The Indian jurist Radhabinod Pal passed away in 1967, yet he has become an academic celebrity in recent years. Pal is famous in some quarters and notorious in others for his dissenting opinion in the Tokyo War Crimes Trial (1946–48), in which he sought to acquit twenty-five leaders of wartime Japan who were accused of crimes against peace, crimes against humanity, war crimes, and murder (see Figure 3.1).Footnote 1
His lengthy opinion in that case, which was motivated by anti-colonial sentiments, has been lauded by some scholars as an early example of TWAIL (Third World Approaches to International Law) scholarship. It is, therefore, no wonder that most of the works written about him have been written by international law scholars.Footnote 2
Pal also wrote extensively on the history and philosophy of Hindu law, but his works on these topics have received far less scholarly attention. Some scholars have entirely ignored Pal’s theoretical works. Others have mentioned them, but they are not the primary focus of the discussion. Pal’s most detailed biography was written by the Japanese historian Nariaki Nakazato. Nakazato’s book seeks to provide a nuanced (and somewhat unflattering portrait) of Pal in order to counter the “Pal cult” prevalent in Japanese right-wing revisionist circles.Footnote 3 Although Nakazato does discuss Pal’s works on the philosophy and history of Hindu law, these are not central to the book.Footnote 4 Other authors exploring Pal’s jurisprudential thought seek, like Nakazato, to provide a thicker context to Pal’s Tokyo dissent.Footnote 5 None of these works examines Pal’s jurisprudential ideas in their own right, unlike this chapter, whose focus is Pal’s jurisprudential works rather than his Tokyo dissent.
Life and Works
Pal was born in 1886 in a village in the Kushtia district of Bengal, now part of Bangladesh. He came from a family that belonged to an artisan (potters) caste.Footnote 6 His father disappeared when Pal was just three years old. However, his uneducated but ambitious mother pushed the child to excel in his studies, having as a model Sir Gooroodas Banerjee, a Bengali judge of the Calcutta High Court and the first Indian vice-chancellor of the University of Calcutta.Footnote 7 After studying at a series of provincial schools and at Rajshahi College in northern Bengal, Pal enrolled at the best Indian college of the time, Presidency College in Calcutta, where he acquired a master’s degree in mathematics in 1907. In 1909, he obtained a law degree from Ripon College, another Calcutta institution. Between 1908 and 1911, Pal worked as a clerk in the Accountant-General’s office in Allahabad. In 1911, he returned to Bengal and, until 1920, taught mathematics at Ananda Mohan College in the town of Mymensingh, north of Dacca, and also practiced law there. In 1920, Pal earned a master’s degree in law from the University of Calcutta, and, at the suggestion of Sir Asutosh Mookerjee, the leading Bengali lawyer and educator, he resigned from his post at Mymensingh and moved to Calcutta.
In 1921, Pal started practicing as an advocate in the Calcutta High Court, and in 1923, he took up a teaching post at the Calcutta University College of Law. His doctorate, awarded in 1924, was based on a dissertation on the Hindu philosophy of law.Footnote 8 Pal’s interest in the topic may have been the result of the influence of his mentor, Mookerjee, or perhaps even the fact that his childhood model, Sir Gooroodas Banerjee, had also written on the topic.Footnote 9
As a lawyer, Pal specialized in income tax litigation, serving as a legal advisor to the Government of India’s Income Tax Department.Footnote 10 In the early 1940s, he was appointed to a temporary judicial position as an officiating judge of the Calcutta High Court. Between 1944 and 1946, Pal held the position of Vice-Chancellor of the University of Calcutta. On three occasions, he was invited to deliver the prestigious Tagore Law Lectures. Only one other lecturer in the history of this lecture series had this honor bestowed on them three times.Footnote 11
In April 1946, Pal was appointed the Indian judge in the Tokyo Trial. Given his nationalist leanings, it is somewhat surprising that the British rulers of India nominated him – but this was probably due to a bureaucratic blunder by the British authorities. Pal was neither the first nor the second choice for the position. The initial nominee declined due to health issues, while the second failed to respond altogether. With the deadline for nominating an Indian judge rapidly approaching, British officials hastily turned to a pool of retired and serving Indian High Court judges. Although Pal was only a temporary judge at the time and did not strictly meet the qualifications, he applied and was ultimately selected. Owing to the urgency of the situation, no thorough evaluation of his political views was conducted.Footnote 12 Pal had already been involved in high-profile international legal activities before the Tokyo Trial. In 1937, for instance, he was appointed joint chairman of the International Academy of Comparative Law. However, it was Pal’s dissent in Tokyo that made him famous the world over, especially in Japan, where his opinion was perceived in some circles as a sign of Asian solidarity against Western imperialism. After the Tokyo Trial, Pal served in a series of prominent positions. In 1952, he was elected to the UN-sponsored International Law Commission, becoming its chairman in 1958 and again in 1962. In 1957, he became a judge of the Permanent Court of Arbitration in The Hague, and in 1959, he was appointed National Professor of Jurisprudence by the Indian Government.
While Pal’s political views and affiliations changed over the course of his life, generally speaking, he can be described as an anti-colonial thinker influenced by pan-Asian ideas, Indian nationalism, and (to a certain extent) also Hindu nationalism.Footnote 13 The sources of his Pan-Asian ideology go back to 1905. In the spring of that year, Japan won the Russo-Japanese War, providing a model for anti-colonial activists across the non-Western world. In Bengal, Japan’s victory coincided with a political crisis that was the result of the partitioning of the province by the British, inspiring a nationalist awakening with which Pal came to identify.Footnote 14
Pal had several friends who were Indian nationalist activists. When he was a student at Presidency College he befriended Sarat Chandra Bose, the elder brother of Subhas Chandra Bose. Later, he would become an admirer of Bose’s younger brother. The young Bose was the president of the Congress Party in the late 1930s. During the Second World War, he fled India to Nazi Germany. He was later appointed Commander of the Indian National Army, a military force that collaborated with the Japanese Army. Other acquaintances of Pal, too, or their relatives, were involved in radical Indian nationalist agitation and anti-British terrorism in Bengal.Footnote 15
Pal was also connected with people associated with Hindu rather than Indian nationalism. In 1923, the Hindu nationalist activist V. D. Savarkar popularized the term Hindutva (Hinduness) to designate this ideology, which identified contemporary Hindus with the ancient Aryans and the Sanskrit language and argued that all Hindus shared a common race and a common culture. The notion of Hindutva was propounded by several radical right-wing political movements in India during the late-colonial period, movements that were somewhat inspired by, or had ties with, European fascism.Footnote 16 Pal was in close contact with Syama Prasad Mookerjee, the son of his University of Calcutta mentor, Asutosh Mookerjee. Syama Prasad, like his father, served as Vice-Chancellor of the University of Calcutta in the 1930s and then embarked on a Hindu nationalist political career. In 1943, Syama Prasad became president of the nationalist party Hindu Mahasabha. In 1951, he founded the right-wing Bharatiya Jana Sangh, a precursor to the Bharatiya Janata Party, one of the two major Indian political parties today. Like his father, Syama Prasad espoused a cultural-nationalist vision of Indian higher education.Footnote 17 Pal’s relationship with Syama Prasad and his followers at the University of Calcutta was somewhat uneasy.Footnote 18 However, his main biographer, Nakazato, states that he was associated with the “periphery” of the Hindu Mahasabha party and “had many things in common with what is today called Hindu nationalism.”Footnote 19
During Pal’s term as Vice-Chancellor of the University of Calcutta, he was involved in several nationalist incidents: In his 1945 convocation speech, Pal mentioned the need to serve the cause of Indian freedom, prompting the British Governor of Bengal to storm out of the hall. In the following year, Pal invited Jawaharlal Nehru, the future prime minister of India, newly released from a British prison, to give a convocation speech. Pal, together with Syama Prasad Mookerjee, was also present during violent student demonstrations that took place in Calcutta in November 1945 in protest at the trial of Indian National Army officers by the British.Footnote 20
Pal published several books during his lifetime. This chapter will focus on his works on Hindu law. Modern specialists do not hold these works in high regard, and they are seldom cited.Footnote 21 However, my interest lies not in a “vertical” chronological discussion of the history of the modern scholarship on Hindu law, or Pal’s influence (or lack thereof) on it, but in comparing some of the major themes found in Pal’s works with those found in the work of the other legal scholar whose thought I will examine in detail in the next chapter, on Samuel Eisenstadt.
Pal’s doctoral dissertation served as the basis for his book The Hindu Philosophy of Law in the Vedic and Post-Vedic Times Prior to the Institutes of Manu. This book was published in Calcutta around the mid-1920s.Footnote 22 It was then used for Pal’s 1930 Tagore Law Lectures, which he delivered in 1932.Footnote 23 The lectures were ultimately published in 1958 in a book entitled The History of Hindu Law in the Vedic Age and in Post-Vedic Times Down to the Institutes of Manu.Footnote 24
The relatively short 1920s book was mainly based on Pal’s reading of the Vedic hymns augmented by some references to works of Indologists such as Max Müller and the writings of Western political and legal philosophers – from Aristotle and Plato to Hobbes, Kant, John Austin, and Roscoe Pound. Pal began his book by discussing the importance of studying the “early Hindu fundamental conceptions of law” to reveal “the eternal glory of the old Hindu-philosophical-legal mind.” This perspective was important, he argued, both because ancient Greece and Rome were “indebted to Vedic India,” which had influenced their conception of law, and also because studying this history was “essential for a Hindu,” since law reflects “the immutable soul of the races.”Footnote 25 A brief overview of major Western theories of law followed. Pal then moved to a survey of the legal ideas embodied in specific Vedic hymns, attempting to attribute particular legal (but also theological and cosmological) ideas to specific Vedic sages. Pal also discussed legal concepts common to all “early Aryans” during the Vedic period. His survey then turned to the Hindu philosophy of law during the Brahmana and Sutra periods, when Hindu thinkers came to emphasize the function of law as a method for preserving the status quo, including the caste system.Footnote 26 Major themes in Pal’s analysis included the ends of the law, the social order, the Hindu doctrines of welfare and utility, the origin and role of the state, the sources of law, the place of custom as a source of law, and the role of reason in the creation of legal norms.
Pal’s 1958 book, The History of Hindu Law, was far longer than his earlier Hindu Philosophy of Law and contained two parts. In the first part, Pal discussed Vedic society, political institutions, and the legal philosophy of the Vedic period, followed by developments in Hindu legal philosophy in the later Brahmana and Sutra periods. The second part of the book was devoted to an overview of the norms of Hindu law in the different epochs between the Vedic period and Manu’s Code, each chapter discussing several categories of law (the law of persons, property, contract, crime, and procedure).
Another work related to Pal’s interest in Hindu law was The History of the Law of Primogeniture: With Special Reference to India, Ancient and Modern, based on his 1925 Tagore Law Lectures, delivered in 1926. The 558-page book, published in 1929, was extremely ambitious. Unlike most other Tagore Lectures, it was not confined to India but dealt with the comparative history of primogeniture. The parts dealing with regions outside India were based on secondary literature, while those dealing with India were original.Footnote 27 About half of the book was devoted to the global history of primogeniture outside India, containing chapters addressing the ancient world (Egypt, Babylonia, Greece, and Rome), England and English-speaking territories, France, Germany, Russia, China, and Japan. The second half dealt with the history of primogeniture in India from antiquity to the present, beginning with Vedic and post-Vedic times, moving to the period of Islamic rule, and lastly, discussing British India. The work was broad both in its geographical scope and also in its examination of a wide range of legal fields. It analyzed family law, the law of inheritance, property law, and various subfields of public law, such as constitutional, administrative, and tax law. The attempt to trace the global evolution of the concept of primogeniture led Pal to examine the history of this notion beyond private law, venturing into the rules regarding the inheritance of official positions, including those of kings or tax collectors.
Ideas
Western Jurisprudential Influences
Pal’s works echoed themes found in nineteenth-century nationalist, evolutionary, and racial theories of law that appeared in Germany and England. It seems that Pal drew from the early nineteenth-century German Historical School the notion that law reflected the “spirit of the people” or, as he put it, “a people’s individuality and originality … finds expression notably in its law.”Footnote 28 The mid nineteenth-century evolutionary version of the historical approach to law, embodied in the work of English scholar Henry Maine, also influenced Pal. One conspicuous influence of Maine’s work was found in Pal’s attitude to the type of sources that could be used to study ancient law and legal thought. A major source used by Pal in all his works was the Vedic hymns. Here, he followed Henry Maine’s approach in his book Ancient Law of using poetry to reconstruct ancient law. Just as Maine turned to Homer to learn about the law of the ancient Greeks, so Pal turned to the ancient Vedic hymns, extracting from them “concepts of law.”Footnote 29 Pal was also inspired by and accepted the idea that there were evolutionary stages through which every legal system was supposed to pass.Footnote 30
While a major jurisprudential influence on Pal’s scholarship was Henry Maine’s evolutionary legal thought, Pal’s works also showed an awareness of developments in early twentieth-century Western jurisprudence, especially the growing influence of sociology. His 1918 Introductory Lecture discussed the history of the Vedic Aryans with reference to the works of the nineteenth-century sociologist Herbert Spencer.Footnote 31 In his 1920s book The Hindu Philosophy of Law, Pal mentioned the works of two pioneers of the field of legal sociology, the American scholar Roscoe Pound and the Austrian scholar Eugen Ehrlich. In this book, Pal wrote that historical jurisprudence was “discredited for the moment” and observed that “the fashion of the time calls for a sociological legal history” that is a study not merely of how legal doctrines evolved in the past but also “the social causes and social effects of legal doctrines” and the relationship of legal history to social and economic history. Given the lack of sources, it was impossible, Pal admitted, to offer a thorough sociological analysis of how the social circumstances of the ancient Aryans gave rise to their legal ideas.Footnote 32 Nevertheless, Pal’s general understanding of the law was certainly influenced by the sociological approach, as is evident in his functionalist analysis of ancient Hindu law as a mechanism serving the “mundane” purpose of “the preservation of society” by providing stability.Footnote 33
The Antiquity and Superiority of Ancient Hindu Law Compared to Western Law
Nineteenth-century European representations of Hindu law, and of “Oriental law” more broadly, frequently cast it in a negative light, especially in contrast to Western legal traditions. Pal dedicated significant portions of his work to challenging these portrayals. His strategy, which mirrored that of many non-Western intellectuals of the era, can be described as a form of “triumphal apologetics,” that is, an argumentative approach that not only sought to refute Western depictions but also asserted that Hindu law was in fact both more ancient and superior to its Western counterpart.Footnote 34
Pal opened The Hindu Philosophy of Law with the argument, taken from the German legal philosopher Fritz Berolzheimer, that the legal and ethical conceptions of the Vedic Aryans influenced the ancient Greeks and Romans and, through them, all later European nations.Footnote 35 His 1929 book, Law of Primogeniture, too, praised non-Western law, generally, and Hindu law in particular. According to Pal, India, Babylonia, and China were “the three seats of archaic civilization,” and “the ancient history of each is absolutely free from European influence.”Footnote 36 In his 1958 book, Pal also made efforts to show the antiquity of Hindu law. In the Preface, Pal observed that “the history of Hindu law in the Vedic age really marks the dawn of law itself on this planet.”Footnote 37 Relying again on the work of Berolzheimer, Pal argued that the Hindu concept of cosmic (and human) order, rita, as the basis of all law, influenced Greek, Roman, and Christian thinkers. Indian ideas were thus “antecedents of later legal and ethical developments among the Greeks and Romans.”Footnote 38 At another point in his book, Pal criticized Western scholars who sought to “minimize … Vedic civilization” by dating the ancient collection of Sanskrit hymns, the Rigveda, to the year 1000 BC, thus implying that Hindu civilization appeared later than those of Egypt and Mesopotamia. Instead, Pal, relying on the works of previous scholars, argues that the beginning of Vedic culture dates back to about 6000 BC and, thus, predated “Babylon and Egypt.”Footnote 39
Pal did not merely claim that Hindu law was older than Western law. He also claimed that it was better. In his 1920s book, he compared Hindu law to Roman law and “Semitic law” and sought to demonstrate the superiority of Hindu law and Hindu jurists, whom he described as pioneers in creating law and legal philosophy. It is not surprising, therefore, to find that Pal ended this book with a call to his readers to “admire and marvel how in the dim past, when the rest of the world was as yet steeped in darkness, these savants [the ancient Hindu jurists] reached at the light to light the path of future generations, how they struggled, with all their keenness of intellect, to harmonise the discordant and to evolve a cosmos out of a pervading chaos.”Footnote 40
Pal argued that the monotheistic notions of the “unity of God” and the “brotherhood of man” first appeared in India and that, unlike other cultures in which the ideas of the unity of God had led, ironically, to intolerance and persecution, the Vedic Aryans did not succumb to religious dogmatism. This noble tradition, Pal noted, continued in Buddhism, which alone, out of all great world religions, flourished without persecution, censorship, or inquisitions and, in this respect, was “enormously superior to Christianity.” Pal characterized Christianity as a religion that is “wedded to militarism” and justifies its “bloodthirsty tendencies” by “an appeal to the savage Bronze-Age literature of the Old Testament.” In contrast, Hindus and Buddhists, Pal argued, lived side by side in India in peace and were never “guilty … of criminal lunacies [such] as the religious wars of the sixteenth and seventeenth centuries” in Europe.Footnote 41 Regarding earlier eras, Pal noted that the culture of the Vedic Aryans was “far in advance of the culture and civilization of the same period of the people of the countries from which it is said they migrated to India.” In India, therefore, “there was no twilight before dawn” because “the great people which has led the van of Indian culture have left no record of slow and painful struggle onwards through lessening darkness of barbarism towards the light of civilization.”Footnote 42
Evolutionary Schemes, Social Hierarchies, Democracy
Moving to specific topics often found in Western works, negative portrayals of Hindu law mentioned its static nature, its lack of systematization, and its amorality. Western critiques of Hindu law also noted that the substance of Hindu law was problematic because of its inegalitarian and undemocratic nature.
In his 1958 book, Pal sought to subvert the idea, associated with Henry Maine, that Hindu law was “a stagnant system, always standing still” due to its religious nature. Pal argued that this was not the case: Hindu law was dynamic, capable of changing to accommodate new economic and social circumstances.Footnote 43 One indication of the continuously evolving nature of Hindu law was the appearance of Hindu philosophers of law. The philosophy of law, Pal said, arises when an existing legal norm, based on custom, seems inconvenient. In order to change the norm, philosophers turn to reason and nature to justify its replacement. Therefore, the fact that Hindu philosophers of law already appeared during the Vedic era was an indication that Hindu law was dynamic.Footnote 44 A further common Western critique of Hindu law as a legal system that Pal sought to challenge was that it lacked unity and was “disintegrated” (meaning that specific rules applied to particular castes). Pal’s answer to this critique was to state that while Hindu law was personal rather than territorial, the notion of territorial law also appeared in Hindu law.Footnote 45 Finally, another Western critique was that ancient Hindu law was amoral because it lacked the concept of sin. In response, Pal argued that the Vedic hymns actually contain many examples of the belief in God, the perception of the difference between good and evil, and the notion that “God hates sin and loves virtue.”Footnote 46
Moving to the specific substance of Hindu law, a common Western critique was that Hindu law sought to preserve and glorify hierarchical social relations rather than being based on the notion of equality (a concept that is, of course, foreign to ancient religious legal systems in which various types of hierarchies between social groups are common). Specifically, there were three categories of persons that were treated as inferior by Hindu law: slaves, members of the lower castes, and women. Pal, it should be recalled, came from a family belonging to a caste of moderate social standing. He was also involved, later in his life, in encouraging female education (in 1948, he was appointed the president of the governing body of Bethune College, the first Asian institution of its kind for women).Footnote 47 Given these facts, it is understandable that the social hierarchies created by Hindu law would pose a problem for him.
Slavery was only briefly mentioned in Pal’s 1918 book, Introductory Lecture, and was not discussed at all in his 1920s book.Footnote 48 It was also not a major topic in his 1958 book. Pal did note in this latter work that slavery existed in Vedic society, but he qualified this fact in two ways. First, he began his very brief discussion of slavery by stating that:
… from the earliest times in all nations the system by which the stronger enslave the weaker has prevailed. In early times it was usual to reduce to the status of slave all captives taken in war. This was really a step in advance of the earlier indiscriminate slaughter of the vanquished enemies.Footnote 49
Second, while Pal noted that Vedic Aryans treated their slaves more like things than human beings, he nevertheless said that slaves could “improve their status and become almost equal to Aryans.”Footnote 50
As for the Hindu caste system, Pal used several arguments in its defense. First, he claimed that it did not exist in early Vedic society. “In the Rigveda,” he argued, “there is no clear indication of the existence of caste in the proper Brahmanical sense of the word. This caste system was only introduced after the Brahmans had finally established their claims to the highest rank in the body politic.”Footnote 51 Second, Pal acknowledged that, according to Hindu legal philosophy, the purpose of the law was “the preservation of the existing social institutions” – that is, the caste system. However, he argued that other ancient legal systems also regarded law as a method for preserving the social status quo. Specifically, he mentioned the Greeks, noting that the ancient Greek philosophers, too, were convinced that “in every society there must be grades, masters and servants, the privileged and the unprivileged, the upper and lower classes,” and that when the Greeks talked about equality, this was conceived as equality between members of the same class, not between all members of society.Footnote 52
Another method of defending Hindu law from the charge of inequality was to question the desirability of equality itself. In his 1958 book, Pal referenced the anti-egalitarian and anti-democratic ideas of Friedrich Nietzsche.Footnote 53 Indeed, Pal devoted several pages of that work to a summary of Nietzsche’s anti-egalitarian stance (based, it seems, on a chapter in a popular book, Will Durant’s The Story of Philosophy), discussing Nietzsche’s admiration for the Laws of Manu, and repeating Nietzsche’s anti-democratic and anti-Christian ideas.Footnote 54 The allusion to Nietzsche’s thought, it seems, was meant to imply that inequality was not merely a characteristic of ancient societies and ancient law.Footnote 55
Finally, another strategy for downplaying the role of caste in Hindu law may have been to minimize the significance of purity and pollution in Indian social relations. For instance, in his discussion of Nietzsche’s admiration for the Laws of Manu, Pal did acknowledge their “terrible” nature, and the way they were meant to reflect Brahmanical power. He even referenced specific provisions concerning social impurity. However, overall, the theme of purity and pollution was largely absent from his work.Footnote 56
More generally, one might speculate that Pal’s reluctance to directly criticize the caste-based nature of Hindu law might be seen as an academic variant of the concept of Sanskritization – that is, the process by which members of the lower castes seek social mobility by emulating the rituals or practices of the upper castes. Pal’s apologetic attempt to defend Hindu law was, according to this approach, a way to obscure his relatively low social origin.Footnote 57
Regarding the attitude of early Hindu law to women, Pal claimed that they were treated as equal to men. After quoting some verses from the Rigveda that implied that women were treated like chattels, Pal pointed out that there was also evidence that “Aryan women,” at least those belonging to the higher classes, “enjoyed equal freedom with men in all matters, social and religious,” which indicated the “high state of culture” of Aryan society. Similarly, marriage in Vedic texts, noted Pal, was not coerced but based on choice for both husband and wife.Footnote 58 When discussing Hindu law in the Brahmana and Sutra periods, Pal said that modern legal systems were characterized by individualism (treating individual adults as independent of their families) and by seeing women as “self-sufficient units” independent of their husbands. He then commented that, “even under ancient and medieval conditions the legal sense of the Hindus was akin to and approached” that of modern law – for example, by recognizing that women could own property in their own right. This independence, he then noted, declined during the Brahmana and Sutra periods. For instance, in the case of marriage, while the consent of the woman was required during the Vedic age, this was not the case in later periods.Footnote 59
Another aspect of Pal’s perspective on the legal status of women was found in his discussion of matrimonial relations. Explaining the morality of Vedic society, Pal noted that it “differed vastly” from that of the original inhabitants of India, the Dravidians, and “still more from the unmixed barbarism of the other races of India.” The matrimonial relations of Dravidian society were “rather loose” because it was a matriarchal society (unlike the “patriarchal and masculine” Vedic society). Vedic religion was “fairly right and respectable,” in contrast to Dravidian religion, which was “dark and repulsive, obscene and bloody” (presumably because, in Vedic religion, masculine gods dominated the pantheon, while female gods dominated the Dravidian pantheon).Footnote 60
Interestingly, in his book Law of Primogeniture, Pal went so far as to argue that ancient non-Western law had a more egalitarian attitude toward women than Western law. In his discussion of ancient Chinese and ancient Egyptian law and society, Pal approvingly quoted a book by nineteenth-century English author (and early feminist) Edith Jemima Simcox, who noted that, before the Semites and Aryans came to dominate the Old World, the first civilized states were established by “men of some other race – humane, industrious [… and] liberal in the treatment of women.”Footnote 61
Another strand of Western critique of the substance of Hindu law had to do with its alleged incompatibility with the notion of democracy.Footnote 62 In Pal’s 1958 book, he described Vedic political institutions as advanced, relying on the works of scholars of ancient Indian constitutional history such as Kashi Prasad Jayaswal and Benoy Kumar Sarkar (whose works are discussed in detail in Chapter 5). Repeating the claims of these scholars, Pal argued that representative institutions such as parliaments were not an English notion imported to India – they existed in India before the period of the British conquest. Buddhist assemblies were one example of such institutions, Pal explained. However, he argued that “similar institutions” had existed even during the Vedic period, mentioning various types of Vedic assemblies in which “rudiments of the present-day parliamentary practice [were] discernible.” Pal also mentioned republican political arrangements that arose in later periods of Hindu history and were somewhat similar to modern democratic assemblies.Footnote 63 While Pal was keen to show that Indians, too, had their own democratic institutions, he also qualified his comparison between Indian and Western ones, arguing that it would be wrong to equate the two. Quoting the Indian nationalist philosopher (and also revolutionary terrorist leader) Sri Aurobindo, Pal claimed that Indian political institutions were embedded in the “unique mentality” of the Indian race.Footnote 64
Collectivism
A major aspect of Pal’s approach to the issue of law and hierarchical social relations was his rejection of liberal individualist notions of law and society. The interwar and post-war periods were a time when many intellectuals, including Pal, showed interest in alternatives to nineteenth-century liberalism, such as fascism, corporatism, socialism, and communism.Footnote 65 For example, when discussing the nature of law, Pal rebuffed the view that society was merely “an aggregate of isolated abstract individuals.” He noted that the “Vedic Rishis [sages] scarcely ever consider man as ‘a whole in himself’ […] The isolated individual of course is an absurd abstraction in the philosophy of such a people.” According to the Vedic sages, law was a way of ensuring harmony – and harmony relied on “each individual’s keeping within a predetermined groove.”Footnote 66
This was not merely a statement about ancient Hindu society. At one point in Pal’s 1958 book, he embarked on a long digression chastising individualist Western civilization, which, he conceded, was “creative” but was also characterized by the evils of “disintegration and destruction” and “arrogant individualism.” Vedic society was no less creative than Western modern society, he said, but its creativity was distinct in the sense that it sought “integration and balanced co-ordination” – in contrast to “the modern world” (the West), which sought “individual order” as opposed to “collective order.” Western democracy created doubt and anxiety, undermining the communities that sustain the individual: “Freedom in the present-day life has lost its foundation in community and has become a torment; individualism of the present day strips the individual layer after layer of protective tissue. We require individualism, but we require individualism which would not wall man off from community …”Footnote 67
Pal’s Jurisprudential Contributions
Pal’s works on Hindu jurisprudence were, in many senses, derivative. They repeated ideas that had first appeared in texts produced by Europeans or by other, earlier, Indian thinkers. However, since Pal was both a lawyer and a scholar of Indian history, he offered a unique perspective on Hindu jurisprudence, one that combined his ability to read the original Sanskrit texts with his familiarity with Western jurisprudential scholarship. Three specific (although not necessarily original) ideas that characterized Pal’s works are outlined below.
The Aryan Framework
One major aspect of Pal’s 1920s works was the reliance on nineteenth-century Western linguistic, racial and legal theories that divided the world into races and assumed that all members of the same race shared similar legal ideas.Footnote 68 This perspective is reflected in the following statement by Pal:
In passing from one nation to another, we observe shades of jural distinctions, which become material differences when the nations belong to different races. Race is indeed a dominant factor in the effort of the human activity to realise itself. Throughout the ages the diversity of race has influenced indelibly the generation of law. In law, as in other parts of life, the heart of the race is what we must seek to discover …Footnote 69
At the beginning of his 1920s book, Pal stated that comparative law was “a necessary preliminary” to the study of legal philosophy since comparative law would allow us to see, beyond the difference between different legal systems, the “organic unity” of the legal philosophy they share. Given the importance of the study of comparative law, nothing was more important, he said, than “a study of the ancient Hindu minds” and the early “Hindu fundamental conception of law” as a way to discover the shared legal concepts of the “Aryan races [sic].” The Aryans were divided into western and eastern branches, but they all shared the innate “Aryan love for systems,” adding that “there is no world law, only racial laws.”Footnote 70
The theory about the existence of an “Aryan race” was a nineteenth-century European construct.Footnote 71 This theory is, now, of course, no longer in fashion. It was enthusiastically received in colonial India. It was used to prove the affinity between British colonial masters and their Indian subjects (especially upper-caste Indians). However, it could also be leveraged to support an argument for the antiquity and superiority of the Indian Aryans compared to European ones.Footnote 72 The infatuation of Europeans with ancient Indian ideas and symbols was also a feature that appealed to Indian intellectuals.Footnote 73 In Pal’s works, Aryanism served as a tool for critiquing Western monotheistic religions (and, indirectly, Western law). It was also used as a foundation for the rejection of the concept of “oriental despotism” that nineteenth-century European thinkers often used when describing Indian civilization.Footnote 74
Pal contrasted Aryans with the Semites, comparing the Vedic notion of law as a divine order governing the universe with the Semitic notion of God as “a personal and omnipotent Deity who gave the laws [commandments] just as He wills.”Footnote 75 The distinction between the law of the Semites and “Aryan” law was not found in Henry Maine’s work.Footnote 76 Pal may have taken this idea from the work of the nineteenth-century Bengali lawyer and intellectual Bankimchandra Chatterjee, who distinguished between the “Christian God,” who was conceived as a despotic monarch constantly policing his subjects, and the Indian divinity who was immanent in all creatures.Footnote 77 Another possible source for this contrast may have been the works of late nineteenth-century German scholars such as the German Indologist Paul Deussen, who contrasted Hinduism with Judaism and Islam and their “unapproachable and sadistic God.”Footnote 78 Of course, the fact that Islamic law was also a “Semitic” legal system was another advantage of the binary distinction between Aryan and Semitic law, at least for Hindu nationalists.
The distinction between Aryans and Semites also appeared in Pal’s work in his discussion of the Aryan conception of the nature of the state. Relying on the works of the Italian legal philosopher Luigi Miraglia, Pal argued that the “individualistic” Semites never succeeded in creating political stability, alternating between anarchy, despotism, and theocracy. In contrast, the Aryans created balanced governments composed of a king, a senate, and a general assembly.Footnote 79
Interestingly, the emphasis in Pal’s 1920s book on the “Aryan races” and the comparison between Semites and Aryans was toned down in his 1958 book. The term “Aryans” still appeared in the latter book. At one point, Pal still contrasted the Hindu gods with the “Semitic God” (whom he described as “whimsical and despotic”).Footnote 80 In another place in this book Pal seemingly endorsed a comparison made by Nietzsche between the Laws of Manu and the Bible, quoting Nietzsche’s characterization of the Bible as an “evil-smelling Jewish distillation of Rabbinism and superstition.”Footnote 81 However, the explicit contrast found in the earlier work between “Aryan ideas” and “the Semitic-Hebraic faith” was no longer there. This change may have been the result of the association of the concept of Aryanism with Nazi thought, or perhaps it was due to the fact that, following the end of British rule in India in 1947, Pal no longer felt a strong need to contrast Hindu religion with Christianity or Islam, both of which were identified with this “Semitic God.”
Nonetheless, while the notions of Aryan race and law were less prominent in Pal’s 1958 book, the work still relied on a racial theory of Indian civilization, a theory first developed in late nineteenth-century Europe. According to this theory, the Aryans were light-skinned migrants from the North who invaded an India inhabited by a dark-skinned aborigine population.Footnote 82 Early in his 1958 book, Pal discussed this theory, observing that some Western scholars saw the Aryans as migrants or invaders, while also noting that the Indian scholar Abinas Chandra Das, a lecturer on ancient Indian history at the University of Calcutta, argued that the Aryans actually emerged in the Punjab.Footnote 83 Later in the book, however, Pal no longer qualified his discussion, talking about Aryan society as being, indeed, headed by a “foreign race of fairer skin and Indo-Germanic speech” and about the Aryans “streaming into” an India inhabited by Dravidian tribes who were of “blacker blood” and espoused a barbaric religion and manners.Footnote 84
The Critique of Positivism
A second, and related, theme evident in Pal’s comparison of ancient Hindu and Western religion and law was the contrast he drew between the Hindu notion of law and modern Western positivist notions. In the work of the early nineteenth-century English legal philosopher John Austin, law was identified with the “command of the sovereign.” According to such a definition, Hindu law could not be considered “law” since it did not originate in the commands of a human sovereign. In his 1920s Philosophy, Pal therefore compared the “Semitic-Hebraic” faith, which created a personal and omnipotent law-giving God, to the Vedic Aryan notion of law. Among the Vedic Aryans, Pal said, “there was never … that all-controlling despotism which blot[s] out man.” Instead, the Vedic Aryans saw ethics and law as part of an eternal, immutable, harmonious order that was not based on despotic godly will but was more powerful than even the gods themselves. The cosmic harmonious order to which these gods were subject was created “for human benefit,” and they existed “for the purpose of maintaining the law.”Footnote 85 This eternal law, some of the Vedic rishis argued, could be discerned by the sages who sought it within their own hearts.Footnote 86 Since law was not the product of a divine sovereign (and certainly not of a human sovereign), and it existed “above the sovereign,” the Vedic rishis would not have believed “an Austin” if he were to have told them that “there is no law without a sovereign above the sovereign or besides the sovereign, law exists only through the sovereign.”Footnote 87 The rishis also rejected the modern positivist notion of law as a tool for social change. The end goal of the law, according to Hindu legal philosophy, was to preserve the social status quo based on the division of society into four castes, thus ensuring peace in society.Footnote 88
In his 1958 book, Pal repeated this rejection of the Austinian notion of law, suggesting that the source of law in ancient society was not the will of a political sovereign but “the light of Divine inspiration,” prophetically influencing individual law.Footnote 89 In order to prove that the ancient Hindu concept of law was not obsolete but was, in fact, also modern, Pal turned to a series of Western nineteenth- and twentieth-century jurisprudential thinkers who offered non-positivist definitions of law, the most important of which was Eugen Ehrlich. Quoting Ehrlich, Pal associated law not with the state and its institutions but with society, thus blurring the line between positive law and social norms.Footnote 90
The Law of Primogeniture also contained lengthy jurisprudential digressions, for example, a discussion of the “Hindu theory of custom,” allowing Pal to criticize the Austinian theory of law.Footnote 91 Indeed, Pal not only noted the difference between Western law and Hindu law in this respect but also used it to argue that Hindu law was superior:
In those systems where law does not emanate from the sovereign political authority, the king’s prerogative would not place him beyond the authority of law. Law that governs the subject would equally govern the king […]. Our law is not the whimsical, wilful command of any god or man however powerful he be.Footnote 92
Pal also indirectly criticized another element of Austin’s definition of law: the notion of sanction. Since the ancient Hindu philosophers saw human nature as “essentially good and sociable,” they did not see punishment as “a mere vulgar threat.” Instead, punishment was seen as a “sublime purifier.” Its existence was not due to the need for vengeance or the need to deter future offenders. Rather, it was “necessary for the welfare of the offender himself.”Footnote 93
Pal’s attack on Austinian positivism was also meant to defend the very notion of Hindu law. The Austinian definition of law served as the basis of a famous nineteenth-century debate between two British officials, James Henry Nelson and John D. Mayne, about whether an entity called “Hindu law” actually existed.Footnote 94 Nelson defined law as commands by “political superiors” and, naturally, concluded that, on that basis, Hindu law could not be considered “law.” As Pal noted, this definition was “narrow” in the sense of identifying law only with legislation, courts, and legal coercion. It was also associated, Pal explained, with a specific time and place – Europe after the rise of absolute monarchies in the early modern period. It did not fit the legal reality of ancient India.Footnote 95 Unlike modern Western law, Hindu law was always independent of the state, Pal argued. It did not emanate from it but was “above it and anterior to it,” and, because of this quality, it allowed “the weaker to rule the stronger.”Footnote 96
Pal’s depiction of Hindu law seems similar to the depiction of law by Western natural law thinkers. However, it is interesting to note that Pal also attempted to compare the Hindu notion of law to the ideas of the German Historical School, according to which law is not made by an individual human creator but reflects “the spirit of the people.” Pal also compared the Hindu notion of law to the idea found in the “modern French legal theory” of social solidarity, according to which any act of legislation is not a “true creation of law, but a declaratory statement or mere evidence of the rule of law previously created by social solidarity.”Footnote 97 French legal theory – specifically, the discussion of the relationship between instinct and reason in law by the French anti-formalist legal philosopher François Gény – was also used by Pal when discussing the sources of law according to the Hindu thinkers of the Sutra era.Footnote 98 Referring to the Manusmriti, Pal reasoned that “Manu may indeed be classed as a sociological jurist” (because he was concerned with the efficacy of the legal order rather than with its abstract validity).Footnote 99
Hindu Law and Society as an Alternative to the West
In his 1958 book, Pal criticized modern Western democracy at length. Recent events, he said (referring to the Second World War), had shown that common comparisons between the “strong, successful and progressive” European culture, based on democracy and industrialism, and the supposedly backward Indian culture were misplaced. “Perhaps the civilized world is no longer living in the delicious intoxication induced by the early success of science,” reflected Pal, since science has been “put to evil use” and, thus, we are living in an age of “spiritual chaos, intellectual doubt and political decadence,” one symptom of which has been the “acquisition of the atom bomb.” Quoting Sri Aurobindo, Pal noted that, in contrast to Western society, which was now a “madhouse where delusions govern amid hopeless and needless suffering,” the ideals of Indian society “were of the highest kind, its social order secured an inexpugnable basic stability, the strong life-force that worked in it was creative of an extraordinary energy, richness and interest, and the life organised remarkable in its opulence, variety in unity, beauty, productiveness, movement.” Pal acknowledged Western economic superiority but argued that it was the result of Western imperialism. “Asia’s billion people are made to keep on struggling against backwardness and starvation. Their struggle started more than a century and a half ago when these civilized lords of the West reached out aggressively for the wealth of the East.”Footnote 100
Pal distinguished between “the Western philosophy of life,” which sought to transform the world, and the philosophy of ancient India, which saw the universe as static and asked humans to adapt themselves to the existing “cosmic order.” Pal deemed the Western approach to be “creative” but simultaneously characterized by the evils of “disintegration and destruction.” Vedic society, too, was creative, he claimed, in the sense that it sought “integration and balanced co-ordination,” in contrast to modernity, which sought “subordination and domination” – the conquest of nature rather than “harmony with nature.” Western industrialism and democracy created doubt and anxiety, undermining the communities that sustain the individual. Pal thus called for a partial rejection of Western values, although he did acknowledge that it would be impossible to halt the industrialization of India if it were to protect itself from exploitation by the West.Footnote 101
Conclusion
Pal’s works on Hindu law were not created in a vacuum. They reflected ideas prevalent in the first decades of the twentieth century in India and, more specifically, among Bengali intellectuals affiliated with the University of Calcutta. Pal’s education, which combined familiarity with Hindu law and Western legal theories, and his political views, which were associated with Hindu cultural nationalism, naturally influenced his depiction of the philosophy and history of Hindu law. A similar relationship between life, politics, and legal thought is also found in the ideas of the person discussed in the next chapter, Samuel Eisenstadt.
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