Religious origins and traditions in law have been subjects of research in many countries among philosophers, jurists, and historians. This has led to a rich variety of comparative legal literature, illuminating juristic thought and providing some significant insights into the foundations of modern legal systems. Donald Davis Jr.'s The Spirit of Hindu Law is a close second to the classics on Indology in examining the role of Dharma in Hindu legal and religious traditions. He has adopted an inter-disciplinary approach and comparative methodology which is both refreshing and revealing. For Davis, “law is the theology of ordinary life” and the European notion of law, as rules backed by sanctions enforced by the state, is an unnatural idea produced at a certain moment in history to serve certain colonial objectives. Among the merits he identifies in the concept is that it acknowledges and explains the gap between ‘rule' and ‘behaviour' in everyday life and highlights the higher purpose involved whenever law is invoked.
The true nature of law lies in its integral relationship with religion, though the two are different entities and have different roles to play in society. Despite several centuries of deliberate secularisation, the state could not remove elements of religion from the law even in nations that are most secular, liberal, and democratic. The methodology he adopts is to analyse some select key concepts drawing support from authoritative Sanskrit texts, relate them to the total Hindu legal tradition, and finally bring out their relevance to contemporary justice system in comparative situations.
Household
In the chapter where he examines the concept of ‘sources' ( Pramana ), Davis contends that Hindu law applies primarily to the ‘household', not the state. It follows therefore that Hindu law and jurisprudence should be understood differently from those that are predicated upon the state's exclusive jurisdiction over the law.
This focus on the household or householder leads to the Hindu legal tradition being linked to the living religious tradition, a link that manifests itself in five ways: sacramental rites (related to birth, marriage, death etc.,); domestic rites (performing pujas, worshipping deities, etc.,); actions to fulfil physical needs; social aspects like family transactions, caste status, etc; and expiatory/purificatory rites. Institutionally locating law in the household enables Hinduism to develop a shared community orientation which, in turn, shapes the legally constituted world of its members.
The author makes an interesting point about the subtle yet significant aspect of Hindu law. Generally, the “rule of law” is distinguished from the “rule of men” to emphasise that ‘authority' rests in law, not in the men who are implementing it. The “rule of the lawful”, envisaged by the Hindu law, moderates the conceptual superiority of law and seeks to avoid the problems arising from total depersonalisation of law. Both “rule of law” and “rule of the lawful” — that is, rule by men of virtue and nobility — are necessary for a legal system to operate effectively.
The author asserts that the legal concepts central to Euro-American scholarship do not exhaust the rich legacy of ancient legal systems. An extensive comparative study is needed in this area. Unfortunately, Hindu law studies have, by and large, been confined to listing the differences and striving to establish that Hindu law is just as sophisticated as any other legal system. Delving deep into the history of Hindu religious traditions has not been a fashionable venture with scholars. By way of explanation, Davis says that “the need to know the details of Hindu law for the sake of a ‘non-intrusive' colonial administration has put us in the habit of only learning about Hindu law, and not from it”. His effort, therefore, has been to know the Hindu thinking on law by looking at the key conceptual ideas of Hindu jurisprudence. Hence the book's title: The spirit of Hindu law .
Writing “on the beauty of Hindu law” in the concluding chapter, Davis says the post-French Revolution period of Euro-American legal history is, in a way, the story of progressively restricting law to the court and the legislature, domains controlled by the state. What many of the scholars who studied “legal pluralism, religious law, or legal anthropology” have shown, however, is that “while this narrative has worked effectively in terms of how many people understand law conceptually, it has also hidden the reality of plural legal orders, alternative normative regimes, and religious or traditional self-appropriations of law's creative, co-ordinating, good-producing potential.”
Dharma
In contrast, he contends, Hindu law calls “all of this Dharma and we would be well served to ask what might be gained by calling it all law as well … Religious legal systems such as Hindu law remind us that legal, or at least law-like, processes and institutions function in even the most ordinary of human contexts, that law is not necessarily the sole province of the state, and that law enables human flourishing as much as it constrains human vice … Hindu law shows that law's domain is co-extensive with life itself.”
Here is a book that is well researched, well written, and out-of-the-ordinary, exploring religio-legal traditions with a view to discovering what to learn from them rather than just explain. Scholars interested in comparative law and theology will find a mine of information in it for further research. Students and teachers will get refreshingly new ideas on what to look for in ancient legal systems and how to relate them to the contemporary situation and requirements.
