Hindu law

Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. 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. It is one of the oldest known jurisprudence theories in the world. Hindu tradition, in its surviving ancient texts, does not express the law in the canonical sense of ius or of lex. The ancient term in Indian texts is Dharma, which means more than a code of law. The term 'Hindu law' is a colonial construction, and emerged after the colonial rule arrived in South Asia, 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). Prior to the British colonial rule, Muslim law was codified as Fatawa-e-Alamgiri, but laws for non-Muslims – such as Hindus, Buddhists, Sikhs, Jains, Parsis – were not codified during the 601 years of Islamic rule. The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises (śāstra) on Dharma. 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. 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. Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law. 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. 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'. In Hinduism, law is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta, the order that makes life and universe possible, and includes duties, rights, laws, conduct, virtues and ‘‘right way of living’’. The concept of Dharma includes Hindu law. In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya (Sanskrit: सत्यं, truth), in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows: In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule), Nyaya (न्याय, justice), Yuktata (युक्तता, justice), Samya (साम्य, equality and impartiality in law), Vidhi (विधि, precept or rule), Vyavastha (व्यवस्था, regulation), Sambhasa (सम्भाषा, contract or mutual engagement), Prasamvida-patra (प्रसंविदा-पत्र, written contract), Vivadayati (विवादयति, litigate or dispute), Adhivakta (अधिवक्ता, lawyer), Nyayavadi (न्यायवादी, male lawyer), Nyayavadini (न्यायवादिनी, female lawyer), Nyayadata (न्यायदाता, judge), Danda (दण्ड, punishment, penalty or fine), among others. 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. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.