Hindu law (Manu Smriti) In British India
Prior to the British colonial rule, Sharia (Islamic law) for Muslims in South Asia had been codified as Fatawa-e-Alamgiri, but laws for non-Muslims – such as Hindus, Buddhists, Sikhs, Jains, Parsis – were not codified during the 600 years of Islamic rule.[78] With the arrival of the British colonial officials, Manusmriti played a historic role in constructing a legal system for non-Muslims in South Asia and early Western perceptions about the ancient and medieval Indian society.[4]
In the 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions.[79] The East India Company, and later the British Crown, sought profits for its British shareholders through trade as well as sought to maintain effective political control with minimal military engagement.[80] The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states.[80] The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries.[81] The existing legal texts for Muslims, and resurrected Manusmriti manuscript thus helped the colonial state sustain the pre-colonial religious and political law and conflicts, well into the late nineteenth century.[79][80][82] 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, the law of the Koran with respect to Mahometans [Muslims], and those of the Shaster with respect to Gentoos [Hindus] shall be invariably be adhered to.
— Warren Hastings, August 15, 1772[83]
For Muslims of India, the British accepted sharia as the legal code for Muslims, based on texts such the al-Sirjjiyah and Fatawa-i Alamgiri written under sponsorship of Aurangzeb.[84][85][86] For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[79] The substance of Hindu law, was derived by the British colonial officials from Manusmriti, and it became the first Dharmasastra that was translated in 1794.[2][4] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration.[87][88]
The British colonial officials, however, mistook the Manusmriti as codes of law, failed to recognize that it was a commentary on morals and law and not a statement of positive law.[82][84] The colonial officials of the early 19th century also failed to recognize that Manusmriti was one of many competing Dharmasastra texts, it was not in use for centuries during the Islamic rule period of India.[82][84] The officials resurrected Manusmriti, constructed statements of positive law from the text for non-Muslims, in order to remain faithful to its policy of using sharia for the South Asian Muslim population.[4][82][84] Manusmriti, thus played a role in constructing the Anglo-Hindu law, as well as Western perceptions about ancient and medieval era Hindu culture from the colonial times.[89] Abdullahi Ahmed An-Na'im states the significance and role of Manusmriti in governing India during the colonial era as follows (abridged),[85]
The [British] colonial administration began the codification of Hindu and Muslim laws in 1772 and continued through the next century, with emphasis on certain texts as the authentic "sources" of the law and custom of Hindus and Muslims, which in fact devalued and retarded those dynamic social systems. The codification of complex and interdependent traditional systems froze certain aspects of the status of women, for instance, outside the context of constantly evolving social and economic relations, which in effect limited or restricted women's rights. The selectivity of the process, whereby colonial authorities sought the assistance of Hindu and Muslim religious elites in understanding the law, resulted in the Brahminization and Islamization of customary laws [in British India]. For example, the British orientalist scholar William Jones translated the key texts Al Sirjjiyah in 1792 as the Mohammedan Law of Inheritance, and Manusmriti in 1794 as the Institutes of Hindu Law or the Ordinances of Manu. In short, British colonial administrators reduced centuries of vigorous development of total ethical, religious and social systems to fit their own preconceived European notions of what Muslim and Hindu "law" should be.
— Abdullahi Ahmed An-Na'im, Islam and the Secular State: Negotiating the Future of Sharia[85]
Outside India
The Dharma-sastras, particularly Manusmriti, states Anthony Reid,[90] were "greatly honored in Burma (Myanmar), Siam (Thailand), Cambodia and Java-Bali (Indonesia) as the defining documents of the natural order, which kings were obliged to uphold. They were copied, translated and incorporated into local law code, with strict adherence to the original text in Burma and Siam, and a stronger tendency to adapt to local needs in Java (Indonesia)".[90][91][92] The medieval era derived texts and Manusmriti manuscripts in Southeast Asia are, however, quite different than the "vulgate" version that has been in use since its first use in British India. The role of then extant Manusmriti as a historic foundation of law texts for the people of Southeast Asia has been very important, states Hooker.[93]
Comparison with other dharmasastras
Further information: Dharma and Dharmashastra
Along with Manusmriti (Manava Dharmasastra), ancient India had between eighteen and thirty six competing Dharma-sastras, states John Bowker.[17] Many of these texts have been lost completely or in parts, but they are referred to in other ancient Indian texts suggesting that they were influential in some regions or time. Of the numerous jurisprudence-related commentaries and Smriti texts, after Manu Smriti and other than the older Dharma Sutras, Yajnavalkya Smriti has attracted the attention of many scholars, followed by Narada Smriti and Parashara Smriti (the oldest Dharma-smriti).[94] Evidence suggests that Yajnavalkya Smriti, state Ghose and other scholars, was the more referred to text than Manu Smriti, in matters of governance and practice. This text, of unclear date of composition, but likely to be a few centuries after Manusmriti, is more "concise, methodical, distilled and liberal".[95] According to Jois,
Regarding the 18 titles of law, Yajnavalkya follows the same pattern as in Manu with slight modifications. On matters such as women's rights of inheritance and right to hold property, status of Sudras, and criminal penalty, Yajnavalkya is more liberal than Manu. (...) He deals exhaustively on subjects like creation of valid documents, law of mortgages, hypothecation, partnership and joint ventures.
— M Rama Jois, Legal and Constitutional History of India[96]
Jois suggests that the Yajnavalkya Smriti text liberal evolution may have been influenced by Buddhism in ancient India.[95] The Yajnavalkya text is also different from Manu text in adding chapters to the organization of monasteries, land grants, deeds execution and other matters. The Yajnavalkya text was more referred to by many Hindu kingdoms of the medieval era, as evidenced by the commentary of 12th-century Vijñāneśvara, titled Mitakshara.[97]
Modern reception
Views on Manusmriti have varied among Indian leaders. Ambedkar (left) burnt it in 1927, while Gandhi (right) found it a mix of lofty as well as contradictory teachings. Gandhi suggested a critical reading, and rejection of parts that were contrary to ahimsa.[98][99]
The Manusmrti has been subject to appraisal and criticism.[100] Among the notable Indian critics of the text in the early 20th century was Dr. B. R. Ambedkar, who held Manusmriti as responsible for caste system in India. In protest, Ambedkar burnt Manusmrti in a bonfire on December 25, 1927.[99] While Dr. Babasaheb Ambedkar condemned Manusmriti, Mahatma Gandhi opposed the book burning. The latter stated that while caste discrimination was harmful to spiritual and national growth, it had nothing to do with Hinduism and its texts such as Manusmriti. Gandhi argued that the text recognizes different callings and professions, defines not one's rights but one's duties, that all work from that of a teacher to a janitor are equally necessary, and of equal status.[99] Gandhi considered Manusmriti to include lofty teachings but a text with inconsistency and contradictions, whose original text is in no one's possession.[98] He recommended that one must read the entire text, accept those parts of Manusmriti which are consistent with "truth and ahimsa (non-injury or non-violence to others)" and the rejection of other parts.[98]
The Manu Smriti was one of the first Sanskrit texts studied by the European philologists. It was first translated into English by Sir William Jones. His version was published in 1794.[101] This interest in its translation was encouraged by British administrative requirements, which they believed to be legal codes. In fact, states Romila Thapar, these were not codes of law but social and ritual texts.[102]
A Louis Jacolliot translation of the Calcutta version of "Law of Manu" was reviewed by Friedrich Nietzsche. He commented on it both favorably and unfavorably:
He deemed it "an incomparably spiritual and superior work" to the Christian Bible, observed that "the sun shines on the whole book" and attributed its ethical perspective to "the noble classes, the philosophers and warriors, [who] stand above the mass."[103] Nietzsche does not advocate a caste system, states David Conway, but endorses the political exclusion conveyed in the Manu text.[104] Nietzsche considered Manu's social order as far from perfect, but considers the general idea of a caste system to be natural and right, and stated that "caste-order, order of rank is just a formula for the supreme law of life itself", a "natural order, lawfulness par excellence".[105][106] According to Nietzsche, states Julian Young, "Nature, not Manu, separates from each other: predominantly spiritual people, people characterized by muscular and temperamental strength, and a third group of people who are not distinguished in either way, the average".[105] He wrote that 'To prepare a book of law in the style of Manu means to give a people the right to become master one day, to become perfect, - to aspire to the highest art of life.'[106]
The Law of Manu was also criticized by Nietzsche. He, states Walter Kaufmann, "denounces the way in which the 'Law of Manu' dealt with the outcastes, saying that there is nothing that outrages our feelings more ... ."[107] Nietzsche wrote, "these regulations teach us enough, in them we find for once Aryan humanity, quite pure, quite primordial, we learn that the concept of pure blood is the opposite of a harmless concept."[108]
In his book Revolution and Counter-Revolution in India, leader B. R. Ambedkar asserted that Manu Smriti was written by a sage named Brigu during the times of Pushyamitra of Sangha in connection with social pressures caused by the rise of Buddhism.[109] However, historian Romila Thapar considers these claims to be exaggerations. Thapar writes that archaeological evidence casts doubt on the claims of Buddhist persecution by Pushyamitra.[110] Support of the Buddhist faith by the Shungas at some point is suggested by an epigraph on the gateway of Bharhut, which mentions its erection "during the supremacy of the Shungas"[111] Hinduism does not evangelize.[112]
Pollard et al. state that the code of Manu was derived to answer questions on how men could rebuild their societies following a series of floods.[113][verification needed] Swami Dayananda Saraswati, the founder of Arya Samaj, held the text to be authentic and authoritative.[114] Other admirers of the text have included Annie Besant.[115]
Friedrich Nietzsche is noted to have said "Close the Bible and open the Manu Smriti. It has an affirmation of life, a triumphing agreeable sensation in life and that to draw up a lawbook such as Manu means to permit oneself to get the upper hand, to become perfection, to be ambitious of the highest art of living."[116]
Prior to the British colonial rule, Sharia (Islamic law) for Muslims in South Asia had been codified as Fatawa-e-Alamgiri, but laws for non-Muslims – such as Hindus, Buddhists, Sikhs, Jains, Parsis – were not codified during the 600 years of Islamic rule.[78] With the arrival of the British colonial officials, Manusmriti played a historic role in constructing a legal system for non-Muslims in South Asia and early Western perceptions about the ancient and medieval Indian society.[4]
In the 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions.[79] The East India Company, and later the British Crown, sought profits for its British shareholders through trade as well as sought to maintain effective political control with minimal military engagement.[80] The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states.[80] The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries.[81] The existing legal texts for Muslims, and resurrected Manusmriti manuscript thus helped the colonial state sustain the pre-colonial religious and political law and conflicts, well into the late nineteenth century.[79][80][82] 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, the law of the Koran with respect to Mahometans [Muslims], and those of the Shaster with respect to Gentoos [Hindus] shall be invariably be adhered to.
— Warren Hastings, August 15, 1772[83]
For Muslims of India, the British accepted sharia as the legal code for Muslims, based on texts such the al-Sirjjiyah and Fatawa-i Alamgiri written under sponsorship of Aurangzeb.[84][85][86] For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[79] The substance of Hindu law, was derived by the British colonial officials from Manusmriti, and it became the first Dharmasastra that was translated in 1794.[2][4] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration.[87][88]
The British colonial officials, however, mistook the Manusmriti as codes of law, failed to recognize that it was a commentary on morals and law and not a statement of positive law.[82][84] The colonial officials of the early 19th century also failed to recognize that Manusmriti was one of many competing Dharmasastra texts, it was not in use for centuries during the Islamic rule period of India.[82][84] The officials resurrected Manusmriti, constructed statements of positive law from the text for non-Muslims, in order to remain faithful to its policy of using sharia for the South Asian Muslim population.[4][82][84] Manusmriti, thus played a role in constructing the Anglo-Hindu law, as well as Western perceptions about ancient and medieval era Hindu culture from the colonial times.[89] Abdullahi Ahmed An-Na'im states the significance and role of Manusmriti in governing India during the colonial era as follows (abridged),[85]
The [British] colonial administration began the codification of Hindu and Muslim laws in 1772 and continued through the next century, with emphasis on certain texts as the authentic "sources" of the law and custom of Hindus and Muslims, which in fact devalued and retarded those dynamic social systems. The codification of complex and interdependent traditional systems froze certain aspects of the status of women, for instance, outside the context of constantly evolving social and economic relations, which in effect limited or restricted women's rights. The selectivity of the process, whereby colonial authorities sought the assistance of Hindu and Muslim religious elites in understanding the law, resulted in the Brahminization and Islamization of customary laws [in British India]. For example, the British orientalist scholar William Jones translated the key texts Al Sirjjiyah in 1792 as the Mohammedan Law of Inheritance, and Manusmriti in 1794 as the Institutes of Hindu Law or the Ordinances of Manu. In short, British colonial administrators reduced centuries of vigorous development of total ethical, religious and social systems to fit their own preconceived European notions of what Muslim and Hindu "law" should be.
— Abdullahi Ahmed An-Na'im, Islam and the Secular State: Negotiating the Future of Sharia[85]
Outside India
The Dharma-sastras, particularly Manusmriti, states Anthony Reid,[90] were "greatly honored in Burma (Myanmar), Siam (Thailand), Cambodia and Java-Bali (Indonesia) as the defining documents of the natural order, which kings were obliged to uphold. They were copied, translated and incorporated into local law code, with strict adherence to the original text in Burma and Siam, and a stronger tendency to adapt to local needs in Java (Indonesia)".[90][91][92] The medieval era derived texts and Manusmriti manuscripts in Southeast Asia are, however, quite different than the "vulgate" version that has been in use since its first use in British India. The role of then extant Manusmriti as a historic foundation of law texts for the people of Southeast Asia has been very important, states Hooker.[93]
Comparison with other dharmasastras
Further information: Dharma and Dharmashastra
Along with Manusmriti (Manava Dharmasastra), ancient India had between eighteen and thirty six competing Dharma-sastras, states John Bowker.[17] Many of these texts have been lost completely or in parts, but they are referred to in other ancient Indian texts suggesting that they were influential in some regions or time. Of the numerous jurisprudence-related commentaries and Smriti texts, after Manu Smriti and other than the older Dharma Sutras, Yajnavalkya Smriti has attracted the attention of many scholars, followed by Narada Smriti and Parashara Smriti (the oldest Dharma-smriti).[94] Evidence suggests that Yajnavalkya Smriti, state Ghose and other scholars, was the more referred to text than Manu Smriti, in matters of governance and practice. This text, of unclear date of composition, but likely to be a few centuries after Manusmriti, is more "concise, methodical, distilled and liberal".[95] According to Jois,
Regarding the 18 titles of law, Yajnavalkya follows the same pattern as in Manu with slight modifications. On matters such as women's rights of inheritance and right to hold property, status of Sudras, and criminal penalty, Yajnavalkya is more liberal than Manu. (...) He deals exhaustively on subjects like creation of valid documents, law of mortgages, hypothecation, partnership and joint ventures.
— M Rama Jois, Legal and Constitutional History of India[96]
Jois suggests that the Yajnavalkya Smriti text liberal evolution may have been influenced by Buddhism in ancient India.[95] The Yajnavalkya text is also different from Manu text in adding chapters to the organization of monasteries, land grants, deeds execution and other matters. The Yajnavalkya text was more referred to by many Hindu kingdoms of the medieval era, as evidenced by the commentary of 12th-century Vijñāneśvara, titled Mitakshara.[97]
Modern reception
Views on Manusmriti have varied among Indian leaders. Ambedkar (left) burnt it in 1927, while Gandhi (right) found it a mix of lofty as well as contradictory teachings. Gandhi suggested a critical reading, and rejection of parts that were contrary to ahimsa.[98][99]
The Manusmrti has been subject to appraisal and criticism.[100] Among the notable Indian critics of the text in the early 20th century was Dr. B. R. Ambedkar, who held Manusmriti as responsible for caste system in India. In protest, Ambedkar burnt Manusmrti in a bonfire on December 25, 1927.[99] While Dr. Babasaheb Ambedkar condemned Manusmriti, Mahatma Gandhi opposed the book burning. The latter stated that while caste discrimination was harmful to spiritual and national growth, it had nothing to do with Hinduism and its texts such as Manusmriti. Gandhi argued that the text recognizes different callings and professions, defines not one's rights but one's duties, that all work from that of a teacher to a janitor are equally necessary, and of equal status.[99] Gandhi considered Manusmriti to include lofty teachings but a text with inconsistency and contradictions, whose original text is in no one's possession.[98] He recommended that one must read the entire text, accept those parts of Manusmriti which are consistent with "truth and ahimsa (non-injury or non-violence to others)" and the rejection of other parts.[98]
The Manu Smriti was one of the first Sanskrit texts studied by the European philologists. It was first translated into English by Sir William Jones. His version was published in 1794.[101] This interest in its translation was encouraged by British administrative requirements, which they believed to be legal codes. In fact, states Romila Thapar, these were not codes of law but social and ritual texts.[102]
A Louis Jacolliot translation of the Calcutta version of "Law of Manu" was reviewed by Friedrich Nietzsche. He commented on it both favorably and unfavorably:
He deemed it "an incomparably spiritual and superior work" to the Christian Bible, observed that "the sun shines on the whole book" and attributed its ethical perspective to "the noble classes, the philosophers and warriors, [who] stand above the mass."[103] Nietzsche does not advocate a caste system, states David Conway, but endorses the political exclusion conveyed in the Manu text.[104] Nietzsche considered Manu's social order as far from perfect, but considers the general idea of a caste system to be natural and right, and stated that "caste-order, order of rank is just a formula for the supreme law of life itself", a "natural order, lawfulness par excellence".[105][106] According to Nietzsche, states Julian Young, "Nature, not Manu, separates from each other: predominantly spiritual people, people characterized by muscular and temperamental strength, and a third group of people who are not distinguished in either way, the average".[105] He wrote that 'To prepare a book of law in the style of Manu means to give a people the right to become master one day, to become perfect, - to aspire to the highest art of life.'[106]
The Law of Manu was also criticized by Nietzsche. He, states Walter Kaufmann, "denounces the way in which the 'Law of Manu' dealt with the outcastes, saying that there is nothing that outrages our feelings more ... ."[107] Nietzsche wrote, "these regulations teach us enough, in them we find for once Aryan humanity, quite pure, quite primordial, we learn that the concept of pure blood is the opposite of a harmless concept."[108]
In his book Revolution and Counter-Revolution in India, leader B. R. Ambedkar asserted that Manu Smriti was written by a sage named Brigu during the times of Pushyamitra of Sangha in connection with social pressures caused by the rise of Buddhism.[109] However, historian Romila Thapar considers these claims to be exaggerations. Thapar writes that archaeological evidence casts doubt on the claims of Buddhist persecution by Pushyamitra.[110] Support of the Buddhist faith by the Shungas at some point is suggested by an epigraph on the gateway of Bharhut, which mentions its erection "during the supremacy of the Shungas"[111] Hinduism does not evangelize.[112]
Pollard et al. state that the code of Manu was derived to answer questions on how men could rebuild their societies following a series of floods.[113][verification needed] Swami Dayananda Saraswati, the founder of Arya Samaj, held the text to be authentic and authoritative.[114] Other admirers of the text have included Annie Besant.[115]
Friedrich Nietzsche is noted to have said "Close the Bible and open the Manu Smriti. It has an affirmation of life, a triumphing agreeable sensation in life and that to draw up a lawbook such as Manu means to permit oneself to get the upper hand, to become perfection, to be ambitious of the highest art of living."[116]
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