Hindu law
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[edit] Definitions
Hindu law in its current usage refers to the system of personal laws (marriage, adoption, inheritance, etc.) applied to Hindus, especially in India. Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950).(1) Prior to Indian Independence in 1947, Hindu law formed part of the British colonial legal system and was formally established as such in 1772 by Governor-General Warren Hastings who declared in his Plan for the Administration of Justice that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shaster with respect to the Gentoos shall invariably be adhered to."(2) The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma). The British, however, mistook the Dharmaśāstra as codes of law and failed to recognize that these Sanskrit texts were not used as statements of positive law until they chose to do so. Rather, Dharmaśāstra contains what may be called a jurisprudence, i.e. a theoretical reflection upon practical law, but not a statement of the law of the land as such.(3) Another sense of Hindu law, then, is the legal system described and imagined in Dharmaśāstra texts (and described more fully below). One final definition of Hindu law, or classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition. Such local laws never conformed completely to the ideals of Dharmaśāstra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly. It is worth emphasizing that Sanskrit contains no word that precisely corresponds to law or religion and that, therefore, the label "Hindu Law" is a modern convenience used to describe this tradition. This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India (classical Hindu law) through the colonial appropriations of Dharmaśāstra (Anglo-Hindu law) to the establishment of the modern personal law system (modern Hindu law).
[edit] Dharma and Law
Dharma and law are not the same thing. Dharma refers to a wider range of human activities than law in the usual sense and includes ritual purifications, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal" issues. In this respect, Hindu law reveals closer affinities to other religious legal systems, such as Islamic law and Jewish law. Dharma concerns both religious and legal duties and attempts to separate these two concerns within the Hindu tradition have been widely criticized (Rangaswami Aiyangar 1941, Rocher 1972, Lariviere 1996).
[edit] Sources of Dharma
There are usually three principal sources of dharma in the Dharmaśāstra texts: 1) śruti, literally "what is heard," but referring to the Vedas or Vedic literature, the liturgical and praise hymns of the earliest Hindu tradition, 2) smŗti, literally "what is remembered," but referring to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (Mahābhārata and Rāmāyaņa), and 3) ācāra, literally "practice," but referring to the norms and standards established by educated people who know and live by the first two sources of dharma. In some texts, another source of dharma, ātmatuşţi, "what is pleasing to oneself," is also given, but this source is not widely discussed and is never considered a primary source of dharma (contra Menski 2003).
The smŗtis are metrical texts. There are hundreds, perhaps thousands, of texts that fall into this category and it is remarkable how consistent the topics and reasoning used in these texts is. Though the smŗti texts acknowledge variability in regional religious and legal practices, their principal concern is to explain dharma. This unity of purpose led to a standardization of topics dealt with by the texts, even though the texts still exhibit differences between them. Whether these differences can be attributed to differences in the provenance or time period of the texts, to ideological or other disagreements between authors, or to some other factor is an issue open to debate.
The most famous and the earliest known smŗti text is the Laws of Manu, which dates to approximately the first century AD. The Laws of Manu, or Mānavadharmaśāstra, has recently been critically edited and translated by Patrick Olivelle (2004, 2005). His introduction and translation are perhaps the best starting point for understanding the nature of Dharmaśāstra and its contents. A major piece of the Hindu law tradition is, however, not represented in the main body of this translation, but rather in its footnotes - namely, the commentarial or scholastic tradition that took texts like the Laws of Manu and explained and elaborated upon them in an unbroken tradition that extended at least up to the time of the British and in some ways beyond. Similar to other scholastic traditions of religious law, the Dharmaśāstra commentators' first concern was to explain the sacred legal texts precisely, with careful attention to word meanings, grammatical structures, and principles of legal hermeneutics.
Effectively, the three ideal sources of dharma reduce to two - texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.
[edit] Important legal concepts in Dharmaśāstra
- vyavahāra - In Dharmaśāstra, vyavahāra refers to the matters justiciable before a formal court of the king or constituted by the king. Vyavahara has two principal sections - legal procedure (vyavahāra-mātŗkā) and the traditional eighteen titles of law (vyavahāra-pada).
- ṛṇa - debt
- svatva - property
- daṇḍa - threat of punishment
- prāyaścitta - penance, expiation
[edit] Classical Hindu Law in practice
There is frustratingly little evidence for the practice of law in India prior to about the eighteenth century in India. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings (Gune 1953). In other places, such as South India, temples were intimately involved in the administration of law (Davis 2004). What is almost completely lacking for classical and medieval India are the records of courts. In lieu of such records, other kinds of evidence for legal practice must be used to piece together an outline of classical Hindu law in practice. Such evidence includes prominently the numerous inscriptions from this period that record a variety of legal transactions, gifts, contracts, decrees, etc. associated with political rulers, temples, corporate groups and others.
However, the following might be said about Hindu law in premodern India: there was no formal hierarchy of courts; every court probably functioned as both a court of first instance and also as a court of appeal. Criminal cases were tried by a ruler's court or by panchayats, local tribunals, and punishments were meted out there. There was no separate sphere of personal law. A wide divergence of regional laws likely prevailed.
Many aspects of law likely under the jurisdiciton of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders. Practices and disputes regarding marriage were left to the caste panchayats, either structured or unstructured. Some castes permitted divorce and remarriage, others did not. Almost all the castes allowed polygamy. Almost all the castes outlawed and discouraged 'inter-caste' marriages. Similarly, breaches of caste rules were punished by the caste panchayats.
[edit] Aspects of Anglo-Hindu Law
[an excellent survey of Anglo-Hindu Law can be found in Derrett 1961]
The early period of Anglo-Hindu law (1772-1864) was characterized by three main features: 1) the collection and translation of important Dharmaśāstra texts by British administrator-scholars such as Jones, Colebrooke, Sutherland, and Borrodaile for the purpose of "applying" the rules of those texts to Hindus under the expanding political rule of the British, 2) the presence of court pandits in various levels of British courts to aid British judges in interpreting the classical Hindu law on issues brought before the courts, and 3) the proliferation of case law resulting from judicial decisions in these courts that resulted eventually in the "redundancy" of court pandits.
In 1864, just after India became formally part of the British Empire, Anglo-Hindu law entered a second phase (1864-1947) in which, first of all, the court pandits were dismissed as no longer needed because of the extensive case law that now existed on a variety of points in Anglo-Hindu law. Around this time, a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and provide it with a legislative foundation. From this period on, the codification of Anglo-Hindu law by parliamentary action and the continued growth of case law on questions of Anglo-Hindu law diminished the relevance of and interest in Dharmaśāstra as the putative source of Anglo-Hindu law. Instead, the gap between the idealized legal system of Dharmaśāstra and the extreme diversity of customary laws in various parts of British India led to the collection and fixing of regional customary laws as determined by British officials through interviews, observations, and discussions with locals. Massive volumes of customary rules supposedly in force were collected throughout British India and became part of the consultative resources of the courts.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India (Rocher 1972 and Galanter 1989). The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that most Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
[edit] Aspects of Modern Hindu Law
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With the formal independence of India from Britain in 1947, Anglo-Hindu law and the other major personal law system of the colonial period, the so-called Anglo-Muhammadan law (Islamic law), came under the constitutional authority of the new nation. In the early 1950s, contentious debates ensued over the so-called Hindu Code Bill, which had been offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo-Hindu law. In the end, a series of four major pieces of legislation were passed in 1955-56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of modern Hindu law.
[edit] Notes
(1) Leading textbooks on Modern Hindu law include: N.R.Raghavachariar's "Hindu Law- Principles and Precedents, 12th Edition, Madras Law Journal"; Satyajeet A. Desai, Mulla's Principles of Hindu Law. 17th ed. 2 Vol. (New Delhi: Butterworths, 1998); Paras Diwan and Peeyushi Diwan, Modern Hindu Law. 10th ed. (Allahabad: Allahabad Law Agency, 1995); Ranganath Misra, Mayne's Treatise on Hindu Law and Usage. 15th ed. (New Delhi: Bharat Law House, 2003); Menski's 'Hindu Law: Beyond Tradition and Modernity' (Delhi: Oxford UP: 2003).
(2) See Sect. 27 of the Administration of Justice Regulation of 11 April 1780.
(3) See Lariviere 1989 and Rocher 1993 for excellent reviews of the British misappropriations of Dharmaśāstra.
[edit] References
Davis, Jr. Donald R. 2005. “Intermediate Realms of Law: Corporate Groups and Rulers in Medieval India," Journal of the Economic and Social History of the Orient 48:1.
Davis, Jr. Donald R. 2004. “Dharma in Practice: Ācāra and Authority in Medieval Dharmaśāstra,” Journal of Indian Philosophy 32 (5): 813-830.
Davis, Jr. Donald R. 1999. “Recovering the Indigenous Legal Traditions of India: Classical Hindu Law in Practice in Late Medieval Kerala," Journal of Indian Philosophy 27 (3): 159-213.
Derrett, J. Duncan M. 1968. Religion, Law, and the State in India. London: Faber & Faber.
Dhavan, Rajeev. 1992. “Dharmaśāstra and Modern Indian Society: A Preliminary Exploration.” Journal of the Indian Law Institute 34 (4): 515-540.
Fuller, C.J. 1988. "Hinduism and Scriptural Authority in Modern Indian Law." Comparative Studies in Society and History. 30:2, 225-248.
Galanter, Marc. 1989. Law and Society in Modern India. Delhi, Oxford.
Gune, Vithal Trimbak. 1953. The Judicial System of the Marathas. Deccan College Dissertation Series. No. 12. Poona: Deccan College Post-Graduate and Research Institute.
Jain, M.P. 1990. Outlines of Indian Legal History. 5th Ed, Nagpur, Wadhwa & Co.
Lariviere, Richard W. 2003. The Nāradasmrti. crit. ed. and trans. Delhi: Motilal Banarsidass.
Lariviere, Richard W. 1997. "Dharmaśāstra, Custom, `Real Law,' and `Apocryphal' Smrtis" Recht, Staat, und Verwaltung im klassischen Indien. ed. Bernhard Kölver. Munich: R. Oldenbourg, 97-110.
Lariviere, Richard W. 1996. "Law and Religion in India." Law, Morality, and Religion: Global Perspectives. ed. Alan Watson. Berkeley: University of California, 75-94.
Lingat, Robert. 1973. The Classical Law of India. trans. J.D.M. Derrett. Berkeley: Univ of California Press.
Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. Delhi: Oxford UP.
Olivelle, Patrick. 2004a. "The Semantic History of Dharma in the Middle and late Vedic Periods." Journal of Indian Philosophy 32 (5): 491-511.
Olivelle, Patrick. 2004b. The Law Code of Manu. New York: Oxford UP.
Olivelle, Patrick. 2000. Dharmasūtras: The Law Codes of Āpastamba, Gautama, Baudhāyana, and Vasistha. Delhi: Motilal Banarsidass.
Rangaswami Aiyangar, K.V. 1941. Rājadharma. Adyar: Adyar Library.
Rocher, Ludo. 1978. “Hindu Conceptions of Law.” Hastings Law Journal 29:6, 1283-1305.
Rocher, Ludo. 1972. "Indian Response to Anglo-Hindu Law." Journal of the American Oriental Society 92:3, 419-424.
Rocher, Ludo. 1972. "Hindu Law and Religion: Where to draw the line?" Malik Ram Felicitation Volume. ed. S.A.J. Zaidi. New Delhi, 167-194.
Rocher, Ludo. 1956. Vacaspati Misra: Vyavaharacintamani. A digest on Hindu legal procedure. Crit. Ed., with Introduction, Annotated Translation, and Appendices. Ghent University.
Washbrook, David A. 1981. "Law, State, and Agrarian Society in Colonial India." Modern Asian Studies. 15:3, 649-721.
Wezler, Albrecht. 2004. “Dharma in the Veda and the Dharmaśāstras.” Journal of Indian Philosophy 32 (5): 629-654.
