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Donald R. Davis - One of the best experts on this subject based on the ideXlab platform.
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Slaves and slavery in the Smṛticandrikā
The Indian Economic & Social History Review, 2020Co-Authors: Donald R. DavisAbstract:This article contains both a study and a translation of the Laws relating to slavery found in the thirteenth-century Hindu Law digest called the Smṛticandrikā. By focusing on a single text, we can ...
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Oxford Scholarship Online - Vows and Observances
Oxford Scholarship Online, 2018Co-Authors: Donald R. DavisAbstract:This chapter traces the semantic and practical evolution of Hindu religious vows and observances called vrata. The general historical trajectory moves from vratas as the ascetic regimens in Vedic texts (especially observed by students), to vratas as the devotional vows of women in favor of a deity. The standard elements of a classical vow in medieval Dharmaśāstra are described, with a focus on the correct intention, procedures, times, and rewards for taking vows. The topic of vows reveals a common interplay within Dharmaśāstra among customary religious and legal practices, external textual traditions (Purāṇas in this case), and existing Dharmaśāstra norms. The history of vows thus provides helpful insight into intellectual, theological, and historical changes within Hindu Law, and Hinduism, more generally.
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Children
Oxford Scholarship Online, 2018Co-Authors: Donald R. DavisAbstract:Classical Hindu Law distinguishes the childhood, youth, and adulthood of male children in terms of ritual and legal eligibility and duty. Childhood is marked both by freedom from the constraints and obligations of ritual and Law and by ritual ineligibility and legal incapacity. The consecratory rite of the sacred thread marks a son’s eligibility and obligation for religious study and ritual. Youth is the period of religious training that culminates in the completion of studies and in marriage. Legal majority is recognized for sons at age sixteen, while full ritual rights and duties commence only with marriage. In the classical texts, the onset of menstruation marks a daughter’s eligibility to marry, though her legal capacity remains restricted in principle. Daughters thus figure prominently in the intricate negotiations of marriage, kinship, and family reputation.
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Oxford Scholarship Online - Social and Literary History of Dharmaśāstra
Oxford Scholarship Online, 2018Co-Authors: Donald R. Davis, David BrickAbstract:This chapter examines the development of the Dharmaśāstra tradition in medieval and early modern India and focuses on two genres or styles of textual production: commentaries and digests. The historical factors leading to the creation of each genre are described, along with their nature and purpose. The two genres negotiated a tension between changing sociohistorical conditions and institutions and internal commitments to preserve Hindu Law in its ancient form. Commentaries stayed close to their original root-texts and sought to resolve conflicts between them, even as their interpretations also created new norms and justified customary Laws. Digests radically expanded the textual scope of Dharmaśāstra by drawing on the huge corpus of Purāṇas, compendia of myth, history, and ritual, in the Hindu tradition.
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Oxford Scholarship Online - History of the Reception of Dharmaśāstra
Oxford Scholarship Online, 2018Co-Authors: Donald R. DavisAbstract:Dharmaśāstra has been received into many Hindu traditions as an influential source of authoritative norms and a touchstone for orthodox or classical Hinduism. This chapter traces points of connection and difference between Dharmaśāstra and other major Hindu textual traditions, including the Rāmāyaṇa, the Mahābhārata, the Purāṇas, and narrative literature such as the Kathāsaritsāgara and Pañcatantra. The influence of Dharmaśāstra in epigraphical sources and sectarian Hindu traditions is also surveyed. Finally, the reception and use of Dharmaśāstra in both colonial and modern Hindu Law is examined in order to understand its diminishing relevance as a direct source of Hindu knowledge and practice.
Werner F Menski - One of the best experts on this subject based on the ideXlab platform.
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Hindu Law: Beyond Tradition and Modernity - Hindu Law: Beyond Tradition and Modernity
2009Co-Authors: Werner F MenskiAbstract:This book examines the development of Hindu Laws from ancient period to its emergence as postmodern phenomenon. The book is divided into three parts. The first part, comprising of seven chapters, examines in depth our current deficient understanding of the historical development of central Hindu concepts within the classical, postclassical, colonial and postcolonial context. The second part, composed of five chapters, relies on the theoretical arguments developed in part I, providing detailed analysis of selected areas of Hindu family Law. In examining the maintenance from the Vedic period to the turn of this millennium. The study criitcally evaluates the legal evidence to examine how Hindu Law has developed into a postmodern condition which modernist scholarship seems both unable and unwilling to recognize. The third part has the concluding analyses dealing with the inadequacies of the modernist discourses in relation to Hindu Law. This volume will be of immense value to scholars and students of Law, religion, sociology, modern social history and philosophy. This book will also be of interest to social theorists and comparatives as well as general readers.
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Hindu Law beyond tradition and modernity
2009Co-Authors: Werner F MenskiAbstract:This book examines the development of Hindu Laws from ancient period to its emergence as postmodern phenomenon. The book is divided into three parts. The first part, comprising of seven chapters, examines in depth our current deficient understanding of the historical development of central Hindu concepts within the classical, postclassical, colonial and postcolonial context. The second part, composed of five chapters, relies on the theoretical arguments developed in part I, providing detailed analysis of selected areas of Hindu family Law. In examining the maintenance from the Vedic period to the turn of this millennium. The study criitcally evaluates the legal evidence to examine how Hindu Law has developed into a postmodern condition which modernist scholarship seems both unable and unwilling to recognize. The third part has the concluding analyses dealing with the inadequacies of the modernist discourses in relation to Hindu Law. This volume will be of immense value to scholars and students of Law, religion, sociology, modern social history and philosophy. This book will also be of interest to social theorists and comparatives as well as general readers.
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From dharma to Law and back? Postmodern Hindu Law in a global world
2004Co-Authors: Werner F MenskiAbstract:It is an observable fact now that Indian Law has developed over the past few decades, away from the outwardly postcolonial and partly aggressively modernist presuppositions of the 1940s and 1950s, towards an embarrassed self-critical assessment of the present and an almost anxious vision of the future. This is what I portray here as a postmodern approach. The earlier, almost blind belief in modernisation and its inherent promises of progress has been replaced by a typically Hindu form of trust in the possibility of a better future, for which all concerned parties have to work. One might call this the dharma of postmodern Hindu Law. Building on Masaji Chiba's jurisprudential models my paper's analysis of recent developments in Indian family Law and constitutional Law illustrates how and why Indian Law makers have lost faith in the alleged superiority of western models and have begun to remember some of their own fragments of legal history and conceptual elements which are now reconstructed as building bricks for postmodern Hindu Law and Indian Laws. Typically, therefore, these postmodern Laws tend to manifest themselves in complex processes that involve reconstruction of today's Laws by reference to presumably indigenous norms and values as well as Western models. It looks messy and inconsistent, but there is a deeper sense of purpose behind individual developments. This means, then, that the earlier exclusive reliance on modern western models has had to give space for a renewed and vigorous hybridisation of Indian Laws and other legal systems. Postmodern Hindu Law and postmodern Indian Laws are today found in an ongoing process of reconstruction. This is nothing new in itself, since we should long ago have learnt to see all Laws as dynamic processes. What is new, however, and thus difficult to comprehend for some, is that 'tradition' and Hindu traditional concepts as legal postulates, for that is what they are, should have become so critical as ingredients of postmodern Law making in India. In a global context, this means that Hindu Law is neither dead nor defunct, but it has the potential to serve as an instructive model of how postmodern Laws are created and operate in practice.
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Postmodern Hindu Law
2001Co-Authors: Werner F MenskiAbstract:This study, based on indological and legal scholarship, explores to what extent Hindu Law, as a conceptual entity and a legal system, is visibly and invisibly present in contemporary Indian Law-making. It is found that, defying many death wishes and contradicting pronouncements of its demise, Hindu Law is alive and well in various postmodern manifestations. Both at the conceptual level and within processes of official Law-making and policy formulation, postmodern Hindu concepts and rules retain a powerful voice in how India, in the 21st century, is seeking to achieve social and economic justice for over a billion people. Rejecting the agenda of Hindutva and its opponents as too narrow and politically motivated, the present study presents a holistic view of Hindu legal systems and concepts and their contemporary and future relevance.
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comparative Law in a global context the legal systems of asia and africa
2000Co-Authors: Werner F MenskiAbstract:Now in its second edition, this textbook presents a critical rethinking of the study of comparative Law and legal theory in a globalising world, and proposes an alternative model. It highlights the inadequacies of current Western theoretical approaches in comparative Law, international Law, legal theory and jurisprudence, especially for studying Asian and African Laws, arguing that they are too parochial and eurocentric to meet global challenges. Menski argues for combining modern natural Law theories with positivist and socio-legal traditions, building an interactive, triangular concept of legal pluralism. Advocated as the fourth major approach to legal theory, this model is applied in analysing the historical and conceptual development of Hindu Law, Muslim Law, African Laws and Chinese Law.
Timothy Lubin - One of the best experts on this subject based on the ideXlab platform.
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Hinduism and Law
Social Science Research Network, 2015Co-Authors: Timothy LubinAbstract:Beginning with a review of the interaction between religion and Law in premodern periods, this essay presents in more detail the complex developments since the seventeenth century up to the present day. This includes the creation of ‘Anglo-Hindu’ Law, colonial administration of justice (including the legal treatment of disapproved Hindu practices), and the gradual restriction of Hindu Law to matters of family Law; legal treatment of Hindus and Hindu institutions under secular Law in modern India and Nepal; and Hindu religion under modern secular Law outside of South Asia. Throughout, the emphasis is on the fruits of research in the last thirty years or so, especially current developments.
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Hinduism and Law an introduction
2011Co-Authors: Timothy Lubin, Donald R. Davis, Jayanth K KrishnanAbstract:Foreword List of contributors Chronology Map Introduction Timothy Lubin, Donald R. Davis, Jr and Jayanth Krishnan Part I. Hindu Law: 1. An historical overview of Hindu Law Donald R. Davis, Jr 2. Dharmasastra: a textual history Patrick Olivelle 3. Hindu legal practice in premodern India Axel Michaels 4. The creation of Anglo-Hindu Law Rosane Rocher 5. Marriage and family in colonial Hindu Law Rachel Sturman 6. Hindu Law as personal Law Rina Verma Williams Part II. Law in Ancient and Medieval Hindu Traditions: 7. Hindu jurisprudence and scriptural hermeneutics Lawrence McCrea 8. Indic conceptions of authority Timothy Lubin 9. Sudra Dharma and legal treatments of caste Ananya Vajpeyi 10. Law, literature, and the problem of politics in medieval India Whitney Cox 11. Hindu Law as performance: ritual and poetic elements in Dharmasastra Robert Yelle Part III. Law and Modern Hinduism: 12. Temples, deities, and the Law Richard Davis 13. In the divine court of appeals: vows before the God of justice Aditya Malik 14. Contemporary caste discrimination and affirmative action Laura Dudley Jenkins 15. Law and Hindu nationalist movements Smita Narula 16. Legally and politically layered identities: a thumbnail survey of selected Hindu migration patterns from South Asia Jayanth Krishnan Appendices Glossary Bibliography.
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The Spirit and the Flesh of Hindu Law
Journal of the American Oriental Society, 2010Co-Authors: Timothy LubinAbstract:The legal dimension of India's cultural heritage, especially the scholastic dharma tradition in Sanskrit commonly known as "Hindu Law," has after a long hiatus begun to attract attention, thanks largely to a series of major publications by Patrick Olivelle, which have made the primary sources more widely accessible and better understood. Now Don Davis has written a book on Hindu Law that will interest readers of many backgrounds and interests. Specialists on dharmasastra will appreciate his very original views of the scope and aims of the tradi tion, as well as his judgments on vexed points. Those interested in South Asian religions, or Hindu traditions in particular, will be challenged to wrestle with his deliberately provocative assertions of the definitive role of dharmas'astra in constituting what is "Hindu." Legal phi losophers are urged to take instruction from Hindus on the nature and ends of Law itself, and dharmasastra's canonization of authority of customary norms (acara) extends the horizons of legal pluralism and legal realism. Denizens of the study of religion more broadly can look to this volume as a case study of Law as "the theology of everyday life." This volume draws together the threads of a decade of work almost wholly devoted to the subject, and weaves them into a remarkably compact and elegant treatise. There is much to be learnt from reading it, thanks to its well-seasoned and authoritative exposition of the tradition and its interpreta tive gambits, and readers will find here a worthy opponent with whom to debate. In this spirit, I will begin where Davis does, with the apophthegm that condenses his cen tral argument: "Law is the theology of everyday life." Many will find this startling, and then wonderfully apt and even revelatory. Like a prism, it provokes novel insights as one turns it about in one's head. But why "theology" rather than, say, "philosophy" or "metaphysics"? Any of these terms refers to a refined and scholastically produced discourse that seeks to get to the heart (or soul) of human experience, and likewise, any of them would produce the same pleasing dissonance when applied to "everyday life." "Philosophy" and "metaphysics" in the classical senses are indeed little different from theology insofar as they aimed at spiri tual or divine Truth beyond parochial experience and concerns. "Theology," on the other hand, comes with some unwanted baggage, which Davis care fully stows at the book's point of departure. Invoking a range of voices from St. Anselm to Gladstone, he points out that theology (like Law) orders knowledge and applies reason to matters of sentiment and sensibility. Davis is inclined to see Law as a type of theology also because he recognizes the large area of overlap between religion and Law, which in the case of Hinduism amounts to an "essential indistinguishability."1 Theology and jurisprudence similarly negotiate the space between rule and practice (p. 6). Another argument in favor of "theology" might be that Law (in general, not just Hindu Law) often treats its highest sources (e.g., the Constitution) as having an almost scripture-like authority, and as manifesting principles that transcend human convention (e.g., natural-Law
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The Spirit and the Flesh of Hindu Law
Social Science Research Network, 2010Co-Authors: Timothy LubinAbstract:The legal dimension of India’s cultural heritage, especially the scholastic dharma tradition in Sanskrit commonly known as, “Hindu Law,” has, after a long hiatus, begun to attract attention, thanks largely to a series of major publications by Patrick Olivelle, which have made the primary sources more widely accessible and better understood. Now Don Davis has written a book on Hindu Law ("The Spirit of Hindu Law," Cambridge University Press, 2010) that will interest readers of many backgrounds and interests. Specialists on dharmaśāstra will appreciate his very original views of the scope and aims of the tradition, as well as his judgments on vexed points. Those interested in South Asian religions, or Hindu traditions in particular, will be challenged to wrestle with his deliberately provocative assertions of the definitive role of dharmaśāstra in constituting what is, “Hindu.” Legal philosophers are urged to take instruction from Hindus on the nature and ends of Law itself, and dharmaśāstra’s canonization of authority of customary norms (ācāra) extends the horizons of legal pluralism and legal realism. Denizens of the study of religion more broadly can look to this volume as a case study of Law as, “the theology of everyday life.”
Geetanjali Srikantan - One of the best experts on this subject based on the ideXlab platform.
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Towards new conceptual approaches in legal history: Rethinking “Hindu Law” through Weber’s Sociology of Religion”
2014Co-Authors: Geetanjali SrikantanAbstract:Current approaches within legal history do not allow for for conceptual clarity in cross cultural and global contexts. Legal functionalism has been identified as one of the problems that impede the production of knowledge from a comparative legal perspective. However current scholarship in comparative Law, legal history and legal theory appear to be unable to address this challenge.This article proposes an alternative route through the realm of cultural studies and the framework of “Orientalism” developed by Edward Said which identifies a particular way of speaking about the East which is characteristic of Western discourse. It inquires into how the history of Law in India can be studied through the illustration of the British colonial encounter with “Hindu Law.” It rejects the characterisation of legal history as a movement from custom to codification or the secularisation of religious Law .It demonstrates how such a characterisation can be formulated only within the background of Western social theory using Max Weber’s sociology of religion as an illustration. It shows the inconsistencies in Weber’s account and the logic behind these inconsistencies which are related to the European experience of “religion” in India. The pattern of these inconsistencies is used to frame certain questions for the study of Hindu Law as a historical category. In doing so, it sets an agenda for the study of Hindu Law and provides for a new approach by which legal history can borrow from comparative Law and not by merely understanding borrowings as legal transplantation.
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Towards New Conceptual Approaches in Legal History: Rethinking 'Hindu Law' Through Weber's Sociology of Religion
Social Science Research Network, 2013Co-Authors: Geetanjali SrikantanAbstract:Current approaches within legal history do not allow for for conceptual clarity in cross cultural and global contexts. Legal functionalism has been identified as one of the problems that impede the production of knowledge from a comparative legal perspective. However current scholarship in comparative Law, legal history and legal theory appear to be unable to address this challenge.This article proposes an alternative route through the realm of cultural studies and the framework of “Orientalism” developed by Edward Said which identifies a particular way of speaking about the East which is characteristic of Western discourse. It inquires into how the history of Law in India can be studied through the illustration of the British colonial encounter with “Hindu Law.” It rejects the characterisation of legal history as a movement from custom to codification or the secularisation of religious Law .It demonstrates how such a characterisation can be formulated only within the background of Western social theory using Max Weber’s sociology of religion as an illustration. It shows the inconsistencies in Weber’s account and the logic behind these inconsistencies which are related to the European experience of “religion” in India. The pattern of these inconsistencies is used to frame certain questions for the study of Hindu Law as a historical category. In doing so, it sets an agenda for the study of Hindu Law and provides for a new approach by which legal history can borrow from comparative Law and not by merely understanding borrowings as legal transplantation.
Prakash Shah - One of the best experts on this subject based on the ideXlab platform.
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Transnational Hindu Law Adoptions: Recognition and Treatment in Britain
Social Science Research Network, 2009Co-Authors: Prakash ShahAbstract:This article examines how the adoption of children under Hindu Law in India is regarded by British private international Law and immigration Law. Through an analysis of case Law, it focuses particularly on how British judges regard the legitimacy of exclusion by the British immigration control system of children who have been adopted under a 'foreign' legal system which essentially permits private adoption arrangements. Examining the background to the regime of Indian Hindu Law adoptions (which applies to Sikhs as well as Hindus), and the private international Law and immigration rules which apply to such adoptees in the UK, the article finds some evidence in the judicial decisions of a more activist, human-rights-based, plurality-conscious position being taken. However, tracking the case Law further, the article concludes that such activism has not been followed through in more recent decisions leaving the conflictual position between transnational adopters and British legal systems largely unresolved.