Explain the origin and nature of Hindu Law.
Ans. Origin and Nature of Hindu Law.—The Hindu system of jurisprudence is a well-developed science. It is as old as humanity itself. It is the storehouse of ancient wisdom, inherited from holy, sages, saints, philosophers and thinkers whose ideas were derived from imperishable Vedas and who can literally be described as the torch-bearers of learning and knowledge to the rest of the world as it then existed. Law, according to Hindu jurists, is the enforceable part of Dharma. Law is Dharma itself. Manu says that “The Vedas, Smriti, the approved usage, and what is agreeable to one’s soul or good conscience, when there is no other guide the wise have declared to be the quandruple, direct evidence of Dharma or law. There are two extreme views as regards the origin of Hindu Law. The first view believes it to be of ‘divine origin’ whereas according to the other view it is based upon immemorial customs and usages.
First View.—According to Hindus, Hindu law is of divine origin, having been derived from Vedas, which are revelations from the Almighty and which Austin calls the laws of God. As per this theory, law was independent of the State and it was binding on the Sovereign as well as on his subjects. Hindu law is considered Apauruseya. “Since law is the king of kings, far more powerful and rigid than they, nothing can be mighter than the law by whose aid, as by that of the highest monarch, the weak may prevail over the strong”. It is, therefore, evident that the theory of Rule of law is not new to Hindus.
Second View.—According to European jurists, who do not accept the Hindu idea ofdivine origin of law, Hindu law is based upon immemorial customs, which existed prior to and independent of Brahmanism. When the Aryans penetrated into India, they found that there were a number of usages either the same as, or not wholly different from, their own. They accepted these usages with or without modifications rejecting only those which were incapable of being assimilated, such as, polyandry, incestuous marriages and the like. Brahmanism modified the current customs by introducing the religious element into legal conceptions firstly, by attributing pious purposes to purely secular acts; secondly, by adding restrictions to those acts suitable to those pious purposes; and thirdly, by altering the customs themselves so as to further the special objects of religion or policy favoured by Brahmanism.
Both the above views, according to Mayne are incorrect: He says that since the publication of the original text books, translated Commentaries and Digests and the research works, it has become quite evident that Smritis were in part based upon contemporary or anterior usages, and in part, on rules framed by Hindu jurists and rulers of the country. They did not purport to be exhaustive and, therefore, provided for the recognition of the usages which they had not incorporated in later Commentaries and Digests. The Commentators and Digest-writers were equally the exponents of usages of their times in those parts of India where they were composed. Both the ancient Smritis and the subsequent ‘Commentaries’ were evidently recognised as authoritative statements of law by the rulers and by communities in the various parts of India. They were mostly composed under the authority of the rulers themselves or by learned and influential persons who were either their ministers or spiritual advisers. The prescribed courses of studies for the Brahmanas and Kshatriyas as well as for the rulers of the country, obviously, the rules in the Smritis which were sometimes all too brief were supplemented by oral instructions in the law schools whose duty it was to train persons to become Dharmshastris.
No doubt, Hindu law cannot strictly be said to have been promulgated by any Sovereign. But in as much as Hindu law is a body of principles or rules recognised and allowed by the Sovereign to govern the subjects and inasmuch as what a Sovereign can alter can be taken to have been impliedly commanded by him, even Hindu law can be said, in a qualified sense, to have been promulgated by the Sovereign within the definition of Austin.
The first orthodox view on the origin of law was gradually modified to certain extent, and the conception of ‘positive’ as distinguished from `divine law’, presented to us by the commentators have now generally been accepted as the origin of Hindu law.
It was prudent statesmanship to uphold the system of castes and orders of Hindu society, with their rights and duties so as to prevent any subversion of civil authority. The Dharmshastris and the rulers were therefore in close alliance and, if the laws were not substantially in accordance with popular usages and sentiments it seems inconceivable that those most interested in disclosing the facts should unite in a conspiracy to conceal it.
Nature of Hindu Law.—According to jurists of modern Europe, “Law is the command which, the sovereign power, in a political society, imposes on subject or members of the society. As the Hindu Codes do not profess to embody the commands of any king on Earth, it might seem that the Hindus had never such a thing as could be called their law. It is true that our Codes do not embody the commands of any sceptred monarch. But it must be conceded by everyone who knows anything of the mechanism of our soceity that the Brahmins were the real rulers of the country. So long at least as Hindu Kings occupied the throne of the Hindu community, the Brahmins enjoyed supreme legislative power, and the commands imposed by them were generally obeyed”.
Mayne defines Hindu Law “as the law of the Smritis’ as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by courts”.
It is one of the most ancient system of law known to the world. Mayne in his “Hindu Law and Usage” recognised this fact when he says, “Hindu Law has the oldest pedigree of any known system of jurispudence and even now it shows no sign of decrepitude.
