An Introduction to Hindu Jurisprudence Author(s): Harrop A. Freeman Source: The American Journal of Comparative Law, Vol. 8, No.

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HARROP A. FREEMAN An Introduction to Hindu Jurisprudence This article intends to be introductory to other more specific studies and, to t hat end, briefly surveys Hindu jurisprudentialtheory. It seeks an orientation,re calls the development of Hindu legal institutions, and examines "schools" of jur isprudence in ancient India. It turns to an analysis of ancient Hindu thought on common jurisprudential issues (the state, law and the rule of law, punishment a nd procedure) and finally attempts to reveal something of modern Hindu jurisprud ence's growth, richness, and diversity and its similarity to our own. (1) An Ori entation.The practicehas become prevalent in American academic writing to set of f East and West as opposites. It is said that the West places its reliance on re ason and the scientific method; the East, on supersensoryexperience and intuitio n.' This tends to emphasize, to borrow F. S. C. Northrop's phrase, "ideological differences."2 Even if a writer concludes that natural law is at the foundation of both Eastern and Western legal orders he still treats them as different-one " known by immediate apprehension,"and the other "known postulationally."3 This le ads to the conclusion that attempts to combine Oriental and Occidental economic, political, aesthetic, and religious values end in failure.4 A. FREEMAN is Professorof Law, Cornell Law School. 1 C. Watts Cunningham, "How F ar to the Land of Yoga? An Experiment in Understanding,"57 The PhilosophicalRevi ew (1948) 513; P. T. Raju contraststhe "inwardness" of Indian philosophy with th e "outwardness"of "Western"philosophy, "The Western and Indian PhilosophicalTrad itions,"56 The PhilosophicalReview (1947) 127; John C. Archer, Faiths Men Live B y (New York, 1943). 2 F. S. C. Northrop, The Meeting of the East and West (1946) and Ideological Differences and World Order (New Haven, 1949). Thus, Professor Northrop once attempted to explain the attitudes of America and India on Korea o n the basis that American law, derived from the Christian concept of an all good God against an all evil devil or right opposed to wrong, required a determinati onof "wrong"or "aggression" and "punishment." the other hand, India, which recog nized no God vs. Devil On theology, emphasized compromise and settlement without determination of right and wrong. ("Asian Mentalityand United StatesForeign Pol icy,"276 Annals 118, 1951). In my work in India with lawyers, law schools, and c ourts, I found law as litigious as in America. The ratio of litigation to settle ment was greater than in my own practice; the proportionatecost of litigation wa s higher; the minuteness of legal detail at issue was greater; the insistence on vindication of legal "rights"was comparable. In fact, I felt completelyat home with the bench and bar of India and South Asia generally. 3 Gray L. Dorsey, "Two Objective Bases for a World-Wide Legal Order" in Ideological Differences and Wo rld Order (New Haven, 1949); Jean Escarra, "Law, Chinese,"in Encyclopediaof the Social Sciences and Le Droit Chinois (Paris, 1936). 4See, for example,Commenceme ntAddress of F. S. C. Northrop, "Understanding the ContemporaryWorld," Univ. of Hawaii, July 1949; id., "Obstaclesto a World Legal Order and Their Removal," 19 Brooklyn L. Rev. (1952) 1; id., The Taming of the Nations (1952). Of course, thi s posits the issue whether Socialist and Marxist legal 29 HARROP

30 THE AMERICAN JOURNAL OF COMPARATIVE LAW The more I study, the more I find no sharp dichotomybetween Easternand Westernba sic legal theory.Easternthought is no more supersensory less reasoningthan Weste rnthought. In law, as in or religionand matters philosophical, replyof Dr. Nitob e to Kipling's the famous "The East is the East and the West is the West," is mo re accurate: "The Eastis in the West and the West is in the East; There are no points of compass in the human soul."5 Elsewhereit has been suggestedthat world jurisprudence might properly grounditse lf on basicelementscommonto all greatreligions and cultures.6 This still allows for differences specificlaws just as in thereare differences within the Anglo-Am erican system,for example, as to the rule againstperpetuities.7 (2) EarlyDevelop ment Legal Institutions. this paper,Indian of In legal thoughtis brieflyconsider ed show that much the same juristo prudential development, schoolsof jurispruden ce, theoriesof law and occuras in our traditional Westernpattern. SirHenryMainei n AncientLaw madecomparison aftercomparison betweenthe development Hindu legal i nstitutions the developof and ment of legal systemsof Europe. fact,he was ableto pointout from In his studycertaincharacteristics primitivelegal systemsand cert ain of fundamental stagesin theirearlygrowth:the prevalence co-ownerof ship and the intermixture personaland proprietary of rights; the confusionof publicand pr ivateduties;the importance the family; the of theory is a part of the "East"or "West",and where China and India fit into the c lassification. These writers have tended to rule the communist world out of thei r systems and to seek a world law for half-a-world.Northrop, "Naturalisticand Cu ltural Foundations for a More Effective InternationalLaw," Yale L. J. 1430. 5T. M. P. Mahadevan, "Indian Philosophy and the West," 22 The Philosophical Quarterl y,No. 3, 137; E. A. Burtt, "Intuition in Eastern and Western Philosophy,"2 Philo sophy East and West, No. 4, January,1953; George P. Conger, Toward the Unificati on of the Faiths (Calcutta, 1957) 116; Max Muller, Vedas, p. 4; Vincent Sheean, Lead Kindly Light (New York, 1949) 287; Report,East-WestPhilosophers'Conference (1948), 115; U. S. Ghoshal, Hindu Political Theories (1927) 7; Manu 2.224 (Willi am Jones translation). 6 "The United Nations Organizationand InternationalLaw," 31 Corn. L. Q. 259. 7 I would be the first to admit the value of the taking of d ifferences. The whole technique of the lawyer is based on recognizing difference s-millions of them. What I hope we avoid in comparativelaw is the mistake compar ativereligion made, and has not yet rectified,of emphasizing differencesto prove that one's own system was summa cum. Thus Western religion emphasized its belie f in a Supreme Being compared to a pervading presence revealed in many avataras, a man centered compared to a cosmic universe, condemnationof idolatry comparedto image worship, original sin and salvation comparedto Karma, immortalitycompared to reincarnation, religion of material a well being comparedto asceticism.I vent ure to suggest that actually all religions have had (and have) in them each of t he elements mentioned and that comparativereligion is only now discovering its o neness. See note 5 supra and E. A. Burtt, Man Seeks the Divine (New York, 1957).

FREEMAN: AN INTRODUCrION TO HINDU JURISPRUDENCE 31 continuous tutelageof women;the growthof the law throughfiction.8 His historical is jurisprudence groundedin Hinduism. In the earlydevelopment stagesof all lega l systemsthereis no clear distinction betweenlegal rules and religiouscommands. The storyof the Hindu Code of Manu and Moses'Ten Commandments strikis ingly simi lar.9 Manu's is a combination Noah, Jonah,and Moses. life of The avowedassumptio n the old textbooks Hindu law is that the of of law is eternal.The primarysource of the law is the scriptures-the Vedas.'0 keeping with the religiousview of law, the secondsource In of law is the teachingof the religiousleadersand, after tha t, conscience." Therewas no cleardistinction betweenlegal dutiesand moral duties .Law embraced of life and was synonymous all with virtue.The Hindu word for law"dharma"-showsthis derivation.'2 The samerelationship be illustrated the develo pment legal can by of literature. oldestsources Hindu law arethe Vedichymnsbased The of on social customand divine inspiration. The Aranyakasand Upanishadsconta insome law, but mainlyphilosophy and ritual.The Sravta and GrihyaSutrascomenext and do spell out Aryancustomand rules relating to the social organization.The fi nal stage in the evolution towardancientHindu law is the Dharmasuitras, which co me near to being lawyer'slaw. They prescribe detailedrules governing all four st agesof life, though chieflythat of Garhasthya householder. or The DharmaSastras, Legal Institutes the Hindus,actuallycovercivil or of and criminallaw (in Vyavah ara), also socialand religiousobservbut ances (in Achara) and expiationfor sin ( in Prayaschitta). Smritis,of which eighteenare known, providednumerouscommentari es the on Sastras-widelyvariedby geography, and tradition, culture(somewhat comp arable the glossatorson the Roman Code). A practice(e.g., to marriage with a mat ernal uncle'sdaughter)mightbe commonpractice in SouthIndiaandcondemned the North ,andbothglossators in would find supportin the Sastras. fact, writersfrom the ea rliesttimes up In to and including the presentdebate on the Hindu Code Bill have alwayssought supportof the Sastricnormsto justifyand approve, or to opposeand c hallengepractices proposals the societyin which or of 8 Sir Henry Maine, Ancient Law (Everyman ed.) 156; "The ancient German law, like Hindu jurisprudence,makes the male children co-proprietorswith their father, an d the endowment of the family cannot be parted with except by the consent of all its members,"p. 116; widow frequently becomes ward of sons, p. 90; adoption use d to expand family into community, p. 16 and ch. 5. 9 Manu 10.63. 10Manu 2.1. 11 Manu 12.108; Manova-dharma-sastra, v. 6; N. S. Sen-Gupta,Sources of Law VII, and Society in Ancient India (Calcutta, 1914); Morley'sDigest of Indian Cases, vol. I, cxcvii. 12 A. S. Nataraja Ayyer, "Dharma Protects Him Who Maintains It," 4 Vyavahara Nir naya (1955) 65; "What holds together," "the basis of all order," "the right way, " are translationsof Dharma.

32 THE AMERICAN JOURNAL OF COMPARATIVE LAW of they live. One of the real strengths Hindu law has been its reliance on ancie ntlaw (religion) while changingit to meet socialdemands.'3 of I shall leave furt herillustrations ancientHindu law and its transition to sections(4) and (5) of t his article. in (3) "Schoolsof Jurisprudence" AncientIndia. If you recallthat th e jurisprudence earliestlegal writings did not in Anglo-American took shape juri sprudence differentiate schoolsand that our scholastic as only in the nineteenth centuryand becamerecognizable "schools" in the prolificwriting of Dean Pound in the twentieth,and that the only within the last chief exponentsof some of our sc hoolsappeared my forty years(realist,pure theory), you will understand conclusio n in of that therewere no "schools" jurisprudence ancientIndia.Many writerson In dianlegal theoryhavepointedout thatthe ancientwriters to wouldhavebeensurprised be told thattheybelongedto a particular Cicerodid not know he was a "natural as, "cschool,"'4-just I suppose, the law"man.Yet these samewritershave illustrated degreeto which the one canfind, in the earliestHindu writings,matterwhich presen ts (and everyother) school analytical philosophic, naturallaw, historical, of le gal thought.'5 But,we ought not to labora point which shouldbe fairly obvious.Pe rhapsa quotationfrom one of India'sgreat modern will legal scholars suffice.'6 13 This note can do little more than refer to a few of the source materials for the above paragraph: Sen-Gupta, Evolution of Ancient Indian Law (London and Calc utta, 1953); McNaughton, Hindu and Mohammedan Law (9th ed., 1885); Seymour Vesey -Fitzgerald,"Law, Hindu" in 9 Encyc. of Soc. Sci.; V. P. Kane, The Dharma Sastra s, (Bombay, 1935). 14 Dr. Burnell (a Sanskrit scholar and lawyer) in his transla tion of the Varadraja observed, "Anotherprinciple deduced by English lawyers is the doctrine of the Schools of Law. This is unnecessaryand foreign to the origin al texts and digests."J. C. Ghose, The Principles of Hindu Law (Calcutta, 1917) 15 agrees. This is also clear from N. C. Sen-Gupta's first Tagore Lecture, 1950, Evolution of Ancient Hindu Law, Introductory(Calcutta, 1953). 15 N. C. Sen-Gupt ain "Sources Law and Society in Ancient India" (Calcutta, 1914) of and Evolution of Ancient Indian Law (Calcutta, 1953) points out much the same factors. Taking random sentences from the introductorychapter of the latter book we find him re ferring to "the social background of the law" (p. 2 ff.); "positive law grows an d ultimately develops into an elaboratecode" (p. 3); "Law existed then not as ru les administeredby kings but as rules developed in fact by custom and usage . . ." (p. 3); "Transgressionof these rules (anrita) is not a mere violation of huma n laws . . ." (p. 3); "the development of law . . . was conditioned by historical events and by the pressure of environments and circumstances,amongst which were the cha nging needs of society" (p. 18), etc. See notes 8-11 supra on historicaljurispru dence. 16 Sri C. P. Ramaswami Aiyar recognizes all these jurisprudential concept s in ancient Hindu law: "The importance of 'natural law' and of conscience is re cognized by way of guidance in matters of doubt where the Vedas, usage and custo m and divine commands do not furnish any help. . . . Dharma is obeyed as such be cause of the coercivemight of the State and the Dharma Sastrasof India (the lega l text books) like those of Manu, Vaynavalkya, Narada, Brihaspathi and others ac quire the validity of statutes on the recognition of their authenticity and auth ority by the State.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 33 (4) Ancient Hindu Thought on Typical Jurisprudential Issues. This section takes several issues with which jurisprudencehas always concerned itself to show the d egree to which, in approachingthese, Hindu thought has evidenced the same theori es as has the West, namely (a) the nature of the State and the ruler, (b) punish ment and procedure, and (c) the nature of law and the "rule of law." (a) Hindu T heories of King and State. One of the earliest issues to which Hindu jurispruden ce addresseditself was the position of the King and State. Originally the king h ad no divine attributes. From Manu onward he was supposed to rule by divine righ t."7The king was first considered as a judge, taking over the administration of justice from the Kulas and gilds."8Vedic theory did not view the king as either the source or repository of the law. He was under and subject to the law and, fa iling to maintain it, was destroyed by the 'law.19 Frequently referred to as che cks on the king were religion, custom, The right to overthrow a bad king came pr agmatism, natural justice.20 to be recognized.21This view broadened into a true Hobbesian "contract" theory. One of the earliest statements of the political the ory that the state of nature was one of might and war and that the state and "In Europe, law has been regarded sometimes as the embodiment of eternal justice and as part of the natural heritage of man and embodying natural reason. Anothe r school of thought is that law is that which is brought into existence by the f iat of a law-maker.In other words, that law is obeyed not merely because it is j ust or good but because it has been laid down by the State. In this way arises t he distinction between positive law and ethics. The ethical conception of law wa s the first to be expounded by Indian law-givers and philosophers. .. . Later on , theories were supplemented by the concept of positive law and there is a long catena of Indian law-givers, including Narada, Sukra and Jaimini who hold that t he performance of duty for its own sake having fallen into disuse in the course of human history positive law (vyavahara) was introduced and the King became the superintendentof the law, the wielder of the power to punish (dendadhara). Kaut ilya lays down that dharmaor law is Regnam Agnya-the command of the Ruler." "The PhilosophicalBasisof Indian Legal and Social Systems,"East-WestPhilosopher's Co nference, 1949, p. 9. 17 Rigveda IV, 42; Puranic Story of King Vena; Manu 7. 3-1 3; Majumdar,Chandhuri and Datta, Advanced History of India (London, 1950) 120 ff . Brihatparasara and Ramayanaii, 67 quoted in Ghoshal, note 5, supra, at 121, 18 5. 18N. C. Sen-Gupta,Evolution of Ancient Indian Law, 39 and authoritiescited. 1 9Manu 8. 15; Sukra, i. 121, quoted in Ghoshal, p. 217; Sen-Gupta,pp. 39-41; Rang aswami Aiyanger, Rajdharma,p. 43. 20 The most quoted religious aphorism is "Dhar ma is the king of kings" (Brihadaranyaka Upanishad). Beni Prasad, The State in A ncient India (Allahabad, 1928) 506 demonstrateshow both religion and custom cont rolled the king from the time of the Vedic Hymns. Many of the early apologistsfo r kingship, e.g., Kautalya,emphasized the right of subjects to revolt, their dis affection to the enemy and like pragmatic considerationswhy the king should act properly,Prasad,507; Manu 12.108;A. S. Nataraja Ayyar, Dharma Protects Him Who M aintains It, 4 VyavaharaNirnaya (1955) 65, 83; Sen-Gupta,Sourcesof Law and Socie ty in Ancient India (Calcutta, 1914) 64-78. 21 Prachetasa Manu, Ghoshal, p. 138; Mahabharata and Santiparvan, Anusasana 61.32-3, Ghoshal,p. 142; Ghoshal, ch. 4 generally.

34 THE AMERICAN JOURNAL OF COMPARATIVE LAW rulerwere createdto destroyanarchyis known as the doctrineof the demons(Sundopa) that fishes (MatsyaNyaya) or the two destructive together The people"assembled i n naturethe largerdevourthe smaller. mutually undertakingto expel from and made compacts(samayal) with other theirmidstpersonsguilty of abuse,assault,and connec tion Afterward men'swives,as well as thosewho shouldbreakthe compact. the (sahit ah)approached God Brahma. . . (and) the theycollectively of An Manuto rule overt hem."22 examination the early God appointed theory. will show furtherrelianceon contractand utilitarian theorists to Thus, the taxeswhich the king is permitted collectaresaidto be his to wagesfor a returnagreement protectthe subject.23 cons idersabsolutemonarchyas the sole Although the Mahabarata that writershavedemonst rated the monVedic theoryof government, archy was limited and that every other f orm of governmentexisted in ancientIndia.The king did not rule alonebut with a h ighly organBeni Prasadconthoroughlydocuments.24 ized Sabha,as Sen-Gupta througha nd throughwith the cludesthat Indianpolity"wassaturated and may of principles wh atfor convenience be calledfederalism feudalthe in ism."25K. P. Jayaswal his cla ssicHindu Polity discusses repubof in licanformsof government ancientIndia.The d edication the book is interesting:"To the memory of the republicanVrishnis,Katha s, of Vaisalas,and Sakyas,who announcedphilosophies freedom from 26 devas,death, cruelty,and caste." Some of the forms of government are: the Bhaujya in which he finds discussed ancientHindu literature in or cabinetform, membership which was elected not hereditary;27 formbut with hereditary leadership;28 similarto the B haujya Pettanika, form (Svarajya) in Northern and Western India, the presidentia l ;29 as the describing president "theleaderof equals" TaitiriyaBrahmana the in the Viruddha-rajjani whichthe stateis ruledby parties;30 Arajaka 22 SatapthaBrahmana,xii.6.24; Ghoshal, p. 127; Santi Parva, chs. 67-68; Ramayana ii.67; K. M. Panikar, Indian Doctrines of Politics (Calcutta, 1940) 4 df. This is prominent in the Mahabharata. 23 Bandhayara,i.10.18.1, Govindaswamin comment (Ghoshal, p. 40); Manu 8.144 (Ghoshal, p. 40); Santi., 71.10 (Ghoshal, p. 137); Aparka commenting on Yaj. i.366 (Ghoshal, p. 194). 24Sen-Gupta,supra, 41-47. 25 Beni Prasad,The State in Ancient India (Allahabad, 1928) ix, 504, 580ff. See als o K. P. Jayaswal,Hindu Polity (2d ed., Pangalore, 1943) 36-39; Edward A. Freeman , History of Federal Government (London, 1863) xl, 721; D. G. Karve, Federations (London, 1932) 24-26; Ramesh Chandra Majumdar,CorporateLife in Ancient India (P oona, 1922) xi, 414; Radhakumud Mookerji, Local Government in Ancient India (Lon don 1920) xxv, 338; Sir Henry Sumner Maine, Village Communities in the East and West (New York, 1889) xii, 413. Hindu Polity, note 62. 26 Jayaswal, 27Id., 79. 281d.,85. 291d.,80. 30Id., 88.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 35 or extremedemocracy, where the law was ruler and there shouldbe no man-ruler;31 Buddhistassemblies, the practicinga form of parliamentarygovernment.32 governmen t which the whole population A in took the consecration rulershipapparently exis t in Nepal-the of did Vairajya "kinglessconstitution."33 or Perhapsthere is no b etter way to pointup the continuity this pastwith the presentthan to mention of the Village Panchayats, often referredto as "villagerepublics." These were the m ost ancientindigenousvillageorganizations India.They in placedon chosenwise men of eachvillageextensive civil, criminal, and administrative jurisdiction small m atters.They functionedlargely in in an arbitral mannerand seemedto have handled7 5-80% of all disputes and government. They combinedexecutive,legislative,judicia l, and "administrative" functions,operatedwithout fixed rules of law, and applie da form of local equity or custom.They have continued even underthe British,arer econstituted Article40 of the Constituby tion, and are presentlyefficientin most villages as shown by recent studies.34 This diversityand yet continuityof past and presentseems similarto thatin our own tradition, leadsme to denythat the jur isand prudenceof any countryor region has grown so unitarythat it is essentially at variancewith theoriesemployedin other regions. Our own Graeco-Judeo-Christian containedenough variety jurisprudence to produceStoic-Republicanism, Hegelian-N azism, Marxian-Commuand nism, Hobbesian-Monarchism, at one time even Jeffersonia nDemocracy. and Procedure. (b) Punishment There are those who distinguish primit ivefrom civilizedlaw by the degreeto which the systemembodieswell-organized of p atterns punishment procedure. and Without acceptingthis test of civilization, is to be pointed out that on both it scores earliest the Hindu society a highly or ganized had As system. early as Manu, there is extensivejurisprudential discussi onof the king's relationto punishment, judgment on him who uses punishmentunjust ly,an organizedpolice force, a detailedcatalogueof punishments underfour titles (admonition,reproof,fine, corporeal)and rules for the use of each.3" In our own jurisprudence, have done much to demonstrate we that 31Id.,86. 32 Marquis of Zetland quoted by ProfessorRawlinson in The Legacy of India (Londo n, 1937) xi. 33 34 Jayaswal, supra,81. India (Government Reference Annual) (Delhi, 1955) 84 ff; D. Thorner, Panchayats, Indian Yearbook, 1953; Statisticsfor Uttar Pradeshup to March 1954 show 13,000c ases handled by Panchayat adalats (courts), revision asked for in 3% of the case s and granted in 1%. 3 Manu, 8.129, 8.130, 7.14-15, 7.20-22. E.g., "If the king were not without indolence to punish the guilty, the stronger would roast the we aker like fish on a spit." "The whole race of men is kept in order by punishment ; for a guiltless man is hard to find; through fear of punishment this universe is able to enjoy its blessings."

36 THE AMERICAN JOURNAL OF COMPARATIVE LAW a "right" is a protected interest, that procedure is at the very heart of substa nce,and that the more highly developed the procedure the more complete is the ju risprudential system. In India, so complete are the records, we can almost place the exact time at which a thorough procedural system comes into being. Apastham ba,Gautama, Vasistha, and Visnu contain few procedural rules (though they develo p some rules of evidence); they are still speaking of ordeals and compurgation, (there is slight reference to witnesses).36 Manu developed an extensive code of evidence but otherwise little procedure.37 With Jajnavalkya and Narada, the law of procedure becomes complete. Thus in Yajnavalkya we find procedure classified under Plaint, Answer, Proof and Decision.38The detail of rules can be seen from the following: (1) No recrimination or counterclaim is allowed until the complai nt is discharged; (2) No departurefrom pleading is permissible. (3) Counterclaim or recrimination is permitted in certain criminal charges. (4) Each party is req uired to find a surety for satisfaction of judgment. (5) Where a contesting defe ndant loses, he pays an amount equal to the claim to the king; while, where the complaint is found to be false the complainant pays double the amount to the kin g. (6) Distinction between cases which have to be tried immediately and those wh ere decision is to be adjourned. (7) Order of examination of witnesses, plaintif f's witnesses first examined.39 Fraud nullifies litigation; the parties are held to their pleadings; sureties may be required; lack of capacity of children and others is known; subpoena, injunction, dismissal on motion, fatally splitting or joining causes of action are all provided for; rules fix parties, classes of co mplaints, available defenses.40The list could be greatly expanded. Perhaps we ca n make the modern Anglo-American lawyer feel completely at home by the four clas ses of answers: (a) Admit (Satya), (b) Deny (Mithya), (c) Confession and avoidan ce (Pratyavasakandana) and (d) Res judicata or previous decision (Pranguyaya). 36Gautama, Dh. S. XI, 23-25; XIII, 1-6; Apastamba,Dh. S. II 5-7, 11, 29; Manu 8. 1-10; Rigveda VII, 14-15, 105; Vasistha (May. ed. Mandlik, 9). Note the 5 class es of ordeal (Divya): fire (agui), emersion (Apah), balance (Tula), poison (Visa ), and drinking (Kosa). See GautamaDh. S. XIII, 43 (2 Sacred Books of East, p. 2 46). 87 Manu 8.24-26, 46-47, 50-57. 38 Sen-Gupta,Evolution of Ancient Indian Law , 50. 39Vajnavalkya,II, 6-11; Sen-Gupta,50. 40Narada (Jolly Intro., II, 24); Yaj navalkyaII, 9-10, 19, 31-32, Mitaksara,Yaju II, 5-6; Kane, Katyayanasmriti,15-16 , 142. Sen-Gupta,50-58 and authorities cited. 41 Narada II, 5-6, I, 62.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 37 Evidence is particularlywell and early developed. As early as Gautama, rulesare detailed.42 the FromVisnuon, we find classification into real evidence,witnesses , presumptions. rulesreferto best and The and secondary evidence, qualification witnesses, of orderof proof,crossexamination,burden of proof, res ipsa loquitur, hearsay,perjury, demeanor.43 point need not be laboredfurther. The (c) Meaningo f "Law";the "Ruleof Law."In Indianliterature, one can find all the conflictingme aningsof law which the West has formulated: and jus;justice,legislation, lex rig ht,duty;natural, divine, enacted.44 Althoughwe shallturn our attention a laterse ctionto the in continuityof modernHindu jurisprudence with the past,perhapswe ca n here illustrate theseviews of law by the opinionsof the five India Supreme Cou rtJustices the famouscaseof Gopalan Madras,1950 in v. S.C.R.88.Threejudges,speak ing throughJustice J. Kania,expressed C. theirview that "law"as used in the phra se"procedure established by law" in Art. 21 of the Constitution meant "lex"-laws passedby the legislatures, "jus"-law in the general sense of the principlesof n ot naturaljusticeor naturallaw: "To read the word 'law' as meaningrules of natur aljusticewill lead one into difficultiesbecausethe rules of naturaljustice as re gardsprocedure nowheredefined." are JusticeSastrisaidthat while the word"law"did not meanjus naturade it was not limited to law as passedby the legislaturebut i ncluded "settled usages"and "normalmodesof proceeding." JusticeFazal Ali held th at "law"did meanprinciples naturaljustice. of What has alreadybeen said illustra tes extent to which the rule the of law obtained ancientIndia.45 in This point o n "ruleof law"may be GautamaXIII (Sacred Books of East, II p. 246). See authorities collected in SenGupta, pp. 66-77. Also Manu 8. 24-26, 46-47, 50-57; Vajnavalkya6-7, 13-15, 17, 2 3 (Gharpure'sed. Mitakshara);Narada I 63-64. 44Manu 8. 15; RangaswamiAiyanger, R ajdharma,43; P. V. Kane, Hindu Customs and Modern Law (Bombay, 1950); N. C. SenGupta,Evolution of Ancient Indian Law, 39 ff; A. S. Nataraja Ayyer, Dharma Prote cts Him Who Maintains It, 4 Vyavahara Nirnaya (1955) 65; "The Hindu Conceptionof Law," 17 Bombay L. J. (1939) 41. 45 I may summarize this ancient and continuing Hindu experienceand why some see in India the future hope for the rule of law b y reference to the paper of my former student, Professor Chandra P. Gupta, Unive rsity of New Dehli, "The History and Present Status of the Rule of Law in India" presentedat the Fourth InternationalConference of ComparativeLaw, Chicago, 1957 : "Through the centuries,the one supreme guiding principle of the Hindu system w as that the conduct of the authority, as of the subject, must conform to law or 'Dharma.' 'Dharma,' a word difficult to translate into English, includes the con cepts of justice, law, right and duty, and acting according to Dharma means the duty of acting in a way, in the sphere of one's activity, that would best lead t he individual to his self-realization-Moksha or Nirwana." . . "In shaping the de velopment of the rule of law in our system, the traditions of the English system , acquired during the British rule, the influence of the American Constitutional system, with its 'due process,' our own ancient traditions and the 42 43

38 THE AMERICAN JOURNAL OF COMPARATIVE LAW of to by concluded reference two positions the Indiancourtsand parliaFirst,altho ughthe SupremeCourt ment in the criticalyears,1950-53. it refusedto acceptnatura ljusticeas a definitionof "law,"46 has set the parties asidea decisionof a labor tribunal,which failed to allow to produceevidence,as contraryto the rule of law; 47 it issued ceractedcontrary and in other to48 whethera tribunal tiorarito dete rmine Second, principlesof naturaljustice.49 cases followed the established of t he courtsin 1950-51held certainprovisions the land reformacts, proper invalidas not providing authority, adoptedunderconstitutional Although there was wide crit icismin India of the compensation.50 which held up the much neededland reformpro gram,and decisions, many lawyersand politicalfiguresbelievedthe decisionsthwarte dthe for the of purposes the constitution, countryshowedits respect the rule by of of law and the independence the judiciary amendingthe constitution to remove any ambiguitywhich the Court had found in the originalconstitution.51 The (5) Mo dernHindu Jurisprudence; GreatSynthesis.We have as alreadyobjectedto the tendenc yto refer to Asian jurisprudence though we were discussingthe year 500 B.C., whi ch assumesthat if contain"Y"or Buddhism Confuciussays"X"or the DharmaSastras the teaches"Z,"then these must characterize legal philosophiesof modern countries.W e have even attemptedto show that, properly different" is ancientHindujurisprude nce not "ideologically understood, may from our own. But, it is insistedthat, im portantas antecedents could be wider of the truth than that we should ground be, nothing economic and social conditions in the country, have all played an important role . "In an ideal sense, rule of law implies a social order in which the individual can best attainhis self-realization.. . . So long as there is povertyand ignora nce,hunger and disease,and so long as there is crime and coercion,force and viol ence and the denial of basic freedoms, the rule of law is not fully established. Rule of Law is an ideal to be constantlystruggled for. In its pure form, it can only exist in a society See basedon truth and non-violence." also JudgeRam Kesha r Ranade,Pres. Address, Judicial Conference,Godhra, 45 A.I.R. Jour. 37: "It may sound platitudinousbut it is absolutelytrue that the successof democracy if in o ur countrypivots substantially, not wholly, on the successof the rule of law.'" Nehru, "The Tragic Paradox of Our Age," N.Y. Times Mag., Sept. 7, 1958, p. 13. 46 47 Bharat Bank v. Employees of Bharat Bank, 1950 S.C.R. 459,500. Gopalan v. Madras, 1950 S.C.R. 88. Raman& Co. Ltd. (1952) S.C.A. 287. 49Parry & Co. v. CommercialEmployees (1952) S .C.A. 299; J. L. Kapur, "Concept of Natural Justice,"6 Indian L. Rev. (1952) 27; Justice William 0. Douglas, We the Judges (1957) 28. 50 State of Bihar v. Kames hwar, A.I.R. 1952 (S.C.) 252. 51 Constitution(First Amendment) Act, 1951;Constit ution(Fourth Amendment) Act, 1955; State of West Bengal v. Subodh Gopal, 1954 S. C.R. 587; Dwarkadas v. Sholapu Spinning and Weaving Company, 1954 S.C.R. 674; St ate of West Bengal v. Bela Banerjee, 1954 S.C.R. 41; Saghir Ahmad v. State, 1954 , S.C.R. 1218. The Indian Law Reviews during the period 1950-1955contain over on e hundred articles on this. 48 VeerappaPillai v.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 39 We with modern ourdiscussion solelyin ancienthistory. areconcerned Nowhere law, and modernlaw is the productof growthand synthesis. is this more true than in In dia. on So muchhas beenwrittenof the Englishinfluence Indianlaw that to it is ne cessary do little more than recall its major outline. In the of footnotesthere i s somewhatmore extensiveconsideration certain fields of law on which Americanart iclesare not likely to appearfor some time. With Britishrule in India, English p ublic law, criminal were importedwholesale.52 English law, law of torts,and proc edure extendedeveninto Hindu law of family,property, inherand influence that Hin du or Mohammedan was law itance,thoughthe Acts declared The law of wills is chie fly a British to be applied in these areas.53 52 See generally, S. V. Gupta, Hindu Law in British India (Bombay, 1947). Law of Torts: Any collection of Indian cases or statutes will show that English cases and concepts are being applied, e.g. defense of act of State (Secretary of State for India v. Kamachee Boyce Sohiba, 7 M.I.A. 476 (1859)) or of judicial act (Ju dicial officer'sProtection Act, 1850) or of quasi-parentalauthority of teacher ( Sankunni v. Swaminatha Paltar, 45 Mad. 548 (1922)) or necessity (Greyvensteyn v. Hattingh, [1911] A.C. 355). Also whether a tort survives death (Legal Represent atives Suit Act, XII of 1855; Indian SuccessionAct, XXXIX of 1925). Or liability for acts of an independent contractor(Dhondita v. Municipal Comm. of Bombay (18 92) 17 Bomb. 307); but if the English doctrine, e.g. common employment, is not c lear Indian courts may not be bound to follow it (Sect of State v. Rukhamini Bai (1938) Nag. 54). We could go through the law of torts and see that down to the smallest detail the law is essentially English law-nuisance, Rylands v. Fletcher , negligence, lateral support, libel and slander, forms of action, vicarious lia bility. Law of Crimes: The basic acts are the Indian Penal Code of 1860 and Code of Criminal Procedure of 1861. The law as it has been carried over today is wel l and briefly surveyed in A. Gledhill, The British Commonwealth, vol. 6, India, ch. 12, pp. 173-187. Again, an examination of cases shows the complete similarit y: Moti Lal Mallik v. Emperor, 39 C.W.N. 199-where no murder intent but intent t o commit felony. Emperor v. Kastya Rama, 8 Bom. H. C. 63-territorial limits of c riminal jurisdiction. Emperor v. Gopalia, 26 Bom. L. R. 138-mistake as defense. Emperor v. Kursin-Bux, 3 W.R. 12 and Gokool Bowree, 5 W.R. 33-amount of force useable as defense. Emper or v. Sathe, 1 Bom. L. R. 351, and Mokit Pandey, 3 N.W.P. 316-abetment. Emperor v. Bal Gangadhar Tilak (1908) 10 Bom. L. R. 848-sedition. Emperor v. Chaube Diuk ar Rao (1933) 55 All. 654-bribery. Emperor v. Venkatrao (1922) 24 Bom. L. R. 386 -contempt of court. Emperor v. Govinda (1876) 1. Bom. 344-distinction between cu lpable homicide and murder. Emperor v. Nemai Chattraj, 27 Cal. 1041-kidnapping. Emperor v. KaleeModock, 18 W.R. (Cr) 61-deceit. Public Law: This will be dealt w ith in a later article, Gledhill supra, starts his discussion of the public law: "it may be a matter of surprise that India, now mistress of her own destinies, should be willing to retain the law, the legal system, and the institutions whic h Britain imposed on her." p. 147. 53 Compare N. C. Sen-Gupta,Evolution of Ancie nt Indian Law, chs. VIlI-IX, "Law of Inheritance,"with A. Gledhill, supra, chs. 15-16. The degree of modification can be seen from the following list of statute s: The Caste Disabilities Removal Act, 1850;

40 THE AMERICAN JOURNAL OF COMPARATIVE LAW development. The conceptsof common law and equity became the commonproperty Indi anlaw."4 of The association Colebrooke of and Jayannath Tarkapanchanan translati ng last of the greatSanskrit in the digests in 1797marked th-ebeginning of a new period. The courts treatedSanskritlegal texts as statutes,whereaspreviouslythey were considered merelyevidenceof unwritteneternallaw. The doctrineof staredecis istookon all its Englishrigor. The Hindu Widows Remarriage Act, 1856; The Native Convert's Marriage Dissolution Act, 1866; The Special Marriage Act, 1872; The Indian Majority Act, 1875; The T ransfer of PropertyAct, 1882; The Guardiansand Wards Act, 1890; The Hindu Dispos ition of PropertyAct, 1916; The Indian SuccessionAct, 1925; Inheritance (Removal of Disabilities) Act, 1928; The Hindu Law of Inheritance (Amendment) Act, 1919; The Child Marriage Restraint Act, 1928 (Sarda Act); The Hindu Gains of Learning Act, 1930; The Hindu Women's Right to Property Act, 1937; The Arya Marriage Val idation Act, 1937; The Hindu Marriages Disabilities Removal Act, 1946; Hindu Mar ried Women's Right to Separate Residence and Maintenance Act, 1946; Hindu Marria gesValidity Act, of 1949. As India gained her independencethe movement was under way to enact a Hindu code relating to personal and family law. The interest it aroused and the degree to which it was debatedcan be seen from a partial list of Law Reviews and books: Hamid Ali, The Law of Marriage,A Short Study in Comparis onsand Contrasts (Hyderabad (Decan), 1944); Vesey-Fitzgerald, S. G., "Projected Codification of Hindu Law," 29 J. Comp. Leg. & Int'l L. (3d ser., 1947) 19-32, 2 India L. R. (1948) 109; Durai, J. C., "Hindu Law: Should It Be Reformed?," 16 J . Comp. Leg. & Int'l L. (3d ser., 1934) 140-4; Rankin, S., "Hindu Law Today, 27 J. Comp. Leg. & Int'l L." (3d ser., 1945) 1-13; Chiu, H. P., "The Roman, Hindu, and Chinese Law of Adoption," 10 Nat. Univ. L. R. (1930) 3-35, 11 Nat. Univ. L. R. (1931) 3-22; Derrett, J. D. M., "Legal Status of Women in India from Most Anc ient Times to the Present Day," 43 A.I.R. Journal (1956) 73; Attekar, A. S., The Position of Women in Hindu Civilization (Benares, 1938); Gharpunc,J. R., Rights of Women Under Hindu Law (Bombay, 1943); Burway, R. G., "The Present Position o f Hindu Women and the Means of Ameliorating Their Lot," 19 Bombay L. J. (1941) 5 6-67, 98-114. Specificallyon Hindu Code Bill: Tope, F. K. and Ursekar, H. S., Wh y Hindu Code? (Bombay, Sharma Mandal, 1950); Haksan, Sir Kailash, "Our Law and t he Need for Reform," 1 Indian L. R. (1947) 40; Pusalkar, R. N., "Hindu Code: Is The Reform Imminent?," 37 A.I.R. Jour. (1950) 42; Mehta, Lehar Singh, "Some Impl ications of the Hindu Code Bill, 1948,"37 A.I.R. Jour. (1950) 26; Parekh, Vallab hadasP., "Desertion is No Ground for Dissolution of MarriageUnder the Hindu Code Bill-Its Effect," 38 A.I.R. Jour. (1951) 48; Divan, Paras, "Divorce Law of Hind us, ContemplatedReforms and a Few Suggestions,"40 A.I.R. Jour. (1953) 7; Harhare ,Gunde Rao, "Hindu K. Law and Its Codification,"41 A.I.R. Jour. (1954) 2; Gajend ragadkar, B., "ObservaK. tions on the Draft Hindu Code," 23 Bombay L. J. (1945) 307; Gajendragadkar, B., 20 and Anomalies in Hindu Law: Need for Codification," Bombay L. J. "Discrepancies (1942) 191; Dubey, Thakur Prasad, "Some Criticism on the Two Bills Proposed to be Introduced in the Assembly," 29 A.I.R. Jour. (1942 ) 53; Gajendragadkar,K. B., "The Two Bills of Hindu Law," 29 A.I.R. Jour. (1942) 61; Hajela, Rai BahadurK. S., "The Draft Hindu Code, Its Exposition, Comment, a nd Criticism," 36 A.I.R. Jour. (1949) 64; Kathalay,B. D., "Hindu Law and Codific ation,"31 A.I.R. Jour. (1944) 13; Balbir Sahar Sinka, "Codificationof the Person al Laws," 16 Sup. Ct. Jour. (1953) 9; Paras Diva, "Hindu Law of Marriage,Divorce and Alimony," 18 Sup. Ct. Jour. (1955) 261; S. V. Fitzgerald, "The Projected Co dification of Hindu Law," 2 Indian L. R. (1948) 109. Some of the provisions were enacted; see Hindu MarriageAct of 1955, Hindu Succession Act of 1956; See Divan , Paras, "The Hindu Marriage Act, 1955," 6 Int. & Comp. L. Q. R. (1957) 263; Der rett, Legal Status of Women, supra. 54 A. Gledhill, "The Influence of Common Law and Equity on Hindu Law Since 1800,"3 Int. & Comp. L. Q. (1954) 576.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 41 Anyone who has taughtor studiedin an Indian law schoolknows The texts that the m odernjurisprudence distinctlyEnglishoriented. is are Salmondand Austin. Even the 26-pageManualof Jurisprudence by P. S. AtchutherPillai, which nearlyevery India n studentuses to cramfor examinations, discusses only analytical, not historical , ethical or critical,or teleological, comparative, sociological, functionalreal ist, andnatural jurisprudence also"economic," but "psychological," "ethnological "jurisprudence, purescienceof law. It reviewsthe positions and of Austin, Hollan d, Salmond, Hohfeld, Kocourek, Kant, Kelsen, Allen, Savigny,Maine,Bentham,Bryce, Comte,Spencer, Jhering, von Ehrlich,Weber,Pound, Stone,Hobbes,Goodhart, and othe rs. while showing a familiarity It may be objectedthat the discussion, lacks wit h English and American jurisprudence, and acquaintance depth of insight. However ,if one readsthe Indian law journals,he will find depth as well as breadthin Ind ianjurisprudential thinking. The law reviewsare repletewith articleson such spec ificconceptsas "Juristic Personality the Hindu 'Idol.' of The broadjuristicphilo sophyof an emergentsocialiststate could be seen in many currentlaw reviews.56 Th is progressive outlook is shownby numerous excellentarticleson criminology, psyc hologyand social ideals."Crimeand Punishment" B. K. Bhattacarjee one by is examp le.57 is able to discussthe Soviet penal experiencewith a He detachment often fo und in Americanwritings.In "SocialIdeals not 55 Bijan Kumar Mukherjea,"Juristic Personalityof the Hindu 'Idol,'" Indian L. Re v. (1947) 277, A. S. NatarajaAyyar, "The JuristicPersonalityof Deities in Hindu Law," 3 VyavaharaNirnaya (1954) 106. 56 4 Indian L. Rev. (1950) 300. Consider th e review by Justice P. B. Mukharji of Simpson and Stone's,Law and Society: "Mate rialsin the pronouncementsof the new school of American thought so ably expresse d in the superb judgments of such great Judges of America like Holmes, Brandeis, Cardozo, Murphy and Frankfurterdo not appear to have provoked the authors to a clearer idea of the shape of things to come in juristic thought. "The law is the calling of thinkers and jurisprudence,not a mere survey either of cases or of i ndividual decisions determining particularrights. One learns from law an amiable latitude with regard to psychology, beliefs and tastes and acquires that cathol ic outlook whereby men may be pardonedfor the defects of their quality if they h ave quality in their defects. To be able to see so far as one may and to discern the great forces that are behind every detail makes all the difference between philosophy and disputation and between legal compilation and jurisprudence.... " Excessivepreoccupation with the purpose of law (Bentham's 'utilitarianism,' Poun d's 'social engineering,' and Jhering's 'means to an end' are referred to), unre lated to the source from where it originates has caused much unnecessary mystifi cation about 'executive legislation,' 'New despotism' and 'Administrative Law.'. .. "It appears that the future jurisprudencewill have for its major concern the functional view of the law which alone can reconcile the demands for change with the demands for security." 57 5 Indian L. Rev. (1951) 149.

42 THE AMERICAN JOURNAL OF COMPARATIVE LAW and the Law," Radhaknal Mukerjee gives a penetrating analysis of law it and in o ther articles59 is advocated that the and modern psychology58 bar receive traini ng in psychology. A glance at any current Hindu law journal will reveal that the articles tend to be more jurisprudential than our own. Elsewhere, it has been p ointed out how India has borrowed from the It world in framing its constitution. 60 has drawn on the common law of England and the civil liberties cases of the U nited States. Some say that it has taken the concept of preventive detention fro m Russia. I might digress a moment to show how complete has been the synthesis o n preventive detention. The oldest existing statute of which I know is the Benga l Regulation of 1818, though some date its Indian antecedents to 1795. Numerous Provincial Maintenance of Public Order Acts existed in the 19th and 20th centuri es, and the British Defence of the Realm and Defence of India Acts (under which Ghandi was imprisoned) were continued and finally embodied in the 1950 Preventiv e Detention Act (to meet partition's problems). Local, Russian, British law have all contributed.6' Though India is evolving many original rules of her own, it need not be assumed that her appetite for imported legal principles is exhausted . She will doubtless pick and choose among the systems with which her citizens b ecome acquainted. India has always shown a toleranceand hospitality for other cu ltures,even those forced upon her. Hardly a writer facing Indian jurisprudencebu t remarks on this.62 58 2 Indian L. Rev. (1948) 229. 59 Bimul Kumar Bhattacharya,"Insanityand the Cri minal Law," 6 Indian L. Rev. (1952) 41. 60 H. A. Freeman, New Constitutionsof Europe, Asia and South America, 34 Corn. L. Q. (1948) 1; H. A. Freeman, Review, Basu, Cases on the Constitution of India, 53 Col. L. Rev. (1953) 292. 61'V. G. Ramchandran,The Law of Preventiv e Detention, Supreme Court Jour., p. 181; A. Gledhill, The British Commonwealth, vol. 6, India, p. 173; A. K. Gopalan v. The State of Madras,A.I.R. 37 (1950) S.C . 27. 62 Seymour Vesey-Fitzgerald, "Law, Hindu," 9 Encycl. of the Soc. Sciences, p. 262. "The greatest contribution to posterity made by the Hindu tradition was the broad-mindedness, sympathy, and the toleration of different viewpoints exhib ited almost alone in India amongst the civilized communitiesof the earlier days. "The modern Hindu lawyer, regarding his ancient law with patriotic pride, looks upon English law also with possessoryaffection.He would not separateeven if he could the two systems of which he is the living synthesis, and in adapting his i nherited conceptionsto the needs of today he is merely doing openly and with mod ern tools what in another age and another fashion was done by the sages and comm entator before him, above all by Vijnanesvara." In the concluding chapter of Hin du Polity, Jayaswalwrites: "The constitutionalprogressmade by the Hindus has pro bablynot been equalled much less surpassedby any polity of antiquity. The great privilege of the Hindu at the same time is that he is not yet a fossil; he is st ill living with a determination which a great historian has characterizedas a te nacity which bends but does not break. The Golden Age of his polity lies not in the Past but in the Future." K. P. Jayaswal,Hindu Polity, 2d ed., Bangalore,1943 , pp. 366-7.

FREEMAN: AN INTRODUCTION TO HINDU JURISPRUDENCE 43 A Suggested the Approach. can Perhaps essenceof my approach now be stated.It is to recognizethat we are concerned with modernlaw, even when we review ancientlaw for comparison; that modernlaw in all countries a synthesisof old and new, West ernand Eastern; is that for adequate studywe dividelaw into subjects, someof whi ch are deeply rooted in old traditionsand culture and some of which are relatedt o, but largelyreplace,thosetraditions; that we shouldclearly the distinguish are astudiedandthe approach needed;thatwe recognize that in areaslike "familylaw" wh ich are closestto custom,the variations betweentwo statesin Americaor two sectio nsin India may be as great as the dissimilarities betweenEast and West; that in many areas one cantell fromwhat law a given quotation no comes.I venture to say that thereis no Easternor Westernphilosophyand no Eastern or Westernlaw.