RELIGIOUS LEGAL SYSTEMS IN COMPARATIVE LAW (PART 5)

A Guide to Introductory Research

By Marylin Johnson Raisch

Hindu Law

Essential facts

From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while  it  informs a tradition of gods,  the literature  points to the concept of the One as interpreted by the Brahmans, these teachers also used the sutras or memorized books (like textbooks) of law or dharma (in one of its meanings; closer to “way of life”).

The Laws of Manu, a mythical author, of circa 200 B.C. shows the beginnings of the legal tradition of great variety although he focus was family, property, and succession law. This early Sanskrit literature was replaced gradually in the colonial period when the British substituted their own translations and understanding in place of what came before; Anglo-Indian law preserved family law areas (five elements of family law – marriage, child marriage, polygamy, divorce, and maintenance) as Hindu personal law and replaced the rest with colonial British law. It was a judge made law. The Hindu Code of independence became one among other personal codes and preserved much of the British innovation. Custom and local tradition could prevail over sacred texts even in the time of classical Indian law. According to the Laws of Manu, there are four sources of dharma: 1) the Vedas, 2) tradition, especially as set forth in treatises like Dharmasastras, 3) customary laws created by local or regional communities, and 4) personal preference.

The important post-colonial acts of Parliament for the Hindu Code include: the Hindu Marriage Act No. XXV of 1955, Hindu Code (1955); the Hindu Adoptions and Maintenance Act 78 of 1956, Hindu Code (1956); the Hindu Minority and Guardianship Act No. 32 of 1956, Hindu Code (1956); the Hindu Succession Act No. XXX of 1956, Hindu Code (1956); and the Hindu Succession (Amendment) Act No. XXXIX of 2005.

Basic sources and their descriptions: internet, books, articles

Internet

Internet Sacred Text Archive for the Vedas and Laws of Manu (older translations only).

Books

  • Desai,  Satyajeet A. Mulla’s Principles of Hindu Law (18th ed., 2001)
  • Menski, Werner F. Hindu Law: Beyond Tradition and Modernity. New Delhi: Oxford University Press, 2003.
  • Nagpal, Ramesh Chandra. 2d ed. Lucknow: Eastern Book Company, 2008.
  • Nanda, Ved P. and Sinha, S. Prakash.   Hindu law and legal theory. New York : New York University Press, 1996
  • Pal, Radhabinod. The history of Hindu law in the Vedic age and in post-Vedic times down to the Institutes of Manu. Calcutta: University of Calcutta,  1958.
  • Ranganath Misra, Mayne’s Treatise on Hindu Law and Usage (12th ed., 2003).
  • Venkataramen, Raghavachariar’s Hindu Law 1987.

Note: Titles in this area abound from Indian publishers over many decades and the list is selective based on citation frequency observed (not analyzed) in scholarly legal writing.

Articles

  • Garg, Sampak P. Law and Religion: the Divorce Systems of India, 6 Tulsa J. Comp. & Int’l L. 1 (1998).
  • Leubsdorf, John. Symposium: Gandhi’s Legal Ethics, 51 Rutgers L. Rev. 923 (1999).
  • Seshagiri Rao, K.L. Symposium: The Relevance of Religion to a Lawyer’s Work: An Interfaith Conference: The Theological Perspective: Practitioners of Hindu Law: Ancient and Modern, 66 Fordham L. Rev. 1185 (1998).

Buddhist Law and Legal Theory

Essential Facts

Tibet 1940-1959 is the most illustrative jurisdiction for an examination of what followers of the Buddha in an authentic Buddhist culture regard as the source of laws and rules that govern a monastically inclined community as well as householders’ obligations.

According to Rebecca French,

“There are five major sources for Tibetan legal concepts: (1) religious source material such as the Vinaya which is a canonical text outlining the rules for the monks to follow as Buddha spoke them case by case; (2) Extant official documents which include administrative law books, edicts, decision documents, treatises, government contracts, estate record books, tax records and deeds to land; (3) documents issued by non-governmental institutions such as monastic constitutions, private leases and private contract documents; (4) law codes; and (5) written and oral statements describing the legal system.” The Case of the Missing Discipline: Finding Buddhist Legal Studies 52 Buffalo L. Rev. 679, 682-684, fn 4

Dhammasattha is the Pali term for the genre of legal literature which may be examined in relationship to householders and communities or sanghas used by such communities in Laos, Myanmar (Burma) and Thailand and this literature probably dates from the first millennium.  Courts of law in colonial times used “Acts of Truth” in Sri Lanka’s Sinhala Buddhist community for proof in judicial proceedings. These were oaths taken upon consequences to be observed as between truth-tellers and others.  In Thailand, legal proceedings that replace informal “injury narratives” in tort cases (or events which may or may not result in a case) appear less effective in resolution of claims than the traditional methods under Buddhist obligations (see Engel article cited below).  These exercises in legal history and anthropology bear on modern developments in criminal law and restorative justice as well.

Basic sources and their descriptions: internet, books, articles

Internet

  • Internet Sacred Text Archive, Buddhist literature and sutras

Books

  • French, Rebecca. The Golden Yoke. The Legal Cosmology of Buddhist Tibet. Ithaca and London: Cornell University Press, 1995.
  • Huxley, Andrew, ed. Thai Law: Buddhist Law (Bangkok, 2000) (Thai legal history before 1880).
  • ————. ed. Thai Law, Buddhist Law: Essays on the Legal History of Thailand Laos and Burma. Bangkok: White Orchid Press, 1996.

Articles

  • Engel, David M. Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand, 30 Law & Soc. Inquiry 469 (2005).
  • French, Rebecca R. Essay: The Case of the Missing Discipline: Finding Buddhist Legal Studies, 52 Buffalo L. Rev. 679 (2004).
  • ————. Tenth Anniversary Symposium: New Direction: Lamas, Oracles, Channels, and the Law: Reconsidering Religion and Social Theory, 10 Yale J.L. & Human. 505 (1998).
  • ————. Symposium: Law, Religion, And Identity: A Conversation with Tibetans? Reconsidering the Relationship between Religious Beliefs and Secular Legal Discourse, 26 Law & Soc. Inquiry 95 (2001).
  • Huxley, Andrew. Symposium: Law, Religion, And Identity: Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law, 2001, 26 Law & Soc. Inquiry 113 (2001).
  • McGeachy, Hilary. The Invention of Burmese Buddhist Law: A Case Study in Legal Orientalism, 4 Australian J. Asian L. 30 (2002).
  • Samaraweera, Vijaya. An “Act of Truth” in A Sinhala Court of Law: On Truth, Lies and Judicial Proof Among the Sinhala Buddhists, 5 Cardozo J. Int’l & Comp. L. 133 (1997).
  • Sucharitkul, Sompong. Thai Law and Buddhist Law, 46 Am. J. Comp. L. 69 (1989).
  • Van Loon, Louis H. Buddhism in South Africa :  Its Past History, Present Status, and Likely Future, 2000, 14 Emory Int’l L. Rev. 1285 (2000).
  • Wijeyeratne, Roshan De Silva., Law & The Sacred: The Silent Echo of the Law Phenomenology and the Cosmology of Buddhism, 5 Law/Text/Culture 319 (2000).
  • Zan, Myint.  A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports, 35 Victoria U. Wellington L. Rev. 385 (2004).
  • ————. Of Consummation, Matrimonial Promises, Fault, and Parallel Wives: the Role of Original Texts, Interpretation, Ideology and Policy in Pre-and Post-1962 Burmese Case Law, 14 Colum. J. Asian L. 153 (2000).1.0

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.