Law and Religion: Law and Religion in Hinduism
LAW AND RELIGION: LAW AND RELIGION IN HINDUISM
The distinction between law and religion is one that does not exist in classical Hindu thought. Instead, both law and religion are parts of the single concept known as dharma. This fact is the key to understanding the legal system of classical India and its eventual acceptance and adaptation in Southeast Asia. Dharma, the basis for the legal system, is a system of natural laws in which specific rules are derived from an ideal, moral, and eternal order of the universe. The fact that the laws are based on this eternal order is their source of validation and authority. In classical Hindu society, the rights and responsibilities of an individual were determined by status. In general, the role and place of women were of marginal concern in the legal texts. The texts were composed by men, and they deal with matters of concern to all. In addition to gender, the determiners of one's status are caste (varṇa or jāti ), stage of life (āśrama ), age, and so forth. Every caste, age group within that caste, and stage of life has certain generic responsibilities that must be fulfilled (varṇāśramadharma ). The king was charged with the responsibility of seeing to it that the populace adhered to its dharma, but this charge of the king's was itself a part of his dharma, so it is difficult to distinguish between the political, legal, and religious aspects of the South Asian legal tradition.
Sources of Dharma
The pervasive idea of dharma influences all aspects of a Hindu's life. It is a natural and moral order, and its disturbance has grave consequences for individuals and society. In theory, at least, every act of every Hindu's life should be done in accordance with this natural and moral order, so a righteous person would wish to perform every act in accordance with dharma. There are four sources of dharma enumerated in the legal literature (see, for example, Manu 2.12 and 1.108): the Veda (śruti, sometimes translated as "revelation"), smṛti, custom (i.e., sadācāra ; literally, "the practice of the good"), and whatever seems correct to one's conscience (ātmatuṣṭi ). The Veda is the ultimate source; all of the statements concerning dharma are theoretically traceable to the Veda. Both smṛti and custom are, according to the commentators, dependent on the Veda, in that the practices described in smṛti and followed in the customs of various groups and localities can all be traced, at least theoretically, to the Veda. The last source of dharma— whatever seems correct to one's conscience—is the most vague and least discussed, but it seems to have been included to cover those circumstances where no specific rule exists. In this last case it is presumed that the individual in question is one who has been instructed in dharma and is familiar with the sacred tradition. In all four of these cases, the connection with the Veda is the validation of their teachings on dharma.
The enormous corpus of Sanskrit literature called smṛti ("what has been remembered") attempted to teach the rules for conducting a righteous life. The ways in which this literature taught dharma, that is, taught righteousness as reflected in the conduct of one's life, varied considerably. One subcategory of smṛti, the Purāṇas, is made up of narrative texts that relate mythological stories focused on the incarnations of various gods. The great epics of India, the Mahābhārata and the Rāmāyaṇa, constitute another branch of smṛti literature and contain large amounts of didactic teaching. These two genres are designed to convey dharma by the examples of the characters in their stories.
A much more technically and strictly "legal" literature that constitutes a subcategory of smṛti is the Dharmaśāstra, or literally, the "science of dharma." These Dharmaśāstra texts are all presumed by Hindus to teach the eternal and immutable dharma contained in the Vedas. The presumption of these texts was that the reader was familiar with the ritual texts and was a practitioner of the Vedic ritual. It was the purpose of the literature on dharma to unify the Hindu's world. This was done by enabling the members of society to harmonize their existence with the universal order. The range of topics in this literature is extensive, and includes: rules on the conduct of daily life including diet, cleanliness, times for sleeping and waking, the selection of mates, criminal laws, rules governing social interaction, relations between castes, sexual norms, laws of commerce, and rules relating to agricultural activity. In addition there is detailed treatment of the rules of procedure and of evidence. The latter includes witnesses, documents, and a sophisticated treatment of the use of ordeals to settle disputes.
Precisely because this literature dealt with dharma, its rules and regulations were held to be inviolable: the fact that dharma is itself the order of the universe validates rules pertaining to it. In an ideal sense the literature on dharma served to define who and what a righteous believer in the Veda was. The Dharmaśāstra literature comprises four types: (1) the earliest, aphoristic texts, the Dharmasūtras, each of which are attributed pseudonymously to a famous sage of antiquity; (2) later metrical texts, also pseudonymous, often referred to by the term "metrical smṛtis " and (somewhat confusingly) when in opposition to the Dharmasūtras by the term dharmaśāstra ; (3) commentaries (bhāṣyas ) on both of the preceding; and (4) legal "digests" called nibandhas.
The earlier texts, the Dharmasūtras, were taught as part of the literature of a particular Vedic school (caraṇa ), whereas the later texts, the metrical smṛtis, were not connected with any particular school. This fact indicates that the study of dharma had become much broader and more specialized than it was at the time of the Dharmasūtras. The dharma literature is often very difficult to date (for the earlier texts, especially, only tentative relative chronologies may be established), but the extant texts probably range in date from the fourth century bce to the late eighteenth century ce. It is in this body of literature that we find the most explicit descriptions of the legal system of classical India. The most authoritative of these explicitly legal writings is the earliest metrical smṛti, the Mānava Dharmaśāstra or Manusmṛti (c. 100 bce–100 ce, hereinafter "Manu "), which is attributed to the semidivine mythical figure Manu Svayambhu.
Principles of Righteousness
Both the Dharmasūtras and the metrical smṛtis claim to be the teachings of great sages who have made dharma known to humankind. The rules contained in these texts are specific statements of the principles of righteousness (dharma ) and world order (ṛta ) that are taught in the Veda. While the Veda is the theoretical source for all of the law contained in the smṛti literature, very little of what is contained in Vedic literature could itself be called "law." The exact way in which specific laws are derived from the largely ritual, sacerdotal literature of the Vedas is never made clear; therefore, the connection between the Vedas and smṛti is not obvious except for their shared theoretical concern for dharma. The test of the orthodoxy of any smṛti or interpretation of smṛti was its acceptance in practice by the educated and righteous men of the community. This is most probably the real connection between the Vedas and the dharma literature—the dharma literature records the practice of those steeped in the teachings of the Veda.
Acceptance of a rule did not always mean that its purpose was clearly understood by the educated and righteous men of the community. Indeed, the very obscurity of the reason for some rules is an important interpretative device. Since dharma is not "visible" or apparent to ordinary human beings, and since the smṛti literature teaches dharma, whenever there is "no visible purpose" (adṛṣṭārtha ) for a rule, then that rule is of greater importance than a rule for which there is an obvious purpose (dṛṣṭārtha ). Rules with an obvious purpose relate to the realm of the practical (artha ) or that of the pleasant (kāma ) and are therefore of less consequence to the metaphysical well-being of a person than rules that relate to dharma. For example, the metrical smṛti of the sage Yājñavalkya (at 1.352) states that the king should strive to make friends because friends are worth more than material possessions. This is a rule with an obvious purpose—the welfare of the king. The same text (at 2.1) later states that the king must administer his judicial court impartially and according to Dharmaśāstra. The purpose of this rule is not apparent (adṛṣṭārtha ), except that to fulfill this rule is to engage in righteous behavior (dharma ); thus, it is a rule which is more compelling than the earlier one advising the king to make friends. The sum of these rules, then, is that the king is not allowed to use his position as administrator of justice to cultivate friends. Indeed, when he is in court, he must be equally impartial to both friends and enemies (Yājñavalkasmṛti 2.2 ). This principle of the superiority of rules relating to dharma is stated explicitly in several places in the smṛti literature (see, for example, Yājñavalkyasmṛti 2.1).
D harma and "Law"
It is important to make a distinction between the rules contained in the smṛti literature and what we might call "the law of the land." In general, we have such limited evidence for daily practice that we cannot say with much certainty what the actual law was in a given place in the subcontinent at a given moment in history. What we can say is that the Dharmaśāstras and the Dharmasūtras record the foundation on which the legal system was based. The level of technical sophistication of the Dharmaśāstra was considerable, and it seems unavoidable that the adjective law found in the texts was born of a long process of actual practice that resulted in the elaborate legal procedure described there. (The quintessential text on legal procedure is the Nāradasmṛti.) Dharmaśāstra represents real legal principles. Even though the record of these legal principles is refracted through the lenses of the priestly class who recorded and interpreted it, Dharmaśāstra is of great value in reconstructing the history of Indian society because these texts tell us how—if not where and when—people actually lived.
The commentators and digest writers (and to some extent the texts themselves) tell us that local custom was of overriding authority. This means that the Dharmaśāstras and the Dharmasūtras were not uniformly statements of substantive law as actually applied; rather, they may be viewed as theoretical guidelines that conveyed in specific statements the ways that members of society might adhere to dharma. The actual implementation of these guidelines was fragmentary and localized. Local custom played a significant part in these variations. The Dharmasūtras and the Dharmaśāstras explicitly provide for variations in local custom and also indicate that these local customs are valid sources for knowledge of dharma. There was no concern for precedent, and although the decisions of courts were recorded, the records, as far as we known, were then usually given to the litigants themselves, who were responsible for the maintenance of the documents of their respective trials.
The fragmentary nature of the administration of the Hindu legal system was in part a function of the fact that there was no centralized legal hierarchy that had the capacity to uniformly enforce "the law." The king had appellate jurisdiction, and there were very few matters that he could prosecute on his own initiative without first having had a case brought to him by a plaintiff. The purpose of the entire legal system was not so much to deliver justice as it was to ensure that the entire populace adhered to the duties and obligations of dharma. The administration of law courts and the enforcement of "law" was not a purely political matter (although it had a political dimension); it was a religious concern. The fact that there is no central ecclesiastical authority in the Hindu tradition also contributed to the fragmentariness of the development of this legal tradition. This fragmentary and localized administration was also a result of the idea that every individual has a unique dharma and therefore a unique set of responsibilities. Accordingly the circumstances of every case would be unique, there would be no reason to record for reference the previous deliberations of a court.
Enforcement of the Law
The validation of the "laws" in this system was to be found in the religious belief that the world is organized according to the natural and moral order of dharma. The enforcement of the laws was primarily the responsibility of the king, who was viewed as semidivine (see Manu 7.4–5), and this semidivine nature legitimized his temporal power. Within this natural and moral universal order, any polity without a king was one that suffered calamities; thus, the monarchy was essential to the well-being of the people. The reason that a polity without a king suffered calamities is that the primary task of the king was to protect his subjects. The most important part of his protection was seeing to it that dharma was adhered to by all of his subjects. Therefore, the king was the punisher of violators of dharma and the ultimate guarantor that dharma was adhered to in his kingdom. The Mahābhārata, for example, states in several places that the king's dharma is the culmination and sum of all other dharmas. His court was the court of final jurisdiction. There was no appeal from a judgment of the king's court. The king himself was the judge, but he was also urged to appoint a number of experts in Dharmaśāstra (preferably brāhmaṇas ) to serve as judges in his court. One of these could be appointed the chief judge, and this judge would preside in the king's absence. Even though he has the assistance of these experts, and even though he could appoint them to serve in his absence, the king was still ultimately responsible for the adherence to dharma ; if there were wrong judgments handed down by his court, the judges were liable to punishment, but so was the king.
Though the king was seen as semidivine—he is even addressed as deva (god) in Sanskrit drama—there was no real idea of the "divine right of kings." To be sure, the monarch was endowed with extraordinary powers, but the literature contains references to kings who were dethroned for their failure to adhere to their own dharma or who had failed to see to it that others did so. The smṛti literature recognized this as a legitimate response of the people to an unrighteous king. A related genre of Sanskrit technical literature, the arthaśāstra, is intended as a handbook for governance. Whereas the focus of the arthaśāstra literature is matters of concern specifically to the king (as opposed to other members of society): his training, conduct of war, foreign policy, intelligence, policing, and administrative organization, there is a detailed treatment of the administration of justice. The arthśāstra passages parallel similar treatments of judicial procedure in the Dharmaśāstra literature.
The concept of punishment was closely tied to the concept of penance. Any violation of dharma means that the violator incurred sin. To expunge this sin it was necessary to undergo some penance. The punishment meted out for a crime was thus viewed as purifying (Manu 8.318). It was also possible to mitigate the corporal or financial punishment of a crime by undergoing a specific penance (Manu 9.240). Neither punishment nor penance is described as a deterrent or as a way of compensating for injury or tort, but they are ways of compensating for the violation of the natural and moral order of dharma.
The Dharmaśāstras and the Dharmasūtras are the most succinct statements of dharma, but, as in all legal systems, the power to interpret the law is the power to make the law. In classical India this power was in the hands of the king and his judges, but we have very little record of their rulings. There has been controversy among scholars over the question of whether or not the king had the power to "legislate." The texts tell us that any ruling of the king had to be obeyed, but at the same time there are indications that existing custom had such a superior claim to validity that the king was bound not to interfere with it (so long as it was not depraved) but to enforce it.
Commentators on the smṛtis and digest writers were also interpreters of the law, and we have a huge corpus of literature recording their views. The function of interpretation served to keep the legal texts attuned to the changing needs of society. It was the task of the commentators and the digest writers to relate the general principles found in the texts to the current society in which the commentator was writing. Interpretation of Dharmaśāstras and Dharmasūtras was regulated by two factors. First, an interpreter had to use the codified hermeneutical techniques of the Mīmāṃsā school of philosophy. These techniques were originally developed for interpretation of Vedic texts to determine the exact procedures for the ritual. Since the smṛti literature is seen as a sort of continuation of the Vedic tradition, it is appropriate that the same techniques of interpretation be applied to it. The second factor controlling the interpretation of smṛti was the acceptance/implementation or rejection/ignoring by the community of any interpretation. Thus, the validation of any interpretation was found in its implementation.
Contents of the DharmaŚĀstras and the Dhar-masŪtras
The contents of the Dharmaśāstras and the Dharmasūtras may be divided into three broad categories: rules for "good conduct" (ācāra ), those for legal procedure (vyavahāra ), and those for penance (prāyaścitta ). It was the design of these texts to prescribe rules that would guide each member of society so that he might live his life as fully in accordance with dharma as possible. This meant that as society changed, the prescriptions for righteousness contained in the texts needed to be adapted to those changes. This adaptation was done by the commentators on the Dharmasūtras and the Dharmaśāstras and by the digest writers. Because it was their responsibility to adapt the teachings of the Dharmasūtras and the Dharmaśāstras, their role as arbiters of dharma (righteousness) became central in the development of classical Hindu law.
The range of human activity regulated by the provisions of these texts is remarkable. Large categories such as marriage, ritual purity, inheritance, criminal law, and a basic commercial law are covered, but so are the minutiae of daily life: what and what not to eat, how to brush one's teeth, when and where to move one's bowels, how to detect suitable marriage partners, and more. The sophistication of the rules of legal procedure indicate a long-standing juridical tradition whose evolution can be vaguely traced through the increasingly sophisticated treatment of topics such as the administration of ordeals. The earliest texts know only two ordeals: fire and water. Later texts know as many as nine ordeals.
Every individual has a dharma that is a constellation of duties and responsibilities that are unique to him, because each individual has different capacities for righteousness. An individual's capacity for righteousness is determined by his birth, and his birth is determined by his karma. Thus every individual cannot be expected to meet the same standard. In broad terms, a brāhmaṇa and a śūdra (the highest and lowest varṇas, respectively) are therefore qualitatively different members of society. The social, religious, and legal expectations and requirements of a brāhmaṇa and a śūdra were different in accordance with their qualitative differences. For example, the killing of a brāhmaṇa was a very serious crime requiring harsh penances lasting twelve years (Manu 11.73–82), while the killing of a śūdra was a minor offense requiring a penance that lasts only six months; this penance was the same one prescribed for the killing of lizards (Manu 11.131, 11.141). Thus, to kill a brāhmaṇa was to do greater violence to the universal order than to kill a śūdra because of their qualitative differences in ritual status. The same reasoning is employed in the standards of behavior applied to members of society. A brāhmaṇa must take great care to perform penance for offenses, whether committed knowingly or unknowingly (Manu 11.45–46), but many of the things for which a brāhmaṇa would be outcasted are not even offenses for a śūdra (Manu 10.126).
It was this aspect of the Indian legal tradition that most alienated the British when in 1772 they decided that they should assume the responsibility for the enforcement of laws in the territories controlled by them. They mistrusted the traditional paṇḍitas because they appeared to discriminate between litigants on the basis of "religious" matters such as caste. Only after they had instituted sweeping changes in personal laws (such as those dealing with inheritance, marriage, adoption, etc.) did the British come to understand that the concept of dharma was different from the concepts of justice and equity found in the common-law tradition. In their defense it must be said that the traditional lack of concern for precedent, the fragmentary nature of the legal system, and the reliance on largely uncodified custom made the task of British administrators of Hindu law extremely difficult. It was the intention of the British to remove these uncertainties by providing a codified "Hindu Law." The British commissioned such a code, the Vivādārṇavasetu, and for a time the English translation of this code (A Code of Gentoo Laws, first published in 1776) served as the basis for the British courts' adjudication of Hindu personal law. Eventually, by the mid-nineteenth century, British scholarship had learned enough about the Dharmaśāstra to point out the errors that had been committed by the British-Indian judiciary, but by that time the corpus of judicial precedent was so large that it had an inertia of its own, and it was not possible to retrace all the steps that had been taken in the name of justice and equity. This corpus of judicial precedent continued to grow and was inherited by the judiciary of independent India so that the Hindu personal law of modern India is only nominally based upon smṛti. Having created it judicially, the British and their heirs in independent India were left with the task of legislatively reforming this new "Hindu Law." An attempt to systematically codify Hindu Law in newly independent India was unsuccessful, and the result is a piecemeal attempt to bring consistency or, sometimes, rationality to the law. Thus one finds the Hindu Marriage Act of 1955, the Hindu Adoptions and Maintenance Act of 1956, the Hindu Succession Act of 1956. The courts of modern India continue the process.
Southeast Asian Developments
Since the Indian "legal" tradition is so integral a part of the religious and philosophical ideas of the Hindu tradition, it was inevitable that it would be exported to Southeast Asia when that region became "Indianized" (a process lasting for centuries, but beginning in the early centuries of the common era). The Indianization of Southeast Asia involved the adoption of Indian culture and religion (Hinduism and Buddhism), including the use of the Sanskrit language, the mythology of the Purāṇas and the epics, the concept of kingship, and the reliance on the Dharmaśāstra as a statement of the generalized standard of conduct.
As a result of the adoption of these Indian religious and philosophical ideas by the Southeast Asian countries, the idea of dharma came to be central in the legal systems of this region as well. Burma, Thailand, Cambodia, Java, and Champa all adopted the Hindu ideal of law based on a natural and moral order of the universe. As an integral part of this idea of dharma the Hindu concept of kingship was also adopted in these regions of Southeast Asia. Though these were originally Hindu ideas, they were integrated into Buddhist kingdoms by the convention of explaining in the introductions to legal texts that a sage by the name of Manu was inspired by the Buddha to discover the eternal laws and to make them available to the world. In some texts of the Southeast Asian tradition, the organization of the Indian Mānava Dharmaśāstra is followed fairly closely, but in other texts it is not adhered to at all. There is generally less concern with the technical aspects of law in the Southeast Asian tradition, and unlike the Indian Dharmaśāstra the texts do not recognize and incorporate custom as a source of law. This fact probably contributed to the role assumed by these texts, which function much more as exemplary statements of general standards of conduct than as statements of actual law.
Each of the cultures of Southeast Asia adopted the Indian legal tradition in slightly different ways. There are significant variations in the formal aspects of each legal system, and generally it may be said that the further the geographical distance from India, the greater the formal differences. In every case, however, the religio-philosophical basis of the Indian legal system was accepted: namely, that dharma is the natural, moral order of the universe and that it is this concept that defines and validates the law.
Coedès, George. The Indianized States of Southeast Asia. Translated by Susan Brown Cowing and edited by Walter F. Vella. Canberra, Australia, 1968. On the career of Indian law in Southeast Asia.
Derrett, J. D. M. Religion, Law and the State in India. New York, 1968. Discusses the influence of dharma literature on modern Hindu law.
Direck Jayanama. The Evolution of Thai Laws. Bonn, West Germany, 1964. Discusses how Manusm ti and other texts contributed to the formation of the Thai legal tradition.
Gharpure, Jangannatha Raghunatha. "Yājñavalkya smṛti, or the Institutes of Yājñavalkya, Together with the Commentary Called the Mītākṣara by Sri Vijñāneśvara, Book the Second: And English Translation." In Collections of Hindu Law Texts, vol. 2., Bombay, 1914.
Hooker, M. B. A Concise Legal History of South-East Asia. Oxford, 1978.
Jolly, Julius. Hindu Law and Custom. Translated by Batakrishna Ghosh. 1928; reprinted, Varanasi, India, 1975.
Kane, P. V. History of Dharmaśāstra. 2d ed., 5 vols. Poona, India, 1968–1975. The most encyclopedic treatment of the topic.
Kangle, R. P. The Kauṭilīya Arthaśāstra. Part 2, Translation. Bombay, 1972.
Lariviere, Richard W. The Divyatattva of Raghunandana Bhaṭṭācārya: Ordeals in Classical Hindu Law. New Delhi, 1981. The most comprehensive treatment of the subject of ordeal in Hindu law.
Lariviere, Richard W. "Dharmaśāstra, 'Rea' Law and 'Apocryphal Smṛtis.'" In Law, State, and Administration in Classical India, edited by Bernhard Kölver, pp. 97–109. Munich, 1997. A discussion of the status of dharma literature as "law."
Lariviere, Richard W. The Nāradasmṛti: Critical Edition and Translation, 2d ed. Delhi, 2003. The most thoroughly juridical of all of the classical Indian texts.
Lingat, Robert. The Classical Law of India. Translated by J. D. M. Derrett. Berkeley, Calif., 1973. A superb, concise overview of the entire topic of classical Hindu law.
Menski, Werner F., Hindu Law: Beyond Tradition and Modernity. New Delhi, 2003. An attempt to discuss the topic of Hindu law in terms of post-modern analysis.
Olivelle, Patrick. Dharmasūtras: The Law Codes of Āpastamba, Gautama, Baudhāyana, and Vasiṣṭha. Delhi, 2003. The best translations of these very early texts.
Olivelle, Patrick. The Law Code of Manu. Oxford, 2004. A landmark translation of the most important of all of the traditional legal texts.
Rocher, Ludo. "Hindu Law and Religion: Where to Draw the Line." In Malik Ram Felicitation Volume, edited by S. A. J. Zaidi, pp. 167–194. New Delhi, 1972. A contribution to the discussion of the status of law in the ancient Indian tradition.
Sarkar, Upendra Chandra. Epochs in Hindu Legal History. Hoshiarpur, India, 1958.
Sen Gupta, Nares Chandra. Evolution of Ancient Indian Law. London, 1953. Important contributions by Indian scholars to the ongoing problem of periodization of the history of the Hindu legal tradition.
Richard W. Lariviere (2005)
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