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ORIENTAL CONCEPT OF DHARMA IN HINDU

JURISPRUDENCE

Semester II: Jurisprudence

UNDER GUIDANCE OF PROF. (DR.) V. SESHAIAH SHASTHRI
By Shivika Choudhary
1ST year, LL.M. (Human Rights), NLSIU, Bangalore
What to expect?

Dharmo
 Is it Hindu jurisprudence or ancient
jurisprudence?
Rakshati
Rakshita
 What is law/dharma?
 An end or means?
[Dharma
protects
 Role of custom?
those who  What were the sources of law?
protect it]
 How did law originate or develop?
Manusmriti,  Role of commentators
Chapter 8,
Verse 15.  Was there separation of powers?
 Hindu Jurisprudence or Indian
Jurisprudence?
 State: Hindu state
 321 BC, Chandragupta Maurya:
 Kautilya’s Arthashasthra
 Sources: Hindu  Megasthenes’s Indica
scriptures
 Development of
jurisprudence:
 Indus Valley: Rig
veda
 6th century BC,
Mahajanapadas:
Dharamasutras
 Role of Custom
 All law was  Manu and Yajnavalkya:
originally Custom, usage and good
customary law conduct would form a source of
 Historical School law
of Jurisprudence  Narada and Asahaya: in case of
 Volksgeist conflict between sacred law and
 Customary law approved usage or custom, the
 reactionary to latter prevails. [Collector of
custom; Madura v. Mootoo Ramalinga
codification [As in Sethupathi (1868) 12 M.I.A.
Rome] 397 at 443]
 What is law/dharma?
MEANING:  Core Values:
 Whole body of rules which
 Rule of Law
declared:
 Proper desires
 Separation of Powers
 Proper methods of acquiring the  Welfare State
same
 Manu X-63: common Dharma
of all varnas
 Two categories:
 Rajadharma
 Vyavharadharma
 Wide meaning: sipirtual, moral,
personal, civil, criminal
Rule of Law
 supremacy of law:  A.V. Dicey’s
Brihadaranyaka concept of ‘Rule of
Upanishad, “Law is the Law’
King of Kings; nothing is  Oriental
superior to law.” Jurisprudence:
 Position of King:  school of legalism:
 responsibility of enforcing "rule by law"
Dharma (Mahabharata  Huang-Lao school
Chap 39) of Daoism: ruler
 Follow Rajadharma would be subject to
law
 Separation of Powers
 Independence of Judiciary:  Independence of
Kat. 78, “the judge should Executive:
beseech the king against the
order which will lead to
 rule to ensure welfare
injustice.” and protection of people.
 Independence of Legislature:
 King given power to
 Parishad to lay down law or decide independently
make new laws. after consulting ministers
 Kings to act in accordance with “what is most beneficial”
law declared. [Manu VII-57]
 The king could not lay down
new laws as per his whim and
fancy but confirm to Dharma or
usages.
Dharma as end or means?
 Ensure Welfare of
people: Bhishma
states in Mahabharata
 Serve Highest Good:
Jamini 1.2
 Eternal Bliss (moksha)
in other world:
Parashara Smriti
 WAS ANCIENT
INDIA A WELFARE
STATE?
Sources of Law

Shruti (what is heard) Smriti (what is remembered)

 Dharmasutras : regulate
VEDA relations of king and
S
subjects and subjects inter
Atharv se.
Rig Yajur Sama
a Smiritis
Mimamsa-Interpretation
 Vedangas: 6 principles
 Upanishads: 18 Nibandhas or
 Not lay law but Commentaries
Vidhis/Nishedhas Epics: Mahabharata and
Ramayana
 Interpretation-Mimamnsa
 Whenever conflict  Illustrative rule of
between shruti, smriti interpretation
and puranas, then Shruti  atidesh principle:
should be taken as going from the known
authority. [Vyasa 1-V-4] to the unknown
 When two smritis  Dattak putra as arusa
conflict, principles of putra
equity as determined by
popular usages shall
prevail. [Yajnavalkya II
21-1]
Role of Commentators
 Hindu law was not  Contribution:
stagnant but  Accepted as correct
underwent continuous position of law in all
development as matters as Smritis
society developed were difficult to
understand.
 Law made by jurists  Suit needs of
as in Rome developing society
 Absorb custom and
usages
 Creative development
of law to be just and
How did law originate or develop?
 Narada
Ideal State of Affairs

People deflected from path of

Dharma

Solution: Trivargya and Moksha

Dharm Moksh
Artha Kama
a a

 Narada Smriti:
Vyavaharadharma Bhishma quotes in Mahabharata
 Differences in Legal Philosophy
Western Philosophy Indian Philosophy

1. King given legislative power 1. No legislative power of

King as per Dharamshastras
2. King was fountainhead of all
three limbs: Legislative, 2. Separation of power
Executive and Judiciary 3. The law was even a
3. Rule of Law? Imperative command to the king and
command of the king held superior to the king.
constituted law. 4. Historical School
4. Mainly positivist with 5. Main source was custom
influence of natural law and supplemented by written
sociological jursiprudence. text
5. Main source is legislation 6. Related to semi-feudal and
6. Related to instability of feudal society
industrial society
Similarities in Western and Indian Philosophy

 Both believe in rule of

law
 Power of the king
constituted instrument
of coercion for
enforcement of law
i.e. sanction.