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Hindu Law

Hindu law, like African law and Islamic law, is a family of laws rather than a single body of law. A “family of laws,” to borrow from Werner Menski, has an essential conceptual core, but the case of Hindu law, even that core has remained so flexible, diffuse, and internally diverse that it is best to describe it as “unity in diversity” rather than imagine a fixed, unified Hindu system. In various senses, Menski stresses, there is no such thing as Hindu law, and yet it exists visibly and invisibly, and in manifold manifestations, which now include even postmodern manifestations.

Hindu Legal Tradition

An overview of Hindu law, as with other legal systems, can begin with the sources of law query: Where does one find Hindu law? Unlike the positivists' preference for law in legislation, sources of Hindu law are in every sense diffused, myriad, and at times contradictory. Nevertheless, these problematic origins of Hindu law also reflect the pluralistic, nonauthoritarian character of the legal system. The nonauthoritarian character makes it “internally dynamic with a permanent capacity for flexibility and realignment” (Menski 2004: 3). In a real way, one finds Hindu law in the way Hindus live rather than in scholarly expositions of the subject.

Genealogically, one may study Hindu law as a system of values through the prism of its traditional, colonial, modern, and postmodern manifestations. Within the bounds of tradition, Hindu law is an expression of people's lives; it is a way of life. However, the plural narrative of Hindu law, within the colonial period and the modern independence period, is that of an ancient codified system characterized by a uniform, static, outmoded, repressive, patriarchal legal culture eternally bound to superstitions.

Modern feminists view Hindu law as an expression of a tradition that is singularly bad for women, requiring positivist interjections of the modern, rational state. From this perspective, Hindu law simply needs to modernize and secularize itself and embrace Western ideals of justice and equality, thereby becoming an example of a rational legal system. The modernist agenda denies any space for culture-specific development of law with reform firmly rooted in people's lives rather than in state action. Much of this modern (rational) critique of Hindu law is the product of inadequate appreciation of the fundamental character of this legal system.

Concepts and Sources of Law

Hindu law epitomizes a system of self-regulatory approaches proclaimed by dharma (the ideal ordered and sustainable society). Paradoxically, it has an absence of centrality of law in the legal system and instead focuses on the intricate connection between different interlinking elements of the whole experience of human life. Hindu law, then, is not a system of law but an approach to life.

Shruti (rules heard and orally transmitted through generations),dharmasutras (law treatises in the form of aphorisms),smriti (compilation of customs and good usages practiced and accepted in society), and nibandhas (commentaries and digests of interpretation of smritis by jurists in ancient India) are the principal sources of Hindu law. Apart from these formal sources, other works, including Arthshastra (a masterly treatise on statecraft by Kautilya),Ramayana and Mahabharata (the two most celebrated epics of ancient India), and Mimamsa (known in contemporary legal literature as the principles of statutory interpretation) are also important sources of law.

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