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Volume: II, Issue I, January-June 2011


CLASSICAL LEGAL TRADITIONS: SOME HISTORIOGRAPHICAL INTERPRETATIONS







Abstract

This article is an attempt to examine various historiogrpahical interpretations on the classical Indian legal traditions. Scholarly views on classical India suggested the importance of Dharma and śāstras as the central theoretical and textual categories that create a moral self in Hinduism. Various theories on evolution of Hindu Law and Dharma suggested that it developed from macrocosmic universal order microcosmic sphere where the focus shifted from super humans to individuals. Dharma in the later stage became more associated with the duties of the individuals and self-controlled order. In the process of this evolution, textual understanding of Hindu law and Dharma developed through the sacred texts of Śruti and Smṛti genres and their commentaries and digests. These texts have traditionally formed the corpus of Hindu law, a law which was to govern every parts of a Hindu’s life. Later, more secular and personal understanding of Hindu law and Dharma developed under Muslim and British rulers in India.




Keywords Content

Introduction
India’s legal system presents the most extensive and diverse written law in the world. Law in India emerged from classical traditions rather than a construction of a public body or state and the system was considered as very near to people. The classical legal traditions of India was exclusively recorded in the Sanskrit texts and believed to have developed by the ancient sages. These traditions are widely understood as Hindu law which originated from community principles and not from a state polity. Hindu law refers to the system of personal laws (marriage, adoption and inheritance) applied to Hindus in India. Very recently, Donald Davis has given more convincing definition of Hindu law as ‘variegated grouping of local legal systems that had different rules and procedures of law but that were united by a common jurisprudence or legal theory represented by Dharmaśāstra literatures’ (Davis, 2008:225).  This definition suggests that Hindu law is a system of religious law, deeply rooted in a legal theory, i.e., the concept of Dharma. The significance of the Dharma, pointed out by Kane, as ‘the privileges, duties and obligations of a man, his standard of conduct as a member of Aryan community, as a member of one of the castes, as a person in particular stage of life’ (Kane, 1968, Vol.1:3). Dharma is generally understood as the concept, ‘comprises of rules of morality, conduct and good behavior, religious principles, legal precepts and all that supports the harmonious functioning of human relationships’(Buxbaum, 1969:235). This article is an attempt to trace the recent historiographical interpretations on the nature, evolution and sources of Hindu law and Dharma which passed through several transitions of meaning.

Indian Classical Legal Traditions
The study on the classical legal traditions of India attracted the interests of the scholars and administrators throughout the course of Indian history from ancient to colonial. Several attempts were made to study and glorify Indian traditions during the early colonial period. The Orientalists and Indologists of the British Indian administration, in order to administer the colonized territories and to become familiar with the laws and habits of the country, attempted to translate and study about Indian literatures (Thapar, 1968:318-320). But the English translations made the cardinal mistake of translating the key term of Hindu Law, Dharma, simply as ‘law’ of the Indians. The underlying fact behind these types of characterizations is that the western notions of law always were seen along with the divine commandments in the scripture, like ‘Ten commandments’ and the ‘Jewish Law’ and also codified law like Roman and canon law. According to Donald Davis, these western notions of sacred law, ‘instituted through legislative acts and institutions of a state or they may be emerged as more or less explicitly formalized standards, derived from the customs or usages of a society or particular groups therein’(Davis, 2010:5). The western scholarly conceptions in India thus assumed that Manu was the great law giver of the Hindus, an equivalent of Moses or Muhammad.  It is in this mistaken belief that later interpretations of Indian society developed. Earlier, there were also attempts from the British officials, especially James Mill, who asserted that Indian past had been that of an unchanging, static society dominated by despotic rulers (Thapar :320-322). In sharp criticisms to Mill’s depiction of Indian society, Indian historians attempted to glorify the classical nature of Indian society (Ibid: 326- 335). Within these interpretations, both from western and Indian writers, the terms like ‘classical India’ and ‘Hindu law’ arose as the basis of Indian society. Ever since the publication of Classical Law in India by Rober Lingat, the study of Indian legal traditions has attracted the interests of many scholars. Lingat has stated that, while the constraining power of legality is central to modern Western traditions, in India, it is moral authority which is at the core of the rule of law (Lingat, 1973:257). This moral authority in India is defined by customs or traditions, but in the west, it requires an administrative system of justice as a function of legality. However the Sanskrit based foundations of classical law in India and Anglo-Hindu legal interferences and developments made serious research on classical law in India irrelevant to the scholars. Nevertheless, recent scholarly attempts tried to develop the relevance and the importance of classical legal traditions and the urgent need for better understanding (Dhavan, 1992:515-540; Larson, 2001; Menski, 2003). 

The Concept of Dharma
Lingat’s writings have suggested the importance of moral authority and duty or what is known as Dharma in the classical Indian traditions. He has translated the word Dharma as ‘duty’ which ‘in effect expresses conformity with what Hindus regard as the natural order of things’ (Lingat:xii- xiii). While commenting on Dharma and Indian society, J.D.M. Derret has stated that, ‘it is peculiar to Indian society and is social cement which ties communities permanently’ (Derrett, 1970:2). In a more theoretical understanding of the term Dharma in India, Donald Davis has stated that ‘Dharma is the term most closely associated with sacred law, both as an abstract notion of righteousness or justice, and in more concrete terms as the collective name for specific rules of social conduct and ritual action laid down in revealed scripture (the Veda)’(Davis:5). Dharma is considered as the natural universal laws whose observance enables humans to be contented and happy, and to save himself from degradation and suffering. Dharma is the moral law combined with spiritual discipline that guides one's life. However, Dharma was not a positive law, civil law, private law or public law in the modern sense of the term. It was a in fact a much wider term including religion, social, moral, domestic and other regulations including legal rules as well. In classical Indian thought, deviation from the path of Dharma will result the onset of disorder, anarchy or what is called arājakatā (Roy,1999:8). This is to say that the classical Indian legal traditions  always stressed the centrality of dhrama and righteous conduct in life. 

Aspects of Dharma: Āchāra, Vyavahāra, Prāyaśchitta
Dharma in India is mainly consisted of three important aspects such as Āchāras (customs and rituals), Vyavahāras (legal procedures and dispute settlement) and Prāyaśchittas (penances). Donald Davis has given an interesting account of this tripartite scheme of Dharma as, Acara is the Dharma where things are right, where as Vyavahāras and Prāyaśchittas are Dharmas for when things are wrong (Davis:148). Among the above three aspects of Dharma, Āchāras is the most important sphere of law that governed the population in ancient India. All legal texts and interpretations associated with Dharma in India recognize the importance of Acara or the customary law. Acara is defined generally as the ideal mode of conduct, but in more sense of the term, it is defined as any mode of conduct which was practiced by the people of a given community came to be known as acara (Jhingran:1989:75). In more sense of the term, Donald Davis has stated that  ‘ācāra refers precisely to the caste, life stage, and community-bound rules that together constitute the substantive rules of law pertinent to an individual and to the groups to which he or she belongs’(Davis:149). This naturally raises a question, if Āchāra is the particular practices of people, what is the meaning of custom? Both the phrases have same importance in Dharma where the Custom can be understood as what is actually practiced by people and Āchāra refers to what ought to be practiced and has a strongly normative character much more than a habit. To indicate its normative character Donald Davis had earlier stated that ‘Acara denotes specific acts from the past that are drawn upon as authoritative models for present legal acts’(Davis:2007:51). In this way, Āchāras represents the actual practice of law where as laws found in the literature represent the theoretical practice.

Vyavahāras were the concept of dispute settlements or legal procedures. To address the western audiences, the term Vyavahāra was often blandly translated as ‘litigation’ (Kane, 1968, Vol.3:242ff). But in classical Hindu law, this does not convey the same meaning as it was understood by the western thinkers. In another translation, Vyavahāra is understood as legal procedure rather than litigation or law suits (Larivi`ere, 1989, Vo.2:3). While examining the importance of Vyavahāras in classical Hindu legal traditions, one has to understand that the concept echoes an increased need for state law and judicial intervention. But the rule of Dharma is not confined only to the psychic realm, to the effort of overcoming passion and generating appropriate psychic motivation. Rule of Dharma needs an appropriate social and institutional arrangement. The translations say, ‘legal procedure came into being at the time when Dharma was lost among men. The overseer of legal procedures is the king; he has been made the rod-bearer’ (Rocher, 2002:4). The term Vyavahāra simply increases the input of the state in the administration of legal rules. The concept of Vyavahāra is also elaborated as it consisted of four stages, plaint, answer, examination of evidence and judgment.

Prāyaśchitta is the most important aspect of Dharma which marked its uniqueness compared to the other legal codes in the world. The judgments and punishments in India is arranged in a way to provide the prisoner means to remove the sins. The culprit is supposed to perform Prāyaśchitta during the course of his imprisonment for Ātmaśudhi or self purification (Bose, 1990:81). According to Banerjee, Prāyaśchitta is meant to be used to avert the sinners fall into and allows for the sinner to be acceptable for social interaction in that he can partake in social activities within the society (Banerjee, 1999:90-92).  However, Prayaschita in ancient India had more implications as it was supposed to expiate one’s sin by making it public and thereby making one feel ashamed of it and refrain from doing it again. In more sense of the act, penance meant a real mental transformation.

Evolution of Dharma :From Macrocosmic to Microcosmic
From the above mentioned historiographical accounts of Dharma, it is certain that Dharma is nothing short of moral value and the root aspect of Indian society. In the ancient Indian society, the concept of Dharma was developed and maintained in two ways: by means of the performance of sacrifices according to Vedic injunctions and by means of individuals living according to their ritual social status and doing what they should do to maintain the optimum level of status quo in the social hierarchy. A more theoretical reference of this was developed by Lingat when he pointed out Dharma as a sacrificial act ensuring cosmic order (Lingat:3). Performing rituals and sacrifices were regarded as major means of strengthening and upholding cosmic Order as well as human order. 

Lingat’s references about Dharma and cosmic order have received attention of a variety of scholars who tried to understand the evolution of Dharma differently. Hamilton has attempted to understand this in two levels. In the first level, the emphasis is more on the conceptualization of macrocosmic order of superhuman standard which binds all individuals, rulers as well as all divine beings. The second level constitutes microcosmic aspect of Dharma which refers to the duties of the individual, in other words, it is individual Dharma or one’s own Dharma (Hamilton, 2001:65).  This is more realistic secular belief system which envisages effects from all kinds of human action, not just ritual performance. In the microcosmic dimension, human beings are visualized as surrendering their rights to the state in return for their protection (Sharma, 2005:147). Macrocosmic vedic order was ultimately regulated outside the human sphere, and at a level beyond human control but closely linked to human activity (Levinson, 2002:827). In the microcosmic level, Dharma experienced new challenges as it shifted towards socio-legal approaches rather than natural approach. The ideal now has become more self-controlled order of an individual maintained through constant, conscious subordination of personal desires.

A serious examination of these points of references has developed by Werner Menski where Dharma is considered as the point of connection between the macrocosmic superhuman holistic understanding of law and the state operated legal procedural law (Menski, 2006:  193 – 276). The important aspect of this demonstration is the development of Dharma from macrocosmic universal order in the early Vedic systems to state controlled, formal dispute processing understanding in the late and post classical periods (Ibid: 200). Menski has shown that the key to classical Hindu law centered on the models of cosmic order, macrocosmic as well as microcosmic, providing an intellectual continuum throughout the history of Hindu societies and legal systems (Menski:19).  The ideal is an ordered universe, in macrocosmic and microcosmic dimensions, a kind of ecologically sound symbiosis in which every component part plays its proper role. Menski’s definitions suggested that Hindu law and Dharma developed from the macrocosmic universal order (rta) of the vedic system to microcosmic self-controlled order (Dharma) of classical period (Ibid: 200). In the vedic system, the prominence was more on macrocosmic superhuman order rather than on the duties of the individual, which only become central in the classical period with a shift of emphasis towards Dharma.

Specialized Dharmas
As Hindu law and Dharma moved from macrocosmic rita to microcosmic, different kinds of specialized Dharma came to be recognised, such as every individual’s obligation (svadharma), women’s duty (strīdharma), the ruler’s set of duties (rājdharma), all within the all-encompassing varṇāśramadharma ideology, so that everyone’s caste status and stage of life have a bearing on Dharma. In varṇāśramadharma value and necessity are combined within the compass of each human life. The asramas are student, householder, retiree and renunciate. According to Donald Davis, this categorization was important because ‘it signals a subordination of legal procedure to a more significant understanding of the structure of Dharma in human communities that emphasizes the ritual effects, the embedded hierarchies, and the contextuality of Dharma in all times and places’ (Davis, 2010:117). This ideal is the default notion of Dharma underlying all of Dharmaśāstras.  Hindu law and Dharma developed from the macrocosmic universal order of the early classical system did not change under Islamic and British empires. Even though Hindu law was has been reformed and secularized under modern Indian law, the spirit of Hindu law are found not to be controllable by modern state law.  However modern Hindu law appears as a significant law designed to promote national spirit and development of the state.

Sources of Dharma
In the discussion of classical law in the last section, our attention was confined to the definition, aspects and evolution of Hindu law and Dharma. This section explores the sources and law books in ancient India in which these notions of Hindu law and Dharma are found. The sources of Dharma extend from Vedas to classical Sanskrit literature. This ranges from four important Vedas and their commentaries, Upanishads and Epics and more comprehensively, the Dharmaśāstras, Arthaśāstras and classical literatures comprising of prose, poetry and drama. Another important source of law in ancient India is customs. Custom is regarded as a just foundation of many laws in every system of jurisprudence. Interestingly in ancient India, the textualized legal rules of the sacred texts were used only rarely compared to the use of customs and local laws in the society. The sacred texts were consulted as direct sources of law only in colonial and modern India. This irony is because of the fact that, in ancient India, customs and social values had powerful impact on law. It is as Robert Lingat writes, ‘custom is a social phenomenon, while sastric law has a transcendent character’ (Lingat: 177). While examining the sources of ancient law in India, this section also tries to examine this irony of two different legal sources of the people.

Legal Texts in Ancient India
The sources of Hindu law and Dharma are placed in two categories: Sruti and Smriti literatures. Both sruti and smriti texts represent categories of texts that are used to establish the rule of law within the Hindu tradition. But, while sruti is considered as divine origin or that which was heard, Smriti texts are human compositions or that which was remembered. The smritis or the human compositions lay down rules, regulations, and laws governing the conduct of individuals in ancient India. In a more theoretical sense, René Guénon has given the distinction between the terms Śruti and Smṛti as ‘it is equivalent to that between pure and direct intellectual intuition on the one hand, and reflected consciousness of the rational order on the other hand, the former applying exclusively to the domain of metaphysical principles, the latter exercising itself upon objects of knowledge in the individual sphere’ (Guénon, 2001:150).  Though this definition seems complex, it points out the metaphysical and superhuman character of Śruti texts and more rational and enlightened aspect of Smṛtis. The following section will examine these texts separately.

Śruti and Smṛti Texts
Śruti texts were based on divine revelation, heard and transmitted by early sages. The revealed texts encompass the four Vedas – Ṛgveda, Yajur veda, Sāmaveda and Atharvaveda, the Brāhmaṇas (ritual treatises), the Āraṇyakas (Books of the forest), and the Upaniṣdas (philosophic elaborations on the Vedas). Three characteristics are traditionally held to distinguish Sruti texts. First, Śruti constitutes a circumscribed, bounded category of texts – that is, the vedic texts. Second, these texts, although transmitted by sages, who saw and heard them, are generally held to be eternal and uncreated, not composed by any human agent. Third, study of the Vedic literatures has focused on meticulous preservation of the purity of the Vedic mantras which are held to be intrinsically powerful and efficacious (Lamb, 2002:183). When we speak about law and justice or the code of conduct found in the sruti texts, it is interesting to start with the references of Robert Lingat, who has commented that ‘the Vedas do not even include a single positive precept which could be used directly as a rule of conduct’ (Lingat:8)  According to Donald Davis, there is no direct connection of religious and legal duties with the sruti, but ‘the connection should be imagined as one of inspiration’ and it is ‘held to be the spirit of the law in Hinduism’ (Davis, 2008:2). In other words, Śruti exists as a source for all Hindu Law without commenting any suggestions and specifics. All later legal texts agree that the Śrutis are the source of Dharma in all aspects of religious, legal, ethical and social duties. However, it is certain that in practice, Hindu acquires his knowledge of religion and law almost exclusively through smṛti texts.

Smṛti texts are educational texts that were composed after the veda which deal with a variety of topics including law, literature, rituals, astronomy and systems of philosophy. Smriti texts which remain open to change, serve mainly as interpretations of the Sruti materials that help people access and understand. However the class of Smriti texts may be defined in terms of three characteristics that are in distinct opposite to that of Sruti. First Smriti constitutes a fluid, dynamic, open-ended category of texts. Second, in contrast to Śruti, these texts are believed to been composed by personal authors, either human or devine. Third, the study of Smṛti texts involves not only rote recitation of verses, but also an understanding and interpretation of their content and meaning (Lamb:183). The texts belonged to smriti genre comprised of Dharmaśāstra texts, of which the most important is Manusmṛti, manual of statecraft and legal system known as Arthaśāstra, the epics Mahābhārata and Rāmāyaṇa and the sacred narratives of Purāṇas. It is said that Smṛti literature elaborates, interprets, and codifies Vedic thought, but, being derivative, is considered less authoritative than the Śruti. The Smṛti texts are clearly not just law books; they remain premised on holistic visions and the importance of individual self-controlled action within the context of communities and show no direct concern for state law (Menski:212). Generally the Smṛti texts can be classified into five sections: Dharmasūtras, Dharmaśāstras, Bhāṣyas or the commentaries on the first two genres, Nibandhas of Digests and the Epics and Purāṇas (Bhattacharya, 1997:371) The following sections will examine these Smṛti texts and its legal aspects in detail.

Dharmasūtras and Dharmaśāstras
The first four books in the Smṛti literature are commonly known as Dharmasūtras. According to Lingat, ‘Dharmasūtras are works on Dharma written in the Sutra form, that is to say in the form of aphorisms which condense the teachings imparted by a master and were probably intended to be learned by heart by his disciples’ (Lingat:18). It is said that, while Dharmasūtras are the ordinances written in condensed prose, the Dharamsastras are written in verse.  Interestingly, there are around thirty five Dharmasustras, but the Dharmasūtras like Gautama, Baudhayana, Vasishtha and Apastamba are considered as the major and dominant ones. Sailendra Nath Sen has pointed out that these legal texts are in agreement on many points, but sometimes differ as to laws they lay down (Sen, 1999:60). According to Ram Sharan Sharma, Dharmasūtras are the earliest texts dealing with the duties of the King and four varnas or social orders and provide laws regarding taxation and protection of property, family and person (Sharma, 1959:16). Olivelle has given more convincing aspects of Dharmasūtras as the elaborate discussion of the rules and duties of the people at different stages of life like studenthood, householdership, retirement and renunciation. (Olivelle, 1999:xxi).  The nature of Dharmasūtras is normative and this reason makes room for a scholarly debate. Some scholars argue that that these sources are unreliable and worthless for historical purposes instead to use archaeological, inscriptional, and art historical materials. However, Olivelle argues that the dismissal of normative texts is unwise and betrays the spirit of these documents (Ibid:xlii).

Dharmaśāstras are the most important texts in the Smriti literature. The exact origin of the Dharmaśāstras is not known. According to S.C.Banerjee, when Dharmsūtras were proved to be inadequate for the society, the necessity was felt for composing larger works and the verse instead of terse aphorisms was chosen as the convenient medium (Banerjee, 1999:4). Literally, there are hundreds of Dharamasastra texts and many more commentaries and digests. But the smritis like Manu, Yājañvalkya, Bṛhaspati, Nārada and Kātyāyana are the most popular Dharmaśāstra texts. Generally, the Dharmaśāstra texts instruct the people of their conduct at different stages of life and their duties according to their varnas. According to Charles Drekmeier, these texts expand and systematize the social and religious regulations of the orthodox Brahminic culture and are accepted as authentic guides to law, custom and duty (Drekmeier, 1962: 227).

Manusmṛti and Yājñavalkyasmṛti
Manusmṛti also  known as the MānavaDharmaśāstras is the most well known and was probably codified around the first century CE by a sage named Manu. However the actual authorship of Manusmṛti is in debate as Kane’s History of Dharmaśāstras says that ‘Manu is probably the father of the human race and a semi divine sage who received the laws and regulations from God’. (Kane, 307, vol.1). Scholars are also pointing out the possibility of the composition of Manusmṛti in different stages because of the contradictory statements found in the chapters of the text. For example, while Manusmṛti allows Brhāmaṇas to take a Śudra wife in one chapter, it forbids the act in another chapter. In the similar lines, Manusmṛti upholds the social, legal and moral codes concerning women in one occasion, but in another occasion, he attacked their freedom and suggested a husband deifying ideology for the women. These contradictory statements in Manusmṛti indicate that this work could have been written by more than one hand. Despite of all these critical evaluations on Manusmṛti, this text is has an extra ordinary significance as a socio-religious work for the Hindus in all times. It is the most important treatise on society, religion and statecraft. It is the first work which codified the law ancient India and for the first time created a political theory of a social order, government, law and justice (Manoj, 2004:30). An array of critical evaluation have been made by the scholars on Manusmṛti. While the British scholar Max Muller and legal scholar Kane appreciated Manu’s philosophy of social order, Ambedkar condemned Manusmṛti as a charter of bondage for untouchables in India. According to Ambedkar, Manusmṛti perpetuated the social, economic, religious and political slavery of the untouchables (Mohanty, 1997:27).  

Yājñavalkyasmṛti is the second most important Dharmaśāstra text composed by Yājñavalkya himself between first century B.C and third century A.D. Yājñavalkyasmṛti is the only text in the Dharmaśāstra which is found in more organized and systematic format through its division of Āchāras, Vyavahāras and Prāyaśchittas (Banerjee:35). There are numerous verses in Yajnavalkya that show remarkable agreement with Manusmriti. But there are several points in which Yajnavalkya differs from Manu and shows in general more advanced state of thought than Manu. For example, Yājñavalkya treats the women as full legal persona, and it follows her to inherit property. Yajnavalkya favoured gambling under the auspices of the Government for boosting revenue as against Manu opposing it (Varghese, 2008:121). Because of its clear statement of principles, its breadth vision and its comparative impartiality of the claims of both sexes and the different varnas, Yajnavalkya smriti has become the guiding work for the whole of India.

There are other later Smritis which are worth to be mentioned here such as Nāradasmṛti Bṛhaspatismṛti, Visṇusmṛti and Kātyāyanasmṛti These texts have either focused on judicial procedures (Vyavahāras) or paid full tribute to Manusmṛti. While we talk about sacred texts bearing an influence on law in Hindu tradition, it is also very important to note about Commentaries and Digests, the scholastic tradition that interpreted and elaborated on the Smṛti texts. These texts are generally found as hypothetical examples, theoretical disquisitions and a variety of opinions on Dharmaśāstra texts. Donald Davis is of the view that ‘these works provide an essential interpretative for the Smriti texts and in many cases offer original insights on old problems’ (Davis, 2008:4). Similarly, the Mahabharata contains many matters that are in the Dharma Sastras, so one could think that it is a possibility that the epics are a way of teaching the Hindus on how to live their life in an easily understandable way through the narrative. A more secular manifestation of Indian legal thinking can be found in Kautilya’s Arhtasastra. Kautilya gives entirely new treatment of law as he deals with the rights, duties and responsibilities of the King in the administration of the state including judicial administration. Arthasastra also regards Dharma as the foundation stone of the state as well as in the relations between the states (Sharma, 1996:9).

By way of Conclusion: From Value-based to Statute-based Legal System
The above discussed texts in classical Indian traditions deal with the dharmic way of life. These ancient concerns of Hindu law and Dharma became part of the official law of the state during the Muslim rule in India. Muslim rulers’ approach here was more secular towards their subjects of different faiths, letting them continue with their own community concerns. What we have to note here is, as Hooker has pointed out Hindu law and Dharma became more personalized and secular (Hooker, 1975). This personalized agenda of Muslim rulers in dealing with Hindu law and Dharma continued in the British period as Lord Warren Hastings has initiated in the Legal Regulations of 1772 that, ‘that in all suits regarding inheritance, marriage, caste and other religious issues, the laws of Sastras with respect to Hindus and Laws of Koran with respect to Muslims shall be invariably adhered to’ (Firminger, 2001 (1812):18). Derret calls this concerns of the British in India as the ‘creation of Anglo – Hindu law’ (Derrett, 1968: 542) and Rudolph calls it as ‘cosmopolitan, high culture law’ (Rudolph, 1967).  In a more theoretical perspective, this co-existence of the state law and concurrent personal laws of different communities, suggests a structured legal pluralism where the meeting of western legal system and Indian legal traditions took place. However, when the British colonial state took steps to introduce Indian Penal Code in 1860’s, many areas of law in the Indian classical traditions had been taken out and the Hindu law had been pushed into an enclave, the ‘realm of the Hindu personal law’ (Menski:243). While the Hindu laws previously applied to a variety of topics, now became confined "to the personal law matters (family law inheritance, succession, caste, religious endowments (Galanter, 1989:18).  By the end of British colonialism in India, as Bernard Cohn has pointed out, ‘authoritative decisions in English had completely transformed 'Hindu law' into a form of English case law. What had started with Warren Hastings as a search for the 'ancient Indian constitution" ended up with what they had so much wanted to avoid--with English law as the law of India’ (Cohn,1997:75). This British constructed legal sphere continued even in the post-colonial period. Apart from the considerations of Gandhian village panchayat model, there was no concerted effort to institute an indigenous law based on the Dharmaśāstras in the independent India. At this juncture, it can be argued that the focus was more shifting towards a statute-based legal system compared to the value-based classical Indian legal traditions. 

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