The Concept of Danda in the Dharmasastra A Unifying View of Spirit and Force of Dharma in Indian Tradition
Résumé
Manusmriti, in one of the references to danda, gives specifications for making a wooden stick for the Upanayan ceremony. This ceremony marks the initiation of a child's journey of learning. The danda is to be made of sacred wood of specific length from trees like Palash, Nyagrodha, or Asvattha, which represent different aspects of the cosmic order maintained by Brahma, Vishnu and Mahesh. The sacred wood should not be twisted, it should not have knots or burn marks, should look good and not cause hurt. The danda as a symbol of discipline is considered necessary for the pursuit of righteousness, and also for protection from threats to righteousness. The child carries the danda as he starts the journey of learning with symbolic bhiksa, or seeking alms, not for himself, but for his teacher. Bhiksha serves to instill in him the values of humility and self-control and a sense of responsibility towards the teacher and the society. The idea of legal culture has had an important place in major recent debates about the nature and aims of law. The concept of legal culture means that law should be treated as embedded in the broader culture of society. In a sense, law is culture. Concept of legal culture encompasses much more than the professional juristic realm. It refers to a more general consciousness or experience of law that is widely shared by those who constitute a nation. Culture is fundamental-a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which we must pass so as to have any genuine access to the meaning of law in society. Cultural concepts of law that emerge out of the several frames of reference in the dharmasastra, the republican governments in ancient India, and the constituent assembly debates enable us to view the law in India in an integrative perspective that is closer to Indian cultural tradition. The innovative value of historical and sociological approach lies in its unifying vision of the theological, cultural and positivist aspects of the concepts of law in Indian tradition. A holistic concept of law including both ethical and legal perspectives seems to provide a more realistic picture of Indian legal culture. A juridical system that does not correspond to the social and cultural sensitivities of a society can not be owned by the people as their system but will be seen as something foreign and imposed. Without a conducive social and cultural conceptualization mere formal law cannot create willing legal and moral obligation.
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