In this respect, the tradition of Hindu law mirrors the significant scholastic origins of legal thought in Europe. See Berman, Law and Revolution, pp. I make no claim to present in these pages a history of Hindu law. Right up front, it is important to emphasize the synchronous, even timeless or ahistorical, self-presentation of the Hindu legal texts. This is not to say that differences between and developments in the texts cannot be attributed, sometimes with fair certainty, to known historical or social factors; but, this is not how the texts themselves present matters.
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Instead, we find a somewhat open-ended group of foundational or root texts, on the one hand, and a series of commentaries on and thematic digests of these root-texts, on the other. We know almost nothing biographical about the authors of the root-texts and only slightly more about the commentators. Dating both root-texts and commentaries is fraught and existing chronologies hardly ever come closer than a century or two in most cases.
In the end, I provide an historically flattened view of well-developed medieval to intervene in the reality of practical law and jurisdiction. This approach to the texts is not without intellectual pitfalls, but it does have the virtue of mirroring traditional approaches to the same texts. More importantly, this approach permits us to see the remarkably stable conceptual frameworks of the tradition.
One of the most amazing things about these texts, in fact, is the longevity of the conceptual and interpretive frameworks used by their authors. Of course, it would be too much to say that a first-century author understood the texts in exactly the same way as a tenth-century commentator or a nineteenth-century pandit, but the fact remains that the commonalities of presuppositions, hermeneutic approaches, and conceptual foundations between these far outweigh the differences.
The tradition very effectively passed on specific ways of writing and thinking that changed but little in the course of time. The historical certainty of massive social, religious, political, and legal changes outside this textual tradition is simply not easily discerned in the texts themselves. Since the purpose of this book is to understand the tradition, its self-understanding, and its self-presentation, questions of history, profound and necessary as they are, find only a marginal place in this book.
More specifically, I intend that the Sanskrit word for law is dharma and, more importantly, that the English word for dharma is law. Dallapiccola ed. In this case, however, it is the best kind of trouble, in which a conceptual mismatch, a partial overlap, forces us to reconsider and rethink what we already know. For those interested in law, I will argue that dharma helps to reveal understudied interventions of law in ordinary life.
For those interested in Hinduism, I will try to show that a focus on law uncovers a pervasive and power role for law in this often mythologically and esoterically defined religion. The main social location of this other religious tradition in Hinduism, the household, is by no means unknown in scholarship. Rather, it is taken for granted or linked somehow to other religious practices. I believe this religion of the household has been subsumed or underemphasized, in part, because scholars have not considered it to have its own theology. It is a theological system focused on discovering and transmitting the religious significance of ordinary human activities, especially those linked with the family, household, and other localized institutions.
Such a household theology, or theology of ordinary life, takes the form of law. From the Hindu law tradition, therefore, we may learn that the greater part of law everywhere incorporates a similar theology of ordinary life, and that this accounts for the inextricable links between law and religion. A few final introductory remarks. I make no apology for the simultaneously Hegelian and Pauline title of the book, because I believe it invokes the right kind of associations for my argument.
In religious studies, readers should expect more emphasis on intellectualist views of religion over psychological, sociological, or phenomenological approaches. The nature of the evidence partially determines this choice, but I also want to argue that theology and hermeneutics are as central to religious life as ritual, experience, and identity.
Indeed, I want to suggest that all these characteristics of religion interpenetrate one another. By combining the insights of methodologies in both legal and religious studies, I hope to bring the rich material of the Hindu law tradition to bear on questions that matter today, issues that continue to attract and confound academics and professionals in their efforts to improve the world around us through better understanding. Sources of legal authority speak to both the religious and social foundations of the law.
In most legal traditions, the sources of law can usually be categorized in terms of morality, politics, and history or universal, legislative, and traditional rules, respectively. Hindu law is no exception to this scheme, though, of course, the particular emphases given and how each source of law is described and conceived relate to the history of law in India and the development of Hinduism. In the case of Hindu law, the de-emphasis on legislation and the commands of political rulers strikes the modern reader as its distinctive characteristic.
More broadly, we can say that the Hindu legal tradition maintains that the main authority over, and responsibility for, law occurs at the level of community, not state polity, and that the paradigmatic community is the household or the family, especially the household of an educated Brahmin male.
Knowing how and why these sources are justified as authoritative provides insight into how the household became the exemplary institution of religious and legal reflection in Hindu jurisprudence. Small-scale communities such as the household are more effective both at imposing common values and goods and, at the same time, convincing their members of the advantages and benefits of accepting those core ideas.
The discussion of common goods will lead finally to an examination of how a cardinal legal principle of modernity, the rule of law, might be understood against the legal theology of the Hindu tradition. The comparison of two different formulations of what constitutes basic legal authority helps us see the weaknesses and strengths in each. In this context, there are two words for source in Sanskrit.
The latter is frequently used as a gloss or synonym for the former in commentaries on the early texts. Therefore, the tradition generally understands the sources of dharma to be sources of knowing what dharma is. The first and theologically most important is the Veda or Vedas. Whether singular or plural, this source refers to the four collections of oral texts of hymns, praises, and ritual instructions pristinely preserved for more than three millennia by Brahmin reciter-scholars.
Nevertheless, there is an intriguing ambiguity between the meaning of the Veda singular and Vedas plural. The plural can only mean the texts just mentioned, but the singular also has a more abstract meaning of knowledge taken generally. It is all knowledge and the totality of perfect knowledge existent in the cosmos itself. The tradition generally acknowledges that not all Veda has been communicated in the Vedas. Neither may be impugned in the slightest, but the extant Vedas can sometimes be incomplete. Theologically, it is this incompleteness that allows other sources of dharma to exist at all.
Compare the following three statements: The source of Law is the Veda, as well as the tradition and practice of those who know the Veda. GDh 1. What is given in the tradition is the second, and the conventions of cultured people are the third. BDh 1. When these do not address an issue, the practice of cultured people becomes authoritative.
VaDh 1. Only the elite few can learn directly from the Veda that the Veda is the first and truest source of dharma. That semiosis constitutes the theological link between the Vedas and the details of the dharmas found in the texts and customary laws. Put differently, the spirit of the Veda pervades the sources of dharma and contains their authority.
Medh on Mdh 2. This is a text of traditional teaching and it states things which are well-established. I have already stated that what is said here is directed to those are learning about dharma solely from traditional teachings. That sanctity is guaranteed by the character of its transmitters and the unbroken chain that links present knowers of the Veda to those of the distant past.
Less important is the text itself. But, people of this generation would not learn what is dharma from his text because they would also have whatever sources of information he had. To the extent that someone of this generation does not show his sources, the learned do not accept his word as authoritative. If the sources are shown, however, and the text is accepted as authoritative at a later time, then it is right to infer a Vedic basis for these because there is no other explanation except for its acceptance by the learned. The two do not diverge at all with regard either to performer or to act.
Whoever performs what is taught in the extant Vedas, if they themselves do something else in a certain way, then that too is based on the Veda. Acceptance by those who know the Veda is the most important criterion for authority in regard to dharma. Such acceptance imparts a Vedic quality to the text, despite the fact that subsequent generations come to know about these dharmas through a humanly authored text. The Vedic connection is indirect, but fully transitive. Customary law finds its authority in effectively the same way as the traditional texts, i.
Otherwise, all normatively accepted practices of the learned are themselves dharmas and sources of dharma for others. Both texts and practical legal systems, however, recognized the legitimacy and authority of customary law via the social consensus of plural communities in India. In this chapter, we are interested in the first justification, saving the second for Chapter 7. All texts without exception rank the sources of dharma as follows: 1 Veda 2 Traditional Texts 3 Customary Law This ranking and image of conflict, however, can easily be overstated, because of the fact that superior sources are frequently silent on matters affecting people and these are dealt with in inferior sources.
In practice, what this means is that the three classic sources of dharma tend to apply to distinct and different realms of human action. In order to complete the enumeration of the sources of dharma, we must mention these. At the same time, I will argue that this fourth and fifth source failed to be accepted as a truly significant source of law by the later tradition. MDh 2. But, the commentators will have none of it. In other words, so long as all other sources have been consulted without finding a relevant rule, then one may just do what one wants.
However, it is clear that the tradition effectively explained the source away, assigning its significance to a strongly restricted and generally trivial realm. By giving personal pleasure and preference the status of dharma in certain limited circumstances, it would seem that every level of human action, no matter how insignificant, is connected to dharma. L aw a n d t h e hous e hol d The institution to which Hindu law mainly applies is the household, not the state. A focus on the household and family in Hindu religious thought extends deep into the earliest Vedic texts that we have.
The fact that the household is the ideal institutional context for both the theory and practice of Hindu law does not mean, however, that the political state is ignored, but rather subordinated jurisprudentially to a larger legal theology. Dharmas of the castes, showing the subordinate place of political rulership I. Brahmin a. Graphically, the subordination of polity to household may be shown as follows, in Table 2.
Instead, they have the special duty to serve Brahmins and the other twiceborn castes. His outline of the topics of the Laws of Manu demonstrates very clearly the prominent and extensive, but structurally subordinate, place of political rulership in the scheme of dharma. More often, however, the term is simply a synonym for Brahmin. To limit law to this realm, however, is from the Hindu perspective and, I would argue, most historical legal systems artificial and incomplete.
The more salient institution in Hindu law is the household and it is the household that structures both the exposition of and the conceptualization of dharma.
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GDh 3. In other words, the texts privilege the householder stage or form of life as the best, rather than the household. Nevertheless, the larger implication is clear and is further corroborated by examining the list of topics dealt with in dharma texts. Almost all the topics have a connection to the household, to a ritual, or to both. We are now able to come back to the question of the sources of Hindu law. The absence of legislation or royal edict as authoritative sources of law makes more sense, when we recognize the social context presumed by Hindu jurisprudence.
It is this inversion that strikes the modern reader as quite different from modern legal thought which has increasingly tended to publicly disavow interference in the socalled private realm, the realm of the household. The inversion within Hindu law, however, is in fact the norm for most systems of ancient and medieval law. In this way, the life of the law in real persons and its connection to questions of power and strategy are lost.
Despite the efforts of the Legal Realists and the Law and Society movement to expose and emphasize the impact of everyday life on legal processes, the fact remains that we are still uncomfortable with a form of legal discourse and debate that focuses on the personal side of law, i.
Duncan M. Derrett ed. The privileging of the restricted view of law creeps even into work on religious law. The best reason to challenge the restricted view of law is that modern legal theory tends to focus on law in its breach, the violations of law that expose how rules work in practice and how contraventions of the law are punished. Hindu jurisprudence, by contrast, concentrates on law in its fulfillment. For this reason, modern legal theory is conceptually indisposed to consider the crucial question of how and why people do in fact follow the law most of the time.
The centrality of the household corrects not only certain views of law in India and elsewhere; it also challenges us to reconsider similarly restrictive accounts of Hinduism as a religious tradition. An emphasis on the householder corrects prevailing emphases within the field of Hindu studies that continue to suggest that Hinduism is lived as much or more outside of home and family as inside. Thomas J. At the same time, we ought not to dismiss theologies and their categories because they confirm the historical existence of so much more than just scholastic traditions.
The theology of the householder, even if sometimes not considered the highest or best religious path, is always the norm in Hinduism. Renunciation, ecstatic devotion, and extreme Tantric ritual have all been proffered as superior religious paths within the Hindu tradition, but their common point of departure is the religion of the householder. Olivelle summarizes this ethos as follows: A twice-born man, following his vedic initiation, studies the Vedas at the house of his teacher; after returning home he marries a suitable wife and establishes his sacred fires; he begets offspring, especially sons, by his legitimate wife; and during his entire life offers sacrifices, recites the Vedas, offers food and water to his deceased ancestors, gives food to guests and mendicants, and offer food oblations to all creatures.
Returning from religion to law, we might ask what advantage there is in thinking of the household as the foremost institutional location of law.
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What the household as a community can possess more easily than almost any other form of community is a set of common goods that shape the legally constituted world of its members. The teleological or goal-oriented view of law in such contexts, as old as Plato and Aristotle, is realistically achieved at this scale.
In modern societies, the element of community and shared goods in the law is most often the responsibility of a system of popular representation, such as a parliamentary democracy. The focus on the household in Hindu jurisprudence may afford us an opportunity to view a social level at which a teleological structuring of law is practicable and, in addition, to see what implications such teleologies have for both the macro and intermediate levels of legal economy. Indeed, the word and its derivatives are very often translated as authority.
Content-independent legal commands are commands given with the idea that they will be obeyed simply because they are commands, and not because the content of the command is justifiable, demonstrably beneficial, or rational. In practice, the rule of law could never, of course, be separated from the rule of man, because without human administration the law means nothing.
If a twice-born disparages these two by relying on the science of logic, he ought to be ostracized by good people as an infidel and a denigrator of the Veda. In other words, one can challenge the scholastic interpretation of the commands found in these sources, but not the commands themselves. First, he points to worldly affairs such as agriculture and labor which prove their benefits to mankind through directly perceivable results such as crop-yields and wages. The connection of dharmic action and results cannot be shown by logic or direct experience, but rather only through the authoritative attestations of the texts.
Here, the experience of tradition, not of the individual, witnesses to the truth of the textual statements. More importantly, he does not frame his case by insisting upon a moral validity for the general rules against killing. Moreover, the following verse separately confirms the peremptoriness of the first two sources of dharma. But, the achievement of a ritual sacrifice and so forth. In other words, the content does not matter at all, only the fact that it has been commanded in an authoritative source.
The Spirit of Hindu Law by Donald R Davis Jr
We must infer that the living tradition in the form of customary law would also be immune from any challenge to its authority, because its legitimacy derives from its theological continuity with the textual sources. One cannot challenge the fact that one must perform what is commanded and avoid what is prohibited, but how one satisfies the requirements of the command or prohibition is open to interpretation. Authority thus has two levels that are at the heart of legal obligation and the prevailing common sense about law. Aside from occasional references prohibiting punishment of rulers, I find nothing in Hindu jurisprudence to suggest something similar and I doubt whether any religious legal system could seriously entertain this possibility, given the superiority of divine law.
Nations and institutions almost never challenge the idea and entry into the presumptive goodwill of others entails a prior and public commitment to the rule of law. At the same time, the rule of law is one of the most disputed and yet widely used concepts in contemporary legal and political discourse.
Though many notions of the rule of law have been offered in Euro-American political philosophy,37 its most frequent function in present discussions is to serve as a kind of universal litmus test to evaluate the fairness and legitimacy of nation-states, especially in the context of human rights debates. So, a nation under attack for aggressive military or police actions will reassure international observers by asserting that the rule of law remains intact and that what seem like human rights abuses are in fact legitimate uses of state force carried out under rules of law.
Conversely, observers of atrocities and political critics regularly speak of the breakdown in the rule of law as a prime factor in permitting violations of human rights to happen. A conceptual superiority of laws is tempered by a practical privileging of lawful persons. The formulation, which I call the rule of the lawful, tries to avoid the problems with a total depersonalization of law, specifically a tendency to disengage from questions of power.
Rule of law discussions inevitably degenerate into debates about the nature and content of the rule of law itself. The rule of the lawful concept promotes political and legal control by members of a community who have already benefited from the creativity and accomplishment afforded by law. In most ancient legal systems, including Hindu law, that group was invariably identified with the ruling, elite class. The revelation and revolution of modern democratic governance has been to identify the lawful with the populace as a whole through some mechanism of representation.
In other words, those not charged with guiding and administering the legal system are least likely to be susceptible to corruption and power-mania. Nevertheless, the emphasis in rule of law rhetoric is on the burden of the state or other lawmaking power to enforce paper rules in real situations of conflict, violence, and desperation.
The setup is one of fear and controlling violation or transgression. The emphasis in rule of the lawful rhetoric, by contrast, is on the burden of individuals and pluralistic communities to accept sometimes difficult rules and roles in order to participate in the higher order coordination and achievement offered through this kind of collective sacrifice.
Both rule of law and rule of the lawful are necessary for a legal system to operate effectively.
In the household, the idealized location of law in Hindu jurisprudence, rule of the lawful surely dominates, but not without a considerable conceptual importance granted to the house rules. Similarly, international treaties and national-level uses of violence and so forth clearly require rules that transcend the fiat or rule-making capacity of one person or one corporate body. Still, it is often the lawful character of the actors in such situations that complements the stagnant rules, giving them life and contextual purpose.
See, for instance, Richard L. Abel ed. There are statements calling on a ruler to always conform to the dictates of the legal texts and tradition,41 but others that seem to place the ruler and Brahmins above the law. The authority of law depends upon the progressive elimination of choice in the contexts of ordinary life.
Nevertheless, these people choose to obey. Each act of compliance involves a choice to comply. When someone submits to an authority, they must sincerely attempt to constrain their future selves. However, even that choice is obviously constrained by the difficulties involved in wholly opting out of the social world to which a legal system pertains. For example, Laws of Manu 7.
This source is ironically intended to act as a final constraint against completely free choice by appealing to the substantive Vedic quality of people, the transmutation of tradition into character, that actually constrains choice even in situations of technical option under the law. This work informs or inspires much of the present chapter. The tradition quickly found ways to reconcile any apparent contradictions or problems between the different conceptions of dharma. That reconciliation and its hermeneutical and ethical implications for Hindu jurisprudence are the subject of this chapter.
Olivelle ed. I thank him for sharing a copy of the work with me in advance of its publication. As such the givenness of the words of the Veda implies that humans should respond automatically and purposefully to what the Veda tells us. Primarily, this means that humans must follow the injunctions of the Veda. A metaphor is often employed here in which the familiar experience of being commanded by a parent, teacher, or boss in ordinary life is transposed into the cosmic frame of commands that are simply out there, woven into the fabric of the universe itself, and requiring our dutiful response.
Just as we obey the inevitable commands of ordinary life in order to obtain the benefits of love, training, and remuneration, so also should we obey these revealed commands in order to obtain myriad benefits to ourselves, our families, and the world at large. The first key to understanding the Vedic commands is learning to recognize what is primary and what is secondary. The determination of the primary and secondary elements of a rite in turn depends upon an awareness of what is prompting the rite and how it must be organized to be effective.
It matters, for instance, whether one is performing a rite because it is a mandatory and regular part of ritual practice, say the five daily firesacrifices, or because one desires a specific and personal outcome, say the birth of a child. The motivation of the ritual is thus intimately connected to its overall organization and the big picture of what one is trying to do.
Heavily involved in that organization is the precise order and sequence of the little acts that comprise the whole rite. Entitlement also implies responsibility and duty, however. The reward of a rite is not its goal, or at least not its only goal. The determination of who is entitled to perform sacrifice resembles the determination and arrangement of other constituent pieces of the rite. The identity of the sacrificer impacts other aspects of the rite.
As a result, every rite is a reworking of another and borrowings are rampant. Transfer is considered both abstractly and concretely with sophisticated logics developed to justify transfer and minute consideration given to the details of particular transfers. As one would expect, such transfer must have frequently meant modification as well, owing to the need to amalgamate pieces of different archetypal rites into a new form. Hence derive the rules for modifying transferred elements and for prohibiting transfers and modifications under certain circumstances. In the first cross-over, limited rules are provided that permit a single action or single group of actions to in effect count twice by being simultaneously part of two conceptually distinct rites.
The first cross-over is a rule of economy that obviates the need for repeated action in instances where the injunction may be fulfilled through common actions. In the second, rules are given to allow subsidiary elements of one rite to serve as part of the performance of another. Here, the borrowing is not the more important derivation of ectypal rites from archetypes in the process called transfer, but rather the importation of subsidiaries from one ectype to another.
Alternative schemes for describing the complete system are available, however, both from within the tradition itself and from modern scholarly accounts. Injunctions are divided most often into four further subcategories that include originative, applicatory, performative, and qualificatory. An originative rule tells us what a primary rite is, while applicatory rules specify what is subsidiary to those primary rites and how they are to be applied in different contexts.
Performative rules clarify the ordering of rites both in terms of timing and sequence. Finally, qualificatory rules specify who it is that is entitled to the benefit of a rite and the necessary qualifications of one who performs a rite. When interpreting any text, therefore, one is primarily seeking to discover what it is that is being commanded. All other categories of textual expression subserve this theology of command. An explanation basically has no compulsory element about it at all. Classifying texts in this category thus neutralizes any binding force they might appear to have, without denying them a marginal supporting role.
Prohibitions act, as one would expect, as negative injunctions, rules against doing something. The interpretation of prohibitions thus mirrors much of what applies to injunctions, though obviously without any need for subcategorical rules that elaborate or qualify the prohibited acts. The existence of prohibitions raises two common hermeneutical issues that affect Hindu jurisprudence. The first issue pertains to circumstances in which the straightforward interpretation of a textual statement as a prohibition would necessitate other more problematic interpretations of surrounding statements.
For instance, if a section purports to list a series of acts to be done, as opposed to being avoided or not done , then interpreting any individual act as something prohibited contradicts the general purport of all the rules and would call into question the other rules in the list. As dissatisfying as they are, resorting to options occasionally untangles very thorny interpretive issues raised by unassailable revealed texts.
Spirit of Hindu Law. By Donald R. Davis, Jr. | The Journal of Hindu Studies | Oxford Academic
See MNP Hermeneutics and ethics 53 to remind ritual performers of some element connected to the rite being performed. Their recitation is mandatory according to the relevant injunctions, but formulas themselves do not serve the transcendent effect of the sacrifice. Names, by contrast, do supply a level of meaning to the overall rite by acting as one means of specifying new rites, acts, deities, or implements that then take on a concrete denotation.
As with religious rites, omissions and violations nullify the beneficial effects. For example, one has to determine various entitlement factors that will make certain rules apply or not age, marriage, blindness, children, military status, etc. Subsidiary forms or worksheets are sometimes required in order to properly complete the 54 The Spirit of Hindu Law main forms and the booklet helps the taxpayer determine exactly which secondary forms for capital gains, dividends, medical deductions, childcare expenses, etc. Even within the main form, one must calculate income before determining various deductions.
In other words, there is a definite order in which the rules must apply and a number of subsidiary forms required to support and complete the main form. Many elements are transferred or carried over from one form to another, along with the relevant interpretive framework for filling them out. In some cases, a single form can serve two purposes or filling out one form can subserve the completion of another as, for instance, when a completed federal tax form is used to prepare a state tax form in the United States.
Everyone should perform rites and everyone should pay taxes, but very few can or need to master the full regulatory system in order to do what they must do and what they want to do. Small pieces of the system must be consulted or mastered by ordinary people. Still, the full system is there for particular reasons and, in times of need, having experts who can handle the whole thing is essential and useful. Law could never be subordinated to any personal force. In place of the Veda, the abstracted community of tradition was accorded pride of place as the impersonal force of stability in law, its moral compass so to speak.
The personal element ensures a capacity for adaptation and contextualization in practical ritual and legal contexts. The commentators on Hindu law are primarily interested in the correct interpretation of its basic texts. This classic position, accepted generally as the better interpretation because it upholds all the textual statements and avoids the last resort of simple option, formed the theological foundation for the well-known four life stages of Hinduism referred to in every primer on the subject.
The key word for any commentator is seemingly. The main verses in question are as follows: He may eat meat when it is sacrificially consecrated, at the behest of Brahmins, when he is ritually commissioned according to rule, and when his life is at risk. Doing it for any other purpose is called the rule of fiends. The Self-existent One himself created domestic animals for sacrifice, and sacrifice is for the prosperity of this whole world.
Within the sacrifice, therefore, killing is not killing. Abstaining from such activity, however, brings great rewards. Furthermore, just as Hindu law distinguished mandatory rules vidhi from recommendatory praises, exhortations, and explanations 58 The Spirit of Hindu Law almost all the verses from 5. Moreover, since eating meat is the primary act over the act of killing, the question of killing itself can never trump the permissibility of eating meat.
Both are the law, dharma, but the dharma that produces higher reward is to be preferred over that of mere acceptability. In this way, the legal permissibility of eating meat is tempered by an equally legal encouragement to abstain from it insofar as possible. Now, my characterization of an encouragement to abstain as legal will certainly and hopefully strike some readers as wrong. Law consists not only of enforceable rules and the recognition of permissible actions, i.
We find a parallel juxtaposition of obligatory and recommended rules in Islamic law. We thus have. Compare Robert M. It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution. What happens if we play the game in reverse? Is it possible that what we call law actually contains lots of recommendations and disapprovals, many acknowledged as unenforceable in practice, without recognizing these as part of the law?
Zaidi ed. Ownership, therefore, must be a mundane affair. So what do these examples tell us about the good of Hindu law, i. Upholding of the Vedas and of the sacrifice is now only a part of a religio-legal project centered on worldly affairs. These are concerns affecting the general realm of human action, not merely the ritual. The shift is hard to discern because both traditions focus on dharma. The parallels are striking, but the contents are distinct. Proclaiming, promulgating, and enforcing the law all took a back seat to interpreting the law, at least in the scholastic tradition.
In classical Hindu legal texts, therefore, law is both constitutive of the good life and the instrument for establishing the good life for oneself and for others. The emphasis is on what law enables, rather than what law restrains. Having discussed the first in Chapter 1, we must now examine the further implications of the latter two.
Both issues connect to ethics as conceptualized in Hindu law, or, stated more broadly, what do hermeneutics and ritual have to do with a legalistic view of the good life? The cultivation of skill in interpretation, specifically the hermeneutic ability to bring textual sources to life in the present moment, is understood as an essential element in the ethics propounded within the spirit of Hindu law.
It is the ethical ideal to be harmoniously in tune with the spirit of the Veda, the tradition of prior sages, and the present political and social contexts when making ethical decisions about how to act. How is an act of legal interpretation related to ethics?
From the perspective of Hindu law and most religious laws, hermeneutic constraints in fact predetermine a good proportion of what goes into ethics. Hermeneutics is thus the art of bringing tradition to bear on the contexts of ordinary life, of making a place for surprise on the landscape of prejudice. Brill, Rules in Hindu, Islamic, and Jewish traditions are not themselves law, but they help law come about. Of course, the parallels are not perfect, but the commonalities are sufficient to show a widespread view of law in which law is a path or a way that is forged through acts of interpreting legal sources.
Again, each tradition recognizes an ideal person who embodies both the process and the ethical good involved in consciously entering the hermeneutic life. The question from an ethics standpoint is how does one become such an ideal person? The process of ethical subordination in religious legal systems entails a related process that distinguishes the creative power of law as presented in such systems from the way it is presented in modern legal theory. Rather, human participants in the sacrifice are considered and evaluated in terms of their place in the larger framework.
More important in fact than the actor is the action. If action is right, then good will follow to its performer. The contexts of proper action, i. Contextuality is restricted by tradition, both in the form of normative texts and normative habits. The focus on the event over the person demands a self that is reduced to a series of functional roles that subserve the event of the sacrifice or of society.
Like the seemingly dehumanizing feeling of reducing oneself to the set of numbers submitted to the tax authorities in the metaphor above, so the ethic of dharma necessitates a displacement of humanity from the center of attention. It sought a justification for sacrifice that needed no external validation, either from active gods or satisfied humans, and that required the positing neither of any supernatural realities nor a reliable world order beyond that of good Sanskrit texts, well-performed sacrifices, and a set of rules for integrating the two.
First, the idea that law is a ritual forces us to see that law is comprised not only of the rule, but also of the precedent of tradition and of the performance of the appropriately determined rule. Hacker has called this dharma before, during, and after its performance or fulfillment Vollzug. It is a complex, and very often subtle, process of appropriating tradition for the purposes of carrying out ordinary actions. The process is best understood with the aid of substantive metaphors.
Dharma as tradition is a thing, a pool of goodness or merit, a constructed pathway. When tradition informs action through the medium of hermeneutics, the result is law. Second, law according to this view should have a purpose and should bring about a good. We see this most clearly in the idea that dharma is, among other things, merit or righteousness.
Under such conditions, law and ethics tend to converge because the telos of the system acts as the common standard against which to judge both legal and ethical rules and actions. The common standard also makes space for a debate grounded in hermeneutics, but a debate that never challenges the axiomatic goals of the system as a whole. The ruler, like all individuals, is not at the center of the system, and yet the ruler has a greater responsibility for its protection and flourishing. A final key issue that links law, ritual, and hermeneutics is what might be called the theology of command at work in most, or all, religious legal systems.
Hermeneutics is the process by which revelation is continuously remade in the contexts of ordinary life. Conformity to rulings of hermeneutics, meaning the performance of the actions determined to have been commanded, constitutes the core of ethics. Each element is necessary for law to emerge in its fullest sense. Reinhart makes this connection beautifully in A. The other is the relationship of persons and things, to be considered in Chapter 4.
Together, we might use the Hindu jurisprudential views of these two legally recognized forms of human interaction with the world as a kind of summary of the substantive law in the Hindu tradition. In particular, it is in these interactions that we will find the most visible connections of law, theology, and ordinary life that undergird the legal imagination in Hinduism and, as I have argued, in all legal systems. Various types of relationship exist between people and these can all be reified or instantiated by the law.
Think only of the historical significance and tragedy of laws pertaining to masters and slaves.
The law promotes or prohibits these relationships according to certain fundamental views of human nature and life itself that are literally written into the text of the law. Debt or obligation becomes in Hindu legal texts a paradigmatic metaphor for describing all human relationships. Debt in this latter, more technical, sense is the first and main subject of the first title of law in Hindu legal procedure and is thus paradigmatic for others.
In this chapter, we will examine the religious and legal implications of the notion of debt in Hindu legal texts and explore how debt underlies and structures legal procedure and constantly circles back into the connection of law and ordinary life. All three are part of the as a kind of apologist for empire. My presentation of the doctrine of congenital debts relies heavily on these two studies. Vedic study is expected of all twiceborn males. Similarly, marriage is the rite of passage for becoming a householder and the means to obtain children. The three debts are a chain of transmission of dharma linking the households connected with a man at different times in his life.
After marriage, he establishes his own household, carrying the knowledge he now has into a new context, quite literally into a new microcosm of all that is most important in his life. With the birth of his sons and their eventual studentship and marriage, the father passes on the same congenital debts and, in fact, depends upon their fulfillment for his own flourishing before and after death. The chain of dharma thus moves from father to son, but, more importantly, from household to household.
The Laws of Manu sets forth the doctrine of triple-debt as follows: Only after he has paid his three debts, should a man set his mind on release; if he devotes himself to release without paying them, he will proceed downward. Only after he has studied the Vedas according to rule, fathered sons in keeping with the Law, and offered sacrifice according to his ability, should a man set his mind on release. MDh 6. The parallel between the triple-debt and the structure of these five sacrifices is sufficient to suggest some connection between them.
Paying the three debts becomes the prerequisite for entering the fourth and final stage of a renouncer. Each of the three debts implies, even demands, a specific mode of life or set of roles that a man must take on in life. The debt owed to the ancient sages impels a man to take on the knowledge and the habitus of tradition as symbolized by the study of the Vedas. Through Vedic study, a man brings his past self into line with tradition. All debt is the presence of death. The role of sacrificer defines a man centrally in terms of his present self. It is an essential element in the religious definition of man.
But further, it is made to account for the fundamental drive that is the desire to reproduce. Together the triple-debt presents a man with the requirements necessary to become fully human and thus serves as one kind of epitome of the religious life in the Hindu view. Unlike the theology of debts, however, the aims of life seemed not to have become a part of Hindu theological agendas until later in Indian religious history.
The latter, he says, consist of the rules for giving and receiving mentioned at NS 1. We turn, therefore, to a consideration of debt in Hindu jurisprudence with a focus first on the title of law called The Nonpayment of Debts. Third, there are long discussions of security and guarantees associated with contractual debts. Legal sureties are human guarantors against default on a loan.
Similarly, we have the descriptions of collateral sureties in the form of various mortgages, principally custodial and usufructuary, but incorporating also sub-mortgages, leases, and hypothecations. Finally, the text also discusses the proper procedures for the recovery of debts, both judicial and non-judicial; these rules also specify the order of who gets paid back first and in what form. Even in the first reading, which Lariviere accepts, he does not account for the particle ca, which adds to the list of other elements of debt already enumerated.
In particular, the legal obligation of donors to make gifts only of permissible property i. Interestingly, the topic of legal witness usually appears under the Nonpayment of Debts. Like sureties, witnesses accept a certain responsibility for the debt being contracted, though without the obligation to repay the debt themselves. Nevertheless, a witness to a contract or a transaction takes on a kind of promissory debt to testify to the details of the transaction should any dispute about it arise. The act of witnessing in a judicial context then becomes an act of discharging a debt owed to the contracting parties.
The connection of witnessing with debt begins to signal the wider ramifications that debt has in the Hindu conception of law. Separate focus on statecraft, politics, and law outside the boundaries of dharma, therefore, ceased after Manu and did not reappear until the late medieval period.
At first glance, this topic also may seem to have little connection to contractual debts strictly construed. The student is dependent; the teacher is independent. Dependence in this sense creates debt relationships between the two categories of persons. Obligations exist in both directions. The succeeding rule NS 1. Finally, of course, autonomy and legal competence are set forth as prerequisites for making valid legal transactions or, in other words, for entering into contracts NS 1.
Legal dependents are incompetent to make contracts, while any transaction made by a legal autonomous person, who is not abnormal or incapacitated NS 1. Autonomy, therefore, like dharma itself, is relative or contextual. To be an autonomous person in Hindu jurisprudence means to be free from the fixed roles of law with respect to a certain group. Autonomy thus brings with it an unlimited and unchallengeable authority over that group, but also a responsibility for it. With the exception of rulers and full-fledged ascetic renouncers, no one is autonomous in all situations, and even this absolute autonomy is sometimes challenged.
For most people, autonomy is at best a right and responsibility that lasts for a limited time and that has a limited range of application. More important and more prominent in human life are the series of non-autonomous roles that are recognized under the law and within which most people lead the majority of their lives. The eighteen titles of law in Hindu jurisprudence MDh 1. Non-payment of debt 2. Deposits 3. Sale without ownership 4. Partnerships 5. Non-delivery of gifts 6. Non-payment of wages 7. Violation of conventions 8. Cancellation of sale or purchase 9. Disputes between owners and herdsmen Boundary disputes Verbal assault Physical assault Theft Violence Sexual crimes against women Law concerning husband and wife Partition and inheritance Gambling and betting De b t s a n d du t i e s i n ordi n a r y l i f e The examination of the Non-payment of Debts as the first of eighteen titles of Hindu law leads now to a investigation of the other titles and their relationship to the overall scheme of dharma and to debt in particular.
In general, the titles of law are held to be the legally recognized forms of civil and criminal wrongdoing. The various ramifications of these are included under each head; if these ramifications were to be enumerated separately, there would be thousands of them. This organization separates the legally actionable forms of dispute and crime into the traditional number eighteen.
One could compare the Hindu titles of law to the old forms of action in English law. We saw this practice in the placement of the Brahmin as the archetype in the enumeration of the duties of the four castes. The archetype is fully described, while ectypes are only described in terms of their distinction from the archetype as matter of textual concision. The Non-payment of Debts is the archetype for the other titles of law, not only because its description overlaps with and in some respects encompasses the contents of the other titles but also because debt as its thematic content pervades the subsequent titles.
In terms of overlap, questions about witness, autonomy, competence, documentation, and contractual securities are all assumed in and carried over to discussions of the later titles. In terms of the theme, the archetypal or paradigmatic quality of debt must be established by examining the other titles. The entire scheme of the titles of law is the extension of a notion of debt through a series of common points of dispute or conflict that arise between people.
The ramifications of the doctrine of congenital debts as applied to situations and practices of ordinary life are seen in the complex mundane contractual debt-situations spelled out in the dharma texts. Though all of the titles of law cannot be individually described here,26 a few examples from them will illustrate how the idea of debt functions as an underlying concept throughout.
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