Ācāra
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Ācāra (
Ācāra as customary law
Customary law within the context of Hindu law is defined as akin to the community norm of a particular region. This form of law encompasses laws that are actually applied to daily life, as opposed to theological laws canonized in texts which are accessible for only a small proportion of the population.[3] In this sense, customary law represents the actual practice of law in classical Hinduism, while laws found in the Vedas, smṛti, and śruti literature represent the theoretical practice.[5]
Ācāra, however, is a particularly narrow scope of customary law. What separates it as a category is that these laws are put into practice by people who hold a particular power over that set group.[2] The power is determined by a theological connection to the divine through a full understanding of Vedic literature. These people are also known in dharma literature as the sadācāra.[2] Although dharmasastra identifies the sadācāra as the ideal person for creating laws because they are so fluent with Vedic knowledge that the laws they choose to enforce are in line with the Vedas, in reality, the power to develop laws shifted over time from Vedic scholars to community leaders whose actions gained the respect of their fellow community members and were distinguished as "good people" even if they lacked direct knowledge of the Vedas.[6]
Eventually, even the laws penned by those not versed in the Vedas were connected back to Vedic literature. According to Mitramiśra, even the customs of
Sadācāra
According to the
Source of Dharma
Many texts within the Hindu Law tradition refer to ācāra as the third
In descending rank in hierarchy, the sources of dharma are:
The power of ācāra within this hierarchy comes from its ability to connect with the Vedas. This connection comes either through the sadācāra, or leader, who establishes the ācāra because of his knowledge of the Vedas, or through citing an additional text as a source that is itself connected with the Vedas.
Textual Accounts
There are a number of telling references to ācāra in Dharmaśāstra texts which reveal the real importance custom had for the settling of legal disputes. Nārada, for example, states that when something stated in a text on dharma conflicts with custom, custom wins out over the text.[11] Asahāya, in his commentary to this statement, confirms that the texts should never overturn lokācāra, or the "customs of the people." Yājñavalkya 1.156 agrees that what is considered anathema by the people, even if proscribed by the smṛtis, is not to be enforced. Manu 8.41 likewise states that a judge must study the specific laws practiced by castes (jātidharma), particular regions (janapadharma), and families (kuladharma) before making any legal pronouncements relating to them.
Even in rules concerning legal procedure itself, the importance of custom is evidenced. Nārada 1.115 states that the validity of documents, i.e. whether they must be witnessed, written in one's own handwriting, etc., should be determined based on local conventions.
With regard to individual groups' own self-governance, Nārada 10.2-3 requires that the king allow
Various scholars hold differing ideas about the origin of the recorded ācāra found in Dharmaśāstra literature such as the
A different origin for the textual accounts of ācāra stated by scholar Donald R. Davis Jr., claims the ācāra of the time was not directly recorded verbatim, but instead influenced the scholars who crafted smṛti literature. However, even without the direct approval or recording done by classically defined sadācāra, or Vedic scholars, the community norms of a particular location dictated by their own leaders, who may not be Vedic scholars, remained meaningful.[2] This demonstrates a view in which a particular practice doesn't have to be directly tied to the Veda in order for it to be honored as ācāra.
Role of Ācāra in Hindu Law
Various difficult questions arise in regard to the relative force of śruti, smṛti, and ācāra in Hindu law and numerous rules have been laid down in cases of apparent and real conflicts among them.[13] "Ācāra (customs and usage) are transcendental law, and so are the practices declared in the Veda and the smṛti; therefore a twice-born person desirous of his own welfare should always make effort to follow it."[14] The meaning of ācāra itself has changed over time in Hindu law. In the earliest days, ācāra that was to be followed was that observed or declared by learned Brahmins who were highly moral and selfless. Gradually, however, usage that had no visible secular purpose came to be looked upon as binding. Eventually, even customary norms of Śudras became enforceable by the king. In this manner, ācāra became the actual source of Hindu law in more contemporary times. Commentaries on the śāstras indicate an attempt to reconcile the text law with the actual usages of the people.[15]
See also
- Śāstra pramāṇam in Hinduism
- Common Law
- Law of the land
Notes
- ^ Davis, Jr. Donald R. Chapter One.
- ^ a b c d Davis, Jr. Donald R. Chapter Seven
- ^ a b c d Davis, Jr. Donald R. Chapter One
- ^ Lariviere, Richard W. 1997. pp. 612.
- ^ Lariviere, Richard W. 1997. pp. 623
- ^ a b Hacker, Paul. 2006. pp. 484
- ^ a b Lariviere, Richard W. 1997. pp. 618
- ^ Davis, Jr. Donald R. Chapter 7
- ^ See Jonardon Ganeri's discussion of appeals to a "lost Veda" in "The ritual roots of moral reason: lessons from Mīmāṃsā", p. 213
- ^ Hacker, Paul. pp. 2006. 485
- ^ See Nārada Mātṛkā 1.34
- ^ See also Bṛhaspati 2.29-31
- ^ Kane, P.V. pp. 863
- ^ Manusmṛti 1.107
- ^ Kane, P.V. pp. 876
References
- Davis, Jr. Donald R. Forthcoming. Spirit of Hindu Law
- Hacker, Paul. 2006. “Dharma in Hinduism.” Journal of Indian Philosophy 34:5
- Kane, P.V. History of the Dharmaśāstras Vol. 3
- Lariviere, Richard W. 1997. "Dharmaśāstra, Custom, `Real Law,' and `Apocryphal' Smrtis." Recht, Staat, und Verwaltung im klassischen Indien. ed. Bernhard Kölver. Munich: R. Oldenbourg
- Ganeri, Jonardon. "The ritual roots of moral reason: lessons from Mīmāṃsā." in Thinking Through Rituals. edited by Kevin Schilbrack. London: Routledge, 2004.