Between Jerusalem and Benares: Comparative Studies in Judaism and Hinduism

9 From Dharma to Law

9 From Dharma to Law Bernard S. Jackson The few pages that follow seek merely to highlight what the comparatist may regard as the most significant aspects of Robert Lingat's theory] and draw attention to related discussion in other areas of legal history. Though the present writer is strongly disposed to favour Lingat's approach and its equivalents elsewhere, the arguments here presented are intended primarily to raise questions rather than provide answers. For it is indeed the function of the comparative approach to ask questions and suggest hypotheses; answers and proof can only be provided by internal evidence. From Lingat's account many parallels with other ancient systems of law might be noted2 but by far the most important are those which relate to the principal theme of the book, the development of the classical texts "from dharma to law."3 Study of the history of the sources of law has been affected far more than is usually realized by the commoner models of modern legal systems. Awareness of the outstanding features of the common law and civil law traditions as they have developed predisposes us to look for three principal types of legal source: statute, precedent, and doctrine. Ancient phenomena corresponding to these modern institutions are certainly to be found. But once discovered they are all too readily invested with the particular attributes of their modern counterparts . Moreover, such identifications sometimes suggest inappropriate 181 182 Bernard S. Jackson lines for further investigation. Much effort has been misapplied in seeking to determine such questions as whether ancient "codes" are restatements of custom or reform' (i.e., consolidating or reforming statutes ); whether they are comprehensive or merely collections of "difficult cases"o (i.e., codes or miscellaneous provisions acts); whether they are "official" or "private" (i.e., statute or doctrine)." An extreme case of erroneous identification with a modern model was committed by the British judiciary in India. Confronted by the immense variety of Indian local custom they seized upon the famous dharmasastras (such as the "Code" of Manu), which had developed a recognizably juridical style,? and transformed them into statutes. Lacking a customary law which conformed to the unity of the common law they adopted the principal English alternative, statute. The error did not go unnoticed. As Sir Henry Maine wrote in 1861: Their (namely, "the religious oligarchies of Asia") complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo Code, called the Laws of Manu, which is certainly a Brahmin compilation, undoubtedly enshrines many genuine observances of the Hindoo race, but the opinion of the best contemporary orientalists is that it does not, as a whole, represent a set of rules ever actually administered in Hindostan. It is, in great part,. an ideal picture of that which, in the view of the Brahmins, ought to be the law.R This view is decisively reaffirmed by Lingat. The history of research into the legal collections of the ancient Near East, and especially the Laws of Hammurabi, has followed a similar course. In this case the laws are known to have been issued by royal authority and their influence is dramatically illustrated by the discovery of copies which were written as long as a millennium after the original promulgation. In modern systems virtually the only norms issued by sovereign authority and widely copied are statutes or subordinate legislation;9 hence the identification of the Laws of Hammurabi as such was not unnatural. A modern statute is authoritative both in substance and in form; not only its rules but also its particular verbal formulation of those rules are binding. The practice documents of ancient Babylonia do indicate a degree of conformity to the rules laid down in the laws and from this the substantive authority of the document is often inferred. From Dharma to Law 183 But in no court record yet discovered is there any clear citation or quotation of the laws.III Of course these records do not preserve a complete account of the proceedings. Though the arguments of the parties are often briefly recorded the tablets are not verbatim transcripts. Nevertheless , Driver and Miles correctly conclude "nothing like the English verbal interpretation of statute law was practiced by the Babylonian judges ... neither judges nor private...