Rules and ethics

Perspectives from anthropology and history

Morgan Clarke, Emily Corran, Morgan Clarke, Emily Corran

• Éditeur: Manchester University Press
• Année: 2021
• ISBN:
  9781526148896
• Sujet: Social Sciences
• Sous-sujet: Cultural & Social Anthropology

This book investigates the pronounced enthusiasm that many traditions display for codes of ethics characterised by a multitude of rules. Recent anthropological interest in ethics and historical explorations of 'self-fashioning' have led to extensive study of the virtuous self, but existing scholarship tends to pass over the kind of morality that involves legalistic reasoning. Rules and ethics corrects that omission by demonstrating the importance of rules in everyday moral life in a variety of contexts. In a nutshell, it argues that legalistic moral rules are not necessarily an obstruction to a rounded ethical self, but can be an integral part of it. An extended introduction first sets out the theoretical basis for studies of ethical systems that are characterised by detailed rules. This is followed by a series of empirical studies of rule-oriented moral traditions in a comparative perspective.

Part I

Rules enabling moral life

1

Conscience is tradition: Classical Hindu law and the ethics of conservatism

Donald R. Davis, Jr.

The classical Hindu law tradition is conservative, and an instance of conservatism. In this chapter, I draw comparisons between classical Hindu law and traditional Anglo-American conservatism about the topics of rules, ethics, and conscience. In searching for a language through which to express the Sanskrit categories and ideas found in Hindu jurisprudence, I have been repeatedly drawn to the assumptions, arguments, and aspirations of traditional conservatism.¹ The affinities between the two lineages of thought reveal shared ideological commitments. I thus justify the otherwise arbitrary choice to use the language of Anglo-American conservatism in describing Hindu legal views of ethics and conscience on the grounds that the conservative tradition provides a congenial and illuminating set of concepts and assumptions. Conservatism helps Hindu law speak English.² Though the comparison breaks down in some areas, of course, the juxtaposition highlights the value to both of rules, order, and obedience in the process of individual and group ethical formation. It should thus serve as a fruitful entry into the comparative exploration of ethical ‘ruliness’ that this book proposes.

Ethics in classical Hindu jurisprudence begins from the premise that what we do naturally is always inferior – both morally and socially – to what we do and can do by following traditional rules.³ The natural passions that motivate human beings must be disciplined by rules in order to avoid negative social and soteriological consequences (Glucklich 2011). Hindu law starts, then, from an assumption of human imperfection that may be systematically, though rarely totally, refined through habituation and socialisation. The importance of habit, custom, and well-formed prejudice is repeated in Sanskrit literature, not only in Hindu law texts but also in Hindu epics and mythology (Derrett 1978: 35–43). Hindu law authors view unfettered reason with suspicion and, with few exceptions, disallow change in established precepts. Instead, people should rely on the wisdom of existing social structures and institutions as a tried-and-true guide to ethical decisions. Moral judgement arises from experience and character, both products of the social opportunities of privileged birth and long training in the legal texts. Similarly, individual conscience is experienced as an emotional affirmation of what tradition through a rule tells you is good and an aversion to what it tells you is bad – ‘conscience is the mind of a man [sic] governed by a rule’ (as cited in the Introduction).

I summarise the ethics of Hindu law in such terms precisely in order to bring out striking similarities between its assumptions and conceptual frameworks and those of traditional conservatism. Ethics does not form a distinct topic in any Hindu law text, but I put together a composite description by drawing on discussions of other topics. In order to capture the legalism underlying ethics and conscience in Hindu jurisprudence, I rely on the vocabulary and outlook of classical conservatives, because both appeal to a moral sensibility forged in a crucible of rules from the past.

Why we need rules and how to spot a good one

Hindu jurisprudence is found in the Sanskrit texts called Dharmaśāstra, the ‘prescriptive treatises’ (śāstra) on ‘religious and legal duty’ (dharma). One may liken the scholastic elaboration of this religious law with that of the Jewish or Islamic law traditions discussed elsewhere in this book. Technically, the primordial commands of the revealed Veda come to us as injunctions and prohibitions and the Dharmaśāstra tradition presents itself as remembrance or recollection (smṛti) of the totality of Vedic rules even as it acknowledges the central place of customary law and elite standards in the formulation of dharma (Wezler 2004). Knowledge of the Veda, however, is less learning the rules and more shaping the character. Vedic knowledge transforms a person’s dispositions, interests, and sentiments. This tradition is very old with the earliest texts dating from the second century BCE and the latest commentaries from the eighteenth century CE. Though Dharmaśāstra’s scope, style, and substance changed over this long period, it is also remarkably stable in its basic worldview.⁴ For the broad comparison of this chapter, I will (unfairly) treat Hindu law in synchronic terms and ignore the very different contemporary Hindu law that has been subsumed within the legal system of modern India.

The vocabulary of classical Hindu law is replete with categories of refinement and discipline. ‘Natural’ (prākṛta) language is inferior to ‘refined’ (saṃskṛta) language; the sixteen consecratory rites that mark the ritual passage of an observant Hindu male through life are called ‘refinements’ (saṃskāra). Along with refinement, discipline (from the Sanskrit root śās) is the application of rules and rituals to ordinary actions: ‘legal texts (śāstra) are said to discipline people and to impel proper action; decrees (śāsana) rectify and punish deviations from this order; students (śiṣya) are trainees in a process which culminates in the achievement of the status of a fully disciplined and educated person (śiṣṭa)’ (Davis 2006: 289). What makes an act or a person refined or disciplined is adherence to a rule of śāstra, which is itself a distillation of tradition presented as a norm. To this extent, the very framework of action and selfhood is bound to a rule-oriented conception of ethics and self-formation. The socialisation of conscience occurs through learning and internalising the rules of tradition in order, ultimately, to embody righteousness and law (dharma).

There was a golden age when such rules reigned completely. In the fifth-century CE Laws of Nārada (1.1), we read:

When men had righteousness (dharma) as their sole purpose, spoke the truth, and kept their promises, there was no litigation (vyavahāra), no enmity, and no selfishness. Litigation came into being when righteousness was lost among men. The king is the overseer of litigation; he is responsible for punishments. (Lariviere 1989: 3, translation slightly adapted)

A perfect society is not rule-free, but rule-saturated. A moral society is one based on embodiment of the rules established in this golden age. In short, law and ethics are grounded in both unassailable revelation and elite consensus. That is important because both ultimately work against an unfettered idea of conscience as personal conviction or moral compass. Thus, we need rules first so that, at a time when adherence to the rules is no longer natural, we may respond to the transcendental commands of the Veda and to the Vedic tradition transmitted by Hindu law and society.

However, the substantive place of Vedic command in Hindu law is minimal and mostly rhetorical. Sankararama Sastri (1926: 46, 95) called the Vedic character of Hindu law its ‘leading fundamental fiction’ and suggested that Hindu law authors knew full well that it was ‘a mere fetish’.⁵ Even the more realistic authors of Hindu law such as Medhātithi (ninth century CE) openly acknowledge that ‘not all dharmas are based on the Veda’ (Olivelle 2017: 138). Revelation, therefore, is a symbolic foundation for the moral world that is practically established through human experience and convention. More pointedly, reference to the Veda is a natural law patina on a core of customary law.

Accounts of the foundations of morality among many Anglo-American conservatives similarly pay lip service to religious truths while placing emphasis rather on time-tested institutions and customs as paramount. Acknowledging that many conservative self-representations insist on a ‘transcendent moral order’, Muller distinguishes conservatism and orthodoxy: ‘While the orthodox defense of institutions depends on belief in their correspondence to some ultimate truth, the conservative tends more skeptically to avoid justifying institutions on the basis of their ultimate foundations. … Conservatism is also distinguished from orthodoxy by the conservative emphasis upon history’ (1997: 4, 7). According to this distinction, Hindu law acknowledges an orthodox foundation in the Veda, but privileges past custom as the substantive guide to moral action. Pious Christian conservatives similarly place explicit value on the Bible, but they interpret it in the light of received tradition. The appeal to ultimate religious truths in Hindu law is a mere prelude to the detailed analysis of daily observances, rites, social norms, political institutions, and so on.

The more important second reason why we need rules, therefore, is to make this world better through coordinated and proven institutions and practices. We direct our passions and interests through time-tested practices and the guidance of our predecessors. The prescriptive treatise in Sanskrit is found everywhere and not just in law (Pollock 1985). The rules for any human endeavour may be captured in a text that sets forth norms for action. A śāstra is both a treatise and a disciplinary instrument that trains a person in a particular area. The prescriptive rhetoric of a śāstra, however, masks its substantive origins in the socially accepted practices of an intellectual elite, the Brahmin pandits (Lariviere 2004). The rules of Hindu law, therefore, come from accepted past practice. Neither revelation nor reason supplies substance to Hindu law.

The famous Kāmasūtra of Vātsyāyana, a prescriptive treatise on sex, gives us a nice, earthy justification for why we need śāstras, even for natural acts.

The Teachers say, ‘You don’t need a rulebook (śāstra) to know how to have sex since it happens naturally and regularly, even among animals.’ However, Vātsyāyana says, ‘Since a woman and a man depend on each other to have good sex, a prescribed method is required, and one should learn that method from the Kāmasūtra.’⁶

The contrast in this case is between a claim that sex is ‘natural’ or ‘spontaneous’ (svayaṃ pravṛtta) and a claim that it calls for ‘a dependence on the other’ (parādhīnatva). The first conceives of sex as a simple, natural act. The second imagines sex as a cultivated pleasure capable of refinement to the mutual fulfilment of both partners. The implication of the text, however, is that any action that requires the coordination of two or more people also requires a method or technique (upāya) that is prescribed in and learned from an authoritative source. If you want sex to be more than mere animalistic intercourse, then you need discipline, specifically a technique for mutuality and cooperation during sex.

The Kāmasūtra’s demand for a prescriptively framed method in all things parallels the Hindu law texts’ insistence on rules that establish the aspirational moral horizon for humanity. Both ethics and conscience in this Hindu legalism possess authority only insofar as they conform to traditional rules captured in the texts. A prescribed method enhances all social actions. In Hindu jurisprudence, we learn those methods from the prescriptions of authoritative texts and from time-tested customary norms.⁷ However, we live by these prescriptions through an experiential sense that it is in our interest to do so.

Though brief, the Kāmasūtra’s argument for the coordination of natural passions through rules resembles Hume’s provocative account of justice as grounded in stable possession. He states, ‘After men have found by experience … that society is necessary to the satisfaction of those very passions, they are naturally induc’d to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious’ (Treatise of Human Nature 3.2.2, Hume 2006: 97). For Hume, our dependence on others to respect property boundaries lies at the root of our willingness to live by rules that restrain our freedom and set the initial parameters of justice. In his view, sentiment, or passion, is the origin of morality, but only when it comes from the ‘general point of view’ (Sayre-McCord 1994). Hindu law authors do not argue from the same premises, but they arrive at a similar conclusion. For them, unbroken tradition serves the function of Hume’s ‘general point of view’, namely, to coordinate our actions through received rules. Most other Anglo-American conservatives also prefer to avoid the coordination argument made by Hume (and the Kāmasūtra) in favour of a simpler case that runs from inherited tradition to general rules to moral standards.

A final reason that we need rules is to ameliorate our inadequacies as human beings through the accumulated wisdom of the ages. Working within established institutions and using proven methods, people overcome their faults and shortcomings as individuals. As Burke argued, ‘We are afraid to put men to live and trade each on his...

Table des matières

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of figures
• List of contributors
• Preface
• Introduction: Rules and ethics
• Part I: Rules enabling moral life
• Part II: Rules and virtue
• Part III: Rules about rules
• Afterword
• Index