Excerpt
i
Dedication
To My Beloved Mother
The One, who bore me, nourished me and inspired me to be what I am.
ii
iii
Acknowledgement
The idea of working on Indian approach to Natural Law was conceived in my mind
two years back in the Jurisprudence class of Dr. Sai Ramani Garimella. Her
insightful aspiration to look at Natural Law tradition from oriental perspective
pushed me to embark on this venture. Even after finalizing the topic she helped me in
every thick and thin moment as my supervisor from providing some useful literature
to making worthy suggestions. Indeed I am indebted to her for uplifting me to carry
out this scholarly work.
Secondly I owe a debt of gratitude for all the faculty members in Faculty of Legal
Studies at South Asian University for assisting me to accomplish this task and also
for being best educators for past two years. I also like to acknowledge Mr. Rahul
Srivastava (PhD candidate in Faculty of Legal Studies, South Asian University) for
giving me a large number of articles from his E library and they became my
operational tools for last few months. I thank Miss. Richa Sharma (PhD candidate in
Center for Philosophy at Jawaharlal Nehru University, New Delhi ) for her valuable
comments on my initial process of choosing the topic and I should especially
mention Prof. Donald Davis Jr who teaches Hindu Law and Religion at Department
of South Asian Studies at Texas University, Austin for being so benevolent by
providing his latest journal papers on Dharma when I could not find them anywhere.
In addition to that I am obliged to the library staffs of Indian Law Institute, New
Delhi and Nehru Memorial Museum Library for immensely helping me to find
relevant literature without a delay.
This acknowledgement will be incomplete without acknowledging my dear student
fraternity of Faculty of Legal Studies, SAU for their genuine camaraderie and
affection. Especially I am morally obliged to thank my two roommates Mr.Prashant
Sing Rathore and Basir Ahmad for being so gentle in managing our room while I was
dwelling in medieval legal philosophy. I also like to thank my Sri Lankan friend Mr.
Shilamega Ellepola for feeding me authentic Sri Lankan food everyday which
succored me to keep my body strong during the time I was occupied in this hectic
business.
iv
At last not least, I owe my profound debt for my fiancée in Sri Lanka Miss. Kasuni
Ranasinghe for being patient and tolerant towards my aggressive nature till I
completed this task.
Punsara Aravinda Amarasinghe
08/05/2017
New Delhi.
v
Abstract
This study intends to be a comparative analysis between two legal tradition which
grew up in two different civilizations. The concept of Dharma in Medieval Hindu
legal philosophy and Thomas Aquinas' Natural Law theory have been taken into the
comparison in this research as two great legal traditions which grew in the same
period of middle age. This research has examined the salient features of natural law
ascribed by concept of Dharma in medieval Hindu jurisprudence and how natural
law was perceived by Aquinas in his legal philosophy which was aptly described in
his master work " Summa Theologiae". Apart from mere analyzing facts this study
further examines the affinities that existed between concept of Dharma and Aquinas'
theory of Natural Law.
Key Words: Natural Law, Middle Age, Dharma, Aquinas
vi
Table of Contents
Chapter 1: Introduction...1
1.1 Scope of Study...5
1.2 Literature Review...5
1.3 Research Methodology...11
1.4 Research Hypothesis...12
1.5 Tentative Chapterisation...12
Chapter 2: Mystery of Natural Law...13
2.1 Origin of Natural Law...14
2.2 Pre Christian Understanding of Natural Law...16
2.3 Christianity and Natural Law...18
2.4 Development of Natural Law in Post Medieval Period...20
2.5 Revival of Natural Law and Neo Thomism...21
2.6 Conclusion...22
Chapter 3: Thomistic Notion of Natural Law...23
3.1 World of Aquinas...23
3.2 Summa Theologiae and Aquinas' Moral Philosophy...24
3.3 Thomistic Legal Understanding as Continuation of Old Testament Law.26
3.4 Types of Laws...28
3.5 Ideas on Obedience of Aquinas...30
vii
Chapter 4: Dharma in Medieval Hindu Jurisprudence as a Norm...32
4.1 Understanding Medieval Hindu Jurisprudence...32
4.2 Dharmashstra in Medieval Period...34
4.3 Dharma and Achara...37
Chapter 5: Conclusion...42
5.1 Concept of Atmatusti with Thomistic Idea of Conscience...42
5.2 Idea of Obedience and Divinity in Both Concepts...50
5.3 Concluding Remarks...53
Bibliography...59
1
CHAPTER 1
INTRODUCTION
The relevance of this research topic has been rooted in the lack of scholarship that
appreciates the comparison between Hindu tradition of Dharma along with the
Theistic based Christian teachings on Natural Law. Though there have been ample
amount of literature based on Thomas Aquinas' doctrine of Natural Law in Western
Jurisprudence, the scope for oriental approach towards natural legal philosophy has
been forsaken and unnoticed. Till the dawn of 19
th
Century Orient was depicted as a
scum in European psyche and their attitude towards the intellectual traditions in the
orient was quite inferior. This occidental prejudice has been aptly described by
Frantz Fanon
1
in his "Wretched on the Earth "as "The White Man desires the world
and wants it for himself predestined to rule the world".
2
As a matter of fact the
Western uptake on Indian classical legal tradition was limited till British colonial
administrators like Henry Maine
3
and William Jones
4
began to explore the depth of
Indian legal tradition after translating Manusmruthi and some Dharma Shastra texts
into English.
1
Frantz Fanon was an Algerian freedom fighter and critical theorist whose ideas completely opposed
to the existing Eurocentric views and his work "The Wretched of the Earth " became a widely
acclaimed work on the impacts of psychological and social influence by colonialism in the colonies.
2
Frantz Fanon, The Wretched of the Earth, Penguin Books, 2001 (reprint ), p 28.
3
Maine was professor of civil law at the University of Cambridge (184754), Maine also began
lecturing on Roman law at the Inns of Court, London. These lectures became the basis of his Ancient
Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861),
which influenced both political theory and anthropology, the latter primarily because of Maine's
controversial views on primitive law. To trace and define his concepts, he drew on Roman law,
western and eastern European legal systems, Indian law.
4
Sir William Jones (17461794) was an English philologist, Orientalist, and jurist. While serving as a
judge of the high court at Calcutta, he became a student of ancient India and founded the Asiatic
Society of Bengal. He is best known for his famous proposition that many languages sprang from a
common source. His scholarship helped to generate widespread interest in Eastern history, language
and culture, and it led to new directions in linguistic research.
2
However the utter significance of this research topic springs from the nature of its
study scope. Whereas this research work is intended to compare and evaluate the
concept of "Dharma" in the medieval legal tradition in India with what Thomas
Aquinas proposed in Summa Theologiae on Natural Law. Such a comparison is
essential to trace the development of legal reasoning in medieval India and moreover
this comparative study will discuss how both the traditions constructed the notion on
natural law in jurisprudence under the different philosophical upbringings. Mainly
the one of important objectives of this research is to highlight the legal acumen in
this part of the word in the middle age when Aquinas was developing his doctrine on
Natural Law on the basis of Christian traditions. This research will further illustrate
how both legal traditions grew parallel to each other in complete different arenas.
The "sui generis "nature laid down by each legal tradition in respective geo-political
territory was one of other important causes to discuss and contrast the concept of
" Dharma" in medieval India with Thomistic teaching on Natural Law. For instance
the issue on Natural Law which was raised by Aquinas in the 94
th
question of Summa
Thologiae made an upheaval as a narrative in European renaissance during 15th, 16
th
centuries at the intellectual movements led by Bologna and Paris universities. Even a
pioneer of modern international law Hugo Grotius was heavily influenced by
Aquinas and it is evident that his understanding of peace among the nations was
inspired by the idea of Natural Law as a universal reality. On the other hand the
usage of natural law in medieval Indian legal tradition was based upon the religious
readings of Dharma under its scriptural context.
5
Though the present study focuses
on the mediaeval applicability of Dharma , the reference made in classical Indian
texts on Dharma cannot be neglected. The extracts from ancient scriptures verify the
rigor of " Dharma" as an integral part of human life. In Vedic lexicon the word has
been used 63 times in Rigveda and it is appeared 13 times in Arthavaveda, it is found
22 cantos in Yajurveda and it was used in nine passages in Upanishads. In Indian
tradition Dharma always had been a metaphysical reality which always went beyond
the mundane scope. Indeed its intrinsic complicated nature itself has beautified this
very concept and as western understanding of natural law was nourished by the
doctrines of Greek philosophy to Christian monotheism, Dhrama has been imbued
with the annals of Hinduism. Its roots date back to Vedic period and the reader
5
In Hinduism the earliest attempt on Dharma linked with Rta. As an example there is a verse in Veda
which shows how Rta and Dharma are linked O Indra, lead us on the path over all evils-RV 10.133.6
3
should not expect one line definition or a stable interpretation on what exactly
Dharma is. The enigma of this concept lies in the different understandings and
different applications of throughout the history. The writer of "Classical Law of
India" Robert Lingat states " Dharma is a concept difficult to define because it
disowns or transcends-distinctions that seem essential to us, and because it is based
upon beliefs that are as strange to us as they are familiar to the Hindus. The world
itself is used in several widely different senses, even in a work with one consistent
style like the code of Manu. The most general sense is provided by its roots, dhr,
which signifies the action of maintaining, sustaining. Dharma is what is firm and
durable, what sustains and maintains what hinders fainting and falling".
6
When Aquinas' notion on natural law was entirely constructed on the foundation of
Christian devotion towards God and his command, the manifestation of Dharma in
Indian legal tradition was not solely molded on one divine teaching. According to
Sarvapillai Radhakrishnan, the term "Dharma" is one of complex significance and it
stands for all those ideals and purposes, influences and institutions that shape the
character of a man both as an individual and as a member of the society.
7
In fact
Dharma was described by Radhakrishnan as a universal realty and it does not
necessarily emphasize on any religious belief or form of worship. Now the question
arises how such a broader concept can be compared and contrast. In that context it is
important to state this research fundamentally focuses on how the application of
Dharma came into the existence of living law whereas Thomistic notion of natural
law had aspired human made laws to be coherent with it. Such a comparative study
will enlighten the reader about the how state abided by law as a unitary norm and
furthermore it discusses its metaphysical nature. Perhaps a question can raise
regarding the choice of period in Indian legal tradition from Medieval period, but the
main reasons that compelled the author to confine this study was to trace the legal
tradition of both schools during same period in history. On the other hand late
medieval period of India was a chaotic epoch in the history as a result of Islamic
invasions and many other internal factors. Moreover an emergence of new
philosophic movements like "Bhakthi" movements left a profound influence over the
legal interpretations too. In fact this research intends to inquire such changes and
6
Robert Lingat, The Classical Law of India, Mushiram Publishers, 1993 Indian Edition, P.3.
7
Sarvapillai Radhakrishnan, "The Hindu Dharma", International of Journal of Ethics,University of
Chicago, Vol.33, No.1, 1922, p8.
4
their influence over the concept of Dharma. Moreover in the same period Europe
saw a greater upheaval in its caliber of knowledge. As it was well stated by Historian
Arnold Tonybe, though one part of Europe was in a dark slumber of ignorance
knowledge that came from Romans finally stopped in the Christian monasteries by
creating a wider opportunity for minks in denominations like Franciscan order,
Benedictines to utilize those ancient wisdom for their knowledge.
8
Indeed the
magnum opus written by Thomas Aquinas " Summa Theologiae"
9
was mainly
written on the contentions developed by Aristotle in Greek era. But the diversity of
Aquinas was the methodology he adopted to assimilate those heathen philosophical
values into the western learning were duly defended by Christianization of the
knowledge. In the legal context the concept of natural law was not a sole invention of
Aquinas. In fact the routines of natural law have a longer history and in Aristotelian
thought and Platonic ideology in Greek philosophy the seeds of natural law were
well planted. However it was in the middle age that Aquinas established his solid
position of natural legal conception along with Christianity as a need to reorganize
the chaotic state organization in Medieval Europe. The divine rights of the kings
were a concept that was dominant in European practice. But Aquinas transformed
such a tendency of feudal political thought into volition on divine responsibility of
kings. As it was stated earlier he was deeply imbued with Aristotelian thought and he
was the first to introduce Aristolte's "Politics" into medieval legal political structure.
It seems that Aquinas was the first thinker in Medieval Europe to think about
philosophy lying behind the law. In discourse on natural law Aquinas began to
discuss about the fundamental nature of law, what it is and what is necessary to make
it a law. In his inquiry of natural law Aquinas understood the importance of human
reason in the role of natural law. Especially his staunch perception of the validity of
natural law affirmed that man's every action in human made law should be a rational
participation of eternal law which is only attributed to God. The rational participation
8
Arnold Joseph Toynbee, A Study of History, Vintage Books, 2003 ( 6th Reprint ), p.189. Arnold
Toynbee was a historian and International whose series of works on study of history have aptly shown
how those Roman stoic values and classical Greek philosophical upbringings remained paramount in
shaping the European intellectual reformation. His description on monastic tradition in European
civilization as a beacon of learning gives a vivid picture.
9
Summa Theologiae was regarded as the lifelong work of Aquinas written between 1265 and 1274
A.D. The meaning of Summa Theologiae in Latin is the highest point of theology. Indeed the work
has been placed in three main parts that mainly focus on the essential aspects of Christian theology
and it's second part deals with natural law theory.
5
which is based on reason was what Aquinas considered as natural law. Indeed the
relevance of taking Aquinas' ideology of natural law in middle age to compare with
the Dharma in Hindu legal tradition in the same time zone becomes effective under
the given context.
1.1 Study Scope
It is a fact beyond dispute the enormity of studying and contrasting two greater legal
traditions like Thomistic notion of natural law and Medieval Hindu jurisprudential
idea is absolutely a futile task in a research endeavor like this which has limited
research scope. However the study scope of this research mainly confined to the
medieval period of both the legal traditions and it does not deal with the entire saga
of Hindu concept "Dharma" since the ancient Vedic period in order to uphold the
legal academic nature of this study. In addition to that the deep theological routines
of Thomistic understanding of natural law or how it was fully carved by Western
Christian values have not been addressed in this study. Study scope of this research
mainly intends to compare the development and understanding of natural law by both
Thomistic philosophy and Hindu jurists as concept of Dharma in a same time period.
The main objective of conducting this study is to demonstrate the fact that there was
a greater legal legacy in Medieval India under concept of Dharma which upheld the
obedience of the subjects to law and order parallel to natural legal understanding of
Aquinas in Medieval Europe. Apart from it this study further examines the question
of Obedience in Summa Theologiae and how Dharma in medieval India established
the authority and gained people's obedience to the implementation of law in practice.
1.2 Literature Review
There has been ample literature specifically written on the both Thomas Aquinas'
natural law perspective and how Hindu Jurisprudence perceived the idea of Dharma
in their juridical thoughts. But the most hazardous task is to look at the vast number
of literature in a comparative perspective. Since there is a serious lack of availability
of literature that have looked at the Aquinas' Natural Law and Dharma in a mode of
6
comparison, the author has relied on separate scholarly works that have dealt with
both disciplines.
In order to understand the scope of Dharma in Hindu Jurisprudence the book written
by Robert Lingat ( 1965 ) " The Classical Law of India "
10
is an important source for
the researchers to get a better understanding of the Hindu jurisprudential structure
and its development. Being a French legal scholar who stayed in India for a short
period Lingat has done a vivid research on examining the nature of Dharma and its
application in Hindu society. He begins with a survey of the literature relating to
Dharma in order to emphasize its extent and influence on Indian thought. In the very
first chapter of his work Lingat's lucid analysis on Dharma in Indian jurisprudence
gives a vivid picture to the reader. Another unique feature of this work is that this
work has discussed the question of interpretation of Dhrama in dharmashastra and
the way those interpretation entered the practice. One of lacunas of this work is
author has not given adequate attention with regard to the understanding "Dharma"
in terms of western legal perspective of natural law. Instead of that he mainly deals
with the technical aspect of Hindu laws in practice.
Rama Jois's (1996) work is another interesting work that has left a comprehensive
analysis on ancient idea of Dharma as a universal form. It is quite interesting fact to
not author has attempted to underline the divine nature of Dharma which had
penetrated human heart since the days of yore in India. Especially Rama Jois has
picked useful illustrations from the ancient Hindu legal texts like " Manus Smrithi"
and depicts a clear picture on Dharma as a norm in Hindu legal wisdom. Rama Jois'
work narrates the genesis of Raja Dharma, Raja Neethi and other Hindu
metaphysical elements, but Rama Jois' touch on elucidating their relevance in
ancient Indian judicial structure seems to be a little bit of a disappointing one and
author seems to have not compared Dharma along with natural legal philosophy. But
in its overall structure Rama Jois' literature is a remarkable in presenting the
conceptual analysis of Dharma to its reader.
11
10
Robert Lingat, Classical Law of India, Mushiram Publishers, 1990.
11
Rama Jois, Dharma: The Global Ethic, Universal Books, 1996.
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- Punsara Amarasinghe (Author), 2017, The Concept of Dharma in Medieval Hindu Legal Traditions with Thomas Aquinas’ Natural Law Philosophy, Munich, GRIN Verlag, https://www.grin.com/document/375863
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