Legal Traditions and Inequality: Customs, Law, and the Commons

Abstract

"The purpose of the paper is to examine the principles of customary institutions by which the commons were organised and regulated in pre-colonial Punjab with a view to assessing the measure of inequality that may have existed then and the changes that were brought about by positive law enacted by Governments both imperial and national. At the very outset it is necessary to point out that this is a formidable task because the concept of custom, as Ludwig Wittgenstein puts it, 'has a family of meanings.' It is possible to interpret that inequality on the commons in customary traditions could have been 'fair' just as equality in positive law can be 'unfair.' Such normative considerations depend on comparing the principles by which legal traditions set up standards of fairness. Customs which regulated access, management and use from off the commons derived their lex loci from usage. And the primary aim of an usage was to bring about order on the commons. Custom was thus an artifact, crafted from subjective concerns of those directly involved. If order was the desired object of the custom and if this could be sustained only by the authority of an hierarchy of unequals then collective rationality deemed it 'fair' that it be so. Its very legitimacy lay in the fact of its continuity over time."