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Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India.[1][2][3] Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts.[4] It is one of the oldest known jurisprudence theories in the world and began three thousand years ago whose original sources were the Hindu texts.[4][5][6]
Hindu tradition, in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex.[7] The ancient term in Indian texts is Dharma, which means more than a code of law, though collections of legal maxims were compiled into works such as the Nāradasmṛti.[8][9] The term "Hindu law" is a colonial construction,[10] and emerged after the colonial rule arrived in Indian Subcontinent, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" (Sharia).[7][11]
The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises (śāstra) on Dharma.[12] The British, however, mistook the Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until the British colonial officials chose to do so.[7][12] Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such.[13] Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law.[14]
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.[15][16] Legal scholars state that this divided the Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism – the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations".[15]
- ^ William Musyoka (2010), A Casebook on the Law of Succession, ISBN 978-9966744852, page 12
- ^ Cite error: The named reference
rocherresponsewas invoked but never defined (see the help page). - ^ Werner Menski (2003), Hindu Law: Beyond tradition and modernity, Oxford University Press, ISBN 978-0-19-569921-0, Chapter 1
- ^ a b Cite error: The named reference
donalddavisjuriswas invoked but never defined (see the help page). - ^ Cite error: The named reference
johnmaynewas invoked but never defined (see the help page). - ^ "Indian law | India | Britannica".
- ^ a b c Ludo Rocher (1978), Hindu Conceptions of Law, Hastings Law Journal, Volume 29, pages 1283-1297
- ^ Cite error: The named reference
artidhandwas invoked but never defined (see the help page). - ^ Cite error: The named reference
larivierelawwas invoked but never defined (see the help page). - ^ P Bilimoria (2011), The Idea of Hindu Law, Journal of the Oriental Society of Australia, Volume 43, pages 103-130
- ^ Marc Gaborieau (June 1985). "From Al-Beruni to Jinnah: Idiom, Ritual and Ideology of the Hindu-Muslim Confrontation in South Asia". Anthropology Today. 1 (3): 7–14. doi:10.2307/3033123. JSTOR 3033123.
- ^ a b Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046, page 13-16, 166-179
- ^ For reviews of the British misappropriations of Dharmaśāstra, see: Richard W. Lariviere, "Justices and Paṇḍitas: Some Ironies in Contemporary Readings of the Hindu Legal Past," in Journal of Asian Studies 48 (1989), pp. 757–769, and Ludo Rocher, "Law Books in an Oral Culture: The Indian Dharmaśāstras," Proceedings of the American Philosophical Society 137 (1993), pp. 254–267.
- ^ Cite error: The named reference
terenceday22was invoked but never defined (see the help page). - ^ a b Cite error: The named reference
rudolphpqwas invoked but never defined (see the help page). - ^ John Griffith (1986), What is legal pluralism?, The Journal of Legal Pluralism and Unofficial Law, Volume 18, Issue 24, pages 1-55