Hindu Law/Jurisprudence

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ORIENTAL AND OCCIDENTAL APPROACHES TO LAW
by Dr. Vijender Kumar*

Cite as : (2005) 5 SCC (J) 15

Philosophy is the lamp of all the sciences, the means of performing all the works, and the support of all the duties. Kautilya, 1, 2, 12.

From the time of Rigveda (4500 BC according to B.G. Tilak), intense spirituality has been the dominating note of life, the social structure and political thought in India. The Gandhian concepts of truth and non-violence have their roots in the same tradition. Its fading imprint in all walks of Indian life may be seen even today. Unlike in many other civilisations of the world, consumerism aimed at the attainment of common luxuries, has never been a feature of Indian social life. The ancient Indian thinkers always devoted their energies to the discovery and solution of deeper issues of human existence. They prescribed four ends of life viz. dharma, artha, kama and moksha. These ends have socio-legal, socio-economic and spiritual aspects, hence they are interdependent and interrelated. The first three have a social dimension and the fourth, moksha though enjoined on all as a worthy goal of life is purely individualistic in nature.

Ancient Hindu codes deny law-making authority to the King. Manu declares "It is for the protection of this world that the King is created by God." A "role morality" is attached to the performance of his functions. The King in ancient Indian society is strictly subjected to well-established norms known as vrata in his conduct towards his people. The ancient legal philosophy in its pursuit of unravelling the truth, thought of the problems facing man in the larger context of his being a member of humanity and analysed and studied life in its entirety which resulted in a holistic approach towards spirituality, societal structure, political theory, economic philosophy, legal institutions, etc. thereby giving way to unification of social sciences. We find the Smritis prescribing norms for every walk of life to make it complete and purposive. However, this could not be realised in the twentieth century in Anglo-American Jurisprudence. Neo-Kantian methodology believed in separation of sciences and each one with a distinct method. Pound has put it so aptly:

Somewhat later it came to be seen that not only was it needful to combine the several methods which had been employed in sociology and to unify that science, but that it was also needful to put sociology in relation with the other social sciences; that it was needful to unify the social sciences by recognising that after all, in a large view, they are departments or phases of a science of human society.1

Hindu law codes lay down complete code of conduct for the individual, society and the State. It is so because the ancient Indian law-givers had a definite goal to achieve. The scheme of the codes was so framed as to be conducive to attaining the prescribed goal.

The ancient Hindu jurists did not separate the socio-legal aspect (justice) of human life from its ethical or spiritual aspect (dharma). According to them a viable legal code is a representation of all the aspects, traditions, manners and ideas of a particular society. Code of Manu not only deals with a branch of learning, but also deals with all the aspects of human life. It is primarily a socio-legal treatise as is evidenced from this text:

"Deign, divine one, to declare to us precisely and in due order the sacred laws of each of the (four chief) castes (varnas) and of the intermediary ones."2

There are thinkers even today in the west who consider these elements essential to the elucidation of legal philosophy. MacCormick's observations about Dworkinianism are relevant in this context. He observes:

"The key fact about Dworkin is that he is a pre-Benthamite; the perspective of jurisprudence since Bentham with its insistence on the separation of expository and censorial jurisprudence, legal facts and legal values, he finds as inimical to grasping the truth as did the pre-Raphaelites find that other perspective which they abandoned in their painting. Dworkin's stated ambition is to restate legal theory in such terms as to reunify exposition and censorship. Legal theory in this programme is not divided from but an intimate part of moral and political theory. As important as anything else in Dworkin's writings are the elements of ethics and politics which he finds essential to the elucidation of laws and rights."3

Analytical positivists, namely, Bentham, Austin, Kelsen and Hart believe in the separation between law and the ideology of law. However, for jurists of Historical, Sociological and Realist schools, the study of the different branches of learning, like philosophy of law, ethics and economics, etc. is inevitable for the proper understanding of law.

The reason why western positivist thinkers could not appreciate our legal philosophy is well explained by Sri Aurobindo. He observes:

"The dignity given to human existence by the Vedantic thought and by the thought of the classical ages of Indian culture exceeded anything conceived by the western idea of humanity. Man in the West has always been an ephemeral Creature of Nature only, or a soul manufactured at birth by an arbitrary breath of the whimsical Creator and set under impossible conditions to get salvation."4

An individual in Sri Aurobindo's estimation, and rightly so, ... can even become a free, perfected semi-divine man, mukta, siddha.... His spirit can become one with God.... His nature can become one dynamic of power with universal Nature or one Light with a transcendental Gnosis.5

The aim or end of law was to create conditions so that people could come out from their limited egos and move towards real perfection. It is said, "Anarchy is abhorred, not only for the physical havoc it may cause to people but for its effect in impeding their efforts to attain mukti."6 A legal order not taking note of this invisible fourth dimension of human personality (as described by Sri Aurobindo) is not only non-Indian in nature but also incomplete and inadequate as it does not satisfy the aspirations of the people and fails to give them guidance in making life worth living above crude animal existence. Now, when India is free, absence of will to revitalise our ancient legal philosophy on our part would be dangerous to the entire humanity. The positivist western mind finds it difficult to give this conception the rank of a "living and intelligible idea."7

Ethical and intellectual enrichment of personality through the practice of strict discipline—dharma ensured social harmony, as well as political, economic and legal structure. Socio-legal structure paves the way for balanced development of personal liberty. The law codes of ancient India in order to achieve this aim or ideal classified the society into four varnas to serve the political and economic requirements of collective life. Sri Aurobindo's observations are of special worth in this connection:

For the real greatness of the Indian system of the four varnas did not lie in its well-ordered division of economic function; its true originality and permanent value was in the ethical and spiritual context which the thinkers and builders of the society poured into these forms. This inner content started with the idea that the intellectual, ethical and spiritual growth of the individual is the central need of the race.8

Thus, the lawgivers prescribed certain rules of discipline or dharma for each member of the society according to his capacity and requirements.

In modern times kama and artha (desire and wealth) are expanding at the cost of the other two i.e. dharma and moksha. The thrust of the whole socio-legal system in modern times is to regulate desire and wealth without caring for their nature and impact on social life.

The principles of equality and liberty were inherent in the concepts of dharma and karma as proclaimed in the scriptures of ancient India. Our saints propounded the theory of advaita or "non-dualism". Mandukyopanishada declares the equality of all human beings in these terms. Sarvam hyetad brahmayamatma brahman soayamatma catuspat.9 (All this is surely Brahman. This atman is Brahman. This atman such as it is possessed of four quarters.) According to this view which is in conformity with the karmavipaka theory we come to the conclusion that the doctrine of equality culminates in the identity of the atman with Brahman. "Verily I am thou, O holy Godhead, and thou are I."10 It is only the Indian philosopher who could afford to say "I am Brahman (Aham Brahmasmi): That thou art (Tat tvam asi)" in which the difference between the creature and the created is transcended. But all human beings on the lower plane are different in their capacity to act and in their disposition of character because of the doctrine of liberty of thought and action. They are equal because the same atman (soul) pervades them all and all are equally entitled to realise their true nature. It is the ingenuity of the Indian thinkers that they could solve the problem of inequality, the basis of social justice, and lay the foundation of real democratic society. The western sociologists, however, found it difficult to put forth any satisfactory solution of the problem of inequality and in their enthusiasm accepted a fact contrary to reason and experience that all men are equal: Is there equality among human beings in any country? Had there been equality, there would not have been the ruler and the ruled. The principle of equality is the basis of both social justice and democracy. Manu has laid down rules for the realisation of these two important aims of society. He divided the whole social order into five groups.11 The classification is based on function. The unit of the society was not to be a single individual, but men and women were to form a social unit in the Hindu social order such as family. Unlike the other legal systems of the world the Hindu society starts with the idea of collectiveness. It is the unique characteristic of the social system of Manu.12

Indian thinkers were extremely rational and scientific and after exhausting the power of logical approach they discovered that truth lies somewhere else, where our rational mind cannot reach. Kant realised this fact when he said a 'thing-in-itself' is essentially unknowable. He acknowledged like ancient Indian thinkers the limits of rationalism. Our ancient sages knew the limits of the intellect; the knowledge which was capable of being acquired by the intellect was given the name of apara vidya i.e. knowledge of the non-beyond; the knowledge which was not within the reach of intellect was assigned the name of para vidya i.e. knowledge of the beyond. Knowledge of the beyond was also known as brahma vidya. A science, be it legal science or political science was to be based on this brahma vidya. (Sa brahma-vidyasarvidya-pratistha).13

It is in this context that the Indian jurisprudence in ancient India was born. The law codes (with all substantive and adjective laws) were geared in line with the ideal which the Indian metaphysicists had fixed for the people. It was the lesson the Rigveda sages imparted through the concept of rta. Rtam ca satyam ca param brahmaucyate remarks Halayudha on the aghamarsana mantra.14 Brahman is depicted as rta and truth. It is the truth that the idea of justice stands for. Mahatma Gandhi who is in the direct line of succession to ancient sages compares truth to God, for him God is truth and truth is God. Justice is truth and truth is justice. In the subconscious mind of the people, justice stands for God and that is the reason why before deposing in a court of law one is reminded either of God or truth. It pervades all systems of law, because truth is indivisible, however, it has degrees.

A study of codified law of the world shows that the object of law is to attain justice after ascertaining truth. Justice or truth which the law courts strive to achieve today was also the aim of courts in ancient India. The peculiarity of ancient Indian legal theory was that it was based on spiritual and moral aspects. The moral content in law in its application is just like the protoplasm in a cell. As a cell without protoplasm is dead, a law without moral content is dead.

It is most unfortunate that ancient Indian legal philosophy became a subject of ignorant occidental criticism as well as of the gigantic pressure generated by the historical events. The precious legal culture of ancient India can be revived and revitalised if there is a determined effort, coupled with ethical, spiritual and intellectual rectitude. The law codes have not been studied in the right perspective and have been termed as books dealing with orthodox, primitive stereotyped religion deserving rejection from the modern mind, whose acknowledge of these works is only zero.15

As Professor Sharma observes:

"Consistent with the depth of Indian Metaphysics the human personality was also given a metaphysical interpretation, which is not unknown to the modern occidental philosophy. The concept of human personality in Kant's philosophy of law is a metaphysical entity but Kant was not able to reach the subtler unobserved element of personality which was the basic theme of the concept of personality in Indian legal philosophy. The omission or rejection by the socio-legal philosophy of the ethico-spiritual content of human personality occurred in India, because of the intermixing of foreign culture which ultimately resulted in the general deterioration of Indian life. Now that India is free and Indian thinkers should boldly admit the shortcomings of their socio-legal philosophy which tended and tends to segregate a very large bulk of the national population to permanent ignominy which is the unkindest cut in India's cultural life and impeding its collective socio-ethico-spiritual and material welfare."16

In analysing the dimensions of personality in the antique Indian context, we cannot afford to dismiss the great contribution made by the West for the welfare of humanity, but in the floodlight of its illustrious material success, we generally shut our eyes and fail to see the dangerous rather hideous vices and its ill-effects. It is dangerous to ignore the immense contribution made by ancient Indian thinkers for the real welfare of humanity at large in the ethico-spiritual and intellectual field. If the proper recognition of the dimensions of human personality is recognised in the present municipal laws, a bulk of human problems will disappear.

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* Assistant Professor, NALSAR University of Law, Justice City, Shameerpet, RR District, Hyderabad 78. The author pays his sincere gratitude to his guru, guide and philosopher Professor S.D. Sharma, Chairman and Dean, Faculty of Law, Kurukshetra University, Kurukshetra (Retd.), who instills in the author the interest to study in depth the principles of ancient Indian legal theory and compare the Indian theories of law with the Western legal theories. This article is an attempt towards the same. Return to Text

1. R. Pound: Jurisprudence, Vol. I, p. 326. Return to Text
2. Commenting on this text M.V. Patwardhan observes: "This verse is important as it supports our fundamental view that it was Manu who first divided the society into five big groups—the four varnas and the fifth that of avarnas." M.V. Patwardhan, Manusmrti: The Ideal Democratic Republic of Manu, (1968), p. 79. Bhagavansarvavarnanam yathavadnupurvasah/ Antaraprabhavanam ca dharmanno vaktumarhasi//—Manu, I, 2. Return to Text
3. Neil MacCormick: Legal Rights and Social Democracy, (1982), p. 128. Return to Text
4. Sri Aurobindo: The Foundations of Indian Culture, (1972), p. 98. Return to Text
5. Ibid., pp. 98-99. Return to Text
6. K.V.R. Aiyangar: Some Aspects of Hindu View of Life According to Dharmasastra, (1952), p. 176. Return to Text
7. Manu, X, 99. Return to Text
8. Sri Aurobindo: The Foundations of Indian Culture, (1972), p. 113. Return to Text
9. Mandukyopanisad, I, 2; Tattavamase, sarvam khilvidam Brahman, Chandogyopanisad, VI, 8: 7, III, 14: 1; Sarvam yadayamatma, Aham Brahamasmi, Brahadaranyakopanisad, II, 4 : 6, I, 4 : 10. Return to Text
10. S.B. IV, 1.3, See Samkara's comment on Br. Up. 1: 4: 7. Return to Text
11. M.V. Patwardhan: Manusmriti: The Ideal Democratic Republic of Manu, (1968), p. 79. Return to Text
12. Manu, IX, 45. Return to Text
13. Mundakopanisad, I, (i), 1. Return to Text
14. P.V. Kane: History of Dharmasastra, Vol. I, part II, (1975), p. 638. Return to Text
15. Swami Vivekanand: Caste, Culture and Society, (1947), p. 10. Return to Text
16. S.D. Sharma: Administration of Justice in Ancient India, (1988), pp. 106-07. Return to Text