Hindu law

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Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India.[1][2][3] Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law found in ancient and medieval era Indian texts.[4] It is one of the oldest known jurisprudence theories in the world.[4][5]

Hindu tradition, in its surviving ancient texts, does not express the law in the canonical sense of ius or of lex.[6] The ancient term in Indian texts is Dharma, which means more than a code of law.[7][8] The term "Hindu law" is a colonial construction,[9] and emerged after the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" (Sharia).[6][10]

Prior to the British colonial rule, Muslim law was codified as Fatawa-i Alamgiri, but laws for non-Muslims – such as Hindus, Buddhists, Sikhs, Jains, Parsis – were not codified during the 600 years of Islamic rule.[11] The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises (śāstra) on Dharma.[12] The British, however, mistook the Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until the British colonial officials chose to do so.[6][12] Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such.[13] Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law.[14]

In colonial history context, the construction and implementation of Hindu law and Islamic law was an attempt at "legal pluralism" during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant.[15][16] Legal scholars state that this divided the Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism - the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations".[15] In modern India, Hindus and other non-Muslims in India favor legal universalism that is based not on any Hindu text but on parliamentary laws, however Muslims favor legal pluralism with sharia as the source of marriage, divorce and inheritance laws for Muslims in India.[15][17][18]

Terminology and nomenclature[edit]

Main article: Dharma

In Hinduism, law is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta, the order that makes life and universe possible,[19][note 1] and includes duties, rights, laws, conduct, virtues and ‘‘right way of living’’.[20][7] The concept of Dharma includes Hindu law.[8]

In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya (Sanskrit: सत्यं, truth),[21][22] in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows:

धर्मः तस्माद्धर्मात् परं नास्त्य् अथो अबलीयान् बलीयाँसमाशँसते धर्मेण यथा राज्ञैवम् ।
यो वै स धर्मः सत्यं वै तत् तस्मात्सत्यं वदन्तमाहुर् धर्मं वदतीति धर्मं वा वदन्तँ सत्यं वदतीत्य् एतद्ध्येवैतदुभयं भवति ।।

Nothing is higher than Dharma. The weak overcomes the stronger by Dharma, as over a king. Truly that Dharma is the Truth (Satya); Therefore, when a man speaks the Truth, they say, "He speaks the Dharma"; and if he speaks Dharma, they say, "He speaks the Truth!" For both are one.

Related terms[edit]

In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule or law), Nyaya (न्याय, legal proceeding, judicial sentence), Yuktata (युक्तता, justice),[23] Samya (साम्य, equality and impartiality in law), Vidhi (विधि, precept or rule), Vyavastha (व्यवस्था, agreement, arrangement or regulation), Sambhasa (सम्भाषा, contract or mutual engagement), Prasamvida-patra (प्रसंविदा-पत्र, written contract),[24] Vivadayati (विवादयति,[25] litigate or dispute), Adhivakta (अधिवक्ता, lawyer), Nyayavadi (न्यायवादी, male lawyer), Nyayavadani (न्यायवादिनी, female lawyer), Nyayadata (न्यायदाता, judge), Danda (दण्ड, punishment, penalty or fine), among others.[6][26][27]

Classical Hindu law[edit]

Main article: Classical Hindu law

John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence.[5] Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.[5]

Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex.[6] The term "Hindu law" is a colonial construction, and emerged when the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials in consultation with Mughal rulers, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under sharia (Muslim law).[6][28][15] However, Hindu law were neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was then to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher.[6]

Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India?[29][30] They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society?[31] Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti text reflect the "practical administration of law", at least before the arrival of Islam in India.[5][32] However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice".[32][33] A few scholars have suggested that the Dharma-related Smritis such as Manusmriti, Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found.[32]

Classical Hindu law, states Donald Davis, "represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles."[4]

In South India, temples were intimately involved in the administration of law.[34]

Sources of Dharma[edit]

Sruti have been considered as the authority in the Hindu Dharma. The Smritis, such as Manusmriti, Naradasmriti and Parashara Smriti, contribute to the exposition of the Hindu Dharma but are considered less authoritative than Śrutis (the Vedic corpus that includes early Upanishads).[35] The root texts of ancient Hindu jurisprudence and law are the Dharma-sūtras. These express that Shruti, Smriti and Acara are sources of jurisprudence and law.[36] The precedence of these sources is declared in the opening verses of each of the known, surviving Dharma-sūtras. For example,[36]

The source of Dharma is the Veda, as well as the tradition [Smriti], and practice of those who know the Veda. – Gautama Dharma-sūtra 1.1-1.2

The Dharma is taught in each Veda, in accordance with which we will explain it. What is given in the tradition [Smriti] is the second, and the conventions of cultured people are the third. – Baudhayana Dharma-sūtra 1.1.1-1.1.4

The Dharma is set forth in the vedas and the Traditional Texts [Smriti]. When these do not address an issue, the practice of cultured people becomes authoritative. – Vāsiṣṭha Dharma-sūtra 1.4-1.5

—Translated by Donald Davis, The Spirit of Hindu Law[36]

The Smritis, such as Manusmriti, Naradasmriti, Yajnavalkya Smrti and Parashara Smriti, expanded this definition, as follows,

वेदोऽखिलो धर्ममूलं स्मृतिशीले च तद्विदाम् । आचारश्चैव साधूनामात्मनस्तुष्टिरेव च ॥

Translation 1: The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction (Atmanastushti).[37]
Translation 2: The root of the religion is the entire Veda, and (then) the tradition and customs of those who know (the Veda), and the conduct of virtuous people, and what is satisfactory to oneself.[38]

—Manusmriti 2.6

वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः । एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥

Translation 1: The Veda, the sacred tradition, the customs of virtuous men, and one's own pleasure, they declare to be the fourfold means of defining the sacred law.[37]
Translation 2: The Veda, tradition, the conduct of good people, and what is pleasing to oneself – they say that is four fold mark of religion.[38]

—Manusmriti 2.12

As a source of Dharma, only three of the four types of texts in the Vedas have behavioral precepts. Lingat notes (abridged),[39]

For the Hindu all belief takes its source and its justification in the Vedas [Śruti]. Consequently every rule of dharma must find its foundation in the Veda. Strictly speaking, the Samhitas do not even include a single precept which could be used directly as a rule of conduct. One can find there only references to usage which falls within the scope of dharma. By contrast, the Brahmanas, the Aranyakas and the Upanishads contain numerous precepts which propound rules governing behavior.

—Robert Lingat[39]

Bilimoria states the role of Shruti in Hindu Dharma has been inspired by "the belief in a higher natural cosmic order (Rta succeeded later by the concept Dharma) that regulates the universe and provides the basis for its growth, flourishing and sustenance – be that of the gods, human beings, animals and eco-formations".[40]

Levinson states that the role of Shruti and Smriti in Hindu law is as a source of guidance, and its tradition cultivates the principle that "the facts and circumstances of any particular case determine what is good or bad".[41] The later Hindu texts include fourfold sources of Dharma, states Levinson, which include Atmanastushti (satisfaction of one's conscience), Sadacara (local norms of virtuous individuals), Smriti and Sruti.[41][42][43]

Lawyers in classical Hindu Law[edit]

While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have.[44] The Sanskrit text Vivadarnavasetu, in Chapter 3, for example, states,

If the plaintiff or defendant have any excuse for not attending the court, or for not pleading their own cause, or, on any other account, excuse themselves, they shall, at their own option, appoint a person as their lawyer; if the lawyer gains the suit, his principal also gains; if the lawyer is cast, his principal is cast also.

In a cause where the accusation is for murder, for a robbery, for adultery, for (...), the principals shall plead and answer in person; but a woman, a minor, an insane, or a person lacking mental competency may be represented by a lawyer.

—Vivadarnavasetu, Classical Hindu Law Process[44]

Punishment in classical Hindu Law[edit]

Ancient texts of the Hindu tradition formulate and articulate punishment.[45][46] These texts from the last 2500 years, states Terence Day,[45] imply or recognize key elements in their theories of fair punishment: (1) the texts set a standard of Right, in order to define a violation that warrants punishment; (2) they discuss the possibility of a violation thereby defining a wrongdoing; (3) they discuss a theory of responsibility and assignability of a wrongdoing; (4) the texts discuss degrees of guilt, and therewith the form and severity of punishment must match the transgression; (5) they discuss approved and authorized forms of punishments and how these may be properly administered.[45] The goal of punishment, in Hindu law, has been retributive and reformative.[47] Hindu law, states Sarkar, developed the theory of punishment from its foundational theory of what it believed was necessary for the prosperity of the individual and a collection of individuals, of state and non-state.[48]

There are wide variations in the statement of crime and associated punishment in different texts.[49] Some texts, for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts.[14]

Outside India[edit]

Ancient Hindu legal texts and traditions arrived in parts of Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as trade grew and as part of a larger culture sharing in ancient Asia.[50] In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma and Thailand)[51] as well as legal records embodied (as in India) in stone and copper-plate inscriptions.[52]

Anglo-Hindu law[edit]

Main article: Anglo-Hindu law

In 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions.[53] The East India Company, and later the British Crown, sought profits for its British shareholders through trade as well as sought to maintain effective political control with minimal military engagement.[54] The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states.[54] The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries.[55] The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century.[53][54] The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,

That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to.

Warren HastingsAugust 15, 1772[2]

For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa-i Alamgiri written under sponsorship of Aurangzeb. For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[53] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration.[56][57]

The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from one Dharmaśāstra by British colonial government appointed scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri.[58][59][60] It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis (Maulavis) for interpreting the Islamic law.[60]

The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.[15]

Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828-1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow re-marriage, and right to create wills for inheritance.[15] In 1832, the British colonial government abolished accepting religious fatwa as a source of law.[61] In 1835, the British began creating a criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855.[61] These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt against the British rule.[62][63]

In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law.[15] A universal criminal code in India, that did not discriminate between people based on their religion, was adopted for the first time in 1864.[61][64] It was expanded to include a universal procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws.[61] However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India.[65] In 1872, the British crown enacted the Indian Christian Marriage Act which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.[66]

The development of legal pluralism, that is separate law based on individual's religion was controversial in India, from the very start.[2]

Modern Hindu law[edit]

Main article: Modern Hindu law

After the independence of India from the colonial rule of Britain in 1947, India adopted a new constitution in 1950.[67] Most of the legal code from the colonial era continued as the law of the new nation, including the personal laws contained in Anglo-Hindu law for Hindus, Buddhists, Jains and Sikhs, the Anglo-Christian law for Christians, and the Anglo-Muslim law for Muslims. Article 44 of the 1950 Indian constitution mandates a uniform civil code, eliminating all religion-based civil laws including Hindu law, Christian law and Muslim law throughout the territory of India.[68] However, while Hindu law has since been amended to be independent of ancient religious texts, the Article 44 of the Indian constitution has remained largely ignored in matters of Muslim law, by successive Indian governments since 1950.[68][69]

An amendment to the constitution (42nd Amendment, 1976) formally inserted the word secular as a feature of the Indian republic.[70] However, unlike the Western concept of secularism which separates religion and state, the concept of secularism in India means acceptance of religious laws as binding on the state, and equal participation of state in different religions.[71][72]

Since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. This debate remains unresolved. The Quran-based Indian Muslim Personal Law (Shariat) Application Act of 1937 remains the law of land of modern India for Indian Muslims, while parliament-based, non-religious uniform civil code passed in mid-1950s applies to Indians who are Hindus (which includes Buddhists, Jains, Sikhs, Parsees), as well as to Indian Christians and Jews.[72] In 1955, India revised its Hindu Marriage Act and it applied to all Hindus, Buddhists, Jains and Sikhs; scholars contest whether the law applies to cases where the either the husband or wife is Hindu, Buddhist, Jain or Sikh, and the other is a Christian or Muslim.[69]

See also[edit]

Notes[edit]

  1. ^ The Oxford Dictionary of World Religions: "In Hinduism, dharma is a fundamental concept, referring to the order and custom which make life and a universe possible, and thus to the behaviours appropriate to the maintenance of that order."[19]

References[edit]

  1. ^ William Musyoka (2010), A Casebook on the Law of Succession, ISBN 978-9966744852, page 12
  2. ^ a b c Ludo Rocher (1972), "Indian Response to Anglo-Hindu Law", Journal of the American Oriental Society 92(3), pages 419–424
  3. ^ Werner Menski (2003), Hindu Law: Beyond tradition and modernity, Oxford University Press, ISBN 978-0-19-569921-0, Chapter 1
  4. ^ a b c Donald Davis Jr (2006), A Realist View of Hindu Law, Ratio Juris, Vol. 19, No. 3, pages 287–313
  5. ^ a b c d John Dawson Mayne (1910), A Treatise on Hindu Law and Usage at Google Books, Stevens and Hynes, Harvard Law Library Series, see Preface section
  6. ^ a b c d e f g Ludo Rocher (1978), Hindu Conceptions of Law, Hastings Law Journal, Volume 29, pages 1283-1297
  7. ^ a b Dhand, Arti (Fall 2002). "The Dharma of Ethics, the Ethics of Dharma : Quizzing the Ideals of Hinduism". Journal Of Religious Ethics 30 (3): 351. doi:10.1111/1467-9795.00113. 
  8. ^ a b Robert Lingat, "Les Quatre Pieds du Procés," Journal Asiatique 250 (1962), 490–1; and Richard W. Lariviere, "Law and Religion in India," in Law, Morality, and Religion: Global Perspectives. ed. Alan Watson (Berkeley: University of California, 1996); K.V. Rangaswami Aiyangar, Rājadharma (Adyar: Adyar Library, 1941), 23;
  9. ^ P Bilimoria (2011), The Idea of Hindu Law, Journal of the Oriental Society of Australia, Volume 43, pages 103-130
  10. ^ M Gaborieau (1985), From Al-Beruni to Jinnah: idiom, ritual and ideology of the Hindu-Muslim confrontation in South Asia, Anthropology Today, 1(3), pages 7-14
  11. ^ Richard W. Lariviere (1989), "Justices and Paṇḍitas: Some Ironies in Contemporary Readings of the Hindu Legal Past," Journal of Asian Studies, Vol. 48 , pages 757–769
  12. ^ a b Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046, page 13-16, 166-179
  13. ^ For reviews of the British misappropriations of Dharmaśāstra, see: Richard W. Lariviere, "Justices and Paṇḍitas: Some Ironies in Contemporary Readings of the Hindu Legal Past," in Journal of Asian Studies 48 (1989), pp. 757–769, and Ludo Rocher, "Law Books in an Oral Culture: The Indian Dharmaśāstras," Proceedings of the American Philosophical Society 137 (1993), pp. 254–267.
  14. ^ a b Terence Day (1982), The Conception of Punishment in Early Indian Literature, Wilfrid Laurier University Press, ISBN 978-0919812154, pages 22-24
  15. ^ a b c d e f g Rudolph & Rudolph (2000), Living with difference in India, The Political Quarterly, 71(s1), pages 20-38
  16. ^ John Griffith (1986), What is legal pluralism?, The Journal of Legal Pluralism and Unofficial Law, Volume 18, Issue 24, pages 1-55
  17. ^ John H. Mansfield (2005), “The Personal Laws or a Uniform Civil Code?” in Robert D. Baird, ed., Religion and Law in Independent India, ISBN 978-8173045882, pages 139-177
  18. ^ TN Madan (1987), Secularism in Its Place, The Journal of Asian Studies, Volume 46, Issue 04, pages 747-759
  19. ^ a b The Oxford Dictionary of World Religions, Dharma
  20. ^ Dharma, The Columbia Encyclopedia, 6th Ed. (2013), Columbia University Press, Gale, ISBN 978-0787650155
  21. ^ a b Charles Johnston, The Mukhya Upanishads: Books of Hidden Wisdom, Kshetra, ISBN 978-1495946530, page 481, for discussion: pages 478-505
  22. ^ a b Paul Horsch (Translated by Jarrod Whitaker), From Creation Myth to World Law: The early history of Dharma, Journal of Indian Philosophy, Vol 32, pages 423–448, (2004)
  23. ^ yuktatA Sanskrit-English Dictionary, Koeln University, Germany
  24. ^ prasaMvidA Sanskrit-English Dictionary, Koeln University, Germany
  25. ^ vivAdayati&direction=SE&script=HK&link=yes&beginning=0 vivAdayati Sanskrit-English Dictionary, Koeln University, Germany
  26. ^ NyAya and other words, Cologne Digital Sanskrit Lexicon, Koeln University, Germany
  27. ^ lawyer Sanskrit-English Dictionary, Koeln University, Germany
  28. ^ M Gaborieau (1985), From Al-Beruni to Jinnah: idiom, ritual and ideology of the Hindu-Muslim confrontation in South Asia, Anthropology Today, 1(3), pages 7-14
  29. ^ Werner Menski (2003), Hindu Law: Beyond tradition and modernity, Oxford University Press, ISBN 978-0195699210, pages 547-549
  30. ^ JDM Derrett (1999), Law Religion and the State in India, Oxford University Press, ISBN 978-0571084784, Chapter 2
  31. ^ Malcolm Voyce (2010), Law and Anthropology: Current Legal Issues (Editors: Freeman and Napier), Oxford University Press, ISBN 978-0199580910, page 554 with footnote 27
  32. ^ a b c Axel Michaels (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, ISBN 978-0521716260, Chapter 3 and pages 58-73 with footnotes
  33. ^ Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046
  34. ^ Donald R. Davis, Jr., The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala. Corpus Iuris Sanscriticum et Fontes Iuris Asiae Meridianae et Centralis. Vol. 5. Ed. Oscar Botto (Torino (Italy): CESMEO, 2004).
  35. ^ James Lochtefeld (2002), "Smrti", The Illustrated Encyclopedia of Hinduism, Vol. 2: N–Z, Rosen Publishing. ISBN 9780823931798, pages 656 and 461
  36. ^ a b c Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046, page 27
  37. ^ a b The Laws of Manu 2.6 with footnotes George Bühler (Translator), The Sacred Books of the East, Vol. 25, Oxford University Press
  38. ^ a b Brian Smith and Wendy Doniger (1992), The Laws of Manu, Penguin, ISBN 978-0140445404, pages 17-18
  39. ^ a b Robert Lingat (1973), The Classical Law of India, University of California Press, ISBN 978-0520018983, pages 7-8
  40. ^ Bilimoria, Purushottama (2011), The idea of Hindu law, Journal of Oriental Society of Australia, Vol. 43, pages 103-130
  41. ^ a b Devid Levinson (2002), Encyclopedia of Crime and Punishment, Volume 1, SAGE Publications, ISBN 978-0761922582, page 829
  42. ^ Donald R. Davis, Jr., "On Ātmastuṣṭi as a Source of Dharma," Journal of the American Oriental Society 127:3 (2007), pages 279–96
  43. ^ Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford UP, 2003), p.126 and Domenico Francavilla, The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretation in Mīmāṃsā and Dharmaśāstra. Corpus Iuris Sanscriticum. Vol. 7 (Torino: CESMEO, 2006), pp.165–76.
  44. ^ a b Ludo Rocher (1969), "Lawyers" in Classical Hindu Law, Law & Society Review, Vol. 3, No. 2/3, (Nov., 1968 - Feb., 1969), pages 383-402
  45. ^ a b c Terence Day (1982), The Conception of Punishment in Early Indian Literature, Wilfrid Laurier University Press, ISBN 978-0919812154, pages 18-22
  46. ^ John Dawson Mayne (1910), A Treatise on Hindu Law and Usage at Google Books, Stevens and Hynes, Harvard Law Library Series
  47. ^ KL Seshagiri Rao (1997), Practitioners of Hindu Law: Ancient and Modern, Fordham Law Review, vol. 66, pages 1185-1191
  48. ^ BK Sarkar (1921), The Hindu Theory of the State, Political Science Quarterly, Vol. 36, No. 1, pages 79-90
  49. ^ Terence Day (1982), The Conception of Punishment in Early Indian Literature, Wilfrid Laurier University Press, ISBN 978-0919812154, Chapters 2 & 3
  50. ^ MB Hooker (1978), The Indian-derived law texts of Southeast Asia, The Journal of Asian Studies, volume 37, number 2, pages 201-219
  51. ^ Hooker 1986.
  52. ^ Creese 2009a, 2009b.
  53. ^ a b c Tomothy Lubin et al (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, ISBN 978-0521716260, Chapter 1
  54. ^ a b c DA Washbrook (1981), Law, state and agrarian society in colonial India. Modern Asian Studies, 15(3), pages 649-721
  55. ^ Scott Kugle (2001), Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia, Modern Asian Studies, 35(2), pages 257-313
  56. ^ Ludo Rocher, "Hindu Law and Religion: Where to draw the line?" in Malik Ram Felicitation Volume. ed. S.A.J. Zaidi (New Delhi, 1972), 190–1.
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  • 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.
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  • 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.
  • Davis, Jr. Donald R. 2010. The Spirit of Hindu Law. Cambridge University Press.
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  • Dhavan, Rajeev. 1992. “Dharmaśāstra and Modern Indian Society: A Preliminary Exploration.” Journal of the Indian Law Institute 34 (4): 515–540.
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  • Hooker, M.B., ed. 1986. The Laws of South-East Asia. Volume 1: The pre-modern texts. Singapore: Butterworth & Co.
  • 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." In: 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.
  • Lubin, Timothy. 2007. "Punishment and Expiation: Overlapping Domains in Brahmanical Law," Indologica Taurinensia 33: 93–122.
  • Lubin, Timothy. 2010. "Indic Conceptions of Authority." In: Hinduism and Law: An Introduction, ed. T. Lubin, D.R. Davis, Jr., and J.K. Krishnan. Cambridge: Cambridge University Press, 37–53.
  • Lubin, Timothy. 2012. "Legal Diglossia: Modeling Discursive Practices in Premodern Indic Law." In: Bilingual Discourse and Cross-cultural Fertilisation: Sanskrit and Tamil in Mediaeval India, ed. Whitney Cox and Vincenzo Vergiani (Paris/Pondicherry: École française d’Extrême-Orient), pp. 411–455.
  • Lubin, Timothy, Donald R. Davis, Jr., and Jayanth K. Krishnan, eds. 2010. Hinduism and Law: An Introduction. Cambridge: Cambridge University Press.
  • Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. Delhi: Oxford UP.
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  • Solanki, Gopika. 2011. "Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender Equality in India".Cambridge and New York: Cambridge University Press.
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Further reading[edit]

  • Davis, Jr. Donald R. 2010. The Spirit of Hindu Law (Cambridge: Cambridge University Press, 2010), ISBN 978-0521877046
  • Lubin, Timothy, Donald R. Davis, Jr., and Jayanth K. Krishnan, eds. Hinduism and Law: An Introduction (Cambridge: Cambridge University Press, 2010), ISBN 978-0521716260
Anglo-Indian law
  • J. Duncan M. Derrett, "The Administration of Hindu Law by the British," Comparative Studies in Society and History, 4.1 (November 1961).
Modern Hindu law
  • N.R. Raghavachariar, Hindu Law- Principles and Precedents, 12th Edition (Madras).
  • 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).
  • Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford University Press, 2003).
  • Gopika Solanki, "Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender equality in India" (Cambridge and New York: Cambridge University Press, 2011).

External links[edit]