Ancient Indian Law
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Introduction to Dharmashastras 1 1 INTRODUCTION TO DHARMASHASTRAS The Dharmashastras are bound to shock the sensibilities of many educated modern men and women. These scriptures belong to an age when people conducted their lives based on certain beliefs, values, traditions and assumptions. It is not fair to judge them based on our present day values and social norms. On the positive side Hinduism marched ahead while these law books lost their relevance and fell aside into the dustbin of history. The books have become relics of the past while Hinduism assimilated new currents of thought and transformed itself into a progressive, evolving and expanding religious tradition. Dharma is a very elaborate concept of Hinduism which we have described elsewhere. Its principal aim is to preserve the world order (Rta), by maintaining its overall structure, basic values and innate harmony. According to Hinduism, one of the main functions of the Divinities is to protect the creation by maintaining the Dharma in all the worlds. The rules of Dharma are not universal. They are bound to time and space and are subject to perennial change. They are also not applicable to all human beings or the entire creation. At the highest level of human or divine existence, when man transcends his animal nature and the qualities of the three gunas, there are actually no laws to govern him, because in the transcendental planes there are no bounds, only awareness, understanding and an overwhelming sense of love and understanding. In truth, he governs himself, very much like God, out of a sense of self responsibility and lack of desires. 2 Ancient Indian Law The Dharama Shastras were meant for people who were driven by the illusory world, who would engage in desire oriented actions and needed to be regulated for the purpose of maintaining or preserving the moral, social and political order. They were composed to emphasise the importance of leading a virtuous and divine oriented life on earth and remain on the side of God for a better tomorrow and harmonious today. Unlike the Vedas which are believed to be divine in origin, the Dharma Shastras represented the collective wisdom of intellectuals, scholars, politicians and law makers who created them. Some of them had their own reasons to support a belief system that ensured the continuation of their family names and privileges and at the same time kept the lower castes and the women at the bottom of the oppressive, feudal and religious hierarchy. In the name of God and religion, in a society that believed in the laws of karma and the possibility of a better life through reincarnation, the Dharma Shastras attempted to achieve this rather complicated task on an ongoing basis. They laid down elaborate rules to deny a vast majority of the people the right to live a decent life and made provisions at the same time for the continuation of a system which, from present day values, was extremely racial and arrogantly inhumane. Interestingly, although a vast majority of the people were not aware of these law books, because they were not allowed to read and study, they somehow remained subservient to these laws and accepted them as their lot. In this regard they were like the medieval farmers of Russia or Europe, who willingly subjected themselves to the feudal structure and the laws of the Church that perpetrated it. Some of the laws prescribed in the Dharama Sutras are therefore bound to offend the sensibilities and sentiments of many modern day Hindus, who have been brought upon the values of equality, individual liberty and social justice. Many verses in these scriptures stand in contrast to these fundamental values that define many democratic societies today and characterise the free world. Readers are requested to consider these scriptures from an academic or historical point of view to understand the times they represent. To consider them as Introduction to Dharmashastras 3 the authoritative text books of present day moral or social values of Hinduism would be an anathema. They belong to a particular time frame and represent certain social and moral values most of which are irrelevant today. Some critics of Hinduism use these texts as an opportunity to denigrate Hinduism and divide Hindu society. But to judge Hinduism based upon these texts is like judging present day Europeans based upon the medieval incidences of persecutions or the Americans on the basis of the slavery system that was practiced in North America in the 18th or the 19 the century. Hinduism has been an ever evolving religion. It accepts change as the central quality of creation, and an awareness of it as the principal motivator of self realization. In the process of its evolution, Hinduism has shaped itself into a wonderful religion of the highest human vision. This has become possible because embedded in its core is the basic truth that religious philosophy is the product of man’s highest wisdom and that, as the times change and as man becomes increasingly self aware and intuitively intelligent, his philosophy of life and the scope of his vision would also change. Hinduism has come a long way from the days of untouchability and social inequality of the ancient and medieval periods to its present day unique status. Despite of its sordid past in the social sphere, today Hinduism has been able to resolve the inconsistencies and anachronisms of its past in a dignified and refined way, discarding the worst and keeping the best the religion represents. In this regard, the credit goes to the untiring work of many eminent social reformers and noble souls, who have sculpted a wonderful religion out of Hinduism through their contact with the Divine nature of man and their awareness of the wisdom of Truth. They are active even today, preparing Hinduism for the coming generations, who would be scientifically more aware and spiritually more demanding. The silent revolution within Hinduism has been still going on, despite of attacks from within and without, to embrace the future that is shaping itself in the womb of the earth. Hinduwebsite salutes all those who are trying to redefine Hinduism and making it 4 Ancient Indian Law more relevant to the problems of the present day complex world. OVERVIEW Dharmauastra is a genre of Sanskrit texts and refers to the uastra, or Hindu branch of learning, pertaining to dharma, religious and legal duty. The voluminous textual corpus of Dharmauastra is primarily a product of the Brahmanical tradition in India and represents the elaborate scholastic system of an expert tradition. Because of its sophisticated jurisprudence, Dharmauastra was taken by early British colonial administrators to be the law of the land for Hindus in India. Ever since, Dharmauastra has been linked with Hindu law, despite the fact that its contents deal as much or more with religious life as with law. In fact, a separation of religion and law within Dharmauastra is artificial and has been repeatedly questioned. Dharmauastra is important within the Hindu tradition—first, as a source of religious law describing the life of an ideal householder and, second, as symbol of the summation of Hindu knowledge about religion, law, ethics, etc. PRINCIPAL TEXTS While there are literally hundreds of Dharmauastra texts and many more commentaries and digests, the principal Dharmauastra texts include 1) the four Dharmasutras of Apastamba, Gautama, Baudhayana, and Vasicmha, dating from around the third to first centuries BC, 2) the major smitis of Manu, Yajnvalkya, Narada, Vicgu, Bihaspati and Katyayana, tentatively dating from between the first and sixth centuries AD, and 3) the many commentaries and digests, including prominently those of Aparaditya, Asahaya, Bhamma Nilakagta, Devaggabhamma, Hemadri, Jimutavahana, Lakcmidhara, Madhava, Mcdhatithi, Mitra Miura, Raghunandana, Vacaspatimiura, Varadaraja, Vijnaneuvara, and Viuvarupa, among many others. Dharma or Dhamma (Natural Law) refers to the underlying order in Nature and human behaviour considered to be in accord with that order. Ethically, it means ‘right way of living’ or ‘proper conduct,’ especially in a religious Introduction to Dharmashastras 5 sense. With respect to spirituality, dharma might be considered the Way of the Higher Truths. Dharma is a central concept in religions and philosophies originating in India. These religions and philosophies are called Dharmic religions. The principal ones are Hinduism (Sanatana Dharma), Buddhism (Buddhadharma), Jainism (Jaina Dharma), and Sikhism, all of which emphasise Dharma (the correct understanding of Nature) in their teachings. From the River of Heaven: Hindu and Vedic Knowledge for the Modern Age by David Frawley Pagan Theology: paganism as a world religion by Michael York List of religions In these traditions, beings that live in accordance with Dharma proceed more quickly toward Dharma Yukam, Moksha or Nirvana (personal liberation). Dharma also refers to the teachings and doctrines of the founders of these traditions, such as those of Gautama Buddha and Mahavira. In traditional Hindu society with its caste structure, Dharma constituted the religious and moral doctrine of the rights and duties of each individual. MEANINGS AND ORIGINS OF THE WORD DHARMA In the Rigveda, the word appears as an n-stem, with a range of meanings encompassing “something established or firm” (in the literal sense of prods or poles), figuratively “sustainer, supporter” (of deities), and in the abstract, similar to the semantics of Greek ethos, “fixed decree, statute, law”, The word is from a root common Indo-Iranian root dhar “to fasten, to support, to hold”, continuing PIE dher, in the IEW connected with Latin frenum “rein, horse tack”, Germanic words for “hidden, held back” (OHG tarni “latens”), and extended to dher-gh, with OCS “to hold, possess”. Etymological identity of dharma with Latin firmus (whence English firm) has been suggested, but remains uncertain.