The Idea of Hindu Law: Dharma, Custom, the Legal System in ...

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Rather, law was a concept inclusive of tradition, custom and religion, and represented a transcendental obedience to mor...

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The Idea of Hindu Law Purushottama Bilimoria Hindu Law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude (J D Mayne)1.

The genealogy of ‘Hindu law’ is a complicated matter itself. Hindu law so understand in modern times s surely an heir of the bifurcated system instigated during the British colonial period in the form of Anglo-Hindu law that preserved basically family law and certain other ‘private’, i.e. community mores that presumably governed the Hindus. Was there any awareness on the part of the colonial masters that the parent law from which personal law of the Hindus had been split off could have had a longer and more substantive history? Apparently there was. The term ‘Hindu law’ was “coined by British Orientalists and administrators in the later 18th century to refer to the general system of law prevailing among the Hindu majority before the British colonial encroachments, as opposed to the ‘Muhammadan law’ of India’s politically dominant Mughal dynasty”. 2 Hindu legal history accordingly comprises three general periods: classical Hindu law (ca 500 BC – 1772 CE), AngloHindu law (1772-1947), and modern Hindu law (1947 –present).3 For the purposes of the present paper, Hindu law will be taken to fall within the pre-colonial, that is, classical or traditional period, and the discussion here will be confined to gaining an understanding of what this idea of Hindu law might look like today and whether it is deserving of the descriptor ‘law’ as law is understood in modern and postmodern era. Is there such a thing as ‘Hindu law’? Or might we need to introduce a broader 1

Treatise on Hindu Law and Usage, 1878 Donald Davis Jr review of Menski, p 735 3 I would have thought 1950 with the adoption of the Constitution, but I defer to Davis and Menski on this. 2

nuance, marked by difference, and a strongly sustainable variant to the currently privileged concept of ‘law’: thus Hindu law. We shall begin without the latter presumption but argue toward its desirability. In pre-colonial traditional India, what could be referred to as the legal process of the Hindus is said to have been functioning in much the same way as it had done for millennia, but unlike post-Enlightenment European law, it was not a centralized institutional apparatus, formulated and administered by a ‘state’ independently of spiritual or religious and cultural practices. Rather, law was a concept inclusive of tradition, custom and religion, and represented a transcendental obedience to morality. Hindus have never been governed by a central church structure and hierarchy as Christians and Muslims have in their respective histories, or by a Pope who ‘lays down the law’ for all Hindus. Galanter observed that in ‘traditional India, many groups (castes, guilds, villages, sects) enjoyed a broad sphere of legal autonomy, and where disputes involving them came before public authorities, the latter were obliged to apply the rules of that group. That is, the groups generated and carried their own law and enjoyed some assurance that it would be applied to them.’4 There is some truth perhaps to this generalization, but it does not tell us from where the groups obtained the legal principles that determined the rules, and how did they evolve new laws? In other words, what has been the source of law for the Hindus, whether in disparate groups or collectively? The common belief is that traditional (and for that matter its heir in colonial and modern personal law system) Hindu law is informed by three originary sources. The first of these is ⎢ruti (or shruti), the ‘divinely revealed’ or, better, ‘heard word’ (being

4

Law and Society in Modern India, 1989, p 237; however, Galanter has been criticized, by Menski among others, for seeing a gap, in his overall thesis, between law and society, between legal system and its historical rootedness in a society, and its possible incongruence with its social and cultural settings, lacking as it may also in an integrated purposiveness. See Davis, review note 7.

apauru•eya or ‘authorless’5) which forms the central Vedic corpus. The Vedas (or Veda) are a collection of ritual and liturgical hymns, sa∝hit s, ceremonial guides, br hma⎞as, forest-treatises, ra⎞yakas, and philosophical expositions, upani•ads. These are collated under four canons: ⎮gveda, S ma-veda, Atharva-veda, and Yajurveda. They can be dated anywhere between 1500 BCE to 600 BCE. One of the preeminent themes that motivates much of Vedic thinking is the consideration of a higher cosmic order (rta, superceded later by the term ‘dharma’), or transcendence, that regulates the universe and provides the basis for the growth, flourishing and sustenance of all the worlds – be that of the gods, human beings, animals and ecoformations. So conceived rta could be seen as ‘law’ – the law of the natural world and of human beings. Hence, Satyajeet A Desai in his reworking of Mulla’s Principles of Hindu Law emphasizes that for the ancient Hindu his ‘law was revelation, immutable and eternal… Shruti [as Vedas] was the fountainhead of his law’.6 Next is sm♦ti (smriti), the immemorialized or ‘memorized’ tradition7 – inclusive of the commentaries and digests (nibandhas) -- which as a corpus is transmitted through the sages and scribes and as such forms Hinduism’s literary and religious canonical texts with implications for social and cultural, also political, practices. 8The sm♦ti texts comprise, in particular, the six Vedāṇgas (the auxiliary sciences in the Vedas), the epics of the Mahābārata and Rāmāyana, the Dharmasūtras and Dharmaśāstras (or Smṛtiśāstras), Arthasaśāstras, 5

It is the scholastic system of the M×m ∝s that has gone to the greatest length to preserve the epistemological and moral autonomy of the Vedas, bereft of a supreme transcendent authority. See P Bilimoria, ‘The Idea of Authorless Revelation’, in Perrett, 6 17th ed New Delhi: Butterworths, 1998, p.3. 7 Flavia Agnes, describes the smriti as ‘the memorized word’ (op.cit. p.12), while Robert Lingat’s seminal work The Classical Law of India, Oxford University Press (New Delhi), 1998, simply describes smriti (or smrti) as ‘tradition’, pp.7-8. 8 A. M. Bhattacharjee cites several modern scholars and writers on Hindu Law who appear to be committed to this characterization, notably, Mulla in his, Principles of Hindu Law, 14th Ed. 1974, p. 77; Mayne’s Treatise on Hindu Law and Usage, 11th Ed., 1953, p. 19 [and add others on page 13]; including J D M Derrett, Paras Diwan, Tahir Mahmood et al. Menski also takes them and a few others to task on this score. And Fyzee repeats the stereotype introducing God in connection with dharma for the Hindus, in his Outlines of Muhammadan Law p 15.

the Purāṇas, and kavya or poetical literature, which regulate Hindu social order. The third source is the unwritten sadācāra, meaning ‘good conduct of the conscientious (ātmanastuṭī)’, or the exemplary behavior of those who understand and execute in their own lives the moral-legal teachings of the śāstras. Sādācara only marginally includes the customs and practices of the people.9 Śāstras are, in Pollocks words, ‘cultural grammars’ that both reflect and regulate practice (prayoga).10 Now, these three foundational elements - scriptural authority, tradition, ‘exemplary conduct’, and only marginally custom, are said to underwrite the central principle of Hindu life, known as dharma (righteous order and obligations).11 And it is further added that the legendary ‘lawgivers’, such as Manu and, after him, Yaj avalkya, formalized and codified the laws in Manusmṛti (also known as Manusamhita or Manava-dharmaśāstra ), and in Yajñavalkyasmṛti (third-fourth century CE) and the various nibandas, which gradually became the dominant sources of Hindu law and governance of all aspects of Hindu life under the patronage of Brahmins and kṭatriya rulers in cohort. Manu himself endorsed the three foundational sources, adding ‘conscience’ as the forth source, as this verse (12) states12: The four marks of dharma, they say, are (1) the Vedas, (2) the smṛti (tradition) (3) the conduct of good people, and (4) and what is pleasing to oneself (Vedāh smṛti⎥ sadācāra⎥ svasya ca priyamātmāna⎥); (the

9

Mulla for his part, lists ‘Custom’ as the third source; Mayne offers the (1) smrti ‘or the Dharmasastras’; (2) Commentaries and Digests, and (3) Custom. (to check) 10 Sheldon Pollock, ‘Playing by the Rules: ⎢ stras and Sanskrit Literature’, in Dallapiccola, A.L., and Lallemant, S. Zingel-Av , eds. The Sastric Tradition in Indian Arts, Weisbaden: Steiner, 1989, pp. 301-12, p. 301. 11

see also Lingat, ibid, pp.7-8. Derrett includes sruti and smrti under Dharmasastras, which is the only category he otherwise notes as the sources of ‘Anglo-Hindu Law’. Paras Diwan lists (1) sruti, (2) smrti (3) Digests and Commentaries, and (4) Custom. Whereas Tahir Mahmood describes Hindu Law as ‘that body of law in its entirety which originated from religious scriptures of various indigenous communities of this century’. All cited in A M B, p 13. There are thus permutations and variations to the same theme.

12

II. 10-12 Manu’s Code of Law A Critical Edition and Translation of the M nava-Dharma♣ stras, Patrick Olivelle, New York: Oxford University Press, 2005, p. 94, p.405. II.12 is to be read in conjunction with surrounding verses II.6-II.13.

good people know the Veda); ‘Scriptures’ should be recognized as Veda, smrti, and dharmasastras. These two (as the highest authority) should never be called into question.

The view represented above, however, is probably a product of medieval scholasticism and is contestable. It has recently come under severe criticism and qualification by scholars of Hindu legal history and certain Indian feminist writers also, as we shall discuss in developing an understanding of the complexity and variegated pastiche that is often characterized to be a homogenous or univocal structure under the rubric of Hindu law. There are doubtless a good number of scholars who have written on Hindu law –– Mulla, J. D. Mayne, Paras Diwan, J. Duncan M. Derrett, P V Kane, Robert Lingat, A.M. Bhattacharjee, Donald Davis, Jr., Werner F. Menski. Menski’s work is interesting13, as he challenges several distortions in the conceptualization of Hindu law in modernist (colonial, western and post-colonial) representations, in respect of the origins and the development of the formalist legal system, that has as its background model the legal positivism and European (beginning with Roman) system of the ‘rule of law’, among other legalistic presuppositions, culminating in the Code Napol on and (British) Black Letter Law. While we may not share all the assertions and scholastic reworking that Menski offers, for the purposes of this book with its focus specifically on personal laws, we find Menski’s work to be instructive. In many ways Menski reinforces what Indian moral philosophers have been arguing for some time, namely that Hindu (and, for that matter, much of Indian) law cannot be separated from morality and culture-specific ethics in the broader sense of practices and social realities or relativities on the ground.14 To do so is to impose the template of a much later development of the idea of ‘law’ – from the natural law tradition and the Roman secular version15 – which is an anathema and misnomer that is best

13

Menski Hindu Law

14

Several chapters in Indian Ethics volume, in particular J N M. See Scruton (reference in Sally works chapter 7)

15

discarded in the interest of a more nuanced understanding and appreciation of whatever it is that we in the modern times – and Menski certainly does for heuristic reasons – retain the generic nomenclature ‘Hindu law’. Menski has his critics too, such as Donald Davis, Jr, who argues that Menski goes too far in shifting out the scholastic tradition from the dialectical impact on customary laws, both as a historical fact and as a hermeneutical reality, for otherwise what would be the essential ‘Hindu-ness’ of customary laws the Dharmasastras allegedly textualized? 16 This is a pertinent question. One might respond that, well, ‘Hinduness’ as a trope might itself be a suspect candidate here and, conversely, the suggestion that the formation - and not just the reiteration or reformulation - of law was supervenient upon the active agency of the textual or scholastic tradition. As we shall see Kautilya could talk about dharma (better predicated as svadharma) as a virtuous and normative order of governance, or simply a pervasive principle of justice, without needing to trace or reduce the ideal to some prior redaction of texts and extant scholastic formulations – though perhaps this much is arguably presupposed.17 So what is contestable about the view we started with in the second paragraph that has unleashed the controversy? First let us elaborate on what exactly are the view and the claim that it underpins. It is that, in the first instance, the Scriptures are the source of dharma. We shall begin with the first of the institutes or sources that supposedly prescribes dharma, namely, the Vedas, for in principle every rule of dharma must indeed locate its authority in the Vedas. But before that a word on the conception of dharma in this juxtaposition. The common understanding equates dharma with duties and precepts or prescriptions. Dharma, however, is not simply a set of duties for it encompasses the moral law, not unlike the concept of natural law (but without the excessive transcendental or theological element).18 This all-embracing conception is 16

Personal communication and his review of Menski Arthasastra 1/4 18 See Tierney (book shelve downstairs) on Natural Law and its purported ‘divine origins’. 17

derived from the root dhṛ, meaning ‘to form’, ‘uphold’, ‘support’, ‘sustain’, or ‘to hold together’. More concretely, dharma may denote ‘fixed principles’, ‘order’, ‘righteousness’ and ‘truth’. It connotes the idea of that which maintains, gives order and cohesion to any given reality, and ultimately to nature, society and the individual; and it is inclusive of the respective obligations, duties including social and individual duties, ethical living, and discharging of debts, needed to ground the human community and allow it to flourish, etc. It would seem to follow that on the basis of this rather abstract principle Hindu lawmakers and ethicists devised comprehensive systems of social and moral regulations for each of the different groups, subgroups, (caste, rulers, monarchs, etc) within the Hindu social order. Certain universal virtues, duties and norms also come to be specified, such as non-injury or non-violence, noncoveting and not lying. Thus the end of dharma has to be fulfilled in terms of one’s place in society and in nature, supplemented with the practice of the universal norms. Mohanty sums up the broader reach of dharma most aptly: Thus ‘According to the Hindu tradition, dharma in the strict sense (i.e., excluding the law codes and rules of policy) are expressed by injunctive (prohibitive) sentences of the Vedas. The later dharmasastras clarify, expound and explain them. These injunctions embody rules that are of various sorts: they may be obligatory or occasional; they may pertain to one’s varna (rendered ‘caste’) or to one as a number of a family (kula), or they may be for all humans (sadharana). Of many of them, it is true to say that they pertain to a person’s role and status in society but this is not true of all of them: the so-called sadharana or common dharmas are not so. What is common to them all is that they are all expressed in imperatives.’19

19

IE I

So far so good. But here is the rub, as we wish to argue.

Vedamulatva: Are Vedas the touchstone of Hindu Law? The Vedas certainly ordain injunctions and moral responsibility toward performance of sacrifice (yaj a); and rules are set down for the correct recitations and incantation of mantras accompanying this performative act. There are even exhortations towards certain ‘alterity’ virtues, such as ‘gift giving’ (dāna), welcoming the guest (atithi), and care for the ancestors.20 Disregarding the distinction between mandatory (deontological) and optional or hypothetical (consequentionalist) imperatives, the question arises, could injunctions or imperatives possibly exhaust the scope of dharma where Dharma is to serve as ‘law’ and rules in matters of policy? Secondly, what we have is a seemingly motley collection of codes, but no attempt is made to unify them in a system or under a single moral theory, or deduce them from a principle. Without such a process, the function of law is not feasible. Third, they appear not to be grounded in matters of fact, but are rather about what ought to be the case (‘ought’ is conflated with ‘is’ or the distinction is not clearly made).21 By and large, the ‘ought’ precepts or prescriptions seem hardly to go beyond the immediate calling to the sacrificial pit and the eulogies to the gods. So understood, dharma fits uncomfortably into the rubric of law contrary to the received wisdom, although it may provide a ‘limit concept’ for such a legal trajectory were the society to avail itself of this. As Lingat also acknowledges, there is little in way of rules of dharma in the Vedic texts. ‘Strictly speaking, the Vedas (sa∝hitās) do not even include a single positive precept which could be used directly as a rule of conduct… By contrast the 20

Laurie L. Patton, ‘The Fires of Strangers: A Levinasian Approach to Vedic Ethics’, in Indian Ethics I; and Maria Heim in Indian Ethics I

21

I owe these insights to Mohanty ibid

brāhmaṇas, the araṇyakas, and the upaniṭads contain… numerous precepts which propound rules governing behaviour.’22 And as Rocher reminds us there are even less rules of law in the sruti.23 Laurie Patton too comments that ‘[A]s compendia of explicit statements about dharma, early Vedic texts are woefully inadequate. The Vedic world is usually placed low on the list of sources for Hindu ethics for similar reasons.’24 So why does a Hindu affirm that dharma rests entirely upon the Veda? Lingat has a persuasive explanation, which is worth citing at some length: [T]he word Veda does not mean in that connection the Vedic texts, but rather the totality of Knowledge, the sum of all understanding, of all religious and moral truths, whether revealed or not. These truths are not human entities; they are imposed upon man (sic) who must simply submit to them; they exist by themselves and have always existed. They form a kind of code with infinite prescriptions of which only the Supreme Being can have perfect knowledge. The eternal code was revealed by him to certain chosen ones, and that is what is called śruti. But only part of that Revelation could be communicated to mankind; a good deal of it has been lost, moreover, due to the weakness of human memory. Therefore the Vedic texts are far from representing all the Veda. When a rule of dharma has no source we must conclude that it rests upon a part of the Veda which is lost or somehow hidden from our view… It is this hypothetical or symbolic code, rather than the surviving Vedic texts, which the most ancient authors, the writers of the dharmasūtras, have in mind when they proclaim that the Veda is the primary source of dharma. They hardly do more thereby than

22 23 24

Op cit, p 8. Rocher 1978, p. 1293 (Davis Realist) Patton op cit.

express their adherence to common belief, without attaching any particular value to that source ’.25 The point is taken. Apart from the qualm one may have about the postulation of a Supreme Being (God) in the Vedic worldview – which the M×mā∝saka and possibly an Advaitin also will be inclined to vehemently take exception to – as well as the claim about the ‘lost, or hidden, Vedas’, or that even the Abrahamic term ‘Revelation’ is appropriate here26, Lingat is basically correct in his assessment that the Vedas are only in a perfunctory sense regarded as the inexorable foundation and source of the rules of dharma. Furthermore, because sruti has exhibited — contrary to the later smrti and the law books — a plasticity of meaning, an inexhaustible reservoir of meaning which is not exhausted by any system, that it enables variable interpretations and appropriation.27 Mayne was even more emphatic, disregarding the devotional sentiment with which Hindus look upon the Vedas as the paramount source of knowledge in all aspects of their lives, by declaring that the ‘Sruti, however, has little, or no, legal value. It contains no statements of law as such, though its statements of facts are occasionally referred to in the Smritis and the Commentaries as conclusive evidence of a legal usage.’28 Other scholars such as Olivelle and Wezler reinforce the marginality of the term ‘dharma’ in the Vedas, which in any case comes to mean something quite different in the Dharmasastra.29 Training in the Vedas might at best divest in the individual the adhikara, that is to say, 25 26

27

op cit p 8 See reference in Note 1 above.

Mohanty in Indian Ethics I chapter (p 13 in his text); while what Mohanty goes on to say may well be true to ethics or morality, this insight cannot be extended to dharma as law. Thus: ‘The Hindu understanding of dharma as embodied in the imperatives laid down in the sruti preserves the idea of ethics as rooted solidly in that tradition which was founded by those texts, but which those texts have permitted us to reinterpret ever anew.’ Ibid.

28

Cited in A M B, p 15 (Mayne’s Treatise , 11th Edition, 1953, p. 19 –emphasis added by AM B) Discussed in Davis note 11, p 292 Realist. Olivelle in 2004b, and Wezler 2004. Curiously, Davis traces the characterization of dharma as ‘positive law’ to the arguments of Paul Hacker, Wilhelm Halbfass and Jim Fitzgerald, in the sense that the eternal, transcendental – natural law-like - character of the Vedas provides empirical and historically situational framework for positive law (dharma/acara). This view is being set aside here.

29

the entitlement to pronounce on the constitutive formalism of dharma, and thereby proffer decisions on a matter at law, without recourse necessarily to the substantive contents of the Vedas at the risk of transgressing the orthodoxy as well. “The theological connection of the Vedas and Hindu law is primarily a distant backdrop against which legal philosophy develops and the actual business of law is conducted”. 30 Reflecting here from a different quarter, the famous Lacanian political theorist, Slavoj Zizek, would suspiciously discern in the erstwhile discourse that underscores the Vedas as the founding source of Hindu law (vedamulatva) an implicit and unstated underside. He would argue that, not unlike most ‘mega-legal’ and superstructure discourses in other major traditions, it is a product of an ‘ideological fantasy’. What Zizek means is that each system has its own defining story in terms of its foundations that gets renarrated retrospectively, even as it conceals or ‘represses’ the violence of these foundations - and that it is this ideological frame as doxa (received wisdom) that determines how the subject ought to interpret the laws’ frozen and forbidding letters.31 The Mimamsa’s ahistoricization of the Vedas (through its doctrine of apurauruseyatva of sruti) is charged by Pollock to underpin just a move – its immense contribution to the growth of Hindu jurisprudence notwithstanding (which is separate philosophical function of the Mimamsa)32. That hermeneutic of postmodern suspicion, however, is better left for a later chapter; but an echo of the Zizekian tone is certainly detectable in current scholarly dismissal of the discourse that is being contested here. Are Smṛtis then the source? As described above, the smṛtis represent a variegated assortment of literary corpus whose knowledge-base is said to have been derived from or inspired by the memory of the rules of dharma: a sort of consensual recollection to which Tradition commits its adherence. But this suggest at best a kind of temporal imaginary: long back there was this pristine 30

Davis ibid pp 292-3. Matthew Sharpe, drawing on two of Zizek's works, note u71 in ‘Leo Strauss, Eros, and the Law’, 32 See my ‘The Idea of Apauruseya’. 31

and perfect knowledge about the moral order and rules governing the same, but we seem to have become distanced from the source; however, we are still able to recollect the traces and rudimentary principles for deriving rules that are encumbent upon us in our present situation. (It is not unlike Plato’s use of mimesis in the Theatatus33.) The precise relation between śruti and smṛti has been a matter of much scholastic debate, and we need not go into that here for our purposes, suffice it to say that for ‘daily practices’ (grhya), and in the extra-sacrificial context, smṛti is nο λεσσ αυτηοριτατιϖε τηαν śρυτι (because smrti simply immemorialize the precepts already inscribed in the Vedas34, or they iterate in lieu of the Vedas where the Vedas are silent). If we take dharmasutras to belong to the corpus of smrti as well – and Manu for one would urge us to --, then the dharmasutras have to be taken seriously as the next likely candidate for the source of Hindu law. Robert Lingat begins with a focus on certain major dharma-sutras, such as Baudhayana, Apastamba and Vasistha, and argues for their importance in tracing the ‘birth of law’ in Indian antiquity because of their reworking of the rules of ritual performance into an appreciation of dharma as ‘duty’ underlying all that liturgical formality. Particularly in the post-Vedic period, the acaryas of the Brahminical schools ‘completed their teaching of rituals by speculations which brought out the moral and religious aspects of the rite, and explained its significance and obligations which flowed from it’.35 And so one finds in tandem ‘numerous rules tending to define social relationships and to regulate man’s activities within their group – and from this time onwards there is the appearance of something resembling legislation’.36 And this processural move clinched an emergent bond between dharma and law. The theories of varṇa (‘caste’) and āśrama (‘stages of 33

Where x tells us that knowledge of truth of 4 + 7 = 12 is not something we gain from the world (‘facts’) but through a recollection of what we have known in our previous celestial lives. 34 This is the view of the Mimamsakas, Sabara and Kumarila. Various exegetical devices were formulated to make this strong connection. 35 P 28 36 ibid

life’) are given as examples of the ways in which the dharmasutras avail themselves of a framework or two within which to lay down duties of individuals according to their caste and ‘station’ in life. And of course, much energetic ink is expanded by the authors of these texts in reasoning through and providing justification for the hierarchical ordering of the caste (genea, mer÷) and the diverse ‘mixed caste’ groups (jātis, to be more specific) in more temporal terms than upon the sacramental basis afforded in the Veda (with its tri-varṇa arrangement), however irrational and discriminatory this might all appear to be in hindsight. The intricacies and complexity of the caste system and particularly the question of its origins are matters that should not distract us here, but it needs to be said, as Lingat reminds, us that neither the priestly-aspiring Brahmins nor the authors of the sutras “invented” the caste classification, much less the system itself. They were confronted by a society that through various historical permutations (partly due to the contact of Arya-Brahminic tradition with non-Aryan cultures) had come to be splintered and diversified into a plethora of groupings and, racial mixtures and classes of which caste (jati) was just one, practicing the most diverse range of customs. They needed a theory to help simply and reduce the innumerable castes, etc., of their days into a more workable system: the schematics of varna, the four main groups known to the tradition, provided such a ‘handy’ conduit and prototype of the castes. Apart from codifying custom, their major task was to articulate the rules of living that would help secure the individual’s destiny; and they take care to ensure that these rules are not repugnant to dharma. Here the edict of Gautama is invoked: ‘The customs of countries, of caste (jati), and of families, are equally authoritative, provided they are not contrary to the [sacred] texts” [XI.20]37. Even the monarch – who is not divested with any power to make laws as such – is cautioned to restrain the four varnas and take into account the customs of his citizens in administering law and due justice.38 The other mark of the linking of law to the margins of dharma in the dharma-sutras is their move toward furnishing principles for determining punishments and penalties for a range of misdemeanors. A separation is made between religious and penal sanctions (although the 37 38

p 38 Ibid, JNM op cit;

language continues to be one of ‘expiation of sin’ upon undergoing the decreed punishment, etc.). The process is rather secular; the rules of procedure however appear not to have made a clear distinction between the civil and criminal, except in areas such as the admission of witnesses and whose counsel the king should take before taking a decision on the case before him. Their preoccupation is mostly with family (marriage in particular) and succession law.

Coming to the dharma-sastras proper, proximately attached to smrti as to the dharmasutras39, we find that they are more extensive, expansive in scope, and mandate a much larger role to rules of a judicial character, which bring them close to the “legislative” function.40 The methodically classified rules in the dharma-sastras are intended to guide the king in his sovereign functions as well as to assist in the administration of justice. ‘There we find a branch of science of dharma which is tending to disengage itself from others [notably the ritual predilections of the Veda], and to be envisaged as an autonomous discipline’.41 The preeminent authority is enjoyed by the oldest among these, namely, Manu, Kautilya, Yāj avalkya and Nārada; the commentaries on these continue into the ninth century CE. The Mānava-dharmaśāstras (circa second century CE) is perhaps the most celebrated among these, but equally infamous in view of its excessive bias towards the Brahminic and ruling elites and its oppressive injunctions in respect of women and the śūdras, who are considered in much of the dharmasastras to belong to the lower rungs of the caste hierarchy. The rules and regulations that Manu tries to embrace many ‘paths’ (margas) that people live by in their private and public lives, be that of relation between partners, commercial transactions, disputes related to property, and disposition towards animals as well as inhabitants and rulers in neighbouring territories. And a caveat was issued, namely that of janaganamana:

39

The distinction is not so clear-cut, and the dharma-sastras in some accounts encompass the sutras, since both are concerned with discipline in dharma. 40 Lingat p 73. 41 P 73

scripturally sanctioned acts are to be set aside if they appear to be offence or abhorrent to the people. Likewise, if one looks at the Arthasastra, there Kautilya (circa 321-296 BCE) is quite conscious of the diversity from ancient days of the Indian regions and accordingly allows for a degree of flexibility in matters of law and justice (dharmasthya). Kautilya, at a superficial reading, appears to justify the rigid reign of the ‘rod’ (danda) wielded by the king. One plausible ground for this edict is that, unless there are calculated controls, the (natural) law of the small fish being swallowed by the big fish would prevail. Jurisprudence, ordinances for regulating civil life, and the governance and security of the state are the monarch’s chief objectives.42 Indeed, the king is expected to attend each morning to pleas and petitions from subjects who may come from all walks of life and different caste or subregional groups, including women, the sick, aged and handicapped. When meting out justice, the king or the state is not in a position to make laws; rather the sovereign court’s jurisdiction is to negotiate between dharma (law), custom or settled community law (vyavahara), transactions or commercial and personal practices and written edicts (sastras). The king may overrule the latter two sources of law, but he cannot put himself above dharma, in accordance with which all instances of disputes and contradictory judgments are to be decided (3.1.40-44). This precept entails that the king maintains detailed codes of law and precedents and judges each case by its merit or otherwise in law, and he metes out punishment proportionate to the offence of violation of the codes, but not in whimsical excess. His ministers (amatyas or mantrins), the purohita, the ascetics, even the queen and prince, the gods and above all dharma maintain a check and are witness to any possible deviation.43 Kautilya is also credited 42

Kane, op cit, vol I, p. 225; Kautilya's Arthasastra, trans. by R Shamasastry, Mysore: Mysore Printing and Publishing House,1960; Kangle, R.P. (1986, 1988, 1922), The Kautilya Arthasastra, Part I, Sanskrit text, Part II, English trans.; Part III, A Study. Delhi: Motilal Banarsidass. See also P Bilimoria, ‘Kautilya’, Encyclopaedia of Philosophy, pp. 220-222, London: Routledge, 1998, pp. 220-222 43 The king’s obligation to administer justice in accordance with the principles of legal science (dharmasastranusarena; also in Manu VII.128), is the very first verse on injunction in the Second Book (on ‘vyavahara’, translated here as ‘positive law’) in Yanjavalkyasmrti reinforced in the commentary Mitaksara. Yajnavalkya maintains that “a custom which is not opposed to law should be carefully maintained, as also the precedent established by the king’s judgments’. The learned that assist te king

with having been among the first to set down codes of law (which comes close to the secular codification towards which Hindu Code Bills have been moving this century), as distinct from re-inscripting desirable prescriptions and diverse customary rules, regardless of their moral or philosophical merits, etc.44 Kautilya is quite conscious of the diversity from ancient days of the Indian regions and accordingly allows for a degree of flexibility in matters of law and justice (dharmasthya) Indeed, the king is expected to attend each morning to pleas and petitions from subjects who may come from all walks of life and different caste or subregional groups, including women, the sick, aged and handicapped. When meting out justice, the king or the state is not in a position to make laws; rather the sovereign court’s jurisdiction is to negotiate between dharma (law), custom or settled community law (vyavahara), transactions or commercial and personal practice and written edicts (sastras). The king may overrule the latter two sources of law, but he cannot put himself above dharma, in accordance with which all instances of disputes and contradictory judgments are to be decided (3.1.40-44). This precept entails that the king maintains detailed codes of law and precedents and judges each case by its merit or otherwise in law, and he metes out punishment proportionate to the offence of violation of the codes, but not in whimsical excess. His ministers (amatyas or mantrins), the purohita, the ascetics, even the queen and prince, the gods and above all dharma maintain a check and are witness to any possible deviation. Kautilya is also credited with having been among the first to set down codes of law (which comes close to the secular codification towards which Hindu Code Bills have been moving this century), as distinct from re-inscripting desirable prescriptions and diverse customary rules, regardless of their moral or philosophical merits, etc. Thus Law-compilers such as Manu and Kautilya bring the notion of dharma down to earth, as it were, by devising a comprehensive system of social and moral regulations for each of the different groups, sub-groups (caste, rulers, etc.) within the Hindu social should be versed in the scriptures and study Mimamsa, knowing dharma (religion) as well, and dispassionate toward friends and foes alike. 44 See Indian Ethics Introduction Part A

system, as well as specifying certain universal duties encumbent on all. Vocational niches, duties, norms, and even punishments are differently arranged for different groups, and the roles and requirements also vary in the different asrama stages for the different groups. Before the advent of the sastras (Artha- Dharma- and the Smrtis) these normative tracts, or law if you will, were preserved in the respective customs of the groups and in the cumulative tradition. Dharmasastra describe them as samayacarika dharmas, customary rules. The law courts were responsible for administering such of these rules as pertained to family and social life and personal laws, and created civil and criminal rights, which were enforceable. In time, particularly varnasrama or caste rules and rules of personal and family law were inscribed into the Smrtis.45 Guided by these rules the courts enforced jatidharma (subcaste rules), srenidharma (by-laws of guilds), kuladharma (family traditions), in so as they engendered civil and legal rights which may have come under dispute or contestations. Liberal allowances were made for changes in the civil, criminal and customary law, “as sanctioned by popular usage and moulded by state guilds”. Altekar goes on to observe that, “[I]t was the duty of one of the ministers, called Pandita Sukra, to make a periodical survey to find out which laws are ancient and which modern, which of them are sanctioned by Dharmasastra and which though based upon that authority of, are no longer valid and which of them have the approval neither of the Dharmasastra nor of popular usage. He was then to lay down a proper policy [sic]”.46 Dharma, whether understood as morality, i.e. normative practices and customary rules, or as law (administered by the king and the courts), was never a static, stagnant pond that could not be moved by appeal to conscience (atmatusti), conciliation (sama), appeasement (dama), difference and dissension (bheda), or shifts in the selfunderstanding of the tradition, or variations between groups and regions. The spirit of the prevailing dharma and culture more often than not dictated the terms of reference of legal deliberations as well as their inscription and re-thinking in matters of policy. And yet a critically informed genealogy of this process is lacking in the reconstruction of Indian legal history. So where does one turn for a more informed and definitive mapping? 45 46

A S Altekar, State and Government in Ancient India, Delhi: Motial, 1984, pp 259-260.

P. V. Kane’s monumental work on the History of Dharmasastras has been deemed by scholars to be unhelpful on this problematic as also on the sorts of questions we have addressing in this chapter. Rajeev Dhavan complains that Kane’s gigantic work failed to develop sociological insights into the development of Hindu law and questions his motive of wishing to raise the stakes of classical India’s jurisprudence on a par with that of any system that may bear comparison. But to his immense Kane has provided an unsurpassable compendia of the wide-ranging textual tapestry, records of codification and the internal (inter-textual as well) sastric reasoning and disputes that informed the moral, social and juridical re-iteration of the extant normative structures of the society of those times. The sastras were making every attempt to whole together an otherwise selfregulating social order that periodically came under threat of fissure and challenges due to its sheer diversity and changes that historians are only too well aware of. Kane looks, albeit uncritically, for sanguine intentions, in the sastras and their defined purpose of bringing happiness to the members of the society who submit to the governance of their edicts and regulative norms. Likewise, underscoring the ‘purposive approach’ as against the ‘literal approach’ (in modern jurisprudence), A M Bhattacharjee suggests that the dharmasastras realized that unless one performs one’s duties there can be no protection for corresponding rights vested in another; thus if everyone performs his rightful obligations, ‘the rights of everyone else would also be secured thereby and that without any acrimony of friction.’47 For all its apparent effort to distance itself from the overwhelming religious and ritual imperatives of the earlier Vedic worldview, and instill a more juridical character to the rules, the collective spirit of the dharmsastras are never too-far off from that soteriologial and cosmic ends to which the Scriptural tradition harkens back, time and again. The king likewise is all too conscious of the risk of committing sin or de-merit if he applies a rule improperly. Juridical consequences aside, the institute of marriage too is fraught with 47

Hindu Law and the Constitution, p 6.

warnings about the dangers of slighting a god if one marries into a wrong or forbidden caste and fails to fulfil the obligations (ritual, family, and social) encumbent upon the householder. If the regulation is ‘sacred’ in its originary character, then the law expressed by that rule is vyavakarika (‘worldly’, profane) only in a derivative sense. So this leads, even one such as Lingat who tried to anchor the origins of Hindu law in the (dharma-)sastras to pause and wonder ‘in what measure the rules of law, which we meet in the dharma-sastras – presuming that they do really belong to dharma – actually express juridical solutions[?] They are enunciated in order that spiritual merit may be gained or secured. It is unquestionably a religious duty to conform to them, and in this respect they are certainly amongst the origins of law.’ Given that legal sources would comprise, at the least, codified rules, legislation, precedent, custom, and agreement or equity, this then is the critical question: ‘But what is their [the sastras] exact significance? Are they the direct sources of law (fons juris), i.e. have they quality of legislation, the authority of which bears directly upon the judge? Or are they sources of law only in the sense that religion and morality and prudence are amongst the sources of law in Europe – that is, have they managed to exert an influence upon the law development of social institutions as an historical or explanatory cause of law rather than a true source?’48 Lingat does not really provide a decisive answer to his own quandary. For a somewhat different perspective or approach to this question it is time to turn elsewhere. First, a qualification from A M Bhattacharjee may pave the way for this direction. Bhattarejee rejects the views of Mayne, Mulla, Derrett and others (See Note ), and argues instead that well before the arrival of the British in India, ‘the Srutis and the Smritis ceased to be the principal sources of Hindu Law having been replaced by the Nibandha, i.e. the Commentaries and Digests[,] and it was not at all necessary or even permissible to enquire as to whether a particular principle of law enunciated in the Nibandha was in fact supported by the Smritis and it was binding without their support and even in spite of 48

Lingat p 136

their contrary mandate.’49 Hence, Bhattacharjee sets aside the lex scripta of smrti also as a viable source, or even one amongst the sources, of Hindu law. But whether he is right in turning our gaze almost exclusively toward the nibandhas may itself be open to question, for the bulk of evidence that Bhattacharjee brings to his own contentions is based on the proceedings of the Privy Council, from as far back as 1868, where the judges deferred to the Commentaries (most especially the Mitāṭksarā) prevalent in a particular province as the authority that has been given due recognition and not any other texts.50 Nevertheless, what is common to both the smrti texts and the nibandhas or Commentaries and Digests is that they are records of usages and customs commonly accepted by the people. While smrti recorded these as imperative precepts without elucidating reasons for their justification (except for the desirable practices of more recent origin which awaited acceptance by the society), the smrtikaras (commentators on smrti) and the nibandhas (Digests) are more forthcoming in explaining, consolidating, modifying, and even enlarging their rules in actual usage and customs then prevalent among the different groups, often with utter disregard for the totalizing rules in the smrti itself.51 This is tension that has inflected itself to the present-day debate on the basis of the authority of personal law and the codification of Hindu law in the statutory Acts of 1955-56. Menski’s forays Menski begins by rejecting three suppositions that have bedeviled much of modern scholarship on the question of Hindu law. First of this is that ancient Indians did not have anything that we would nowadays recognize as ‘law’. For if indeed all human societies have law, ‘why should ancient Hindus be any different?’52 This retort may not cut much ice. H A L Hart (whose lectures the present author once had the privilege of attending at a law school) for one might relegate Hindu law under the rubric of those ‘primitive societies’ whose ‘laws’ or customary ways bears no comparison to either the natural law 49

ibid p 13 Menski takes Diwan and Diwan (1993:39) and Desai (1998: 59) for exactly the same overdetermination. P 147. 51 Derrett also notes this, cited in AMB p 36 52 p 43. 50

tradition or positive law as it has evolved in the past few centuries in the modern West. Nevertheless, Menski questions, on the one hand, the classical positivist theories and Austinian notions of formalistic, state-made ‘rule of law’, or Western ‘model jurisprudence’, as the only ways to conceive of law, and on the other hand, what he calls ‘the loaded assumption of the basic ‘revelation’ of Hindu law from some divine authority’.53 His simple answer is that ‘the ancient Hindus conceived of law differently from Western cultures’. Hindu law for him ‘represents a culture-specific form of natural law. In that sense, too, it is an ancient chthonic legal system.’54 Menski’s strategy is to underscore the traditional relativity of dharma – what Sunit Sarkar elsewhere has finds in the notion of ‘adhikara-bheda’55 – and its constant emphasis on situational specificity, which allows for difference in accordance with circumstances. To that end he dismisses the representation of Hindu law by fundamentalist Hindutva types and by Orientalists who believe that, for example, Manu had the last word on Hindu law! Rather, he argues that Hindu law is a branch of dharma but that its contours cannot be reconstructed from mere textual sources, much less the sruti and smrtis.56 This was the mistake made by European Orientalist scholars and an emerging literate Hindu elite, who while welcoming the recognition of their moral system as embedding a ‘legal’ process, were blinded by the equation of dharma with law, which in fact ‘secularized the understanding of Hindu legal processes and marginalized the inherent link of all individual actions with the “cosmic” system of righteousness as the ultimate arbiter of what was “the right thing to do” at any given moment.’57 (Menski is referring to the rta/dharma complex embodied in the concept of the macrocosmic order as the ‘the higher power’ and therefore the foreground for any discourse to ensue on human ends and positive human rule-making.) In the next chapter we shall discuss how the British administrators and judges missed seeing the connection and thus exacerbated this process in the reconstruction of Anglo-Hindu law. 53

P 44 Ibid; Menski rejects all theological definitions that dwell on the law being something revealed, presumably including the Mimamsa qualification of authorless revelation. Note 18 on p 43 seems to suggest this 55 Book downstairs 56 p 73. 57 P 75 54

The story that Menski provides is a rather complicated, in some ways, convoluted one, as it moves through various stages, each stage accounting for the peculiarity of its handling and development of Hindu law as it shuttles through the lanes and by-ways of history. While rejecting the prominent view that we began with – which all-too readily locates the source of Hindu law in sruti, smrti, and sadacara, he takes as his own starting point for pre-classical law in the Vedic concept (though not necessarily the written word) of cosmic order (rta) which metamorphosed into dharma (microcosmic order or duty). Similarly, when he turns attention to the next phase of the development of Hindu law – the classical period which are marked by the dharmasastras, or smrti more generally (along with the commentaries and digests) – he is less interested in what the texts have to say, than in the broader anthropology of the differently nuanced and lived realities and people’s customs and local ways of doing things that enabled Hindus to negotiate, modify, and retain self-control over their religious, moral and legal processes. The four stages of development within ‘traditional’ Hindu law, is summarized by Menski in his own words, starting from the macrocosmic universal order system (rta) of pre-classical Vedic age: This gradually metamorphosed (but we do not quite know when) into properly ‘classical’ Hindu law, the idealized system of self-controlled order (dharma), focused on microcosmic order and encompassing every Hindu individual. Third, because of the admitted limits of self-controlled order, we soon find the deterrence-based stage of punishment (daṇ∂a), which is a typically Hindu form of ‘assisted self-control,’ still relying on the individual’s sense of dharma, but now explicitly recognizing that some external pressure is necessary to ensure that cosmic order is being maintained as much as possible. Here we find evidence of greater importance given to the Hindu ruler (raja) who operates at various levels, from head of family to clan chief, village head, and real King… Fourth, the more or less formal methods of negotiation or dispute processing (vyavahāra) should… also be counted as a separate stage of Hindu legal development… now recognizing the scope for formal settlement of contested matters, which may culminate in a royal pronouncement as some kind of final word… A Hindu royal edict does not represent positive law, but constitutes a visible manifestation of the superiority of the rta/dharma complex, according to which the Hindu ruler is supposed to position himself and his activities.’ (p81).

If there are texts that are aligned to these shifts and changes, and present accounts of the same rather than deviate into some abstractions of their own (possibly for elite consumption), then Menski is all too-happy to consider their wisdom, as when he turns to claim made by some scholars that the Mitaksara (probably the most extensive commentary on the Yajnavalkyasmrti) marks the fountainhead of the secularization of Hindu law. Summing up this discussion of ancient Hindu law, when all is said and done, the śāstras have not been able to survive, sustain and flourish as anchoring Hindu law simpliciter in as authoritative manner as believed, and certainly not effectively into the modern century as indeed the turmoil experienced in the area of family law since 1955 manifests.58 The unreformed Hindu law has proved resistant to change in the area least imagined, not unlike Islamic and Jewish law. As we shall discuss in the later section (chap 4?), the nineteenth century evinced some remnants of śāstric law in penal and contract laws, but not as effectively applied in respect of civil law, and the courts experienced difficulties in discerning the correct rules and application of śāstric codes. In their quest for uniformity and certainty the British administrators gave vent to the śāstris (especially of Bengal) to re-fashion the formerly (per)suasive authority as selfconsciously normative and positive law of the Hindus. But in effect, as time would tell, it wasn’t so much that Hindu law was being restructured, but rather that aspects of modern law that had were considered germane to a civil society, such as (for our purposes) family law, was being reformulated along traditional Hindu lines: there lies the difference. That dialectic and the tensions therein is neither a curse nor a gift of the modern (or postmodern), as Derrett cited approvingly by Menski points out: In tackling Hindu law the first thing to remember is the tension between the past and present, the desire to be traditional and the desire to be up-to-date … it is too readily forgotten that the tensions to which we allude were present centuries ago,

58

Derrett makes this observation in Dharma♣ stras and Juridical Literature, A History of India Literature, Wiesbaden: Otto Harrossowitz, 1973, p.7.

though not always in the same form, and the conflict between ‘foreign’ manners and ancient ways is endemic in India and has been going on since the Vedic age. Far too few critics of the present order realize that their ancestors were engaged in corresponding if not actually similar complaints centuries ago.59 Hence, again in Derrett’s astute word, ‘[H]istorians of law are at a disadvantage in that neither the smṛtis, nor digests or commentaries, undertake to give a full picture of law-inaction’, since their work – as that of Kane’s -- is devoid of anthropological or sociological awareness.60 Hindu law is then a textualized form of customary law, dispensed by religious elders in interaction with royal rulers, from what have earlier been established customs in that society, built up through precedents, digests of rulings, and intellectual reworkings, such as those of Kautilya and to an extent Manu. This is not unlike the common law tradition that developed over a number of centuries in Britain, which is one reason why the British legates in the nineteenth century could recognize elements of their own system of law in Hindu law, but were overwhelmed by the diversity of practices – customs as well as jurisprudence – and representations across the Hindu society in the subcontinent. Nevertheless, a Mimamsaka cannot fully countenance the suggestion that Indian jurisprudence itself, particularly during the medieval period, had no deep connections with the textual or scholastic tradition. The Mimamsa has had a long history of influence precisely via its interpretative intervention – for this is the reasoning skill the Mimamsaka brought from their ritual hermeneutics to resolve apparently conflicting injunctions or other textual prescription on the performance of yajnas or sacrifices.61 Their source is mostly the Brahmanas. Scholastic forays have therefore always inflected themselves in what could be regarded as the domain of customary law. In a similar vain, the 59

Menski p 63, from Derrett, A Critique of Modern Hindu Law, Bombay: N.M. Tripathi, 1970. p. 1. Dharmasastra and Juridical Literature, p. 63-64. 61 See my Being and Text, G Jha chapter XXXIII Purva Mimamsa in its sources; Markandeya Katju’s work, Rama Jois. Kishor Lal Sarkar, The Mimamsa Rules of Interpretation (Justice Katju with Justice H K Sema on the Supreme Court Bench, as recently as March 2008, invoked the gunapradhan axiom of the Mimamsa in a case involving a conflict between two legislations applicable to a modern industrial situation and the disputation thereto brought before the court.; The Indian Express, March 14, 2008. 60

jurisprudence of Dharmasastra recognizes that all rules of dharma, at the more abstract level, are derived from the Vedas; however, in the more practical context another discourse adverting to “the related concepts of acara, caritra, maryada, samaya, samvid, etc. all referring to rules of a particular locality, community, merchant group, etc.,” come into focus.62 Donald Davis, Jr, demonstrates through use of the concept of paribhasa, technical or supplementary law, reflects and shapes the discourses (including the ‘metadiscourse’ of the Dharmasastra) and “actual practices of community or group rules in great variety of local contexts”63 These conventional rules refine rather than revise rules of the sastra: they specify how primary rules of Dharmasastra will or will not apply to a particular group’s legal affairs; and they provide a devise by means of which two rules of recognition can be legally reconciled, even as they continue to function in largely separate domains. (ibid). Through a long and complicated analysis that involves recourse to medieval (including South Indian digest of Dharmasastra, such as Smriticandrika (SC) of Devannabhatta), contemporaneous inscriptional and epigraphical sources, and commentaries, Davis develops what he calls a ‘realist theory of Hindu law’, which exude strong elements of positive law (in H A L Hart’s non-Austinian sense) precisely through the paribhasic-explanatory gloss, or reconciliatory stratagem, on legislated dharma64 (where conflict between rules might arise, or conventions are violated, or the sastras remain silent) that cumulates towards Hindu jurisprudence, and which is also mitigated by the prevailing discourses of theology, philosophy, and politics even as the winds of change sweep through social and political realities. In another forceful submission Davis, lamenting that the “legal side of Hindu dharma has been lost” (which echoes my own lament in regard to the legal-jurisprudential side of the Mimamsa), has gone as far as to suggest that Hinduism at large could be viewed as ‘a Legal Tradition’; that its theology (perhaps we might correct it to ‘metaphysic’) lends itself in more ways than one to the

62

Donald Davis, Corporate Groups and Rulers paper, p 98 R; also cite paper in Journal of AAR. Ibid p 99; ‘meta-discourse’ is taken from Olivelle, 2004. 64 This is not to accord pre-eminence to the functionally autonomous power of legislations, though Davis is quite partial towards the legislative power of Hindu kings over and above the administrative governance via decrees and directives (rajasasana). 63

extraction of

65

Of course, some of us have been deeply concerned to free perceptions of

Hinduism as a religion overlaid with rituals, mythologies, sexo-tantric indulgences, and other remnants of Orientalist biases, and argue instead for its deeply ethical or moral philosophical basis (as those familiar with the project of Indian Ethics Classical and Contemporary Challenges would be aware). Law and ethics are intricately connected, as we also demonstrated in the chapter on Islamic Law - and Davis has indeed acknowledged as much. So our respective projects could be seen as complementary rather than at odds; either way, the immense intellectual fabric of the Hindu tradition, and its intermingling discourses of morality and prudence and ethics that finds a common denominator or connecting link in the limit concept of dharma, represented in the texts from the Upanishads to Yajnavalkyasmrti to various redactions in the Dharmasastras, cannot be more forcefully underscored. On the legal side, Davis’s approaches the thesis he puts forward through a deep exploration of the scholastic nuances of dharma, which he argues yields – besides its earlier ritualistic rules (vidhis, codana) - empirical sources for rules that differentiate ordinary acts (karma) from legal acts (karnatva, itikartavyata), and the “means for effecting”, the same (karakahetu). And this is the argument: “The concern for correct or proper procedure also takes into account the inevitability of mistakes, intentional or not, that might nullify a mortgage, unfairly distribute an inheritance, or make an ancestral rite ineffective. Dharma in Dharmasastra provides for both punishment (danda) and penances (prayascitta) that ameliorate or rectify legal mistakes or transgressions. Punishment and penance, although conceptually distinct, nevertheless overlap in, for example,

65

JAAR paper ‘Hinduism as a Legal Tradition’.; Davis acknowledges the ‘Mimamsa rhetoric’ on a par with Dharmasastra rhetoric as “the legal rhetoric”, around the concept of dharma, providing as it did the hermeneutic rules for proper interpretation of the Vedas, that compare to legal reasoning (p 255) See also Bilimoria, ‘Being and Text: Dialogic Fecundation of Western Hermeneutics and Hindu M¯ım¯am. s¯a in the Critical Era’ ’, in R. Sherma and A. Sharma (eds). Hermeneutics and Hindu Thought: Toward a Fusion of Horizons’, Dordreecht: Springer, 2007: 43-76

descriptions of thieves begging rulers for punishment (as a form of penance) or judges declaring both a punishment and a penance for adultery (Jolly 1928: 263-267)”.66 Davis’s is a refreshingly new voice in the debate and I believe, until shown otherwise by critics, it is rather more persuasive than any of the views considered above, and it supplements – some significant qualifications notwithstanding and incorporation of certain of Derrett, Lingat and Menski’s invaluable insights - the position towards which I have been moving in this chapter . Here, again, is an overview of Davis’s position, in his own, which is worth citing at some length both for its crispness and its elegance in summarizing the emergent theory of Hindu law based on methodological shifts in approaching the Dharmasastra texts and the historiography of law in India; pari pasu this thesis can be extended to and applied to the whole debate over the textual versus non-textual residually local customs and practices as basis of Hindu law. (Davis, unlike his Indological counterparts, comes to this not from a scholarly concern as such with Dharmasastras text specializing in a scholarly theology but from his substantive quest for a concept of Hindu law in or through the texts)67:

Recent efforts to the contrary notwithstanding, the historiography of law has been largely based on technical, often overly legalistic, readings of Dharmasastra or, at the other extreme, on village customs as collected and enumerated by British officials. The intermediate realms of law examined here have not been explored by scholars of Hindu law. At best, one encounters passing acknowledgements that the Dharmasastra recognizes the validity of rules governing corporate associations. The discussion of these corporate conventions in the SC [Smriticandrika] consists of a standardized digest of sastric ideas that provides 66 67

Ibid p 245 P 111-112.

thorough details regarding this title of law…. We may conclude that legal system on the ground in medieval India seem to have been influenced by a range of levels of law from the rules of Dharmasastra to the regional and community –based conventions of intermediate realm to special localized standards (Davis 1999: 162).

Admitting that the task of teasing out the various levels is hampered by the lack of adequate historical data and deficiencies in the available materials for study, Davis goes on to offer the following observations with which we close this chapter on Hindu law. Dharmasastra is a rhetoric of law, a “meta-discourse” in Olivelle’s phrase… Dharmasastras more closely resembles modern textbooks or training manuals that legal codes or legislation… Training in Dharmasastra led in the first place to a knowledge of how law operated in theory, i.e. a knowledge of theologically motivated jurisprudence , and only secondarily to a knowledge of what the law was, i.e. lawyer’s knowledge of substantive law. Part of the reason for this is the fact that substantive law and dharma itself derived its content from sources beyond the dictates of the sastra, namely the standards [normative ethos] of good people (sadacara) and personal preference (atmatusti). While its is likely that a significant proportion of rules in Dharmasastra had, at some place and time, a practical reality, that reality in most cases existed prior to the text, which “records” the law in particular way (Larivere 1997: 109). [68] To be sure, rules of Dharmasastra in textual form were actively inculcated in medieval India as well, but their impact had a greater influence on jurisprudence than on substantive law (Davis 1999: 197-9)…. [T]he texts by themselves would be insufficient to make a solid historical claim for the existence of intermediary realms of law in medieval India. It is here that epigraphy plays an essential role in providing datable,

68

Include from Davis’s reference; and also reference Davis 1999

geographically locatable, and equally detailed framework for understanding the role of corporate conventions. FOR INCORPORATION INTO PB’S CHAPTER 1 [MOVED FROM SPW’S CHAPTER 7]

Hindu law was functioning in much the same way as it had done for millennia, but unlike post-Enlightenment European law, it was not a centralised institutional apparatus, formulated and administered independently of spiritual practice. Rather, law was a concept inclusive of tradition, custom and religion, and represented a transcendent obedience to morality. Hindu justice is informed by three originating sources: shruti, the divine or revealed word which forms the central Vedic texts; smriti, the memorized word or tradition,69 which is handed down by the sages and forms Hinduism’s literary canon including, for example, the Mahabarata and Ramayana, and the Dharmasutras and Dharmasastras (or Smritishastras) which regulate Hindu society; and sadachara, meaning ‘good custom’. These three elements, founded upon both revelation and custom, underpin the central principle of Hindu life, dharma, which signifies: … the essential order of things, an integrity and harmony in the universe and the affairs of life that cannot be disturbed without causing chaos. Thus it means rightness, justice, goodness, purpose rather than chance.70

Dharma was understood to be ordained by an individual’s karma, that is:

69

Flavia Agnes, describes the smriti as ‘the memorized word’ (op.cit. p.12), while Robert Lingat’s seminal work The Classical Law of India, Oxford University Press (New Delhi), 1998, simply describes smriti (or smrti) as ‘tradition’, pp.7-8. 70 E. Easwaran, The Bhagavad Gita, Nilgiri Press, California, 1998, p.15

… the principle of action, effect and retribution for which time is not a constraint. Actions leave a psychic trace, called samskaras, in the person, which become triggers for later action, reaction, or habitual behaviour … 71

Hindu family law derives from the Smritishastras and was traditionally interpreted by smritikars who were not lawyers as perceived in the West, but philosophers and teachers who preached the dharma code of conduct. As the Smritishastras were based on the memorized word, generational adaptability was inherent in their interpretation and so, while essentially grounded by the smritis, the character of laws could evolve through customary, familial and social practice.72 In feudal times this legally fluid approach, which saw justice flow between the Vedic texts, smriti and sadachara (customary practice), formed the basis for what we now classify ‘Hindu’ society. This vast society spanning the subcontinent was made up of broadly diverse traditional, customary and familial compositions, further complicated by the intricate echelons of caste.

71

P. Bilimoria, ‘Self in Brahmanism: the Vedas and Upanishads’, The Self and its destiny in Hinduism, Deakin University (Geelong), 2000, p.31 72 This is an important point about the sometimes nebulous nature of Hindu law and, in terms of its influence on marriage, divorce and the status of women, its greatest impact is felt through inheritance and coparcenary rights. These are strongly resisted and contested areas of gender equity in family disputes.

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