Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India.[1] [2] 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 and began three thousand years ago whose original sources were the Hindu texts.[3]
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,[4] and emerged after the colonial rule arrived in Indian Subcontinent, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" (Sharia).[5] [6]
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.[5] [7] 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.[8] 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.[9] 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".
See main article: Dharma. 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'’.[10] [11] The concept of Dharma includes Hindu law.[12]
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:
In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule), Nyaya (न्याय, justice), Yuktata (युक्तता, justice),[13] 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),[14] Vivadayati (विवादयति,[15] 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.[5] [16] [17]
See main article: Classical Hindu law. John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence.[18] 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.[18]
Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex.[5] 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).[5] [6] [19] 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.[5]
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.[20] [21] 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.[22] 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.[18] [23] 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".[23] [24] 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.[23]
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."[25]
In South India, temples were intimately involved in the administration of law.[26]
See also: 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).[27] 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,