Between 1955 and 1956 the Government of India passed four Hindu Law Acts to reform and codify Hindu family law. Scholars have understood these acts as a response to growing concern about women’s rights but, in a powerful re-reading of their history, this book traces the origins of the Hindu law reform project to changes in the political-economy of late colonial rule. The Hindu Family and the Emergence of Modern India considers how questions regarding family structure, property rights and gender relations contributed to the development of representative politics, and how, in solving these questions, India’s secular and state power structures were consequently drawn into a complex and unique relationship with Hindu law. In this comprehensive and illuminating resource for scholars and students, Newbigin demonstrates the significance of gender and economy to the history of twentieth-century democratic government, as it emerged in India and beyond.
Last month, a California state court ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. The program was funded by a half-million dollar grant from the Jois Foundation, a private organization that promotes the form of yoga known as Ashtanga. The court ruled that the Encinitas Union School District had scrubbed religious references from the classes, so that what remained was simply a fitness and stress reduction program for kids. To use the language of the so-called “endorsement test,” the court concluded that a reasonable observer would not believe the school district had impermissibly endorsed a religion–in this case, Hinduism.
This week, the Oxford University Press blog published an interesting interview with Candy Gunther Brown, an Indiana University religious studies professor who served as an expert witness for the plaintiffs in the case. Brown argues convincingly that Ashtanga yoga is in fact deeply religious. “Ashtanga,” she says, “emphasizes postures and breathing on the premise that these practices will ‘automatically’ lead practitioners to … ‘become one with God’… ‘whether they want it or not'”:
Although EUSD officials reacted to parent complaints by modifying some practices, EUSD classes still always begin with “Opening Sequence” (Surya Namaskara) [a prayer to the sun god] and end with “lotuses” and “resting” (aka shavasana or “corpse”—which encourages reflection on one’s death to inspire virtuous living), and teach symbolic gestures such as “praying hands” (anjalimudra) and “wisdom gesture” (jnanamudra), which in Ashtanga yoga symbolize union with the divine and instill religious feelings.
It’s quite possible for people, especially kids, to be influenced by these religious messages, she says:
Scientific research shows that practicing yoga can lead to religious transformations. For example, Kristin is a Catholic who started Ashtanga for the stretching; she now prefers Ashtanga’s “eight limbs” to the “Ten Commandments.” Kids who learn yoga in public schools may also be learning religion.
Perhaps Brown overstates the difficulty of separating religious and non-religious elements in yoga, I don’t know. After reading her interview, though, the question I have is this. How could anyone not think Ashtanga yoga is religious, and that by sponsoring this class–especially with funding from an organization that promotes Ashtanga’s religious message–the school district has endorsed religion in a manner that current law forbids?
Perhaps, with our deeply Protestant religious culture, Americans simply dismiss the notion that physical practices can be genuinely “religious.” Religion is a matter of mind and spirit, not body; stretching is purely physical, just a nice way to relax. Stretching isn’t prayer, after all. Brown’s point, however–and it is a very important one–is that these practices are a kind of prayer. Ashtanga yoga purports to instill religious feelings and lead one to God, whether one intends it or not. (In fact, Hindus might find the claim that yoga is just a stretching exercise rather insulting). And the school district has students participate in these prayers, not just learn about them from a book. The Supreme Court has said the Constitution forbids even displaying the Ten Commandments inside a public school classroom, lest students feel pressured to read and meditate on them. But this is OK?
Let’s try a thought experiment. Orthodox Christianity has a tradition known as hesychasm, in which hermits discipline themselves to meditate, shut out the world, and experience God inside them. It’s a very difficult mystical practice, not for everyone–though some people like to dabble. Apparently it gives great inner peace. The key element is repetition of the Jesus Prayer: “Lord Jesus Christ, Son of God, Have Mercy on Me, a Sinner.” Suppose some enterprising Orthodox Christian foundation adapted these practices, put the Jesus Prayer in an esoteric language, and proffered the package to a public school district as a stress-reduction program for kids. Would anyone think such a program constitutional under present law?
The plaintiffs in the case have indicated they plan to appeal. I hope they do, because this could turn out to be be a very significant case. As Eastern religious practices continue to seep into mainstream culture, situations like this are bound to recur. They may lead to a change in the way Americans understand religion.
This month, Cambridge University Press releases a new, paperback edition of The Spirit of Hindu Law by Donald R. Davis Jr. (University of Wisconsin-Madison). The publishers description follows.
Law is too often perceived solely as state-based rules and institutions that provide a rational alternative to religious rites and ancestral customs. The Spirit of Hindu Law, first published in 2010, uses the Hindu legal tradition as a heuristic tool to question this view and reveal the close linkage between law and religion. Emphasizing the household, the family, and everyday relationships as additional social locations of law, it contends that law itself can be understood as a theology of ordinary life. An introduction to traditional Hindu law and jurisprudence, this book is structured around key legal concepts such as the sources of law and authority, the laws of persons and things, procedure, punishment and legal practice. It combines investigation of key themes from Sanskrit legal texts with discussion of Hindu theology and ethics, as well as thorough examination of broader comparative issues in law and religion.
The Crisscross-Applesauce Position (New York Times)
An update on a case I wrote about in May: a California state court has ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. Under current Supreme Court precedent, public schools may not endorse any particular religion (or, for that matter, religion generally). In yesterday’s ruling, the San Diego Superior Court reasoned that the Encinitas Union School District has scrubbed religious references from its yoga classes–the Lotus position has been renamed the “Crisscross-Applesauce” pose, for example–so that what remains is merely a fitness and stress-reduction program for kids. The court apparently did not find persuasive the testimony of an Indiana University religious studies professor, Candy Gunther Brown, who argued that yoga, a Hindu practice, is inherently religious. A lawyer for parents who brought the lawsuit against the school district says his clients will likely appeal.
Last month, I wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.
Yoga Class at Encinitas School (New York Times)
It turns out that very issue is being litigated this week in a California court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.
Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.
This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.
So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga in yoga?
Here’s another item in the occasional series, “Does it violate the Establishment Clause?” whose last entry concerned werewolves and crusaders. Given the state of Establishment Clause doctrine on this particular set of issues, I’m confident that I’ll be getting lots of material for it.
This story reports that the President (or those close to him, or something) really goes in for yoga, and so the President’s Council on Fitness, Sports, and Nutrition is making a pro-yoga pitch, which included the introduction of a yoga garden during this year’s Easter Egg Hunt where one could receive yoga pedagogy.
But there is a problem. Some believe that the official state promotion of yoga–in public school, for example–violates the Establishment Clause because it is tantamount to the government “picking religious winners and losers.” The story reports:
[The lawyer representing objecting families] said many Americans who practice yoga want to be viewed as spiritual but not religious. However, claims that yoga is a mere physical exercise that doesn’t cross the line to Eastern religious beliefs and practices are dubious at best . . . . [Y]oga poses are worshipful acknowledgements of Hindu deities and have been shown to have a religiously transformative impact.
“Let’s be honest, if the White House was actively promoting a Christian-based exercise program, I am confident there would be a huge public outcry and they would change the program. But because yoga is based in Eastern mysticism, which is not well understood, many tend to try to disingenuously downplay its religious aspects[.]”
It’s hard to argue with the government’s response: whatever your religious beliefs, everybody benefits from “stretching, strength-building, and breathing.” But the best line belongs to the judge assigned to hear the case, who is himself a devout yoga practitioner (or is that yogi?). When questioned about his yoga activities, he is said to have responded: “Does anybody have a problem with that? . . . .If you think there’s something spiritual about what I do, that’s news to me.”
The Nepali legal tradition is a legal hybrid in many regards. Nepal was not colonised by a Western state, and the Hindu legal tradition therefore dominated all areas of law until the middle of the 20th century. Since the 1950s there has been a strong influence of Indian common law. It is probably for this reason that comparative classifications that include Nepal see the legal system as a mixture of common law and customary law. However, other mixtures mark the Nepali legal tradition. French law inspired the ruler in the 19th century, and that influence can still be found in the formal law. In addition, the plurality of Nepalese society made it necessary to provide space for different customary regimes to coexist with the formal Hindu law. When it comes to innovations within the legal system, including international law, the different ingredients interact.
In family-related matters, the case-law of the Nepali Supreme Court illustrates the confrontation between international legal standards and the traditional rules. The Supreme Court has referred to the culturally conditioned discrimination against women and called for a thorough (political) analysis in order to eliminate discrimination without a radical change of culture. In the area of discrimination against homo- and transsexuals the Supreme Court took a more innovative approach. It remains to be seen, however, if such a change is effective beyond the courtroom.
In the area of private financial compensation for wrongs, the formal (written) Nepali law does not have a general concept of tort. Compensation is generally integrated within the ambit of criminal law. Field research indicates that it would be possible to resort to existing customary principles of compensation rather than to the relatively complex common law of torts favoured by some Nepali scholars. However, this approach might not be without difficulty, as it might imply admitting the “superiority” of the customary practices of ethnic groups of lower standing in society.
The example of Nepal shows that innovation in a hybrid system is often marked by the difficulty of – at least apparently – contradictory elements and layers of the legal system. There might be a tendency towards choosing the dominant or the most easily accessible solution. This paper suggests that the hybrid nature of the legal system offers opportunities that could be taken in order to achieve effective change and appropriate solutions.
When is armed force considered justified in Hinduism? How do Hindu legitimizations of warfare compare with those of other religions? The Just War framework, which evolved from Roman and early Christian thought, stipulates distinct criteria for sanctioning the use of force. Are those themes comparable to the discourse on violence of ancient India? This article examines the influential Sanskrit epic Vālmıki Rāmāyana in order to broach these questions. This analysis demonstrates the presence in the ancient work of all seven modern Just War criteria—namely (1) Just Cause, (2) Right Intent, (3) Net Benefit, (4) Legitimate Authority, (5) Last Resort, (6) Proportionality of Means, and (7) Right Conduct. This study also shows the extent to which the criteria and the larger discourse in the Vālmıki Rāmāyana are distinctly couched within Indic ethical parameters, drawing particularly upon the moral precept of ahimsā (nonviolence). This article identifies both similarities and differences between the epic’s criteria for warfare and those of the Just War framework. By comparing representations of violence in the Vālmıki Rāmāyana to modern Western legitimizations of force, this study advances the inclusion of Hindu thought into the global discourse on the ethics of war and peace.
This month, Anthem Press will publish Studies in Hindu Law and Dharmaśāstra by Ludo Rocher (University of Pennsylvania) and edited by Donald R. Davis, Jr. (University of Wisconsin – Madison). The publisher’s description follows.
The main sources for an understanding of classical Hindu law are the Sanskrit treatises on religious and legal duties, known as the Dharmaśāstras. In this collection of his major studies in the field, Ludo Rocher presents analytical and interpretive essays on a wide range of topics, from general themes such as the nature of Hindu law and Anglo-Hindu law to technical matters including word studies and text criticism. Rocher’s deep engagement with the language and worldview of the authors in the Dharmaśāstra tradition yields distinctive and corrective contributions to the field, which are informed by knowledge both of the Indian grammatical tradition and of Roman and civil law.
I wrote in February about India’s crackdown on religiously offensive speech on the internet. In response to lawsuits in Indian courts, Facebook and Google have removed images that allegedly cause offense to Hindus, Muslims, and other religious communities. In The Atlantic this week, Max Fisher writes that the censorship issue is again getting attention, with the US State Department calling on India to respect the “full freedom of the internet.” Fisher wonders, though, whether India doesn’t have reason to clamp down. A long-standing dispute between Hindus and Muslims in Assam has recently reignited, fueled by rumors on the internet that each side was planning to massacre the other. Eighty people have already been killed, and 300,000 displaced. Religious hate speech on the internet hasn’t caused this crisis, of course, but it has contributed to it. What is the Indian government to do? Fisher writes:
Walter Russel Mead, writing on the ongoing crisis, called India’s long-running communal tensions “the powder keg in the basement.” With the already-dangerous risk of ethnic combustion heightened by a population with easy access to rumors and an apparent predisposition to believing them, maybe that powder keg justifies Indian censorship. Or maybe it doesn’t; free speech is its own public good and public right, and, in any case, censoring discussion of such sensitive national issues could make it more difficult for India to actually confront them. This is just one of the many difficult questions that Indian leaders will grapple with as hundreds of thousands of their citizens flee their homes, chased out by “a swirl of unfounded rumors.” I don’t envy them.
This October, Cambridge University Press will publish The Hindu Family and the Emergence of Modern India: Law, Citizenship, and Community by Eleanor Newbigin (School of Oriental and African Studies, University of London). The publisher’s description follows.
