Introduction
In an age where doctrinal
discussions are led by a positivism at times exaggerated, by overlooking the
fundaments, we consider as suitable that juridical thinking return to its
origins, the historical-philosophical and religious bases of the juridical
phenomenon.
Thus, the present article attempts to rediscover one of the
sources of the authority of the law, one of the aspects that have helped it
survive the passing of time: the divine origin attributed to rules of law.
Divinity as
the origin of law:-
Sir John salmond refers to 8 kinds of law- Imperative law,
physical or scientific law, Natural law or divine law or moral law,
conventional law, customary law, practical or technical law, International law,
and Civil law. We are here to discuss about Divine law as the origin of law.
Divine law is also called as Natural law or Moral law. It is
a command of God imposed upon men. It is established by that reason by which
the world is Governed. It is an unwritten law on brazen tablets of pillars of
stone but by the fingers of Nature in the hearts of man. It is universally
obeyed in all the places and by all the people. It has existed from the
beginning of the world and thus called as eternal. The principles are supposed
to be laid down by God for the Guidance of Mankind. Though Natural law is a
part of Divine law, but still it differs from it. Natural law is rational, as
it is based upon reasons and interpretations. It is addressed to intelligent
Human being. While divine law is based only on what is written in scriptures to
be followed. Divine law is followed as it is. The difference between Divine law
and Natural law is briefly explained by Athena, but at this point it is
important to know about the Divine law as the origin of modern legal system.
- It was with the help of Divine law only that jus civile (civil law) of Roman empire was transformed into Jus gentium(law for foreign citizen), which later on became the basis of International law. Grotius based his principles of International law on the basis of Divine law.
- Judges also refers to Divine law while interpreting the constitution. It was done in the US initially and the same has been done by British and Indian courts as well.
- The Divine law sets an ideal on which the legal system of the countries try to achieve.
Divine law offer certain advantages:-
- As an antidote to legal rigidity, it could provide flexibility, allowing rules of Law to be changed from what they are to what they ought to be on the grounds that the law always what it ought to be
- It’s terminology would weaken our capacity to critisize the law. It is easy to move from the premise that if a rule is unjust it is not law to the conclusion that if a rule is just then it can become a law.
- Divine law terminology tends to obscure the possibility of criticising the law on other than purely moral grounds.
Modern
example of Divinity as the origin of law is controversial matter regarding the
prohibitions on cloning. Example for Divinity as the origin of law:- Most prominent
arguments for an outright ban on human cloning include that human beings have a
right to be "born in a human way and not in the laboratory" and that
life is meant to come from God through the blessed relationship of a man and a
woman. Other arguments include that "We all have the right to be born of
love". When embryos are made in a test tube or a petrie dish "they
can be frozen, poured down the sink and treated as objects rather than subjects
of infinite human value." Catholic teaching opposes cloning, whether
therapeutic or reproductive, as the process is the same in either case; only
the purpose is different. The official opinion of the Roman Catholic Church is
that "every possible act of cloning humans is intrinsically evil" and
can never be justified. Hinduism and Islamic views with relation to human
cloning are not unanimous.
1. Everlasting law – the
foundation of all law
The authority of the law finds
its justification in the omnipotence of its creator. Yet, what is this
“exterior authority” which “must be obeyed”? First there were the gods in
ancient cities, then for the most past God Himself in the Bible and in the
Judeo-Christian faith.
According to the Bible, God is
the creator of the world absolutely and independently and at the same time He
gives it purpose. The existence and the accomplishable purpose can therefore be
found in the hand of God, both of them being the work of His divine
all-powerfulness and wisdom. Apart from the creation plan of the world, God
also has a plan for the running of the world, a plan according to which God
orders and runs the whole of creation. This plan seen as a law for the whole of
creation is dubbed the eternal law is the eternal will of God whereby he leads
the world and it was chosen by God freely. The eternal law, as a norm and source
of all there exists, is subordinate eternally to his divine will and sovereign
wisdom. Through it God has decided since the beginning of time that it is
necessary for all creatures to preserve the order assigned to them.1
In the Holly Scripture it is
said of the eternal law “I was set up from everlasting, from the beginning, or
ever the earth was”.2
This law is necessary because
God cannot create beings and not give them a purpose also, without arranging
everything do that the purpose be fulfilled. At the same time, it is unchanging
since God is unchanging in His universal will and decisions, given that it
applies to the whole universe.
All these qualities transform
the eternal law into the foundation and the source of all laws, the Law par
excellence, which ensure the natural and moral order of all beings and things.
“Its existence is uncontestable, it can be found in the conscience of all
people and in all times”. The moral precepts are available forever and concern
man and the society he inhabits, who creates human laws based on the moral
ones.3
The divine characteristic of
the law is expressed most vigorously in the Bible. The voice of God is clearly
heard in the Torah, which in the Greek version of the Bible is translated as
“nomos”, and in the Latin one “lex”. The Legislator is himself like God: the
commandments are written on the stone slabs “by the finger of God”. However God
needs a mediator, a Prophet. He who carries the word of God holds power. Thus,
he who holds the Decalogue has the power. Christian iconography illustrates
this biblical event, consecrated and popularized the substantial link between
law and power.4
2. Religion – the vector for
creating the law throughout history
Despite being basically
different, the law and religion have been tightly connected, however, since the
earliest times. It is true that a majority of juridical norms are linked to
religious precepts, but the fact that there is a large part of them that
reflect certain religious commandments, as we will show in this study.
In fact, even when religious
norms become law, there are substantial differences between them, for example
in the level of punishment, the religious precepts concern the relation between
man and divinity, while the juridical ones involve the sanctioning from the
social group. Sometimes there is an obvious rip between legal and religious
norm, for example the principle of self-defense and the one of turning the
other cheek, however it is clear that in a certain stage of the evolution of
society, religion has played the role of a vector in the creation of
the
juridical system, and in other systems it still maintains this role, given that
the law is inseparable from religious dogma, as is the case of Muslim law,
whose formal source principle is the Qur’an.5
It is incontestable that
religion is based on mysticism. The law also in part is based as religion on
the mystical feeling since to some extent its authority consists of three
distinct forces: constraint, reason and the mystical feeling, faith in divinity.
Since the beginning, in the
history of nations, the law was mistaken for religion, with juridical norms
considered to hail from God. However, it is considered through doctrine6 as
being the first stage in the evolution of the relation between religion and the
law. This concept of the law is predominant in archaic ages and characterised
especially the initial laws of the ancient cities which were completely
saturated by religion.
Within this stage, confusing
the law and religion manifested took on two forms: theocracy – the direct
governing of society by the gods and the monarchy endowed with divine right -
government through representatives of divinity. The direct governing by the
gods is found in the Egyptian culture, where the pharaoh was considered a god
and in the Jewish culture, in its primitive times, where society is governed by
Jehovah. Sovereignty by divine right can be found in the culture of most of the
ancient peoples – Persians, Greeks, Romans and it consists in the governing not
by the gods, but by the people that represent divinity: the Chinese emperor was
seen as the “son of heaven”; the Greeks considered that their laws are the work
of the gods; public Roman law almost completely identifies with the religion.7
In Greek culture, in the first
words in the dialogue about the Laws written by Plato were uttered by the
Foreigner from Athens and acknowledged by Clinias of Crete and Meghilles of
Sparta, he make this divine inspiration known: “To whom do you attribute the
institution of your laws, to a god or a man? To a foreign god, a god? We
attribute it to Zeus; in Lacedemon to Apollo…” The dialogue reflects a point of
view spread out throughout the Greek world, which remained alive at least until
the fifth century. In Rome, the divine inspiration
of the legendary founders of the Eternal
City, Romulus, the creator and Numa, the keeper of
sovereignty, confirms that the sacred marks the content of the law.8
J.B. Bossuet stresses the
divine quality of the law: “The law has no interest or passion. It is sacred
and inviolable. It punishes or reward.” If the king’s law exemplifies the
characteristics of the biblical law, it is because the monarch represents the
divine law.9
The second stage in the
relation between law and religion is contoured as a consequence of the
evolution of society on an economic and political level. Thus, in Roman
society, the increase of population, the birth of a new social class which did
not subscribe to the Roman religion, as it is restricted to Roman citizens, the
ever-growing immigration brought about the need to develop new documents and
procedures, which were available to those who were not citizens. Despite this,
there is no complete separation between religion and law, rather a coexistence
of the two. At the same time, there are fields that ultimately remained
regulated by religious norms, for example, family law would be under the
control of the Church until the French Revolution.10
The French Revolution brings
the law into its third stage, that if secularization.
The triumph of the law at the
end of the eighteenth century, its culmination in the first half of the
nineteenth is due to its secularization. As it lost its divine quality, the law
finds a new transcendence and attains in continental Europe
an unequal power and a distribution. The discovery of a new source of political
sovereignty and of a new origin for the rules of law welcomes in the modern age
of the law. In truth, the religion separates itself from the law under the
aspect of form; however, we are actually witnessing the advent of a new kind of
mysticism, as it has been stated. From this moment the foundations of a new
concept of society and the law are grounded on the contract. Because the civil
society is founded only on the pact between free and equal people, the law is
no longer the word of God.
J.J. Rousseau identifies a new
source of the law, specifically the general will: “The political body is a
moral being endowed with it own will; and this general will, which always tends
towards the preservation and wellbeing of the whole and of every one of its
parts, and which is the source of laws, is the rule of justice for all the
members of the state, in relation with themselves and the state”.11
The legal meaning of the term
“secularization” appeared in France,
in the Constitution of 1946, in art. 1 and it was afterwards repeated in the
Constitution of 1958, in which the following were stated: “France is a
secular Republic. It ensures the equality before the law of all citizens
irrespective of religion. It respects all faiths”. The Universal Declaration of
Human Rights and of the Citizen from 1789 contoured a new perception of the
secularization, one in which the state sanctions the freedom of religion: “No
one shall be harassed not even for their religious views, except when these
vies disturbs the ordered established by law”.
These
aspects have endured throughout time, so that today they can be found in the
Constitution of our state. The constitutional stipulations reflect the relation
between law and religion in general terms. Thus, art. 29 from the Constitution
states: “Freedom of thought, opinion and religious beliefs shall not be
restricted in any form whatsoever. No one shall be compelled to embrace an
opinion or religion contrary to his own convictions. (3) All religions shall be
free and organised in accordance with their own statutes, under the terms laid
down by law. (4) Any forms, means, acts or actions of religious enmity shall be
prohibited in the relationship among the cults. (5) Religious cults shall be
autonomous from the State and shall enjoy support from it, including the
facilitation of religious assistance in the army, in hospitals, prisons, homes
and orphanages.”, and art. 32, ¶ 7 consecrates the freedom of religious
education and in the last line of, art. 48, ¶ 2 – the relation between
religious and civil marriage, in the sense that the former may only take place
after the latter.
The influence of religion on
contemporary juridical norms is also found not only on a constitutional level,
but also in family and criminal law.
For example, although in the
contemporary the life partnership or cohabitation is established as undeniable
social reality, a part of legal doctrine12 advocating for its regulation,
however, at legal rule level, marriage remains the only form of family
formation since neither the Family Code, nor the New Civil Code acknowledges
other forms of cohabitation such as commonlaw marriage or domestic partnership,
which are condemned by religion. Moreover, another principle of family law,
that of monogamy upholds this union between law and religion, because both in
the Old Testament as well as the New Testament, family and marriage have a
common founding principle, monogamy. Article 5 from the Family Code and art. 29
from the New Civil Code stipulate that “it is forbidden to conclude a new
marriage with a person who is already married”. The introduction of betrothals
in our legal system through the New Civil Code keeps the bond between law and
religion alive, as it is well known that religion places a great deal of
importance on long-term engagements.
In the same vein, we may not
ignore the fact that the Decalogue has been the source of many law systems in
the world, including ours. Some of the commandments formed the foundation of
several recent laws, e.g. those in family law or of certain rules in criminal
law, as we shall see in the following paragraph.
3. Śruti (Sanskrit: श्रुति, IAST:
śrúti, lit. "hearing, listening"), often
spelled shruti or shruthi, is a term that describes the sacred texts comprising the central canon
of Hinduism and is one of the three main
sources of dharma and therefore is also influential
within Hindu Law.[1] These sacred works span much of
the history of Hinduism, beginning with some of the earliest known Hindu texts
and ending in the early modern period with the later Upanishads
The idea of śruti established a set group of people who were
granted access to the information contained in the Vedas. Because of its divine
nature and of Achara, or regional customary laws developed by a person who
reads and interprets the Vedas, began to be understood. This, in conjunction
with Smrti texts that provide further human interpretation of Śruti, developed
the information hierarchy that Hindus looked toward to dictate the proper
conduct of their lives. The specific information regarding such proper conduct
was not found directly in the Vedas because they do not contain explicit codes
or rules that would be found in a legal system.[8] However, because of the Vedas’
divine and unadulterated form, a rule that claims connection to this literature
is given more merit even if it does not cite a specific passage.[9] In this sense, Śruti exists as a
source for all Hindu Law without dictating any specifics.
1.Ahimsa
(अहिंसा):
Nonviolence. Abstinence from injury; harmlessness, the not causing of pain to
any living creature in thought, word, or deed at any time. This is the
"main" yama. The other nine are there in support of its
accomplishment.
2.Satya
(सत्य):
truthfulness, word and thought in conformity with the facts.
3.Asteya
(अस्तेय):
non-stealing, non-coveting, non-entering into debt.
4.Brahmacharya
(ब्रह्मचर्य):
divine conduct, continence, celibate when single, faithful when married.
5.Kshama
(क्षमा):
forgiveness, patience, releasing time, functioning in the now.
6.Dhriti
(धृति):
steadfastness, overcoming non-perseverance, fear, and indecision; seeing each
task through to completion.
7.Daya
(दया):
compassion toward all beings.
8.Arjava
(आर्जव):
honesty, straightforwardness, renouncing deception and wrongdoing.
9.Mitahara
(मिताहार):
moderate appetite, neither eating too much nor too little; nor consuming meat,
fish, shellfish, fowl or eggs.
10.Shaucha
(शौच):
purity, avoidance of impurity in body, mind and speech. (Note: Patanjali's Yoga
Sutras list Shaucha as the first of the Niyamas.)
The
ten traditional Niyamas (observances from following the restraints) are:
1.Hri(ह्री):
remorse, being modest and showing shame for misdeeds;
2.Santosha(संतोष):
contentment; being satisfied with the resources at hand – therefore not
desiring more;
3.Dana(दान):
giving, without thought of reward;
4.Astikya(आस्तिक्य):
faith, believing firmly in the teacher, the teachings and the path to
enlightenment;
5.Ishvarapujana(ईश्वर पूजन): worship of the Lord, the cultivation of devotion through
daily worship and meditation, the return to the source;
6.Siddhanta
shravana(सिद्धान्त श्रवण): scriptural listening,
studying the teachings and listening to the wise of one's lineage;
7.Mati(मति):
cognition, developing a spiritual will and intellect with the guru's guidance;
8.Vrata(व्रत):
sacred vows, fulfilling religious vows, rules and observances faithfully;
9.Japa(जप):
recitation, chanting mantras daily;
10.Tapas(तप) :
the endurance of the opposites; hunger and thirst, heat and cold, standing and
sitting etc.
"In no country, I believe, has the theory of revelation been so minutely elaborated as in India. The name for revelation in Sanskrit is Sruti, which means hearing; and this title distinguished the Vedic hymns and, at a later time, the Brahmanas also, from all other works, which however sacred and authoritative to the Hindu mind, are admitted to have been composed by human authors. The Laws of Manu, for instance, are not revelation; they are not Sruti, but only Smriti, which means recollection of tradition. If these laws or any other work of authority can be proved on any point to be at variance with a single passage of the Veda, their authority is at once overruled. According to the orthodox views of Indian theologians, not a single line of the Veda was the work of human authors. The whole Veda is in some way or the other the work of the Deity; and even those who saw it were not supposed to be ordinary mortals, but beings raised above the level of common humanity, and less liable therefore to error in the reception of revealed truth. The views entertained by the orthodox theologians of India are far more minute and elaborate than those of the most extreme advocates of verbal inspiration in Europe. The human element, called paurusheyatva in Sanskrit, is driven out of every corner or hiding place, and as the Veda is held to have existed in the mind of the Deity before the beginning of time..."[10]
The most famous and the earliest known smṛti text is the Laws of Manu, which dates to approximately the first century AD. The Laws of Manu, or Mānavadharmaśāstra, has recently been critically edited and translated by Patrick Olivelle (2004, 2005). His introduction and translation are perhaps the best starting points for understanding the nature of Dharmaśāstra and its contents. A major piece of the Hindu law tradition is, however, not represented in the main body of this translation, but rather in its footnotes – namely, the commentarial or scholastic tradition that took texts like the Laws of Manu and explained and elaborated upon them in an unbroken tradition that extended at least up to the time of the British and in some ways beyond. Similar to other scholastic traditions of religious law, the Dharmaśāstra commentators' first concern was to explain the sacred legal texts precisely, with careful attention to word meanings, grammatical structures, and principles of legal hermeneutics.
Manusmṛti
(written also as Manusmriti or Manusmruti) (Sanskrit: मनुस्मृति), also known as Mānava-Dharmaśāstra
(Sanskrit: मानवधर्मशास्त्र),
is the most important and earliest metrical work of the Dharmaśāstra textual tradition of Hinduism.[1] Generally known in English as the
Laws of Manu, it was first translated into English in 1794 by Sir William
Jones, an English Orientalist and judge of the British Supreme Court
of Judicature in Calcutta.[2] The text presents itself as a
discourse given by Manu, the progenitor of mankind
to a group of seers, or rishis, who beseech him
to tell them the "law of all the social classes" (1.2). Manu became
the standard point of reference for all future Dharmaśāstras that followed it.[3]
According
to Hindu tradition, the Manusmriti records the words of Brahma.[4] By attributing the words to
supernatural forces, the text takes on an authoritative tone as a statement on Dharma, in opposition to previous texts in the field,
which were more scholarly.[5]
Hindu law in its current usage refers to the system of personal laws
(i.e., marriage, adoption, inheritance) applied to Hindus,
especially in India.[1] 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 1722 by Governor-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."[2] The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma). The British, however, mistook the Dharmaśāstra as codes of law and failed to recognize 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 criticized. 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.
Conclusions
Contemporary laws are in truth
created by man, and yet we cannot deny the fact that certain regulations still
find their foundation in religious precepts, as we have tried to demonstrate in
our study. Conversely, society is in a constant state of change and evolution,
given that human needs are also changing, and thus the law must keep up with
the new social realities, although quite often laws contravening morality are
elaborated. Nowadays, the role of the legislator has become more and more
difficult. However, he must find solutions to regulate social realities as well
as possible. One solution which has proved its worth throughout time is to
follow the moral and religious precepts. Creating the law may not be an act of
will alone, but also one of consciousness, referring to a very good knowledge
of the existing realities. The actual life of humans has its own moral rules
deeply rooted in the collective conscience, which must not be neglected by the
legal process.
Bibliography:
mahajan on jurisprudence and legal theory
salomond on jurisprudence
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