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Law and “Law Books” in the Hindu Tradition

Published online by Cambridge University Press:  06 March 2019

Donald R. Davis Jr.

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It is by now common knowledge that British colonialism in India transformed or invented many Indian institutions and traditions. Questions of how the transformation occurred, of the extent of Indians’ participation in the changes, and of how to measure the scope of the transformation are all still very much in scholarly debate. The area of law has recently become a productive intellectual site for historians interested in describing the transformative effects of colonial governance. Few of these studies, however, are informed by more than a superficial knowledge of classical and medieval legal traditions in India.

Type
Research Article
Information
German Law Journal , Volume 9 , Issue 3: A Special Issue on India , 01 March 2008 , pp. 309 - 325
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 For books containing excellent accounts of various aspects of colonialism and cultural change in India, especially with reference to transformations of law, see Bernard S. Cohn, An Anthropologist among the Historians and Other Essays (1988); Bernard S. Cohn, Colonialism and Its Forms of Knowledge: the British in India (1996). For materials providing useful studies of colonial impact on law in India, see Richard Samaurez Smith, Rule by Records: Land Registration and Village Custom in Early British Panjab (1996); Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (1998); Indrani Chatterjee, Gender, Slavery, and Law in Colonial India (1999).Google Scholar

2 To understand how, in the recent debates over the proper definition of Hinduism, this once uncontroversial statement has received considerable scrutiny, see Rao, V. Narayana, Purāna, in The Hindu World 97, 104 (Sushil Mittal and Gene Thursby eds., 2004); S. Caldwell & B.K. Smith eds., Who Speaks for Hinduism?, 68 Journal of the American Academy of Religion (special issue) 705 (2000). Rao argues justifiably, for example, that the Pur” “as, books of “ancient” mythology, cosmology, and ritual dating from the early centuries A.D., are a better starting point for accessing the historical roots of contemporary Hinduism. She states, “The worldviews that are most characteristic of Hindus are almost completely derived from the teachings of the Pur” “as.” To better understand why the Vedas serve as the starting point for jurisprudential reflection on the law and legal history in India, see Stephanie Jamison, The Ravenous Hyenas and the Wounded Sun: Myth and Ritual in Ancient India 7-26 (1991) (for an informative synopsis of the śruti or Vedic literature and its associated rituals). It is also worth noting that, despite the etymological meaning of śruti, classical Hindu texts usually speak of revelation as something that was “seen” by the ancient sages, not “heard.” For a discussion on this last point, see Thomas Coburn, “Scripture” in India: Towards a Typology of the Word in Hindu Life, in Rethinking Scripture: Essays from a Comparative Perspective 102, 106 (Miriam Levering ed., 1989).Google Scholar

3 See 2.10, Manu's Code of Law: a Critical Edition and Translation of the Mànava-Dharmaśāstra (Patrick Olivelle ed., 2005).Google Scholar

4 Robert Lingat, The Classical Law of India 8 (1973). See also Ludo Rocher, Hindu Conceptions of Law, 29 Hastings Law Journal 1284, 1293, n.6 (1978).Google Scholar

5 For a fascinating diatribe against the standard designation of Dharmaśāstra as legal literature (Rechtsliteratur), see J.J. Meyer, Über das Wesen der altindischen Rechtsschriften und ihr Verhältnis zu einander und zu Kau⃛ilya (1927). Meyer insists that Dharmaśāstra texts are “Zauberbücher” by which term Meyer seems to mean something close to a sacred text generally. I only recently discovered that on pages 36-39, Meyer also emphasizes that ācāra, or local law, and the law of corporate groups were much more important to the practical law of early India than the rules of Dharmaśāstra. This argument is one I have repeated in other work, albeit rather differently, while failing to notice Meyer's contributions.Google Scholar

6 See 2.6, Manu's code of law, supra note 3.Google Scholar

7 See Manu's code of law, supra note 3, at 19–25 (providing the full details of the problems related to dating this and other ancient Sanskrit texts).Google Scholar

8 For commentary regarding how the tradition of Arthaśāstra was early on co-opted by the Dharmaśāstra tradition and how the usual subject matter of Arthaśāstra, the dharma of rulers (rājadharma) was first incorporated into the Mānava-Dharmaśāstra, see Manu's code of law, supra note 3, at 46–50. Though it is difficult because of its contents to consider the Arthaśāstra a sacred text of the Hindu tradition, it is an important text for the history of law in India because the Arthaśāstra tradition introduced important innovations into the juriprudence of Hinduism, most notably the eighteen titles of law. In this essay, the Arthaśāstra tradition will be implicit in its appropriated form in the discussions of Dharmaśāstra.Google Scholar

9 For a classic discussion of caste and hierarchy, see Louis Dumont, Homo Hierarchicus: The Caste System and its Implications (1980).Google Scholar

10 See Albrecht Wezler, Dharma in the Veda and the Dharmaśāstras, 32 Journal of Indian Philosophy 629, 629–54 (2004).Google Scholar

11 For a technical discussion of Hindu legal reasoning, including the technique of “establishing the scope” (viṣayavyavasthā), see Davis, Donald R., Jr., Maxims and Precedent in Classical Hindu Law, 33 Indologica Taurinensia 33 (2007).Google Scholar

12 See Lariviere, Richard W., Dharmaśāstra, Custom, “Real Law”, and “Apocryphal” Smṛtis, 32 Journal of Indian Philosophy 611, 611–622 (2004); Wezler, supra note 10.Google Scholar

13 See Manu's code of law, supra note 3, at 62.Google Scholar

14 See Donald R. Davis, Jr., The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala (2004).Google Scholar

15 See Wilfred Cantwell Smith, What is Scripture? A Comparative Approach 142–43 (1993).Google Scholar

16 Another source of dharma, ātmatuṣṭi “what pleases oneself,” is listed in Mānava-Dharmaśāstra 2.6 and Yājñavalkyasmṛti 1.7. This source of dharma never receives much elaboration or examination in the dharma texts. See Manu's code of law, supra note 3, at 244 (for an different understanding than my own of how this source of dharma is closer to “personal preference” than “individual conscience.”). Also, consider the following description from the Mitākṣarā of Vijñāneśvara (Yājñavalkyasmṛti 1.7): “What pleases oneself (is a source of dharma) in matters of technical option such as ‘one should perform the initiation rite in the eighth year from conception or in the eighth year from birth,’ in which one's preference (ātmecchā) is determinative”. Vijñāneśvara confirms that a clear hierarchy exists between the various sources of dharma: “in cases of conflict between these (sources) the earlier mentioned is stronger.”Google Scholar

17 Following this line of thought, see Davis, supra note 14, at 11–18 (for a description and definition of Hindu law in practice in medieval Kerala). It is imperative to recognize here that not all legal systems in classical and medieval India were Hindu, at least in the sense that I use the term. Only legal systems that were influenced by the norms, jurisprudence, and institutions of Dharmaśāstra can reasonably be called Hindu. Many local legal systems in early India may not have been influenced by Dharmaśāstra in this way. Only sustained historical research on India's legal history can determine the extent and nature of Hindu law in practice.Google Scholar

18 See Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (2003) (for an alternate, excellent description of local law in the sixteenth century court of Aintab in Ottoman Anatolia). Peirce's nuanced study demonstrates in great detail the ways in which Islamic shari'a and Ottoman imperial laws were locally interpreted and concretized in the resolution of disputes and the transaction of legal affairs. The case serves as an instructive parallel on which to draw for imagining the practical life of Hindu law in classical and medieval India.Google Scholar

19 For discussions of what little is known about the practical side of law in classical and medieval India, see J.D.M. Derrett, Religion, Law, and the State in India 171–224 (1968); Ingo Strauch, Die Lekhapaddhati-Lekhapañcāśikā: Briefe und Urkunden im mittelalterlichen Gujarat (2002); Donald R. Davis, Jr., Intermediate Realms of Law: Corporate Groups and Rulers in Medieval India, 48 Journal of the Economic and Social History of the Orient 92, 92–117 (2005).Google Scholar

20 See Ludo Rocher, Law Books in an Oral Culture: The Indian Dharmaśāstras, 137 Proceedings of the American Philosophical Society 254, 254–267 (1993).Google Scholar

21 Legal categories, reasoning, and rules are to be found in Hinduism's sacred texts, including the Vedas, Mīmāṃsā (to be discussed in some detail below), the epic texts Rāmāyaṇa and Mahābhārata, and the Purāṇas. The interpenetration of religion and law in Hinduism is very deep. The investigation of Hinduism from a legal perspective would greatly enhance the tradition's presentations, which typically remain otherworldly. For a discussion of the relevance of law to Hinduism from the perspective of religious studies, see Donald R. Davis, Jr., Hinduism as a Legal Tradition, 75 Journal of the American Academy of Religion 241 (2007).Google Scholar

22 See Patrick Olivelle, The Āśrama System: The History and Hermeneutics of a Religious Institution (1993).Google Scholar

23 For a thorough treatment of the use of Mīmāṃsā in Dharmaśāstra, see P.V. Kane, 5 History of Dharmaśāstra 1152 (1962–75).Google Scholar

24 See Rebecca French, The Golden Yoke: the Legal Cosmology of Buddhist Tibet (1995) (for a treatment of legal cosmology). I employ the idea of legal cosmology in the sense described by French. The cosmological frame of legal systems acts in a manner parallel to the paradigms of science described by Kuhn or the “sacred canopy” of Berger.Google Scholar

25 See Davis, Donald R., Jr., A Realist View of Hindu Law, 19 Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 287 (2006).Google Scholar

26 See Hans-Georg Gadamer, Truth and Method 301 (1989).Google Scholar

27 For discussions of the problematic category of “custom” and “customary law,” see Martin Chanock, Law, Custom, and Social Order: The Colonial Ex-perience in Malawi and Zambia (1983); Sally Falk Moore, Social Facts & Fabrications: “Customary” law on Kilimanjaro, 1880-1980 (1986); Clifford Geertz, Local Knowledge: Fact and Law in Comparative Perspective, in Local Knowledge: Further Essays in Interpretive Anthropology 167, 167–234 (1983); Sally Engle Merry, Law and Colonialism, 25 Law & Society Review 889 (1991).Google Scholar

27 See, supra note 27.Google Scholar

28 J.H. Nelson, A View of Hindu Law as Administered by the High Court of Judicature at Madras 2 (1877).Google Scholar

29 See Brian Pennington, Was Hinduism Invented? Britons, Indians, and the Colonial Construction of Religion (2005).Google Scholar

30 See Gluckman, Max, Concepts in the Comparative Study of Tribal Law, in Law in Culture and Society 349 (Laura Nader ed., 1969) (reviewing the debate between Max Gluckman and Paul Bohannan on the question of folk versus analytic categories in the description of African legal systems, which dominated legal anthropology for a time, but without much lasting effect).Google Scholar

31 See S.N. Balagangadhara, “The Heathen in his Blindness …”: Asia, the West, and the Dynamic of Religion (1994) (for a provocative, yet difficult work on the intractable connections of the term “religion” to particular institutional forms in Christianity).Google Scholar

32 See Emile Durkheim & Marcel Mauss, Primitive Classification (1963) (for their attempt long ago to show the continuities between “primitive classification” and modern science and the connection of both with social forms). The notion that science is the industrialized, First World societies’ preserve is still commonplace.Google Scholar

33 See Derrett, supra note 19; Marc Galanter, Law and Society in Modern India (1989); M.P. Jain, Outlines of Indian Legal History 590 (1990); Ludo Rocher, Indian Response to Anglo-Hindu Law, 92 Journal of the American Oriental Society 419, 419–24 (1972); David A. Washbrook, Law, State, and Agrarian Society in Colonial India, 15 Modern Asian Studies 649, 649–721 (1981); Richard W. Lariviere, Justices and Pa itas: Some Ironies in Contemporary Readings of the Hindu Legal Past, 48 Journal of Asian Studies 757, 757–69 (1989); Rajeev Dhavan, Dharmasastra and Modern Indian Society: A Preliminary Exploration, 34 Journal of the Indian Law Institute 515, 515–40 (1992).Google Scholar

34 See Lariviere, supra note 34, at 759.Google Scholar

35 See Werner F. Menski, Hindu Law: Beyond Tradition and Modernity (2003); C.J. Fuller, Hinduism and Scriptural Authority in Modern Indian Law, 30 Comparative Studies in Society and History 225, 225–48 (1988). Menski makes a complicated and sweeping argument concerning the largely “unofficial” nature of Hindu law in all historical periods, including today. From this position, Menski suggests that Hindu law persists, even flourishes, in India today, separately from and in spite of its partial state-level codification as system of personal laws. Menski's principal contribution has been to emphasize the fact of legal pluralism in the history of Hindu law, especially the manner in which Hindu law has operated without reliance on governmental or state-based administration. See Donald R. Davis, Jr., Traditional Hindu Law in the Guise of “Postmodernism”: A Review Article, 25 Michigan Journal of International Law 735, 735–49 (2004) (for my description of how Menski's argument, in both its details and general conclusions, is very problematic).Google Scholar

36 It is worth noting here that a distinction is usually made between the Anglo-Hindu legal system during the British Raj and the modern Hindu law, more or less fixed by the series of Hindu Code bills in the mid-1950s. Following Fuller, I will concentrate on the use of sacred texts in the modern Hindu law of India.Google Scholar

37 See J.D.M. Derrett, Hindu Law Past & Present (1957).Google Scholar

38 See J.D.M. Derrett, Introduction to Modern Hindu Law 6 (1963).Google Scholar

39 See Lariviere, supra note 34, at 763–64.Google Scholar

40 See Derrett, supra note 19, at 250.Google Scholar

41 In this context, I must mention the fact that exceptional British and Indian judges in the nineteenth and twentieth centuries, owing to their deep knowledge of Sanskrit and Mīmā sā, did occasionally offer brilliant traditional interpretations on points of Hindu law. Such capacities (i.e. mastery of two legal systems at once) were rare, however, and, in all fairness, could hardly be expected of most judicial appointees.Google Scholar

42 See (1972) 3 S.C.R. 815.Google Scholar

43 See A.I.R. 1958 S.C. 255.Google Scholar

44 See A.I.R. 1966 S.C. 1119.Google Scholar

45 Fuller, supra note 36, at 234.Google Scholar

46 See, supra note 45, at 241, 246.Google Scholar

47 See, supra note 45, at 226, 247 (invoking Dharmaśāstra explicitly in claiming a similarity between past and present notions of “scriptural authority”).Google Scholar

48 For a discussion on this underappreciated point, which has been made repeatedly in the works of Ludo Rocher and Patrick Olivelle, see, e.g., Mānu's code of law, supra note 3, at 64–65.Google Scholar

49 See Gadamer, supra note 26, at 324–41 (discussing with great insight this problem of drawing too sharp of a division).Google Scholar

50 See Lariviere, supra note 34, at 764.Google Scholar

51 See Ganeri, Jonardon, The Ritual Roots of Moral Reason, in Thinking Through Rituals: Philosophical Perspectives 207–33 (K. Schilbrack ed., 2004) (for an example of one of Ganeri's writings on “case-based reasoning” in Indian philosophy).Google Scholar

52 See I.L.R. 41 (Mad.) 44 (containing the Subramaniam v. Ratnavelu decision).Google Scholar

53 See A.S. Nataraja Ayyar, Mīmā sā Jurisprudence 77–81 (1952).Google Scholar

54 For a more plausible comparison of Mīmāṃsā and modern legal reasoning, see Francis X. Clooney, Thinking Ritually: Rediscovering the Pūrva Mīmāṃsā of Jaimini 88–93 (1990).Google Scholar

55 See Kane, supra note 23, at 1321–24 (for a thorough discussion of atideśa).Google Scholar

56 See Fuller, supra note 37, at 236.Google Scholar

57 See Dhavan, supra note 34.Google Scholar

58 See Leela Prasad, Poetics of Conduct: Oral Narrative and Moral Being in a South Indian Town (2006).Google Scholar