This chapter surveys forms of status by which legal systems assign rights, obligations and capacities to various categories of person. Though such discussions have tended to restrict themselves to statuses recognized in Roman law (the hierarchical birth-based statuses that Maine contrasted with the contractualism of later Western systems), cross-cultural comparison requires a wider lens. Hence, the chapter covers status within the polity, official or military status, unfree or servile status, putatively ‘natural’ statuses, status in the family and status as member of a voluntary or professional association. Special attention is given to the mechanisms involved in change of status, and to status as a factor in legal penalties. It is proposed that, in systems of religious law (which often operate parallel to civil law in a legal-pluralist context and across borders), status within the ‘ecclesial’ polity is comparable to civil status (citizen, resident alien, etc.) within a territorially defined polity.

This chapter deals with all manner of state-derived prohibitions. Ancient states prohibited a broad variety of behaviours, threatening punishment for those who would transgress boundaries. The logic of prohibition was wide-ranging: from the marking of spaces, objects and officials as somehow distinct from the rest of ‘society’, leading factions within ancient states sought to preserve and protect their individual prerogatives. They also sought to reinforce their claims to leadership by incentivizing subjects to settle their disputes in state-sanctioned venues. The evidence for such prohibitions is extensive, but did they add up to something that we might legitimately call ‘social control’? Did ancient states succeed at inducing subject populations to accept their claims to rule? If so, how? This chapter suggests that the logic of prohibition was a site of contestation for both statecraft and subject-craft.

Chapter 10 surveys the history, the concepts and the institutions of property in premodern India, China, the Near East, Egypt, Greece and Rome. Formal rules of ownership and inheritance formed the basis of all premodern legal regimes and undergirded economic performance (for instance, growth), as has been frequently stressed by New Institutional Economists. The enforcement of property rights reveals a good deal about the diverse economies, environments and cultures of premodern societies. The chapter summarizes the sources for property rights, which are rich and varied; and the control and use of resources occupy a considerable part of private legal documentation in all premodern systems that have yielded written material.

In this chapter we treat law as inextricably connected to a text. We examine the ways in which laws and other elements of the legal process, including documents, procedural records, and judicial opinions and commentaries, are produced, preserved, transmitted and communicated to various audiences in ancient Greece and Rome, the ancient Near East and Egypt, ancient India and ancient China. We include discussions of when and how texts first emerged in these societies, the materials on which they were written and preserved, and other special features of their written texts, such as language, syntax, degree of precision, and organization and codification. We also examine these aspects of secondary legal texts, including historical accounts and reports, literature, philosophical, religious and other intellectual works, non-legal documents, instructional materials and visual ‘texts’, to see how these contributed to the understanding of law as text.

Ancient and medieval India (prior to ca. 1600) produced a vast literature dealing with the nature of the human being, the proper ordering of society, and ethical and legal norms. Sanskrit sources tend to emphasize special dignities belonging to particular statuses according to a divinely ordained class hierarchy (varṇa-dharma). But in some contexts we hear of universally shared aspects of the human condition. Ascetic and devotional movements call into question special dignities tied to ascriptive rank. Sanskrit texts on good governance formulate general standards of justice and equity that could cut across or bypass rank. Thus, Hindu sources illustrate how ethical and legal orders find ways to compartmentalize: to recognize that all people can share basic capacities does not automatically sweep the field clear of status dignity. This essay draws on Jeremy Waldron’s concept of human dignity as a status claim that “levels up” by attributing to all people a dignity once reserved for a privileged few. We note Hindu examples of a similar approach, as well as examples of “leveling down” by pointing out the hypocrisy of elites while extolling the virtues of which the lowly are capable.

Introduction

Aśoka's reign ushered in an era of major transformations in India's religious life. The 6th to 4th centuries BCE had witnessed, in the plains around the Ganges and Jumna rivers, the emergence of the first urban centers in South Asia since the Indus Valley Civilization. While the precise reasons and mechanisms for this development are not fully understood, it has long been taken for granted that it is not mere coincidence that it was accompanied by equally dramatic changes in the sphere of religion —especially the rise to prominence of ascetical movements. Although the precise origins of such movements are unknown, they appear on the scene in two species: one emerging from within the Brahmanical priestly religion that was already more than half a millennium old, and another comprising self-consciously anti-Brahmanical doctrines traced back to legendary teachers whose authority resided in their personal accomplishments (Gotama the Buddha, the ‘Enlightened’; Mahāvīera the Jina, the ‘Victor’). As this story is generally told, it is the Buddhists and the Jains who are in the limelight, bringing new ideas to an old world, challenging the cant and rigid orthodoxy of the brahmin priesthood, just as the early Christians were said to have exposed the hypocrisy and superficiality of Pharisaic piety. And rather as the new Christian vision was embraced and established in the Roman Empire by Constantine, the emperor Aśoka Maurya proclaimed the Buddha's dharma to be the religion of this new world.

Law and religion have much in common as social institutions and as historical phenomena. Broad areas of overlap and even broader areas of complementariness between these spheres have been observed in Roman, Judaic, Christian, and Islamic societies, and have generated a vast literature. There is also a rich ethnographic literature on law in nonliterate societies, emphasizing dispute resolution, informal legal process, and cultural context. Yet India’s potential contribution to this field has remained almost completely unnoticed, despite both the fact that the Hindu and Buddhist religions have produced vast and highly refined legal literatures, and the fact that the Hindu religious texts and Indian legal practices became the focus of intense scrutiny by European scholars during the centuries of colonial administration. This volume is intended to begin to rectify this oversight by offering an up-to-date and accessible analysis of the main features and periods of what has conventionally been called Hindu law, and of the interrelations between law and Hinduism more broadly, up to the present day. Furthermore, several of the chapters break new ground in developing interdisciplinary approaches to the study of Hinduism and law – for example, in examining the literary articulations or the ritual dimensions of law in Hindu contexts.

“Hinduism”

Numerous stumbling blocks lie before the readers of this book. Its title itself displays two of them: “Hinduism” and “law.” The term “Hinduism” is of modern coinage, and was not used by any Hindus themselves as a religious category until the middle of the nineteenth century, when they began to appropriate it from European usage. “Hindu” was initially more an ethnic label than a religious one. The Persians, and then the Greeks, used it to refer to the peoples living around and beyond the Sindhu River (which they pronounced “Hindu”; “Indus” and its derivate “India” reflect the Latinized form of the Perso-Greek name). Indians (of whatever religion) do not seem to have applied the label to themselves until after Turkic rulers had established Persianate Islamic kingdoms in several parts of India, especially after 1206; late medieval works speak of “Turaka” or “Turuṣka,” which designated ethnic Turks and Arabs, and only secondarily Muslims in general, much as in earlier centuries “Yona” (or “Yavana”) was applied not merely to Ionians but to any denizen of “the West” (i.e., Persia and beyond). Vis-à-vis the “Turaka,” “Hindu” meant simply Indian.