Exploring The Dharmasastra: Comtemporary Relevance.pptx

Universal and Particular elements of reality and knowledge are explored in this study of dharmasastra

1. Exploring the Dharmasastra Universal and Particular in Indian Legal Tradition Sunil Sondhi Tagore National Fellow Indira Gandhi National Centre for the Arts 28 th July, 2023, Banaras Hindu University, Varanasi

2. Mystical Reality Law has been too often perceived mainly as formal rules and institutions that provide a scientific and positivist alternative to religious concepts and practices and traditional customs. Vedic tradition questions the Western perspective and highlights close linkages between moral and legal, universal and particular, spiritual and material, infinite and finite. As a preliminary study of Vedic law and jurisprudence this presentation is structured around the key Shruti and Smriti texts. It provides an overview of the Hindu way of legal thinking through a brief examination of some of the Vedic and Dharmasastra texts. Nasadiya (Creation) , Asya Vamya (Coexistence), Purusha (Individual) , Vag Sukta (Language).

3. Vedic Legal Tradition The absence of an equivalent word for ‘law’ in Sanskrit has given rise to misconceptions that ancient Indians were somehow deficient in legal theorising and lacked a clear conceptualisation of ‘law’. The field of jurisprudence now needs to be reviewed, to see the rich plurality of meanings of what are in fact various types and conceptualisations of ‘law’ in Indian tradition. In the Vedic tradition we can see an indigenous system of law and justice, focused on the key concepts of rta and satya . In addition, dharma , danda , vyavahāra , ācāra and other terms are relevant to a deeper understanding of the richness of ancient India’s conceptualisations of ‘law’.

4. Law and Morals In the Vedic tradition there is no one textual statement or documemt that can represent ‘the law’ as it is understood today. The Vedic legal system is not built on codified statements by a human legal authority, to which factual situations are then related, nor is it based on a fixed revelation, which came down from heaven one day and binds all adherents. Vedic tradition of law is based on awareness of a universal order , the observable and comprehensible system of nature, conceptually embodied in the Vedic concepts of rta and Dharma . The Vedic concept of macrocosmic order, beyond direct human reach, transcends and envelops any form of positivistic human law-making.

5. Western Tradition Legal positivists see law and adjudication deterministically. For them, the law defines specific rules. They differ in respect of what leads judges to answers in a case, just legal rules or also principles. However, they believe in common that if a judge has enough knowledge and skills, he would reach the one correct legal answer in the case. Legal realists, and pluralists see the probabilistic nature of law and judicial decision-making. Rarely are the possibilities either right or wrong. In other words, they are all equally right in different contexts. The one chosen in a particular case will become legally true for that case, and will become one of the factors constraining judges in future cases.

6. Legal Culture The idea of legal culture has an important place in recent debates about the nature and aims of law. It means that law should be treated as embedded in the broader culture of society. In a sense, law is culture. Concept of legal culture encompasses much more than the professional juristic realm. It refers to a more general consciousness or experience of law that is widely shared by those who constitute a nation. Western positivist notions of law do not touch the reality of the way most people understand and live their lives in India . A legal system that does not correspond to the social, religious and cultural sensitivities of a society can not be owned by the people but will be seen as foreign and imposed. Without a conducive social and cultural concept- ualization mere formal law cannot create willing legal and moral obligation.

7. Universal and Particular In Vedic tradition universal and particular reality is inter-connected, integrated , and emergent. This seamless connection can be described in linguistics as levels of Para, Pasyanti , Madhyamika , Vaikhari . The relationship is autpattik , meaning is both siddhantic and vyavaharik . Words are finite but meaning is embedded in thought which is infinite, ambiguous and uncertain . The ultimate context is infinite, unmanifest . It lies outside space and time but creates events and objects that can be located in space and time. All objective forms like language and law are embedded in and enveloped by the infinite, subjective reality. The finite becomes more meaningful with the awareness of the infinite in the finite.

8. Absolute Reality There are approximately 100 billion (10,000 crore ) stars in each of 2 trillion (2 lakh crore ) galaxies in the known universe.

9. Immanent Reality 100 trillion atoms with eternal life span , in each of 40 trillion cells in human body, with average renewable span of 7 years

10. Connectome There are roughly 100 trillion atoms with almost eternal life span, in each of 40 trillion cells in human body, with average renewable span of 7 years

11. Connectome

12. Complex Adaptive System We have a hundred billion neurons in our brains , as many as there are stars in a galaxy, with a hundred trillion links and potential combinations through which they can interact. 100 trillion atoms in a cell, including few free radicals .   The individual and the neurons in the brain are not separate . They are the same thing. An individual is a process: complex, tightly integrated. Human behaviour is too complex to be predicted. But it is adaptive. In the big picture of contemporary world there are many things that we do not know or understand, and one of the things which we understand least about is ourselves. It is the most complex adaptive system.

13. Judicial Process We assume that in the work of arguing and deciding cases in thousands of courts in the country the judge and the lawyer can easily and clearly comprehend and describe the process they follow. Nothing could be farther from the truth . Sources of information, applicable precedents, logical consistency, prevailing custom, personal understanding of justice and morals, all these and more elements enter in varying proportions to make the strange compound of judicial process. Judicial process, being interaction of mind, matter and life, is uncertain, entangled , complementary , emergent and creative. Judicial process, like other branches of administration, arrives at decisions by the logic of probabilites rather than the logic of certainty.

14. Holistic Interpretation Bhishma tells Arjun that it is very difficult to define truth . Sometimes untruth becomes truth, and truth becomes untruth. Robbers chasing sage. A modern Bhishma could say the same about democracy. If a soldier kills enemies on the border he gets an award . If he uses the same gun to kill friends at home he gets the noose. Concept of just war is entrenched in Indian tradition as a duty . The concept of human rights cannot be extended to enemies of the society and state. All fundamental rights are subject to the limitation of maintenance of public order. Rule of law demands restraint on anti-social activities.

15. Dharmasastra Inquire into whether justice and righteousness are only casual arrangements changing with circumstances and times, or behind this confusing variety there existed perennial notions of right and wrong, justice and injustice. In contrast with shifting formal rules, dharmasastra speak of a cosmic law which reasonable creatures everywhere are bound to recognize, a common law recurring among different societies, rules ingrained in the heart of man. In this context, creation, individuality, openness, cohesion, and transcendence are seen as concrete examples of the ever-recurring rules of the cosmic law of nature, in the lives of individual and society.

16. Eternal Rta The concept of rta or eternal law is a multifaceted concept connected to all the fundamental concepts in the Vedic tradition. Rta is the eternal law of order and harmony underlying the cosmic phenomenon. This eternal and universal order or law, maintained by Varuna is all pervasive and the universe is the expression of this order observed by all gods. The sphere of rta is physical, metaphysical and ethical. The term signifies the course of the natural world perceived through its rhythms, seasons, cyclic movements and equilibrium and harmony in nature. It refers to three basic elements, activity, order, and system. Hence, “ heaven and earth exist in close unison in the womb of rta ”. ( Rg Veda, 4.23; 10.65; 10.190)

17. Social Dharma Indian legal tradition is not a Western-style legal system with codes and cases but upholds at all times the situation-specificity of justice based on natural law principles. Law exists outside the realm of the human also, and there is a subtle link between cosmic order and human existence. Individual freedom rests on socially operative normative order to which ruler is also accountable. Freedom is in law . D harma denotes not just ‘religion’ or ‘law’, but moralised duty , placed upon every individual, to contribute to macrocosmic as well as microcosmic order. In Dharma , the central rule is that an individual should do the right thing at the right time and place. Appropriate action, following one’s duty, is the aim of life.

18. Dandaniti AS Danda used after full consideration, endows the subjects with spiritual good, material well-being and pleasures of the senses. Used unjustly, in passion or anger, or in contempt, ascetics and householders alike. If not used at all, it gives rise to the law of the fishes. AS1.4.7 With full consideration of the person, the offence , the motive, seriousness of the offence, the consequences, the present effects, and the place and time, punishment at the highest, the lowest or the middle level shall be given, remaining neutral between the king and the subjects. AS4.11.8 Varuna is the punisher of kings who behave wrongly towards men. AS4.13.43 In whatever suit false evidence should have been given, the effect of that shall cease, what has been done shall be undone, and penalty imposed.

19. Dandaniti MS After ascertaining the motive, the time and place, and taking into consideration the condition and the nature of the offence, punishment shall be given to those deserving punishment . MS 126 Punishment shall be given in the form of reprimand, reproach, fine, or capital punishment. MS 12 Unjust punishment is destructive of reputation and subversive of fame; it leads to loss of heaven; shall therefore be avoided. MS 127 The king, punishing those who do not deserve to be punished, and not punishing those who deserve , attains great ill-fame, and hell. MS 128. Stating the untruth in evidence, the witness becomes firmly bound in Varuṇa’s fetters, helpless during a hundred births. MS,82

20. Conclusion L aw and jurisprudence must touch the social reality, as the formal state law can not, on its own fulfil l the social objectives of liberty, equality, fraternity and justice. This requires formulation of laws with reference to indigenous social norms and values. Law based on positivist assumptions needs to be seen in the context of Vedic tradition of jurisprudence which is holistic . Vedic tradition shows us the value of thinking about law in close connection to both dharma and life of common people . It reminds us that legal processes and institutions are not the exclusive province of state and legislature, and should function in close touch with the most vital of human contexts. Law enables human advancement as much as it constrains human follies.

21. References Agarwal , V.S., The Thousand Syllabled Speech , Varanasi.:, Prithvi Prakashan , 1963. Davis, Jr., Donald R. The Spirit of Hindu Law . Cambridge: Cambridge University Press, 2010. Day, Terence P. The Conception of Punishment in Early Indian Literature . Waterloo: Wilfred Laurier University Press, 1982. Derrett , J. Duncan M. Religion, Law, and the State in India . London: Faber, 1968. Jayaswal , K.P. Manu and Yajnavalkya . New Delhi: Cosmo, 2004. Jha , Ganganath . Manusmṛti : with ‘ Manubhāṣya ’ of Medhātithi , 10 vols., 2nd edn . Delhi: Motilal Banarsidass , 1999 [1920–39]. Jois , Rama M. Legal and Constitutional History of Uindia , New Delhi: Universal, 2018. Kane, P. V. History of Dharmaśāstra . 5 vols. Poona: Bori , 1962–75. Kangle , P.V. The Kautilya Arthasastra , Delhi: Motilal Banarasidas , 2016. Menski , Werner. Hindu Law: Beyond Tradition and Modernity . Delhi: oxford University Press, 2003. Radhakrishnan , Sarvepalli . The Hindu View of Life . London: George Allen & Unwin , 1927. Sarat A. and T. Kearns, eds. Law in Everyday Life , eds.. Ann Arbor: University of Michigan, 1993. Sarkar , Benoy Kumar. “ The Hindu Theory of the State ,” Political Science Quarterly 36(1) (1921). Swain, Braja Kishore , Dharmasastra : A link Between Tradition and Modernity . Varanasi: Chaukhamba , 2003. Tripathi , Upendra Kumar and Anoop Kumar, Vedic Tradition of Law and Legal system , Varanasi, BHU, 2022.