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Christoph Holthusen
20 Chelmsford Rd.
Dublin 6
Comparative Law
Dr. Neville Cox
Hilary Term 2000
Dublin, 12.04.2000
Literature
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Betz, Juergen
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„Geschichtliche Entwicklung„ (in
Indien)
(Historical Development in India)
www.bpb.de/info-franzis/info_257/body_i_257_1.html
(Informationen zur politische Bildung, Heft
257)
cited: Betz I
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„Gesellschaftliche Strukturen„ (in
Indien)
(Social Structures)
www.bpb.de/info-franzis/info_257/body_i_257_3.html
(Informationen zur politische Bildung, Heft
257)
cited: Betz II
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Derrett, J. Duncan M.
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„The Hindu Conception of
Law“
in: International Encyclopedia of Comparative Law, Vol.
II Chapter 1, 1975 Mouton, The Hague, Tuebingen
p. 107-118
cited: Derrett, The Hindu Conception of
Law
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„Law, Religion and the State in
India“
Oxford 1999
cited: Derrett, Law, Religion, and the State in
India
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„Hindu Law“ in Introduction to Legal Systems
1968,
p. 81-104
cited: Derrett, Hindu Law
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Introduction to Modern Hindu Law, Oxford
1963
cited: Derrett, Introduction to Modern Hindu
Law
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Galanter, Marc
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Law and Society in Modern India
1989
cited: Galanter
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Juergenmeyer, Clemens
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Hindu, Hindusthan, Hindutva
www.lpb.bwue.de/aktuell/bis/1_98/bis981i.htm
cited: Juergenmeyer
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Lingat, Robert P.
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The Classical Law of India (Les sources du droit dans le
systeme tradtionel de l’Inde), translated by Derrett,
J.D.M.
1967
cited: Lingat
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Mahr, Theodore
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An Introduction to Law and Law Libraries in India,
82 Law
Libr. J. 91
cited: Mahr
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Nanda, Ved P.
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Hindu Law and Legal Theory, Dartmouth
1996
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Zweigert/Koetz
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„Hindu Law“ in Introduction to Comparative
Law, 3rd Ed., Oxford 98, p. 313-319
cited: Zweigert/Koetz
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Preface:
This Essay consists of two parts.
The development of the Hindu Law is mainly based on
three sources:
1. Lingat, The Classical Law of India
2. Derrett, Law, Religion and the State in India, namely
the chapters
3. Derrett, „The Hindu Conception of Law“
in: International Encyclopedia of Comparative Law
If other sources were used, this is marked by
footnotes.
In the second part, the passages about the codification
and its impact are mainly based on Derrett, Law, Religion and the State in
India, namely chapters
3. Religious Commands and Legal Commands, p.
75ff.
4. Religion and the Making of Hindu Law, p.
97ff.
6. Custom and Law in Ancient India, p.
148ff.
7. Law and the Social Order before the Muhammadan
Conquests, p. 171ff.
8. The British as the Patrons of the Sastra, p.
225ff.
9. The Administration of Hindu Law by the British, p.
274ff.
10. Codification of Hindu Law, p.
321ff.
13. Religion in Modern Hindu law, p.
437ff.
16. Conclusion, p. 555ff.
Contents
I.Introduction 1
II.Basic conception 1
III.History and development 1
1.The veda and the vedic age 1
2.The Smrtis 2
a)Earlier stage 2
B)Dharma-Sutras 2
aa)The varnas 2
bb)The four stages of life 2
cc)Legal rules 3
3.The dharma-sastras 3
a)Manu 3
b)Others 4
4.Commentaries and digests 4
a)Commentaries 4
b)Digests 4
5.Classicaö hindu-law according to the
sastra 5
a)basic features 5
b)Interpretation of tne sastric
iniunctuions 5
c)Sruti. Smrti and circumventing the
text 5
d)The king and the village assembly 6
e)Customs and royal degree 6
6.Development 800-1200 7
7.Muslim phase 7
8.The two schools 7
9.British rule 8
IV.Contemporaneous impact of hindu
law 9
1.Indian independance 9
2.Contemporaneous legal system in
general 9
a)In general 9
b)The naraya panchyats 9
c)The codification 10
d)Impact of the codification and
conclusion 11
3.Impact of the codification 11
4.Further countries 12
I. Introduction
India is about to become the most populated state of the
world, having reached the 1bn mark years ago and an economy developing quickly.
On the other hand, it is surely one of the most diversified and inhomogeneous
countries, full of contrasts.
The traditional, ancient law of this country is Hindu
law. In contrast to the modern Western legal systems, Hindu law is like Islamic
Law based on religion and therefore belongs to a different legal family.
Moreover, its applicability depends not on a person’s being a national of
a particular state, thus it is not a territorial law but a personal law,
applying individually.
This essay shall analyse in part one the development
and then in part two the contemporaneous impact of this conception of law,
following a introductional outline of the most basic ideas of Hindu law.
II. Basic conception
Firstly it should be mentioned that Hinduism as a
religion not clearly confined to a particular doctrine that requires its members
to accept certain religious beliefs about God, the soul etc. Instead it is open
to every Hindu to believe in his own God. Thus Hinduism embraces a great variety
of cults, rituals and philosophical orders (Zweigert/Koetz p. 313).
Consequently, as will be shown, the law finds itself in a similar
state.
Hindu law is based on the idea of dharma. Dharma means
literally „firm and durable“, „sustains/maintains, hinders
form falling“ (Lingat, p. 3). It signifies maintaining the eternal laws of
the moral and physical world, or in simple terms „righteousness“
(Lingat, p. 3). It is the duty to direct his life to the universe and its
governing laws. Dharma enables the Hindu to realise his destiny, sustains him in
his life and assures his well-being after death according to the idea of karma.
Here comes in the belief of rebirth, firmly anchored in Hinduism.
In our context it is the totalities of duties according
to status (varna) – here we already find the Hindu caste system –
and stage of life (asrama).
Nevertheless, the contrasting aims of arthra (the
useful) and karma (the pleasurable) enjoy important roles as well in Hindu
doctrine. In fact, wisdom is the harmonious combination of all
three.
Dharma-sastra, on the other hand, is the science about
dharma, „the science of righteousness“ (Derrett, Hindu Law, p.80),
combining the ideas of law and righteousness in one concept. Therefore,
dharma-sastra includes both legally binding commands and guidelines of behaviour
that are not binding, what is to be shown in detail later on.
III. History and Development
1. The Veda and the Vedic age
Hinduism evolved from Aryans, India-European people, who
invaded India in the period of 1500 to 500 B.C. These tribes divided themselves
into three classes: priests (Brahmins), common people and warriors, the
distinction that should develop into the caste system (Mahr, p.
91ff.).
Their civilization produced the Vedas, foundation of the
Hindu culture (Betz I,
www.bpb.de/info-franzis/info_257/body_i_257_1.html).
These texts, consisting mainly of three collections
(Rg-veda, Yajir-veda and Sama-veda) of religious, songs, hymns and prayers are
the oldest Hindu texts and mark the beginning of Hindu legal thinking. They
have been dated as before or around 1000 B.C. Only very few practical guidelines
are included, nonetheless, they were presumed as divine revelation (sruti) and
authoritative.
In praxis, sruti meant rather the sum of all religious
and moral understanding: custom (acara) still prevailed, though it is not the
mere legal custom in our Western sense, but includes the whole spiritual and
religious life as well.
Already then, different schools existed with its own
sacramental texts, accompanied by treatises regarding the ceremonial practices
for the Brahmins, the spiritual leaders, and philosophical
speculations.
However, as only some injunctions were to be invoked as
rule of conduct, this insufficiency lead to more developed and legalistic
literature, the smrtis.
2. The Smrtis
a) Earlier stage
Smrti means literally „tradition“. The
smrtis thus were the attempt to integrate the existing traditions into the
system of the Veda by interpretation of the latter.
They went further than the rudimental outset of rules in
the Veda. The first sets of smrtis are written in the form of sutra
(„thread“), that means in aphorisms or highly condensed and abstract
sentences, hence mainly meant for intellectual superior persons, i.e. the
Brahmins.
In the early stage, the sutras appertaining to rituals,
the kalpa-sutras, are the most important, subdivided in three categories, the
last (grhya-sutras) mainly dealing with duties and privileges attached to the
status in the Aryan community.
Still, the sutras were based in the main Vedic schools
so no comprehensive system for the whole Hindu community was achieved.
b) Dharma-Sutras
Similar to the grhya-sutras, but very much more general
and ambitious these texts from the period of roughly 600-300 were the first
quite comprehensive and foundational legal texts, though still rooted in the
different Vedic schools.
Four main schools can be differentiated, the
dharma-sutra of Gautama in Western India, Baudhayana, Apastamba and the
Visnu-smrti. The latter is different from the others, more extensive, more
sophisticated and partly already in verse form. The contents of the dharma-sutra
are the following:
aa) The Varnas
Here the first outline of the four-caste-system is set.
The following varnas are established:
The Brahmins, even superior to the King as spiritual
leaders, functioning as priests. They were on the other hand restricted to only
certain traffic and professions in order to insure their purity
The Ksatriyas, as responsible for defence and
government, the only caste allowed to hold arms, thus a warrior
caste
The Vaishyas, performing business and
agriculture
Lastly the Sudras, serving the other three castes as
slaves, in contrast to the other castes excluded from religious practice and
studies
So, for the lowest caste, some social functions are
disintegrated, but as a re-compensation the possibility of rebirth in a higher
caste remains. Moreover, the three higher caste were denied contact to the
Sudras because of the latter’s impurity.
The caste-status of an individual is already at birth
unchangeably determined, it are hereditary due to the notion of karma, inherent
in every human. This shows, how firmly concept of divine or rather natural
justice is implicit in the Hindu concept of law.
This system however, is a pure theoretical system, for
yet at that time innumerable real castes (jatis) existed. It is to be seen as
prototype of castes, thus avoiding to press the contemporary state into binding
law, allowing a great deal of flexibility.
Additionally, the possibility of mixed castes was
acknowledged due to permitted inter-caste marriages (an institution in later
centuries forbidden).
bb) The four stages of life
Furthermore the four stage of life are described –
the first two are already named in the Veda in the dharma-sutras. After the
initiation to advija (the ages vary from 8-14 with the various dharma-sutras),
the Hindu becomes in the first stage a student. This period is supposed to last
at least 12 years. After that comes the most important stage, that of the
married man and householder. Growing older, he is supposed to live as an
anchorite including avoiding company, mortification and fasting. The last stage
means the life of an ascetic, living alone with a minimum diet, searching for
the spirit.
Also this concept is likewise a theoretical and
non-binding one, though the later stages build ground for the yogins and fakirs
of our times.
cc) Legal Rules
In criminal law, penance is established as means to
purify for the next world. There is a great varieties of punishments, for
example those who murder a Brahmin must seek death in battle or cast himself
into fire, or he who has defiled the bed of his guru must lie on a red-hot bed
of iron, or embrace an iron figure of a woman which has been made red hot or
even cut off his genitals. These drastic examples for capital offences are
accompanied by a range of penances for minor offences as fasting, mortifications
or gifts to the Brahmin.
Marriages are vastly covered and differentiated in eight
types. Whereas the first four „regular“ ones consist essentially of
the gift of the father to the bridegroom, the second four are less desirable.
No. 5 is by purchase, No. 6 is by mutual consent, No. 7 is by rape and Nr. 8 is
by violation of a woman who is unconscious or asleep. The acceptance of these
marriages varies with the caste and the authors.
Furthermore, the practice of niyoga is recorded: a head
of a family that shows signs of remaining childless could in order to secure the
perpetuity of the domestic cult designate all kinds of people who had no direct
blood relationship, e.g. an adopted son. About the status of these appointed
heirs however differ the authors widely.
Differences are to discern likewise relating to
partition of property. One concept only allows partition after the
father’s death, whereas the other even foresees that the son might force
such a one on his father. Here already one may be able to see the seeds of two
great systems of succession in operation in contemporary India, that of the
Mitakshara and the Dayabhaga school.
The King’s task as protector, arbitrator in the
realm of private law (vyavahara) and punisher was also already established.
Some rules for procedures both in civil and criminal
cases, e.g. on the choice of judges and the sufficient evidence - three
witnesses required, regularly only members of the same caste and gender should
testify - and ordeals are found as well, though it is allotted only very little
space.
3. The Dharma-sastras
Essentially different from the dharma-sutras are the
dharma-sastras. They represent the next and most important step in the
development of (classical) Hindu law.
In contrast to the dharma-sutras they are composed in
verse-metres (as opposed to prose), they are more extensive and juridical and,
finally, they were not committed to any particular Vedic school claiming to base
on mythical origin, but clearly written by mortals founded on tradition of
sages. Moreover, they mostly lacked the philosophical speculations typical for
their predecessors.
a) Manu
The most celebrated and respected author even outside
India is clearly Manu, probably dating from around 200 B.C. His comprehensive
work is as the first attempt of its kind the most important and influential of
the dharma-sastras.
This work consists of twelve books, in books 1 and 12
including a philosophical introduction or foundation, touching on the duties for
the members of the named respective castes in their four stages of life in books
2-6 - especially focusing on the householder stage -, before describing the
tasks and duties of the King in detail, even including a timetable, in book 7.
Books 8 and 9 are concerned with disputes in private law, featuring the
extremely influential division into 18 heads or titles of litigation (margas or
vyavahara-margas ,Lingat, p. 82). These are (1) non-payment of debts, (2)
deposits, (3) sale by one not the owner, (4) relations between partners, (5)
recovery of thins given, (6) non-payment of wages, (7) breach of regulations of
certain associations and co-operations, (8) resiling from sale, (9) disputes to
the boundaries of villages and properties, (11) assault, (12) insults by word of
mouth, (13) theft, (14) acts of outrage, (15) adultery and rape, (16) duties of
husband and wife,(17) partition of heritage and (18) gambling and
wagering.
In addition, he names procedural rules (inter alia water
and fire ordeals to disclose the truth), he strives on the duties of husband and
wife and family law in general and finally some criminal law matters, whereas
book 10 is on the mixture of varnas and book 11 concerns gifts to be made and
includes a classification of sins and
penances.
b) Others
The probably second most important author in this era is
Yajnavalkya especially as a result of the famous and frequently used Mitakshara
commentary. His work is the best composed, most homogenous and consistent of its
competitors. Private law in particular is treated in greater detail than in
Manu.
This commentary consists of three books, the first on
religious custom, the second on administration of justice and the third on
penances.
His writings, however, are similar to those of Manu,
although silent on privileges of Brahmins and extensive on procedure, ordeals
and legal documents.
His work is dated about the 1st century B.C.,
or more probably, even the 1st A.D.
Narada, partly a recension of Manu’s dharma-sastra
and very close to his is also more sophisticated than the latter. For example,
like Manu he proscribes the 18 heads of litigation, but in addition knows 128
ramifications. Furthermore, he covers procedural aspects more extensively.
Dealing only with the vyavahara, philosophical and moral speculations are not
part of his work. He excels through his preciseness.
Only the writing of the three preceding authors exists
complete. There are about 100 other writers in all the different regions of
India, whose works exist in incomplete, reconstructed or fragmentary form. Some
of them are only known by references to them sastra in later works. Frequently
revising Manu, their writings are dated up to the 9th and
10th century A.D. But none of them reached the importance of Manu or
Yajnavalkya.
4. Commentaries and Digests
Immediately following or possibly even overlapping the
writing of the dharma-sastras , commentaries on these works- mostly each
focusing on one author - were compiled. The digests, however, sought, from the
12th century onwards, to compile and link the different
dharma-sastra. Thus, most of them were compiled during the Muslim
rule.
Both left the essence of the dharma-sastras undisputed
as authoritative eternal law, but tried to reach a synthesis by explaining,
clarifying and harmonising them, adding classifications and subdivisions.
The authors were mostly ministers or councillors of the
King.
The legal authority of these works tended to be greater
than that of the dharma-sastras , substituting the latter in later
centuries.
a) Commentaries
Writing about Manu, the most significant authors were
Bharuci and Medhatithi from Kashmir. Five other important commentators on him
are known, the most extensive is Kulluka from Benares in the 15th
century.
On Yajnavalkya the by far most influencing commentator
is Vijnanesvara, dating from the late 11th century. His work is the foundation
of the already mentioned Mitakshara School and obtained an almost legislative
status throughout most regions of India, whereas in Bengal and Asram the
Dayabhaga school prevailed. His importance is illustrated by the fact that he
was himself commented on later by other authors. Apart from him, three others of
significance are known on Yajnavalkya.
Moreover, there were a number of commentators on other
dharma-sastras and on the Visnu-smrti
b) Digests
The oldest Digest is that of Krtyakalpatorn, a large
work with a great variety of texts that remained influential until the
16th century.
Other significant authors were Smrticandrika (1200,
Southern region) and Caturvargaintamani with a gigantic volume consisting of
6000 pages.
Condesvara composed various works especially on the 18
heads of litigation and procedure in the 13th century, already after
the Muslim invasion.
In Benares, Jimutavahama-Dharmaratna (15th
century or earlier) was significant as the foundation of the Dayabhaga School.
The difference in the two related mainly to management and partition of the
family property (see infra).
Later on in this region, Nilakantha and
Bhagaranta-teshara, who quoted no less than 97 smrtis, are noteworthy.
5. Classical Hindu law according to the sastra
a) Basic features
The dharma-sastras are the essential, though not final,
sources of the dharma-sastra,(short sastra). Still srutis and dharma-sutras are
incorporated as well as the classical Hindu jurisprudence.
The Sastra was (and is still under an orthodox view)
seen as the last word on all topics on both religion and law, thought to have
been shaped by the research and tradition of the millennia.
It is believed, that the smrtis not only summarized the
Veda but reproduced missing parts of it that were lost in earlier times. So the
paradoxes was overcome that although the Veda is supposed to be the source of
all knowledge, past and future, the smrtis add considerable amounts to its
contents and are seen as the main source of law. But consequently, the smrtis
are eternal and unchangeable. Of course, this led in a way to the restriction of
innovation and original research, suppressing originality. But it will be shown
that Indian jurists found ways to circumvent this doctrine.
Moreover, the huge amount of sastric literature led of
course to a range of contradictions and inconsistencies between the texts.
Hence the sastra is not at all a code in the European
meaning, but rather a framework for judicial reasoning. That means it is
authoritative, but it lacks the Western notion of legality. It is supposed to be
conformed with, but the constraining power of the European codifications is
absent. It implies a variety of solutions, avoiding conservatism. Highly
important, the concept of precedent, or of one valid, right solution is alien to
the sastra. Judgements remain single ones, the King has no more value as an
interpreter than anyone else.
Thus the interpretation of the smrtis is crucial to
Hindu law. It offers society the means of rediscovery of the smrti by comparison
and reconciliation. The interpretation involves customary data and tends to lead
to systematisations, although these systematisations are sometimes
diverged.
b) Interpretation of the sastric Injunctions
A most important feature of the sastra, following the
tradition of the Veda, is that not all injunctions are enforceable. It is to
differentiate betweens generally enforceable, unenforceable injunctions and
those, who are capable of enforcement by the caste tribunal.
Prima facie, all the rules in the smrtis are binding due
to the explained universality and validity of the Veda and consequently the
smrtis.
But rules that appeal mainly to the conscience of the
people and lack the necessary certainty as „give gifts“ without a
specified period, are generally not enforceable.
Some rules, however, although not enforceable by the
King and his deputies were enforced by the caste or village tribunal, e.g. about
the age of tonsure of a child or of his initiation.
The following important distinctions must be made:
kratvarthas are injunctions relating to ritual observance and are mandatory,
others (purushartha) are only directory, referring to the
individual.
Moreover, some injunctions are dristartha, having a
„seen“ purpose, induced by reason. A-drishtarthas on the other hand
have a purpose, which is „unseen“ and derive their authority
directly from the Veda. Therefore they are strictly biding, whereas the former
ones though understood as authoritative because they have been stated experts on
the Veda, the ancient sages, are attributed a certain „flexibility“
in their application.
Especially home politics, international relations,
commercial and delictual matters are regarded as falling in the first category.
Besides, there are injunctions, which have two purposes, one „seen“,
the other „unseen“ and injunctions, which are merely rational
rules.
c) Sruti, Smrti and circumventing the text
The smrtis were seen as the rewriting of the ancient
sruti. They restate the manifold duties found in the sruti in a more current
form, so that they are abrogating the smrti. Therefore, the smrtis will prevail
in cases of conflict with the Veda, although the latter is the originally
revealed text.
In case of conflicts between sruti and sruti or smrti
and smrti, attempts to reconcile them will be made, according to the hermeneutic
doctrine of ekavakyata (all the sages were in harmony), e.g. by means of
attributing them to different situations. If this is impossible, both are
assumed as correct and there remains a choice between them
(vikalpa).
This being one possibility, Indian jurisprudents were
generally quite innovative in finding possibilities to avoid adhering literally
to the text and adapting the sastra to the circumstances of the
day.
For example they used the vague distinction between
injunctions (vidhis) and arthavadas, allegedly explanatory material and thus not
enforceable, to mark inconvenient rules as merely explanatory.
An interesting technique was the theory of Kalivarya: as
the world’s existence is considered as split into four ages (the Kali age
as the present), certain parts of the civil law are regarded as corresponding to
each age. This could explain the disregard of textual rules by the respectable
castes, e.g. for the injunction for a widow to appoint a second husband to raise
her children.
Moreover, particular rules were amended often beyond the
borders of interpretation. For instance, the lists of weights, measures and
coins found in the sastra had of course to be adjusted to the topical
level.
As a last resort, sastric rules could be abrogated by a
condemnation as „intolerable to the public“, showing how close
connection between sastra and custom was.
Worth noting is furthermore, that in „times of
distress“ (apat), like famine or invasion by enemy, the sastric rules were
automatically modified. Marriages or adoptions otherwise improper could be
entered into and even crimes were less severely punished.
Interpretative rules, as developed in our legal system,
were not unknown to the Hindu lawyers, such as cessante ratione cessat ipsa lex
or nemo dat qoud non habet. The rule, that every act contrary to law is deemed
forbidden is also found (contra legem facit qui facit qoud lex prohibet) as well
as the opposite (quod non est lege prohibitum intellegitur
concessum).
d) The King, and the village assembly
Only little is said about the rule of the King in the
dharma-sutras, whereas the sastra provides a quite sophisticated legal framework
for this institution. His existence was founded on the presumption that without
his maintenance of social order the „law of the jungle“ would rule,
the strong oppressing the weak. Still the King belonged as a rule to the varna
of the Ksatriyas and therefore, though more powerful, was on a social lower
level than them. This is illustrated for instance in the less sever punishment
for killing the King as for killing a Brahmin! Nevertheless, though not seen
personally as divine, the King was the dominant figures in the classical Hindu
society before the Muhammadan conquests.
His task was protection of his people and the solution
of conflicts, whereas the Brahmin was supposed to explain and interpret the
sastra. The King had the prerogative of punishment for misbehaviour in a wide
range of cases (though differing dependent on the author), he had the right to
impute taxes. He could override all sources of law, but he should consult
dharma, custom and reason.
He delegated his jurisdictional duties to a developing
court system, beginning with learned assessors, later degenerating to
single-judge courts.
In contrast to the criminal matters, in civil disputes
he was not allowed to act ex officio, but a request for solving a dispute was
required.
However, he was by far not the only instance for solving
conflicts, especially the caste respectively the village assembly played an
important role. A wide discretion appertained to it, it was often at least as
effective as the civil and criminal tribunals. In earlier stages merely
inflicting curses on malefactors, they later had the power to punish, for
instance by expulsion from the community. Torture and disfigurement were
moreover popular penances, imprisonment was comparably rare.
e) Customs and Royal Decree
Custom played a very important role in India, especially
as the sastra makes very little attempt to standardize it in the area of
commerce with the exceptions of land law and tenancies.
Moreover, it was shown that custom had great influence
on the interpretation of the smrtis, especially if the sastric rules seemed too
inappropriate custom could effectively abrogate it.
Lower courts especially tended to apply custom unless
difficult questions arose
Generally, at least in theory, sastra prevailed. The
system of Mimamsa, a scholastic approach based on mere study of texts already
used to interpret the Veda, definitely requires this. However, the King was
supposed to observe the customs of families, castes, guild and sects if not
irreconcilable with basic features of the sastra, i.e. especially repugnant to
the named rules with an „unseen character“.
Legislation was generally not permitted by the sastra.
The assumed certain character of the sastra (see above) follows that statutes
agreeing with the sastra are superfluous or declaratory, if they on the other
hand deviate, they might be wrong.
However, legislation – naturally primarily based
on custom - took place in countless incidents, especially by royal
proclamations. This was so, particularly because the sastra left a range of
gaps, including administrative matters, criminal proceeding and some aspects of
the civil procedure. Legislation on these subjects could therefore brought into
alignment with the sastra by claiming that legislation could close gaps in the
smrtis unless contradicting the Veda or valid custom, as Medhatithi amongst
others did.
6. Development 800-1200
Generally, in this period the sastra at least partly
succeeded to achieve cultural and jurisprudential harmonity and homogeneity by
winning over customs, for example in the cases of meat-eating, spirit-drinking,
divorce or vicarious procreation of children all decreased in accordance with
the sastric rules.
However, examples of customs differing from the sastric
system in the middle ages are the recognition of slavery by kidnapping, debt and
crime or the establishment. Furthermore, the separation of the rows of dining
for people belonging to different castes was introduced.
The widow-remarriage, contrary to the sastric concept of
marriage as the gift of a virgin, could partly succeed. Members of the fourth
caste conducted business in some regions and were respected, a distinction
between divided and undivided relations were made.
More significantly, the concept of untouchability was
developed. Unknown to the sastra, this group was even below the Sudras - they
are in certain professions as shoemakers, most of them are agricultural labourer
or farmers.
Moreover, under political considerations due to the lack
of tranquillity and the poor state of public order, justice and the sastra often
had to take second place.
7. Muslim phase
Beginning with the end of the 10th century,
Muslims advanced into Northwest-India and conquered until the 13th
century the Ganges-Delta and Delhi as well (See Fn.
Error! Bookmark not defined.). Thus India was
under Muslim rule for about 500 years and the Hindu order ceased to rule.
Despite the change of authority, Hindu law was still applied when Hindus were
involved. Additionally, some states remained partly independent as vassals. In
criminal cases, Islamic Law was exercised, though the Hindus were not prosecuted
for crimes only a Muslim could commit. On the other hand, conversely breaches of
Hindu criminal law by Hindus ceased to be inquired into.
In civil matters, however, Hindus were admitted to
remain subject to their own laws and customs. But because the Kadi (Muslim
judge) was only capable of applying Muslim law, he was assisted by a pandit on
whose opinion he had no choice than to rely. Sometimes he referred the matter to
a local court.
These as village or caste assemblies were still in
function and of great importance, especially since the Kadi only gently
exercised its appeal powers.
Naturally the integrative function of the King was
absent, so that a localisation of Hindu law based on Custom took place, leading
to fragmentation and sclerosis.
Even a tendency of legalisation of the juridical
doctrine of the interpreter-jurists was noticeable, grossly contrary to the
whole spirit of the Hindu law.
On the academic level, however, the interest in classic
literature did not cease at all but was even partly renewed, as the considerable
list of digests and commentaries compiled under Muslim rule shows.
Naturally in such a long period, these works were to a
certain extent influenced by Muslim thought, so that the Muslim rule led to
changes in Hindu attitude, some new customs particularly were introduced under
the Muslim rule.
As a conclusion it is to be said that the Muslim rule
injured the functioning of the Hindu law system, but did not directly attack or
subvert it.
8. The two schools
As stated above, two major schools in the question of
the interpretation of the sastra concerning distribution of family property
developed, the Mitakshara and the Dayabhaga School. Whereas the latter assumed
that the son had only property rights after the father’s death, the first
asserted that the son’s right already arises from the relationship
commencing with the moment of birth.
The consequences for the Mitakshara school were: There
is the right to demand partition during the lifetime for the head of the family;
he had the right of alienation only relating to his personal property; the
children were joint tenants.
The Dayabhaga school foresees no right to partition in
lifetime unless consent; the right of alienation of all property was granted and
the father’s death led to a real succession so that the children were
tenants-in-common with the possibility of disposing over their
rights.
So in essence the concepts of the patriarchal and the
joint family are clashing here.
9. British Rule
When the British, precisely the East India Company,
arrived respectively began to take control of India in 1765 (only after 50 years
they were able to claim the whole India, they began to set up a new court system
under Warren Hastings. The Courts mostly consisted of layman due to lack of
lawyers and were assisted by Hindu law experts, especially bishops. By 1800 to
every court a pandit (Hindu law professor) was attached. The reason was that at
least in the beginning the judges did not have any knowledge at all of the
sastra, and therefore just relied on the opinion of the assumed expert, though
differing viewpoints sometimes were wide-spread and corruption far from
unknown.
Hindu Law, however, – and consequently these
experts - was not consulted in all matters, but in questions of inheritance,
marriage, caste and religion they were responsible and just followed by the
English judges.
Importantly, the doctrine of precedent was employed.
This notion an unknown concept in HinduLaw: an ocean of knowledge allowing
different stances, needing interpretation, not determination. So judgments were
blindly insisted upon, though especially the advice of the pandit might have
been inappropriate.
As a consequence, legality was substituted for
authority, and although enabling a kind of certainty and surety it led to the
ruin of the traditional system, by defining law to just one understanding
instead of leaving it intact, allowing custom to become a rule.
On the other hand, the Hindu jurisprudence developed
further in the first half of the British rule. Hastings set up a Sanskrit
College at Benares, followed by one in Calcutta where experts in the sastra were
trained. Striving for certainty in Hindu law he made eleven pandits compile a
new digest, called „ a bridge across the ocean of litigation“
covering a good amount of civil law and some criminal law subjects. This was
further developed into the Code of Gentoo Laws, which was frequently applied,
but far from completely sufficient or certain and therefore just representing
one additional source of sastra.
Later William Jones, S.C. judge in Calcutta tried to
make the Indian law known to European jurists. He therefore translated Manu and
attempted to create a digest for the English judges in order to restrict
forgery, corruption and ignorance. He employed a senior scholar of the Bengali
to do this work, and the Vivada-bhangarrava was the result. It encompassed
various interpretations, partly going beyond the scope of pre-existing Hindu law
due to the British influence, but did not bear more significance than the Gentoo
Code.
Later in 1863 pandit Siromani wrote for the Dayabhaga
School. A further product of Hindu jurisprudence under British rule was the
Mahamirvana-tantra, originally a religious book, but used as a law book as
well.
Generally, these writers attempted to adjust the sastra
to the changes introduced by the Britains.
In praxis, caste tribunals still functioned, although
inconsistent with the official administration of justice accepted by the
Indians.
With the second half of the 19th century,
Hindu law retreated more and more, abrogated by English legislation. Already
before, Hindu custom struggled against the new Anglo-sastric law employed in the
courts, but now vast parts of the sastra became obsolete through new statutes,
clearly based on English law (Galanter, p. 22). So firstly the civil procedure
(1859) was legislated, accompanied by a Penal Code and the Code of Criminal
Procedure in 1860/61. Succession in 1864, the law of evidence (1872), trusts and
contracts (1872/1882), the abolition of the traditional suttee (ritual murders,
sacrifice of children and religious blackmail, the tardily removal of female
infanticide, as well as slavery) were to follow.
Likewise, the existing law was supplemented: new
institutions like insolvency and instruments were introduced
When the English judges after the publication of various
translations became more accustomed with the sastra, they tried to establish
solutions on their own in case of uncertainties or inconveniences in the sastra,
following the concept of „justice, equity and good conscience. Thereby the
employed the European method of deduction, leading to very artificial and
remote, but persisting results.
With this development, the dharma-sastra died as a
responsible science (Galanter, p. 24).
At the same time, a similar development is to be noted
in Franco-Hindu law. Sometimes the Anglo-Hindu law was even more conservative
due to the strict adherence to the sastra.
Conclusively, the English partly destroyed the Hindu law
system, particularly by sticking to the doctrine of stare
decisis
IV. Contemporaneous Impact of Hindu Law
1. Indian Independence
Becoming more and more unsatisfied with the British
domination, the Indians founded the Indian National Congress in 1885, claiming
further rights and protesting against British governing. After gaining more and
more political participation, in the aftermath of the Second World War the time
was ripe: under the leadership of Muhatma Gandhi India became independent in
1947 (Betz I,
www.bpb.de/info-franzis/info_257/body_i_257_1.html).
Therefore, India adopted a Constitution and became a
democratic state, thus governed by majorities - a concept strange to the sastra,
which proclaimed conciliation and consensus as essential.
This Constitution is quite secular, granting freedom of
religion, although subject to public order, morality and health (Derrett, Law
Religion and the State, p. 421).
It resembles in various points its Western examples;
most significantly in this context, it grants equality before the law and of the
sexes in every respect, discrimination – positive or negative - is
forbidden, again a vigorous contrast to the sastric principles. Castes shall not
allow enforcement of any rights or privileges and the concept of
„untouchability“ is abolished.
For the interpretation of this Constitution, again
Western examples are used, favourably the jurisdiction of the U.S. Supreme
Court.
2. Contemporaneous legal system in general
a) In general
Not surprisingly, the Indians assumed the British Court
System. Therefore, a Supreme Court was established and several High Courts for
each state or a group of states.
In addition, the statutes introduced under the British
reign were not abolished, but constitute part of the body of Indian law. A
return to the principles laid down in the sastra was not undertaken, though
Gandhi and some of his supporters wished to do so.
Therefore, Hindu Law only maintains its influence at all
in family, succession, adoption law and related areas. Likewise, custom has only
an extremely limited importance, vastly abrogated by the Codes like the Marriage
Act (see infra) and statutes (Derrett, Introduction to Modern Hindu Law, p.
13).
Furthermore, with the doctrine of precedent still in
force, instead of the purely interpretative and highly flexible jurisdiction of
the sastra the rigid doctrine of „stare decisis“ governs the
solution of conflicts in Modern India.
However, group membership i.e. caste-membership is still
significant, as the Schedule of Castes in the Constitution shows, although
discrimination due to caste is prohibited by it.
In personal law for instance a minor, but important role
is still attributed to caste-membership (Galanter, p. 135, 180). Besides, it
should not be neglected that the granted religious freedom implicates caste
autonomy and group integrity (Galanter, p. 180/81). Thus there are still legally
enforceable rights denying an „untouchable“ access to certain areas
of the temple (Derrett, Law, Religion and the State, p. 468ff
).
Still in force are furthermore in sastric tradition
anti-cow-slaughter laws (Galanter, p. 32/33).
Interestingly, very traditional institutions like
damdupat (the interest on a loan of money may not at any time exceed the
principal) and benami (the possibility of purchases and transfer in the name of
another than the beneficial owner) have survived as well (Derrett, Introduction
to Modern Hindu Law, p. 521-23).
b) The Nyaya Panchyats
Later on, reflecting the history of local courts
(panchyats), namely caste and village assemblies, and fulfilling a
constitutional obligation (a kind of concession to the Gandhists), the system of
Nyaya panchyat was established by statute. These courts were supposed to combine
and replace the traditional village councils and the still influencing Brahman
high culture-law, although the possibility of appealing to an official court
remained(Mahr, p. 91ff.).
Without caste elders or legal professionals, they are
composed of elected laymen and are deemed to deal with local disputes. As they
have to apply official law, they are halfway between fully-fledged
jurisdictional courts and mere community institutions (Galanter, p. 88). But
because the judges obtain mostly only very little, insufficient legal training,
they are mostly not really able to understand the law they applied. They are
neither impartial (as official courts were supposed to be) nor reconciling as
the traditional panchyats (Galanter, p. 89).
So, although revivalism certainly enjoyed an important
role in the setting-up of this system, it was never a real revival of the old
courts.
Consequently, the success was very limited. In fact, the
caseload decreased after initial progress, and the official and public regard is
humble (Galanter, p. 96). The Courts were criticized by lawyers and restricted
by judges, some were even abolished, although they at least turned out to be
less expensive (Galanter, p. 44).
On the other hand a complete return to the real
traditional court system seems impossible, because of the need of modernity and
the unconstitutionality of vast parts of the sastric law (Galanter, p
.98).
In the meantime, Villagers use efficiently the official
Courts for their ends – they frequently take the Court as an arena of
competition for social status and dominance, while the actual compensation is
regarded as a minor issue (Galanter, p. 99).
Traditional courts still remain applying traditional
sastric law (Galanter, p. 39/39) and keep a significant impact. They are,
however, more and more influenced by official law and have certainly vastly lost
their great influence in former times.
c) The Codification
The major attempt to fulfil the ends set out by the
Constitution was as mentioned the codification in the
mid-fifties.
In 1955-56, the Hindu Marriage and the Hindu Inheritance
Act, accompanied by the Hindu Minority and Guardianship Act and finally the
Hindu Adoptions and Maintenance Act were established.
A return to sastric principles was not undertaken and
religious support was rejected, although partly impossible, because precluded by
constitutional requirements. So these Acts were mainly based on Anglo-Hindu
law.
These codes foresee a by far greater independence and
equality of woman, giving them the right of being proprietors themselves, a
concept unknown to the sastra.
It is a „momentous experiment“, comparable
with the Code Civil in France in 1804. Predecessors in British India were the
Caste Disability Act 1850 and the Hindu Remarriage Act 1856 among some others in
later stages, especially the Hindu Women’s Right to Property Act
1937.
The reason for this experiment was the desire for unity
and certainty. Indian society at least in the case of the non-Brahmins had tried
to imitate the English and adhered only to basic Hindu rules by now, and even
the Brahmins had adapted to a certain degree. Therefore it was perceived that
the advancement of the Indian society was hindered by the old strict rules of
non-mixed marriages, for instance.
The Acts apply to every Hindu, whereby the definition of
Hindu is established by a negative test as not being Muslim, Jewish or Christian
hence including Buddhists.
In general, individual’s needs now outweigh
community discipline, humanitarian principles are given much greater weight
(Derrett, Hindu Law in An Introduction to Legal Systems, p.
101/102).
Thus, cross-caste marriage, divorce and the adoption of
illegitimate sons and girls at all are allowed.
Moreover, sexes were basically put on
level:
The daughter now has an equal share in the joint family
property, she is entitled to maintenance even if illegitimate.
In succession law, the women have approximately equal
rights in contrast to the patriarchal sastra.
Divorce and judicial separation were established.
Divorce is now possible on grounds like adultery, cruelty, mental illness and at
least two years of separation amongst others - though mutual consent still does
not suffice. The divorced have the right of maintenance.
Besides, plural marriages for men were
abolished
Woman now can adopt without the husband’s consent,
but the institution of the widow adopting a heir to her husband has been
abolished.
The minor’s property cannot be alienated as easily
as before, and deafs and blinds are not generally excluded from property any
more.
Still, however, conversion to Christianity for example
can lead to hardships and disadvantages.
The Mitakshara joint family was not abolished: instead
it was suggested that it was a dying institution one way or the other, but the
main reason might be that there is an extremely significant idea underlying this
concept: a special father-son relationship as a backbone of the Hindu family
incorporating joint religious and social obligations, for the father is deemed
to be reborn in the son who pays the father’s debts and continue his works
(Sontheimer, ICLQ 1964, p. 43).
Therefore, the rights of adopted sons, concubines and
illegitimate sons have been left widely unaffected as they traditionally were
centuries ago, although this is likely be a transitional stage, because western
concepts of family are gaining ground (Derrett, Hindu Law in An Introduction to
Legal Systems, p. 101). Likewise the definition of legitimacy has remained
unchanged.
Interestingly, very traditional institutions like
damdupat (the interest on a loan of money may not at any time exceed the
principal) and benami (the possibility of purchases and transfer in the name of
another than the beneficial owner) have survived as well (Derrett, Introduction
to Modern Hindu Law, p. 521-23).
d) Impact of the codification and conclusion
This is the legal framework for Modern Hindu law, though
it is to examine whether this reflects reality, i.e. if the Indians really live
according to this experimental code.
Not surprisingly, it will be found, that especially in
the beginning non-adherence was frequent. Surely contributing to this was that
no phase of transition was set. Particularly the villagers did not absorb the
new rules.
More general effects of these efforts were that
religious rules are less observed.
Nowadays it may be observed, that the main end envisaged
by this legislation, the equality of women, is attained only to a certain
degree (Betz II,
www.bpb.de/info-franzis/info_257/body_i_257_3.html).
Surely, India had its female prime ministers, and in the
urban middle and upper class the traditional patriarchal structures have
diminished. But still are men dominating in government, parliament and business
(though this is not unknown to the West either) and more significantly
especially in the rural areas and in the lower classes the old customs and rules
have survived. Insofar Hindu Law still keeps its influence
Widow suicides – though decreased – are
still common, female foetuses are killed and female are still married in very
early stages: at average at the age of 13,8 years in the country and 16,2 in the
towns!
The notion that women cannot marry people of lower
castes is still upheld and additionally, women are usually given less food and
obtain a lower level of education
Furthermore, some case law shows that at least parts of
the society still desire to upheld sastric law: several Acts were attacked on
the grounds of the constitutional freedom of religion.
So in State of Bombay v. Narasu Appa Mali ((1951) 53 Bom
L.R. 779) a statute prohibiting polygamy was held constitutional and in Sri
Ventakaraman Devaru v. State of Mysore ((1057) 121 S.C.J. 382) an act
proscribing temple access for every Hindu (in contrast to the traditional
restriction to certain castes at certain times) was unsuccessfully attacked. On
the other hand in Sardar
Syedna Taher Saifuddin v.
Tyebbhai Moosaji (A.I.R. 1952 S.C. 853) the Bombay Prevention of Excommunication
Act (prohibiting excommunication from caste or village community) was lastly
held unconstitutional by the Supreme Court, overturning the Appellate Court,
although this decision was widely criticized.
In reality Hindu Law – helped surely by the
survival of the traditional course - still enjoys a more than important role and
influences the daily life strongly. But the changes brought through
modernisation and westernisation have liberated the mode in which interaction
between members of different castes take place.
3. Future of the legal system in India
India is still awaiting a unified civil code, valid for
the whole country substituting the personal law of today. Several years ago, the
Supreme Court even demanded this measure, which is demanded by one article of
the Indian constitution. This would probably mean an even further alienation
from the sastric principles.
However, the question is if such a juristic uniformity
would enhance a sense of cohesion among the different communities. The concern
of people for tampering with their religious laws is not to be underestimated
and furthermore legislation may not be the effective method to harmonize not
merely superficial but deep-rooted differences in value judgments, particularly
because those might be the foundation of prospering family life, although
sometimes called „irrational“ or „absurd“
(Nanda in Nanda, p. 318).
Therefore a unified code is not very likely to be
introduced in the nearer future, though the Hindu Marriage Act definitely was a
huge step in that direction.
Moreover, in general there seemed to be no nostalgia to
revive sastric law.
However, by now it cannot be excluded that a gradual
return to traditional Hindu, i.e. sastric views and laws might take place. The
reason is that the Hindu-national BJP (Bharatiya Janata Party) since the mid-80s
has enormously risen to currently hold 30% of the parliament seats, representing
the biggest fraction.
This party employs religious-cultural values and norms,
myths and symbols to mobilise the population sometimes quite ruthlessly. They
assert that to be Indian means to be Hindu and thus Hindutva (Hinduism) is
supposed to be the new identity of India. This is to be gained by return to the
pre-existing, unfortunately by now lost, homogenous Hindu
identity (Juergenmeyer,
www.lpb.bwue.de/aktuell/bis/1_98/bis981i.htm ). Here Juergenmeyer
critically notes, the notion of a common Hindu identity is definitely a modern
notion and contrasts strongly with the enormously heterogeneous Hindu
culture.
Anyway, they therefore want to re-establish dharma as
the traditional Hindu order.
However, as they not reject the material improvements
and institutions of modernity it is very doubtful that even if they succeeded to
take over the government they would radically re-install sastric law instead of
the present Anglo-Hindu law, modified by the codification and statutes of the
independent India.
4. Further Countries
Hinduism is not only found in India, but also spread all
over South-East Asia and even parts of Africa.
In Nepal, Hindu law is the foundation of the legal
system (Derrett, The Hindu Conception of Law, p. I-157 ).
In Pakistan it holds influence as personal law for the
Hindu part of the population (see Derrett, Introduction to Modern Hindu Law, p.
537). In Malaya for example, it is applied as a personal law least until 1960 in
case of adoption, the joint family, matrimonial questions and
succession.
Apart from theses countries, in others like Thailand,
Bhurma and China Buddhism, an offspring of Hinduism is predominant or at least
influential. This religion hold a lot of different views, but its legal concept
as laid down in the dhammasatha is vastly inspired by the sastra, the
corresponding 18 types of litigation indicate this clearly (Lingat, p. 267). A
further examination, however, is beyond the scope of this
essay.
In Kenya (See Derrett, Introduction to Modern Hindu Law,
p. 538-46), Hindu Law including the Hindu Code is generally applicable in family
matters, although partly abrogated by ordinances
In Tanzania (See Derrett, Introduction to Modern Hindu
Law, p. 546-49), Uganda (See Derrett, Introduction to Modern Hindu Law, p.
549-55),Zanzibar (See Derrett, Introduction to Modern Hindu Law, p. 555-56),
Aden and to a lesser degree in Surinam as well as the British West Indies
(Derrett , The Hindu Conception of Law, p. I-157) the situation is
similar.
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