Fw: NHSF (UK) Annual Lecture 2003

[Guest guest]

"Hindu Law: Threat, imagination or reality" Delivered by Dr Werner Menski

Saturday 22nd November 2003 | 3pm Old Theatre, London School of Economics (for

a map click here)

For more information

visit http://www.nhsf.org.uk/events or Email sameer (AT) nhsf (DOT) org.uk or Phone 07092 377 304

Namaste Nutan Varshaabhinandan for Vikram Samvat 2060. I would like to take this

opportunity to invite you to the NHSF (UK) Annual Lecture 2003 that is to take

place on Saturday 22nd November. The annual lecture, which is an event open to

all, has attracted speakers of significant standing over the past few years

becoming a forum for speakers of international standing to address Hindu youth

from all over the UK. Annual lectures have picked up contemporary issues

relevant to Hindu youth and the very real issues being faced in discovering who

we are and where we come from. The Annual Lecture will be delivered this year by

Dr Werner Menski of the London School of Oriental and African Studies. Dr Menski

is a German indologist (PhD in Hindu Law; MA in Sanskrit and Hindi) who is now a

leading legal scholar of Hindu law, covering the entire spectrum from Vedic

beginnings to the latest Hindu law cases both in Britain and in India. Dr

Menski is a Senior Lecturer in South Asian Laws at SOAS, where he started work

in 1981, prior to which he taught in Germany. Married to an Indian Kathak Dance

artist, and having spent extensive amounts of time in India, Dr Menksi has fully

embraced Indian culture and tradition. NHSF (UK) are proud to announce that Dr

Menski has agreed to address Hindu Youth on topical aspects of Hindu Law at the

2003 Annual Lecture. "Hindu Law: Threat, imagination or reality" promises to

provide an unrivalled insight into aspects of the acceptability of social

behaviour within ethnic minority communities. Dharmesh Mistry President, NHSF

(UK)

 

Please find below an article written by Rishi Handa a PhD student at SOAS

Hindu Law: threat, imagination or reality - a preface to the NHSF lecture

delivered by Dr Werner Menski (SOAS)

Today, Hindu Law finds itself in a precarious situation. On the one hand, those,

more so perhaps well-to-do Hindus, who see the adoption of western culture in

place of traditional ideas as a sign of progressiveness, view Hindu law as an

entity to be dismissed, not least because it appears 'backward' and reflects

badly on them. In other words, they are somehow embarrassed, but why? Diasporic

Hindu groups of this nature may take a more light-hearted attitude of jaisa desh

vaisa bhesh, the Hindi equivalent of 'when in Rome do as the Romans do'.

Modernist Hindus, however, in their attempt to stay away from the past, fear

those at the other end of the spectrum: groups who have a more

religio-political agenda to return back to a 'Hinduised' India away from the

'adharmic' lifestyle of the west, where society functions on and is governed by

traditional precepts as presented in the ancient Sanskrit texts. All of these

attitudes exist, but what sense do we make of them? The lecture examines the

nature of our understandings of law and more specifically interrogates the

Hindu legal system and the interpretations by Hindus of their own law. One

often finds in today's modernist society a very simplistic understanding of

legal concepts, thanks to western education and cultural influence. Law as the

job of the lawyers and its place in courtrooms and the smallprint of books,

journals and contracts is the image we are fed through television and other

media. Looking at Hindu law, we also have to consider the impact of Asian

television and other media. But is this the be all and end all of law, to

remain as putty in the hands of judges and lawyers, and for the remainder of us

to have no involvement? Social reality shows us a different picture which the

Hindu system explicitly illustrates, even though Hindus amongst others see

their law as enshrined in texts like the Manusmrti or Vidhura! niti. The

reasons for this are examined in the lecture. In order to understand the nature

of Hindu law, its concept and function, we must take ourselves back to early

Hindu civilisation. The primary sources of information we have in this enquiry

of Hindu law are the ancient Sanskrit texts, we cannot interview the rishis any

more. So all we are able to ascertain from these works are the attitudes, ideas

and concepts floating around in the minds of textualists at various times in

the distant past. From a legal point of view, what is understood from the Veda,

the most ancient of the world's literature, is the way in which Vedic Indians

perceived the universe and the individual's place in it. From a natural law

perspective, having observed regularities in nature [the archetypes and

manifestations of its forces defied as devas], the ancients assumed an Ordered

universe interlinked together by seen and unseen forces. While it was believed

that the macrocosmic Order (rta) simply existed [a phenomenon shared by all old

civilisations, it ! seems], the early Vedic Indians sought ways to influence it.

In attempting to do so, using the media of yajna (fire sacrifice) and Vedic

mantras, the ritual specialists addressed the devas (themselves servants of rta

but never above it), for assistance. The intention was to connect with the

macrocosmic Order using the science of ritual to link the spheres of nature

with the human realm, promoting an attitude of better to flow 'with it' than

counter it. While rich inquiries into the basic nature of the phenomenal and

manifest universe are reflected in the Upanishads, not itself directly relevant

to legal studies, these are instrumental to the development of Hindu Law. The

conclusions of some Upanishadic thinkers, that the universal Self or Brahman is

identical to the individual self or Atman, shifted the focus from the macrocosm

to the microcosm, where the individual became the centre of attention. Over

time, the focus was no longer so much on macrocosmic Order or rta, and t! hus

on the job of specialists to influence the Order, but shifted to m icrocosmic

order or Dharma and each individual's duty (dharma) to contribute to that order

by doing the 'right' thing. At this historical stage, ancient textualists

idealised a system of self-controlled order by advising, through dharmashastric

literature, certain ways of living and dealing with situations according to the

writers' own opinions, where everyone would execute their dharma resulting in

an ordered society. But social reality is not such a Utopia, and the classical

Indian writers learned this very quickly. The dharmashastras developed the

concept of danda, implying assisted self-controlled order using the stick,

proverbial for punishment or even the threat of it, in order to strengthen

Dharma. The idea was that the individual would be reminded to carry out his or

her dharma using the threat of punishment as a deterrent for transgressing

Dharma. If any disputes rose, the individuals would never resort to the king as

their first port of call; his job was simply to ! wield the stick of deterrence,

not to dictate any state law. The people, through vyavahara or systems of

dispute settlement, were expected to resolve the issue themselves, gradually

going to higher authorities such as families, village panchayatas, and others

before finally going to the ruler at the last stage if the dispute could not be

settled lower down the hierarchy. The ruler's duty or rajadharma was not to

resolve the dispute in accordance with any of his own prescriptive laws, but to

achieve justice by resorting to Dharma depending on the customs and duties of

the individuals involved. The intrinsic nature of traditional Hindu law, thus,

did not privilege that state as a maker of laws, and thus Hindu law represents

a very different system of law from those standard models of 'the West'. The

British, arriving on an Indian scene which to them remained full of confusions,

at first tried to apply the existing Hindu law to Hindus, but eventually decided

to create their own system of Hindu law. The lecture shows how this process

developed over time, resulting in an artificial reconstruction of Hindu law by

outsiders which came to be called Anglo-Hindu law. Through the results of legal

cases, the British set precedents and thus turned Hindu law into a positivistic

written system of case law. We know today that in doing so they relied on the

assumption that Hindu law was found in codes, the dharmashastras. But how could

they apply these texts? They all said different things about the same issue,

which was hardly surprising given the differing authors and times and places of

composition. The decision was made to employ pandits learned in shastric

literature to advise judges how to decide cases. However, in a typically Hindu

law manner, not only did the pandits disag! ree, but the precedent from a

previously established case was not being applied to new cases, that is to say

that the pandits were giving different advice in every case. For them, each

case was unique and to be judged on its own merit, and it confused the British

even more. The British then attempted to write their own digests on Hindu law,

an endeavour which also failed in practice. The British over the nineteenth and

early part of the twentieth century then began to legislate by interfering in

the Hindu personal law in order to deal with what they saw as social evils.

Also after independence, the state continued to legislate but in reality could

never supersede the customary law of the people as much as it tried to assert

that it could. In recent years there have been attempts in certain states of

India to abolish Hindu personal law, in order to create a secular Indian law,

uniform and usable for all. Even the Indian Supreme Court repeatedly demanded a

Uniform Civil Code Bill. However, the government refused to act and the future

of Hindu law as the major personal law of India has been assured. Earlier this

year, the events in Gujarat have led the Indian Supreme Court to criticise the

abuses of modern state law when the legal process failed to bring individuals

to justice, instructing the Gujarat state, as the ruler, to return to and

execute rajadharma! in order to counter lawlessness. After a summarised

historical analysis, what do we need to understand about Hindu Law in today's

world? While those of a positivist inclination may still think that ancient

Sanskrit writers developed a system of written law for Hindus, what has

actually happened in the history is quite different. From day one, society

lived in accordance with the customs of their village, clan, tribe, family,

varna, jati, ashrama etc. which were always in a state of flux through constant

negotiations and dispute settlements. Even when kings arrived on the Indian

scene, they employed rajadharma as an aspect of Dharma; they did not legislate.

The Hindu texts are, therefore, simply put, observances and suggestions of their

authors and not legislation. Not only do these shastras acknowledge custom as a

legitimate source of law, they even go as far as to propose a rejection of any

shastric injunction if it goes against custom. Thus, while the shastra may have

had some influence on certain strata ! of society, it cannot be seen to have

ever been followed 'to the letter' by most Hindus. Societal customs played a

fundamental role as the main source of Hindu law. In a postmodern age, India is

beginning to rediscover such basic truths and is gradually abandoning its

reliance on Western laws and concepts. Even the western world is looking

eastwards at traditional legal concepts, questioning concepts such as positive

law, acknowledging that cases are to be seen as context-specific and should be

judged on their own merits. Rishi Handa (PhD student, SOAS)

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