Sources of Law and Society in Ancient India

INTRODUCTORY

The sources of law take up an important part of the exposition of Hindu law as of any system of ancient law which could boast of a system at all. Indeed at an early stage in the emergence of law into self consciousness in the life of a nation A considera- there comes a demand for a definition of its sources. tion of them is likewise of great interest both for the historical student and the practical jurist.

In an enquiry into the actual sources of law we have to be on our guard against taking any enumeration of those sources in the classical text books at more than their real worth. Early legal dicta (Rechtssätze) are merely a rough and ready way of setting out the observation and understanding by contemporary jurists of juristic facts. They are therefore apt to mislead unless we approach them from a correct point of view and are in a position to eliminate from them the sources of misunderstanding. The inperfections of the dicta arise, as Ihering points out (a), partly on account of deficiency in the powers of observation and expres- sion (Beobachtungsgabe and Darstellungstalent) and partly because the authors of those dicta, writing for contemporaries, took for granted a great deal of their notorious presuppositions without a knowledge of which they might appear to posterity either as riddles or as laying down principles perhaps entirely opposed to their real purport.

Besides this common source of error in all ancient dicta, the enumerations of the sources of law labour under the further dis- advantage that they are very generally not a plain presentment of the actual practical law (tatsächliche Recht) but of that as coloured by a theory. Thus for instance the Roman jurists generally agree in refering the origin of all law to the agreement of people and proceed to test the sources of law by the application of that criterion, by asking, viz., how far the source in question may be regarded as expressing the common will of the people (b). So also the Hindu lawgivers all agree in refering the origin of law to a Sruti or Eternal revealed knowledge, an assumption which, so far as law proper is concerned is almost admittedly without any foundation (c). Starting with that assumption the Hindu jurists generally proceed to test the other sources of law by considering how far those sources may be relied upon to give the teaching of the Sruti (d). These secondary sources were un- doubtedly sources of practical law but their respective values as they are represented from the Srauta point of view may not have exactly coincided with fact and usage. A theory is gene- rally more or less inadequate to start with and the Sruti theory of law may well be supposed to have given a place to sources which were not practical springs of law and on the other to have excluded those to which people habitually looked for the law. It would be only with the progress of time that the inadequacy of the theory to cover all facts would become patent and then at- tempts would be made to revise the theory from time to time so as to reach a completer and more satisfactory conclusion.

This end, at which the enumeration of the sources of law would exactly coincide with the practical sources, would be the result of a two-fold process of approximation between theory and fact. On the one hand, the ideas of jurists on the sources of law develop an increasing amount of precision, and, on the other, the more or less general rcceptance of the theory itself reacts upon the usual sources of law so that sources disapproved by theory tend to fall into disfavour and those which the theory itself has produced tend to rise into prominence. An illustration may he given from conclusions which I propose to elucidate in the course of this thesis.

So far as law proper (which was a part of the Samayacharika rules) was concerned, the real practical sources in pre-Dharma-

(b) See Digest Bk. I Tit III. The assumption underlying these tests viz. that law is founded on agreement Korkunoy considers to be a fiction. Korkunov. General Theory of Law Trans. Hastings p. 411. See on this post Part II §3.

(c) See Apastamba II, 11, 29 who practically admits that so far as Samayacharika rules are concerned the Vedas furnish very little guidance. See authorities discussed post under Part II §2.

(d) This mode of argument is elaborated in the Mimansa Darsana, Sahara Bhasya and Kumarila’s Tantra Varttika in the third Pada but it underlies all the mere enumerations of authors like Gautama, Vasistha, Bandhayana, Apastamba and others. A full discussion of the authorities will be found post under Part II sastra days were tradition and usage interpreted and enforced by various societies and among others, by the Parishads. In the carliest Dharmasastras we find that these are recognised as sources of law though the ultimate spring of their authority is This reference to the Veda is, with the referred to the Veda. carliest law-givers, little more than a formula for showing re verence to the revealed word and expressing the sanctity and supra- sensible authority of custom (e). They did not attempt to seck the practical law in the texts of the Vedas as they were, nor confront Vedic rules with customs or traditions. With later writers however we find an increasing tendency to refer to the dicta and the examples as embodied in the Vedas for authority till we reach perhaps the culminating point in the clevation of the Veda to the position of a direct source of practical law in the writings of authors like Sabaraswami and Kumarila Swami. Every rule of custom and Smriti is confronted wherever possible with Vedic texts and if the various authors differ as to the exact quantum of relative authority to be attached to these they take it for granted that texts of Veda are sources of absolutely bind- ing positive law. The character of tradition and custom changes under the Sruti theory. While in works like that of Apastamba we find them enjoying almost absolute primacy amongst sources of law they dwindle in authority and are hemmed in with more and more stringent limitations till we find Kumarilaswami assert- ing that tradition is authority only when it comes from Rishis who are mentioned in the Vedas and usage can be considered only when it is that of persons who are found to have habitually regulated their conduct by the religious law and then only when in acting as they do in the case in question they are obviously impelled by a desire to follow the religious law and do not go against Sruti and Smriti texts ().

That is how practical law tends to approximate to the theory. On the other hand, we have only got to refer to the various Dharmasastras to see how the enumeration of the springs of law tends to amplify. Thus while Gautama refers, besides Veda, to the recollections and habits of men who know the Vedas and Apastamba to the agreement of learned men

“वेदनैवाभ्यनुज्ञाता येषामेव प्रवकृता । नित्यानामभिधेयानां मन्वन्तर युगादिषु ॥ तेषां विपरिवर्त्तेषु कुवेत धंसंहिताः । वचनानि प्रमाणानि नान्येषामिति निषयः ॥ and “धत्वेन प्रपन्नानि शिष्टैर्यानि कानिचित् । वैदिकः कत्तं सामान्या तेषां धर्मत्वमिष्यते ।

tacitly recognise other sources in the body of their works) as the only sources of law, we find the list growing fuller, more precise and more embracing as we go from these authors to Vasistha and Bandhayana and more so when we come to Manu and Yajnavalkya, This development of the theory in precision and elaborateness is the result of an attempt to approximate theory

to actual facts.

Illustrations of the inadequacy of early theories to present facts in their true perspective and of the correction of the diver- gence between fact and theory by this two-fold process of ap- proximation might be adduced from other systems of law. It this is a fact we cannot wholly rely upon the early enumerations of the sources of law without first being in a position to correct the errors of perspective to which these may lead us. To be able to do so and to arrive at a really complete conception of the prac- tical law of those ancient times we shall have to take whole ancient literature in a mass and sift their legal principles and institutions to discover what Ihering calls their “inner chrono- logy,” of which time succession, even if well ascertained, would convey an imperfect idea. We shall further have to complete the legal dicta themselves by furnishing their presuppositions from a study of them with reference to their environments-the social and legal institutions of the times, the ideas of the people, the Social Ends and ideals and in short the entire culture of the time to which the dictum belonged.

The Social Ends must form an important part of our investi- gation specially when we have to deal not with a bare present- ment of facts or actual rules but with those as coloured by a theory. Ihering has brought out the great importance of social ends in determining the contents of law (g). The relativity of law to ends must now be taken to be a settled fact. The relati- vity however extends, not only to the contents of law, as Thering establishes, but also to its form and source, as Korkunov points out (k). The sources of law recognised in any system are pre- eminently determined by the ends contemplated by the society to which the law applies and vary with a change in social ends and ideals. To make a reconstruction of this character with reference to Hindu law would require the labours of experts in all branches of Sanskritic learning, of archælogists, Epigraphists,

(g) Thering: Law as a means to an end. series. Boston. (k) Korkunov. General Theory of Law.

Modern Legal Philosophy

Translation by Hastings

Numismatists, Anthropologists and others. In this thesis all that I propose to attempt is to study the sources of Hindu law with reference to institutions and social ends of ancient India such as can be traced in the legal literature itself.

I assume of course that the law as laid down in Sanskrit works like the Smritis and developed and interpreted in com- mentaries and Nibandha works represents the law which at some time or other prevailed in ancient India, at any rate in Aryan India. I am aware that there is a class of opinion which would be chary of accepting this as a statement of fact even if it did not venture to go so far as to deny straightway that they were works of authority at any time or reflected the true state of law in any age in Indian history. Thus, for instances, Nelson, while mainly concerned with denying the authority of Sanskrit works in southern India, is obviously skeptical about the existence of any set of laws like that in the Sanskrit works anywhere at any time. This strong undercurrent of skepticism comes to the surface in his bold and unhesitating statement that that Hindus had no courts and no laws at any time (i). The grotesque absurdity of such a statement would be manifest when we examine the authoritics which he puts forward for this proposition. The entirely negative evidence of Megasthenes and the Chinese travellers, coupled with the equally negative travellers’ tales of Abbe Dubois, Marco Polo, Bernier, Tavernier, P. Van den Brocck and Father Bouchet in very modern times and with isolated and localised observations of Sir William Jones and Antequil Duperron furnish the magnificent testimony which Nelson opposes to that of an unbroken series of Sanskrit works of great antiquity. The evidence of Sir William Jones (j) adduced by Nelson, if studied with reference to the modes of recovery of debt mentioned by Manu and other Smriti writers (k), would possibly lead to the opposite conclusion and furnish a strong indication that the customs referred to represented remnants of old Smriti law. In any case however it is absurd to judge, from stray evidence of this character relating to very modern times, about the condition of societies about twenty centuries earlier.

It is hardly necessary at this late date to challenge the his- torical conclusions of Nelson on this head. If it were, they would be met by saying that the evidence adduced by the author

(1) Nelson, Prospectus of a Scientific study of Hindu Law. p. 44 and also at p. 161.

(1) Sir Willian Jones’ Works Supplementary Volumes II p. 739. (k) See Manu VIII. 49.

hand it is quite apparent from internal evidence as well as from does not at all established what he seeks to prove. On the other other authorities that Smriti law was the practical law adminis tered at sometime in ancient India-no matter when; and that the authors of commentaries and digests were not dilettantes of Jolly on this head (1) will be endorsed by every one who has engaged in building up elaborate aerial castles. The conclusion taken any nearly adequate view of Hindu law books. The evi dence of epigraphic records (m), such as they are, also furnishes some independent corroboration of the theory that Smriti law was honoured by Hindu Kings. In literature too the trial scenes in Mricchakatika (n) and the Dhurtasamagama (o) show that in the main Smriti law was sought to be followed by kings in the times of their authors. But perhaps the question is altogether set at rest when we look at the vast body of non-jural customs of Hindu India of to-day (at any rate in northern India) which have not been affected by the political changes of history and which inspite of all aberrations and all subsequent influences are yet found to be based on an implicit acceptance of the authority of Smritis. That shows that Smriti law has been obeyed in India for ages even where there has not been any political sanctions for it. Is it a violent presumption then to assume that when the authority of Hindu Kings lent support to that law it had all the force and authority of positive law that a comparatively unorganised state of society in those days permitted?

I do not therefore make any further apology for founding my treatment of the subject on the Sanskrit works. I may say also, that in dealing with them I do not propose to tread on the thorny path of ancient Indian chronology which, so far as lite- rature is concerned, is little more than a heap of guesses. It is happily not of much importance to us to arrive at any very accurate conclusions on the dates of the particular works we are dealing with. We are more concerned with what Ihering calls the “innere chronologic” of legal facts and this can be deter- mined with reasonable certainty without our being anything like

Jolly: Tagore Law Lectures

I refer to the land grants which strictly follow the form laid down in the Smritis for them. See Jolly Institutes of Vishnu note. also Burnell. Elements of South Indian Paleography.

A drama by Sudraka. A translation of trial scene with a synopsis of the plot by the present writer will be found in 16. C. W. N. p.

A farce referred to by Jolly at p. 68 of his Tagore Law Lectures. The Mudrarakshasa also furnishes some evidence of the authority of Smriti law.  equally sure whether our antiquities leads us back to two hundred or two thousand years before Christ or whether we must be contented with the ignominous nonage of a thousand years or less. It is comparatively easier to determine what were the real rudimentary conceptions of law in ancient India and also to trace the broad lines of development of most of these conceptions specially with the aid of studies in other system of ancient law which throw a great deal of light on the character of archaic law generally.