AN ENQUIRY IN COMPARATIVE JURISPRUDENCE Similarity and Disparity between dharma, t<L, and nomos by Reinhard Albert May submitted for the PhD School of Oriental and African Studies University of London ProQuest Number: 11010512 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010512 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 - 2 - An Enquiry in Comparative Jurisprudence Similarity and Disparity between dharma, ZZ, and nomos ABSTRACT This enquiry deals with comparative jurisprudence in a cross-cultural perspective. Three most prominent indigenous conceptions, the topoi of dharma, ZZ, and nomos, are subse­ quently investigated and accordingly juxtaposed. Their forma­ tive and post-formative periods, the last roughly until between 200 B.C. and 200 A.D., are taken into consideration. No doubt, all three topoi represent significant world conceptions, a deeper understanding of which is prerequisite for an appro­ priate treatment. The enquiry commences with the Hindu Indian tradition of dharma avoiding as far as possible a descriptive vocabulary that is largely borrowed from an Occidental termi­ nology; the same applies for the topos of ZZ. Due to a still widely-observable ignorance of Hindu Indian jurisprudence, dharma figures in the centre of interest, and is therefore treated comparatively comprehensively. Next, considerable care is taken to focus on the Chinese ZZ^j and thirdly an essentially philosophic description of the ancient Greek topos of nomos is juxtaposed to the preceeding. As this implicit comparison re­ veals to an attentive observer, vague correspondences among fundamental disparities outweigh the similarity between the three topoi. Though dharma and ZZ can be described as regulative ways of life, dharma is for India (Hinduism) what ZZ is for China, and both are counterparts of what nomos was and became, the externally imposed constitutional (legal) order of society. After terminating the formative period, where a slight similar­ ity exists in an imagination of order between nomos and, dharma, while in China the imagination of harmony prevails instead, the topos of dharma is seen to be promoted under the presupposition of its provision of an overarching order, fit to work as an obligatory signpost through man's life, whereas the initial ritual and ceremonial l-c-conducts became after their extension into all social spheres the consolidated, socially created and accepted way of life. - 3 - CONTENTS Abstract 2 Contents 3 Abbreviations 3 Preface 7 Introduction 9 PART ONE ORIGIN AND 'PROMOTION' OF DHARMA § 1 Prolegomena 12 § 2 The Origin of dharma and the Historical Situation 15 § 3 Etymology and Meaning of dharma 18 § 4 Early Imagination of rta and dharma 22 § 5 From rta to the Dominating Vedic Imagination of dharma 2 6 § 6 The Idea of karma in Relation to dharma 33 § 7 Sruti and the 'Promotion' of dharma 40 § 8 The Nature and Relevance of smrti in 'Promoting' dharma 4 6 § 9 Sources and Interpretation of dharma 56 § 10 Constituents of dharma 66 § 11 Svadharma, sadharana-dharma, and purusartha 74 § 12 Rajadharma § 13 Dharma and vyavahara - 4 - PART TWO LI AND NOMOS § 14 Origin, Extension, and Consolidation of 119 § 15 Origin and Development of nomos 168 CONCLUSION § 16 Similarity and Disparity between dharma, ZZ, 199 and nomos GLOSSARY I India (Skt.) 216 II China III Greece INDEX of Chinese Characters 222 BIBLIOGRAPHY I India 223 II China III Greece IV Comparative Works (and other works not listed in I-III) - 5 - ABBREVIATIONS ARSP' ............... Archiv fur Rechts- und Sozialphilosophie, Wiesbaden AV ................. Atharva-Veda b k .................. book B.S.O.A.S.......... Bulletin of the School of Oriental and African Studies, London c ....................circa c h .................. chapter Diet, of H ......... M. and J. Stutley, A Dictionary of Hinduism E.C.M.H.L.......... J.D.M. Derrett, Essays in Classical and Modern Hindu Law, 4 vols. e d .................. edition or edited e s p ................. especially et a l ............... and others e t c ................. et cetera f n .................. footnote F r g ................. Fragment HD ................. Kane, History of Dharmasastra, 2nd ed. I.A ................. Indian Appeals ibid................ ibidem, 'in the same place or book' i . e ................. id est, 'that is' LCL ................ Loeb Classical Library l it................. literally Manu ............... Manusmpti, "The Laws of Manu", trans. by G. Biihler n ................... note P .................... Parvan PEW ............... Philosophy East and West, Honolulu, Hawaii p i .................. plural op.cit..............opere citato, 'in the work quoted' r e p r ................ reprint or reprinted RV ................. The Hymns of the Rgveda SBE ................ Sacred Books of the East, 50 vols., ed. F. Max Muller - 6 - sing................ singular Skt................. Sanskrit trans. or transl. translation or translated ubi cit. ......... where cited viz ................ videlicet, 'namely' ZphF ............... Zeitschrift fur philosophische Forschung, Meisenheim/Glan [ ] ............... brackets enclosing my own insertion - 7 - PREFACE Often, a legal world-order has been postulated in what­ soever a sense, yet without taking those decisive disparities into careful consideration which a comparison of basic 'legal' conceptions of different cultures reveals. In order to throw some light on those presumably deep rooted incongruities I have attempted to compare dharma, It, and nomos, the indigen­ ous (regulative) topoi as I preferred to say of Hindu India, China, and ancient Greece. A three-cornered cross-cultural enquiry in Comparative Jurisprudence, as far as I know, has not been undertaken. However, it seems that in this way a necessary contribution can be made to introduce a theoreti­ cally-established inter-cultural process of 'legal' under­ standing. Incidentally, we may become more sensi-Hve to the many intra-culturally emerging obstacles that hamper such endeavours. Last but not least we may also increasingly realize that the nomos-bound Occidental culture is not universally valid or transferable and applicable. Glaring disparities between the topoi of dharma, LL, and nomos which by far outweigh their similarities cannot be minimized and must be taken into account, if an inter-cultural process of 'legal' understanding can be meaningful to all parties involved. This enquiry takes for granted, and apparently verifies that "a system of law is hardly meaningful except within the bosom of the civilization which gave birth to it.'1* Therefore, I have attempted to pay careful attention to those non-Occi­ dental "systems" which are still little known to an Occidental audience. It was in 1979, when under the leadership of Professor Derrett (London) the volume on "Beitrage zu Indischem Rechts- denken" appeared as the first of a series of "Studien zu Nicht- europaischen Rechtstheorien", edited by Theodor Viehweg (Mainz) and myself, that plans matured to study some important - 8 - aspects of the Indian (Hindu) 'legal' tradition under the supervision of Professor Derrett, simultaneously continuing my studies in Comparative (Legal and Social) Philosophy. Eventually, I fixed upon the determination to engage in the present enquiry, putting scruples aside based on my own in­ sufficiencies relative to the difficult task ahead. Now, having finished that particular assignment for the time being, assuredly still incomplete and with many defi­ ciencies, I am greatly indebted to my teacher J. Duncan M. Derrett who first of all gave me the chance to undertake such a piece of work. Whenever necessary he encouraged my progress; without his unceasing kind interest and many valuable sugges­ tions this work would be still unfinished. Furthermore, I owe thanks to Joseph Needham who inspired my Chinese studies when I had the opportunity to meet him in Cambridge 1978; later contacts and my continuous study of his "Science and Civili­ sation in China" kept me close to the Chinese culture. As to the man behind his books, I owe much inspiration to Marcel Granet. I also wish to repeat my gratitude to my teacher in Legal Philosophy, Theodor Viehweg (Mainz) who has been support­ ing my studies since many years, and to Alwin Diemer (Diissel- dorf)** to whom I owe the opportunity to teach Comparative Philosophy with an increasing number of interested students. * J.D.M. Derrett, Essays in Classical and Modern Hindu Law, vol. II, (Leiden, 1977), p. XV. ** Professor Diemer is at present President de la Federation Internationale des Societes de Philosophie, and as such he took personal interest in the progress of my enquiry. - 9 - INTRODUCTION 1. This enquiry aims at presenting a contribution to Com­ parative Jurisprudence in a three-cornered cross-cultural perspective. Therefore, three most prominent indigenous con­ ceptions, the topoi of dharma, Li, and nomos, are investi­ gated seriatim and accordingly juxtaposed. Topoi as I have preferred to say are distinct