Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India. Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950). Prior to Indian Independence in 1947, Hindu law formed part of the British colonial legal system and was formally established as such in 1772 by Governor-General Warren Hastings who declared in his Plan for the Administration of Justice that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shaster with respect to the Gentoos shall invariably be adhered to. The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma). The British, however, mistook the Dharmaśāstra as codes of law and failed to recognize that these Sanskrit texts were not used as statements of positive law until they chose to do so. Rather, Dharmaśāstra contains what may be called a jurisprudence, i.e. a theoretical reflection upon practical law, but not a statement of the law of the land as such. Another sense of Hindu law, then, is the legal system described and imagined in Dharmaśāstra texts. One final definition of Hindu law, or classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition. Such local laws never conformed completely to the ideals of Dharmaśāstra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly. It is worth emphasizing that Sanskrit contains no word that precisely corresponds to 'law' or religion and that, therefore, the label "Hindu Law" is a modern convenience used to describe this tradition. This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India (classical Hindu law) through the colonial appropriations of Dharmaśāstra (Anglo-Hindu law) to the establishment of the modern personal law system (modern Hindu law).
Dharma and law are not the same thing. Dharma refers to a wider range of human activities than law in the usual sense and includes ritual purifications, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal" issues. In this respect, Hindu law reveals closer affinities to other religious legal systems, such as Islamic law and Jewish law. Dharma concerns both religious and legal duties and attempts to separate these two concerns within the Hindu tradition have been widely criticized. According to Rocher, the British implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated dharma into the English categories of law and religion for the purposes of colonial administration. However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves.
There are usually three principal sources of dharma in the Dharmaśāstra texts: 1) śruti, literally "what is heard," but referring to the Vedas or Vedic literature, the liturgical and praise hymns of the earliest Hindu tradition, 2) smŗti, literally "what is remembered," but referring to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (Mahābhārata and Rāmāyaņa), and 3) ācāra, literally "practice," but referring to the norms and standards established by educated people who know and live by the first two sources of dharma. In two important texts, namely the Laws of Manu (2.6) and the Laws of Yājñavalkya (1.7) another source of dharma, ātmatuṣṭi, "what is pleasing to oneself," is also given, but later texts and commentaries severely restrict this source of dharma. The smŗtis are metrical texts. There are hundreds, perhaps thousands, of texts that fall into this category and it is remarkable how consistent the topics and reasoning used in these texts is. Though the smŗti texts acknowledge variability in regional religious and legal practices, their principal concern is to explain dharma. This unity of purpose led to a standardization of topics dealt with by the texts, even though the texts still exhibit differences between them. Whether these differences can be attributed to differences in the provenance or time period of the texts, to ideological or other disagreements between authors, or to some other factor is an issue open to debate. The most famous and the earliest known smŗti text is the Laws of Manu, which dates to approximately the first century AD. The Laws of Manu, or Mānavadharmaśāstra, has recently been critically edited and translated by Patrick Olivelle (2004, 2005). His introduction and translation are perhaps the best starting point for understanding the nature of Dharmaśāstra and its contents. A major piece of the Hindu law tradition is, however, not represented in the main body of this translation, but rather in its footnotes - namely, the commentarial or scholastic tradition that took texts like the Laws of Manu and explained and elaborated upon them in an unbroken tradition that extended at least up to the time of the British and in some ways beyond. Similar to other scholastic traditions of religious law, the Dharmaśāstra commentators' first concern was to explain the sacred legal texts precisely, with careful attention to word meanings, grammatical structures, and principles of legal hermeneutics.
Effectively, the three ideal sources of dharma reduce to two - texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.
There is frustratingly little evidence for the practice of law in India prior to about the eighteenth century in India. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings. In other places, such as South India, temples were intimately involved in the administration of law. What is almost completely lacking for classical and medieval India are the records of courts. In lieu of such records, other kinds of evidence for legal practice must be used to piece together an outline of classical Hindu law in practice. Such evidence includes prominently the numerous inscriptions from this period that record a variety of legal transactions, gifts, contracts, decrees, etc. associated with political rulers, temples, corporate groups and others. Many aspects of law were likely under the jurisdiction of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders as well.
[an excellent survey of Anglo-Hindu Law can be found in Derrett 1961]
The early period of Anglo-Hindu law (1772-1864) was characterized by three main features: 1) the collection and translation of important Dharmaśāstra texts by British administrator-scholars such as Jones, Colebrooke, Sutherland, and Borrodaile for the purpose of "applying" the rules of those texts to Hindus under the expanding political rule of the British, 2) the presence of court pandits in various levels of British courts to aid British judges in interpreting the classical Hindu law on issues brought before the courts, and 3) the proliferation of case law resulting from judicial decisions in these courts that resulted eventually in the "redundancy" of court pandits.
In 1864, just after India became formally part of the British Empire, Anglo-Hindu law entered a second phase (1864-1947) in which, first of all, the court pandits were dismissed as no longer needed because of the extensive case law that now existed on a variety of points in Anglo-Hindu law. Around this time, a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and provide it with a legislative foundation. From this period on, the codification of Anglo-Hindu law by parliamentary action and the continued growth of case law on questions of Anglo-Hindu law diminished the relevance of and interest in Dharmaśāstra as the putative source of Anglo-Hindu law. Instead, the gap between the idealized legal system of Dharmaśāstra and the extreme diversity of customary laws in various parts of British India led to the collection and fixing of regional customary laws as determined by British officials through interviews, observations, and discussions with locals. Massive volumes of customary rules supposedly in force were collected throughout British India and became part of the consultative resources of the courts.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India. The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
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