175-526: Traditional Hindu law , as a historical term, refers to the code of laws applied to Hindus , Buddhists , Jains and Sikhs in British India . Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world and began three thousand years ago whose original sources were
350-489: A Hindu religious identity". Scholars state that Hindu, Buddhist and Jain identities are retrospectively-introduced modern constructions. Inscriptional evidence from the 8th century onwards, in regions such as South India, suggests that medieval era India, at both elite and folk religious practices level, likely had a "shared religious culture", and their collective identities were "multiple, layered and fuzzy". Even among Hinduism denominations such as Shaivism and Vaishnavism,
525-526: A North western Indian region of seven rivers and as an India whole). The Greek cognates of the same terms are " Indus " (for the river) and " India " (for the land of the river). Likewise Hebrew cognate hōd-dū refers to India mentioned in Hebrew Bible ( Esther 1:1 ). The term " Hindu " also implied a geographic, ethnic or cultural identifier for people living in the Indian subcontinent around or beyond
700-615: A common name for the country. Al-Biruni 's 11th-century text Tarikh Al-Hind , and the texts of the Delhi Sultanate period use the term 'Hindu', where it includes all non-Islamic people such as Buddhists, and retains the ambiguity of being "a region or a religion". The 'Hindu' community occurs as the amorphous 'Other' of the Muslim community in the court chronicles, according to the Indian historian Romila Thapar . The comparative religion scholar Wilfred Cantwell Smith notes that
875-534: A consequence, religious groups have an interest in being recognised as distinct from the Hindu majority in order to qualify as a "religious minority". Thus, the Supreme Court was forced to consider the question whether Jainism is part of Hinduism in 2005 and 2006. Starting after the 10th century and particularly after the 12th century Islamic invasion, states Sheldon Pollock , the political response fused with
1050-582: A diversity of beliefs, and seems to oscillate between Hindus holding a centralist and pluralist religious views. In the texts of Delhi Sultanate era, states Sharma, the term Hindu remains ambiguous on whether it means people of a region or religion, giving the example of Ibn Battuta's explanation of the name "Hindu Kush" for a mountain range in Afghanistan. It was so called, wrote Ibn Battuta, because many Indian slaves died there of snow cold, as they were marched across that mountain range. The term Hindu there
1225-571: A fixed set of religious beliefs within Hinduism. One need not be religious in the minimal sense, states Julius Lipner , to be accepted as Hindu by Hindus, or to describe oneself as Hindu. Hindus subscribe to a diversity of ideas on spirituality and traditions, but have no ecclesiastical order, no unquestionable religious authorities, no governing body, nor a single founding prophet; Hindus can choose to be polytheistic, pantheistic, monotheistic, monistic, agnostic, atheistic or humanist. Because of
1400-807: 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. As East India Company obtained political and administrative powers, in parts of India, in
1575-410: A law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed. Thomas Aquinas is the foremost classical proponent of natural theology , and
1750-629: A manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri. It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis for interpreting the Islamic law. The Calcutta Sanskrit College was established to train court pandits, the Calcutta Madrassah to train court qadis & Fort William College to train the British judges in Indian law. The arrival of William Bentinck as
1925-540: A moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in
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#17327725864852100-469: A new theory of jurisprudence that has developed since the 1970s. The theory can generally be traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective". It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of
2275-481: A norm. Joseph Raz's theory of legal positivism argues against the incorporation of moral values to explain law's validity. In Raz's 1979 book The Authority of Law , he criticised what he called the "weak social thesis" to explain law. He formulates the weak social thesis as "(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification of some law turns on moral argument." Raz argues that law's authority
2450-428: A pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his Institutions of Law , 2007). Other important critiques include those of Ronald Dworkin , John Finnis, and Joseph Raz . In recent years, debates on the nature of law have become increasingly fine-grained. One important debate
2625-401: A reasonable construction of history. However, the existence of non-textual evidence such as cave temples separated by thousands of kilometers, as well as lists of medieval era pilgrimage sites, is evidence of a shared sacred geography and existence of a community that was self-aware of shared religious premises and landscape. Further, it is a norm in evolving cultures that there is a gap between
2800-430: A result of Western influence during its colonial history. Scholars such as Fleming and Eck state that the post-Epic era literature from the 1st millennium CE amply demonstrate that there was a historic concept of the Indian subcontinent as a sacred geography, where the sacredness was a shared set of religious ideas. For example, the twelve Jyotirlingas of Shaivism and fifty-one Shaktipithas of Shaktism are described in
2975-646: A sacred pilgrimage site is documented in the Varanasimahatmya text embedded inside the Skanda Purana , and the oldest versions of this text are dated to 6th to 8th-century CE. The idea of twelve sacred sites in Shiva Hindu tradition spread across the Indian subcontinent appears not only in the medieval era temples but also in copper plate inscriptions and temple seals discovered in different sites. According to Bhardwaj, non-Hindu texts such as
3150-756: A saint. [...] When Khusraw stopped at his residence, [Arjan] came out and had an interview with [Khusraw]. Giving him some elementary spiritual precepts picked up here and there, he made a mark with saffron on his forehead, which is called qashqa in the idiom of the Hindus and which they consider lucky. When this was reported to me, I realized how perfectly false he was and ordered him brought to me. I awarded his houses and dwellings and those of his children to Murtaza Khan, and I ordered his possessions and goods confiscated and him executed. Sikh scholar Pashaura Singh states, "in Persian writings, Sikhs were regarded as Hindu in
3325-534: A social institution that relates to the larger political and social context in which it exists. Jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered: The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Whereas lawyers are interested in what
3500-581: A sovereign, to whom people have a habit of obedience". H. L. A. Hart criticized Austin and Bentham's early legal positivism because the command theory failed to account for individual's compliance with the law. Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common law countries. His Pure Theory of Law describes law as "binding norms", while at
3675-422: A system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made. Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on
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#17327725864853850-532: A theory of ius gentium (law of nations), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset
4025-736: A tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles." In South India, temples were intimately involved in the administration of law. 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
4200-585: A uniform civil code, where all citizens are subject to the same laws, everyone has equal civil rights, and individual rights do not depend on the individual's religion. In contrast, opponents of Hindu nationalists remark that eliminating religious law from India poses a threat to the cultural identity and religious rights of Muslims, and people of Islamic faith have a constitutional right to Islamic shariah -based personal laws. A specific law, contentious between Hindu nationalists and their opponents in India, relates to
4375-533: 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. The goal of punishment, in Hindu law, has been retributive and reformative. Hindu law, states Sarkar, developed
4550-604: A wedding or when a baby is born or cremation rituals. Some Hindus go on pilgrimage to shared sites they consider spiritually significant, practice one or more forms of bhakti or puja , celebrate mythology and epics, major festivals, love and respect for guru and family, and other cultural traditions. A Hindu could: In the Constitution of India , the word "Hindu" has been used in some places to denote persons professing any of these religions: Hinduism , Jainism , Buddhism or Sikhism . This however has been challenged by
4725-417: Is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done. The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and "What is the relationship between law and morality?" Legal positivism
4900-473: Is a controversial political subject, with no consensus about what it means or implies in terms of the form of government and religious rights of the minorities. There are 1.2 billion Hindus worldwide (15% of world's population), with about 95% of them being concentrated in India alone. Along with Christians (31.5%), Muslims (23.2%) and Buddhists (7.1%), Hindus are one of the four major religious groups of
5075-703: Is a lack of consensus between the Western legal scholars resident in India. Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex . The term "Hindu law" is a colonial construction, and emerged when the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials in consultation with Mughal rulers, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under sharia (Muslim law). However, Hindu law
5250-411: Is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder). Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law
5425-471: Is a term used to describe the culture and identity of Hindus and Hinduism , including the historic Vedic people . Hindu culture can be intensively seen in the form of art , architecture , history , diet , clothing , astrology and other forms. The culture of India and Hinduism is deeply influenced and assimilated with each other. With the Indianisation of southeast Asia and Greater India ,
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5600-676: Is ambivalent and could mean geographical region or religion. The term Hindu appears in the texts from the Mughal Empire era. Jahangir , for example, called the Sikh Guru Arjan a Hindu: There was a Hindu named Arjan in Gobindwal on the banks of the Beas River. Pretending to be a spiritual guide, he had won over as devotees many simple-minded Indians and even some ignorant, stupid Muslims by broadcasting his claims to be
5775-478: Is an organic relation of Sikhs to Hindus, states Zaehner, both in religious thought and their communities, and virtually all Sikhs' ancestors were Hindus. Marriages between Sikhs and Hindus, particularly among Khatris , were frequent. Some Hindu families brought up a son as a Sikh, and some Hindus view Sikhism as a tradition within Hinduism, even though the Sikh faith is a distinct religion. Julius Lipner states that
5950-416: Is based on "first principles": ... this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this ... The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based. Francisco de Vitoria was perhaps the first to develop
6125-496: Is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society. John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law that describes
6300-425: Is conceptually distinct from morality. While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so." Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably Joseph Raz , go further than the standard thesis and deny that it
6475-404: Is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta , the order that makes life and the universe possible, and includes duties, rights, laws, conduct, virtues and ‘'right way of living'’. The concept of Dharma includes Hindu law. In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It
6650-588: Is documented in Islamic literature such as those relating to 8th century Muhammad bin-Qasim , 11th century Mahmud of Ghazni , the Persian traveler Al Biruni, the 14th century Islamic army invasion led by Timur, and various Sunni Islamic rulers of the Delhi Sultanate and Mughal Empire. There were occasional exceptions such as Akbar who stopped the persecution of Hindus, and occasional severe persecution such as under Aurangzeb , who destroyed temples, forcibly converted non-Muslims to Islam and banned
6825-410: Is explained as the necessary law of life and equated to satya (Sanskrit: सत्यं, truth), in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows: धर्मः तस्माद्धर्मात् परं नास्त्य् अथो अबलीयान् बलीयाँसमाशँसते धर्मेण यथा राज्ञैवम् । यो वै स धर्मः सत्यं वै तत् तस्मात्सत्यं वदन्तमाहुर् धर्मं वदतीति धर्मं वा वदन्तँ सत्यं वदतीत्य् एतद्ध्येवैतदुभयं भवति ।। Nothing is higher than Dharma. The weak overcomes
7000-485: Is from this cultural movement that Justinian 's Corpus Juris Civilis was born. Modern jurisprudence began in the 18th century and was based on the first principles of natural law , civil law , and the law of nations . Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force. The moral theory of natural law asserts that law
7175-652: Is given in the tradition [Smriti] is the second, and the conventions of cultured people are the third. – Baudhayana Dharma-sūtra 1.1.1-1.1.4 The Dharma is set forth in the vedas and the Traditional Texts [Smriti]. When these do not address an issue, the practice of cultured people becomes authoritative. – Vāsiṣṭha Dharma-sūtra 1.4-1.5 The Smritis , such as Manusmriti, Naradasmriti, Yajnavalkya Smrti and Parashara Smriti, expanded this definition, as follows, वेदोऽखिलो धर्ममूलं स्मृतिशीले च तद्विदाम् । आचारश्चैव साधूनामात्मनस्तुष्टिरेव च ॥ Translation 1: The whole Veda
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7350-528: Is identifiable purely through social sources, without reference to moral reasoning. This view he calls "the sources thesis". Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence. Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, John Gardner , and Leslie Green —reject that view. Raz claims it
7525-446: Is inherent in nature and constitutive of morality, at least in part, and that an objective moral order, external to human legal systems, underlies natural law. On this view, while legislators can enact and even successfully enforce immoral laws, such laws are legally invalid. The view is captured by the maxim: " an unjust law is no law at all ", where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in
7700-424: Is made by humans and thus should account for reasons besides legal rules that led to a legal decision. There are two separate schools of legal realism: American legal realism and Scandinavian legal realism. American legal realism grew out of the writings of Oliver Wendell Holmes . At the start of Holmes's The Common Law , he claims that "[t]he life of the law has not been logic: it has been experience". This view
7875-554: Is possible for morality to be a part of law at all. The discretion thesis states that judges create new law when they are given discretion to adjudicate cases where existing law underdetermines the result. Hobbes was a social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. In Leviathan , Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short." It
8050-503: Is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India. 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
8225-579: Is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction ( Atmanastushti ). 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. वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः । एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥ Translation 1: The Veda,
8400-472: Is the dominant theory, although there is a growing number of critics who offer their own interpretations. Historical jurisprudence came to prominence during the debate on the proposed codification of German law . In his book On the Vocation of Our Age for Legislation and Jurisprudence , Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because
8575-567: Is this Rama to be described.. who freed Varanasi from the mleccha (barbarian, Turk Muslim) horde, and built there a golden temple of Sarngadhara". Pollock notes that the Yadava king Ramacandra is described as a devotee of deity Shiva (Shaivism), yet his political achievements and temple construction sponsorship in Varanasi, far from his kingdom's location in the Deccan region, is described in
8750-420: Is within legal positivism. One school is sometimes called "exclusive legal positivism" and is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may , but do not necessarily, determine the legal validity of
8925-530: The Nicomachean Ethics (Book IV of the Eudemian Ethics ). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle's theory of justice is bound up in his idea of the golden mean . Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as
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#17327725864859100-440: The 1857 Indian revolt resulting from what was perceived in the common mind as an insult to the inherent hegemony of Indian people of self rule against the British intervention. Hindus Traditional Hindus ( Hindustani: [ˈɦɪndu] ; / ˈ h ɪ n d uː z / ; also known as Sanātanīs ) are people who religiously adhere to Hinduism , also known by its endonym Sanātana Dharma . Historically,
9275-704: The Bible & Quran , the Vedas don't discuss about societal matters directly. Classical Hindu law is derived from the following sources 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 These texts, whose authorships are traditionally attributed to
9450-552: The Daoists , Confucians , and Legalists all had competing theories of jurisprudence. Jurisprudence in ancient Rome had its origins with the periti —experts in the jus mos maiorum (traditional law), a body of oral laws and customs. Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta , the annual pronunciation of prosecutable offences, or in extraordinary situations, additions made to
9625-622: The Dharma-sūtras . These express that the Shruti, Smriti and Achara are sources of jurisprudence and law. The precedence of these sources is declared in the opening verses of each of the known, surviving Dharma-sūtras. For example, The source of Dharma is the Veda, as well as the tradition [Smriti], and practice of those who know the Veda. – Gautama Dharma-sūtra 1.1-1.2 The Dharma is taught in each Veda, in accordance with which we will explain it. What
9800-493: The Hindu Sabhas (Hindu associations), and ultimately a Hindu-identity driven nationalism in the 1920s. The colonial era Hindu revivalism and mobilisation, along with Hindu nationalism, states Peter van der Veer, was primarily a reaction to and competition with Muslim separatism and Muslim nationalism. The successes of each side fed the fears of the other, leading to the growth of Hindu nationalism and Muslim nationalism in
9975-770: The Sindhu (Indus) River . By the 16th century CE, the term began to refer to residents of the subcontinent who were not Turkic or Muslims . Since ancient times, Hindu has been used to refer to people inhibiting region beyond the Sindhu river, therefore some assumptions that medieval Persian authors considered Hindu as derogatory is not accepted by practicing Hindus themselves as those references are much later to references used in pre-Islamic Persian sources, early Arab and Indian sources, all of them had positive connotation only as they either referred to region or followers of Hinduism. The historical development of Hindu self-identity within
10150-600: The United Arab Emirates and the United Kingdom . These together accounted for 99% of the world's Hindu population, and the remaining nations of the world combined had about 6 million Hindus as of 2010 . The word Hindu is an exonym . This word Hindu is derived from the Indo-Aryan and Sanskrit word Sindhu , which means "a large body of water", covering "river, ocean". It was used as
10325-494: The Upanishads contain numerous precepts which propound rules governing behavior. Bilimoria states the role of Shruti in Hindu Dharma has been inspired by "the belief in a higher natural cosmic order ( Rta succeeded later by the concept Dharma ) that regulates the universe and provides the basis for its growth, flourishing and sustenance – be that of the gods, human beings, animals and eco-formations". Levinson states that
10500-772: The Upanishads . The Puranas and the Itihasa (mainly Ramayana and the Mahabharata ) are enduring traditions among Indonesian Hindus, expressed in community dances and shadow puppet ( wayang ) performances. As in India, Indonesian Hindus recognise four paths of spirituality, calling it Catur Marga . Similarly, like Hindus in India, Balinese Hindus believe that there are four proper goals of human life, calling it Catur Purusartha – dharma (pursuit of moral and ethical living), artha (pursuit of wealth and creative activity), kama (pursuit of joy and love) and moksha (pursuit of self-knowledge and liberation). Hindu culture
10675-565: The dharmashastra s, commentaries & digests composed by various Hindu scholars) by Hindus throughout the realm . The court observed that The Mitakshara school significantly differs ftom the Dayabhaga school in the following ways While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have. The Sanskrit text Vivadarnavasetu , in Chapter 3, for example, states, If
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#173277258648510850-424: The edicta . A iudex (originally a magistrate , later a private individual appointed to judge a specific case ) would then prescribe a remedy according to the facts of the case. The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting
11025-399: The "lived and historical realities" of a religious tradition and the emergence of related "textual authorities". The tradition and temples likely existed well before the medieval era Hindu manuscripts appeared that describe them and the sacred geography. This, states Fleming, is apparent given the sophistication of the architecture and the sacred sites along with the variance in the versions of
11200-490: 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
11375-587: The 17th-century Bhakta Mala text using the phrase "Hindu dharma ". Scholar Arvind Sharma notes that the term "Hindus" was used in the 'Brahmanabad settlement' which Muhammad ibn Qasim made with non-Muslims after the Arab invasion of northwestern Sindh region of India, in 712 CE. The term 'Hindu' meant people who were non-Muslims, and it included Buddhists of the region. In the 11th-century text of Al Biruni, Hindus are referred to as "religious antagonists" to Islam, as those who believe in rebirth, presents them to hold
11550-801: The 1920s, as a reaction to the Islamic Khilafat Movement wherein Indian Muslims championed and took the cause of the Turkish Ottoman sultan as the Caliph of all Muslims, at the end of the World War I . Hindus viewed this development as one of divided loyalties of Indian Muslim population, of pan-Islamic hegemony, and questioned whether Indian Muslims were a part of an inclusive anti-colonial Indian nationalism. The Hindu nationalism ideology that emerged, states Jeffrelot,
11725-524: The 19th century as a response to British colonialism by Indian nationalists and neo-Hinduism gurus. Jaffrelot states that the efforts of Christian missionaries and Islamic proselytizers, during the British colonial era, each of whom tried to gain new converts to their own religion, by stereotyping and stigmatising Hindus to an identity of being inferior and superstitious, contributed to Hindus re-asserting their spiritual heritage and counter cross examining Islam and Christianity, forming organisations such as
11900-521: The 7th-century CE Chinese text Records on the Western Regions by the Buddhist scholar Xuanzang . Xuanzang uses the transliterated term In-tu whose "connotation overflows in the religious" according to Arvind Sharma . While Xuanzang suggested that the term refers to the country named after the moon, another Buddhist scholar I-tsing contradicted the conclusion saying that In-tu was not
12075-529: The American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as Jerome Frank , judges start with the facts before them and then move to legal principles. Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts. It has become common today to identify Justice Oliver Wendell Holmes Jr., as
12250-470: The British authorities in their attempt to create a homogeneous, uniform & consistent legal corpus was characterised by increasing importance of the authority of 'canonical' scripture over tradition (derived from secondary texts like commentaries & digests) & unrecorded customary law in vogue amongst various groups, in accordance to the sola scriptura doctrine Governor-General Dalhousie , in 1848, extended this trend and stated his policy that
12425-489: The British began creating a new criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855. These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for
12600-459: The Dean of Harvard Law School , used this term to characterise his legal philosophy . In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, Julius Stone strongly defended and developed Pound's ideas. In the 1930s, a significant split between the sociological jurists and the American legal realists emerged. In
12775-463: The Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until the British colonial officials chose to do so. Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such. Scholars have also questioned the authenticity and the corruption in
12950-642: The Dharmaśāstra the English categories of law and religion for the purposes of colonial administration. The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from a single Dharmaśāstra text ( Manusmrti with the commentary of the Bengali scholar Kulluka Bhatta) translated into English by British colonial government appointed scholars (especially William Jones , Henry Thomas Colebrooke , J. C. C. Sutherland and Harry Borrodaile) in
13125-476: The European merchants and colonists began to refer to the followers of Indian religions collectively as Hindus. Other prominent mentions of 'Hindu' include the epigraphical inscriptions from Andhra Pradesh kingdoms who battled military expansion of Muslim dynasties in the 14th century, where the word 'Hindu' partly implies a religious identity in contrast to 'Turks' or Islamic religious identity. The term Hindu
13300-591: The Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much negative public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay . The resulting codification of Hindu law by
13475-632: The Hindu all belief takes its source and its justification in the Vedas [Śruti]. Consequently every rule of dharma must find its foundation in the Veda. Strictly speaking, the Samhitas do not even include a single precept which could be used directly as a rule of conduct. One can find there only references to usage which falls within the scope of dharma . By contrast, the Brahmanas , the Aranyakas and
13650-737: The Hindu identities, states Leslie Orr, lacked "firm definitions and clear boundaries". Overlaps in Jain-Hindu identities have included Jains worshipping Hindu deities, intermarriages between Jains and Hindus, and medieval era Jain temples featuring Hindu religious icons and sculpture. Beyond India, on Java island of Indonesia , historical records attest to marriages between Hindus and Buddhists, medieval era temple architecture and sculptures that simultaneously incorporate Hindu and Buddhist themes, where Hinduism and Buddhism merged and functioned as "two separate paths within one overall system", according to Ann Kenney and other scholars. Similarly, there
13825-642: The Hindu identity and religious response to Islamic invasion and wars developed in different kingdoms, such as wars between Islamic Sultanates and the Vijayanagara kingdom, and Islamic raids on the kingdoms in Tamil Nadu . These wars were described not just using the mythical story of Rama from Ramayana, states Chattopadhyaya, the medieval records used a wide range of religious symbolism and myths that are now considered as part of Hindu literature. This emergence of religious with political terminology began with
14000-448: The Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found. Classical Hindu law, states Donald Davis, "represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as
14175-585: The Hindu texts. Hindu tradition, in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex . The ancient term in Indian texts is Dharma , which means more than a code of law, though collections of legal maxims were compiled into works such as the Nāradasmṛti . The term "Hindu law" is a colonial construction, and emerged after the colonial rule arrived in Indian Subcontinent , and when in 1772 it
14350-477: The Hindu-majority post-British India. After the separation of India and Pakistan in 1947, the Hindu nationalism movement developed the concept of Hindutva in second half of the 20th century. The Hindu nationalism movement has sought to reform Indian laws, that critics say attempts to impose Hindu values on India's Islamic minority. Gerald Larson states, for example, that Hindu nationalists have sought
14525-701: The Hindus and intensely scrutinized them, but did not interrogate and avoided reporting the practices and religion of Mughal and Arabs in South Asia", and often relied on Muslim scholars to characterise Hindus. In contemporary era, the term Hindus are individuals who identify with one or more aspects of Hinduism , whether they are practising or non-practicing or Laissez-faire . The term does not include those who identify with other Indian religions such as Buddhism, Jainism, Sikhism or various animist tribal religions found in India such as Sarnaism . The term Hindu, in contemporary parlance, includes people who accept themselves as culturally or ethnically Hindu rather than with
14700-405: The Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism – the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations". In Hinduism , law
14875-501: The Indian subcontinent. In the 20th century, the sense of religious nationalism grew in India, states van der Veer, but only Muslim nationalism succeeded with the formation of the West and East Pakistan (later split into Pakistan and Bangladesh), as "an Islamic state" upon independence. Religious riots and social trauma followed as millions of Hindus, Jains, Buddhists and Sikhs moved out of the newly created Islamic states and resettled into
15050-455: The Indic religious culture and doctrines. Temples dedicated to deity Rama were built from north to south India, and textual records as well as hagiographic inscriptions began comparing the Hindu epic of Ramayana to regional kings and their response to Islamic attacks. The Yadava king of Devagiri named Ramacandra , for example states Pollock, is described in a 13th-century record as, "How
15225-469: The Manusmriti manuscript used to derive the colonial era Hindu law. In colonial history context, the construction and implementation of Hindu law and Islamic law was an attempt at "legal pluralism" during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant. Legal scholars state that this divided
15400-570: The Puranic literature. According to Diana L. Eck and other Indologists such as André Wink, Muslim invaders were aware of Hindu sacred geography such as Mathura, Ujjain, and Varanasi by the 11th century. These sites became a target of their serial attacks in the centuries that followed. The Hindus have been persecuted during the medieval and modern era. The medieval persecution included waves of plunder, killing, destruction of temples and enslavement by Turk-Mongol Muslim armies from central Asia. This
15575-725: The Sikhs and by neo-Buddhists who were formerly Hindus. According to Sheen and Boyle, Jains have not objected to being covered by personal laws termed under 'Hindu', but Indian courts have acknowledged that Jainism is a distinct religion. The Republic of India is in the peculiar situation that the Supreme Court of India has repeatedly been called upon to define "Hinduism" because the Constitution of India , while it prohibits "discrimination of any citizen" on grounds of religion in article 15, article 30 foresees special rights for "All minorities, whether based on religion or language". As
15750-417: The Vedic sages, elaborate the topics discussed in the dharmasutra s. Dharmashastra s available in printed format are Dharmashastra s whose existence is known through citations by commentators & nibandhakara s but didn't survive in complete manuscript form till now are Commentaries on the above-mentioned texts composed by erudite scholars discuss on their practical applications & execution of
15925-542: The Yavanas [Muslims], The Kali age now deserves deepest congratulations for being at the zenith of its power, gone is the sacred learning, hidden is refinement, hushed is the voice of Dharma . The historiographic writings in Telugu language from the 13th- and 14th-century Kakatiya dynasty period presents a similar "alien other (Turk)" and "self-identity (Hindu)" contrast. Chattopadhyaya, and other scholars, state that
16100-411: The basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance. Aristotle is often said to be
16275-537: The celebration of Hindu festivals such as Holi and Diwali . Other recorded persecution of Hindus include those under the reign of 18th century Tipu Sultan in south India, and during the colonial era. In the modern era, religious persecution of Hindus have been reported outside India in Pakistan and Bangladesh . Christophe Jaffrelot states that modern Hindu nationalism was born in Maharashtra , in
16450-410: 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
16625-468: The content of legal concepts using the methods of social science , analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis . The account is general in the sense of targeting universal features of law that hold at all times and places. Analytic, or clarificatory , jurisprudence takes a neutral point of view and uses descriptive language when referring to various aspects of legal systems. This
16800-423: The culture has also influenced a long region and other religions people of that area. All Indian religions , including Buddhism , Jainism and Sikhism are deeply influenced and soft-powered by Hinduism . Jurisprudence Jurisprudence , also known as theory of law or philosophy of law , is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as
16975-431: The custom of distinguishing between Hindus, Buddhists, Jains, and Sikhs is a modern phenomena, but one that is a convenient abstraction. Distinguishing Indian traditions is a fairly recent practice, states Lipner, and is the result of "not only Western preconceptions about the nature of religion in general and of religion in India in particular, but also with the political awareness that has arisen in India" in its people and
17150-465: The definition of law; legal validity; legal norms and values; as well as the relationship between law and other fields of study, including economics , ethics , history , sociology , and political philosophy . Modern jurisprudence began in the 18th century and was based on the first principles of natural law , civil law , and the law of nations . Contemporary philosophy of law addresses problems internal to law and legal systems and problems of law as
17325-554: The difference between civil and criminal law. In addition to analytic jurisprudence, legal philosophy is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law." The English word is derived from the Latin, iurisprudentia . Iuris is the genitive form of ius meaning law, and prudentia meaning prudence (also: discretion, foresight, forethought, circumspection). It refers to
17500-538: The diverse kinds of developing transnational law) and the increasingly important interrelations of law and culture, especially in multicultural Western societies. Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality. Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values. Legal positivists who argue against
17675-575: The early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians . The scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it
17850-477: The early medieval era Puranas as pilgrimage sites around a theme. This sacred geography and Shaiva temples with same iconography, shared themes, motifs and embedded legends are found across India, from the Himalayas to hills of South India, from Ellora Caves to Varanasi by about the middle of 1st millennium. Shakti temples, dated to a few centuries later, are verifiable across the subcontinent. Varanasi as
18025-501: The empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross , Axel Hägerström , and Karl Olivecrona . Scandinavian legal realists also took a naturalist approach to law. Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies , feminist legal theory , critical race theory , sociology of law , and law and economics . Critical legal studies are
18200-722: The exercise of good judgment, common sense, and caution, especially in the conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence , which appeared earlier. The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Ancient jurisprudence begins with various Dharmaśāstra texts of India. Dharmasutras of Āpastaṃba and Baudhāyana are examples. In Ancient China,
18375-476: The extent to which they are binding. Kelsen contends that the extent to which legal norms are binding, their specifically "legal" character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation. In the English-speaking world, the most influential legal positivist of the twentieth century
18550-488: The father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right ( dikaion physikon , δικαίον φυσικόν , Latin ius naturale ). His association with natural law is largely due to how he was interpreted by Thomas Aquinas . This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of
18725-734: The father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church . The work for which he is best known is the Summa Theologiae . One of the thirty-five Doctors of the Church , he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him. Aquinas distinguished four kinds of law: eternal, natural, divine, and human: Natural law
18900-429: The field has traditionally focused on giving an account of law's nature, some scholars have begun to examine the nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes certain domains of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on
19075-539: The first Muslim invasion of Sindh in the 8th century CE, and intensified 13th century onwards. The 14th-century Sanskrit text, Madhuravijayam , a memoir written by Gangadevi , the wife of Vijayanagara prince, for example describes the consequences of war using religious terms, I very much lament for what happened to the groves in Madhura , The coconut trees have all been cut and in their place are to be seen, rows of iron spikes with human skulls dangling at
19250-553: The governed to obey. Secondary rules are rules that confer authority to create new primary rules or modify existing ones. Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system comes from the "rule of recognition", which is a customary practice of officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick wrote
19425-486: The highest percentage of Hindus (in decreasing order) are Nepal , India , Mauritius , Fiji , Guyana , Bhutan , Suriname , Trinidad and Tobago , Qatar , Sri Lanka , Kuwait , Bangladesh , Réunion , Malaysia , and Singapore . The fertility rate, that is children per woman, for Hindus is 2.4, which is less than the world average of 2.5. Pew Research projects that there will be 1.4 billion Hindus by 2050. In more ancient times, Hindu kingdoms arose and spread
19600-609: The historical records in Vaishnavism terms of Rama, a deity Vishnu avatar. Pollock presents many such examples and suggests an emerging Hindu political identity that was grounded in the Hindu religious text of Ramayana, one that has continued into the modern times, and suggests that this historic process began with the arrival of Islam in India. Brajadulal Chattopadhyaya has questioned the Pollock theory and presented textual and inscriptional evidence. According to Chattopadhyaya,
19775-532: The incorporation of moral values to explain law's validity are labeled exclusive (or hard) legal positivists. Joseph Raz's legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive (or soft) legal positivists. The legal positivist theories of H. L. A. Hart and Jules Coleman are examples of inclusive legal positivism. Legal positivism has traditionally been associated with three doctrines:
19950-476: The influential Asiatick Researches founded in the 18th century, later called The Asiatic Society , initially identified just two religions in India – Islam, and Hinduism. These orientalists included all Indian religions such as Buddhism as a subgroup of Hinduism in the 18th century. These texts called followers of Islam as Mohamedans , and all others as Hindus . The text, by the early 19th century, began dividing Hindus into separate groups, for chronology studies of
20125-645: The late 18th century, it was faced with various state responsibilities such as legislative and judiciary functions. The East India Company desired a means to establish and maintain the rule of law , and property rights, in a stable political environment, to expedite trade, and with minimal expensive military engagement. To this end the Company pursued a path of least resistance, relying upon local intermediaries that were mostly Muslims and some Hindus in various Indian states. The British exercised power by avoiding interference and adapting to local law practices, as explained by
20300-524: The law as it is. Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." For Austin and Bentham, a society is governed by a sovereign who has de facto authority. Through the sovereign's authority come laws, which for Austin and Bentham are commands backed by sanctions for non-compliance. Along with Hume, Bentham
20475-446: The law is on a specific issue in a specific jurisdiction, analytical philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask questions about, for example, what separates law from morality, politics, or practical reason. While
20650-478: The law must "treat all natives much the same manner". Over time, between 1828 and 1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance. In 1832, the British colonial government abolished accepting religious fatwa as a source of law. In 1835,
20825-588: The law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to. For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa 'Alamgiri (written under sponsorship of Aurangzeb ). For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable. The British colonial officials, for practice, attempted to extract from
21000-473: The law to newer social exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes . Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire , schools of law were created, and practice of the law became more academic. From
21175-486: The legal age of marriage for girls. Hindu nationalists seek that the legal age for marriage be eighteen that is universally applied to all girls regardless of their religion and that marriages be registered with local government to verify the age of marriage. Muslim clerics consider this proposal as unacceptable because under the shariah-derived personal law, a Muslim girl can be married at any age after she reaches puberty. Hindu nationalism in India, states Katharine Adeney,
21350-678: The local Indian population, in a religious or cultural sense, is unclear. Competing theories state that Hindu identity developed in the British colonial era , or that it may have developed post-8th century CE after the Muslim invasions and medieval Hindu–Muslim wars . A sense of Hindu identity and the term Hindu appears in some texts dated between the 13th and 18th century in Sanskrit and Bengali . The 14th- and 18th-century Indian poets such as Vidyapati , Kabir , Tulsidas and Eknath used
21525-417: The local intermediaries. The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century. The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows, That in all suits regarding inheritance, marriage, caste and other religious usages or institutions,
21700-519: The main precursor of American Legal Realism (other influences include Roscoe Pound , Karl Llewellyn , and Justice Benjamin Cardozo ). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices. The Scandinavian school of legal realism argued that law can be explained through
21875-509: The memoirs of Chinese Buddhist and Persian Muslim travellers attest to the existence and significance of the pilgrimage to sacred geography among Hindus by later 1st millennium CE. According to Fleming, those who question whether the term Hindu and Hinduism are a modern construction in a religious context present their arguments based on some texts that have survived into the modern era, either of Islamic courts or of literature published by Western missionaries or colonial-era Indologists aiming for
22050-415: The mid-19th century, colonial orientalist texts further distinguished Hindus from Buddhists , Sikhs and Jains , but the colonial laws continued to consider all of them to be within the scope of the term Hindu until about mid-20th century. Scholars state that the custom of distinguishing between Hindus, Buddhists, Jains and Sikhs is a modern phenomenon. At approximately 1.2 billion, Hindus are
22225-399: The military and political campaign during the medieval era wars in Deccan peninsula of India, and in the north India, were no longer a quest for sovereignty, they embodied a political and religious animosity against the "otherness of Islam", and this began the historical process of Hindu identity formation. Andrew Nicholson, in his review of scholarship on Hindu identity history, states that
22400-500: The morality enacted as law, not the laws themselves. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric , where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such
22575-627: The name of the Indus River and also referred to its tributaries. The actual term 'hindu' first occurs, states Gavin Flood, as "a Persian geographical term for the people who lived beyond the river Indus (Sanskrit: Sindhu )", more specifically in the 5th-century BCE, DNa inscription of Darius I . The Punjab region , called Sapta Sindhu in the Vedas, is called Hapta Hindu in Zend Avesta . The 6th-century BCE inscription of Darius I mentions
22750-465: The pedigree thesis, the separability thesis, and the discretion thesis. The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that it is the fact that the directive was issued by the proper official within a legitimate government, for example, that determines the directive's legal validity—not the directive's moral or practical merits. The separability thesis states that law
22925-427: The philosophy of Thomas Aquinas , especially in his Treatise on law . In late 20th century, John Finnis revived interest in the theory and provided a modern reworking of it. For one, Finnis has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position. In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on
23100-431: The phrase Hindu dharma (Hinduism) and contrasted it with Turaka dharma ( Islam ). The Christian friar Sebastiao Manrique used the term 'Hindu' in a religious context in 1649. In the 18th century, European merchants and colonists began to refer to the followers of Indian religions collectively as Hindus , in contrast to Mohamedans for groups such as Turks, Mughals and Arabs , who were adherents of Islam. By
23275-416: The plaintiff or defendant have any excuse for not attending the court, or for not pleading their own cause, or, on any other account, excuse themselves, they shall, at their own option, appoint a person as their lawyer; if the lawyer gains the suit, his principal also gains; if the lawyer is cast, his principal is cast also. In a cause where the accusation is for murder, for a robbery, for adultery, for (...),
23450-542: 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. 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
23625-511: The points, In the highways which were once charming with anklets sound of beautiful women, are now heard ear-piercing noises of Brahmins being dragged, bound in iron-fetters, The waters of Tambraparni , which were once white with sandal paste, are now flowing red with the blood of cows slaughtered by miscreants, Earth is no longer the producer of wealth, nor does Indra give timely rains, The God of death takes his undue toll of what are left lives if undestroyed by
23800-427: The post-1870 period. Francisco Suárez , regarded as among the greatest scholastics after Aquinas, subdivided the concept of ius gentium . Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes . Ius inter gentes (which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, it
23975-415: The principals shall plead and answer in person; but a woman, a minor, an insane, or a person lacking mental competency may be represented by a lawyer. Ancient texts of the Hindu tradition formulate and articulate punishment. 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
24150-433: The province of Hi[n]dush , referring to northwestern India. The people of India were referred to as Hinduvān and hindavī was used as the adjective for Indian language in the 8th century text Chachnama . According to D. N. Jha , the term 'Hindu' in these ancient records is an ethno-geographical term and did not refer to a religion. Among the earliest known records of 'Hindu' with connotations of religion may be in
24325-471: The religion and traditions across Southeast Asia, particularly Thailand , Nepal , Burma , Malaysia , Indonesia , Cambodia , Laos , Philippines , and what is now central Vietnam . Over 3 million Hindus are found in Bali Indonesia, a culture whose origins trace back to ideas brought by Hindu traders to Indonesian islands in the 1st millennium CE. Their sacred texts are also the Vedas and
24500-453: The religions have drawn their curved swords;" however, the date of this text is unclear and considered by most scholars to be more recent. In Islamic literature, 'Abd al-Malik Isami 's Persian work, Futuhu's-salatin , composed in the Deccan under Bahmani rule in 1350, uses the word ' hindi' to mean Indian in the ethno-geographical sense and the word ' hindu' to mean 'Hindu' in
24675-431: 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". The later Hindu texts include fourfold sources of Dharma , states Levinson, which include Atmanastushti (satisfaction of one's conscience), Sadachara (local norms of virtuous individuals), Smriti and Sruti . Unlike
24850-420: 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. Translation 2: The Veda, tradition, the conduct of good people, and what is pleasing to oneself – they say that is four fold mark of religion. As a source of Dharma , only three of the four types of texts in the Vedas have behavioral precepts. Lingat notes (abridged), For
25025-461: The same time refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a ' basic norm ' ( Grundnorm )—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system , beginning with constitutional law , are understood to derive their authority or
25200-507: The second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Increasingly, its contemporary focus is on providing theoretical resources for jurists to aid their understanding of new types of regulation (for example,
25375-401: The sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to
25550-477: The sense of a follower of the Hindu religion". The poet Vidyapati 's Kirtilata (1380) uses the term Hindu in the sense of a religion, it contrasts the cultures of Hindus and Turks (Muslims) in a city and concludes "The Hindus and the Turks live close together; Each makes fun of the other's religion ( dhamme )." One of the earliest uses of word 'Hindu' in a religious context, in a European language (Spanish),
25725-443: The sense of non-Muslim Indians". However, scholars like Robert Fraser and Mary Hammond opine that Sikhism began initially as a militant sect of Hinduism and it got formally separated from Hinduism only in the 20th century. During the colonial era, the term Hindu had connotations of native religions of India, that is religions other than Christianity and Islam. In early colonial era Anglo-Hindu laws and British India court system,
25900-444: The standard account of the origins of International law, which emphasises the seminal text De iure belli ac pacis by Hugo Grotius , and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field. Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in
26075-517: The statements in the dharmasutra s & dharmashastra s. Digests & compendiums composed by various scholars attempt to resolve difference of opinion on similar topics among the various texts & authors. 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
26250-1051: The stronger by Dharma, as over a king. Truly that Dharma is the Truth ( Satya ); Therefore, when a man speaks the Truth, they say, "He speaks the Dharma"; and if he speaks Dharma, they say, "He speaks the Truth!" For both are one. In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule), Nyaya (न्याय, justice), Yuktata (युक्तता, justice), Samya (साम्य, equality and impartiality in law), Vidhi (विधि, precept or rule), Vyavastha (व्यवस्था, regulation), Sambhasa (सम्भाषा, contract or mutual engagement), Prasamvida-patra (प्रसंविदा-पत्र, written contract), Vivadayati (विवादयति, litigate or dispute), Adhivakta (अधिवक्ता, lawyer), Nyayavadi (न्यायवादी, male lawyer), Nyayavadini (न्यायवादिनी, female lawyer), Nyayadata (न्यायदाता, judge), Danda (दण्ड, punishment, penalty or fine), among others. John Mayne, in 1910, wrote that
26425-411: The subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of
26600-470: The term 'Hindu' retained its geographical reference initially: 'Indian', 'indigenous, local', virtually 'native'. Slowly, the Indian groups themselves started using the term, differentiating themselves and their "traditional ways" from those of the invaders. The text Prithviraj Raso , by Chand Bardai , about the 1192 CE defeat of Prithviraj Chauhan at the hands of Muhammad Ghori , is full of references to "Hindus" and "Turks", and at one stage, says "both
26775-408: The term Hindu referred to people of all Indian religions as well as two non-Indian religions: Judaism and Zoroastrianism. In the 20th century, personal laws were formulated for Hindus, and the term 'Hindu' in these colonial 'Hindu laws' applied to Buddhists, Jains and Sikhs in addition to denominational Hindus. Beyond the stipulations of British colonial law, European orientalists and particularly
26950-509: The term has also been used as a geographical, cultural, and later religious identifier for people living in the Indian subcontinent . It is assumed that the term "Hindu" traces back to Avestan scripture Vendidad which refers to land of seven rivers as Hapta Hendu which itself is a cognate to Sanskrit term Sapta Sindhuḥ (This term Sapta Sindhuḥ is mentioned in RigVeda that refers to
27125-471: The theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine. Unlike experimental jurisprudence , which investigates
27300-399: 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
27475-566: The traditions, customs, and beliefs of the German people did not include a belief in a code. Historicists believe that law originates with society. An effort to systematically inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science , especially in the United States and in continental Europe . In Germany, Austria and France ,
27650-505: The various beliefs. Among the earliest terms to emerge were Seeks and their College (later spelled Sikhs by Charles Wilkins), Boudhism (later spelled Buddhism), and in the 9th volume of Asiatick Researches report on religions in India, the term Jainism received notice. According to Pennington, the terms Hindu and Hinduism were thus constructed for colonial studies of India. The various sub-divisions and separation of subgroup terms were assumed to be result of "communal conflict", and Hindu
27825-456: The vernacular literature of Bhakti movement sants from 15th to 17th century, such as Kabir , Anantadas, Eknath, Vidyapati, suggests that distinct religious identities, between Hindus and Turks (Muslims), had formed during these centuries. The poetry of this period contrasts Hindu and Islamic identities, states Nicholson, and the literature vilifies the Muslims coupled with a "distinct sense of
28000-424: The wide range of traditions and ideas covered by the term Hinduism, arriving at a comprehensive definition is difficult. The religion "defies our desire to define and categorize it". A Hindu may, by his or her choice, draw upon ideas of other Indian or non-Indian religious thought as a resource, follow or evolve his or her personal beliefs, and still identify as a Hindu. In 1995, Chief Justice P. B. Gajendragadkar
28175-410: The work of the "free law" theorists (e.g. Ernst Fuchs, Hermann Kantorowicz , Eugen Ehrlich and François Gény ) encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound , for many years
28350-417: The world's third-largest religious group after Christians and Muslims. The vast majority of Hindus, approximately 966 million (94.3% of the global Hindu population), live in India , according to the 2011 Indian census. After India, the next nine countries with the largest Hindu populations are, in decreasing order: Nepal , Bangladesh , Indonesia , Pakistan , Sri Lanka , the United States , Malaysia ,
28525-564: The world. Most Hindus are found in Asian countries. The top twenty-five countries with the most Hindu residents and citizens (in decreasing order) are India , Nepal , Bangladesh , Indonesia , Pakistan , Sri Lanka , United States , Malaysia , Myanmar , United Kingdom , Mauritius , South Africa , United Arab Emirates , Canada , Australia , Saudi Arabia , Trinidad and Tobago , Singapore , Fiji , Qatar , Kuwait , Guyana , Bhutan , Oman and Yemen . The top fifteen countries with
28700-515: Was H. L. A. Hart , professor of jurisprudence at Oxford University . Hart argued that the law should be understood as a system of social rules. In The Concept of Law , Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. Hart claimed that law is the union of primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for
28875-416: Was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume argued, in A Treatise of Human Nature , that people invariably slip from describing what the world is to asserting that we therefore ought to follow a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something
29050-539: Was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell . Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of [legal] study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts." For
29225-423: Was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for democracy , and firm atheist . Bentham's views about law and jurisprudence were popularized by his student John Austin . Austin was the first chair of law at the new University of London , from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from
29400-635: Was codified by Savarkar while he was a political prisoner of the British colonial authorities. Chris Bayly traces the roots of Hindu nationalism to the Hindu identity and political independence achieved by the Maratha confederacy , that overthrew the Islamic Mughal empire in large parts of India, allowing Hindus the freedom to pursue any of their diverse religious beliefs and restored Hindu holy places such as Varanasi. A few scholars view Hindu mobilisation and consequent nationalism to have emerged in
29575-664: Was constructed by these orientalists to imply people who adhered to "ancient default oppressive religious substratum of India", states Pennington. Followers of other Indian religions so identified were later referred Buddhists, Sikhs or Jains and distinguished from Hindus, in an antagonistic two-dimensional manner, with Hindus and Hinduism stereotyped as irrational traditional and others as rational reform religions. However, these mid-19th-century reports offered no indication of doctrinal or ritual differences between Hindu and Buddhist, or other newly constructed religious identities. These colonial studies, states Pennigton, "puzzled endlessly about
29750-428: Was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" ( Sharia ). The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti , one of the many treatises ( śāstra ) on Dharma . The British, however, mistook
29925-435: Was later used occasionally in some Sanskrit texts such as the later Rajataranginis of Kashmir (Hinduka, c. 1450 ) and some 16th- to 18th-century Bengali Gaudiya Vaishnava texts, including Chaitanya Charitamrita and Chaitanya Bhagavata . These texts used it to contrast Hindus from Muslims who are called Yavanas (foreigners) or Mlecchas (barbarians), with the 16th-century Chaitanya Charitamrita text and
30100-431: 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. Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there
30275-487: Was not necessarily universal. On the other hand, ius intra gentes , or civil law, is specific to each nation. Writing after World War II , Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the (natural) law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as
30450-442: Was quoted in an Indian Supreme Court ruling: Although Hinduism contains a broad range of philosophies, Hindus share philosophical concepts, such as but not limiting to dharma , karma , kama , artha , moksha and samsara , even if each subscribes to a diversity of views. Hindus also have shared texts such as the Vedas with embedded Upanishads , and common ritual grammar ( Sanskara (rite of passage) ) such as rituals during
30625-407: Was the publication in 1649 by Sebastio Manrique . In the Indian historian DN Jha 's essay "Looking for a Hindu identity" , he writes: "No Indians described themselves as Hindus before the fourteenth century" and that "The British borrowed the word 'Hindu' from India, gave it a new meaning and significance, [and] reimported it into India as a reified phenomenon called Hinduism." In the 18th century,
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