In Case of Emergency Break Law: Āpad Dharma and the State of Exception
Since the COVID19-virus hit the world some months ago, we are living in a so-called state of exception. While we are handling the situation with more and more bans, the Hindu dharma does the complete opposite: in case of emergency you may break the law!
Since the COVID19-virus hit the world some months ago, we are living in an emergency situation. To deal with corona, governments all over the world have implemented new rules — or rather, new prohibitions. We are not allowed to shake hands anymore. We are not allowed to work at the office. We are not allowed to come within 1,5 meters from each other. Etcetera. The new interdictions mean that several ‘rights’ of law have been suspended. This looks quite a lot like the suspension of rights which we see in the beginning of the third Pirates of the Caribbean movie, At World’s End. For two movies, the pirates have been making fun of the British officials, who are losing their grip on the sea and thus on the (spice) trade. The British governors have to take severe precautions to regain their control of this now chaotic ocean — note the suggestion of distress in the film’s title, it’s the end of the world! The British government declares ‘war’ on the pirates and instates martial law. Just as today, the right to assembly is suspended.
Notice how the official begins the list of suspensions with the statement that “a state of emergency has been declared”? In the fictional 18th-century world of Pirates of the Caribbean the state of emergency arrives with the threat the pirates pose to world order. In the very real current corona crisis, the state of emergency has arrived due to a virus threatening the world. The immediate reaction of governments to such a threat is thus: suspend the normal rules. This is also called the “state of exception”, a concept philosopher Giorgio Agamben has explored in his 2005 book with the same name. But more about that later.
Because the funny thing is, while governments today just like the English officials in PotC handle a crisis through suspension and banning people from doing certain stuff, the Hindu concept dharma has a very different approach to a state of emergency. Dharma knows a set of rules called āpad dharma. With āpad meaning “misfortune, calamity, distress” (Monier-Williams), āpad dharma are the rules for emergency situations. Āpad dharma says that if a husband failed to produce an heir before he died, his brother is allowed to continue the family line with his wife (a practice known as levirate, from Latin levir “husband’s brother”). Āpad dharma says that if a Brahman cannot make living doing the normal tasks of his caste (priesthood), he may take upon him the ruler jobs of a Kṣatriya (the second caste) or even start farming (a job for the third Vaiśya caste). So, āpad dharma alleviates rather than restricts.
Let’s take a famous passage from the Mānava Dharmaśāstra as an example. As you probably know, most Hindus are vegetarian. This stems from the practice of ahimsa, non-violence, since if you cannot do harm to an animal (aka kill it) you cannot eat it either — a sentiment many modern-day vegetarians would probably agree to. The Mānava Dharmaśāstra (MDh) has a passage discussing the intricacies of vegetarianism and meat-eating which is, admittedly, very confusing, but shows some insights to the emergency rules of āpad dharma nonetheless. Unsurprisingly, the passage tells us that meat-eating is wrong, but it also lists some exceptions:
“You may eat meat that has been consecrated by the sprinkling of water, or when priests want to have it, or when you are properly engaged in a ritual, or when your breath of life is in danger.” – MDh 5.27, italics mine.
While the former three reasons all refer to the sacrificial sphere — a situation which goes beyond the scope of this blog — the last one is very specific. If you are about to die from starvation, please eat meat to preserve your life. This reason is further explicated in the next line:
“The Lord of Creatures fashioned all this (universe) to feed the breath of life, and everything moving and stationary is the food of the breath of life.” – MDh 5.28
The deity who created all living beings, made the universe for the purpose of “the breath of life”. So, to keep breathing, i.e. to stay alive, you may do anything — even eat meat. The two other examples of āpad dharma I mentioned above also show similar thinking. To make sure your family lives on after you, you may practice levirate. To make sure that you have a means of livelihood, you may do jobs outside of your caste. This is in line with the idea that dharma is here to sustain the universe, to sustain life. The prohibiting regulations of today’s world also have as goal to sustain life. For example, we are banned from coming near other persons so as to prevent the corona virus from hopping over and making the other person life-threateningly ill. But while dharma throws all normal rules overboard in such a situation, the corona regulations only increase the number of laws listing illegal acts.
The distinction between lawful living and sustaining life is also drawn by the philosopher I already mentioned above, Giorgio Agamben. Agamben makes a distinction between bios, the life of a “citizen” in which the way you live that life is important, and zoē, “bare life”, the sheer biological fact of being alive. Normally, in case of dharma or in a world without corona, laws or rules apply to bios — how you should live your life. But if living according to the law puts you in mortal danger, zoē is valued over a particular bios. Staying alive is rule number one.
In this preference to preserve your zoē over the actual implementation of that life (bios), the emergency rules of āpad dharma seems to refer to the Dutch saying “nood breekt wet”, literally “emergency breaks the law” but otherwise similar to the English “necessity knows no law”. This proverb seems to say that if you are in great distress, you may break the law. As such, the emergency situation seems to be ‘outside the law’ — in a lawless place. This is exactly what Indologist Wendy Doniger considers in the introduction to her translation of the MDh, she thinks that the “central text” of the normal dharma rules is “unravelled” in the sub-text of āpad dharma (Doniger, liv). Her co-translator Brian Smith even goes so far as to say that the need for āpad dharma rules proves the “ultimate failure” of the MDh to be a realistically applied text of law (Doniger, lviii). Giorgio Agamben however thinks the exact opposite! Since there are stipulated exceptions to the normal law, the emergency rules actually prove that the normal law has validity: otherwise you wouldn’t have to list when that law does not apply. He calls this state of exception the “threshold” between the normal situation and chaos (Agamben, 1995: 19).
The concepts of Giorgio Agamben are quite difficult to understand, so don’t worry. What we take from Agamben here that there are three situations:
- The normal situation, everything is fine, the world is in order (for example, the Dutch society before March 13). The normal law, or dharma, applies: you are not allowed to eat meat since there is plenty of other food to stuff in your mouth.
- Utter chaos. In this world, there are no rules. The corona virus would really go rampant, for example, because there is nothing to stop it.
- To prevent the utter chaos of 2), the state of exception installs an intermediate place, where the normal rules in 1) do not apply but there are rules to follow. Such as the corona regulations. Or the āpad dharma rule that you may eat meat if you’d otherwise starve.
Although the corona regulations and āpad dharma handle emergency situations differently — the one forbids/disallows, the other bids/allows — they both install a threshold between the law in normal times and the fearful situation of utter chaos. They both pertain to a state of emergency, or ‘state of exception’. Also, in the end they have the same aim: to sustain life. But while Hindus are emphasize to look out for their own life-breath, the thing we had to do now is care for the lives of others and stay indoors. No bios for a while [Dutch “bios”, slang for “bioscoop”, the cinema].
All translations are from:
Wendy Doniger & Brian K. Smith, The Laws of Manu. London: Penguin Books, 1991.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life. Stanford University Press, 1995.
Giorgio Agamben, State of Exception. translated by Kevin Attell. Chicago: The University of Chicago Press, 2005
Pirates of the Caribbean: At World’s End. dir. Gore Verbinsky, (2007).
 The Dutch governments phrases these rules as “strongly advised” rather than actual laws, addressing the ‘common sense’ of the Dutch people. Still, it is not done to break these rules, and fines have been given to people who disobeyed them.
 In two previous blogs I talked about law and lawlessness in Pirates of the Caribbean: “Keep to the Code” and “A Pirate’s Life for Me”.
 The notions “moving” and “stationary” refer to animals and plants respectively.
 See my first blog, in which I explain the concept of dharma in more detail in the part “Hindu Dharma”.
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