2. LINGAT'S DISCUSSION ON THE LEGAL NATURE OF DHARMA
Dharma, explains Lingat, is not merely a “set of eternal laws” inherent in the nature of things but it is also “a morality addressed to man in society,” a morality which specifies the “totality of duties which bears upon the individual according to his status (varna) and the stage of his life (āśramd)” (pp.
3–4). The morality of dharma (superior to that of artha – wealth, interest – and kama – pleasure) is both social and religious: dharma “is essentially a rule of interdependence, founded on the hierarchy corresponding to the nature of things and necessary for the maintenance of social order.” To deviate from its requirements “is to violate one's destiny and expose oneself to the loss of one's salvation” (p. 211). Dharma is transcendent and immutable; its authority derives from the natural order of things, although dharma has no “constraining power by itself” (p. 258). Thus, says Lingat, the “rule of dharma will remain fixed at the very foundation of the concept of law” (pp. 5–6).Hence the problem: Can we analytically disengage the rules of dharma from juridical rules? The latter, quite prominent in Dharmaśāstras “ continue to be incorporated with rules of a purely religious and ritual inspiration.” The rule of prescription (though adverse possession) formulated by Yājnāvalkya, is virtually of the same nature as that which enjoins upon a dvija (a duty of not marrying a woman of varna higher than his own.)” Both these precepts “express or rather determine the requirements necessary to maintain the cosmic and the moral order.” (p. 135) Fulfilment of both the precepts represent an unquestionable religious duty, and accordingly confer “merit.” But are the legal rules expressed in Dharmaśāstras direct sources of law or merely indirect ones? In Lingat's sharp formulation: Do they have the “quality of legislation, the authority of which bears directly upon the judge?” or are they “sources of law only in the sense that religion and morality are amongst the sources of law in Europe”? In Lingat's analysis, the latter will not constitute the “true source” of law.
Lingat's answer to this question is necessarily complex. Dharmaśāstras were obviously not codes “in the European sense of that word,” because, prior to the British period, “there never was in India... a power to pass legislation, in our sense of that word, at least in matters of private law.” Still, the śāstric precepts were not entirely without influence. Apart from the authority they had by virtue of their origin, they also offered (particularly “in the judge's eyes”) “some framework of juridical reasoning” (p. 141). The precepts, however, were exposed to the Scylla of custom and the Charybdis of royal power and governmental policies. The voyage from dharma to law, Lingat emphasizes, became possible because of the labours of commentators on śāstric precepts: it was only with the Mimansa technique of interpretation that “a true juridical science” began in India (p. 143).
One must turn to the art of interpretation (pp. 143–175) to appreciate fully the virtuosity of commentators in interpreting the texts and contexts of the śāstric injunctions and precepts, whether through the techniques of manipulating the distinction between a vidhi (precept embodying an injunction) and arthavāda (additional verbiage offering descriptions, elaborations or reasons for in-junctions), or of manipulating the rules for resolving differences between two śāstric texts of equal authority (see the discussion of Vijnaesvara's exegesis on adverse possession and prescription at pp. 161–167). It should suffice to note here that the juristic concern with interpretation, overtly analytical and exegetical though it may appear, continually made śāstric precepts responsive to social realities, within which they had to function as rules for conduct. Sometimes such interpretation legitimized local customs, the most dramatic example being furnished by Madhyava's interpretation of Manu (IX: 172–173) which prohibits the marriage of a boy with his maternal uncle's or paternal aunt's daughter, common among South Indians.
In a tour de force of exegesis, Madhyava reinterprets the verse to sanction what it expressly prohibits (pp. 169–171)! It is the same type of creative ability which enables both Vijnaesvara and Jimutavahana to derive from the Smriti text “violently opposed theses” resulting into the now well-known “schools” (respectively) of Mitaksara and Dayabaga (pp. 172–175).Lingat warns us, rightly, not to assume that the commentators’ role or function was to “canonize” custom. Customary rules are “often imprecise and incomplete”. Interpretation “offers them a framework which demands adjustments and correctives in enunciation, at the same time it allows gaps to be filled”. It is this framework through which interpretation could exercise influence upon custom “even when custom has not directed its choice” (p. 172). We see continuing examples of this kind of interaction in Lingat's absorbing analysis of contrasts and conflicts between dharma and custom.
The precepts of dharma and of law stand in sharp contrast to those of custom. Śāstric law (religious and juridical) is didactic, religious in conception and consequences. Rule of custom, in principle, “is indifferent to the religious consequences of an act”; customs may be consonant with śāstric law, or may be in acute conflict with it. Śāstric law as eternal natural law is independent of human volition: “the rules govern the activity of men: they are not influenced by man,” whereas custom is a “purely human development”. While dharma, and law related to it, has a “transcendent character”, custom is a “social phenomenon”. Dharma is immutable and universal; custom is territorially limited and variable (pp. 176–177). Lingat shows, however, that these ideal-typical contrasts drawn in literature can mislead us; indeed, he demonstrates that despite these contrasts, the śāstric texts disclose “a place for custom in the genesis of dharma” (p.
177).How does this come about? First, the śāstras explicitly recognize sadācāra or sístaācāra. In a sense, the Good Custom as a source of dharma, “amounts to saying that the conduct of everyone should be ruled by that of Brahmins”, as only they would best understand how to act in a disinterested way, with a belief that the behaviour is required by “obedience for the divine law” (pp. 179–180). Even though some commentators endeavoured to enlarge this conception to include behaviour of those not learned in the vedas, the custom which would count as a rule of dharma “must not only be immemorial but also free from all apparent worldly motives, interest, or utilitarian consideration” (p. 180).
Despite all this, second, the śāstric texts demonstrate clearly the influence of custom in formulation of precepts and whether directly acknowledged (e.g. procedure for hearing of cases) or in-directly manifested through inconsistencies in śāstric prescription (e.g. condemnation of marriage of a dvija with Sūdra woman yet providing rules for a share of paternal estate for a son of Brahmin, Ksatriya or Vaisyaya born of female Sūdra). It may be that the incorporation of custom into śāstric injunctions may be selective, and may transform the rules of custom; but neither the fact of incorporation nor the resultant nexus between dharma and custom can be gainsaid.
Third, the theory of yugas (epochs), especially as developed by Parasara, would seem to make dharma (and law) more responsive to social realities, often expressed through customs and usages of the group. Hindu cosmogony divides each epoch into four yugas: krta (the first golden age) is followed by treta, dwapara and finally the kali (the present, decadent age). Each period has its own characteristics and its own dharma. What varies, according to Lingat, are not the “moral imperatives” of dharma but rather man's capacities “to obey the moral law” (p.
189).Be that as it may, Lingat concedes that the theory of yugas has “led us little by little to the idea” that although the śāstric rules of conduct “retain eternally their redemptive quality, they are not always good to follow” (p. 189). The commentators arrived at this result by asserting that the rule of dharma is not to be followed if it is loka-vidvista (odious to the world) or loka-vikrusta (reproved by the world). A large number of acts, although enjoined by the sdstras, thus become kali-varjyas (acts prohibited in the kaliyuga). The local custom thus triumphs over the śāstric norms, though the intellectual activity of the commentators attempts to legitimate this triumph within the framework of śāstric law. Lingat, however, feels that the kali-varjyas theory has merely a negative character of abrogating old customs. The task is to discover how new customs, contributing to the birth of “new institutions”, emerge.
How did new customary rules and institutions arise despite the orthodox position that a practice contrary to śāstric precepts is evil and sinful? Lingat shows that most commentators used creatively the doctrine of Good Custom to legitimate whole bodies of customary rules existent in different regions. Moreover, the royal duties extended to the preservation of custom, conventions and usages, not merely of the people in a conquered territory but also with respect to groups of his own subjects. The king is advised that dharma can “only prosper in order”: if, therefore, abrogation of custom contrary to dharma is likely to cause disorder, wisdom requires continuance of such custom (pp. 199–200, 224–232).
Lingat concedes that the rule of dharma thus did not become a juridical rule until “it entered into behaviour and was accepted by the population as a customary rule” (p. 202). But he maintains that this “admitted predominance” of custom did not render the śāstric rules any the less authoritative.
The śāstric rules provided the framework for juristic activity; juristic activity, in turn, provided the framework for more precise articulation, adoption and limitation of the rules of custom. Juristic activity put custom in its own place, as it were. A customary rule in contradiction with dharma “is not capable of extension”; the unorthodox rule of custom has no chance of extending its domain”. Lingat insists:“the rule of dharma has an unlimited power of radiation. It offers itself as a model to every group. It fills gaps in custom and insinuates itself into the customary structure. And once it is established there it is fixed thereafter; it is, and remains, dharma, the group's law.” (p. 204)
The crucial differences between the Western legal systems and the classical Hindu legal system, Lingat concludes debatably, is that while the former are founded upon the notion of legality, the latter rests upon the notion of authority. In the former “the primacy belongs to the positive law and in particular to the statute”, the other “sources, by no means inconsiderable, are only subsidiary to it”; whereas in the Hindu classical law the śāstric precepts were seen to be law “in the sense that the word is used in natural science, a law which rules human activity”. Lingat elaborates this point:
“Everyone knows that no one can escape from the law. As a result, one must try his utmost to conform to it. But it has no constraining power by itself. It puts itself forward, it shows the way one should follow, but it does not impose that way. Society is thus organized on the model of itself, with which it is presented as if it had actually achieved it.” (p. 258)
Having said this, Lingat is careful to note that a conception “could have ended in complete divorce between reality and law” but for the fact that the law revealed by the sages was “profoundly based in the traditions and aspirations of the Hindu world” (p. 258). The Hindu system, Lingat concludes, “sustained the unity of the Hindu world, thanks to the authority of the law”. The unity was “unrealizable at the lower level, but was realized on the higher level in an ideal participation amongst all Hindus”. That ideal “received the dynamic imparted to it by faith, by Hinduism itself, with the result that custom and written law are inextricably woven together to give rise to law” (p. 256, italics mine).