Oriental And Occidental Approaches To Law - Legal Articles By Dr. Vijender Kumar *
Analytical positivists, namely, Bentham, Austin, Kelsen and Hart believe in the separation between law and the ideology of law. However, for jurists of Historical, Sociological and Realist schools, the study of the different branches of learning, like philosophy of law, ethics and economics, etc. is inevitable for the proper understanding of law.
The reason why western positivist thinkers could not appreciate our legal philosophy is well explained by Sri Aurobindo. He observes:
"The dignity given to human existence by the Vedantic thought and by the thought of the classical ages of Indian culture exceeded anything conceived by the western idea of humanity. Man in the West has always been an ephemeral Creature of Nature only, or a soul manufactured at birth by an arbitrary breath of the whimsical Creator and set under impossible conditions to get salvation."4
An individual in Sri Aurobindo's estimation, and rightly so, ... can even become a free, perfected semi-divine man, mukta, siddha.... His spirit can become one with God.... His nature can become one dynamic of power with universal Nature or one Light with a transcendental Gnosis.5
The aim or end of law was to create conditions so that people could come out from their limited egos and move towards real perfection. It is said, "Anarchy is abhorred, not only for the physical havoc it may cause to people but for its effect in impeding their efforts to attain mukti."6 A legal order not taking note of this invisible fourth dimension of human personality (as described by Sri Aurobindo) is not only non-Indian in nature but also incomplete and inadequate as it does not satisfy the aspirations of the people and fails to give them guidance in making life worth living above crude animal existence. Now, when
is free, absence of will to revitalise our ancient legal philosophy on our part would be dangerous to the entire humanity. The positivist western mind finds it difficult to give this conception the rank of a "living and intelligible idea."7 India
Ethical and intellectual enrichment of personality through the practice of strict discipline—dharma ensured social harmony, as well as political, economic and legal structure. Socio-legal structure paves the way for balanced development of personal liberty. The law codes of ancient
in order to achieve this aim or ideal classified the society into four varnas to serve the political and economic requirements of collective life. Sri Aurobindo's observations are of special worth in this connection: India
For the real greatness of the Indian system of the four varnas did not lie in its well-ordered division of economic function; its true originality and permanent value was in the ethical and spiritual context which the thinkers and builders of the society poured into these forms. This inner content started with the idea that the intellectual, ethical and spiritual growth of the individual is the central need of the race.8
Thus, the lawgivers prescribed certain rules of discipline or dharma for each member of the society according to his capacity and requirements.
In modern times
kama and artha (desire and wealth) are expanding at the cost of the other two i.e. dharma and moksha. The thrust of the whole socio-legal system in modern times is to regulate desire and wealth without caring for their nature and impact on social life. [Sri Aurobindo: The Foundations of Indian Culture, (1972), p. 98. Return to Text Ibid., pp. 98-99. Return to Text K.V.R. Aiyangar: Some Aspects of Hindu View of Life According to Dharmasastra, (1952), p. 176. Return to Text Manu, X, 99. Return to Text Sri Aurobindo: The Foundations of Indian Culture, (1972), p. 113. Return to Text
of Law, NALSAR University , Shameerpet, RR District, Justice City 78. The author pays his sincere gratitude to his guru, guide and philosopher Professor S.D. Sharma, Chairman and Dean, Faculty of Law, Kurukshetra University, Kurukshetra (Retd.), who instills in the author the interest to study in depth the principles of ancient Indian legal theory and compare the Indian theories of law with the Western legal theories. This article is an attempt towards the same. Return to Text] Hyderabad