Introduction
Law and religion have much in common as social institutions and as historical phenomena. Broad areas of overlap and even broader
areas of complementariness between these spheres have been observed in Roman, Judaic, Christian, and Islamic societies, and have generated a vast literature. There is also a rich ethnographic literature on law
in nonliterate societies, emphasizing dispute resolution, informal legal process, and cultural context. Yet India’s potential
contribution to this field has remained almost completely unnoticed, despite both the fact that the Hindu and Buddhist religions
have produced vast and highly refined legal literatures, and the fact that the Hindu religious texts and Indian legal practices
became the focus of intense scrutiny by European scholars during the centuries of colonial administration. This volume is
intended to begin to rectify this oversight by offering an up-to-date and accessible analysis of the main features and periods
of what has conventionally been called Hindu law, and of the interrelations between law and Hinduism more broadly, up to the
present day. Furthermore, several of the chapters break new ground in developing interdisciplinary approaches to the study
of Hinduism and law – for example, in examining the literary articulations or the ritual dimensions of law in Hindu contexts.
“Hinduism”
Numerous stumbling blocks lie before the readers of this book. Its title itself displays two of them: “Hinduism” and “law.”
The term “Hinduism” is of modern coinage, and was not used by any Hindus themselves as a religious category until the middle
of the nineteenth century, when they began to appropriate it from European usage. “Hindu” was initially more an ethnic label
than a religious one. The Persians, and then the Greeks, used it to refer to the peoples living around and beyond the Sindhu
River (which they pronounced “Hindu”; “Indus” and its derivate “India” reflect the Latinized form of the Perso-Greek name). Indians (of whatever
religion) do not seem to have applied the label to themselves until after Turkic rulers had established Persianate Islamic
kingdoms in several parts of India, especially after 1206; late medieval works speak of “Turaka” or “Turu
ka,” which designated
ethnic Turks and Arabs, and only secondarily Muslims in general, much as in earlier centuries “Yona” (or “Yavana”) was applied
not merely to Ionians but to any denizen of “the West” (i.e., Persia and beyond). Vis-à-vis the “Turaka,” “Hindu” meant simply
Indian.
ka,” which designated
ethnic Turks and Arabs, and only secondarily Muslims in general, much as in earlier centuries “Yona” (or “Yavana”) was applied
not merely to Ionians but to any denizen of “the West” (i.e., Persia and beyond). Vis-à-vis the “Turaka,” “Hindu” meant simply
Indian.
The period of British rule coincided with the emergence of the modern comparative study of religions, and consequently the
classification of non-Christian religions into various “isms”: Judaism, Muhammadanism, Buddhism, animism, and so on. In the seventeenth and eighteenth centuries, the adherents of India’s indigenous religions were
called “Gentoo,” based on the Portuguese for “gentile,” i.e., pagan idolator. But by the early nineteenth century the ethnonym
“Hindu” (in use since the 1660s, spelled variously) had supplanted it, yielding the umbrella term “Hinduism.” As the Victorian
age progressed, Indians came increasingly to reflect on what made their religious culture distinctive in comparison with Christianity
and Islam, and in so doing came to adopt the name Hindu and to reflect on what the name “Hinduism” might properly or essentially
refer to. During the last quarter of the nineteenth through the middle of the twentieth century, a reformist, modernizing
view of Hinduism dominated the discourse, particularly among Anglophone Indians. At the same time, certain elements of traditional
piety were celebrated as central to Hindu cultural, social, and civic life, and thus as the natural foundation and justification
for an independent Indian polity.1
As a result, although it has become commonplace for historians to speak of “Hinduism” as a purely modern conception (or “invention”),
there are at least two ways – one “emic” and one “etic” – in which it makes sense to retain the label. First, for all the
diversity of beliefs and practices among Hindus, the notion of a unifying core or thoroughgoing thread has ancient roots (including
careful philosophical justification), and the idea has increasingly been embraced and appropriated by Hindus over the last
two centuries. Today, many self-described Hindus bristle at the suggestion that Hinduism is a modern contrivance or an artificial
amalgamation. This is a justification based on contemporary self-perceptions among Hindus, but, even from the perspective
of the detached outsider, there are reasons to accept (with appropriate caveats) the heuristic utility of the concept of “Hinduism.” Even if the religious traditions grouped
under this name lack a consistent minimal set of shared distinctive features, a cluster of “family resemblances” is discernable:
assertion of the existence of divine persons, in many cases said to emanate from a single supreme unity (or pair), more abstractly
conceived; techniques of mental or spiritual culture commonly involving the repetition of mantras, fasting, and meditation;
worship involving offerings of food and other prestations before a physical embodiment of the deity (although a few movements
have rejected or criticized image-worship); allusion to or citation of authoritative texts in Sanskrit (even if those texts
are not the central focus) – the juristic literature going by the name of Dharma
stra is an example; and more generally a
distinctive range of styles of devotion and expression quite unlike that of other religions found in India. These family resemblances
may be enough to justify our speaking of the family as “Hinduism.”
stra is an example; and more generally a
distinctive range of styles of devotion and expression quite unlike that of other religions found in India. These family resemblances
may be enough to justify our speaking of the family as “Hinduism.”
One problem that remains is that other religions originating in India share many of these traits to almost the same degree,
notably: Buddhism (almost extinct in India by the nineteenth century, but now represented by some modern converts and by immigrants
such as refugees from Tibet) and Jainism. Sikhs, practicing a tradition that arose out of the religious ferment of broadly
Hindu devotionalism in sixteenth-century North India, adamantly claim the status of a distinct religion, and several movements
with similar origins are inclined to do the same. Some low castes have on principle rejected the “Hindu” label because they
see it as inseparable from Brahmanical (Sanskrit) doctrine, which they regard as oppressive and corrupt.2 (Indeed, acceptance of the authority of the Veda and respect for the religious prerogatives of Brahmins used commonly to
be cited even by scholars as the single unifying feature of Hinduism.) In any case, it is still possible to find local religious
communities, unheeding of cosmopolitan discourse – and conversely, learned reformers and spiritual guides – who prefer to
describe their religion as Vai
ava or 
aiva, or 
rya or Santana-Dharma, rather than Hindu. For legal purposes under the
Indian Constitution, all of these groups count as Hindu today, which only helps blur the elusive, shifting boundary between
“Hindu ethnicity” (or “culture” or “nationality”) and “Hindu religion.”
ava or aiva, or rya or Santana-Dharma, rather than Hindu. For legal purposes under the
Indian Constitution, all of these groups count as Hindu today, which only helps blur the elusive, shifting boundary between
“Hindu ethnicity” (or “culture” or “nationality”) and “Hindu religion.”
Thus, the name “Hinduism” today covers a large number of historically related but often emphatically distinct traditions and
offshoots. One of the common points of reference for most of these – whether they accept its authority or reject it – is the
Sanskrit literary and scholastic (stra) tradition, which is the forum in which most classical religious expression appeared. Sanskrit textual production, spanning
three millennia, has produced a vast body of works in many fields, religious (Hindu, Buddhist, and Jain) and secular. Such
works were produced almost exclusively by members of the Brahmin caste or other elite groups such as courtiers or learned monks. As a result, the interests and concerns of such groups are
disproportionately represented: Much of the religious and cultural life of other elements in society is either ignored or
represented from an outsider’s point of view, and much simply went unrecorded. For our purposes, this means that much of the
legal affairs of Hindus (or of Indians in general) cannot be recovered.
stra) tradition, which is the forum in which most classical religious expression appeared. Sanskrit textual production, spanning
three millennia, has produced a vast body of works in many fields, religious (Hindu, Buddhist, and Jain) and secular. Such
works were produced almost exclusively by members of the Brahmin caste or other elite groups such as courtiers or learned monks. As a result, the interests and concerns of such groups are
disproportionately represented: Much of the religious and cultural life of other elements in society is either ignored or
represented from an outsider’s point of view, and much simply went unrecorded. For our purposes, this means that much of the
legal affairs of Hindus (or of Indians in general) cannot be recovered.
Hence, in spite of both emic and etic defenses of Hinduism as a coherent tradition, the risk is great that “Hinduism” will
remain a catch-all concept, by which any religious idea, practice, or institution that one cannot place in another tradition
gets classified as Hindu by default. We feel that it makes sense to recognize that, for all the pluralism and regionalism
of Hindu religious and legal life, widespread learned traditions – and Dharmastra in particular – have wielded tremendous
systematizing force and myriad forms of indirect influence that have defined the most widely recognized conceptions of Hindu
orthodoxy and orthopraxy. This circumstance encourages us to seek a greater incorporation of law and legal studies into the
study of Hinduism as a way of adding clearer contours to the discursive uses of the term “Hinduism.”
stra in particular – have wielded tremendous
systematizing force and myriad forms of indirect influence that have defined the most widely recognized conceptions of Hindu
orthodoxy and orthopraxy. This circumstance encourages us to seek a greater incorporation of law and legal studies into the
study of Hinduism as a way of adding clearer contours to the discursive uses of the term “Hinduism.”
Dharma and law
What we do have, and have in plenty, is scholastic material on law, most of which belongs to the field of Dharmastra, augmented by Kau
ilya’s Arthastra (a second-century treatise on politics and civil administration, including legal procedure) and some literary passages depicting
legal process or discussing dharma.
stra, augmented by Kauilya’s Arthastra (a second-century treatise on politics and civil administration, including legal procedure) and some literary passages depicting
legal process or discussing dharma.
The word “dharma” is sometimes translated as “law,” but this can be misleading. Both terms in fact have broad semantic ranges that overlap
only in part. When we speak of law in premodern India, we face not merely a terminological problem but a conceptual one: Are
the Indic phenomena to be discussed as law of the same basic sort as the phenomena included under that category in the West
today? The English word “law” has several senses, but the basic ones in legal usage are: (1) a body of rules considered binding on a particular political or social unit, and the principle of justice underlying it (“the law” = ius, Recht, droit, diritto, archaically, the “Right”),3 or one of the individual rules thereof (“a law” = lex, Gesetz, loi, legge); (2) a code or canon of such rules, including constitution, charters, statutes, and decrees, but also documents such as
contracts and deeds conforming to legal principles, and jurisprudence; (3) institutions and practices for the creation and application of such rules, and for the adjudication of disputes.
In the West, legal rules have come about in various ways, taking various forms. Some begin as divine commandments, embodied
in scripture, especially the “Law of Moses” or “Jewish law,” or the “Old Testament,” and elaborated into a code (such as Talmud or canon law) through exegesis and authoritative pronouncements. This notion of law has since been extended to apply to the rules and codes
of other religions. Apart from such elements of sacred law, legal rules may be instituted through legislative acts and institutions
of a state (civil law), or they may emerge as more or less explicitly formalized standards derived from the customs or usages
of a society or particular groups therein (common law), standards that may often remain unwritten but are no less binding
for that.
Hindu India has known all three sorts of legal institutions, and all three came into play in legal practice at least up to
the colonial period. “Dharma” is the term most closely associated with sacred law, both as an abstract notion of righteousness or justice, and in more
concrete terms as the collective name for specific rules of social conduct and ritual action laid down in (or considered to
be implicit in) revealed scripture (“the Veda”). Although it is part of the “dharma of the king” to enforce such laws, the ultimate sanctions and rewards entailed by such rules transcend all human agency:
the impersonal law of karma, and the possibility of divine interventions. The legal institutions of premodern Indic states
include the facilitation of legal process (vyavahra) and the judgments and ordinances (sana) of the king. Customary law (cra), mostly unwritten, was probably the legal regime that governed the majority of the population, and both the Dharmastra
and royal inscriptions recognize the broad validity of customary law, at least within its proper jurisdiction. Indeed, the
Dharmastra explicitly encompasses all of these spheres of law, subordinating all elements to the transcendent standard of
dharma. And although in principle the chief source (or “root,” m
la) of dharma is supposed to be the sacred words (ruti) of the Veda, in practice the system relies mainly on sm
ti, the collective remembrance of Vedic dharma embodied in the teachings of the great sages, and the customs (cra) of properly trained upper-caste Hindus – together constituting something quite like the rabbinic notion of “Oral Torah.”
ra) and the judgments and ordinances (sana) of the king. Customary law (cra), mostly unwritten, was probably the legal regime that governed the majority of the population, and both the Dharmastra
and royal inscriptions recognize the broad validity of customary law, at least within its proper jurisdiction. Indeed, the
Dharmastra explicitly encompasses all of these spheres of law, subordinating all elements to the transcendent standard of
dharma. And although in principle the chief source (or “root,” mla) of dharma is supposed to be the sacred words (ruti) of the Veda, in practice the system relies mainly on smti, the collective remembrance of Vedic dharma embodied in the teachings of the great sages, and the customs (cra) of properly trained upper-caste Hindus – together constituting something quite like the rabbinic notion of “Oral Torah.”
“Hindu law” versus “Hinduism and law”
Having considered the separate terms of our title, we now turn to their juxtaposition. By “Hindu law,” we refer primarily
to both the theoretical and the practical law described in Dharmastra literature. By this definition, Hindu law is a system
of religious law, analogous to other traditions such as Jewish, Islamic, or canon law. Religious legal traditions have a textual
canon, often relatively open, and a scholastic commentarial tradition, which together serve a remarkably stable religious
vision and support a distinctively religious understanding of law’s purpose, form, and content. Hindu law would have been
just one of several coexisting legal or normative orders at any given place and time in India. To characterize any historical
legal system or order as an instance of Hindu law requires a demonstration of its connection to the Dharmastra tradition
as its scriptural foundation. Such a connection to Dharmastra is the sine qua non of categorizing a legal system or legal order as Hindu.
stra literature. By this definition, Hindu law is a system
of religious law, analogous to other traditions such as Jewish, Islamic, or canon law. Religious legal traditions have a textual
canon, often relatively open, and a scholastic commentarial tradition, which together serve a remarkably stable religious
vision and support a distinctively religious understanding of law’s purpose, form, and content. Hindu law would have been
just one of several coexisting legal or normative orders at any given place and time in India. To characterize any historical
legal system or order as an instance of Hindu law requires a demonstration of its connection to the Dharmastra tradition
as its scriptural foundation. Such a connection to Dharmastra is the sine qua non of categorizing a legal system or legal order as Hindu.
By “Hinduism and law,” in contrast, we seek to erect the framework of a new field of study on the model of other work in law
and religion that focuses on the mutual connections between particular religious traditions and particular legal systems.4 Hinduism, despite being notoriously difficult to define or circumscribe, is a sufficiently cohesive and identifiable religious
tradition that exhibits both the influences of and the influences upon legal orders and systems of several kinds. Abstract
juxtapositions such as law and Hindu theology or law in Hindu epic literature are, in this view, both possible and academically
sound, as are more concrete comparisons such as Hinduism and old Javanese law or Hindu temples and modern Indian law. Also
possible, of course, is an investigation of Hindu law and Hinduism. The point here is that it is imperative that we attend
to the possibilities opened up by examining Hinduism’s relationship to legal ideas, institutions, and practices as a separate,
or at least separable, matter from any examination of Hindu law.
The structure and organization of this volume reflect this important conceptual distinction that we make throughout, namely
to differentiate the narrower tradition of Hindu law and jurisprudence from the larger historical and thematic connections of Hinduism and law. Part I of the volume is devoted to Hindu law. The contributions trace both the history of the practice of Hindu law and the development
of its textual foundations. Parts II and III are devoted to Hinduism and law, with the first focused on premodern sources and the latter on colonial and postcolonial materials.
Overview of the parts
Part I
Accordingly, the first part of the volume presents a detailed chronological survey of Hindu law in various phases: from its early origins and the formation
of the Dharmastra canon, its recanonization under the British, and its partial survival in contemporary Indian “personal
law.” In the first chapter, Donald Davis offers a comprehensive overview of the history of the practice of Hindu law, considering
the important political, religious, economic, linguistic, and literary changes that have affected it from the fourth century
BCE until the present. By design, the chapter looks beyond textual developments in Dharmastra, both because those are discussed
in the next chapter and because a concern with practical law forces us outside these texts. The idea is to offer a way of describing Hindu law
in general terms that can be substantiated through an examination of historical change, drawing on evidence from both within
and beyond Dharmastra.
stra canon, its recanonization under the British, and its partial survival in contemporary Indian “personal
law.” In the first chapter, Donald Davis offers a comprehensive overview of the history of the practice of Hindu law, considering
the important political, religious, economic, linguistic, and literary changes that have affected it from the fourth century
BCE until the present. By design, the chapter looks beyond textual developments in Dharmastra, both because those are discussed
in the next chapter and because a concern with practical law forces us outside these texts. The idea is to offer a way of describing Hindu law
in general terms that can be substantiated through an examination of historical change, drawing on evidence from both within
and beyond Dharmastra.
In Chapter 2, Patrick Olivelle turns our attention to the classical literature of Dharmastra, characterizing the various genres that emerged – the aphoristic stras, the verse stras, and the medieval commentaries (bhya) and anthologies – and identifying conceptual and legal trends that appear in them. He notes the contributions, at an early
stage, from the tradition of political science, especially parallels with the Arthastra of Kauilya (second century CE). Axel Michaels, in Chapter 3, follows this up by assessing the sorts of materials available for documenting legal practice in South Asia prior to the
sweeping changes that came with the advent of the colonial powers. This evidence includes inscriptions recording the edicts
and rulings of kings, decisions of Brahmin or other caste councils, endowments, and legal titles; legal formularies (e.g.,
the Lekhapaddhati); and court records of the Maratha state. The royal legal codes of Ra-period (nineteenth century) Nepal and French colonial records of the Tamil choultry courts (eighteenth to nineteenth century) are considered as two examples
of Hindu law in transition as European models of law transform traditional patterns.
stra, characterizing the various genres that emerged – the aphoristic stras, the verse stras, and the medieval commentaries (bhya) and anthologies – and identifying conceptual and legal trends that appear in them. He notes the contributions, at an early
stage, from the tradition of political science, especially parallels with the Arthastra of Kauilya (second century CE). Axel Michaels, in Chapter 3, follows this up by assessing the sorts of materials available for documenting legal practice in South Asia prior to the
sweeping changes that came with the advent of the colonial powers. This evidence includes inscriptions recording the edicts
and rulings of kings, decisions of Brahmin or other caste councils, endowments, and legal titles; legal formularies (e.g.,
the Lekhapaddhati); and court records of the Maratha state. The royal legal codes of Ra-period (nineteenth century) Nepal and French colonial records of the Tamil choultry courts (eighteenth to nineteenth century) are considered as two examples
of Hindu law in transition as European models of law transform traditional patterns.
The fourth and fifth chapters trace the reconfiguration of Hindu law under British colonial administration. Rosane Rocher first describes the creation of “Anglo-Hindu Law.” In its formative period, c. 1772–1815, the British attempted, with the guidance of Orientalist scholars, to identify and translate fundamental treatises
of Dharmastra. In this effort, the aid of traditionally trained Brahmin scholars (pandits) was enlisted to bring authoritative native expertise. Rocher shows how the colonial decision to administer Hindu law was the mainspring for Sanskrit studies by Westerners, and how, from the 1770s to the 1820s, the search for consistency in law decisions moved away
from reliance on pandits as sources and custodians of Hindu law, first to trust in foundational texts, then to Orientalist authority in the
field, and finally to adherence to a system of case law based on precedents.
stra. In this effort, the aid of traditionally trained Brahmin scholars (pandits) was enlisted to bring authoritative native expertise. Rocher shows how the colonial decision to administer Hindu law was the mainspring for Sanskrit studies by Westerners, and how, from the 1770s to the 1820s, the search for consistency in law decisions moved away
from reliance on pandits as sources and custodians of Hindu law, first to trust in foundational texts, then to Orientalist authority in the
field, and finally to adherence to a system of case law based on precedents.
Rachel Sturman’s chapter, “Marriage and family in colonial Hindu law,” examines how and why issues relating to marriage, gender,
and the family came to form the core of colonial Hindu law, both in the everyday adjudication of the courts and in the heated
public debates concerning the morality of Hindu practices that marked the late nineteenth and early twentieth centuries (for
example, on the issue of child marriage and the age of consent). Highlighting the colonial treatment of Hinduism as a legal
system, Sturman explains the relationship between colonial Hindu law (which formed a branch of civil law) and secular civil
and criminal law. Finally, she considers the implications of the colonial system of Hindu law both for creating a secular
legal system and for the lives of Hindu families.
The first part closes with Rina Verma Williams’s study of the reformulation of Hindu law in independent India (“Hindu law as personal law”).
The creation of independent India as a secular state required a reform of the colonial-era “personal laws” (those applicable to such matters as marriage, adoption, and succession). Ultimately, this process detached
the legal category of “Hindu law” from its traditional roots in Dharmastra. Williams analyzes the 1950s Hindu Code Bills
debates to trace two interrelated transformations: Gender became the site on which modern Hindu law (as personal law) has been constructed; and the modern state became the institution through which modern Hindu law (as personal law) must be negotiated. As the links to classical/textual Hindu law receded, Hindu law as personal law became progressively more embedded in discourses of community, identity, and modern state power.
stra. Williams analyzes the 1950s Hindu Code Bills
debates to trace two interrelated transformations: Gender became the site on which modern Hindu law (as personal law) has been constructed; and the modern state became the institution through which modern Hindu law (as personal law) must be negotiated. As the links to classical/textual Hindu law receded, Hindu law as personal law became progressively more embedded in discourses of community, identity, and modern state power.
Part II
The second part of the volume examines the relation of Hinduism and law in premodern historical periods from two perspectives. First, this section addresses cases in which Dharmastra has had an impact on, or been impacted by, other Hindu traditions such that legal ideas and institutions are
connected to Hindu ideas and institutions and vice versa. Second, the section shows how Hindu expressions of legal norms may
be approached in theoretically novel ways. The purpose of Part II is thus to open new lines of thought within Hindu studies that point to the crucial role played by law in the tradition,
but also to propose new ways of understanding Hindu law by viewing it through distinct theoretical lenses.
stra has had an impact on, or been impacted by, other Hindu traditions such that legal ideas and institutions are
connected to Hindu ideas and institutions and vice versa. Second, the section shows how Hindu expressions of legal norms may
be approached in theoretically novel ways. The purpose of Part II is thus to open new lines of thought within Hindu studies that point to the crucial role played by law in the tradition,
but also to propose new ways of understanding Hindu law by viewing it through distinct theoretical lenses.
Contributions to this section further point to a new academic horizon, namely the possibility of legal studies of Hindu traditions
that move beyond Dharmastra. While each chapter still engages directly or indirectly with this hegemonic textual genre of
Indic law, the very possibility of “law and hermeneutics,” “law and literature,” “law and performance,” or even “law and religion”
in premodern India outside Dharmastra suggests perspectives on a whole range of social facts in India that have been neglected
until now.
stra. While each chapter still engages directly or indirectly with this hegemonic textual genre of
Indic law, the very possibility of “law and hermeneutics,” “law and literature,” “law and performance,” or even “law and religion”
in premodern India outside Dharmastra suggests perspectives on a whole range of social facts in India that have been neglected
until now.
For example, the elaborate hermeneutical system developed in the Prva-M
m
s for the complex sacrificial rites of the Vedic
tradition has been appropriated almost everywhere in later scholastic traditions of India. Lawrence McCrea describes how Mms
subserved Hindu law texts by providing the theological and philosophical foundations for law as well as technical rules for
its interpretation, but he also shows how these two traditions had surprisingly few authors in common until the sixteenth
century. More importantly, he nuances the changes in the textual formats for Dharmastra (metrical rule-texts, commentaries, and digests) in relation to the sometimes fierce debates over Mms’s construction
of textual authority.
rva-Mms for the complex sacrificial rites of the Vedic
tradition has been appropriated almost everywhere in later scholastic traditions of India. Lawrence McCrea describes how Mms
subserved Hindu law texts by providing the theological and philosophical foundations for law as well as technical rules for
its interpretation, but he also shows how these two traditions had surprisingly few authors in common until the sixteenth
century. More importantly, he nuances the changes in the textual formats for Dharmastra (metrical rule-texts, commentaries, and digests) in relation to the sometimes fierce debates over Mms’s construction
of textual authority.
Timothy Lubin’s chapter is an experiment in comparative jurisprudence, asking how Indic legal traditions conceived of what
in the West is called “authority.” The materials examined range from scholastic definitions (such as the stric notion of
Vedic authority elaborated by McCrea) to formulations more closely attuned to the practice of the law. He finds that two influential
Indic concepts – prama and adhikra – largely cover the same ground as “epistemic authority” and “practical authority” in Euro-American jurisprudence, although
in practice prama can do double duty, that is, as “proof” and as “authorization.”
stric notion of
Vedic authority elaborated by McCrea) to formulations more closely attuned to the practice of the law. He finds that two influential
Indic concepts – prama and adhikra – largely cover the same ground as “epistemic authority” and “practical authority” in Euro-American jurisprudence, although
in practice prama can do double duty, that is, as “proof” and as “authorization.”
Ananya Vajpeyi investigates the still difficult question of caste in India through a study of seventeenth-century texts that focused in a newly intensive way on the usually despised
figure of the low-caste dra. She provides a careful study of the philological, historical, and philosophical reasons behind the emergence of this
new thematization of the dra as an important subject of dharma and law. The timing of this emergence, as well as its substance, challenges conventional social histories by showing caste
in a contested and dynamic discourse, not a simple, hegemonic, and static theory that had no relation to social reality.
dra. She provides a careful study of the philological, historical, and philosophical reasons behind the emergence of this
new thematization of the dra as an important subject of dharma and law. The timing of this emergence, as well as its substance, challenges conventional social histories by showing caste
in a contested and dynamic discourse, not a simple, hegemonic, and static theory that had no relation to social reality.
In what may be the first serious law and literature study of premodern law in India, Whitney Cox extends recent work on the
politically constitutive role of Sanskrit literature (kvya) in classical and medieval India by relating it to the constitutive work performed by Hindu law texts. In the end, he suggests
that these two textual forms both served important political functions that differed from, but also related to, one another.
His concluding suggestion – taken from the Kashmiri author Kalhaa – that, in some cases, the linguistic expression of the
judge should be the moral model for the poet inverts the usual law and literature presuppositions about the possible ethical
influence of literature on law.
vya) in classical and medieval India by relating it to the constitutive work performed by Hindu law texts. In the end, he suggests
that these two textual forms both served important political functions that differed from, but also related to, one another.
His concluding suggestion – taken from the Kashmiri author Kalhaa – that, in some cases, the linguistic expression of the
judge should be the moral model for the poet inverts the usual law and literature presuppositions about the possible ethical
influence of literature on law.
Revisiting some of the most enigmatic portions of Dharmastra, Robert Yelle examines the semiotic functions of poetic devices
in Hindu law, such as hyperalliteration, folk etymology, and chiasmus. In so doing, he reveals the rationality underlying
the at first incongruous performative elements of these texts. By interpreting these parts of the texts in terms of or in
the imagined context of performance, Yelle makes sense of the nonsensical and, in the process, offers performance studies
as yet another underexplored approach to law in India.
stra, Robert Yelle examines the semiotic functions of poetic devices
in Hindu law, such as hyperalliteration, folk etymology, and chiasmus. In so doing, he reveals the rationality underlying
the at first incongruous performative elements of these texts. By interpreting these parts of the texts in terms of or in
the imagined context of performance, Yelle makes sense of the nonsensical and, in the process, offers performance studies
as yet another underexplored approach to law in India.
Part III
The final part focuses on the intersection of Hindu practice, legal ordering, and political cleavages during the colonial and post-Independence
periods. These issues, tied to social, political, economic, and administrative pressures, have determined the subsequent development
of Hindu law in the attenuated and novel form in which it persists today. The chapters in this part also address matters of
Hindu religious practice within the modern secular legal system. It is inevitable that, due to the vast contrast between the
sources available for premodern periods and those available for developments since 1750, Part III focuses considerably more on legal practice than is possible in Part II. Nevertheless, these two sections are unified by their thematic approach and their concern with the interrelations between law, religion, and other factors in Indian life.
Richard Davis begins Part III by providing a taut summary of the long history of recognizing the deities of Hindu temples as legal persons in a restricted sense. Addressing the classical sources, colonial views, and a celebrated modern case, Davis describes the continuous view – noted contrary opinions notwithstanding
– that Hindu deities had “juristic personalities,” enabling them legally to own temple property and perform other restricted legal actions. The ingenuity of Hindu jurisprudence on this issue speaks both to the Hindu understanding of the divine in legal terms and to the social manifestations
of the divine through the earthly mechanism of the law.
Aditya Malik follows Davis’s chapter with an ethnographic case study of one of the main temples of Goludev, the “god of justice”
in the remote region of Kumaon, in the foothills of the Himalayas. There, pilgrims and devotees bring to the god their troubles
of all kinds, submitting formal petitions, often written on the official “stamp paper” used for legal documents in India today.
The petitions, which are posted around the temple, appeal for blessings of all kinds, but in particular for the god’s intervention in legal and personal disputes, or
in securing posts and positions. In return, the petitioners, many from metropolises like Delhi, vow to make material or sacrificial
offerings. This tradition thus represents the importance of plural legal frameworks in India, and bears witness to the continuing
salience of traditional religious conceptions of justice as divine will, and of the temple as a sort of court of last resort.
The focus then shifts to the overlapping spheres of constitutional law, politics, and public policy. Laura Jenkins, a longtime
researcher on affirmative-action patterns in India, assesses where the debate over this policy currently stands both in government
and within Indian society. Her focus in this chapter is threefold: to identify the present controversies surrounding caste
and affirmative action in India; to highlight how within recent years there has been growing activism among international
rights groups toward eradicating caste discrimination in India; and to show how affirmative action in India has moved beyond
seeking to protect only disadvantaged caste-based groups. Her discussion, which includes a thoughtful constitutional component
as well, serves as an important reminder of how studying caste and affirmative action in this context can often be complicated,
highly political, and an empirically daunting challenge.
Smita Narula’s chapter looks at how law, politics, and religion intersect. Narula’s approach is to examine, jurisprudentially,
how the Supreme Court of India has tackled a series of cases that involve Hindu nationalist movements. In addition, her chapter surveys the various
historical strands of this form of nationalism, and evaluates how these developments have fit within India’s constitutionally
democratic framework. In particular, Narula’s chapter uncovers a deep struggle (found in the Court’s rulings and within the
polity overall) between those who seek to preserve and promote India as a strongly secular state, and those who have a competing
vision of wanting the country affirmatively to embrace what they see as its distinct Hindu character.
The final chapter of the volume, by Jayanth K. Krishnan, investigates the manner in which, and extent to which, Hindu identity has manifested itself outside of India, within what some observers refer to as the “Hindu diaspora.” Drawing on the
important contributions of Werner Menski, Steven Vertovec, and others, Krishnan traces where Hindus have migrated over time
– including to places such as Southeast Asia, Africa, Fiji, Europe, North America, and Australia. His chapter describes the
different reasons for these migrations, and in his discussion he comparatively assesses the legal and political problems Hindu
communities have faced in their adopted homelands. He concludes by sketching the various layered identities Hindu immigrants
have taken on as they have sought to adapt to their new environments.
A new departure
In planning this volume, we began with a desire to redress the general lack of scholarly knowledge and reflection about the
connections between Hinduism and law. The first step was to make accessible to a broader audience a legal tradition that remains
neglected in studies of law and religion. Beyond that, we wanted to foster methodological innovation by including some provocative
interdisciplinary and comparative studies.
Moreover, it is commonplace for newsworthy developments in India to be explained, in both journalistic and academic publications,
by glibly invoking religion. A better understanding of the role of Hinduism in legal contexts, and of Hindus qua Hindus under Indian and foreign law, is imperative in an ever more culturally
plural world. On the other hand, we are also concerned with a religious tradition, the unity and extent of which is hard to
define clearly, that is invoked as a category in the Constitution and other laws of independent India and, yet, at the same
time, a religion that has been divested, at least in most public discourse, of any connection with or interest in the law.
The disjunction between the heightened religious and political valence of Hinduism and its diminished legal valence in public discourse is balanced by a persistence of legal intrusions
into the now separate sphere of Hindu religion. In this sense, we are interested in both the political discourse surrounding
law and Hinduism and what might be called the law-and-society issues that emerge in both courtroom litigation and informal
legal processes.
The resulting volume offers, we hope, a substantially new orientation to its complex subject: an up-to-date, nuanced account
of the crystallization, development, and modern reconfiguration of “Hindu law,” complemented by an ambitious remapping of
the relations between Hinduism and law before, during, and since its colonial encounter with Europe. We bring together contributions from disparate disciplines – classical philology, the study
of religion, political history, ethnology, literature, and legal studies – in a forum in which they can speak to each other,
and bring the Hindu experience to bear on comparative studies of religion and law.
2 Throughout this volume, the terms “high” and “low” in reference to caste are used heuristically, that is, as reflecting their conventional usage in both popular and official discourses. There
is no intention to endorse their normative values or the theological doctrines that legitimize them. The same goes for other
caste descriptors that impute inherent purity or impurity to particular groups.