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Hindu law

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Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India.[1] Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950).

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.

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).

Dharma and law

Dharma and law are not precisely the same. 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.[4] According to hippos, the British implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated dharma into the English categories of law and religion for the purposes of colonial administration.[5] However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves.[6]

Sources of dharma

There are usually three principal sources of dharma in the Dharmaśāstra texts:

  1. śruti, literally translates as "what is heard," but refers to the Vedas or Vedic literature which are the liturgical and praise hymns of the earliest Hindu tradition
  2. smŗti, literally "what is remembered," but refers to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (Mahābhārata and Rāmāyaņa)
  3. ācāra, literally "practice," but refers to the norms and standards established by educated people who know and live by the first two sources of dharma

In two important texts, namely the Laws of Manu (2.6) and the Laws of Yājñavalkya (1.7) another source of dharma, ātmatuṣṭi, literally "what is pleasing to oneself," is also given, but later texts and commentaries severely restrict this source of dharma.[7]

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.

  • 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 Hindu Law (vyavahāra-pada).
  • ṛṇa - debt
  • svatva - property
  • daṇḍa - threat of punishment

Classical Hindu law

Main article: Classical Hindu law

There is little evidence for the practice of law in India prior to about the eighteenth century. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings.[8] In other places, such as South India, temples were intimately involved in the administration of law.[9]

Law during the classical period was highly based upon the teachings of the dharmasastra and the distinguished sources of dharma as dictated by those learned in the Vedas.[10] Although theologically law was primarily derived from Vedic knowledge, in actual practice, the community norms of particular social groups determined the actually rulings. Law was therefore highly decentralized and quite particular in nature towards specific groups.[11]

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. Many aspects of law were likely under the jurisdiction of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders.

Anglo-Hindu law

Main article: Anglo-Hindu law
Fort William, Calcutta, where Henry Thomas Colebrooke was appointed professor of Hindu law in 1805

The early period of Anglo-Hindu Law (1772–1864) is characterized by three main features: 1.) the collection and translation of important Dharmaśāstra texts by British administrator-scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in order to “apply” the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court pandits in British courts to aid British judges in the interpretation of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the “redundancy” of court pandits.

In 1864, just after India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947). One in which the court pandits were dismissed due to the extensive case law that emerged during the first phase. During this time a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and to provide it with a legislative foundation. With the disappearance of court pandits, continual growth of case law (on topics involving questions of Anglo-Hindu law), and new legislative foundation, the relevance and interest in Dharmaśāstra as the source of law also diminished as the parliamentary codified what they believed to be Anglo-Hindu law . The gap between the idealized legal system of Dharmaśāstra and the diversity of customary law throughout British-India led to the fixing of regional customary laws by the British officials. This was done through interviews, observations, and discussions with locals. Massive volumes of customary rules that were in theory being enforced 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.[12] The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.

Modern Hindu law

Main article: Modern Hindu law

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. The new constitution was officially adopted by India in 1950 and had a primary focus on securing equality in the social, political, and economic realms.[13] Although there has been discussion that the Indian Constitution has a secular Hindu bias, an amendment to the constitution (42nd Amendment, 1976) formally inserted the word secular as a feature of the Indian republic.[14]

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). Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation.[15] 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.

There are no religious courts in India; rather all cases are adjudicated within the state district courts, presided over by state bureaucrats. In the countryside it is possible for there to still exist village tribunals that try community members according to custom and religious law; however this is not adjudicated or enforced by the state. State judges have no formal religious legal training and are thus required to apply Hindu law in an abbreviated version. It is possible for a Hindu judge to preside over a Muslim couple’s divorce, just as it is possible for a Christian to preside over the adoption case of a Hindu family. It is here where courts rely on the lawyers to argue the religious laws and advocate on behalf of their clients.

Notes

  1. ^ See, for example, Herbert Cowell's definition of Hindu law in The Hindu Law: Being a Treatise on the Law Administered Exclusively to Hindus by the British Courts in India (Calcutta, Thacker, Spink and Co.: 1871), 6.
  2. ^ See Sect. 27 of the Administration of Justice Regulation of 11 April 1780.
  3. ^ 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.
  4. ^ K.V. Rangaswami Aiyangar, Rājadharma (Adyar: Adyar Library, 1941), 23; 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).
  5. ^ 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.
  6. ^ J.D.M. Derrett, Religion, Law, and the State in India (London: Faber, 1968), 96; For a related distinction between religious and secular law in Dharmaśāstra, see Timothy Lubin, "Punishment and Expiation: Overlapping Domains in Brahmanical Law," Indologica Taurinensia 33 (2007): 93–122.
  7. ^ Donald R. Davis, Jr., "On Ātmatuṣṭi as a Source of Dharma," Journal of the American Oriental Society 127:3 (2007), pp. 279–96. For contrary opinions that place great weight on the importance of ātmatuṣṭi, see 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.
  8. ^ Vithal Trimbak Gune, The Judicial System of the Marathas. Deccan College Dissertation Series. No. 12 (Poona: Deccan College Post-Graduate and Research Institute, 1953).
  9. ^ 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).
  10. ^ Hacker, Paul. 2006. pp. 484
  11. ^ Davis, Jr. Donald R. Ch. 1.
  12. ^ Ludo Rocher, "Indian Response to Anglo-Hindu Law." Journal of the American Oriental Society 92:3 (1972), pp. 419–42 and Marc Galanter, Law and Society in Modern India (Delhi: Oxford UP, 1989).
  13. ^ Seshagiri Rao, K.L. (1997–1998). Practitioners of Hindu Law: Ancient and Modern. Fordham Law Review, 66, Retrieved October 15, 2008
  14. ^ Singh, Pritam. 2005. "Hindu Bias in India's 'Secular' Constitution: probing flaws in the instruments of governance." Third World Quarterly. 26:6, 909–926.
  15. ^ Bannigan, John (1952, December 3). The Hindu Code Bill. Far Eastern Survey: American Institute of Pacific Relations, XX1, Retrieved October 22, 2008.

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.
  • Davis, Jr. Donald R. Forthcoming. The Spirit of Hindu Law.
  • 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.
  • Hacker, Paul. 2006. Dharma in Hinduism. Journal of Indian Philosophy 34:5
  • 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. "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.

See also

Further reading

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 UP: 2003).


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