ICPR Seminar on
Indian Jurisprudence: Texts and their Evolving Contexts
28-30 April, 2016
New Delhi
Indian Council of Philosophical Research Darshana Bhavana etc takes this opportunity to invite you to contribute a scholarly paper on the Seminar titled “ Indian Jurisprudence: Texts and their Evolving Contexts” from (date) at Indian Law Institute Delhi . The Proposal and the suggested topics are attached herewith.
The Seminar is directed towards an inter-disciplinary meet. The Council aims an inter-face of scholars from disciplines such as Law Philosophy and History who can explain the different facets of legal theory that prevails in our textual sources.
Your contribution in the form of a full length academic paper is valued. However, it should more or less conform to the list of suggested topics mentioned by us. This will help us in co-ordinating the proceedings better. If you wish to contribute kindly do let us know along with your abstract of about 500 words within ten days of receipt of this letter. The final decision of acceptance of the abstract is reserved by the Council
In case your abstract is approved by the Council, we will intimate you about the details of the Seminar and also about your travel and stay procedures. We will also request you to submit your full length paper of 3000 words, at least seven days before the commencement of the Seminar. This is particularly needed as the Council proposes to bring out an edited volume of the proceedings.
We seek your cooperation at every stage and will value your interest in our unique venture to revive some of the salient features of Hindu law in its pristine form.
The details theme of the Seminar and Suggested Texts are followed in next page.
Communicate personally at the following email malabika @gmail.com
or
To the
The Director (P&R),
Indian Council of Philosophical Research (ICPR),
Darshan Bhawan,
36 Tughlakabad Institutional Area,
Near Batra Hospital, Mehrauli Badarpur Road , New Delhi 110062
Tel: 011-29901516, 29901527, 29901506
Fax: 011-29964750
E-mail: Contact I, Contact II
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Indian Jurisprudence: Texts and their Evolving Contexts
Introduction: The object of this seminar is to initiate a reappraisal of ancient Indian legal theory. Hindu law boasts a heritage of going back a few thousand years. It received its sanctions primarily from scriptural sources, and was rooted in philosophical precepts such as ŗta, dharma, nyāya, and so forth. Colonial intercessions beginning from Warren Hastings’s 1772 Judicial Plan sought to accommodate substantive Hindu law within a juridical framework essentially Western modernist in character and, after a point, also utilitarian and positivist in orientation. From this time on, began a process of refracting the corpus of Hindu law through Western prisms into a collection of mandates and postulates bearing only the most tenuous connections inter se, and decontextualised from their jurisprudential underpinnings.
It was also presumed by them that Hindu law was no different from other ancient laws accruing from a tightly bound community culture. And for this reason, adherents of the ‘status to contract’ paradigm of legal development found it easy to conclude that, like other laws that emanated from obsolete legal contexts, Hindu law also demanded much refurbishment. This paradigm no longer carries the weight it once did. For the post-modernist, absolutist perceptions of law are themselves widely outmoded. Recent poststructuralist and postcolonial interventions have rekindled an interest in laws once derided as incompatible with modernity. But the fact remains that colonial intercessions, however well-intentioned, have gouged out considerable gaps in understanding of our own legal heritage.
Several epistemological and ontological questions persist: What was meant by ‘law’ in ancient India? What did it mean for a law to exist? Most crucially, was ‘law’ understood to mean ‘legal provisions’ or something akin to the ‘social order’? This distinction assumes much relevance in todays’ world, because while legal professionals tend to perceive it in terms of mere legal provisions, theorists who understand law in terms of social order place adequate emphasis on common elements underlying diversities across laws. This social order is among civilised state and peoples similar in its main outlines. [1]
Thus an appropriate postmodern analysis of the jurisprudence that prevailed in the so-called pre-modern era would be to go beyond the trappings of the ‘ancient’ and the ‘modern’ and instead prioritise some of its salient features that have lent exclusivity to its character and then draw from those outstanding features ideas which can still be replicated in the present juridical thought.
Character that lends the fiber to Hindu law.
The idea of dharma in Indian legal thought, despite the semantic confusion associated with its terminology, reflects a symbiotic relation between law and society at one level and then at another plane both these ideas seem to have an alliance with a natural ordering principle. A remark on the side relating to the idea of ordering is that human societies, nay even the very individuals who happens to occupy an infinitesimally small spectrum within it, are both governed by a cosmic structuring of system called rta. Dharma at the secular level entails within it a procedure that forms part of this cosmogonic order.
The aim and objective of Hindu law from its earliest days has thus been to provide a safeguard against possible transgressions ( vyabhichara) that human beings are liable to make while residing in a society. All scholastic legal theories, which includes shastras such as Sruti, Smriti and Arthashastra, have directed their attention to fulfill this objective by putting injunctions on our unrestrained behaviour. The concept of 'dharma', despite its engagement with divergent semantics plays a constructive role as a regulatory principle. Dharma may not withstand the scrutiny of scientific analysis. Modern jurists have since the days of Austin been trying to create an exclusive domain for jurisprudence by declaring that law is a command of the sovereign. His authority alone is to be valued and not the intrinsic character of the law. The law as dharma is perspectively different because its authority as a command is directed towards well-being. Dharma also does not match the principles of justice underlying in concepts such as ius, Recht, droit and diritto as these are primarily right oriented. Dharma on the other hand defines law as that which is conducive to good, social as well as individual. Hence the laws relating to dharma are more closely connected with duties and liabilities.
Thus the most befitting starting point while ascribing a character to Hindu law would be to inquire who is the governing authority here? The modern theorists would say that law is governed in the main through legislation. Unlike modern conception of law, which is essentially a human endeavour and hence in this case there can be no law apart from the state, the ancient thinkers on the other hand believed that 'law is' as it forms its own authority. The Brihadaranyaka Upanishad states, “Law is the king of kings, far more powerful and rigid (than any other authority). Nothing can be mightier than law, than by whose aid as by that highest monarch, even the weak may prevail over the strong.”[2]It is believed that the scriptural sources are a mere representation of a philosophy of law that upholds this principle of nyayasymbolising justice, fairness and equity that is established through logic alone.
With these ideas we could countermand some of the misconceived views relating to the character of Hindu law that arose in the colonial period. There is a strong belief upheld by them that Hindu law like all ancient law is inflexible. The tenor of this argument is rooted in the belief that all pre-modern law is born out of a natural ordering principle which also includes the law commanded by a Divine authority or established by the king. In the same period dharma assumed a religious connotation and hence it got entrapped in the quagmire of this belief.
Hindu law is predictably unique, because in one sense it characterises inflexibility, particularly when the reference is made to its essential feature. Command in this context is not born out of a will of an authority. Commands are axiomatically given without the intervention of any authority, human or Divine. The governing principle in this case is thus a method of interpretation that encompasses the secular concerns which in effect are substitutes for certain exegetic practices. For the delivery of secular justice laws can ill-afford to be arbitrary. Logic of law thus entails some degree of timelessness as much as it necessitates credibility.
In the ancient Indian system, Mimamsaka thinkers had developed a logic which till date is cited as the “Mimamsa Principle of Interpretation”. The principle interestingly had some limited and yet formidable use in the colonial courts of law and this trend continued even in the post independent era. Colebrooke in the nineteenth century explained “The logic of Mimamsa( the school that provided the methodology for Sruti*) is the logic of law; the rule of interpretation (in the case) of civil and religious ordinances, each case is examined and determined upon (by) general principles; and from (the) case decided the principles that may be collected. A well-ordered arrangement of them would constitute the philosophy of the law, and this in truth, is what has been attempted in the Mimamsa.” [3]
Seen from another perspective, Hindu law has always remained flexible, interweaving supplementary rules as and when the context evolved to incorporate newer vicissitudes. This ephemeral angle makes rule of interpretation a very difficult subject. At the same time its significance cannot be debunked as most textual sources while interpreting law had taken note of the fact that law is independent of the state.[4] Indian law from the days of antiquity have recognised in total four sources of law and these include, Sruti ( revealed law), Smriti ( law in application usually acquired form customary sources)), Sadachara (good practice norms) and Svasya priyamana ( conscience driven actions relating to right and wrong). The last three categories had a staggering presence in the society. The laws envisaged from these sources were very often ratified after making an epistemological analysis. Out of the several Commentators of Yajnvalkya Smriti an advanced Dharmashastra text belonging to early medieval period, Vijnaneshwara and Jimutavahana, were acclaimed for their outstanding contribution in the field of perpetuation and devolution of property. The analysis was made by them after successfully applying the Mimamsa Principle Interpretation that essentially governed the logic of law on a Smriti text.
In this context it is worth mentioning that estate and status of women received a fair deal through these expositions. The concept of stridhana expanded considerably from medieval period onwards at a time when the social status of women seemed an abiding problem with patriarchy reigning high. In fact Jaimini the author of Mimamsasutra who introduces the principle of interpretation had argued in favour of equal right of men and women as far as svatva generating from yajnadhikara is concerned.
Science of law
While recounting the basic tenets of Hindu law, we are faced with the second and a more persistent problem relating to its definition. In the colonial period the British governors who were relatively unfamiliar with the law and culture of this land, had assumed that since scripture is the guiding source of law in all ancient societies, Hindu law too was encoded and canonised through a uniform religious view The primary source of this religious view is the Veda. This may not have been the most appropriate analysis of source of Hindu Law as the Veda comprises a corpus of literature that consists of documents like Samhita, Brahman and Upanishads followed by Srauta and Grihya sutras (appearing as later Vedic texts). The sheer bulk of these compositions from modern assessments are somewhat staggering and it is estimated to have spread over a period of more than thousand to fifteen hundred years. It would be unhistorical to assume that the society remained ossified during this protracted period without undergoing material transformation. For the same reason they cannot be the canonical source of Hindu view of law and religion.
The perspicuity of modern analysis reveals that Hindu law was shastra basedthat deliberated on analytic theory rather than prescriptive understanding of law. The primary distinction that is popularly available contains three categories of scholastic view on jurisprudence. There is the tradition of Sruti, Smriti and the Arthshastra. Arthashastra, like Dharmashastra is also a recognised legal shastra as both relate to science of law (shastra), yet their respective goals vary. Artha is distinct from dharma. At one level it justifies a rule of law of that overtakes the 'jungle rule' (matsyanyaya). At another level it can also mean the purpose of an individual seeker trying to benefit from law.
The juxtaposition of Arthashastra with Dharma laws may not be an easy task, particularly since Kautilya the author of Arthshastra, though includes the Veda and Manu's Dharmashastra as sources of law, he is of the view that for all forensic matters king's judgment is the final authority. Nevertheless, both come under the category of shastra because of the introduction of vyavahara (legal procedures) rules. Vi (various) and ava (doubts)and hara(removing) are the three syllables of this term which have together been called dharma. Kane is of the view that “When the ramifications of right conduct, that are together calleddharmaand that can be established with efforts (of various kinds such as truthful speech, etc.) have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as debt), is said to be vyavahāra.”
Aims of the present seminar
The rule of law in any social system, be it ancient or modern has certain characteristics that lends exclusivity to its period and sociological milieu. No system thereby can ordinarily replicate another system, because time-zones are different. What then could be the utility value of such a discussion on ancient principles of law when its application value is limited? There is thus a long standing debate that its value is ebbing out and many scholars would prefer a decent burial of the shastras. There is a possibility of warding off the prophets of doom, if we can predict that Hindu law has defied many modernists by retaining some perennial ideas, a refurbishment of some of its principles, specially that which is based on epistemological principles may receive the attention of contemporary scholars
1) Hindu law has held its score high as a major legal system of the world. Often its impact has continued to influence legal decisions simply because the procedures of interpretations have remained persistently similar defying the temporal. A student perusing legal scholarship may receive half-baked ideas of Hindu law if she does not take into cognizance the materials that went into the formation of Modern Hindu law. The objective of a seminar of this kind is to generate intellectual curiosity among contemporary thinkers
2) This seminar also creates a new interactive space for scholars from disciplines of law and philosophy who can make an independent study of Indian jurisprudence without the colonial prismatic intervention. This may give new light to the concept of legal procedures and methods of interpretation of law that once prevailed.
*
List of Some Suggested Texts on Different Aspects of Hindu Law*
1) A History of Dharmashastra P V Kane Bhandarkar Oriental Institute Puna Vol 1-5
2) Dharmasutras : The Law Codes of Apastamba, Gautama, Baudhayana, and Vasishtha ed & Tr Patrick Olivelle OUP 1999
3) Dandaniti of Keshava Pandita ed V S Bendre Poona 1943
4) Dayabhaga of Jimutavahana with Several Comentaries ed Bharatchandra Sriman 1833
5) Dandaviveka of Vardhamana ed Kamala Krishna Smrititirtha Baroda 1931
6) Dayakramasangraha An Original Treatise of Hindoo Law of Inheritance Tr P M Winch Calcutta Hindustan Press 1818
7) Dayatattva Raghunandana ed & Tr Golap Chandra Sarkar Calcutta 1904
8)Dayavibhaga: The Law of Inheritance ed & Tr A C Burnell Madras Higginbothum 1868
9) Dattakamimamsa Nanda Pandita crl ed Rajendra Prasad Pandeya BHU ( rpt) 1980
10) Kautilya Arthashastra Vol 1-3 cited & tr. R P Kangle Motilal Banarasidass 1960
11) Kamadiki Nitisara tr Manmathanath Dutta Calcutta 1896
12) Mimamsadarshanam with Sabarabhashya; Tuptika & Tantravartika of Kumarila Bhatta Vol 1-7
ed K V Abhankara Anandashrama Sanskrit series 1976
13) Mimsamsanyayamalavistara of Madhavacharya Vol I ed Theodore Goldsstucker London 1865
14) Mimamsasutra of Jaimini Mohanlal Sandal Part 1-2 Allahabad 1925
15) Minor Law Books Part I Nanaradasmriti and Vrihaspatismirti Tr J Jolly Oxford Clarendon Press 1889
16) Mitakshara of Vijnaneshvara Commentary on Yajnavalkyasmriti ed V I Pasikara 1936
17) Rajadharmakaustubha of Anantadeva kamalakrishna Smrititirtha Baroda Oriental Insitute 1935
18) Sabarabhashya tr by Ganganath Jha Vol 1-3 Oriental Institute 1933-36
19) Sacred Book of the East Vol2 tr G Buhler; vol 14 tr by G Buhler; Vol 25 tr G Buhler; Vol 33 Tr J Jolly 1889
20) Smritichandrika of Devanabhatta (Vyavaharakanda) ed L SrinivasacharyaMysore 1914-1916
21)Sukraniti ed G Oppert madras 1882
22) Treatise on Hindu Law of Inheritance tr. H T Colebrooke Calcutta Hindustani Press 1810
23) Vivadachintamani of Vachaspati Mishra ed L K Jha Patna 1937
24) Vyavaharamayukha of Bhatta Nilakantha ed &tr by P V Kane Bhandarkar Oriental Institute Pune 1926
25) Vira Mitrodaya of Mitra Mishra A Treatise on Hindu Law Tr Jibananda Vidyasagar Calcutta 1875
26) Vivadachintamani of Vachaspati Mishra A Digest of Hindu Legal Procedure crtl ed Ludo Rocher Gent 1956
27) Vyavahara Nirnaya ed K V Rangaswami Ayengar Adyar 1942
28) Yajnyavalkasmriti & Commentary of Mitakshara of Vijnanesvara ed Narayana Ram Bombay 1936
*Note: 1) This list is not final. Please feel free to consult any additional textual source.
2) Attached also is a list of Tagore Law Lectures as an additional source material on Hindu Law.
[1]Radhabinod Pal The History of Hindu Law University of Calcutta 1958 P iii
[2]Brihadaranyaka Upanishad 1.4.14
[3] H.T.Colebrook, Miscellaneous Essays W M . Allen&Co , London 1937 Vol I. P 317*Italics mine
[4]Kishori Lal Sarkar Tagore Law Lectures CU 1903