4. _Hindu Law._--The Hindu law is in theory of divine origin, and
therefore unchangeable by human authority. Ask a Hindu where his law is
to be found, and he will reply "In the Shasters." The Shasters are
certain books supposed to be divinely inspired, and all of great
antiquity. They contemplate a state of society very unlike that of the
present day, or that of many centuries back. It follows that these
sacred writings, whilst they leave many of the legal requirements of the
present day wholly unprovided for, contain many provisions which no
Hindu even would now think of enforcing. Consequently, in spite of the
theory, the law had to be changed. Legislation, which with us is the
most potent as well as the most direct instrument of change, has had
scarcely any effect on the Hindu law. Probably it never entered into the
head of any Hindu before British rule was set up in India that any human
agency could be entrusted with the power of making or changing the law;
and although both the Indian legislatures and the British parliament
have full power to legislate for Hindus upon all matters without any
exception, they have, in fact, hardly ever exercised this power as
regards the Hindu law. Custom is a less direct instrument of change than
legislation, and operates more slowly and secretly, but its influence is
very great. The custom which supplants the sacred law may indeed be as
old or older than the sacred law, and its existence may be due to the
divinely inspired law having failed to displace it; or the habits and
necessities of the people may have engrafted the custom upon the sacred
law itself. In either view there has been no difficulty in accepting
custom where it varied from the sacred law. Indeed, the sacred books
themselves recognize to some extent the operation of custom. Thus we
find it said in the Laws of Manu (viii. 4, 1), "the king who knows the
sacred law must inquire into the laws of castes, of districts, of gilds
and of families, and thus settle the peculiar law of each." It is to the
influence of custom that the divergence between the Hindu law of to-day
and that of the Shasters is largely due. Another method by which law is
developed, and one more subtle still, is interpretation; and it is one
which in skilful hands may be used with considerable effect. Without any
dishonesty, people very often find in the language of the law words
sufficiently vague and comprehensive to cover the sense which they are
looking for. The action of interpretation upon Hindu law differs
accordingly as it took place before or after the British occupation.
Formerly the only persons whose interpretation was accepted as
authoritative were the writers of commentaries. But the Indian courts
are very sparing in accepting modern commentaries as authoritative,
though nevertheless they carefully record their own interpretations of
the law, and these are always treated as authoritative. It follows, from
Public-domain text, read in full here on John Shaqi.
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