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Please find below an article written by Rishi Handa a PhD student
at SOAS
Hindu Law: threat, imagination or reality
- a preface to the NHSF lecture delivered by Dr Werner Menski
(SOAS)
Today, Hindu Law finds itself in a precarious situation. On
the one hand, those, more so perhaps well-to-do Hindus, who
see the adoption of western culture in place of traditional
ideas as a sign of progressiveness, view Hindu law as an entity
to be dismissed, not least because it appears 'backward' and
reflects badly on them. In other words, they are somehow embarrassed,
but why? Diasporic Hindu groups of this nature may take a more
light-hearted attitude of jaisa desh vaisa bhesh, the Hindi
equivalent of 'when in Rome do as the Romans do'. Modernist
Hindus, however, in their attempt to stay away from the past,
fear those at the other end of the spectrum: groups who have
a more religio-political agenda to return back to a 'Hinduised'
India away from the 'adharmic' lifestyle of the west, where
society functions on and is governed by traditional precepts
as presented in the ancient Sanskrit texts.
All of these attitudes exist, but what sense do we make of them?
The lecture examines the nature of our understandings of law
and more specifically interrogates the Hindu legal system and
the interpretations by Hindus of their own law. One often finds
in today's modernist society a very simplistic understanding
of legal concepts, thanks to western education and cultural
influence. Law as the job of the lawyers and its place in courtrooms
and the smallprint of books, journals and contracts is the image
we are fed through television and other media. Looking at Hindu
law, we also have to consider the impact of Asian television
and other media. But is this the be all and end all of law,
to remain as putty in the hands of judges and lawyers, and for
the remainder of us to have no involvement? Social reality shows
us a different picture which the Hindu system explicitly illustrates,
even though Hindus amongst
others see their law as enshrined in texts like the Manusmrti
or Vidhuraniti. The reasons for this are examined in the lecture.
In order to understand the nature of Hindu law, its concept
and function, we must take ourselves back to early Hindu civilisation.
The primary sources of information we have in this enquiry of
Hindu law are the ancient Sanskrit texts, we cannot interview
the rishis any more. So all we are able to ascertain from these
works are the attitudes, ideas and concepts floating around
in the minds of textualists at various times in the distant
past. From a legal point of view, what is understood from the
Veda, the most ancient of the world's literature, is the way
in which Vedic Indians perceived the universe and the individual's
place in it. From a natural law perspective, having observed
regularities in nature [the archetypes and manifestations of
its forces defied as devas], the ancients assumed an Ordered
universe interlinked together by seen and unseen forces. While
it was believed that the macrocosmic Order (rta) simply existed
[a phenomenon shared by all old civilisations, it seems], the
early Vedic Indians sought ways to influence it. In attempting
to do so, using the media of yajna (fire sacrifice) and Vedic
mantras, the ritual specialists addressed the devas (themselves
servants of rta but never above it), for assistance. The intention
was to connect with the macrocosmic Order using the science
of ritual to link the spheres of nature with the human realm,
promoting an attitude of better to flow 'with it' than counter
it. While rich inquiries into the basic nature of the phenomenal
and manifest universe are reflected in the Upanishads, not itself
directly relevant to legal studies, these are instrumental to
the development of Hindu Law. The conclusions of some Upanishadic
thinkers, that the universal Self or Brahman is identical to
the individual self or Atman, shifted the focus from the macrocosm
to the microcosm, where the individual became the centre of
attention. Over time, the focus was no longer so much on macrocosmic
Order or rta, and thus on the job of specialists to influence
the Order, but shifted to microcosmic order or Dharma and each
individual's duty (dharma) to contribute to that order by doing
the 'right' thing. At this historical stage, ancient textualists
idealised a system of self-controlled order by advising, through
dharmashastric literature, certain ways of living and dealing
with situations according to the writers' own opinions, where
everyone would execute their dharma resulting in an ordered
society. But social reality is not such a Utopia, and the classical
Indian writers learned this very quickly. The dharmashastras
developed the concept of danda, implying assisted self-controlled
order using the stick, proverbial for punishment or even the
threat of it, in order to strengthen Dharma. The idea was that
the individual would be reminded to carry out his or her dharma
using the threat of punishment as a deterrent for transgressing
Dharma. If any disputes rose, the individuals would never resort
to the king as their first port of call; his job was simply
to wield the stick of deterrence, not to dictate any state law.
The people, through vyavahara or systems of dispute settlement,
were expected to resolve the issue themselves, gradually going
to higher authorities such as families, village panchayatas,
and others before finally going to the ruler at the last stage
if the dispute could not be settled lower down the hierarchy.
The ruler's duty or rajadharma was not to resolve the dispute
in accordance with any of his own prescriptive laws, but to
achieve justice by resorting to Dharma depending on the customs
and duties of the individuals involved. The intrinsic nature
of traditional Hindu law, thus, did not privilege that state
as a maker of laws, and thus Hindu law represents a very different
system of law from those standard models of 'the West'.
The British, arriving on an Indian scene which to them remained
full of confusions, at first tried to apply the existing Hindu
law to Hindus, but eventually decided to create their own system
of Hindu law. The lecture shows how this process developed over
time, resulting in an artificial reconstruction of Hindu law
by outsiders which came to be called Anglo-Hindu law. Through
the results of legal cases, the British set precedents and thus
turned Hindu law into a positivistic written system of case
law. We know today that in doing so they relied on the assumption
that Hindu law was found in codes, the dharmashastras. But how
could they apply these texts? They all said different things
about the same issue, which was hardly surprising given the
differing authors and times and places of composition. The decision
was made to employ pandits learned in shastric literature to
advise judges how to decide cases. However, in a typically Hindu
law manner, not only did the pandits disagree, but the precedent
from a previously established case was not being applied to
new cases, that is to say that the pandits were giving different
advice in every case. For them, each case was unique and to
be judged on its own merit, and it confused the British even
more. The British then attempted to write their own digests
on Hindu law, an endeavour which also failed in practice.
The British over the nineteenth and early part of the twentieth
century then began to legislate by interfering in the Hindu
personal law in order to deal with what they saw as social evils.
Also after independence, the state continued to legislate but
in reality could never supersede the customary law of the people
as much as it tried to assert that it could. In recent years
there have been attempts in certain states of India to abolish
Hindu personal law, in order to create a secular Indian law,
uniform and usable for all. Even the Indian Supreme Court repeatedly
demanded a Uniform Civil Code Bill. However, the government
refused to act and the future of Hindu law as the major personal
law of India has been assured. Earlier this year, the events
in Gujarat have led the Indian Supreme Court to criticise the
abuses of modern state law when the legal process failed to
bring individuals to justice, instructing the Gujarat state,
as the ruler, to return to and execute rajadharma in order to
counter lawlessness.
After a summarised historical analysis, what do we need to understand
about Hindu Law in today's world? While those of a positivist
inclination may still think that ancient Sanskrit writers developed
a system of written law for Hindus, what has actually happened
in the history is quite different. From day one, society lived
in accordance with the customs of their village, clan, tribe,
family, varna, jati, ashrama etc. which were always in a state
of flux through constant negotiations and dispute settlements.
Even when kings arrived on the Indian scene, they employed rajadharma
as an aspect of Dharma; they did not legislate. The Hindu texts
are, therefore, simply put, observances and suggestions of their
authors and not legislation. Not only do these shastras acknowledge
custom as a legitimate source of law, they even go as far as
to propose a rejection of any shastric injunction if it goes
against custom. Thus, while the shastra may have had some influence
on certain strata of society, it cannot be seen to have ever
been followed 'to the letter' by most Hindus. Societal customs
played a fundamental role as the main source of Hindu law.
In a postmodern age, India is beginning to rediscover such basic
truths and is gradually abandoning its reliance on Western laws
and concepts. Even the western world is looking eastwards at
traditional legal concepts, questioning concepts such as positive
law, acknowledging that cases are to be seen as context-specific
and should be judged on their own merits.
Rishi Handa
(PhD student, SOAS) |
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