The spirit and the flesh of Hindu law.

• Author: Lubin, Timothy

The legal dimension of India's cultural heritage, especially the scholastic dharma tradition in Sanskrit commonly known as "Hindu law" has after a long hiatus begun to attract attention, thanks largely to a series of major publications by Patrick Olivelle, which have made the primary sources more widely accessible and better understood. Now Don Davis has written a book on Hindu law that will interest readers of many backgrounds and interests. Specialists on dharmasastra will appreciate his very original views of the scope and aims of the tradition, as well as his judgments on vexed points. Those interested in South Asian religions, or Hindu traditions in particular, will be challenged to wrestle with his deliberately provocative assertions of the definitive role of dharmasastra in constituting what is "Hindu." Legal philosophers are urged to take instruction from Hindus on the nature and ends of law itself, and dharmasastra's canonization of authority of customary norms (acara) extends the horizons of legal pluralism and legal realism. Denizens of the study of religion more broadly can look to this volume as a case study of law as "the theology of everyday life." This volume draws together the threads of a decade of work almost wholly devoted to the subject, and weaves them into a remarkably compact and elegant treatise. There is much to be learnt from reading it, thanks to its well-seasoned and authoritative exposition of the tradition and its interpretative gambits, and readers will find here a worthy opponent with whom to debate.

In this spirit, I will begin where Davis does, with the apophthegm that condenses his central argument: "Law is the theology of everyday life." Many will find this startling, and then wonderfully apt and even revelatory. Like a prism, it provokes novel insights as one turns it about in one's head. But why "theology" rather than, say, "philosophy" or "metaphysics"? Any of these terms refers to a refined and scholastically produced discourse that seeks to get to the heart (or soul) of human experience, and likewise, any of them would produce the same pleasing dissonance when applied to "everyday life." "Philosophy" and "metaphysics" in the classical senses are indeed little different from theology insofar as they aimed at spiritual or divine Truth beyond parochial experience and concerns.

"Theology," on the other hand, comes with some unwanted baggage, which Davis carefully stows at the book's point of departure. Invoking a range of voices from St. Anselm to Gladstone, he points out that theology (like law) orders knowledge and applies reason to matters of sentiment and sensibility. Davis is inclined to see law as a type of theology also because he recognizes the large area of overlap between religion and law, which in the case of Hinduism amounts to an "essential indistinguishability." (1) Theology and jurisprudence similarly negotiate the space between rule and practice (p. 6).

Another argument in favor of "theology" might be that law (in general, not just Hindu law) often treats its highest sources (e.g., the Constitution) as having an almost scripture-like authority, and as manifesting principles that transcend human convention (e.g., natural-law axioms such as the wrongness of murder), which may be asserted even in a self-consciously positive legal regime. These may be regarded as the "divinity" of everyday life of which law is the theology. But some readers may feel that this is an unnecessary, and potentially unhelpful, metaphorical reach.

This is a review article of The Spirit of Hindu Law. By Donald R. Davis. Jr. Cambridge: Cambridge University Press, 2010. Pp. xx + 194. $85.

One perhaps unintended but nonetheless suggestive corollary of calling law the "theology of everyday life" is that it acknowledges something important about theology: that it has generally been an elite, rather esoteric discourse purporting to disclose truth, put in service of an institution that wields authority and power over laymen. Rule of law has the capacity to become a tyranny; so too theology. Its authority is vested in a priesthood of experts and functionaries. Both tend to lay claim to supremacy and universality, and to trample dissenters (unless those dissenters succeed in winning a measure of autonomy or exceptionalism within the regime, or in mounting an alternative system). Davis alludes only obliquely to these social-historical factors at the very end of the book (pp. 172-75).

But this sort of analysis lies beyond Davis's aim, which is mainly a constructive and comparative engagement with the tradition. Davis has designed the book in such a way that it introduces seven concepts basic to dharmasastra, one per chapter (the framing concept of dharmasastra itself appearing in the introduction). Each chapter has three sections that perform three tasks: (i) the concept is "explained insofar as possible in its own terms, that is, situating it in the context of the assumptions and worldview of the authors of Hindu legal texts"; then (ii) it is "linked to other Hindu jurisprudential ideas and the broader traditions of Hinduism"; finally (iii) it is considered comparatively in relation to important issues in ethics, law, and religion (p. 13). While the first two sections of each chapter build up a description and analysis of the central features of dharmasastra thought, the third proposes to show how it can contribute to ethics, legal studies, and the study of religion beyond the ghetto of Indian studies. Davis argues that the study of Hindu law is valuable in that, "[f]or those...