The Spirit of Hindu Law

Cambridge Core - Jurisprudence - The Spirit of Hindu Law - by Donald R. Davis, Jr.
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Davies , Richard , ed. Essays, Aphorism, Autobiographical Writings , trans. Jephcott , Edmund , ed. Harcourt, Brace, and Jovanovich, [], pp.

Berman , Harold J. The Formation of the Western Legal Tradition. Harvard University Press, Justice and Judgment among the Tiv. Waveland Press, [].

Dharma, Disorder, and the Political in Ancient India: Myths, Rites, and Attitudes , ed. The Spirit of Biblical Law. University of Georgia Press, Certeau , Michel de. The Practice of Everyday Life , trans. University of California Press, The Law of Debt in Ancient India. Clooney , Francis X. The Major Teachings of the Rabbinic Sages. Law, Violence and Community in Classical Athens.

Cornell University Press, Comaroff , John L. Cover , Robert M. Violence and the Descent into the Ordinary. The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala. Key Concepts and Methods , eds. Mittal , Sushil and Thursby , Gene. Cambridge University Press, forthcoming. When these do not address an issue, the practice of cultured people becomes authoritative. The whole Veda is the first source of the sacred law, next the tradition and the virtuous conduct of those who know the Veda further , also the customs of holy men, and finally self-satisfaction Atmanastushti.

The root of the religion is the entire Veda, and then the tradition and customs of those who know the Veda , and the conduct of virtuous people, and what is satisfactory to oneself. The Veda, the sacred tradition, the customs of virtuous men, and one's own pleasure, they declare to be the fourfold means of defining the sacred law.

The Veda, tradition, the conduct of good people, and what is pleasing to oneself — they say that is four fold mark of religion. As a source of Dharma , only three of the four types of texts in the Vedas have behavioral precepts. Lingat notes abridged , [38].

Consequently every rule of dharma must find its foundation in the Veda. Strictly speaking, the Samhitas do not even include a single precept which could be used directly as a rule of conduct. One can find there only references to usage which falls within the scope of dharma. By contrast, the Brahmanas , the Aranyakas and the Upanishads contain numerous precepts which propound rules governing behavior. Bilimoria states the role of Shruti in Hindu Dharma has been inspired by "the belief in a higher natural cosmic order Rta succeeded later by the concept Dharma that regulates the universe and provides the basis for its growth, flourishing and sustenance — be that of the gods, human beings, animals and eco-formations".

Levinson states that the role of Shruti and Smriti in Hindu law is as a source of guidance, and its tradition cultivates the principle that "the facts and circumstances of any particular case determine what is good or bad".

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While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have. If the plaintiff or defendant have any excuse for not attending the court, or for not pleading their own cause, or, on any other account, excuse themselves, they shall, at their own option, appoint a person as their lawyer; if the lawyer gains the suit, his principal also gains; if the lawyer is cast, his principal is cast also.

In a cause where the accusation is for murder, for a robbery, for adultery, for Ancient texts of the Hindu tradition formulate and articulate punishment. There are wide variations in the statement of crime and associated punishment in different texts. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts. Ancient Hindu legal texts and traditions arrived in parts of Southeast Asia Cambodia, Java, Bali, Malaysia, Thailand, and Burma as trade grew and as part of a larger culture sharing in ancient Asia.

In 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions. That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to.

For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa-i Alamgiri written under sponsorship of Aurangzeb. The early period of Anglo-Hindu Law — was structured along the lines of Muslim law practice. The arrival of William Bentinck as the Governor-General of British India in , marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.

Governor-General Dalhousie , in , extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between , a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the Indian revolt against the British rule.

In , after the East India Company was dissolved and India became a formal part of the British Empire , Anglo-Hindu law entered into a second phase — , one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law. The development of legal pluralism, that is separate law based on individual's religion was controversial in India , from the very start.