|Natural Law and Hinduism
As a contribution to the understanding and development of comparative law the natural law tradition holds out the possibility of a universality based on the consideration of what norms should follow human nature, which is also able to admit a variety of expressions reflecting the diversity of human cultures. The Western natural law tradition finds its classic expression in Thomas Aquinas’ treatise on law and contemporary support for natural law is most frequently found in Catholic Christian theological and ethical writing for which Aquinas is a major authority. A good example of an attempt in contemporary Catholic reflection to combine adherence to the Thomist tradition with the concern for universality within a plurality of cultures is the document produced in 2009 by the Catholic International Theological Commission, In Search of a Universal Ethic: A New Look at Natural Law. This document seeks to consider whether and how well the Western Christian tradition of natural law resonates with other religious and philosophical traditions in the contemporary world. Moreover, it claims to be able to identify universal common ground across a number of religious traditions, including Hinduism.
Hinduism is a good case study for exploring natural law and its implications for comparative law. Apart from being one of the major religious cultures of the world, adhered to by a fifth of the world’s population, Hinduism also contains an ancient legal tradition, classically articulated in the sophisticated and systematic texts of the Sanskrit dharma śāstra literature as well as in a variety of other dharma texts, especially those found in the Hindu epic literature. This legal tradition is, like Western natural law, concerned with the general principles of how human beings qua human beings should live and interact. Yet it also deals with positive law in the form of specific rules, penalties and their enforcement. This legal tradition has for centuries been of central importance for Brahmanical (or high caste) Hindus, whose religious culture is often characterised as an orthopraxy manifest in the structures and norms of the social hierarchy of the caste system. For such Hindus, the fundamental maker of a Hindu is often said to be primarily adherence to the orthopraxy of this legal tradition of dharma and to its sources, rather than to any orthodoxy, in marked contrast to creedal religions such as Christianity and Islam. Thus, it is clear how important the legal tradition of dharma is in Hinduism. However, the classical texts of this tradition, the dharma śāstra, have often represented a puzzle for those seeking to understand the nature of law and the practical application of legal systems in Hinduism, since it is not clear to what extent the dharma texts themselves were taken historically as legal codes to be applied straightforwardly as positive law in Hindu life in any given period.
In this article I would like first to consider how the Hindu dharma tradition in general relates to the Western natural law tradition and the search for universality across cultures. My contention here is that such comparative study actually tells against contemporary claims for the universality of natural law in different cultures, since Hinduism has rather different views of what human nature is and resultant human goals are. Second, I shall more narrowly consider what a comparison of one of the most important dharma śāstra texts, the ‘Laws of Manu’ (Mānavadharmaśāstra) and the classical treatise on law in Aquinas’ Summa Theologiae tell us about the textual character of natural law accounts, as well as the relation between such texts and the natural law accounts they contain and the historical reality of legal enactment in different traditions. Here I contend that we can identify common structural elements and common issues in different traditions of religious law. Both are works of scholastic jurisprudence, in which law is related to the discussion of what makes for full human flourishing and happiness. Both locate natural law within a wider religious context of eternal and divine law. Both exemplify the gaps and tensions between such normative theoretical accounts and the contingent, contextualised and concrete realities of positive law in the cultures out of which they emerge.
Part 1: The Universality of Natural Law
Identifying common truths or values, let alone systems of law, across cultures is, however, a perilous business. What appears to be common ground can turn out to be mere superficial similarity, when the truths or values in question are set within their different cultural contexts. How well, then, does the search for something matching the natural law account worked out in the Western Christian tradition fare in the context of the very different religious culture of Hinduism?
In answering this question, I want to engage more fully with the document produced in 2009 by the Catholic International Theological Commission, In Search of a Universal Ethic: A New Look at the Natural Law.1 It starts with the question of whether there ‘are objective moral values that can unite human beings and bring them happiness and peace’ and then its first chapter identifies ‘convergences’ present in the different cultures of humanity, which ‘testify to the existence of a patrimony of values common to all human being, no matter how these values are justified within a particular worldview,’ manifest not least in the ‘“golden rule” (“And what you hate, do not do to anyone” [Tob 4:15]’ as ‘found in one form or another in the majority of wisdom traditions.’2
In the case of Hinduism, the document makes a number of suggestions about where such ‘convergences’ might be found. As preparation for the rest of the paper, it is useful at this point to set these out in some detail. First the document identifies a general concept in Hinduism that might serve as an equivalent to that of natural law:
In the Hindu traditions, the world – the cosmos as well as human societies – is regulated by an order or fundamental law (dharma), which one must respect in order not to cause serious imbalances. Dharma then defines the socio-religious obligations of man.3
The document then talks of specific moral teaching found in the sacred texts of the Upaniṣads, which arises from the fundamental doctrines found there about the nature of human life, such as the doctrine that there is a cycle of rebirth (saṃsāra) and that human actions have good or bad consequences, determining subsequent births (karma). These doctrines, the document says, determine one’s behaviour towards others and ‘entail a high degree of goodness and tolerance, a sense of disinterested action for the benefit for others, as well as the practice of non-violence (ahiṃsā).’ The document further identifies a major location for finding Hindu accounts of ethical prescriptions as being the dharma śāstras, especially that of Manu (the Mānavadharmaśāstra, often translated as ‘Laws of Manu’ or ‘Manu’ for short), in which, the document states, we can find a number of parallels for the Decalogue. It points also to accounts of dharma in the epic literature, pointing to a passage in the Mahābhārata where a version of the Golden Rule might be discerned:
‘I will tell you what is the essence of the highest good of the human being. The man who practices the religion of do no harm to anyone without exception acquires the greatest good. This man is the master of the three passions: cupidity, anger and avarice, and renouncing them in relation to all that exists, acquires success…This man who considers all creatures like ‘himself’ and treats them as his own ‘self,’ laying down the punishing rod and dominating his anger completely, assures for himself the attainment of happiness…One will not do to another what one considers harmful to oneself. This, in brief, is the rule of virtue…In refusing and in giving, in abundance and in misery, in the agreeable and the disagreeable, one will judge all the consequences by considering one’s own self.’4
The document suggests, then, that in the general Hindu concept of dharma, exemplified by the particular instances given, we can find evidence for a universal ethic, a common patrimony of values, present in Hinduism as elsewhere. In the rest of this paper, without wanting to reject the search or even identification of convergence altogether, I do want to introduce a number of qualifications that need to be taken on board, if such an endeavour at identifying cross-cultural common ground is not just to seem superficial and even naive.
The first qualification I want to make is there are a number of ethical tendencies in Hinduism and that the document picks out just one. Hinduism is not one religion, but a religious culture in which number of traditions have developed, distinct from each other and often in marked tension with each other, though interacting with each other over the course of millennia. 5 In general terms we need to distinguish between a form of ethics known as svadharma (one’s own-dharma), where the emphasis is on particular duties of different groups within the social hierarchy of the caste system, and another form of ethics in which more universal ethical precepts are advocated, sādhāraṇa dharma (general-dharma). For its part, the document focuses almost entirely on the second, in which it is true that a type of universal ethics is advocated. However, the ethics of svadharma is also a central feature of traditional Hindu religious culture as a whole and a balanced consideration of the extent to which a universal ethics is manifest in Hinduism should take note of this other ethical tendency. As we shall see, the ethics of svadharma is based on a world view that has many general features in common with a Christian natural law account and yet results in a scheme of ethics that is very definitely not a form of universal ethics nor compatible with some of the fundamental concrete teaching of such Christian natural law.
The second qualification I want to make is that the ethics of sadhāraṇa dharma itself is closely linked to an ascetical tendency in Hinduism focused on world renunciation, as evidenced in the different works the document cites. The ascetical tendency also represents a major feature of Hindu religious culture. Here the motivations for many of the ethical practices identified as points of convergence are rather different from Christian natural law ethics, since they are based on an account of the human person and of the human condition within the world that is radically different and incompatible with Christian teaching. That the resultant ethics has points of convergence in terms of particular external acts should not obscure the fact that there are different motivations and goals behind them, which arise from divergent worldviews and soteriologies. Can we really talk about a common patrimony of values when this is the case?
1.1: The Ethics of Svadharma
The ethical system of svadharma represents in many ways the distinctive Hindu form of natural law. It emerges from the heart of that form of Hinduism otherwise known as ‘Vedic’ or ‘Brahmanical Hinduism,’ which developed from the second millennium B.C. and gradually became the dominant religious culture within Hinduism as a whole. ‘Brahmanical Hinduism’ refers to the Hindu traditions developed and promoted by the Brahmins and other high caste Hindus. Such Hindus accept the authority of a body of sacred literature called the Vedas, composed in Sanskrit, revered as revelation and held to be the principal source of dharma. As the document points out, a body of literature expounding the nature of dharma develops in later Brahmanical Hinduism, including the Dharma Sūtras (the extant ones mostly dating from about the sixth to the third century B.C.) and Dharma Śāstras (from about the end of the third century B.C onwards), texts that set out ritual and social dharma in great detail, among which the Laws of Manu has a pre-eminent position as a sustained account of the theory of svadharma.
The term, ‘dharma’ itself comes from a verbal root, dhṛ, which means ‘to uphold’ or ‘to support.’ By extension it comes to mean the proper nature or order things have in general, either which they actually do have or which they should have by virtue of right action. Dharma is thus the proper order that upholds both the natural world and in human society. The dharma of fire, for instance, is its natural capacity to heat other things up; the dharma of human society is found in the social norms, ethical practices and ritual activities that human beings should follow.
The foundational text for this account of dharma and for the ethics of svadharma is the puruṣa sūkta hymn of the Ṛg Veda (Ṛg Veda X.90), which describes the production of the world in terms of the sacrifice of the Cosmic Man and depicts the different elements in the natural world as well as of human society as made from the different parts of his dismembered body. The human social system is thus part of the original structure of the world from its creation. This human society is made up of four broad classes (varṇa) of people with different natural characteristics that result from that their having different origins from the Cosmic Man: the Brahmins (priests), who emerge from the head or the Cosmic Man; the Kṣatriyas (rulers) emerging from his arms; the Vaiśyas (commoners) from the thighs and the Śūdras (servants) from the feet.
The varṇa scheme that emerges from this is a ritual and social hierarchy with the Brahmins at the top and the Śūdras at the bottom. The top three varṇas are also said to be ‘twice-born’ (dvija), meaning that they are reborn through certain life-rituals. The top three varṇas and they alone are entitled to know the Vedas and to have Vedic rituals performed for them. Within this scheme, Śūdras and others are excluded from Vedic religion and so tend to have other forms of religion and ritual and to have non-Brahmin ritualists serving their needs.
In the first chapter of Manu in which the origins of human society are set within the context of the creation of the world and in clear allusion to this Vedic hymn, the four classes and their distinctive roles are depicted in terms of the different ‘innate activities,’ which all living things carry out as part of their very nature and place within the order of the world:
And whatever innate activity the Lord yoked each (creature) to at first, that (creature) by himself engaged in that very activity as he was created again and again (1.28).6
Just as the seasons by themselves take on the distinctive signs of the seasons as they change, so embodied beings by themselves take on their innate activities, each his own (1.30).
Thus the members of each class have distinct roles from birth and the carrying out of these is part of the fundamental fabric of good order in the world as a whole:
But to protect the whole creation, the Lustrous One made separate innate activities for those born from his mouth, arms, thighs and feet. For priests he ordained teaching and learning, sacrificing for themselves and sacrificing for others, giving and receiving. Protecting his subjects, giving, having sacrifices performed, studying and remaining unaddicted to the sensory objects are in summary for a ruler. Protecting his livestock, giving, having sacrifices performed, studying, trading, lending money, and farming the land are for a commoner. The Lord assigned only one activity to a servant: serving these (other) classes without resentment (1. 87-90).
Upholding the dharma of society is thus an integral part of upholding the right order of the world as a whole and the dharma of society is upheld when the members of each varṇa do the work appropriate to them, their svadharma (own- dharma), the actions that are right for an individual within the particular stage of life and group to which he or she belongs. The ethics of svadharma are thus fundamentally ‘context-specific’ and relative in its ethics rather than universal in character. Moreover, this form of ethics is firmly opposed to members of one class carrying out the dharma of another group, even if in emergencies this is allowed to some extent. Another widely revered sacred text, the Bhagavad Gītā, affirms the idea of svadharma in these much repeated words, ‘It is better to practise your own inherent duty deficiently than another’s duty well. It is better to die conforming to your own duty; the duty of others invites danger’ (BG 3.35).
The ethics of svadharma is further expressed within the scheme of varṇāśramadharma (the dharma of class and stage of life).7 We have already considered what is meant by varṇa. There are also said to be four āśramas: that of the celibate student in Vedic study (brahmacarya), that of the married householder (gṛhasta), that of the forest dweller (vānaprastha), and that of the ascetic or renouncer (saṃnyāsa). The last two stages represent increasing degrees of withdrawal from ordinary social and ritual life. This is an idealised scheme of the life of a high caste Hindu and the inclusion of the fourth stage of ascetic renunciation is itself an attempt to integrate the ethics of svadharma with an ascetic form of ethics based on detachment from the world. And the emphasis in the dharma śāstra literature like that of Manu is on the value of becoming and remaining a married householder rather than renouncing society as an ascetic. The married householder maintains the dharma of the world and human society, through the performance of proper rituals, the production of offspring and the carrying out of the occupations proper to the different sections of society.
This form of ethics is world affirming and concerned with involvement in actions with a concern for the worldly success they should. It is an ethics of engagement (pravṛtti). This is further manifest in another important scheme: that of the four legitimate goals to be pursued by human beings (puruṣārtha). These are: honestly gained wealth (artha); pleasure within the bounds of social norms (kāma); ritual and social obligations (dharma) and liberation from the world (mokṣa). The final goal of liberation again links to the fourth stage of life and liberation from the world cycle. However, the first three goals fit into the ethics of svadharma we are considering and emphasise the legitimate enjoyment of mundane goods and a successful life, just as it values the family life of the householder as the normative mode of human living.
The ethical system of svadharma, then, is a form of Hindu natural law, manifest in the theory and practice of the caste system. On the one hand, it does have its own points of general convergence with Christian natural law accounts. The activities of any individual are ordered to the common good of society. Moreover, adherence to one’s svadharma is the human participation in the eternal and divine law that are present in the world as a whole. The emphasis of svadharma is also on the preservation of own’s life, on the propagation of family and on social living. On the other hand, this is very definitely not a system of universal ethics based on an idea of what is proper to all and any human beings by nature, where a single ethical code of behaviour is prescribed for to all human beings. As the leading American Indologist, Wendy Doniger O’Flaherty has put it, ‘The svadharma system of orthodox Hinduism is an ethical system based on the inherent pluralism of caste (whose goal is the preservation of social and moral balance).’8 In her introduction to her own translation to Manu, Doniger O’Flaherty refers to the Indian Indologist A. K. Ramanujan’s comments on the type of ethics found in Manu and other dharma texts:
One has only to read Manu after a bit of Kant to be struck by the former’s extraordinary lack of universality. He seems to have no clear notion of a universal human nature from which one can deduce ethical degrees… To be moral, for Manu, is to particularize – to ask who did what, to whom and when. Shaw’s comment, ‘Do not do unto others as you would have they do unto you. Their tastes may not be the same’ would be closer to Manu’s view, except he would substitute ‘natures or classes’ for ‘tastes.’9
Moreover, there is no fully common human dignity among persons within this scheme, especially between the ‘twice born’ and Śūdras or between the members of any of the four varṇas and those held to be outside it, the outcastes.10 The varṇa system is a hierarchy rooted in the different natural origins and status of the different groups.
1.2: The Ethics of Sādhāraṇa dharma.
So far, then, we have considered dharma as it is manifested in the particularised or context specific context of svadharma. However, certain types of behaviour are also said to be right for all people to do (sādhāraṇa dharma, ‘common dharma’). As we noted, it is this type of dharma that In Search of a Universal Ethic deals with. That the document cites in the first place the Upaniṣads is appropriate because it is from the kind of worldview found in the Upaniṣads that the ethics of sādhāraṇa dharma draws much of its rationale and emphasis.
The worldview of the Upaniṣads is that of world renunciation. Within this worldview the nature of human beings is understood to be a two-substance dualism, with a non-material or spiritual core, the self (ātman), which has an integral existence of is own and is the ‘real me.’ The self acquires a material body as a result and in accordance with the consequences of its good or bad deeds undergoes repeated re-birth. However, within the renunciant perspective the process of rebirth is a negative experience and the desired goal is to become free of it altogether and enjoy a transcendent existence, either in complete identity with, or in a form of communion with, the ultimate reality behind the world, Brahman. This transcendent experience is characterised as knowledge (jñāna). The ethics of world renunciation are thus motivated by a concern to withdraw from attachment to actions and their results and to get free from material re-birth. This is an ethics of non-engagement (nirvṛtti). And the particular ethical norms that are emphasised are those that promote such detachment and withdrawal, such as non-violence and equanimity.
In a radical form, the ethics of world renunciation have gone hand in hand with a rejection of the society of svadharma altogether and the pursuit of liberation as an ascetic or world renouncer (saṃnāysin). However, these same ethics have also been incorporated into the dharma and epic literature in different degrees of tension with and accommodation to the ethics of svadharma. Thus, even though the primary emphasis of Manu’s dharma śāstra is on upholding the svadharma of the caste system, sādhāraṇa dharma also makes an appearance. Sādhāraṇa dharma ethics are certainly put forward as applicable for all, though within Manu it is primarily the Brahmin male, who is depicted as living them out and who is thus depicted as being a kind of renunciant living in society, thus affirming Brahmin superiority over the other varṇas.
Thus, in Manu we find the following recommendation:
Manu has said that non-violence, truth, not stealing, purification, and the suppression of the sensory powers is the duty of the four classes, in a nutshell (10.63) (cf 4.246, 5.107, 6.91-4)
This is a universal ethics of a sort. However, it is not simply the dharma of the caste system put in a more general form. Rather this is the ascetical ethics of world renunciation, where the different ethical norms promote withdrawal from attachment to worldly goods, to actions and their consequences, and hence to rebirth.
We can see this if we consider the ethic of non-violence (ahimṣā) which forms a central emphasis within renunciant life and a central ethic of sādhāraṇa dharma. Manu recommends non-violence above all as the ethic that leads to human happiness:
A man who does no violence to anything obtains, effortlessly, what he thinks about, what he does, and what he delights in (5.47)
However, a general ethic of non-violence creates a number of problems for Brahmanical dharma śāstra, both because the Vedic ritual system does involve the killing of animals in sacrifice and because the svadharma of warriors and of kings is to fight and kill in battle or to execute criminals. In Manu this is resolved by the granting of exceptions to the general ethic of non-violence. The killing of animals in sacrifice is depicted as not really an act of violence because it is itself dharmic, enjoined by the Veda:
The Self-existent One himself created sacrificial animals for sacrifice; sacrifice is for the good of the whole (universe); and therefore killing in a sacrifice is not killing (5.39).
The violence to those that move and those that do not move which is sanctioned by the Veda and regulated by the official restraints – that is known as non-violence, for the law comes from the Veda (5. 44)
Likewise the violence of warriors and kings is also dharmic because it accords with their innate nature and role of protecting subjects:
Not turning away from battle, protecting subjects, and obedience to priests are the ultimate sources of what is best for kings. Kings, who try to kill one another in battle and fight to their utmost ability, never averting their faces, go to heaven (7. 88-89)
However, within Manu’s account it is still non-violence that is promoted as the ethic that leads to ultimate happiness. Within the dharma and epic literature we find, to be fair, different accounts given of the reasons what non-violence is such a good thing. On the one hand, there is a properly ascetical ethical account that violence is harmful for the perpetrator and that the consequence of violent actions is further and very bad enmeshment in the cycle of rebirth. Non-violence on the other hand is helpful to getting free from actions and their consequences and world transcendence. Alongside this a more altruistic account is given concerned with the harm done to the victims of violence and consequences for them. Non-violence is therefore motivated from a concern for the welfare of others. The passages chosen by the document, not surprisingly, select texts in which the second more altruistic motive is present, since this shows greater convergence with a positive form of the Golden Rule. Yet this more altruistic account does not replace the ascetical one nor does it outweigh the importance of the ascetical ethic in Hindu ethical texts.
Thus, in Manu, as in many other such works, the emphasis is firmly on the ascetical ethic.11 In the particular case of non-violence, the motivation for non-violence is not primarily the wrong done to the victim of violence, but the damage violence does to oneself. Violence enmeshes the perpetrator into the cycle of rebirth that karmic actions bring about and in this case the consequences are particularly negative:
As many hairs as there are on the body of the sacrificial animal that he kills for no (religious) purpose here on earth, so man times will be, after his death, suffer a violent death in birth after birth (5.38).
Such an ascetical account of non-violence is, thus, rather different in emphasis from a Christian natural law account of what is wrong in killing innocent human beings in terms of the sovereignty of the Creator over human life, the natural good of other human beings and the justice due to a fellow human being.
In the final chapter of the work Manu considers more generally the nature of good and bad deeds and the law of karma. Here he identifies two kinds of Vedic activity: that of engagement (pravṛtti) and that disengagement (nirvṛtti). The first is that of involvement in one’s duties (svadharma) according to the caste system, seeking and enjoying the rightful fruits of such actions. The other is that of withdrawal from attachment from them as in ascetical ethics and world renunciation:
The activity of engagement is said to be driven by desire in this world and the world beyond; but the activity of disengagement is said to be free of desire and motivated by knowledge. The man who is thoroughly dedicated to the activity of engagement becomes equal to the gods; but the man who is dedicated to disengagement passes beyond the five elements (12.89-90).
The man who sacrifices to the self, equally seeing the self in all living things and all living things in the self, becomes independent. A priest should give up even the activities described above and devote himself diligently to the knowledge of the self, to tranquillity, and to the recitation of the Veda (12.91-92)
Whoever thus sees the self through the self in all living beings achieves equanimity towards all of them and reaches the supreme condition, the ultimate reality (12.125)
We can see, then, here a reflection of the ethical language found in the Upaniṣads and other ascetical literature advocating world renunciation. Even though the Brahmin who embodies them in Manu remains in society, the rewards given are those of world renunciation: liberation from the cycle of rebirth and the realisation of a transcendent state, the ‘supreme condition, the ultimate reality,’ mentioned in the last passage quoted from Manu, something characterised as knowledge (rather than action). The activity of engagement, on the other hand, leads to a heavenly state, the traditional goal of svadharma, but which is impermanent and ends in another rebirth.
Thus, the ethics of sādhāraṇa dharma do offer an alternative paradigm of natural law in Hinduism to that of svadharma and one that does present a form of universal ethics that has much in common in terms of external action with the precepts of Christian natural law. However, despite the presence of a more altruistic account of such ethics, as important, and often much more important, is the ascetical account that informs what motivations and goals are at work. Thus, the need for the second qualification I mentioned at the beginning: the identification of common ground in terms of external acts needs to be qualified by real differences in terms of world view and resultant motivation.
Traditional Hinduism is, then, a rich religious culture in which there are a number of ethical tendencies, with different schemes and motivations at work. What we find in the document, In Search of a Universal Ethic, is actually a very selective and largely de-contextualised approach and a number of important qualifications do have to be made to the common ground it suggests is there. At the very least, any desire to affirm such convergence across cultures also has to be balanced with recognition of what is not convergent and even contrary, if it is to be true to the full reality of these cultures.
Part 2: Textual Traditions
2.1: Dharma Texts and Aquinas’ Treatise on Law.
So far we have considered how the study of classical legal traditions in Hinduism relates to the modern claim for the universality of natural law within a diversity of cultures. We have argued that whereas we can identify forms of natural law account within the dharma literature, Western and Hindu concepts of what is natural for human beings are divergent. This is more than just a divergence of cultural expression of the same natural law. However, it is also of considerable comparative interest to consider how Hindu and Western legal works which embody natural law relate as textual traditions. If we take Manu’s dharma śāstra and set it alongside Aquinas’ Summa Theologiae we find considerable structural parallels between them.
Aquinas’ account of natural law is only a small element in part a much greater treatise on law and should be understood within it (ST 1a2ae 90- 108). Moreover, this treatise on law is itself meant to be read within the Summa Theologiae as a whole, which is an extended exposition of the science of sacra doctrina, or the reasoned and systematic exploration of divine revelation and of its role in leading human beings to full human flourishing and happiness, which is finally to be realised in the beatific vision of God. The treatise on law comes in the second part of the Summa where Aquinas considers human acts and how these may be ordered to or depart from the proper human good.
For Aquinas law (lex) is first defined as the ‘a certain rule and measure of acts, whereby someone is led to act or held back from acting’ (ST 1a2ae 90,1). As he considers the different aspects of law the following definition emerges:
Law is nought else than an ordinance of reason for the common good promulgated by the one who has care of the community (ST 1a2a2e 90,4).
For Aquinas natural law is only one variety of law and is integrated into a wider scheme that includes eternal law, human law and divine law (ST 1a2ae 91,1-4). The eternal law is God’s providence, the rule and measure of all things for the good of the universe as a whole. Natural law is a participation in this eternal law, representing divine providence for human beings qua human beings. Human laws, on the other hand, represent the positive laws that are developed in order to express the natural law in practice and further the common good. Moreover, Aquinas affirms the need for divine law over and above reasoned exploration of natural law. Divine law has the function both of revealing what is strictly speaking unobtainable by human reason, but also reveals what natural human reason might discover, but tends not to because of the fallibility of human judgments in making laws about human conduct (ST 1a2ae 91,4). In this regard the relation between divine law and any natural law account is part of the wider relation between revelation and human reason in the Summa as a whole (ST 1a 1, 1).
In his more detailed treatment of natural law in ST 1a2ae 94, Aquinas defines reflection on natural law as the operation of practical reasoning, which works from the first principles governing all human conduct in pursuit of human good to more particular conclusions, which are then expressed as human laws. The most fundamental principle of all is the command ‘to seek the good and avoid the evil:
Now since the good has the meaning of an end, but evil the meaning of its opposite, it follows that all those things to which a human being has a natural inclination reason naturally apprehends as goods, and as a consequence as things to be pursued in action, and their opposites as evils and to be avoided (ST 1a2ae 94, 2).
The working out of this principle is manifest in human beings pursuing a number of basic goods, which manifest in different ways what human beings and their good have in common with other created things in the universe: in common with all substances they seek preservation of their own natural being; in common with animals they seek reproduction and the bringing up offspring; and in common with rational beings, they seek knowledge of the truth about God and about living in society (ST 1a2ae 94,2).
The structure of this approach is paralleled in the Laws of Manu. In the last section, we saw that dharma is depicted as the right way of the world as a whole, the natural laws and order that should be manifest in the world. The dharma of human society is determined by what is the natural good for the different classes of human beings as part of the world produced from the sacrifice of the Cosmic Man. It is thus a participation in the dharma of the world as a whole and so upholding of the dharma of human society is integral to the maintenance of the universal dharma. The relationship between the dharma of human life and the dharma of the world is parallel to that between natural law, human and eternal law in Aquinas’ account.12 Moreover, dharma is said to be derived from the divine law contained in Vedas:
Whatever Manu has proclaimed for whatever person, all of that was declared in the Veda, for it contains all knowledge (2:7)
Moreover, the dharma text are set out as systematic works which embody practical reasoning. The Laws of Manu is arranged as a series of topics, working from the general origin of dharma in the production of the world and of human beings within it, then dealing with the classes and stages of human life, the nature of kingship, and finishing with general reflection the final ends of human life and how to reach them. This structure manifest the nature of the dharma texts as concerned to think systematically about the nature and aspects of dharma and so organise and explain the particular rules governing human conduct found within the texts. Within each topic, moreover, legal reasoning deals with particular questions that arise. Thus, as we have seen, the problem of how to reconcile the killing of animals in sacrifice with the ethical norm of non-violence is dealt with by reasoning using the sources for law that sacrificial killing is not a form of violence (5.38-49).
Structurally, then, the texts of these two traditions have much in common. A comparison of the Manu and Aquinas show how different traditions locate their conceptions of natural law within a wider understanding of the nature of law, in which natural law is a participation in eternal and divine law, which is then manifest in particular laws. Reasoning about human nature serves, moreover, in both traditions as a way of making sense of what is known through revelation and of dealing difficult questions as they arise.
2.2: Hindu Dharma and the general relationship between natural law and positive law.
Finally, the Hindu dharma śāstra texts provide a particularly striking exemplification of the gaps and tensions that historically exist between natural law accounts and the positive law operating in different cultures. Although in the modern period the British did take them as legal codes to be applied as the personal law for Hindus, it is far from clear to what extent they were used as such in earlier periods. Scholarly opinion has ranged from thinking that they were legal codes of positive as well as natural law to the view that they are purely theoretical or rhetorical in character, representations of an ideal view of human society conceived by Brahmins and intended to further their claims to superiority.
Thus, an older generation of scholars in the area of comparative law such as Derrett and Lingat worked with the presupposition that these texts do embody the positive law in operation at some period in ancient Hindu society.13 However, this has been subject to considerable challenge. Menski, for instance, argues that we have little reason to think that the dharma texts traditionally served as legal codes in the sense of actually applied positive law. Instead, he argues that the evidence of inscriptions and records, as well as living experience, points to the primary importance of custom (ācāra), good example (sadācāra) and juridical disputes and procedures (vyavahāra) in a variety of juridical contexts, often of a very localised sort, such as the family, caste group or local temple.14
Contemporary Indologists, such as O’Flaherty, Rocher and Olivelle, tend to suggest a mediating position, arguing that the classical dharma texts taken as wholes are theoretical works about the nature of dharma, but which also contain lists of rules and commands, often with a variety of penalties given for particular crimes, and here the texts might well contain a record of the positive law that was in operation in some groups.15 The dharma texts themselves suggest this complex character, since when they talks bout the sources of dharma they point not just to the Vedas and to the tradition of reflection said to derive from the Vedas, but also to the more contingent sources of custom, example and conscience as ways of determining rules for human conduct in practice (e.g. Manu 2:6; 2:12).
As Davis has suggested, the classical dharma texts are perhaps best taken as religious law, works of scholastic thinking or jurisprudence constructed systematically from both positive law and from the theory of natural law within the Hindu tradition.16 These texts have in the course of the centuries served as a reference point for asserting the authenticity and authority of any positive law, however derived. As he puts it:
In premodern India, the practical legal systems of any two given Hindu communities may have operated quite differently, but they were both likely to respect the “spirit” of Dharmasastra and incorporate it into their legal rules, processes, and institutions. The degree of correspondence between Dharmasastra and practical law made a system more or less Hindu.17
As a form of religious law these texts represent, as he puts it, ‘law as the theology of ordinary life’ or the ‘theology of the household realised as law.’18
This complex relation within Hindu legal traditions between the dharma śāstra texts and the historical reality of positive law has its parallel in the relation between the account of law set out in his treatise on law by Thomas Aquinas and the realities of legal systems in the West. Aquinas’ account likewise represents a work of scholastic thinking, of jurisprudence, which promotes natural law within a wider treatise that might also be characterised as religious law. In itself it is not a legal code although it does include aspects of practical law. As a set of principles it also has had a very considerable influence historically and provided an authoritative reference point in the development of positive law in the West. At the same time, it has always had a complex relationship with the realities of law in Western countries, since so much of positive law has been determined on the basis of other principles and indeed theories of positive law have been developed that reject natural law itself as the basis for legal codes.
Conclusion: Hinduism, natural law and comparative law.
Comparative study of the Hindu dharma tradition and the Western Christian and Thomist traditions does, then, point to the presence of a natural law thinking within different cultures and to the development of a similar genre of textual legal reflection in the form of scholastic and religious jurisprudence. It also shows the complex relationship and tensions that are present between natural law accounts and the historical realities of positive legal systems in different cultures. The identification of correspondences has much to contribute to the contemporary understanding of comparative law.
However, n terms of the question of whether natural law can deliver a universal and common account of law but capable of culturally diverse expressions, we have to be more sceptical. Different traditions of natural law do commonly talk of the presence of general principles or fundamental legal norms, whereby human beings are commanded to seek what makes for their natural flourishing and happiness. However, in the concrete development of the two ethical tendencies in traditional Hinduism we considered in part one we have seen that there is no consensus with the Christian tradition on what human nature is and therefore about what natural human flourishing and happiness are. A comparative study of the Christian natural law tradition and that of Hinduism suggests, then, that we locate what is ‘universal’ considerably further back than either any concrete ‘patrimony of values’ (i.e. concrete ethical values) or even views of what human nature is. Instead, the ‘universal’ can only be said to be present in the very general first principles themselves of seeking what leads to human flourishing qua human beings. Here is the truly common ground present in the different cultures and wisdom traditions of the world, but whether this is enough to develop any universally agreed legal code is far from evident.
Dr Martin Ganeri O.P.
University of London