Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British Bilingual Discourse and Cross-Cultural Fertilisation : Sanskrit and Tamil in Medieval India PDF. Hindu tradition, in its surviving ancient texts, does not express the law in the canonical sense of ius or of lex.
In colonial history context, the construction and implementation of Hindu law and Islamic law was an attempt at « legal pluralism » during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant. In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. The weak overcomes the stronger by Dharma, as over a king. Dharma, they say, « He speaks the Truth!
In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence. Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex. Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India? Classical Hindu law, states Donald Davis, « represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history.
Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles. In South India, temples were intimately involved in the administration of law. The source of Dharma is the Veda, as well as the tradition , and practice of those who know the Veda. The Dharma is taught in each Veda, in accordance with which we will explain it. What is given in the tradition is the second, and the conventions of cultured people are the third.
The Dharma is set forth in the vedas and the Traditional Texts . When these do not address an issue, the practice of cultured people becomes authoritative. Translation 1: 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. As a source of Dharma, only three of the four types of texts in the Vedas have behavioral precepts.
For the Hindu all belief takes its source and its justification in the Vedas . 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. 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 ». While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have.
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. Some texts, for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. 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.
For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable. Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must « treat all natives much the same manner ». 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. After the independence of India from the colonial rule of Britain in 1947, India adopted a new constitution in 1950. Most of the legal code from the colonial era continued as the law of the new nation, including the personal laws contained in Anglo-Hindu law for Hindus, Buddhists, Jains and Sikhs, the Anglo-Christian law for Christians, and the Anglo-Muslim law for Muslims.
Since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. The Oxford Dictionary of World Religions: « In Hinduism, dharma is a fundamental concept, referring to the order and custom which make life and a universe possible, and thus to the behaviours appropriate to the maintenance of that order. A Smriti is a derivative work, has less epistemic authority than the Vedas, and does not have any deontic authority in Hindu dharma. Journal of the American Oriental Society. A Realist View of Hindu Law ».