra after he dismissed the elected government, and dismantled after the popular movement of 1990. So the example that was supposed to illustrate normativity beyond the state named, in one country, a constitutionally mandated tier of the state, and in another, the state's own former constitution. Cleared of that, the real question is sharp and the earlier essay's instinct about it was sound. Rural and caste-based India, along with much of South Asia, is a polycentric normative order — several centres of norm-production operating over the same population at the same time — and a great deal of the norm-following one observes there is not directed at state law at all. The question is what philosophical apparatus makes that observation precise, and what follows from it about obligation. Hart's The Concept of Law of 1961 supplies the first but not the second, and conflating the two is the central error this rewrite has to correct. What Hart's two kinds of rule are for Hart's distinction is not a taxonomy but an argument, and it is worth stating in the order he states it, because the order is what carries the point. Primary rules are rules that require people to do or to abstain from doing things, whether they wish to or not. Rules conferring powers are not primary — a correction to the earlier version of this essay, which described primary rules as those that impose duties or confer rights . In Hart's scheme power-conferring rules are secondary, and the separation is load-bearing: the whole apparatus is built on the difference between a rule that tells you what to do and a rule that tells you how to make, unmake, identify or apply rules of the first kind. Hart then runs a thought experiment. Imagine a small community with primary rules only, held in place by nothing but diffuse social pressure. Such a regime is possible, but it suffers three defects, and they are specific: Uncertainty. There is no procedure for settling doubt about what the rules are, or whether a putative rule belongs to the set at all. Disagreement about content has no authoritative terminus. The static character of the rules. They change only by the slow drift of practice into habit and habit into obligation. Nobody can deliberately introduce a rule or repeal one. Inefficiency. Enforcement is left to whoever feels moved to enforce, so disputes about whether a rule has been broken are interminable and punishment is haphazard. Each defect is remedied by a rule of the second kind, and the correspondence is one to one: uncertainty by a rule of recognition, which supplies criteria for identifying valid primary rules; the static character by rules of change, which confer power to enact and repeal; inefficiency by rules of adjudication, which confer power to determine authoritatively whether a rule has been breached. Law, on Hart's account, is the union of primary rules with secondary rules of these three kinds — a claim about what turns a normative order into a legal system. Two further elements of the account are needed before it can be applied. The first is Hart's distinction between being obliged and having an obligation. A man handing money to an armed robber is obliged to do so — a statement about his beliefs and his predicament — but has no obligation to. Obligation-talk presupposes a rule that a group accepts and uses as a standard for criticising deviation, including one's own. The second is what Hart calls the internal point of view: the stance of a participant who uses the rule as a reason and a ground of criticism, as against the external observer who merely records regularities and reactions. The internal point of view is what makes the difference between a habit and a rule. Hart then states the existence conditions of a legal system as two minimum requirements. Rules valid by the system's ultimate criteria must be generally obeyed; and the secondary rules — recognition, change, adjudication — must be effectively accepted as common public standards of official behaviour by the officials. Note the asymmetry, which the earlier version of this essay lost: what is required is official acceptance of the secondary rules and mere general obedience by everybody else, not general acceptance by the whole community. The essay's formulation, that 'communal acceptance of the secondary rules validates the primary rules', is not Hart's, and the difference is not pedantic: it changes which people one has to look at to decide whether a legal system exists. Running the test on a caste panchayat Now the application, which is the point of importing Hart at all. Take a khap or jati panchayat adjudicating a marriage said to violate the prohibition on unions within the clan. Does it satisfy Hart's conditions? On rules of recogni