Hindu law

Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India.Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950).

Prior to Indian Independence in 1947, Hindu law formed part of the British colonial legal system and was formally established as such in 1772 byGovernor-General Warren Hastings who declared in his Plan for the Administration of Justice that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shaster with respect to the Gentoos shall invariably be adhered to." The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known asDharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma). The British, however, mistook the Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until they chose to do so. Rather, Dharmaśāstra contains what may be called a jurisprudence, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such. Another sense of Hindu law, then, is the legal system described and imagined in Dharmaśāstra texts.

One final definition of Hindu law, or classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition. Such local laws never conformed completely to the ideals of Dharmaśāstra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly. It is worth emphasizing that Sanskrit contains no word that precisely corresponds to 'law' or religion and that, therefore, the label "Hindu Law" is a modern convenience used to describe this tradition.

This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India (Classical Hindu Law) through the colonial appropriations of Dharmaśāstra (Anglo-Hindu Law) to the establishment of the modern personal law system (Modern Hindu Law).

Dharma and law are not precisely the same. Dharma refers to a wider range of human activities than law in the usual sense and includes ritual purification, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal" issues. In this respect, Hindu law reveals closer affinities to other religious legal systems, such as Jewish law. Dharma concerns both religious and legal duties and attempts to separate these two concerns within the Hindu tradition have been widely criticised. According to Rocher, the British implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated dharma into the English categories of law and religion for the purposes of colonial administration. 

However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves. But the so called 'Hindu law' which is but only a recent 'retrospective' term introduced by the British in 1772, based on their translations of the Hindu scriptures,to a body of literature that dates back to the 2nd millennium B.C. Even a basic awareness of these ancient scriptures will suffice to reveal the fundamental differences in the approach to law of the Hindu and the Judeo- Christian traditions; the latter being fundamentally based on strict adherence to the religious doctrine and compliance with the covenant as stated in the Abrahamic covenant and Moses' ten commandments. In fact, the etymology of the word 'testament', so central to the Jewish and Christian religions, itself can variously mean, a will, make a will, be witness to,ultimately deriving from 'testis' which simply means 'witness'. Seen in this light, it is hard to perceive of any affinities whatsoever between Hindu law and Jewish law.