What Can International Law Learn from Indian Mythology, Hinduism and History?

AuthorAlakh Niranjan Singh and Prabhakar Singh
Pages239-271

Page 240

Alakh Niranjan Singh: Head, Department of Sociology, SNSRKS College, Saharsa, (B. N. Mandal University, Madhepura), Bihar, India

Prabhakar Singh: LL.M. candidate in International Economic Law and Policy (IELPO) at Universitat de Barcelona, Spain. He holds a B.A./LL.B. (Hons.) from National Law Institute University (NLIU), Bhopal. He was a Visiting Scholar to the Court of Justice of the European Communities in 2007

I Introduction: Religious Conflicts

The India-Pakistan Kashmir Conflict.

Tibet and the Dalai Lama’s Struggle for Independence from China.

Thailand and Cambodia Border Clashes over the Preah Vihear Temple.

The Tamil Tigers (LTTE) in Sri Lanka.

The Taliban and Afghanistan.

Al Qaida and West Asia.

If you read any recent periodical or newspaper, you are likely to see more and more coverage of conflicts involving religion and state. This troubling pattern is specifically acute in Asia, where the relationship between religion and society is particularly tense. Pathology of this situation reveals that sovereign and religion are not at ease with today’s Asian society. This is striking given that many of the founding fathers of modern international law were naturalists and religious scholars. International law in Europe emerged form the works of religious naturalist scholars like Spanish Francisco Suárez (1548-1617), Italian Alberico Gentili (1552-1608), and Dutch Hugo Grotius (1583- 1645). In his works, Gentili premised that the God was the legislator.1 Such premise is not uncommon of the legal scholars of that time.

Gentili’s first book on international law, “De Legationibus Libri Tres,”was published in 1582. Suárez entered the Society of Jesus at Salamanca, studied philosophy and theology, and wrote “De Triplici Virtute Theologica, Fide, Spe, et Charitate”(The Three Theological virtues, faith, Hope and Charity). Gentili and Suárez wrote long before the treaty of Westphalia in 1648 and Grotius cited the works of Gentili in his “De jure belli ac pacis libri tres”(On the Law of War and Peace: Three books). The forefathers of modern international law, therefore, were mostly naturalists and religious scholars.

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A Gandhi and International Relations: the Making of Modern India and the Role of Hindu Polity

The discussion above brings into light the role and importance of religion, particularly Christianity, in the making of international law. The question now is whether the contribution of Christianity is enough to make international law complete and universal. Are there possibilities of contributions from other major religions of the world? India, with a Hindu population of over 80 percent, continues to be the largest secular democracy. This fact points to the inherent secularism and universalism of Hinduism. After the end of colonisation, India survived the scare of fundamentalism from its division based on a “two nation theory”in 1947, the assassination of Gandhi in 1948 by a Hindu extremist, and the existence of the then only Hindu state, Nepal, on its border. Pakistan, on the contrary, has not been able to cultivate secularism. The Islamic theology with its military nexus has undermined the growth of Pakistan as a democracy. This dichotomy suggests that Hinduism has played a subtle role in the secularisation of the Indian polity and legal system.

The Indian concept of Gandhian thought is never spoken of as contributing to international law, but it does have a bearing on international relations and political science. International law and international relations, as disciplines, cross-fertilise each other. In fact, Gandhi’s very effective and rather novel ideas of passive resistance in Ahimsa (non violence) and Satyagraha (truthful request) come directly from the cumulative matrix of Asian religions with major contributions from Hinduism. The universal appeal of his thought and possibility of application was proved by Gandhi himself in South Africa. In fact, he tested his indigenous tools in a foreign laboratory to eventually use it in India.2 It is therefore not surprising that the modern Indian intellectuals, irrespective of their discipline of research, from Amartya Sen to Ashis Nanday, have gone back to ancient India and to Gandhi to discover the self-belief of modern Indian cultural consciousness.3 This exuberance of self-discovery needs to be translated into international law as well.

This narration puts the role of ancient Hindu polity into the spotlight. Hindu international law differentiates itself from modern international law in its agelessness, Page 242 universalism, and its existence as positive laws. This paper begins by discussing the role that Christianity played in shaping modern international law in Europe (Section II). The paper then discusses the legal counters of Hindu international law, the role of mythology and history in its evolution (section III), and the importance of the Kautiliya and Bhagavad Gita (Section IV and V). With a descriptive historical approach to Hindu international law, our article mentions the international natural resource law of Buddhism as a part of the Hindu perspective of international law. In so doing, the article views Buddhism as a subset of Hinduism, from both a historical and an international law perspective.4

The paper mandates only a referential and not a detailed study of international law in Buddhism (section VI). It then cites, as an example, the most recent case of the application of ancient Indian principles of Panchsheel by India translated into nonalignment policy of Nehruvian times and how this principle could be used in the European Court of Justice (ECJ) (section VII). The article also seeks to re-establish the origin of these five principles of peaceful co-existence, as legally established principles from Asia, in the larger call for accommodation and appreciation of the oriental “others” (all that was non European was considered “other”for the purposes of defining the boundary of the civilised world). The paper posits a comparative note on Hindu Dharmayuddha, Muslim Jehad and the Christian Crusade (section VIII). Finally, and most importantly, the paper ends with suggestions of how to apply Hindu international law under existing body of international law, particularly in the International Court of Justice (ICJ) (section IX). This paper seeks to break the academic hibernation of Indian lawyers and social scientists in contributing to the making of a true universal international law from an Indian perspective.

II The Nature of Modern European International Law: Between Christianity and Colonialism
A Manufacturing Modern International Law

Modern international law, as the name suggests, is rather new. As late as September 8, 1873, eleven men met at the Town Hall of Ghent in Belgium, adopting the Statute of the Institut de Droit International, defining the organisation as the organ of the juridical Page 243 conscience of the civilised world.5 But the politics of semantics explains why a particular civilisation was considered superior over “others”that existed in different time and geography. The non-Europeans continued to remain obscured in the occidental narrations of cultural contribution to the making of laws of the civilised states. One can also debate and refute the self-defining narrow European construction of the “civilised”states, which apparently excluded Asian, African and Latin American cultures.6

The history of modern international law, as discussed below, explains why it is dominantly European and therefore Christian in origin. In fact, the Americans only entered into this elite group after the vagaries of two World Wars and consequently, when the concept of sovereignty was determined by international relations and not only by international law.7 The modern international law was enriched by both Universal Catholicism and Protestants. For example, Jonathan Fox explains that religion, surprisingly, is an overlooked aspect of international relations.8 There are, nonetheless, recent cases, like in post-war Taiwan, of religion acting as a factor of state creation, supporting the view that the religion plays a dominant role in the creation of states and their laws.9 So why does Hinduism, the most ancient religion of the world, occupies only a marginal role in the shaping of modern international law? The history of...

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