Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India.William Musyoka (2010), A Casebook on the Law of Succession, , page 12Werner Menski (2003), Hindu Law: Beyond tradition and modernity, Oxford University Press, , Chapter 1 Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world, beginning three thousand years ago, and is based on the Hindu texts.
Hindu tradition, in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex. The ancient term in Indian texts is Dharma, which means more than a code of law, though collections of legal maxims were compiled into works such as the Nāradasmṛti. The term "Hindu law" is a colonial construction,P Bilimoria (2011), The Idea of Hindu Law, Journal of the Oriental Society of Australia, Volume 43, pages 103-130 and emerged after the colonial rule arrived in Indian subcontinent, 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).Ludo Rocher (1978), Hindu Conceptions of Law, Hastings Law Journal, Volume 29, pages 1283-1297
The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises (śāstra) on Dharma. 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.Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, , page 13-16, 166-179 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.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. Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law.
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.John Griffith (1986), What is legal pluralism?, The Journal of Legal Pluralism and Unofficial Law, Volume 18, Issue 24, pages 1-55 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".
Terminology and nomenclature
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 the universe possible, and includes duties, rights, laws, conduct, virtues and right way of living.Dharma, The Columbia Encyclopedia, 6th Ed. (2013), Columbia University Press, Gale, The concept of Dharma includes Hindu law.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;
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), in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows:
Related terms In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule), Nyaya (न्याय, justice), Yuktata (युक्तता, justice),yuktatA Sanskrit-English Dictionary, Koeln University, Germany Samya (साम्य, equality and impartiality in law), Vidhi (विधि, precept or rule), Vyavastha (व्यवस्था, regulation), Sambhasa (सम्भाषा, contract or mutual engagement), Prasamvida-patra (प्रसंविदा-पत्र, written contract),prasaMvidA Sanskrit-English Dictionary, Koeln University, Germany Vivadayati (विवादयति,vivAdayati&direction=SE&script=HK&link=yes&beginning=0 vivAdayati Sanskrit-English Dictionary, Koeln University, Germany litigate or dispute), Adhivakta (अधिवक्ता, lawyer), Nyayavadi (न्यायवादी, male lawyer), Nyayavadini (न्यायवादिनी, female lawyer), Nyayadata (न्यायदाता, judge), Danda (दण्ड, punishment, penalty or fine), among others.NyAya and other words, Cologne Digital Sanskrit Lexicon, Koeln University, Germanylawyer Sanskrit-English Dictionary, Koeln University, Germany
Classical Hindu law
John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence.John Dawson Mayne (1910), , Stevens and Hynes, Harvard Law Library Series, see Preface section 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.
Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex. 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). However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made 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.
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.Werner Menski (2003), Hindu Law: Beyond tradition and modernity, Oxford University Press, , pages 547-549JDM Derrett (1999), Law Religion and the State in India, Oxford University Press, , Chapter 2 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.Malcolm Voyce (2010), Law and Anthropology: Current Legal Issues (Editors: Freeman and Napier), Oxford University Press, , page 554 with footnote 27 Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India.Axel Michaels (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, , Chapter 3 and pages 58-73 with footnotes 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".Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, 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.
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."
In South India, temples were intimately involved in the administration of law.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).
Sources of Dharma
Śruti 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).James Lochtefeld (2002), "Smrti", The Illustrated Encyclopedia of Hinduism, Vol. 2: N–Z, Rosen Publishing. , pages 656 and 461 The root texts of ancient Hindu jurisprudence and law are the Dharma-sūtras. These express that the Shruti, Smriti and Achara are sources of jurisprudence and law. The precedence of these sources is declared in the opening verses of each of the known, surviving Dharma-sūtras. For example,
The Smritis, such as Manusmriti, Naradasmriti, Yajnavalkya Smrti and Parashara Smriti, expanded this definition, as follows,
As a source of Dharma, only three of the four types of texts in the Vedas have behavioral precepts. Lingat notes (abridged),
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".Bilimoria, Purushottama (2011), The idea of Hindu law, Journal of Oriental Society of Australia, Vol. 43, pages 103-130
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". The later Hindu texts include fourfold sources of Dharma, states Levinson, which include Atmanastushti (satisfaction of one's conscience), Sadachara (local norms of virtuous individuals), Smriti and Sruti.Devid Levinson (2002), Encyclopedia of Crime and Punishment, Volume 1, SAGE Publications, , page 829Donald R. Davis, Jr., "On Ātmastuṣṭi as a Source of Dharma," Journal of the American Oriental Society 127:3 (2007), pages 279–96Werner 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.
Cited texts