Davis's introduction presents an interpretative account of Rocher's many contributions to the field, organized around the themes that recur in his work, and examines his key advances, both methodological and substantive. Comparisons and contrasts between Rocher's ideas and those of his Indological colleagues serve to place him in the context of a scholarly tradition, while Rocher's fundamental view that the Dharmaśāstra is first and foremost a scholarly and scholastic tradition, rather than a practical legal one, is also explored.
This invaluable collection serves both as summary review of the ideas of Rocher, a leading authority in the field, and as a critical evaluation of the impact of these ideas on the present study of law and Indology.
About the Author
Ludo Rocher is W. Norman Brown Professor Emeritus of South Asia Regional Studies at the University of Pennsylvania.
Donald R. Davis, Jr. is associate professor of South Asian religions at the University of Wisconsin-Madison.
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Studies in Hindu Law and Dharmasastra
By Ludo Rocher, Donald R. Davis Jr
Wimbledon Publishing CompanyCopyright © 2012 Donald R. Davis, Jr editorial matter and selection; individual chapters Ludo Rocher
All rights reserved.
Hindu Conceptions of Law
Any discussion of Hindu conceptions of law has to start with the basic observation that nowhere in the Hindu tradition is there a term to express the concept of law, neither in the sense of ius nor in that of lex. Not until the arrival of the colonial powers was the concept of law used on the subcontinent, by Europeans and through the medium of European languages. It was not until 1772, the year in which it was decided that, "in all suits regarding inheritance, marriage, caste, and other religious usages or institution" (Acharyya 1914), the Hindus should be governed by their own laws, that an effort was made to study and translate the Sanskrit books in which the Hindu laws were codified. These books happen to be the Dharmasastras, treatises on dharma. Hence, the equation established by the Western editors and translators of these books was "dharma-sastra" equals lawbook, code, or institute. They also established the equation: dharma equals law.
To be sure, Indians have followed this well-established practice. When it comes to expressing the concept of law in modern India through the medium of modern Indian languages, however, different terms are used. For instance, recent dictionaries of India's official language, Hindi, normally give two terms for law, one borrowed from the Arabic-Persian (Muslim) tradition, kanun, and one from the Sanskrit (Hindu) tradition, vidhi. In addition, when the Indian Constitution was translated into Hindi, vidhi became the official translation for law, both in the text of the Constitution and in the English-Hindi wordlist published along with it by the Government of India.
The reason why modern Indian languages looked for different terms to express law may, at least in part, have been due to the fact that, in the meanwhile, they had all accepted dharma as the Indian equivalent for another concept imported from the West — religion. It is not quite clear when and by whom dharma was first used in the restricted sense of religion. One thing is sure, however, it represents a conscious effort to find, for a category that had no equivalent in India, a word from the Indian vocabulary which, even though it was not perfectly identical, came at least closer than any other available term.
Dharma and Law
After the above introductory remarks, this article will now attempt to interpret the data as they emerge from the Hindu tradition. The pivot of the entire system is dharma, which is neither religion nor law, and yet crucial for the topic of this article — the Hindu conceptions of law. Dharma has been rightly described as "one of those Sanskrit words that defy all attempts at an exact rendering in English or any other tongue" (Kane 1930–62: 1.1). It is therefore essential to approach it from within the Hindu tradition, and describe how classical Hinduism itself understood it.
Dharma is a noun formed with the suffix °ma from a root dhar or dhr. The root expresses actions such as to hold, bear, carry, maintain, preserve, keep. Hence, dharma is the way in which, or the means by which, one holds, bears, carries, or maintains, and, in accordance with semantic development common in Sanskrit, it means not only the way of doing these things, but also the way of doing them. Dharma, then, is the way in which one ought to hold, bear, carry, or maintain. On a cosmic level, dharma is the way in which one maintains everything, the way in which the cosmos or the balance in the cosmos, is maintained. At the micro-level, dharma is the way in which every constituent element of the cosmos contributes its share to maintaining the overall balance. Each element has its own dharma, its svadharma. As long as each element of the cosmos performs its specific svadharma, the overall balance does not suffer. As soon as an element, however, deviates from its own dharma, that is, commits adharma, the balance is disturbed.
Theoreticians of dharma will, of course, insist on the fact that every cosmic element has its svadharma. The sun is supposed to rise in the morning and to set at night; water — the rains — has to arrive at a set time of the year and disappear at another set time. In practice, however, Hindus have primarily paid attention to the dharma of human beings. Each individual human being has a svadharma, which is determined essentially by two factors: belonging to one of the four stages of life (asrama); and belonging to one of the four social classes (varna). From these two factors comes the expression, varnasrama-dharma.
For a better understanding of the Hindu conception of law, one characteristic of the human dharma deserves to be pointed out above all. A person's dharma regulates all activities, whatever their nature. The dharma ordains when the individual shall awaken, how that person shall divide the day, and when the person shall retire at night. The dharma rules a person's diet, quantitatively and qualitatively. The dharma, of course, regulates the human's relationship to the supernatural powers, and prescribes the rituals and ceremonies by which these relations shall be sustained; it therefore deals with the Hindu's religion. Dharma also governs the individual's relations with fellow people; it rules social contacts, many aspects of which belong to the field of law. To put it differently, Hindu law is, together with every other aspect of a Hindu's activities, part of Hindu dharma. Hindu rules of law are to be found in the Dharmasastras, but these texts also contain a variety of other rules which have little or nothing in common with law.
A first important consequence of the concept of dharma is that, in Hinduism, law, religion, and all other topics dealt with in the Dharmasastras are inextricably intertwined. All attempts to disentangle the various categories and to label particular concepts or institutions as essentially religious or essentially legal, are bound to force upon them categorizations which are foreign to the Hindu way of thinking.
An example is the implication, in classical Hinduism, of committing what Western society would call a crime: killing a human being; more specifically, killing a member of the highest class, a Brahmin. Not to complicate the description, this examination shall restrict itself to quoting from a single text, the Dharmasastra attributed to Manu (Bühler 1886). First, killing a Brahmin is ranked among the four great sins, mahapataka (MDh 9.235). Subsequently, punishment for great sins is said to be corporal punishment (MDh 9.236): in the specific case of killing a Brahmin, the brand of a headless corpse on the offender's forehead (MDh 9.237). This rule is followed by a number of social implications:
Excluded from all fellowship at meals, excluded from all sacrifices, excluded from instruction and from matrimonial alliances, abject and excluded from all religious duties, let them wander over (this) earth. Such (persons) who have been branded with (indelible) marks must be cast off by their paternal and maternal relations, and receive neither compassion nor a salutation; that is the teaching of Manu. (MDh 9.238–239)
The text continues that corporal punishment (MDh 9.240) may be replaced by the highest fine, if the killer at the same time performs a variety — too long to enumerate here — of intricate penances described in great detail elsewhere in the text (MDh 11.73–87, 90). Manu then makes the usual distinction between the case in which the crime was committed by a Brahmin and by someone belonging to a lower class; the former has to be less severely punished than the latter (MDh 9.241–42). Finally, in another chapter, the text describes the fate of the killer of a Brahmin in the next rebirth: "The slayer of a Brahmana enters the womb of a dog, a pig, an ass, a camel, a cow, a goat, a sheep, a deer, a bird, a Candala, and a Pukkasa" (MDh 12.55).
In short, killing a Brahmin was a transgression of dharma, with all the consequences thereof. The transgression implies a criminal element requiring punishment by the king, an element of sin to be expiated by performing penances, and an element of exclusion from one's usual social circles. It is also to be noted that the Hindu penal code is strongly influenced by the caste system. For the same offense a member of a lower class is more severely punished than one of a higher class (a Brahmin is totally exempt from any kind of corporal punishment), with the correlative provision that, for the same offense, punishment is higher or lower depending on whether the victim is of a higher or lower class. Also, Hindu crime extends beyond this life, and is linked to the theory of rebirth.
The extent to which private law was interwoven with other categories cannot be better illustrated than by referring to some of the difficulties which the British judges were to experience when they were called upon to apply the dharma texts as legal codes in the Anglo-Hindu law courts. They soon came to the conclusion: "All those old text-books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for positive laws." No matter how much they were concerned not to interfere with the religious beliefs of the Hindus — a concern that is expressed over and again in the law reports — they decided that "the Courts are to enforce only rules of positive law and not religious or moral precepts" (Gupte 1947).
One of the simplest applications of this position concerns the validity of adoption. The Sanskrit texts clearly require that, for an adoption to be valid, a particular ritual, called dattahoma, has to be performed. The question arose, whether or not the dattahoma was a legal prerequisite for adoption, the legal character of which was, of course, never doubted. The dilemma was described as follows:
In certain circumstances the point might be the subject of a prolonged and very conflicting argument, as the authorities, ancient and modern, are not in accord on the point as to whether this is a legal as well as a religious requisite. There is a danger, on the one hand, of not paying due respect to those religious rites which are observed and followed among large classes of Indian belief, while, on the other hand, the danger must also be avoided of carrying these, except when the law is clear, into the legal sphere, so as to affect or impair personal or patrimonial rights.
The result was that, in Anglo-Hindu courts, the legal act, adoption, was separated from the religious act, dattahoma, and that the former was held valid without the latter (Aiyar 1950).
Another, more complex, example involves both adoption and inheritance. The dharma texts forbid adoption of an only son. Vasistha, for instance, allows the father to give, sell, or abandon his son, but adds the proviso, "let him not give or receive (in adoption) an only son" (VaDh 15.2–3). In a case that was to become very influential, the Privy Council reiterated their view that one should not "take for strict law precepts which are meant to appeal to the moral sense," and decided that the adoption of an only son is not null and void under the Hindu law.
Although the dharma texts rarely exhibit justification for their statements, the rationale of Vasistha's rule is clear. The text is obviously concerned about the fact of the natural father who becomes deprived of his only son. The son is, of course, the natural heir of his father. At the same time, however, he is much more than that; he frees his father "from his debt to the Manes" (MDh 9.106, VaDh 11.48), and, after the father's death, he is the only person capable of performing the ritual, called sraddha, which is required for the father to join the ranks of his ancestors. This example not only explains why an only son should not be the object of an adoption; it also shows that what we call inheritance in Hinduism involves far more than the legal rights to an estate.
The Privy Council became acutely aware of the scope of Hindu inheritance when they were faced with a murderer claiming the estate of his victim. The Council stated:
Before this Board it has been contended that the matter is governed by Hindu Law, and that the Hindu Law makes no provision disqualifying a murderer from succeeding to the estate of his victim, and therefore it must be taken that according to this law he can succeed.
It was seen earlier that the Hindu dharma does not condone murder. On the contrary, it is both a crime and a sin. The problem confronting the Privy Council lies elsewhere: who are, according to the dharma, those who are disqualified from succeeding to an estate, and, more importantly, what is the underlying justification? Manu has the following enumeration: "Eunuchs and outcasts, (persons) born blind or deaf, the insane, idiots and the dumb, as well as those deficient in any organ (of action or sensation), receive no share" (MDh 9.201). Murderers are not among them. Those listed in the text as "incompetent to receive a share" are individuals who are unable to administer it, and, also, to perform for the deceased the necessary funeral rites. In this case, the Privy Council decided to overrule Hindu law: "The alternative is between the Hindu law being as above stated or being for this purpose non-existent, and in that case the High Court have rightly decided that the principle of equity, justice and good conscience exclude the murderer."
Sources of Law
Another consequence of the Hindu concept of dharma is that law shares its basic features with religion and all other categories treated in the Dharmasastras. To illustrate this point this article will first present a brief description of these texts, and then it will examine the characteristics of their contents generally and their legal materials in particular.
Excerpted from Studies in Hindu Law and Dharmasastra by Ludo Rocher, Donald R. Davis Jr. Copyright © 2012 Donald R. Davis, Jr editorial matter and selection; individual chapters Ludo Rocher. Excerpted by permission of Wimbledon Publishing Company.
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Table of Contents
Foreword by Richard W. Lariviere; Preface; Abbreviations; Note on the Edition; Introduction; Part One. The Nature of Hindu Law; Hindu Conceptions of Law; The Historical Foundations of Ancient Indian Law; Hindu Law and Religion: Where to Draw the Line; Law Books in an Oral Culture: The Indian Dharmaśāstras; Schools of Hindu Law; Changing Patterns of Diversification in Hindu Law; Part Two. General Topics of Hindu Law; Ancient Hindu Criminal Law; Hindu Law of Succession: From the ‘Śāstras’ to Modern Law; Caste and Occupation in Classical India: The Normative Texts; Megasthenes on Indian Lawbooks; The “Ambassador” in Ancient India; The Status of Minors according to Classical Hindu Law; ‘Quandoque bonus dormitat’ Jīmūtavāhanas; Notes on Mixed Castes in Classical India; Inheritance and ‘Śrāddha’: The Principle of “Spiritual Benefit”; The Theory of Matrimonial Causes According to the ‘Dharmaśāstra’; Jīmūtavāhana’s ‘Dāyabhāga’ and the Maxim ‘Factum Valet’; The Divinity of Royal Power in Ancient India according to Dharmaśāstra; A Few Considerations on Monocracy in Ancient India; Part Three. Hindu Legal Procedure; The Theory of Proof in Ancient Hindu Law; The Problem of the Mixed Reply in Ancient Hindu Law; The Reply in Hindu Legal Procedure: Mitra Miśra’s Criticism of the ‘Vyavahāra-Cintāmaṇi’; “Lawyers” in Classical Hindu Law; Anumāna in the ‘Bṛhaspatismṛti’; Part Four. Technical Studies of Hindu Law; Possession Held for Three Generations by Persons Related to the Owner; The ‘Vīramitrodaya’ on the Right of Private Defence; The Technical Term ‘Anubandha’ in Sanskrit Legal Literature; The ‘Kāmasūtra’: Vātsyāyana’s Attitude toward ‘Dharma’ and Dharmaśāstra; In Defense of Jīmūtavāhana; ‘Dāsadāsī’; The Definition of ‘Vākparuṣya’; ‘Janmasvatvavāda’ and ‘Uparamasvatvavāda’: The First Chapters on Inheritance in the ‘Mitākṣarā’ and ‘Dāyabhāga’; Karma and Rebirth in the Dharmaśāstra; Notes on the Technical Term ‘Sāhasa’ “Fine, Pecuniary Penalty”; ‘Avyāvahārika’ Debts and Kauṭilya 3.1.1–11; The ‘Sūtras’ and ‘Śāstras’ on the Eight Types of Marriage; ‘Caritraṃ Pustakaraṇe’; The Terms ‘Niyukta’, ‘Aniyukta’, and ‘Niyoga’ in Sanskrit Legal Literature; The ‘Aurasa’ Son; The Introduction of the ‘Gautamadharmasūtra’; Part Five. Anglo-Hindu and Customary Law; Indian Response to Anglo-Hindu Law; Can a Murderer Inherit his Victim’s Estate? British Responses to Troublesome Questions in Hindu Law; Reinterpreting Texts: When Revealed Sanskrit Texts Become Modern Law Books; Father Bouchet’s Letter on the Administration of Hindu Law; Jacob Mossel’s Treatise on the Customary Laws of the Veḷḷāla Cheṭṭiyārs; Bibliography; Index