“Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”
—John D. Mayne[1]
INTRODUCTION
Etymologically, the term ‘jurisprudence’ is derived from the Latin word ‘jurisprudentia,’ which means ‘the understanding of the law,’ and to our dismay, when we think of jurisprudence, we often think of Western philosophers, jurists, and schools of thought, but on the contrary, we should think of Our indigenous Hindu philosophers, jurists, and schools, which is the oldest jurisprudence of all known and it means “knowledge or study of Hindu law.” Furthermore, it is founded on the noble notion of dharma, and in this piece, the author will present a link or correlation of Hindu jurisprudence with that of dharma, which will also incorporate the meaning of dharma and Hindu jurisprudence and their relationship Second, it will include the most significant sources of Hindu law, followed by current Hindu jurisprudence in connection to Dharma. To summarise, this article will give readers in-depth knowledge about Hindu jurisprudence.
HINDU JURISPRUDENCE
Hindu jurisprudence means knowledge of Hindu norms written for Hindus. Hindu jurisprudence is the tangible legal system that deals with the content or body of Hindu law. In the modern context, Hindu law outlines different Hindu norms such as adoption, inheritance, maintenance, marriage, divorce, minority, and guardianship, among other things. Moreover, Hindu jurisprudence is important not only for the development of Hindu laws but also for the development of specific case laws[2]. As we all know, Hindu law is split into two branches: Mitakshara and Dayabagha. Except for Bengal and Assam, India was ruled by the Mitakshara, while Bengal and Assam were ruled by the Dayabhaga[3]. However, one issue that arises is what are the sources of these branches of Hindu law, and the answers are as follows:
- Shruti: It just implies what was heard. The name is derived from the root “shru” with means ‘to hear’. In theory, it is the fundamental and highest source of Hindu law. Shruti’s synonym is Vedas.
- Smriti: The name Smriti is derived from the root “smri” meaning ‘to remember’. Although they are human works, Shrutis form the foundation of the Smritis. The two categories of Smritis are Dharmasutras and Dharmashastras.
- Commentators and digests: After Shrutis, the time of commentators and digests began. Commentaries (Tika or Bhashya21) and Digests (Nibandhs) were composed over a thousand years, from the 7th century to 1800 A.D. The majority of early remarks were on the Smritis, while subsequent works were digests consisting of a synthesis of the numerous Smritis and explaining and reconciling the different contradictions.
- Customs: The third source of Hindu law is custom. From ancient times, custom (‘achara’) was regarded as the highest ‘dharma’. According to the Judicial Committee, a custom is a norm that has obtained legal force through long usage in a given family, class, or territory.
DHARMA
Dharma is a highly abstract notion that cannot be directly translated into English. Nonetheless, ‘responsibility’ is one of the most often argued contextual interpretations of Dharma.
Dharma, according to Hindu law, is responsibility – whether religious, social, legal, or spiritual obligations in diverse settings. Righteousness is a moralistic interpretation of the term, Dharma, in its broadest meaning, refers to all-encompassing laws or order that underpin the cosmos. The universe’s order is unalterable[4]. Thus, Dharma is significantly larger than law and is employed in a variety of contexts such as behaviour, right, obligation, and legal order functions. Dharma’s basic premise is uniformity or regularity of order, which is universally accepted.
CORRELATION OF DHARMA AND ANCIENT HINDU JURISPRUDENCE
Ancient Hindu jurisprudence, also known as Dharma-shastra, is a collection of texts that provide knowledge on laws and social standards in ancient India. The texts, written between 400 BCE and 200 CE[5], cover a wide range of topics, including family law, and religious law.
Dharma, a significant concept in Hinduism, is often translated as “duty” or “law,” and is seen as the moral and ethical norms that govern people’s and society’s behaviour. The literature of Hindu jurisprudence attempt to demonstrate how the principles of dharma should be applied in various situations and places. The major goal of Hindu jurisprudence was to control society with harmony, and peace, and finally to establish rightness and morality, which is what dharma preaches. Furthermore, the authors believe that dharma had a significant impact on the development of Hindu jurisprudence and, eventually, Hindu law.
Furthermore, although being the oldest of its kind, Hindu jurisprudence has not aged. Various Dharma ideals stated in Hindu scriptures are implemented into Hindu law. Debansh Khettry argues in his work ‘Sources of Hindu Law: A Critique’ that a rule that is not written down or acknowledged in the sources is not a norm in that legal system. Marriage, adoption, divorce, maintenance, guardianship, and other laws originated from the concept of Dharma. ‘Dharma’ is not law, but it is far wider than the concept of law. The Hindu Legal Theory investigates the origins of law, its relationship to the state, and many people’s interpretations of the term “law,” including Manu, Jaimini, and others.
Overall, ancient Hindu jurisprudence is inextricably linked to the concept of dharma, and the goal is to guide how to live a morally and ethically healthy life in accordance with dharma principles[6].
MODERN HINDU JURISPRUDENCE AND DHARMA
Natural law was the notion in ancient India, but as time passed, the concept of positive law was established, and the question now is what the difference between natural and positive law is. So, according to the positivist school of law, the law is a body of guidelines (or state-enforced norms) as long as the government adopts the laws through competent authority after carrying out the requisite stages, it will accept it as law and not care about its morality or badness. When compared to the natural law perspective, which holds that unethical legislation is not a law at all[7]. As Hindu jurisprudence evolves and positive law enters the picture, the concept of rightness, which is the core of dharma, tends to diminish because positive law does not focus on morality but only on laws made by the authority, but one should always keep in mind that morality is subjective and changes not only from time to time or place to place but also from person to person, and thus the concept of natural justice was to some extent vague and was also cited by Kelsen[8] as, “with natural law, one can prove everything and nothing” and Bentham regarded natural law as metaphysical nonsense, These were the reasons why, in addition to foreign states, India adopted positive law. Furthermore, positive law ignores the social, economic, and historical dimensions of legislation, instead focusing on the form, structure, principles, and so on of a legal system.
CONCLUSION
The higher moral law, in addition to positive law, embodied certain universally valid values such as Dharma (righteousness) and Moksha (salvation) by ancient Indian philosophers and thinkers about five thousand years ago in order to establish a harmonious social order by striking a balance between the inner and outer spiritual aspects of life. The quest for balance, harmony, knowledge, and truth motivated the Indian mind. The major goals of life were to be attained, controlled, and ruled in line with Dharma’s mission and direction.
The core of the Indian way of life was defined by an all-encompassing code known as Dharma. It is the Dharma, which was not a cult, dogma, or code in the Western sense, but rather a way of life. It is this Dharma rule that is not static, rigid, or absolute, but rather relative and dynamic, changing in response to society’s needs and progress.
Author(s) Name: Tarang Arora (Maharashtra National Law University, Nagpur)
References:
[1] P. K. Menon, ‘Hindu Jurisprudence’ (1975) 9 Int’l L 209
[2] P. K. Menon, ‘Role of Customs in Hindu Jurisprudence’ (1966) 26 Jurist 69
[3] S. G. Vesey-Fitzgerald, ‘Place of Hindu Law in Comparative Jurisprudence’ (1923) 39 L Q Rev 357
[4]Thakur Prasad Dubey, ‘Hindu Jurisprudence – Its Beauties and Comparative Greatness’ (1944) 42 Allahabad LJ 11
[5] J. Duncan M. Derrett, ‘Comments with Reference to Hindu Law’ (1969) 5 E Afr LJ 21
[6] Werner Menski, ‘Hindu Law’ (2010) 164 Law & Just – Christian L Rev 45
[7]Mark McClish, ‘From Law to Dharma: State Law and Sacred Duty in Ancient India’ (2019) 34 J L & Religion 284
[8] M. S. Sundaram, ‘The Natural Law in the Hindu Tradition’ (1953) 5 Nat L Inst Proc 67
