The Hindu theory of Justice

Navadvipa in Bengal was both the ancient center of 'Navya Nyaya' (the Neo Legalist or Logical school) as well as close to the center of Britain's- and British Law's- power and influence in India. Sir William Jones, a Supreme Court Judge in Calcutta in the Eighteenth Century, was unusual in owning both Oxford and Navadvip as an alma mater. Over the next century many Indians deserted their Navya-Nyaya heritage for the more substantial benefits associated with practice at the bar. One result was that Hindu notions of Law and Justice were being translated by 'emic' practitioners into Western terms at precisely the time when British jurisprudence was being conceptually restructured. However, the Indians were pessimistic about both epistemology and deontic or juristic science. It was blindingly obvious that their pursuit led to ignorance and slavery. What was meaningful (artha) was utile and concerned with not a priori cogitation but going out in the world and learning new ways to transact business. This is not to say that Hindus adopted Instrumentalism or Pragmaticism because, truth be told, their economic and technical horizons were shrinking. Rather they reverted to a thoroughgoing Pyrrhonism artfully disguised as Babu pi-jaw. 

Some older lawyers and judges- some from Mimamsaka lineages- may still keep up a nineteenth century availability cascade re. the heteronomy of Navya Nyaya (which couldn't get its head around a property not accepted and therefore wholly unvested) as grounding our newer addiction to the British system of Justice (which couldn't vest in our Commons save by a republican doctrine of autochthony)  but the prestige of the Law has been in continuous decline in India for over a century and most Hindus now are quite blissfully unaware of the interaction between Hindu and British legal concepts. As a case in point, Amartya Sen appears to believe in- or believes he won't be detected in fraudulently claiming- some fundamental Nyaya/Niti distinction in Hindu thought. As a matter of fact, the two words are unrelated. Nyaya means Justice. Niti means policy. Judges can't magically create resources to widen the scope of Institutions. Economic Policy can do so but it may be arbitrary and unfair in its instruments. 

Nyaya could certainly curb Niti but it could not replace it. The leader- or Neta-might be punished for his evil policies but that punishment might remain a dead letter till God so willed. What actually obtained was a doctrine of 'Viddhi', positive injunction, & Nisheda, negative injunction, which, however, were restricted to actions which would not arise 'economically' but which were necessary for the commonweal till the uncoerced working of economic forces found a superior mechanism to achieve the same goal. In other words, the Hindu 'unthought known' is that all Law is 'apadh dharma'- i.e. arises out of exigent circumstances which cooperative 'regret minimizing' agents can banish by superior collective prudence and foresight.

I can cite myself as a limit case of the particularly gross & unthinking Indian. For me, any principal (as opposed to an agent) can dispel his 'vishada' (abulia or akrasia) by first digesting the 'Vyadha' (butcher's) Gita- which basically says you should (only mentally, to be on the safe side) tell Pundits and Princes to go fuck themselves while concentrating on looking after your own parents and spouse and kiddies etc. as if they were Gods- this is normative economics as natural oikeiosis- while using, or better still 'cloud-sourcing', Statistical Game theory, a la the Nalopkhyanam- to do mechanism design and actualize the folk theorem of repeated games on the basis of Muth rational regret minimizing strategies. 

Oddly, this means we can be good old fashioned Smarta or Puranic Hindus taking joy in a whole bunch of idolatrous gods and cutesy festivals- not excluding those which permit occasional intoxication and gambling and squirting each other with colored water and tearfully claiming the girl who got away to be your very own sister who is obliged to feed you one day of the year while her own darling hubby has to slink off to find some 'raakhee' sister of his own to rescue him from starvation.

This is not to say that we Hindus are wholly contemptuous of our Logico-scholastic or other such over-learned shit heads. But this is only because their lucubrations have great comic potential. 

It should be remembered that P.G Woodhouse is the Tambram's (i.e. the stupidest and most backward type of Indian Brahmin) humorist of choice. But only because of the greater occulted humor contained in PeeGee's elder brother's oeuvre. That Classicist- and War hero (PeeGee was kept out of combat by his poor eyesight)- was a leading Theosophist and, Aristotle to its Alexander, tutor to the Universal Messiah Jeddu Krishnamurti.

Bearing this in mind, it is not difficult to find the Woodhousian element in a standard Law textbook in which P.M Bakshi writes

"Aprapta parpako Vidhi".
Translated into English, it means, "A Vidhi is that which puts one in a position which ordinarily one is not apt to get into".

i.e jams Bertie Wooster gets into coz he ignores the guidance of the Spinozan jivanmukta Jeeves.  I won't even try to imagine the Woodhousian shenanigans this Bakshi dude is suggesting in what follows- 

What is meant is, that the command indicates the necessity of a compelling power. The command - "Maintain your forsaken wife", - for example - urges the doing of something which the man would not otherwise do

This is further clarified-  

"A Vidhi tends to secure what is otherwise not attainable at all."
"A Niyama tends to secure what is partially otherwise attainable."
"A Parisankhya consists in a statement or recital as to a benefit which is
commonly attainable in its entirety, either by acting according to the statement or by other means."
Sarkar has expressed the effect of the above, in the language of the modern law, in the following form:-
1 . A Vidhi is a perfect (imperative) command.
2. A Niyama is an imperfect (directory) rule.
3. A Parisankhya is a monitory precept."

The above gives a flavor of Indic judicial hermeneutics and why the thing is pure Gilbert & Sullivan to those who practice it at the higher levels. 

The reason, though a humorist, I can't myself get in on this wheeze is that there's a dude named Jonardon Ganeri who occupies the Matilal charpoy of Psilosophy in Toron-toto.  How can I compete with this great satirist? Consider the following-

To give just one example, when Gangesa

a Brahmin who saw that Turks were fucking over his peeps but good 

says, at the beginning of the Gemstone [Fulfilling One's Wish] for Truth, that the whole world (''jagat")

which the Turks were busy conquering so as to remain plenty happy for well provided with concubines and catamites and, what's more, lots of virgins in store in their, equally Monist, Religion's Valhalla or more permanent Indralok.

is steeped in suffering, and that philosophy is a method of alleviation, Raghunatha's note refers to the scope of "the world", which he affirms includes everyone, women and untouchables included.

The guy doesn't mention Turks! There had already been a Turkish Sultaness- Razia- and 'untouchables' who got the fuck away from Hindu philosophy and converted to Islam and who showed skill in fucking over High Caste cunts till they handed over more in 'jizya' tax- none of whom were 'suffering' at all. They were laughing all the way to the bank. Good for them. It is their mt-DNA we celebrate in our cult of six-pack displaying Khan thespians. I don't mean me. I iz not Gay. I'm into Dilip Kumar & Bade Gulam Ali Khan & so forth. I honestly don't jerk off to Salman's hairless torso. Seriously, dude. I'm not lying. Check my browser history. 

Matilal says that the view that "world" refers to all sufferers is "clearly ascribable to Raghunatha ... according to Raghunatha's cryptic statement, Gangesa was saying that 'philosophy' or anvikshiki is open to all, not restrictive to the male members of the three varnas." (Matilal 2002: 367).

This is fucking hilarious. Metaphysics or 'Logical Philosophy' is wholly useless save to a handful of otherwise unemployable, or pederastic, pedants. This may not have been obvious to Kautilya at a time when the Mauryas were kicking ass and taking names. But it was bleeding obvious in Gangesa's time. Hinduism needed warriors who were good at killing people- not Meta-fucking-physics. 

Ganeri- for all I know- may be a Hindu Borat or Buddhist Ali G or something yet more weird and wonderful. I can't hope to rival his comic creations. Instead, as a Hindu of the most humorless sort, I ask- what is the Hindu theory of Justice in itself?

The conventional answer is-  Justice, or Nyaya, arises from ‘that by which man is guided’ (nīyate aneneti nyāyaḥ)- i.e Niyams mother Nyaya as, for Tambrams, Muruga's six heads suckle on the starlight of such Pleiades as are Indicly visible.

Fuck are Niyams?

Niyamas are rules which prescribe actions while Yamas restrain actions- though exception too are noted.  Mythologically, Yama- 'restraint' personified- is the King of the Underworld and judges the dead. But Yama is the twin of Yami, who represents Nature and Life and Evolution. Yami wants to have sex with Yama so as to procreate even though this violates the incest taboo. Yama prefers Death and rectitude. Yami's grief gives rise to Night.

 It is tempting to see the Yama/Yami syzygy as similar to the Purusha/Prakriti or Shiva/Shakti or Atman/Jeeva syzygy. The male principle is contemplative and refrains from action. It is the witness whereas the female principle is active and performs all necessary functions. This gives rises to the paradox that Nyaya is guided by not yama. Justice is not just- for a just Justice would restrain itself to pure witnessing- it is expedient or evolutionary.  Though it may condemn to Death, its purpose is to serve Life which is unrestrained and burgeons continually under new names and forms. In other words, the Hindu idea of Justice is that it is merely an ironic, or even oxymoronic, service industry- like 'Higher' Education- rather than something to get too worked up about.

Nevertheless, to say 'Justice is based on positive injunctions (Niyama)' suggests that Hinduism is based on Law as Command- thought this command may be generated by some internal process rather than be explicitly provided by an external authority- on the other hand, to understand that 'positive injunctions' themselves arise only as the result of proscriptions- non-violence, non-attachment, etc- suggests that Laws are radically defeasible and Justice itself is apophatic. Life, like the dark waters of the Yamuna (Yami personified), flows onward removing the taint of sin and putting Man beyond the scope of Judgment. 

By contrast, Yima, in Zoroastrianism, has a completely different trajectory. We are not told who Yima's twin is- perhaps because of the sacred nature of brother-sister marriage in certain Regal dynasties in that part of the world.

Yima rejects the role of prophet but takes that of the king of the living but too greatly increases the population.  This calls forth a terrible winter. God gets Yima to create an underground bunker which is like Noah's ark. Then, like Prometheus, Yima sins. He teaches Man to slaughter the cow and eat meat

A Zoroastrian website explains- 

However Yima later falls due to his hubris and his callous disregard for animal life. As we seen before, Yima accepted to be the steward and guardian of the world of the living and be a hero king; yet he failed.

In the poetic gathas, Yima is mentioned once in Yasna 32.8: “Among the sinners, Yima the son of , has been renowned //to delight us mortal men, he forswear God and taught the slaughtering of the cow// May I be apart from this in your future decision/verdict.”

The Middle Iranian or Pahlavi commentary maintains that Yima taught people to sacrifice the cow and eat meat.

However, it may be that what is prohibited is slaughtering animals for food with 'wild cries of delight'. If the thing is done as a sacrifice in a pious spirit perhaps no sin attaches.  Justice could be viewed as such a sacrifice not done with any vengeful, or gloating, intention but in a chastened and detached spirit. 

Zoroastrianism, on one view, is different from Vedic Hinduism- though their origins appear intertwined- in that 'yamas' in the latter- proscriptions like non-killing- are turned into positive commands- e.g kill noxious creatures- and thus the Zoroastrian religion is more fitting for a centralized type of Empire with a clear cut distinction between Good and Evil and a positive duty to destroy the latter to uphold the former. On the other hand, Zoroastrian Religion could also be seen as arising from oppressed farmers, blacksmiths etc. Vedic 'Rta'-the principle of natural order found in all existence- has, in Iran, a 'ratu'- or leader- who brings about reforms. In both religions, Mithra is the God who presides over contracts- including the Social Contract. But in India, Mithra becomes friendship and fraternal behavior or, most especially in Buddhism, metta- loving kindness of a universal sort. The contract is superseded by the relationship it permits to burgeon. Love usurps Truth. The essence, which is purely intentional, transcends existence and modality. 

 It is difficult to say how exactly Zoroastrian notions of Justice- had that religion retained a polity- would differ from what obtains now among Hindus. However, nobody doubts that the Zoroastrian Emperors were renowned for Justice. It has been suggested that this meant greater persecution of 'heretical' sects. On the other hand, the Iranian homeland was far more vulnerable to invasion and a greater rigidity of religious doctrine may simply have been a function of geopolitical vulnerability.

Returning to Hinduism which, because it still exists over a wide area, we can speak about with more confidence, the question arises as to whether the Law is truly founded upon 'restraints' which in turn give guidance re. positive duties?

Speaking generally, this view is not tenable. Why? What precedes the existence of Yama or Niyama is Aaya or Vrrdhi- i.e. 'increase' or profit of a cumulative type- e.g. compound interest- which gives rise to enjoyment as a right-  eṣa vṛddhi-phala-bhoga-nyāyaḥ. The paradigm here is 'krishi'- agriculture- sowing a relatively small number of seeds yields a much greater output of fruit. The disproportion between reward and effort for clearing and planting land in Iron Age India, gave rise, in Hinduism, to an ethical optimism and an embrace of stochastic rather than bargaining solutions.  Notionally, guys who got land which turned out to be crap were put on the short list for good land as soon as it became available. But, for the simple reason that there was free entry and exit on an almost infinite contiguous Christaller plain, and plenty of agricultural land available for those willing to clear it, this mechanism whereby good land, which had longer leases, was swapped for crap land, never needed to be implemented- or since the thing was obviously bullshit, nobody bothered to demand that the thing actually occur. 

It may be that one vector for 'Hinduism' was pastoral tribes who, to supplement their income, fostered babies who were orphaned or sickly. Obviously, the pastoralists had a surplus of milk and, what's more, cultivated poetry and grammar and so on such that, when the child was restored to his family, he was robust and 'educated' and thus very useful in making trade deals and diplomatic alliances and so forth. Clearly such individuals, as part of a 'panchayat' panel, could provide useful judgments which however would be viewed as conventions of a localized type which nevertheless might become 'Schelling focal' solutions to coordination games. This persists in the Hindu view that laws are merely 'samskars'- conventional or behavioral- and thus sublatable or defeasible. There is also a mimetic aspect- one can't go too far wrong following the example of 'the best people'. I suppose this is linked to pessimistic notions of Man being currently caught in an age of degeneration- Kali Yuga. Justice is itself 'apadh dharma'- exigent action- and the path away from it is imitation of those who keep well clear of its toils. This was the appeal of barrister Gandhi who denounced lawyers and law courts in the most vituperative terms. Sadly, unlike Sinn Fein, the INC completely failed to set up a parallel legal system and, today, the Indian Bench has higher authority and is more activist than any other in the Common Law tradition. On the other hand, it must be admitted that Indian Supreme Court judges, in their own estimation, are beneath contempt. This reinforces my view that the Hindu view of Justice is that the lady is no better than she ought to be. 

Was it always thus? Perhaps. Where happiness is, Justice casts no shadow. The burgeoning of both grain and dairy products, along with the spread of a grammatically 'canonical' link language endowed the Indic sprachbund with something it still retains- ethical, soteriological, aesthetic, epistemic, optimism independent of the existence or enforcement of Law or indeed its effability or utility.

The Vedantic point of view is that 'uncreated' Vedic Scriptures are themselves the origin of ritual actions (karma kanda) based on Yama & Niyama as well as the enjoyment (bhoga) that nevertheless burgeons by reason of the univocally good imperative they contain. In other words, Hindu Religion isn't a 'zero sum game' between the Gods and Men. The underlying benefit grows cumulatively. Thus ritual action is gratuitous with reference to what Rosseau calls the 'Will of All'- i.e. ordinary self-interested behavior. Why thank the Sun for rising when the whole world inevitably gains more and more warmth and illumination? The answer is that the General Will, being itself imperative, burgeons in a like enlightening manner by a 'Niyama' which 'does justice', or condignly commemorates, what could be, and thus imperatively is, univocal with itself. Contractarian theories are thus depassed in favor of a richer view of relationships as ethical interactions with 'field effects'- i.e mimetic and moral 'externalities'. 

The Shramana traditions posit one big, 'slingshot' type, reason, but also a univocal imperativity, such that their own category theories- or that of Nyaya-Vaisheshika or Yoga-Samkhya- are winnowed by their own 'reverse mathematics' project. Thus there is an 'observational equivalence' between Umasvati-Nagarjuna-Sankara canonical forms of both Shraman & Brahmin religion. In other words, no tension between rival sects drives Jurisprudence in the manner seen in some other jurisdictions.

The view of Lord Buddha, viz that there was a true Veda and a false and adulterated Veda is uncontroversial for Hindus. So many Brahmins flocked to Lord Buddha- indeed, one particular sept of Brahmins were granted automatic diksha- and all branches of Sanskrit study so flourished at Buddhist Universities that such adulterated Scripture as imposed upon the ignorant was driven out of circulation. Thus Lord Buddha is viewed as an Avatar of Lord Vishnu- the Preserver, the Katechon- though, obviously, we could, with equal eusebia say, by postponing his own liberation, Gautam Buddha epitomizes the Katechon, whereas by proclaiming kshanikavada- momentariness- he is Shiva. What is left is pure imperative intensionality- our unknowable univocal, 'slingshot', imperative cleansed by the Lord of the burning ghat of every 'klesha', every type of filth that clings to the soul. At this point, an old fool like me is bound to speak of Tara, tear born mother of the Buddhas &  you too, gentle reader, may wish me swept away in the economy of that droplet's flood- Oṃ Tāre tuttāre ture svāhā &c.

What then is the Hindu theory of Justice? It is simply a samskar provided by a Service Industry as economic 'aaya' burgeons. If that industry is competitive, localized, and 'incentive compatible', then- cool! But it's not a much bigger deal than having access to Priests and Monks or Artists and Musicians or Sciencey guys and Tech guys or whatever. If we can find good things to do together and cheap and robust mechanisms so 'aaya' burgeons, then Justice and Beauty and Knowledge and Virtue will turn up by themselves in the same way that whores and thieves and Poets as Socio-proctologists too will arrive. 

Is God Just? No. God is all Merciful. Even I, worthless shithead that I am, will attain Death.