Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts.

Hindu tradition, in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex. and emerged after the colonial rule arrived in Indian subcontinent, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law" (Sharia).

The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises (śāstra) on Dharma. Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such. Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law. Legal scholars state that this divided the Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism – the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations". and includes duties, rights, laws, conduct, virtues and ‘'right way of living'’. The concept of Dharma includes Hindu law.

In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya (Sanskrit: सत्यं, truth),

In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama (Sanskrit: नियम, rule), Nyaya (न्याय, justice), Yuktata (युक्तता, justice), Samya (साम्य, equality and impartiality in law), Vidhi (विधि, precept or rule), Vyavastha (व्यवस्था, regulation), Sambhasa (सम्भाषा, contract or mutual engagement), Prasamvida-patra (प्रसंविदा-पत्र, written contract), Vivadayati (विवादयति, litigate or dispute), Adhivakta (अधिवक्ता, lawyer), Nyayavadi (न्यायवादी, male lawyer), Nyayavadini (न्यायवादिनी, female lawyer), Nyayadata (न्यायदाता, judge), Danda (दण्ड, punishment, penalty or fine), among others.

Classical Hindu law

John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence. Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India. However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher. They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society. Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India. However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice". A few scholars have suggested that the Dharma-related Smritis such as Manusmriti, Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found.

In South India, temples were intimately involved in the administration of law.

Sources of Dharma

Śruti have been considered as the authority in the Hindu Dharma. The Smritis, such as Manusmriti, Naradasmriti and Parashara Smriti, contribute to the exposition of the Hindu Dharma but are considered less authoritative than Śrutis (the Vedic corpus that includes early Upanishads). The root texts of ancient Hindu jurisprudence and law are the Dharma-sūtras. These express that the Shruti, Smriti and Achara are sources of jurisprudence and law.

The Smritis, such as Manusmriti, Naradasmriti, Yajnavalkya Smrti and Parashara Smriti, expanded this definition, as follows,

Bilimoria states the role of Shruti in Hindu Dharma has been inspired by "the belief in a higher natural cosmic order (Rta succeeded later by the concept Dharma) that regulates the universe and provides the basis for its growth, flourishing and sustenance – be that of the gods, human beings, animals and eco-formations".

Levinson states that the role of Shruti and Smriti in Hindu law is as a source of guidance, and its tradition cultivates the principle that "the facts and circumstances of any particular case determine what is good or bad".

Cited texts

Unlike the Bible & Quran, the Vedas don't discuss about societal matters directly. Classical Hindu law is derived from the following sources

Dharmasutra

As a part of the Kalpa texts within the Vedanga corpus of literature, they deal with personal conduct (alongside the Grihya Sutras) & social regulations in accordance to the principles of the Vedas. The texts are

{| class="wikitable" style="text-align:left"

|-

! Veda!! Dharmasutra

|-

| Rigveda || Vasistha Dharmasutra

|-

| Samaveda || Gautama Dharmasutra

|-

| Krishna Yajurveda || Apastambha Dharmasutra Harita Dharmasutra Hiranyakesi Dharmasutra Vaikhanasa Dharmasutra Vishnu Dharmasutra

|-

| Sukla Yajurveda || Sankha-Likhita Dharmasutra

|-

| Atharvaveda || Aushanasa Dharmasutra

|}

Dharmashastra

These texts, whose authorships are traditionally attributed to the Vedic sages, elaborate the topics discussed in the dharmasutras.

Dharmashastras available in printed format are

  1. Angirasa smriti
  2. Atri smriti
  3. Apastambha smriti
  4. Aushanasa smriti
  5. Brihaspati smriti
  6. Brihat Parashara smriti
  7. Daksha smriti
  8. Devala smriti
  9. Gobhila smriti
  10. Gautama smriti
  11. Harita smriti
  12. Katyayana smriti
  13. Kashyapa smriti
  14. Laghu Atri smriti
  15. Laghu Harita smriti
  16. Laghu Vishnu smriti
  17. Laghu Shankha smriti
  18. Likhita smriti
  19. Manu smriti
  20. Narada smriti
  21. Parashara smriti
  22. Prajapati smriti
  23. Samvarta smriti
  24. Shankha smriti
  25. Shankha-Likhita smriti
  26. Shatatapa smriti
  27. Vasistha smriti
  28. Vyasa smriti
  29. Vishnu smriti
  30. Vriddha Atreya smriti
  31. Yajnavalkya smriti
  32. Yama smriti

Dharmashastras whose existence is known through citations by commentators & nibandhakaras but didn't survive in complete manuscript form till now are

  1. Budha smriti
  2. Chhagaleya smriti
  3. Cyavana smriti
  4. Jamadagni smriti
  5. Jabala smriti
  6. Marichi smriti
  7. Prachetas smriti
  8. Pitamaha smriti
  9. Paithinasi smriti
  10. Rishyasringa smriti
  11. Sumantu smriti
  12. Shaunaka smriti
  13. Vishwamitra smriti
Commentaries

Commentaries on the above-mentioned texts composed by erudite scholars discuss on their practical applications & execution of the statements in the dharmasutras & dharmashastras.

Nibandhas

Digests & compendiums composed by various scholars attempt to resolve difference of opinion on similar topics among the various texts & authors.

Regional variations

In the Collector of Madhura Vs Mottoo Ramalinga Sathupathy case (1869), the Privy Council observed that there was no uniformity in the observance of Hindu law (as described in the dharmashastras, commentaries & digests composed by various Hindu scholars) by Hindus throughout the realm. The court observed that

  • On the basis of adherence to property law, Hindus are divided into 2 schools –
  1. the Dayabhaga school, observed by Hindus in Bengal & Assam,
  2. the Mitakshara school observed by all other Hindu communities of the Indian subcontinent.
  • The Mitakshara school is subdivided into
  1. The Benaras school which cites the Viramitrodaya of Mitra Mishra, Nirnayasindhu & Vivadatandava of , Dattakamimasa of Nanda Pandita, Subodhini & Balambhatti commentaries of the Mitakshara as authority and is observed by Hindus of United Provinces, Central Provinces & Odisha.
  2. The Mithila school which cites Vivadachintamani of Vachaspati Mishra, Vivadaratnakara of Chandeshvara Thakura, Vivadachandra of Misaru Mishra, Smrityarthasara of Sridhara & Madanaparijata of Vishveshvara Bhatta as authority & is observed by Hindus of Mithila
  3. The Dravida school which cites Smritichandrika of Devanna Bhatta, Parasharamadhaviya (Madhavacharya's commentary on Parashara smriti), Sarasvativilasa of Prataparudra Deva, Viramitrodaya, Vyavaharanirnaya of Varadaraja, Dattakachandrika of Devanna Bhatta, Nirnayasindhu, Vivadatandava, Dayavibhaga of Kamalakara Bhatta & Keshavavaijayanti (Nanda Pandita's commentary on the Vishnu smriti) as authority & is observed by Hindus of Madras Presidency.
  4. The Maratha School which cites Vyavaharamayukha of Nilakantha Bhatta, Smritikaustubha of Ananta Deva (grandson of Eknath), Viramitrodaya, Nirnayasindhu, Vivadatandava & Parasharamadhaviya as authority and is observed by Hindus of Bombay Presidency.
  5. The Punjab school which cites Nirnayasindhu, Viramitrodaya & local customs (later documented as Riwaz-i-Aam) as authority and is observed by Hindus of Punjab. Kashmiri Hindus additionally cite the Apararkachandrika (commentary on the Yajnavalkya smriti by Aparaditya II, Silahara king of North Konkan)
  • The Dayabhaga school cites Viramitrodaya & Dattakachandrika as authority. Bengali Hindus additionally cite the Smrititattva of Raghunandana & works of Bengali pandits like Halayudha, Bhavadeva Bhatta & Shulapani while Assamese Hindus cite the works of Pitambara Siddhantavagisha & other pandits from the Kamarupa like Damodara Mishra & Nilambaracharya

The Mitakshara school significantly differs from the Dayabhaga school in the following ways

  • The Mitakshara doesn't allows partition of ancestral property among coparceners, while the Dayabhaga does.
  • The Mitakshara completely bars women & their descendants from inheriting ancestral property (similar to Salic law), however the Dayabhaga allows childless widows to inherit property of their sonless fathers & childless husbands.
  • According to Mitakshara, right of inheritance is vested by birth, hence the son is a coparcener to ancestral property from the day of his birth. However, in Dayabhaga, right of inheritance is vested by the right to offer pinda at sraddha ceremony, hence the son has no ownership on ancestral property during his father's lifetime.

Lawyers in classical Hindu Law

While texts on ancient Hindu law have not survived, texts that confirm the existence of the institution of lawyers in ancient India have.

Punishment in classical Hindu Law

Ancient texts of the Hindu tradition formulate and articulate punishment. These texts from the last 2500 years, states Terence Day, imply or recognize key elements in their theories of fair punishment: (1) the texts set a standard of Right, in order to define a violation that warrants punishment; (2) they discuss the possibility of a violation thereby defining a wrongdoing; (3) they discuss a theory of responsibility and assignability of a wrongdoing; (4) the texts discuss degrees of guilt, and therewith the form and severity of punishment must match the transgression; (5) they discuss approved and authorized forms of punishments and how these may be properly administered. Hindu law, states Sarkar, developed the theory of punishment from its foundational theory of what it believed was necessary for the prosperity of the individual and a collection of individuals, of state and non-state.

There are wide variations in the statement of crime and associated punishment in different texts. Some texts for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts.

Outside India

Ancient Hindu legal texts and traditions arrived in parts of Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as trade grew and as part of a larger culture sharing in ancient Asia. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma, such as the Wareru Dhammathat, and Thailand) as well as legal records embodied (as in India) in stone and copper-plate inscriptions.

Anglo-Hindu law

As East India Company obtained political and administrative powers, in parts of India, in the late 18th century, it was faced with various state responsibilities such as legislative and judiciary functions. The East India Company desired a means to establish and maintain the rule of law, and property rights, in a stable political environment, to expedite trade, and with minimal expensive military engagement. The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century. The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,