Hindu Legal Theory PDF

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Hindu Legal Theory/ Hindu Jurisprudence

1. Introduction:In India, the credit of development of jurisprudence and legal theory goes to as much to the ancient Hindu legal thinkers as it goes to the Western jurists and legal philosophers. The ancient Hindu jurisprudence is known as ‘Vyavahara Dharma Sastra”. Sir Francis Macnaughten has written about Hindu legal system as following: “the merit of having been founders of their own jurisprudence can’t be denied to these people; and those who are all conversant with the decisions of our own courts will acknowledge the analogy which exists between some of their doctrines and some of the texts which I have cited from the Hindu Law”. Hindu legal thinkers developed their own indigenous legal system which is based on reasoning and human welfare. Mayne has observed: “Hindu law has the oldest pedigree of any known system of jurisprudence and even now it shows no signs of decrepitude”.

2. Sources of Hindu Legal System: It is said that all Hindu law originated from the Shruti (Vedas). The ancient sages regard Vedas as the prime source of all human knowledge. They are divine revelation. The great law giver Manu stated, “for those who are anxious to learn about law, Sruti is the greatest authority”. Along with Vedas, the source of Hindu law is the books called the Smritis, i.e., Manusmriti, Yajnavalkaya Smriti and Smriti of Vishnu, Narada, Brihaspati, Vashist, Gautam etc. These Smritis were not laws made by parliament or state legislature. They were books written by certain Sanskrit scholars in ancient times who had specialised in law. Later commentaries (called Nibandhas or Tikas ) were written on these

Smritis, e.g. (Commentary of Vijaneshawara who wrote a commentary called Mitakshara on Yannavalkya smriti) and (commentary of Jimutvahana who wrote a book called Dayabhaga) and Nanda Pandit (whose commentary Dattak Mimansa deals specifically with the law of adoption) Thus, we can say that there have been great Indian jurists such as Narada, Jaimini, Manu, Yajnavalkya, Brihspati, Kautilya. These legal thinkers or jurists founded and developed their own legal system of law and jurisprudence which is better in many respects with other ancient legal systems.

3. Meaning of Dharma or Law:Dharma literally means – to uphold or sustain. Dharma is generally accepted to have been derived and supersede from the Vedic concept of ‘Rita’, which literally meant, “the straight line”. Rita refers to the law of nature, it signifies moral laws and based on righteousness. When something is Rita it simply meant that thing is true and right and nothing more. The dharma evolved side by side of Rita but eventually took over it as the old concept of Rita was not able to cope and solve the issues emerging with increasing social complexities. On being asked by the Yudhistira to explain the meaning and concept of dharma, Bhishma who had mastered the knowledge of dharma replied as, “it is most difficult to define dharma. Dharma has been explained to be that which helps the uplifting of living beings. Therefore, that which ensures welfare of living beings is surely dharma.”

Jamini the author of the celebrated UthraMimansa explained dharma as:

PurvaMimamsa

and

“Dharma is that which is indicated by the Vedas as conducive to the highest good”.

Madhavacharya, a minister to Hakka and Bukka, founders of the Vijayanagar Empire in his commentary on Parashara Smriti has briefly and precisely explained the meaning of Dharma as follows:“Dharma is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. Dharma is promulgated in the form of commands.” In simple words or in conclusion we can say that Dharma is anything that is right, just and moral. 3.1.

Purpose of Dharma: The purpose of dharma is to maintain and conserve established social order as well as the general welfare of the humankind. Thus, it aims for the welfare of the State and mainly its people. 3.2.

Dharma is a wider term than law: In Hindu Legal works, the equivalent word for law is ‘Dharma’. However, it is much wider than the law and it includes religious, moral, social and legal duties. Hindu jurist, Kane after describing the various meanings in which it is used in Vedic literature concludes:“the meaning of the word dharma has changed from time to time. It is referred to privileges, rights, duties and obligations of a man.” The vastness of Dharma and its universality and usefulness to the entire humanity has been clearly explained by Justice K. Ramaswamy in the case of A.S. Narayana Deekshitulu v. State of Andhra Pradesh (AIR, 1996) as following:

“the word Dharma denotes that which upholds, supports and nourishes the stability of the society, maintaining social order, and general well being and progress of mankind.” Thus, the word ‘dharma’ connotes right conduct, observance of which was considered necessary for the welfare of individual and the society.

4. The Observance of Dharma a must for peaceful co-existence:The necessity for practice of dharma is forcefully expressed by Manu:‘Dharma protects those who protect it. Those who destroy dharma get destroyed. Therefore, dharma should not be destroyed so that we may not be destroyed as a consequence thereof.’ In the above saying, the entire concept of rule of law is incorporated. The meaning it conveys is that an orderly society would be in existence if everyone acts according to dharma and thereby protect dharma and such orderly society in turn, protects the rights of individuals.

5. The Concept of Law: The ancient Hindu jurists held law to be the king of kings, for more powerful than kings. Nothing could be mightier than the law, by whose aid, as by that of the highest monarch even the weak may prevail over the strong. To a Hindu jurist, law is nothing but a collection of human practices or customs based upon the principles of morality and natural justice that has been accepted by the society at a particular time.

(a) Law not merely ordering the human conduct or human relations but something more: According to Vedas, law has a divine origin. The Rig Veda conceives law not merely as an ordering of human conduct and adjustment of human relations, but something more, namely, a doing of these things in a fixed, absolutely pre-determinated manner. (b)Manu’s view:-

Sadachar aspect of dharma was law according to Manu. He said that law is an order of human behaviour. This ordering of human relations is absolutely valid and just because it emanated from the will of the God and because it has regulated the behaviour of men, in a way satisfactory to all.

(c) The purpose of law is to ensure security: According to Hindu legal philosophers, the law was created to ensure security of the whole. The creation of law was meant to help the complete realisation of this end. There is nothing higher than law.

(d)Law lays down duties only: According to Hindu legal thinkers, the main purpose of law was to ensure peace and order in the society. Thus, they conceived of “duty” but scarcely spoke of “right”. The word dharma was synonymous to duty. The conduct according to Dharma meant performance of duty towards others and the society in the interest of the community as a whole.

(e) Views of Hindu jurists and some modern jurists are similar: The views of the Hindu jurists and that of many modern thinkers are similar in nature because they also have accepted the predominance of duty as an essential element of law. E.g., Duguit’s View: He denies the existence of private rights. He said that: “the only right which any man can possess is the right always to do his duty”.

Kelson’s view:

Kelson has also suggested that the essence of law is duty. According to him, there is no such thing as individual right in law. (f) Law and Equality: According to Hindu thinkers, equality before law was inherent. But the concept of equality envisaged in Smritis and Dharmasastra didn’t mean mathematical equality. Instead, it referred to equality in the matter of protection and security to everyone. The functioning of the society was modelled on the principle of division of labour and each person constituted an inseparable part of the society. Thus, emerged the Varna or caste system which consisted of four categories. The Varna Vayavastha as it misunderstood today for personal gain, was not meant to divide the society into different classes but it was devised on the sound economic principles of division of labour for the well being of the society as a whole.

Manu’s theory of Equality:Manu proclaimed equality, but by equality he didn’t mean exact sameness. Each has individually a worth which is equally to be respected in human relations. According to him, equality of men is the recognition of an equal protection for the worth of each man. He emphasised solidarity through the division of labour. Duguit’s view: Duguit’s theory of ‘social solidarity’ has some similarity with that of Manu. He made a distinction between two kinds of needs of men in society. Firstly, there are common needs of individual, which are satisfied by mutual assistance, and, secondly, there are diverse needs of the individuals which are satisfied by the exchange of services. Therefore, division of labour is the most important fact for social cohesion. He named it ‘social solidarity’.

6. Importance of Custom in Hindu legal system

Customs have been the most potent force in moulding the ancient Hindu law. The variance in the laws given in several Smritis are regarded to be the result of the incorporation of the local customs of the places where they were written. The commentators of Smritis made it clear that on matters not covered by Smritis, customs would supplement the law. Thus, custom formed a part of the law. This contention finds support in the Privy Council decision in Collector of Madura v. Mooto Ramalinga, wherein it was held that ‘under the Hindu system of law, clear proof of usage will outweigh the written text of law.

7. Religion, Law and Morals Distinguished On the face, religion, morals and law look interlinked. Taking the ancient Indian Legal system into consideration, one can easily infer that the ideas of religion, moral and law overlapped each other. In the ancient Indian legal system, the philosophy of dharma was based on the belief that man possesses outer and inner existence. While his outer existence was controlled and governed by legal rules and morals, his inner self was regulated by the religious precepts. Thus, the dharma embodies the rules of religion, law and morality. Thus, dharma, which had been accorded the status of law in the ancient times in Hindu jurisprudence, took morality and religion also under its preview. The Samritikars, while talking about dharma or law, essentially meant the totality of rules (legal rules, moral rules, or religious rules) governing the social order. It referred to the whole social order which enclosed the all legal, social and as well as moral rules.However, it can’t at all be inferred from this that the Smritikars were not aware of the difference between legal and moral rules. The fact is that they knew the distinction between the two and as and when required they made the same thing clear. Dharma or law included moral and religious aspects:-

Moral aspect As regards the place of morals in ancient Hindu legal system, Sadachar aspect of dharma is morality. Unlike the modern law which is confined to rights, duties and legal obligations without much concern for morals, the ancient law laid great stress on Sadachar, i.e., good conduct or avoidance improper or undesirable behaviour with others. (e.g. a man is under no duty to help a beggar or can neglect his sick and old parents without the fear of any legal or penal consequences but Sadachar did not allow a person to do so as it amounted to undesirable conduct which was condemned by dharma). The ancient Hindu jurists were of the view that when the laws are against the moral rules, they are likely to be disobeyed.

Religious aspect Modern law is mainly concerned with actions or omissions but does not bother itself about the motives. (e.g. if a person kills someone, the law will not look into his motive for the action, even his motive is good he will be liable for the offence) But the religious part of the dharma always focussed on the motive behind the act. Thus religion was meant to protect the universe including human society and dharma stood for ‘religious rights, fixed principle of rules of conduct and the whole body of religious duties’....