Dharma as the Foundation of Legal Ordering

In one line

An order built on what each person owes works differently from one built on what each person may claim, and dharma is the first kind.

In the wording a student can write in an exam: to say that dharma is the foundation of legal ordering is to say that the classical Indian social order was held together by a scheme of duties rather than by a scheme of rights, and that those duties were differentiated by station, stage of life and circumstance rather than uniform. The order is maintained when each performs his own dharma; it is disturbed when he does not; and the king's function is to restore it.

The duty-based structure

Everything is expressed as an obligation. The texts do not say that a creditor has a right to repayment; they say that a debtor has a duty to repay and that the king has a duty to compel him.

The correlative is assumed but not primary. A duty implies a beneficiary, so duties and rights are formally interchangeable. What differs is emphasis and, with it, remedy and psychology.

Three consequences of putting duty first.

1. Obligations exist without a claimant. A duty to the poor, to guests, to ancestors, to animals and to the earth requires no rights-holder able to sue. A rights-based order has difficulty with obligations nobody can enforce.
2. The order is maintained by performance, not by litigation. Litigation is a symptom of failure rather than the ordinary mode of operation, which is why the classical texts treat the growth of disputes as a sign of decline.
3. Enforcement is not the measure of obligation. Much of dharma was never justiciable and was still binding. A modern lawyer who identifies obligation with enforceability cannot describe the system.

Differentiation, and the objection to it

Duties are not uniform. They vary by varna, the four social orders; by ashrama, the four stages of life; by sex; and by circumstance, including apad dharma, the dharma of distress. There is also sadharana dharma, the general dharma binding on all, which includes truthfulness, non-injury, restraint, purity and forbearance.

The objection. Differentiation by birth is inequality, and the modern Indian constitutional order is founded on its rejection: Article 14, Article 15, Article 16, Article 17 abolishing untouchability, and Article 25(2)(b) opening Hindu religious institutions of a public character to all classes.

The honest answer for an examination. An account that presents the classical order as egalitarian is false, and an account that dismisses it entirely misses what MU is asking. The defensible position is that the tradition supplies a conception of ordering by duty which is valuable, and a scheme of differentiation by birth which the Constitution has repudiated, and the two can be separated because the general dharma binding on all is stated in the tradition itself.