Hindu law

Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. 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.
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, and emerged after the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" (Sharia).
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. 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. 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. 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’’. The concept of "Dharma" includes Hindu law.
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 "Nyasa" (Sanskrit: नियम, rule), "Nyasa" (न्याय, justice), "Yuktata" (युक्तता, justice), "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), "Vivadayati" (विवादयति, 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.
Classical Hindu law.
John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence. 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. 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. 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. 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". 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.
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). 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".
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".
Lawyers in classical Hindu Law.
While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have. The Sanskrit text "Vivadarnavasetu", in Chapter 3, for example, states,
Punishment in classical Hindu Law.
Ancient texts of the Hindu tradition formulate and articulate punishment. These texts from the last 2500 years, states Terence Day, imply or recognize key elements in their theories of fair punishment: (1) the texts set a standard of Right, in order to define a violation that warrants punishment; (2) they discuss the possibility of a violation thereby defining a wrongdoing; (3) they discuss a theory of responsibility and assignability of a wrongdoing; (4) the texts discuss degrees of guilt, and therewith the form and severity of punishment must match the transgression; (5) they discuss approved and authorized forms of punishments and how these may be properly administered. The goal of punishment, in Hindu law, has been retributive and reformative. Hindu law, states Sarkar, developed the theory of punishment from its foundational theory of what it believed was necessary for the prosperity of the individual and a collection of individuals, of state and non-state.
There are wide variations in the statement of crime and associated punishment in different texts. Some texts for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts.
Outside India.
Ancient Hindu legal texts and traditions arrived in parts of Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as trade grew and as part of a larger culture sharing in ancient Asia. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma and Thailand) as well as legal records embodied (as in India) in stone and copper-plate inscriptions.
Anglo-Hindu law.
As East India Company obtained political and administrative powers, in parts of India, in the late 18th century, it was faced with various state responsibilities such as legislative and judiciary functions. The East India Company desired a means to establish and maintain the rule of law, and property rights, in a stable political environment, to expedite trade, and with minimal expensive military engagement. To this end the Company pursued a path of least resistance, relying upon local intermediaries that were mostly Muslims and some Hindus in various Indian states. The British exercised power by avoiding interference and adapting to local law practices, as explained by the local intermediaries. The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century. The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,
For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa-i Alamgiri written under sponsorship of Aurangzeb. For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable. The British colonial officials, for practice, attempted to extract from the Dharmaśāstra the English categories of law and religion for the purposes of colonial administration.
The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from one Dharmaśāstra by British colonial government appointed scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri. It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis (Maulavis) for interpreting the Islamic law.
The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.
Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828-1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance. In 1832, the British colonial government abolished accepting religious fatwa as a source of law. In 1835, the British began creating a criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855. These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt against the British rule.
In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law. A universal criminal code in India, that did not discriminate between people based on their religion, was adopted for the first time in 1864. It was expanded to include a universal procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws. However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India. In 1872, the British crown enacted the Indian Christian Marriage Act which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.
The development of legal pluralism, that is separate law based on individual's religion, was controversial in India from the very start.
Modern Hindu law.
After the independence of India from the colonial rule of Britain in 1947, India adopted a new constitution in 1950. Most of the legal code from the colonial era continued as the law of the new nation, including the personal laws contained in Anglo-Hindu law for Hindus, Buddhists, Jains and Sikhs, the Anglo-Christian law for Christians, and the Anglo-Muslim law for Muslims. Article 44 of the 1950 Indian constitution mandates a uniform civil code, eliminating all religion-based civil laws including Hindu law, Christian law and Muslim law throughout the territory of India. While Hindu law has since been amended to be independent of ancient religious texts, Article 44 of the Indian constitution has remained largely ignored in matters of Muslim law by successive Indian governments since 1950.
An amendment to the constitution (42nd Amendment, 1976) formally inserted the word "secular" as a feature of the Indian republic. However, unlike the Western concept of secularism which separates religion and state, the concept of secularism in India means acceptance of religious laws as binding on the state, and equal participation of state in different religions.
Since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. This debate remains unresolved. The Quran-based Indian Muslim Personal Law (Shariat) Application Act of 1937 remains the law of the land of modern India for Indian Muslims, while the Parliamentary, non-religious uniform civil code passed in the mid-1950s applies to Indians who are Hindus (along with Buddhists, Jains, Sikhs and Parsees), as well as to Indian Christians and Jews. In 1955, India revised its Hindu Marriage Act and it applied to all Hindus, Buddhists, Jains and Sikhs; scholars contest whether the law applies to cases where either the husband or wife is Hindu, Buddhist, Jain or Sikh, and the other is a Christian or Muslim.
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