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Indian Legal Literature - Guest - 07-02-2007

Hello, this is my first post on this forum. I have been following this forum for some time now.

The reason for this post is that i wanted some information and clarification.
I wanted to know the various schools of indian legal literature that have existed till today. More importantly i need them in an appropriate format for my understanding.

Now i know that my request for information on indian legal schools is itself tinged by my understanding of legal schools and thought from an european understanding. However this only underlines my ignorance.

Further i wanted sources on the indian way of thought especially with regard to the structuring of the world as with regard to the place of logic, reasoning, reasonableness among a host of other criteria that our present societal system uses or their alternatives or the system that was prevalent or is prevalent in india today or at any point of time.

This information would help me to a great extant to gain understanding of the above mentioned topics and their ancillary and interconnected concepts as well. thanks in advance.

Pratardana.


Indian Legal Literature - Guest - 07-02-2007

Welcome.

Your questions are a bit vague, since India has had many legal systems; hindu, buddhist, Islamic and british. I am giving some pointers about the ancient Indian hindu literature. . If you search for these terms in a library of on the net then you can get a host of leads from them.

Ancient Indian legal literature is in a set of texts called "dharma-shAstra-s". Manu-smriti is the most famous example of a dharma-shastra. They are also often called "dharma-sUtra-s".

Indian logical literature is called "nyAya". The original text being "nyAya-sUtra" of gautama. There are many texts in nyAya. One highly regarded branch is called "navya-nyAya".

Political-theory texts are called "artha-shAstra" and the most famous example is kautilya's artha-shAstra.

English translations of many of the main texts are available, but not for all of them. Even existing translations are deficient in many ways.

So "an appropriate format for understanding" may not be really available, unless you are willing to devote considerable effort to get into the nitty gritty and try to understand it from within rather than without.


Indian Legal Literature - Guest - 07-03-2007

thanks for answering. i realised that my questions were a bit obscure, but i was a little hesitant to go into specifics without knowing practically anything.

i am currently pursuing law as a profession. throughout my studies i have come across anglo-saxon law, anglo-saxon legal philosophies and anglo-saxon way of understading the legal system as well as structuring it.

in all the classes of jurisprudence that i had the good fortune of attending the legal systems and studies were anglo-saxon, anglo-saxon, anglo-saxon with a few bits of continetal law thrown in for change and maintaing interest. does not do a great deal for creating and maintaing a perspective.

i would like to clarify my question a bit here. in the english jurisprudece there are various schools of thought which look at law and the legal system in different manner wrt its interaction, effect and development in and on the society. the basic questions that these schools deal with range from the basis of the definition of law to its present course, intended functions and critisisms of the present system among a host of various other issues.

some of these schools are.....the natural law schools, the realist school among others. obviously the basic foundations of these legal schools are similiar to the schools of philosophy and other social topics, but the thinking is from a legal perspective.

the importance of these schools can be gauged from the fact the the principles espoused by these schools become a guiding principle for the law making machinery as well as for the system of validating the laws.

i was hoping that i could get information on the indian legal systems on the above lines along with information on the philosophical systems of india.

here again i would like to emphasie that i understand that it would be highly presumptious of me and indeed any one else to expect that the indian legal system would be on the same lines as the anglo-saxon lawm, but i would like pointers none the less.

and sir it does not matter whether the legal system was in use during the buddhist, hindu or the muslim era. the main issue being that you do not confuse between the law per se with the idea behind it.

thanks in advance yet again.

Pratardana.


Indian Legal Literature - Guest - 07-03-2007

I am still not sure what your questions really are?

If you are trying to study how laws are made by any arbitrary group of people, under unique socio-cultural pressures while still aiming for some universality, then of course, studying all different kinds of laws will be of help.

If you want to show that Anglo-Saxons have appropriated for themselves some "discoveries" in the theory of law making, then also a study of Hindu law will be useful in providing due credit to original discoverers if any.

But it would help if you clarify more. Your usage of the "Anglo-saxon" phrase with slight irritation suggested to me that you feel that this self-appropriation by anglo-saxons is too self-serving. More such illuminations the better.

Religious issues are important since when in prominence, they overrule the so called "natural law" etc. "Islamic law" is discriminatory towards non-believers and women, while "hindu-law" had caste-discrimination issues. Jain-buddhist dominated law gives much more importance to animal rights, for example.

Any law has two aspects:

<b>1. Eternal/universal aspect: In hinduism this is called the "sanAtana-dharma". </b>
Here those ethical/legal issues can be present that apply in a universal way. Such strictures against murder, theft, lying etc.

<b>2. Epochal/local aspect. In hinduism this would be "yuga-dharma".</b>
Manu-smriti etc would fall under yuga-dharma.

Unfortunately for India, the hindu law got frozen in time due to Islamic invasions and British rule. It hasn't had the freedom to evolve with the times. The Anglo-Saxon law on the other hand has had a heavy dose of "modernism" because the atmosphere was ripe for it. So if you look at dharma-shastra-s like manu-smriti then one may complain that they are not modern enough. For a fair comparision compare Manu-smriti with Bible or Quran.

Modern Indian criminal law is of british origin, but has separate personal laws for hindus, muslims etc that derive from ancient hindu law and Islamic law respectively.


Indian Legal Literature - Guest - 07-03-2007

well the usage of the "amglo-saxon" phrase is not related to any feeling of irritation or self righteous anger at any percieved appropriation by them or any body else. it was only a humourous dig bordering on the sarcastic to emphasie the absolute lack of material or study on any other legal system in the classes that i attended.

with regard to your confusion i feel that i was not careful enough such that i repeated the same mistake.

when you talk of the manusmriti, or the dharma shastras, or the islamic laws they would be similiar to the present day civil procedure code (cpc), criminal procedure code (CrPC), indian penal code (IPC). they are the absolute gross expression of the guiding principles of the time or the policy making body.....be that the dictatorship, the king, the emporer or in the present day the people as a coglomerate.

as such you can find a lot of such examples of the executable part of the legal system. you have already mentioned some of them. however i was interested in the guiding principles of these laws.

i think this can be illustrated from an example:
the legal and jurisprudence schools of the western law world include the "positivist school, the realist school, the natural law school" among others. these are schools with specific ideas bordering on ideology about the purpose of law, its definiton and they wish to channel its development on specific lines. they are similiar to the schools of philosophy that exist such as the "plato school, the neo-plato school" among others.

these legal schools of thought are not the same as the laws of the country. therefore the IPC or the CrPC exist and function independently of the schools of thought but their constitution or development are influenced by these same schools. similiarly the manu smruti is the actionable part of the law but its development is influenced by something. it is based on a set of ideas, it adhers to some principles.

i guess what i am asking for is about indian legal philosophies and the legal and jurisprudence schools of india.

hopefully this helps.

Pratardana.


Indian Legal Literature - Guest - 07-03-2007

Thanks for clarifying.

"Guiding principles" for law are the principles that govern ethical behavior, I think.

The dharma-shAstra-s do provide some rationale for the laws in them, so it may be good to start with those. They are also the "schools" of legal thought if you may, and the different dharma-shastra-s show a lot of variation, and they provide arguments for justifying those variations. Dharma-sutras themselves are short texts, so it may be fruitful to also look at commentaries and other expositions.

Prescriptive parts of many texts, besides dharma-shastras would also be relevant.

Particularly the so called <b>"nIti" texts</b>, such as chANakya-nIti, vidura-nIti, bhartrihari-nIti etc.

As I said, Hindu legal thought got frozen in time, and hasn't had the opportunity to grow since then. Your posts are a welcome indication that there may be some yearning in hindu consciousness to recast, restart and reestablish the schools of hindu legal thinking.

This is healthy, since the marxist-macaulayite dominated thinking in current India wants to treat all old hindu structures as irrelevant, and fit for transplantation by "modern" western structures.

We shouldn't forget that western structures/schools have had freedom to modernize which hindu structures didn't till about the end of 19th century. Even when the "reforms" were introduced by hindus themselves, somehow the thinking has become ingrained that the reforms were introduced due to external pressures only and hinduism didn't have internal resources to effect such reforms. But that thinking is wrong.

Existence of hundreds of dharma-shastra-s and debates amongst their proponents suggests that during old times, legal theorizing was a very lively part of intellectual life in India. And if Hindu society had been free, those legal theories would have naturally evolved with the times too. Compared to their times, hindu dharma-shastra-s are exemplary, so it stands to reason that if they had been free to evolve, they would have become exemplary even in modern context.

So, this is another avenue where long stifled hindu consciousness can restart to discover and assert its genius.


Indian Legal Literature - Guest - 07-03-2007

I had read in some book (I think it was "Raj: The Making and Unmaking of British India" by Lawrence James) , that after the British take over of Bengal, in the end of 18th c, that the British started to establish a parallel modern legal structure for the new colony, and brought in British legal experts to India.

Remember the original British orientalist/Indologist, Sir William Jones was first and foremost a Judge in a London court. Establishing a 'modern' legal system of India, was his primary charter for which he was sailed from London to Kolkata, and it was during the study of Manusmriti that he realized the similarities between Sanskrit and Latin.

So, back then, British tried to look into dharma shAstra-s (besides shariyat) to create the local legal paradigm - and with the turn of events and motives in the next 50 years, turned the whole thing into an entirely demeaning and damaging exercise.


Indian Legal Literature - Guest - 07-05-2007

<img src='http://inlinethumb47.webshots.com/3886/2672697650100818794S500x500Q85.jpg' border='0' alt='user posted image' />

"On The administration of Justice in Nepal"
By B H Hodgson Esq., British Resident in Nepal
Published in Royal Asiatic Soceity Journal, January 1831

Read from page 105 onwards in Asiatic Researches


Indian Legal Literature - dhu - 07-05-2007

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->When entering west Europe they initially had letters of protection from the King of Hungary. This privileged situation did not last long as amazement at their way of life commonly led to hostilities. <b>The Gypsy way of life still leads to hostilities from the people of their host nations. Europeans regard "private property" as sacrosanct, whereas gypsies do not have a word for "possess", which gives rise to two incompatible ways of life and a continual problem of gypsies being regarded as "thieves" from the European's view.
</b>
In each host nation gypsies appear to take on the religion, names and language of their hosts, but within the Rom they maintain their Rom language, names, music, customs and Indian looks. This tight community has meant that after some six hundred years there is still a large population of gypsies not integrated or assimilated with Romanians. link<!--QuoteEnd--><!--QuoteEEnd-->

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Such a view has another consequence. A<b>gain, unlike Western theories, our ethical systems do not recognize that some organism could possibly have obligations to humankind as a whole.</b> Each organ-ism assumes some specific obligations toward other organisms within the community morally relevant to it. Outside of such a morally relevant community, one cannot formulate specific obligations. Where such is the case, there all these “others” are really not ‘selves’ from the point of view of the one who has no specific obligations towards them. They remain at the limit of one’s horizon as vaguely intuited presences, so to speak. This circumstance sheds light, I believe, on the peculiar indifference that people show towards poverty and suffering of fellow-human beings in Asia.

<b>There is some vague parallel to be drawn between this notion of morality and the ‘situational ethics’ (or even casuistry), which is popular in some parts of the European culture. </b>Contrast and critique of it fall outside the scope of this paper.


.....


There is no way we could represent our notion of morality in a computer program, unless it be in the form of some complex induction rules. But we are not inducing any rule whatsoever from the stories which depict moral actions or moral orders. We are not reasoning the way it requires to be represented, if written as a program: “A did X in situation Z; my situation is analogous in some relevant details; therefore, provisionally, I ought to do X as well.”. We could not be doing any such thing, if we learn through mimesis. You could, of course, represent our ways of being moral as thought it was an application of an inductive rule or even a set of them. This will tell you what your notion of the moral is, but not what we do when we act morally.<b> (This is one of the reasons why, I believe, our notions of being moral differs both from situational ethics and from casuistry.).</b>
<!--QuoteEnd--><!--QuoteEEnd-->

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->A “higher socio-economic formation” is not necessary to realize this absurdity that Marx refers to; another world-model, a different one, will do just as fine. The American-Indians just could not com-prehend that the European settlers would want to buy land from them. “How could we sell what is not ours to sell, or yours to buy? How do you sell a Cheetah or its speed?” they asked in one of the most moving and memorable documents ever composed (It is called the “Speech of Seattle”). The idea is equally absurd to the world models of the Asian Indians as well. The difference between these two Indian communities is their degree of adaptation to the European demands: one adapted and survived; the other did not and was wiped out. One did not understand, but acted as though it did; the other failed to simulate, and paid the price for it.<!--QuoteEnd--><!--QuoteEEnd-->


Indian Legal Literature - Guest - 07-05-2007

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->This circumstance sheds light, I believe, on the peculiar indifference that people show towards poverty and suffering of fellow-human beings in Asia.<!--QuoteEnd--><!--QuoteEEnd-->This bit is wrong, Dhu. What indifference is that author talking of?
In India, people give money to their families first. I think every family in India has very poor relatives here or there. Well, leastways I do and so do most Hindus I know. I also know that many a Hindu, Jain settled overseas adopts one part of his less-well-off family to support. (It's a bit harsh if you can help total strangers without first helping those related to you - however <i>n</i>th cousin/aunt/uncle they might be.)
If a Hindu has no poor relatives at all or if (s)he is extra well-off to be able to support people outside their ken, you can see them helping unknowns.
This is different from western countries, because most of the people in the west are affluent and have no poor relatives. Hence when they feel natural empathy for other humans who are suffering, they end up giving what they can to unknowns. I am not disparaging what they do. Just pointing out that they can't judge Indians and other peoples of poor nations when very often they do *not* know what it is to be poor.


Indian Legal Literature - Guest - 07-11-2007

Sorry for the delay in my reply.

"Existence of hundreds of dharma-shastra-s and debates amongst their proponents suggests that during old times, legal theorizing was a very lively part of intellectual life in India."
Ashok sir with regard to the above statement, can you throw more light on these debates. Alternatively can you give me sources to records of these debates and the attendant legal theorizing.

Dhu sir you’re post comparing the Native American-Indian outlook as different to the european law and social system hits the nail on the head figuratively as wrt my doubts.
I would like to illustrate here:
Consider the problems wrt the environmental problem that we are facing today and look at the problem from the Native American-Indian perspective and the european perspective. For the act of protection or conservation it is necessary for both of these groups to bring the object that is to be conserved on par with the value that they place on their own conservation or preservation. Thus both the groups practice the strategy of increasing the value of the object to be protected to a value that they perceive to be on par with their own perceived value, what then differs is the method employed by these groups to increase the value of the protected item. The Native American-Indians do not consider themselves to be the foremost of the living things on this planet nor is their definition of what constitutes the state of existence or life as narrow as the europeans. They therefore automatically confer a value equivalent to their own perceived value on all objects around them as well as the environment and the planet as a whole. I am assuming this purely on the basis of a collection of articles written by a group of Native American-Indian women writers. I do not have the citation at present will dig it up though.

The europeans on the other hand have a narrower definition of life and the natural order of things in their life. (That is if we assume the existence of such a natural order.) Thus for them to confer a value equivalent to their own it becomes necessary that they consider the continued existence of the particular object to be in their best interests. Only in such cases will the object be provided protection.

Thus in the case of the Native American-Indians they would provide protection to an object (Environment in this particular case) as they would consider it to be as alive as them and therefore possessed of the same rights as them. They possibly do not view themselves to be different from the object and therefore the question of discrimination does not arise at all. On the other hand the europeans will only afford protection for the object if and only if it is impinging on their continued existence. They would therefore look at the object as different from themselves and endowed with rights that are on a scale lower then the ones that they themselves enjoy.

Now link up this difference in outlook with our present legal system. The Indian legal and social system of the present times is dependent on the mandate as delineated by the Indian constitution. Such that our rules and regulations, policy decisions and social and governmental structures are validated and conceptualised and implemented according to the provisions and criteria laid down in the constitution. Now this constitution has as its basic characteristics values such as equality, freedom, fraternity, right to life among a lot of other principles, which can be loosely termed to be libertarian in idea. (NOTE: this is an extreme generalisation.)

Now replace the definitions of freedom equality as is generally know in our constitution with the definitions that the Native American-Indians practice. Pure fun is the result. Usage of these changed definitions would literally place the legal system on its head. Imagine the constitution guarantying basic human rights (sic) to animals and the environment and the courts upholding the right to life of a tree or a group Public Interest Litigation filed by a forest to protect its existence.

What this example if assumed to be true establishes is the negation of the infallible character of our basic definitions and our way of looking at life.

Would this example be in consonance with the idea put forth in your post? If so can you elaborate more on this idea and also provide more examples if possible.

Thanks

Pratardana.

----
Minor Admin Edit: 'Native American-Indian' or 'Native American' is a more politically correct term. The older term used before is considered derogartory or offensive these days.


Indian Legal Literature - dhu - 09-12-2007

Pratardana,

Below is an example of what you were saying about futility of the western legal enterprise: Why can't we file a complaint against Monkeys, do they not possess a 'self' same as us. Invariably, we find that "western" systems must always expand the parameters of their legal definitions to account for ever-increasing complexity, while we seem to handle complexity in stride and are not at all hampered by an all consuming need to define. Your note about Western environmentalism was also noted by Balagangadhara, whose extract I had posted above; this is an indication, of course, that you are on the right track in your thinking.

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->The contrast with Western ethical thought is again instructive in this regard. Ever since Homer, it has been a rather characteristic trait of Western thinking that moral phenomena pertained only to the domain of human intercourse. The relation of Man to Nature fell outside the scope of moral life: where it does enter into discussion at all, it does so derivatively in terms of, say, the consequences of such actions on future generations. Inanimate Nature, non- and quasi-sentient animals, on their part, could not enter into any moral relationship with human beings because they lacked the faculty or the capacity to ‘reason’ (or whatever) by exercising which moral choices and decisions could be made. Morality came into play only when both the relata in the relationship were moral agents and Nature disqualified herself from being one. In the best of cases, Nature was indifferent to man’s striving to realize a moral world. At worst, she was hostile to such an endeavour.

This restricted scope of the domain of moral life has had the consequence that ‘technology’ could not be considered as a moral action in itself. Technological action has come to be governed by criteria other than those that regulate moral action. To be sure, in the last decade or so, there has emerged a burgeoning domain of environmental ethics, which has seen it fit to challenge the predominant view. Discussing the wide variety of environmental philosophies and contrasting them with the unexpli-cated element from our world models is, however, beyond my ken at the moment. It suffices, for the moment anyway, to note this consequence.
<!--QuoteEnd--><!--QuoteEEnd-->

<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Indian police hunt for monkey accused of stealing South Korean tourist's glasses</b>

LUCKNOW, India: Police combed the alleys of the Hindu holy city of Varanasi in northern India on Tuesday to search for a monkey accused of stealing reading glasses from a South Korean tourist.

Kim Dang Hoon filed a formal complaint against the primate that he claims broke into his hotel room and pinched his spectacles, according to investigating officer Inspector Govind Singh.

"It is difficult to trace the monkey but I am trying my best to locate the rogue," Singh said from Varanasi, some 300 kilometers (185 miles) southeast of Lucknow.

Thousands of wild monkeys roam Varanasi, dotting the trees on the banks of the Ganges River and scampering through the city's many temples, where they are venerated as manifestations of the Hindu monkey god Hanuman.

In his written complaint, Kim said he opened his hotel room window for fresh air when the monkey made his move. "He headed straight to the table where my glasses were kept and took it away," Kim said in the statement.

Part of the frame later was recovered by hotel staff and Kim said he filed the report so he can make a damages claim on his travel insurance.

Singh said he would be at a loss if his officers caught the culprit because there are no laws under which a wild monkey can be charged.

Problems with monkeys harassing tourists in the city were common, Singh said.

http://www.iht.com/articles/ap/2007/07/17/...onkey-Thief.php<!--QuoteEnd--><!--QuoteEEnd-->


Indian Legal Literature - dhu - 06-09-2008

<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Re: Do we need the Personal Laws by Religion ??????

1. Indic traditions (analogous to roman 'traditio') are not religion-
s.

2. It took 800 years to wipe out pagans in Roman world. Then, our
Xian brethern appropriated then majority pagans' history as theirs.
How many of our humanities' scum bags preach this truth. They dont.
Because, they are the same missionary brothers in secular guise.

3.Roman 'religiones' is plural of 'religio' = 'traditio'

4 Now, christianity become religion. In otherwords, it appropriated
their counterparts, and wiped out the 'others'

5 The so-called Indian Secular Law written by Rev. Macaulay. How
come these 'secular scum bags' adapted christian theological frame
work in India, at the same time, accepting Christian Theology as TRUE.
Thus, Secular India = Abrahamic India. This is implicit expansion of
Christianity, which is dangerous than Proselytization. These sons of
maccaulay(from Nehru to present crop of politicians) screwed up India
very badly.

6 These abrahamic legal systems are based on "Normative Ethics" ( Set
of Norms--They never change wrt space-time).<b> Thus, Justice system
become Blind.</b>

<b>7.Ancient Bharata legal system is not NORMative.</b> For example, read
the historical stories in puraaNa-s, you never notice any universal
law-s, codes. Probably, everybody might have read Maryaada raamanna
stories and its variants. These stories never reflect Normative
Ethics.

\Regards,
VR<!--QuoteEnd--><!--QuoteEEnd-->


Indian Legal Literature - Guest - 07-01-2008

a blind legal system among other things is just a metaphor for impartiality, and such blindness by itself does not make it the standard bearer of normative ethics.

your argument throughout the above post is on identifying normative trends in the present legal structure and differentiating the Indian legal system as non-normative.
if this is the case then though i would accept part of your premise i have to disagree with your conclusions. no legal system is normative or descriptive in totality. indeed it is my contention that no legal system can be either wholly normative or descriptive.

taking your example of "Abrahamic legal systems" and their alleged non-changing normative ethics unless you give examples of the same it would be difficult to understand your premise. however i would like to point out that the only constants in these "Abrahamic Legal Systems" are concepts of 'justice', 'rule of law', 'equity' among others. i agree that these concepts are non-changing but their interpretations are open to all. further i would like to point out to the existence of similiar concepts existing in our "Indian legal systems" too. example the idea of "Dharma". such being the case how can the "Abrahamic legal systems" be considered to be Normative while ours are considered to be non-normative. the example provided of historical stories in Puranas and other sources can at best be considered to be descriptive interpretations of normative values.

however one difference that might exist between the above mentioned two legal systems might be the "normative values" that either of them espouse.
also as religion as understood by either of the two legal systems is very different comparisons between their definitions should be undertaken more cautiously.

- Pratardana.


Indian Legal Literature - Bharatvarsh - 07-19-2008

Can anyone here enlighten me about Medhatithi's Manubhashya, a commentary on Manu's Dharmashastra?

From what I read he is dated to 9th cent CE, what I found interesting is Savarkar refers to him in his "six glorious epochs" saying that he condemned the foolish generosity of Hindu kings and their senile rule based warfare (such as not attacking first), and said that there is no sin if Arya's cross the borders of Aryavrata and conquer other lands and that all enemies are to be crushed completely etc.

Has anyone came across these views in his writings?