Hinduism as a Legal Tradition, Donald R. Davis Jr.
In this article, Donald R. Davis Jr. contends that law is central to a proper understanding of Hinduism. Classical Hindu texts, known as dharmasastras, are not narrowly concerned with matters of individual piety or salvation or with supernatural beings; they also provide fundamental statements of social obligations, offenses, penances, statuses, and procedures for addressing wrongÂdoing and resolving conflict.
“Law” as it appears in the dharmasastras is inextricably connected with a broader cosmology - a theory of the origin and structure of the universe and of human existence. Law in this sense goes far beyond the narrow categories of statutes and case law, crimes and punishÂments, injuries and contracts that are assumed to be its primary concerns in the modern state. Moreover, law in the Hindu tradition is a core component of religious practice and belief, not a distinct aspect of the dharma (a central concept of Hinduism, which Davis explicates in his article). The relationship between law and dharma, according to Davis, is not that of a slice in relation to the entire pie but rather that of the layer of pastry that is present in every slice. Davis makes the broader claim that scholars of Hinduism, unlike scholars of Islam, have failed to recognize the centrality of law to the overall theological framework. In his words, “Dharma as law stands at the center of Hindu ethical discussions and, thus, becomes central to an understanding of Hindu religious life.” A true understanding of Hinduism, according to Davis, is impossible without a full recognition of its legal component.Hindu theologies are pervaded by legal rules, legal categories, and legal reasoning. A gigantic textual corpus and scholastic tradition - the Dharmasastras - are devoted to Hindu religious and legal duties. An increasÂing number of studies have appeared that describe the aspects of practical law among Hindu communities in several periods of Indic history.
And yet, the idea of law figures, if at all, only at the remotest margins of Hindu studies as a field. The question is: what would happen if law became a category through which to think about Hinduism? [...]An intractable terminological problem must be addressed at the outset before I can speak of law in Hinduism. On the one hand, in the most familiar sense of law today, law refers to courts, contracts, and crime and punishment, especially as administered by a state; “the law” means legislation in the form of codes. The problem with this sense of law is that it is hopelessly exceptional, limited historically to recent centuries and geographically by and large to European countries and their current or former colonies. Many have ignored or are unaware that thinking of law as a system of rules backed by the sanctions of a nation-state is neither a widespread nor a very old way of conceiving law. In particular, the last part of the common definition, the notion that law must be administered by a state, especially a nation-state, is the most problematic, and I will ask readers to hold in abeyance the expectation that law must be administered by a state. It seems useful, however, to work with the basic conventional understanding of law both as a heuristic and in order to avoid any accusation of playing word-games. For that reason, I initially understand law in this essay to mean: a socially determined set of rules enforced by authoritative sanctions. On the other hand, law has regularly been used as a suitable, if incomplete, translation for the category of dharma, especially in Dharmasastra contexts. In this view, understanding dharma as law necessitates an expansion of the familiar sense of law to include a wider variety of binding rules that would reach into the realms of religion and, to a lesser extent, morality. Dharma in Dharmasristra encompasses the prescriptions for, the acts of, and the effects of ritual, purification, diet, statecraft, and penance in addition to rules for legal procedure, contracts, property, corporations and partnerships, inheritance, marriage, and crimes of various sorts. However, no distinctions are made between these rules and acts that would correspond to a distinction of law and religion - they are the same; they are dharma.
[...]A series of shared features between dharma and law in the popular sense of a socially determined set of rules enforced by authoritative sanctions shows the close affiliation, though certainly not complete overlap, of the two concepts. A relationship of connection and semantic concomitance exists between dharma and law, and not merely a relationship of encompassment, in which dharma equals law plus religion plus morality, each of the subcategories isolatable from the other. By way of analogy, if we imagine dharma as a pie, law is less like a piece of the pie, distinct and separable from the other parts, and more like a layer of the pie, say the crust, present in every piece, but not fully representative of the whole. In this way, law is not merely an isolatable subset of dharma in Dharmasastra, but rather an integral and essential part of all dharma, even when part of the point of invoking dharma is to remake it along new theological lines. [...]
[D]harma and law are both expressed in the form of empirically ascertainÂable rules (vidhi, codana) that are the “cause of knowing” dharma (Jnapakahetu). [...] Neither dharma nor law is morally intuited, but rather discerned through an investigation of empirical sources. These rules are concerned in the first place with the means and manner of legal acts (kar- anatva, itikartavyata) that is, with specifying what differentiates ordinary acts from legal ones - mere karma from dharma. Legal acts in this sense are the “means for effecting” dharma (karakahetu). The concern for correct or proper procedure also takes into account the inevitability of mistakes, intentional or not, that might nullify a mortgage, unfairly distribute an inheritance, or make an ancestral rite ineffective. Dharma in Dharmasristra provides for both punishments (danda) and penances (prayascitta) that ameliorate or rectify legal mistakes or transgressions. Punishment and penance, although concepÂtually distinct, nevertheless overlap in, for example, descriptions of thieves begging rulers for punishment (as a form of penance) or judges declaring both a punishment and a penance for adultery.
Finally, dharma and law both share a concern to address and eliminate doubts and disputes about what rule governs a particular situation or how to adjudicate conflicts over differing claims to be right or just. This technically comes under the heading of legal procedure (vyavahara) but is also called “the cause of making judgments in cases of doubt” about dharma (samdehanirnayahetu). Doubts and disputes over dharma are expected and normal in Dharmasastra, even as techniques and rules are provided for almost any possible contingency or situation. [...]
Unfortunately, the legal side of Hindu dharma has been lost for two reasons. First, Dharmasristra was improperly understood by the British as the law of the land and administered to “Hindus” as such in colonial India. This move had disastrous consequences in that Dharmasristra came to be seen for a long time as black-letter law and little else. Here, the legal side of dharma has ironically been lost precisely because the artificial colonial focus on Dharmasristra as legal codes could not be sustained in the light of either further investigation of the texts themselves or in the practical context of British colonial courts, both of which demonstrated that Dharmasristra was not a promulgated legal code. Second, reactions against this misconception of Dharmasastra, although fully necessary and appropriate at the time, have inhibited and marginalized inquiry into the Dharmasastra, especially its legal side, now seen as merely a British concoction [...]. Here, the legal side of dharma has been lost due to a false perception that Dharmasrtstra has little or no connection to reality.