Principles of legal positivism

A system that follows on from this point, and is indeed plural in its nature, and very diverse is the subject of Hindu Law. Hindu law is a system that has been around and touching individual's lives for thousands of years, as it still does to the present day. This particular legal system began approximately around 2000-1500 BC. It is a fact that in the ancient Vedic texts, the earliest known texts that we relate to Hindu law, didn't mention the term law. Does this mean that early Hindu's lived in a lawless society?

In answering this question, I feel it is important to convey the Historical and conceptual development of the vast theme of Hindu law, and also to explain which theoretical approaches are required to analyse the subject. The earliest period of Hindu law is the pre classical stage. The earliest known texts are the Vedic literature. They are mainly religious Hindu Hymns. We know of no authors, or the exact time they were written. They are in essence, floating texts. By studying the Vedic texts, we soon realise that there is a strong notion of macrocosmic order, or Rita rather than that of the individual.

This concept signifies that every individual has a role to play, and that all actions are interconnected. The idea of Rita is a very holistic one; giving the impression that Hindu law at this early stage seems to have more natural law foundations. There seems to be at this stage no set law. No formal rules that individuals must follow, or rule systems, which would indicate a legal system according to the positivist sense. This indicates that the Vedic period had very little to do with legal issues. Menski backs this point up by: (Menski 2000:139)

"The Vedas therefore although they have been classed as revelation give little indication of any legal rules other than by coincidence" and Menski emphasises this point again : (Menski 2000:147) "all we have are the Vedic texts, but they are certainly not legal texts. " There is a conscious aim for the greater good, which I feel echo's the principles of the natural law approach explain earlier in the essay, therefore, at this stage one would need the Natural Law theory to analyse the legal system. However, Hindu's soon realised that putting all their faith into rituals for the supreme order, and for the greater good, wasn't enough.

This brings me to the next period of Hindu law, the classical period. In this period of the subject, evolved the key concept of 'Karma' this brought about the idea that action was important, and more specifically that actions bring about results, or consequences. This period is based on the concept of 'Dharma', as opposed to Rita. Dharma is the correct or good act of individuals. We see here that Hindu law is evolving from a more macrocosmic influence, to a more microcosmic influence. Now, one can see that a historical approach would be needed to analyse this change. Suddenly, individual's actions are important.

Now, Hinduism wasn't just a broad and floating term with no real assumptions, it had evolved into a way of life. This change is known as 'Classical Hindu law'. This period in Hindu law has its origins from about 500BC to about 200AD. The main focus here is a system of self-controlled order. This signified an ideal state of behaviour for the entire human race. Classical Hindu law saw a shift from only the elites and Vedic priests participating law, now every single Hindu had a role or a duty to perform. Each and every Hindu aimed to uphold their own state of dharma, and thus ultimately strengthen the universal order.

We are also introduced to Smriti literature, however it must be stated that this literature wasn't legal literature either. It shows no concern for state law what so ever, and is solely concerned with the good actions of individuals. Again there was no intention to lay down the law here; therefore, we still don't have law in a positivist sense at this stage, contrary to popular belief. Towards the end of this period, it became apparent that self -control didn't suffice in protecting the natural order, the central element in Hinduism ideology.

This period, termed the Postclassical period, reigned from approximately 500BC -1100AD, saw a transfer of importance from the individuals to more public institutions. The biggest change was the concept of 'danda'. This concept, literally meaning punishment saw the shift from individuals in charge of their own dharma, now we see that it is the responsibility of the Hindu 'raja' or leader to supervise that all way being done to uphold the macrocosmic order. It is important to state that this in no way signified the genesis of a positivist state ran legal system.

The emphasis is still, most definitely on the supreme natural order. However, it must be mentioned that Hindu law is now taking a much more formal, and organised structure to its execution. The process of 'vyavahara' is yet another example of this. This is a system of dispute settlement. One gets the impression that the period of individual self -control is well and truly over, yet most of the law is actually still a customary issue. Menski mentions: (2000:163) "With regard to the actual operation of classical Hindu Law, … order was maintained primarily at a local level and by recourse to custom rather than texts.

" It is important not to forget that still, as Menski writes (2000:163) "The system as a whole still relies heavily on the contribution of every Hindu individual as an integral part of the cosmic order. " The positivist sense of law has most definitely not come into action in Hindu Law. There is simply no set of laws that have been devised by a certain person and set down to be followed. Even with the emerging role of the 'raja' and of dispute settlement, the emphasis is still firmly with concern for the cosmic order. I feel Menski phrases it perfect: (2000:171)

"So, despite much evidence of the emergence of more formal Hindu law, many of which fit the pattern of secondary rules in the Hartian sense, the primary rules of ancient Hindu society and its historical successors remain in place" Therefore, I conclude that Hindu law, as it has gone through time, has evolved from loose concepts of macrocosmic order, to a more microcosmic phenomenon. It evolved from having no formal structure, to a legal system that has a leader, or 'raja' that doesn't impose, or create the law, but supervise how dharma is to be carried out.

I feel that the pre classical stage would be best analysed by using the natural law approach, whereas the latter stages, mentioned above would be more usefully analysed by using the historical. To me, the positivist approach, which many individuals have applied when analysing Hindu Law, has place in this subject. Personally, concerning the periods of time discussed above, the positivist school of thought needn't be used to analyse the subject of Hindu Law, as Hindu Law to me has nothing in common with the principles of legal positivism.