Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-hgkh8 Total loading time: 0 Render date: 2024-03-28T20:56:22.506Z Has data issue: false hasContentIssue false

Chapter 3 - The practice of classical Hindu law

Published online by Cambridge University Press:  05 June 2012

Timothy Lubin
Affiliation:
Washington and Lee University
Donald R. Davis Jr
Affiliation:
University of Wisconsin, Madison
Jayanth K. Krishnan
Affiliation:
Indiana University, Maurer School of Law
Get access

Summary

Introduction

To what extent has Hindu law been applied in the premodern juridical and legal procedure of South Asia? To what extent was the Dharmaśāstra an applied source of jurisdiction? These questions have puzzled and troubled many scholars of classical Hindu law. Some scholars opine that the Dharmaśāstra is concerned with law cases decided by concerned bodies (corporate groups, administrative institutions of rulers, temple authorities): “There can be no doubt that the smriti rules were concerned with the practical administration of law” (John D. Mayne as quoted by L. Rocher 1978: 1,299). Other scholars believe that the Dharmaśāstra is purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice, or that the smṛtis did not embody the law of the land but were entirely scholarly texts or commentaries on ancient authoritative texts. It was also argued that Hindu law was administered on the basis of unwritten maxims, floating verses of rules preserved by memorization and partly written down into Sanskrit law books, most of them applicable to specific social groups and castes only, so that it should be understood as a record of regional customs but not just as legal codes or Brahmanical moral fantasies.

No doubt, with the exception of Warren Hastings’s Judicial Plan of 1772, when Brahmin pandits were attached to Anglo-Indian courts and the Dharmaśāstra literature partly gained the status of legislation, classical Hindu law was never codified law sensu stricto. Although it is debated to what extent custom has influenced or even shaped classical Hindu law, it is now generally accepted that until 1772 Hindu law by and large was a local and regional affair, despite its cosmopolitan claims (see Chapter 1), and local customs and regional laws have profoundly influenced the Brahmanical norms of the Dharmaśāstra. The Dharmaśāstra itself acknowledges that various laws are specific to country, family, lineage, castes, women, or even animals (deśa-, kula-, jāti-, strī-, or paśudharma) – the latter rather being a form of non-dharma (MDh 9.66). (Pre-modern) Hindu law therefore also incorporates many non-Brahmanical sources and is thus more than Dharmaśāstra. The word “dharma” does not even appear in a number of legal sources (D. R. Davis 2004a: 18).

Type
Chapter
Information
Hinduism and Law
An Introduction
, pp. 58 - 77
Publisher: Cambridge University Press
Print publication year: 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×