Legal monism and white violence in South Asia

Abstract

Reiterating that unified legal systems have emerged historically as ordering devices sustaining the rule of law in societies capable of upholding the state's monopoly of the legitimate use of physical violence, the article takes up a series of cases where legal pluralism obscures and confronts integrated systems of legal monism. The article presents the role of TB Macaulay in the introduction of Western law in India and discusses its application to a white ‘interloper’ (non-official sojourner) in the early nineteenth century. Contemporary Western interlopers are discussed through an extended analysis of the case of Niels Holck, a Dane accused of airdropping a large consignment of weapons to the Indian sect Ananda Marga for its ‘self-defense’ against the democratically elected communist government in West Bengal. India's demand for his extradition is analyzed on the background of Danish legal monism and of innovative forms of Indian litigation, including Public Interest Litigation, aiming to infuse Indian law with the spirit of the constitution as in the case of Nandini Sundar and others versus State of Chhattisgarh. The encounter between the two legal systems did not bring about a juridical reconciliation, but resulted in a diplomatic crisis that led India to impose unspecified sanctions on Denmark. The article also considers the Raymond Davis case in which the United States succeeded in retrieving an intelligence agent by submitting itself to Pakistani sharia-inspired law, thus allowing legal pluralism to ‘cannibalize’ US law-ways at high transaction costs.