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This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India ([[Classical Hindu Law]]) through the colonial appropriations of Dharmaśāstra ([[Anglo-Hindu Law]]) to the establishment of the modern personal law system ([[Modern Hindu Law]]).
== Dharma and law ==
== Примечания ==
Dharma and law are not precisely the same. Dharma refers to a wider range of human activities than law in the usual sense and includes ritual purifications, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly «legal» issues. In this respect, Hindu law reveals closer affinities to other religious legal systems, such as [[Jewish law]]. Dharma concerns both religious and legal duties and attempts to separate these two concerns within the Hindu tradition have been widely criticized.<ref>K.V. Rangaswami Aiyangar, ''Rājadharma'' (Adyar: Adyar Library, 1941), 23; Robert Lingat, "Les Quatre Pieds du Procés, " ''Journal Asiatique'' 250 (1962), 490—1; and Richard W. Lariviere, "Law and Religion in India, " in ''Law, Morality, and Religion: Global Perspectives''. ed. Alan Watson (Berkeley: University of California, 1996).</ref> According to Rocher, the British implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated ''dharma'' into the English categories of law and religion for the purposes of colonial administration.<ref>Ludo Rocher, «Hindu Law and Religion: Where to draw the line?» in ''Malik Ram Felicitation Volume''. ed. S.A.J. Zaidi (New Delhi, 1972), 190—1.</ref> However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves.<ref>J.D.M. Derrett, ''Religion, Law, and the State in India'' (London: Faber, 1968), 96; For a related distinction between religious and secular law in Dharmaśāstra, see Timothy Lubin, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084716 "Punishment and Expiation: Overlapping Domains in Brahmanical Law, "] ''Indologica Taurinensia'' 33 (2007): 93—122.</ref>
{{примечания}}
== Sources of dharma ==
There are usually three principal sources of ''dharma'' in the Dharmaśāstra texts:
# ''[[śruti]]'', literally translates as "what is heard, " but refers to the [[Vedas]] or Vedic literature which are the liturgical and praise hymns of the earliest Hindu tradition
# ''[[smriti| smŗti]]'', literally "what is remembered, " but refers to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (''Mahābhārata'' and ''Rāmāyaņa'')
# ''[[ācāra]]'', literally "practice, " but refers to the norms and standards established by educated people who know and live by the first two sources of dharma
In two important texts, namely the ''Laws of Manu'' (2.6) and the ''Laws of Yājñavalkya'' (1.7) another source of dharma, ''[[ātmatuṣṭi]]'', literally "what is pleasing to oneself, " is also given, but later texts and commentaries severely restrict this source of dharma.<ref>Donald R. Davis, Jr., «On Ātmatuṣṭi as a Source of ''Dharma'',» ''Journal of the American Oriental Society'' 127:3 (2007), pp. 279—96. For contrary opinions that place great weight on the importance of ''ātmatuṣṭi'', see Werner Menski, ''Hindu Law: Beyond Tradition and Modernity'' (Delhi: Oxford UP, 2003), p.126 and Domenico Francavilla, ''The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretation in Mīmāṃsā and Dharmaśāstra''. Corpus Iuris Sanscriticum. Vol. 7 (Torino: CESMEO, 2006), pp.165—76.</ref>
Effectively, the three ideal sources of dharma reduce to two — texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.
== Important legal concepts in Dharmaśāstra ==
* [[vyavahāra]] — In Dharmaśāstra, vyavahāra refers to the matters justiciable before a formal court of the king or constituted by the king. Vyavahara has two principal sections — legal procedure (''vyavahāra-mātŗkā'') and the traditional eighteen [[Titles of Hindu Law]] (''vyavahāra-pada'').
* {{IAST|ṛṇa}} — debt
* svatva — property
* {{IAST|daṇḍa}} — threat of punishment
* [[prāyaścitta]] — penance, expiation
== Classical Hindu law ==
{{main|Classical Hindu law}}
There is little evidence for the practice of law in India prior to about the eighteenth century. In some regions, such as [[Maharashtra]], a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings.<ref>Vithal Trimbak Gune, ''The Judicial System of the Marathas''. Deccan College Dissertation Series. No. 12 (Poona: Deccan College Post-Graduate and Research Institute, 1953).</ref> In other places, such as South India, temples were intimately involved in the administration of law.<ref>Donald R. Davis, Jr., ''The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala''. Corpus Iuris Sanscriticum et Fontes Iuris Asiae Meridianae et Centralis. Vol. 5. Ed. Oscar Botto (Torino (Italy): CESMEO, 2004).</ref>
Law during the classical period was highly based upon the teachings of the dharmasastra and the distinguished sources of dharma as dictated by those learned in the Vedas.<ref>Hacker, Paul. 2006. pp. 484</ref> Although theologically law was primarily derived from Vedic knowledge, in actual practice, the community norms of particular social groups determined the actually rulings. Law was therefore highly decentralized and quite particular in nature towards specific groups.<ref>Davis, Jr. Donald R. Ch. 1.</ref>
What is almost completely lacking for classical and medieval India are the records of courts. In lieu of such records, other kinds of evidence for legal practice must be used to piece together an outline of [[Classical Hindu Law]] in practice. Such evidence includes prominently the numerous inscriptions from this period that record a variety of legal transactions, gifts, contracts, decrees, etc. associated with political rulers, temples, corporate groups and others. Many aspects of law were likely under the jurisdiction of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders.
== Anglo-Hindu law ==
{{main|Anglo-Hindu law}}
[[Файл:Company rule calcutta from ftwilliam.jpg|thumb|right|300px|[[Fort William]], [[Calcutta]], where [[Henry Thomas Colebrooke]] was appointed professor of Hindu law in 1805]]
The early period of [[Anglo-Hindu Law]] (1772—1864) is characterized by three main features: 1.) the collection and translation of important [[Dharmaśāstra]] texts by British administrator-scholars (especially Jones, [[Henry Thomas Colebrooke]], Sutherland, and Borrodaile) in order to «apply» the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court [[pandit]]s in British courts to aid British judges in the interpretation of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the «redundancy» of court [[pandit]]s.
In 1864, just after India became a formal part of the [[British Empire]], Anglo-Hindu law entered into a second phase (1864—1947), one in which the court pandits were dismissed due to the extensive [[case law]] that emerged during the first phase. During this time a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and to provide it with a legislative foundation. With the disappearance of court pandits, continual growth of case law (on topics involving questions of Anglo-Hindu law), and new legislative foundation, the relevance and interest in [[Dharmaśāstra]] as the source of law also diminished as the parliamentary codified what they believed to be Anglo-Hindu law . The gap between the idealized legal system of [[Dharmaśāstra]] and the diversity of customary law throughout British-India led to the fixing of regional [[customary law]]s by the British officials. This was done through interviews, observations, and discussions with locals. Massive volumes of customary rules that were in theory being enforced were collected throughout British-India and became part of the consultative resources of the courts.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in [[India]].<ref>Ludo Rocher, «Indian Response to Anglo-Hindu Law.» ''Journal of the American Oriental Society'' 92:3 (1972), pp. 419—42 and Marc Galanter, ''Law and Society in Modern India'' (Delhi: Oxford UP, 1989).</ref> The British felt that one of their great gifts to [[India]] was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
== Modern Hindu law ==
{{main|Modern Hindu law}}
With the formal independence of India from Britain in 1947, [[Anglo-Hindu law]] and the other major personal law system of the colonial period, the so-called Anglo-Muhammadan law (Islamic law), came under the constitutional authority of the new nation. The new constitution was officially adopted by India in 1950 and had a primary focus on securing equality in the social, political, and economic realms.<ref>Seshagiri Rao, K.L. (1997—1998). Practitioners of Hindu Law: Ancient and Modern. Fordham Law Review, 66, Retrieved October 15, 2008</ref> Although there has been discussion that the Indian Constitution has a secular Hindu bias, an amendment to the constitution (42nd Amendment, 1976) formally inserted the word ''secular'' as a feature of the Indian republic.<ref>Singh, Pritam. 2005. «Hindu Bias in India’s 'Secular' Constitution: probing flaws in the instruments of governance.» ''Third World Quarterly.'' 26:6, 909—926.</ref>
In the early 1950s, contentious debates ensued over the so-called [[Hindu Code Bill]], which had been offered in the Indian parliament, as a way to fix still unclear elements of the Anglo—Hindu law. Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo—Hindu law. In the end, a series of four major pieces of legislation were passed in 1955—56 and these laws form the first point of reference for modern Hindu law: [[Hindu Marriage Act (1955)]], [[Hindu Succession Act]] (1956), [[Hindu Minority and Guardianship Act]] (1956), and [[Hindu Adoptions and Maintenance Act (1956)]]. Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation.<ref>Bannigan, John (1952, December 3). [http://www.jstor.org/pss/3024109 The Hindu Code Bill]. Far Eastern Survey: American Institute of Pacific Relations, XX1, Retrieved October 22, 2008.</ref> Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of [[Modern Hindu Law]].
There are no religious courts in India; rather all cases are adjudicated within the state district courts, presided over by state bureaucrats. In the countryside it is possible for there to still exist village tribunals that try community members according to custom and religious law; however this is not adjudicated or enforced by the state. State judges have no formal religious legal training and are thus required to apply Hindu law in an abbreviated version. It is possible for a Hindu judge to preside over a Muslim couple’s divorce, just as it is possible for a Christian to preside over the adoption case of a Hindu family. It is here where courts rely on the lawyers to argue the religious laws and advocate on behalf of their clients.
== Notes ==
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== References ==
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