John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of
jurisprudence. Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India. However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher. They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society. Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India. However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice". A few scholars have suggested that the Dharma-related Smritis such as Manusmriti,
Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found. In South India, temples were intimately involved in the administration of law.
Sources of Dharma Śruti have been considered as the authority in the Hindu
Dharma. The
Smritis, such as Manusmriti, Naradasmriti and Parashara Smriti, contribute to the exposition of the Hindu Dharma but are considered less authoritative than
Śrutis (the Vedic corpus that includes early Upanishads). The root texts of ancient Hindu jurisprudence and law are the
Dharma-sūtras. These express that the Shruti, Smriti and Achara are sources of jurisprudence and law. Translation 2: The root of the religion is the entire Veda, and (then) the tradition and customs of those who know (the Veda), and the conduct of virtuous people, and what is satisfactory to oneself. {{Blockquote| वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः । एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥ Translation 1: The Veda, the sacred tradition, the customs of virtuous men, and one's own pleasure, they declare to be the fourfold means of defining the sacred law. Levinson states that the role of
Shruti and
Smriti in Hindu law is as a source of guidance, and its tradition cultivates the principle that "the facts and circumstances of any particular case determine what is good or bad".
Cited texts Unlike the
Bible &
Quran, the
Vedas don't discuss about societal matters directly. Classical Hindu law is derived from the following sources
Dharmasutra As a part of the
Kalpa texts within the
Vedanga corpus of literature, they deal with personal conduct (alongside the
Grihya Sutras) & social regulations in accordance to the principles of the
Vedas. The texts are
Dharmashastra These texts, whose authorships are traditionally attributed to the Vedic sages, elaborate the topics discussed in the
dharmasutras.
Dharmashastras available in printed format are • Angirasa smriti • Atri smriti • Apastambha smriti • Aushanasa smriti • Brihaspati smriti • Brihat Parashara smriti • Daksha smriti • Devala smriti • Gobhila smriti • Gautama smriti • Harita smriti • Katyayana smriti • Kashyapa smriti • Laghu Atri smriti • Laghu Harita smriti • Laghu Vishnu smriti • Laghu Shankha smriti • Likhita smriti • Manu smriti • Narada smriti • Parashara smriti • Prajapati smriti • Samvarta smriti • Shankha smriti • Shankha-Likhita smriti • Shatatapa smriti • Vasistha smriti • Vyasa smriti • Vishnu smriti • Vriddha Atreya smriti • Yajnavalkya smriti • Yama smriti
Dharmashastras whose existence is known through citations by commentators &
nibandhakaras but didn't survive in complete manuscript form till now are • Budha smriti • Chhagaleya smriti • Cyavana smriti • Jamadagni smriti • Jabala smriti • Marichi smriti • Prachetas smriti • Pitamaha smriti • Paithinasi smriti • Rishyasringa smriti • Sumantu smriti • Shaunaka smriti • Vishwamitra smriti
Commentaries Commentaries on the above-mentioned texts composed by erudite scholars discuss on their practical applications & execution of the statements in the
dharmasutras &
dharmashastras.
Nibandhas Digests & compendiums composed by various scholars attempt to resolve difference of opinion on similar topics among the various texts & authors.
Regional variations In the
Collector of Madhura Vs Mottoo Ramalinga Sathupathy case (1869), the
Privy Council observed that there was no uniformity in the observance of Hindu law (as described in the
dharmashastras, commentaries & digests composed by various Hindu scholars) by Hindus throughout the
realm. The court observed that • On the basis of adherence to property law, Hindus are divided into 2 schools – • the
Dayabhaga school, observed by Hindus in
Bengal &
Assam, • the
Mitakshara school observed by all other Hindu communities of the
Indian subcontinent. • The
Mitakshara school is subdivided into • The Benaras school which cites the
Viramitrodaya of Mitra Mishra,
Nirnayasindhu &
Vivadatandava of ,
Dattakamimasa of Nanda Pandita,
Subodhini &
Balambhatti commentaries of the
Mitakshara as authority and is observed by Hindus of
United Provinces,
Central Provinces &
Odisha. • The Mithila school which cites
Vivadachintamani of Vachaspati Mishra,
Vivadaratnakara of
Chandeshvara Thakura,
Vivadachandra of Misaru Mishra,
Smrityarthasara of Sridhara &
Madanaparijata of Vishveshvara Bhatta as authority & is observed by Hindus of
Mithila • The Dravida school which cites
Smritichandrika of Devanna Bhatta,
Parasharamadhaviya (
Madhavacharya's commentary on
Parashara smriti),
Sarasvativilasa of
Prataparudra Deva,
Viramitrodaya,
Vyavaharanirnaya of Varadaraja,
Dattakachandrika of Devanna Bhatta,
Nirnayasindhu,
Vivadatandava,
Dayavibhaga of Kamalakara Bhatta &
Keshavavaijayanti (Nanda Pandita's commentary on the
Vishnu smriti) as authority & is observed by Hindus of
Madras Presidency. • The Maratha School which cites
Vyavaharamayukha of Nilakantha Bhatta,
Smritikaustubha of Ananta Deva (grandson of
Eknath),
Viramitrodaya,
Nirnayasindhu,
Vivadatandava &
Parasharamadhaviya as authority and is observed by Hindus of
Bombay Presidency. • The Punjab school which cites
Nirnayasindhu,
Viramitrodaya & local customs (later documented as
Riwaz-i-Aam) as authority and is observed by Hindus of
Punjab.
Kashmiri Hindus additionally cite the
Apararkachandrika (commentary on the
Yajnavalkya smriti by Aparaditya II,
Silahara king of North
Konkan) • The Dayabhaga school cites
Viramitrodaya &
Dattakachandrika as authority.
Bengali Hindus additionally cite the
Smrititattva of
Raghunandana & works of Bengali pandits like Halayudha, Bhavadeva Bhatta & Shulapani while
Assamese Hindus cite the works of
Pitambara Siddhantavagisha & other pandits from the
Kamarupa like Damodara Mishra & Nilambaracharya The Mitakshara school significantly differs from the Dayabhaga school in the following ways • The Mitakshara doesn't allows
partition of ancestral property among coparceners, while the Dayabhaga does. • The Mitakshara completely bars women & their descendants from inheriting ancestral property (similar to
Salic law), however the Dayabhaga allows childless widows to inherit property of their sonless fathers & childless husbands. • According to Mitakshara, right of inheritance is vested by birth, hence the son is a coparcener to ancestral property from the day of his birth. However, in Dayabhaga, right of inheritance is vested by the right to offer
pinda at
sraddha ceremony, hence the son has no ownership on ancestral property during his father's lifetime.
Lawyers in classical Hindu Law While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have. These texts from the last 2500 years, states Terence Day, imply or recognize key elements in their theories of fair punishment: (1) the texts set a standard of Right, in order to define a violation that warrants punishment; (2) they discuss the possibility of a violation thereby defining a wrongdoing; (3) they discuss a theory of responsibility and assignability of a wrongdoing; (4) the texts discuss degrees of guilt, and therewith the form and severity of punishment must match the transgression; (5) they discuss approved and authorized forms of punishments and how these may be properly administered. Hindu law, states Sarkar, developed the theory of punishment from its foundational theory of what it believed was necessary for the prosperity of the individual and a collection of individuals, of state and non-state. There are wide variations in the statement of crime and associated punishment in different texts. Some texts for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts.
Outside India Ancient Hindu legal texts and traditions arrived in parts of
Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as trade grew and as part of a larger culture sharing in ancient Asia. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma, such as the
Wareru Dhammathat, and Thailand) as well as legal records embodied (as in India) in stone and copper-plate inscriptions. == Anglo-Hindu law ==