759 Pages
English
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Studies in Hindu Law and Dharmaśstra

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759 Pages
English

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An invaluable introduction to the pioneering Indologist Ludo Rocher through a collection of his most important essays.


The main sources for an understanding of classical Hindu law are the Sanskrit treatises on religious and legal duties, known as the Dharmaśāstras. In this collection of his major studies in the field, Ludo Rocher presents analytical and interpretive essays on a wide range of topics, from general themes such as the nature of Hindu law and Anglo-Hindu law to technical matters including word studies and text criticism. Rocher’s deep engagement with the language and worldview of the authors in the Dharmaśāstra tradition yields distinctive and corrective contributions to the field, which are informed by knowledge both of the Indian grammatical tradition and of Roman and civil law.


Davis’s introduction presents an interpretative account of Rocher’s many contributions to the field, organized around the themes that recur in his work, and examines his key advances, both methodological and substantive. Comparisons and contrasts between Rocher’s ideas and those of his Indological colleagues serve to place him in the context of a scholarly tradition, while Rocher’s fundamental view that the Dharmaśāstra is first and foremost a scholarly and scholastic tradition, rather than a practical legal one, is also explored.


This invaluable collection serves both as a summary review of the ideas of Rocher, a leading authority in the field, and as a critical evaluation of the impact of these ideas on the present study of law and Indology.


Foreword by Richard W. Lariviere; Preface; Abbreviations; Note on the Edition; Introduction; Part One. The Nature of Hindu Law; Hindu Conceptions of Law; The Historical Foundations of Ancient Indian Law; Hindu Law and Religion: Where to Draw the Line; Law Books in an Oral Culture: The Indian Dharmaśāstras; Schools of Hindu Law; Changing Patterns of Diversification in Hindu Law; Part Two. General Topics of Hindu Law; Ancient Hindu Criminal Law; Hindu Law of Succession: From the ‘Śāstras’ to Modern Law; Caste and Occupation in Classical India: The Normative Texts; Megasthenes on Indian Lawbooks; The “Ambassador” in Ancient India; The Status of Minors according to Classical Hindu Law; ‘Quandoque bonus dormitat’ Jīmūtavāhanas;  Notes on Mixed Castes in Classical India; Inheritance and ‘Śrāddha’: The Principle of “Spiritual Benefit”; The Theory of Matrimonial Causes According to the ‘Dharmaśāstra’; Jīmūtavāhana’s ‘Dāyabhāga’ and the Maxim ‘Factum Valet’; The Divinity of Royal Power in Ancient India according to Dharmaśāstra; A Few Considerations on Monocracy in Ancient India; Part Three. Hindu Legal Procedure; The Theory of Proof in Ancient Hindu Law; The Problem of the Mixed Reply in Ancient Hindu Law; The Reply in Hindu Legal Procedure: Mitra Miśra’s Criticism of the ‘Vyavahāra-Cintāmaṇi’; “Lawyers” in Classical Hindu Law; Anumāna in the ‘Bṛhaspatismṛti’; Part Four. Technical Studies of Hindu Law; Possession Held for Three Generations by Persons Related to the Owner; The ‘Vīramitrodaya’ on the Right of Private Defence; The Technical Term ‘Anubandha’ in Sanskrit Legal Literature; The ‘Kāmasūtra’: Vātsyāyana’s Attitude toward ‘Dharma’ and Dharmaśāstra; In Defense of Jīmūtavāhana; ‘Dāsadāsī’; The Definition of ‘Vākparuṣya’; ‘Janmasvatvavāda’ and ‘Uparamasvatvavāda’: The First Chapters on Inheritance in the ‘Mitākṣarā’ and ‘Dāyabhāga’; Karma and Rebirth in the Dharmaśāstra; Notes on the Technical Term ‘Sāhasa’ “Fine, Pecuniary Penalty”; ‘Avyāvahārika’ Debts and Kauṭilya 3.1.1–11; The ‘Sūtras’ and ‘Śāstras’ on the Eight Types of Marriage; ‘Caritraṃ Pustakaraṇe’; The Terms ‘Niyukta’, ‘Aniyukta’, and ‘Niyoga’ in Sanskrit Legal Literature; The ‘Aurasa’ Son; The Introduction of the ‘Gautamadharmasūtra’; Part Five. Anglo-Hindu and Customary Law; Indian Response to Anglo-Hindu Law; Can a Murderer Inherit his Victim’s Estate? British Responses to Troublesome Questions in Hindu Law; Reinterpreting Texts: When Revealed Sanskrit Texts Become Modern Law Books; Father Bouchet’s Letter on the Administration of Hindu Law; Jacob Mossel’s Treatise on the Customary Laws of the Veḷḷāla Cheṭṭiyārs; Bibliography; Index

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Published 15 September 2012
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EAN13 9780857285782
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TheNaTureofhiNduLaw
STUDIES IN HINDU LAW AND DHARMAŚĀSTRA
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STudieSiNhiNduLawaNddharmaŚĀSTr a
Anthem South Asian Normative Traditions Studies
TheAnthem South Asian Normative Traditions Studies series features textual studies, thematic analysis and historical reconstructions devoted to the exploration of South Asian normative materials. Committed both to well known normative productions (such as Sanskritdharmasūtras anddharmaśāstras and Pālivinaya) and to lesser known vernacular or regional materials, this series aims to enhance the understanding of the many variants assumed by the legal, normative and codifying intellectual discourses in South Asia. This series is under the direction of Patrick Olivelle, Professor of Sanskrit and Indian Religions at the University of Texas at Austin, USA.
Series Editor
Federico Squarcini, University of Venice, Italy
Editorial Board
Patrick Olivelle, University of Texas at Austin, USA Whitney Cox, School of Oriental and African Studies, UK Donald R. Davis, Jr, University of Wisconsin-Madison, USA Timothy Lubin, Washington and Lee University, USA David Brick, Yale University, USA Ethan Kroll, Baker & McKenzie LLP, USA Mark McClish, Birmingham-Southern College, USA
TheNaTureofhiNduLaw
RELIGIONANDIDENTITYINSTUDIES IN HINDU LAW AND SOUTHASIAANDBEYONDDHARMAŚĀSTRA ESSAYSINHONOROFPATRICKOLIVELLELudo Rocher
EditedbyStevenE.Lindquist Edited with an Introduction by Donald R. Davis, Jr
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STudieSiNhiNduLawaNddharmaŚĀSTr a
Anthem Press An imprint of Wimbledon Publishing Company www.anthempress.com
This edition first published in UK and USA 2012 by ANTHEM PRESS 75–76 Blackfriars Road, London SE1 8HA, UK or PO Box 9779, London SW19 7ZG, UK and 244 Madison Ave. #116, New York, NY 10016, USA
© 2012 Donald R. Davis, Jr editorial matter and selection; individual chapters © Ludo Rocher The moral right of the authors has been asserted. Layout and design © Marianna Ferrara
Cover photograph © Clelia Pellicano
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.
British Library Cataloguing in Publication DataA catalogue record for this book is available from the British Library.
Library of Congress Cataloging in Publication Data A catalog record for this book has been requested.
ISBN–13: 978 0 85728 550 8 (Hbk) ISBN–10: 0 85728 550 5 (Hbk)
This title is also available as an eBook.
TheNaTureofhiNduLaw
Contents
Foreword by Richard W. Lariviere Preface Abbreviations Note on the Edition Introduction
Pa r T oN e. Th e Na T u r eo f hi N d u La w
Hindu Conceptions of Law The Historical Foundations of Ancient Indian Law Hindu Law and Religion: Where to Draw the Line Law Books in an Oral Culture: The Indian Dharmaśāstras Schools of Hindu Law Changing Patterns of Diversification in Hindu Law
Pa r T Tw o. Ge N e r a L To P i c So f hi N d u La w
Ancient Hindu Criminal Law Hindu Law of Succession: From theŚāstras to Modern Law Caste and Occupation in Classical India: The Normative Texts Megasthenes on Indian Lawbooks The “Ambassador” in Ancient India The Status of Minors according to Classical Hindu Law Quandoque bonus dormitatJīmūtavāhanas? Notes on Mixed Castes in Classical India Inheritance andŚrāddha: The Principle of “Spiritual Benefit”
9 11 13 15 17
39 59 83 103 119 129
145 163 201 215 219 235 249 255 267
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STUDIESINHINDULAWANDDHARMAŚĀSTR A
The Theory of Matrimonial Causes According to the DharmaśāstraJīmūtavāhana’sDāyabhāgaand the MaximFactum Valet The Divinity of Royal Power in Ancient India according to Dharmaśāstra A Few Considerations on Monocracy in Ancient India
PA R T TH R E E. HI N D U LE G A L PR O C E D U R E
The Theory of Proof in Ancient Hindu Law The Problem of the Mixed Reply in Ancient Hindu Law The Reply in Hindu Legal Procedure: Mitra Miśra’s Criticism of theVyavahāra-Cintāmaṇi “Lawyers” in Classical Hindu Law Anumāna in theBṛhaspatismṛti
PA R T FO U R. TE C H N I C A L ST U D I E SO F HI N D U LA W
Possession Held for Three Generations by Persons Related to the OwnerTheVīramitrodayaon the Right of Private DefenceThe Technical TermAnubandhain Sanskrit Legal LiteratureTheKāmasūtra: Vātsyāyana’s Attitude towardDharmaand Dharmaśāstra In Defense of JīmūtavāhanaDāsadāsī The Definition ofVākparuṣya JanmasvatvavādaandUparamasvatvavāda:The First Chapters on Inheritance in theMitākṣarāandDāyabhāga Karmaand Rebirth in the DharmaśāstrasNotes on the Technical TermSāhasa:“Fine, Pecuniary Penalty”AvyāvahārikaDebts and Kauṭilya 3.1.1–11TheSūtrasandŚāstras on the Eight Types of MarriageCaritra Pustakaraṇe The TermsNiyukta, Aniyukta,andNiyoga in Sanskrit Legal LiteratureTheAurasaSonThe Introduction of theGautamadharmasūtra
PA R T FI V E. AN G L O- HI N D UA N D CU S T O M A R Y LA W
Indian Response to Anglo-Hindu Law Can a Murderer Inherit his Victim’s Estate? British Responses to Troublesome Questions in Hindu Law
279 305
315 331
361 395
405 417 435
445 451 473
481 497 503 513
527 539 565 581 587 597
603 613 623
633
643
TheNaTucroeNoTefNhTSiNduLaw
Reinterpreting Texts: When Revealed Sanskrit Texts Become Modern Law BooksFather Bouchet’s Letter on the Administration of Hindu LawJacob Mossel’s Treatise on the Customary Lawsof the Veḷḷāla Cheṭṭiyārs
BibliographyIndex
661 673
699
719 745
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TheNaTureofhiNduLaw
Foreword
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Don Davis has done scholars a great favor. He has collected to-gether in one place much of the work of one of the bright lights of American academia. Prof. Ludo Rocher is a member of the American Philosophical Society, former President of the Ameri-can Oriental Society, and Chairman of the Board of Trustees of the American Institute of Indian Studies. All significant distinc-tions in an important career. But what is most compelling, most distinctive, and most enduring about Prof. Rocher’s career are two things: (1) his broad, comprehensive, and always rock-solid contributions to our understanding of classical India and (2) his generous, tireless, and effective mentoring of generations of stu-dents. Many of the most important Indological positions in the country are held by Prof. Rocher’s students. Don Davis is part of thatparamparāand he has given us the great gift of a reprint-ing of work whose collective impact has moved Indology forward steadily and consistently for more than 50 years. Those of us who continue to rely on dog-eared and heavily marked up copies of these articles and who have sent students hither and yon to make new copies are grateful for this service. Future generations of students and scholars will more easily understand the impressive breadth and depth of Rocher’s work as a result of this collection. Their value and their validity endure. They are superb examples of what Davis refers to as the “philo-logical particular.” The focus and the technical mastery repre-sented by these articles are what give coherence to such breadth of scholarship. We are fortunate to have this collection, but this collection’s real impact will be on future generations of scholars who will as a result be more likely to be able to access this im-
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portant work. Many of the journals that Rocher published in are not available electronically, and the half-life of Festschriften is di-minished by the increased dependency of libraries on electronic collections. We who care deeply for Indology and philological rigor are grateful to Davis and his assistants for making this good work available to us.
Eugene, Oregon Richard W. Lariviere