THE DHARMASASTRA AND MODERN LAW
Letter
and Spirit of Law in Indian Tradition
Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts
Abstract
This article on the dharmasastra and modern law uses
the concept of legal pluralism that has an important place in recent debates
about the nature and aims of law. The concept of legal pluralism means that law
should be treated as embedded in the broader culture and tradition of society.
In a sense, law is culture. Concept of legal pluralism emphasizes diversity in
the professional juristic realm in different countries and societies. It refers
to a 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 is 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.
In India,
the social and cultural concepts of law that emerge out of the several frames
of reference in the Veda, Dharmasastra, the constituent assembly debates and
the judicial decisions, enable us to view the law in an integrative perspective
that is closer to Indian cultural tradition. The value of such historical and
sociological approach lies in its unifying vision of the social, cultural and
positivist aspects of the concepts of law in Indian tradition.
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. A holistic concept of law including both ethical and legal
perspectives seems to provide a more realistic picture of Indian legal
tradition.
Introduction
In the context of Indian knowledge
tradition in general and dharmasastra in particular, there has been no
misunderstanding more serious in nature than the supposition that Indian culture
and tradition is fundamentally 'religious', in the sense in which the words
'religion' and 'religious' have been used in the West for centuries. These
imply a belief in one exclusive God or messenger as the creator or visionary of
the universe, an exclusive book containing the life and the sayings of that
messenger of God, a separate code of commandments, a conclusive corpus of
ecclesiastical laws to regulate thought and behaviour in the light of these,
and a hierarchy of priesthood to supervise that regulation and control and
promote proselytization.
The Indian concepts of dharma
and dharmasastra mean none of these. It is to this confusion that we can
trace most of the Western misconceptions of Indian society, culture and law.
Understanding of many of Indian social and legal institutions continues to be
founded upon such misconceptions which are often the source of the social and
political problems that the people of India face today. The assumptions
underlying Western law and jurisprudence at different stages of its development
were radically different from the assumptions of traditional Indian law and
jurisprudence. It was the Western political and legal philosophy narrowly and
rigidly based on the rights of the individual that dominated the
constitution-making in India.
Many
Western scholars and their Indian followers with their apemanship and parrotry,
vigorously refuse to accept the indigenous identity of law in India, primarily
because their assumptions about ‘law’ differ from the internal categories of
indigenous law. The main problem that arises in connection with understanding
indigenous law, has been the regular attempt – by insiders as well as outsiders
- to deny that this important legal system actually has its own capacity for
internal modernisation. India’s indigenous
law is much more than state law and thus it explicitly rejects the usefulness
of legal positivism as an analytical tool for understanding the actual
complexity of law. The projected decline and virtual abolition of indigenous
law is nothing but a constructed myth that has served certain purposes and
modernist agenda – and continues to do so with much persuasion - but it cannot
deny the social, cultural and legal realities of Indian culture and tradition.
Modern Law
Contemporary Western jurisprudence is a
product of long Western history and is coloured by a Western culture based on
the Hellenistic and Christian view of man and society. The universalistic
achievements of Western jurisprudence disguise its cultural specificity. That
specificity may have been in some cases diffused by or assimilated into
different specificities of different cultures, but in other cases it has
conflicted with or been rejected by them. In all cases, Western jurisprudence,
convinced of its illusion of universality, does not pay due attention to the
cultural problems which accompany such diffusion or conflict between Western
specificity and non-Western specificities.
The first attempt to create a modern scientific
theory in jurisprudence was the positivist theory of the English Jurists
Bentham and Austin. Bentham and Austin utilized the positivist approach of
Auguste Comte to the explore subject of jurisprudence. They insisted that one
should study the law, including the legal structure, the legal concepts etc. as
it is, and not how we would like it to be. This was the scientific approach at
that time because in science also we study objective phenomena as it is and not
how we like it to be. For instance, when we study the atoms in physics we study
the nucleus, the electrons orbiting around it, etc. We do not speculate how the
atom should behave according to our own wishes, but we study it as it is. The
same approach was adopted by Austin and Bentham in jurisprudence.
Positivist jurisprudence regards law as a set of
rules (or norms) enforced by the State. As long as the law is made by the
competent authority after following the prescribed procedure it will be
regarded as law, and we are not concerned with its goodness or badness. We may
contrast this with the natural law theory which says that a bad law is not a
law at all. “The science of
jurisprudence is concerned with positive laws, or with laws strictly so called,
as considered without regard to their goodness or badness”. Thus, positivism
seeks to exclude value consideration from jurisprudence, and confines the task
of the latter to analysis and systematization of the existing laws. The
separation of law from ethics and religion was a great advance in Europe from
the feudal era.
It has been a general belief among both
scholars and laymen that law is a special mechanism for establishing social
order isolated from other social mechanisms and, for this reason, that the
scientific study of law should be confined to the special capacity of positive
legal jurisprudence. While
positivism was a great advance over natural law and was suited to modern
industrial society, it had a great defect that it only studied the form, structure,
concepts etc. in a legal system. It was of the view that study of the social
and economic conditions and the historical background which gave rise to the
law was outside the scope of law and jurisprudence and belonged to the field of
sociology.
However, unless we see the historical background
and social and cultural circumstances which give rise to a law it is not
possible to correctly understand it. Every law has a historical background and
it is heavily conditioned by the social and cultural system prevailing in the
country. The flaw in positivism therefore was that it reduced jurisprudence to
a merely descriptive science of a low theoretical order. There was no attempt
by the positivist jurists, like in sociological jurisprudence, to study the
historical and socio-cultural factors which gave rise to the law. Positivism
reduced the jurisprudence to a very narrow and dry subject which was cut-off
from the historical and social realities. It deprived the individual and the
society of jurisprudence of flesh and blood.
Legal
Pluralism
The cultural relativism approach that emerged in social sciences in the
twentieth century in the wake of Einstein’s theory of relativity, and the
uncertainty principle of Werner Heisenberg, argued that a society’s institutions
and practices should be understood based on that society’s own culture. Edward
Sapir and Benjamin Whorf, major proponents of cultural relativism, argue that
the norms and values of one culture should not be evaluated using the norms and
values of the other. Another way of saying this is that many features of human
experience are entrenched or embedded in social and cultural
conceptualizations. Cultural relativism offers both a theoretical and an
analytical framework for investigating cultural conceptualizations that
underlie the social and cultural practices and institutions. At the heart of
the theoretical framework of cultural relativism is the notion of cultural
cognition, which affords an integrated understanding of the notions of
“knowledge” and “culture” as they relate to social practices.
Viewed in this
context, the letter and spirit of law in India is not limited to the monistic
system of state law as maintained by Western jurisprudence in accordance with
methodological postulates of legal positivism. The whole structure of law as an
aspect of Indian culture includes all regulations, however apparently different
from state law, which the people concerned observe as law in their cultural
tradition, including value systems. The very cultural identity India demands
that we include all of them in a whole structure and functioning of law in the
country. Thus, the nature
of law in India is plural, consisting of different systems of law interacting
with one another harmoniously or conflictingly.
At the same time it is true that the
people and scholars of India who have cherished their own jurisprudence with
specificities quite different from the Western, have not succeeded nor even
attempted to present the achievements of their jurisprudence before the world
circle of legal science forcibly enough to cause the proponents of Western
jurisprudence to doubt their conviction of universality of Western
jurisprudence. Without presenting the achievements of their own jurisprudence before
world bodies specifically aimed at self-reflection of model jurisprudence,
Indian scholars remain unqualified to criticize the ethnocentricity of the
latter, as recently pointed out by some Western scholars.
Such a negative or
passive attitude may be another reason why Western jurisprudence has in general
disregarded the jurisprudence of different cultures - jurisprudence with due
respect to indigenous legal cultures in non-Western countries. Vital to the
proper understanding of law in Indian culture is, firstly, for Indian scholars
to present their own data and views positively in order not to negate the
significance of western jurisprudence, but to maintain a sound understanding of
its nature when utilized in different cultures.
The
assertion that law is simply the law of the sovereign State misses the point
that the law gets its meaning from the intersection of legal and various other
social systems of meaning. Law like any other institution of society is
interconnected with other institutions. The task of legal scholars therefore,
is to recognise the connections between the law and social, political and
cultural systems. The interdisciplinary study of law must mean that it brings
the knowledge of the legal doctrine and analyzes it in the context of the
knowledge of other disciplines. In doing so it carries the responsibility to
try and achieve social justice for all. Despite the never-ending debates about
modernisation and secularism in India, dharmic law, governing the social
majorities of India’s population, has continued to play a key role in the
development of the state legal apparatus and will continue to do so. It does
not matter whether scholars like this or not.
Dharma, the foundation upon which all life is based in India, is
immeasurably more than 'religion'; mistakenly one has been taken to be the
other. The Indian mind did not think in terms of contesting polarities of the either/or
kind. It would be yet another misunderstanding if the statement that dharma
is profoundly secular is taken to mean that it is for that reason
anti-religion, or that it has concern with other human beings in the form of
legal accountability alone. The secular nature of dharma lies in the
fact that all Indian explanations of man are evidently located in man himself,
in the very structure of his being. It is that which binds one human being with
another. The ethical foundations, and the limits of one human being's conduct
towards another, are already inherent in man's being, in the force of dharma.
In
modern times, when secularism is upheld as an ideal and religion has been
separated from politics such a linkage may appear far-fetched. The Indian view
is different. Morality, to have effective force in practice must be based on
rules of cosmic order. The unruly conditions of the modern world could have
been avoided if dharmic values had been upheld, and personal, social and
national behavior had been harmonized with the complex adaptive system running
through the history of cosmic creation. Dharma can be comprehended by
its application in daily life, by the consideration of the diverse form it
takes, by its effects both visible and invisible, the empirical evidence behind
it, and and the occasion for its use and or application. Dharma stands
for natural law, civil and moral law, justice, virtue, merit, duty, morality
and quality.
The
study of dharmic law has been
neglected in the decades since independence due to a combination of declining
knowledge of its classical foundations and the pressures of modern political
correctness, to the effect that studying dharmic
law is often seen as a regressive activity. Anything ‘Indian’ is therefore
quickly dismissed in many ways, by those who imagine and assert that a modern
world, by which is often meant a Western-inspired world, can do without
so-called primitive religious and cultural traditions. They have conveniently
forgotten that the so-called modern western traditions have their own roots in
Western cultural and religious traditions. So how can India be called upon to
‘modernise’, if that means giving up the social and cultural concepts that make
up the fabric of the Indian identity? (Aiyangar,
2018, p.62).
Since
dharmic law has always been a reflection of the way of life of millions
of very diverse people, what was abolished by the formal law was manifestly
only a fragment of the entire field and of the social reality of dharmic
law. The conceptual framework and the entire customary social structure of Indian
culture, remained largely immune to the powerful wonder-drug of legal
modernisation which had been administered in measured doses since well before
1947 and was again used during the 1950s and decades thereafter. Something as
complex as Hindu personal law could not be reformed away and ultimately
abolished by statute, nor could its influence as a legal normative order that
permeates the entire socio-legal Indian field simply be legislated away. India’s indigenous law has always
been a people’s law, whether or not the state wished to see it that way.
Despite enormous internal changes, dharmic law as a conceptual entity
has remained an integral part of the living and lived experience of all
Indians.
Vedic Vision
The Vedas give us a hierarchy of different levels of reality down from the all-embracing absolute, which is the primary source as well
as the final consummation of the world process. The different kinds of being
are the higher and lower manifestations of the one absolute spirit. There is correspondence or underlying unity between the absolute and the relative, the unmanifest cosmic reality is not separate or isolated from the objective reality. Whatever is in the cosmos and beyond is essentially true in the
individual also. Whatever is stated of the cosmic reality is applicable to the human body, and each individual is spoken of as a descendant of the cosmos.
The universal is collective. The collective is of no
importance without the particular and the latter cannot exist without the former. If the collective is not manifested
in creative individuality, and it remains
enclosed within its rigid unity, it would neither be the universal nor the
highest power. The collective and the individual are not exclusive. One cannot exist without the other; individuality
is the fulfillment of the collective; the collective is the underlying
foundation and the individual human being is its highest manifestation. The
collective is ever seeking its consummation in the individual. As Tagore summed it up “You without me, I
without you are nothing”.
There
are two kinds of knowledge to be acquired, namely, apara and para-lower and
higher. The lower knowledge is
constituted of the Vedic texts themselves, the higher knowledge is that which
goes beyond the texts of the Veda. Realising the higher truth or knowing the absolute
reality is more important than merely being satisfied with words of Veda or outer shell of their meaning. The person who
knows the Veda but does not know their meaning is only carrying a load. Before the knowledge of absolute, mere
perception can be misleading. When our understanding is
enlightened with higher knowledge we can understand the
relative in a more complete sense.
In keeping with this Vedic vision of reality and
knowledge, Panini developed his theory of grammar in which the structure of
language is seen as an ascending order of relations between words and concepts
from the perceptible level of manifest reality to the highest level of
abstraction which is farthest from objective perception. The intermediate
levels of increasing abstraction eventually merge in the Sabda Brahman where
linguistic reality loses its autonomy and merges in the absolute reality. In the Natyasastra, Bharatmuni set out to use
the very language and vovacbulary of name and form to evoke that which is
beyond form or without form, and all this through the vehicle of verbal and
non-verbal expression of feeling.
Vedic sages realized the overarching presence of rta,
an invisible cosmic law that held together in order a complex and adaptive
system at different levels, forms, and phases of all the objects and processes
that comprised the cosmos. All the forms of being existing and developing in
harmony within an interconnected web of relationships were seen as organized in
a system which integrated all the parts into an undivided whole in flowing
movement. The cosmic order which extended to all levels of existence from the
infinite to the infinitesimal was seen as inviolable, never to be broken, even
by the Vedic divinities who were in fact considered as the guardians of ṛta.
Īśa Upaniṣad brings out the systemic
aspect of cosmic order most succinctly and clearly. It says that the Absolute
Reality is both universal and particular. The creation of the particular from
the universal does not affect the integrity of the universal. The principle or
quality of wholeness and integration is prior to the principle of particular
and diversity. Oneness becomes many in the image of the oneness. That is whole,
this is whole, taking out a particular whole from the absolute whole leaves the
absolute whole integrated and creative as before. Every particular entity has
to be an integrated whole to maintain its identity amongst an integrated system
of infinite entities. The wholeness or integrity of each part is the bedrock of
the wholeness of the universe and the order of the cosmos, and the order of the
cosmos is the bedrock of the wholeness of the particular.
The Vedic texts give a reasonably clear
picture of the world views of the Vedic sages, of their ideas about man’s place
in the world, in particular of the Vedic conceptualization of ṛta as macrocosmic order. Herein lies the importance of the Vedas as a source
of dharma. They elucidate the early conceptual underpinnings of Vedic
law which are absolutely central for understanding the emerging legal system as
a whole. The central point appears to be that ‘law’ is an entity beyond direct
human control. It exists, and yet does not claim institutional loyalty, as a
state legal system would do.
Ṛta is
the principle whereby the Absolute Reality becomes manifest and perceptible to
human senses. In Ṛg Veda it is said that, 'heaven and earth exist in close unison
in the womb of ṛta'. (Ṛg Veda, 10.65). Ṛta, thus, is the one single system that embraces the cosmic
order. The concept of ṛta explains the course of the evolution and sustenance of
the natural and human world in terms of rhythm, time cycle, seasons, and
biological growth. It refers to three basic elements of birth, growth, and
transformation as the components of the complex cosmic system which functions
according to its own self-organizing principles and law. Scholars, scientists,
and poets in all ages have always found it amazing that the Absolute Reality is
so well-ordered. In a landmark Supreme Court judgement, Chief Justice P. B.
Gajendragadkar called this ‘great world rhythm’ one of the basic concepts of
Hindu philosophy.
The early key concept of ṛta metamorphosed gradually into dharma which may be understood as
microcosmic order or duty, the central dharmic
legal term, which in one form or another underlies and suffuses all the later
texts. Dharma became clearly the core concept of Vedic tradition, and
thus of Vedic law. Its relevance in legal terms can be explained quite simply
in that life is seen as a complex experiential reality, in which everybody and
everything has a role to play and is visibly and invisibly interconnected in a
giant systemic network of cosmic dimensions, a kind of universal spider’s web.
Individual roles and obligations are, of necessity, quite disparate for
different people; they depend on contextual factors like gender, age, or place
in society. Dharma as a central legal concept thus suggests unlimited
plurality at the level of social reality within a dharmic systems theory that defies rational deconstruction.
Ṛta is a
multidimensional concept which is connected to other fundamental concepts like brahma, atma, dharma, and satya,in the Veda,
Epics, Upaniṣads and the
Dharmaśāstra. In its most fundamental sense, ṛta is the law, order, system, harmony underlying all
natural phenomena. Ṛta is the all-pervasive universal order that is same at all
levels of existence, and the objective world is the expression of that order.
The field of ṛta is physical, mental, spiritual, and ethical. Nature as
it is known to us is not seen as a chaotic occurrence of events and objects.
While it may appear as random and disorganized, the fundamental processes of
nature that underlie all objective, and subjective realms too, function as a
complex system in which all parts are coordinated and integrated into a larger
whole.
Indian conceptualizations of ṛta,
dharma, and satya are
not comparable with Western principles in the sense that they provide specific
ethical permissions or prohibitions. Truth in the Western sense is the sum of
what can be isolated and counted, it is what can be logically accounted or what
can be proved to have happened, or what one really means at the moment when one
speaks. While the Indian conception of satya is marked by an inner
realization of the wholeness of reality, the Western view of truth is better
described in English dictionaries as truthfulness or veracity of individual
explicit statement.
In Indian tradition, on the other hand, truth is defined
in Mahābhārata when it says, 'Satya is dharma, tapas (austerity)
and yoga. Satya is eternal brahma, Satya is also the foremost yagya, and everything is established on Satya'. In an illustration
of this principle, Mahābhārata says
that the spirit of dharma exists in the khadga (sword) also. The khadga
or sword is a creation of Brahma for the purpose of protection and
sustenance of the people according the principles of dharma. It takes
the form of verbal, material, physical or death penalty for those who consciously
violate the principles of dharma for their own selfish ends.
The
concepts of rta and dharma are of great significance in the
ethical and legal tradition of the Vedas. It is the anticipation of the law of
karma, one of the distinguishing characteristics of Indian legal thought. It is
the law which pervades the whole world, which all gods and men must obey. If
there is law in the world, it must work itself out. If by any chance its
effects are not revealed here on earth, they must be brought to fruition
elsewhere. Where law is recognized, disorder and injustice arc only provisional
and partial. The triumph of the wicked is not absolute. The shipwreck of the
good need not cause despair.
The ideal is envisaged as a fluid ordered
universe, or a complex adaptive system, in macrocosmic as well as microcosmic
dimensions, in which every element of that giant cosmic order simply does what
is most appropriate. In other words, the Vedic conceptualization of order
reflects a kind of ecologically sound symbiosis in which every component part
plays its proper role. But this is merely the conceptual ideal: real life is a
never-ending chain of contradictions, role conflicts, and processes to
ascertain specific duties. It can also be viewed as a struggle to find one’s
path, especially later in the more individualistic contexts of
realization-centred beliefs.
More pointedly for a legal analysis,
awareness of ṛta and dharma involved a continuous process of harmonizing individual
expectations with concern for the common good, a constant obligation to
ascertain the appropriate balance between individual and society, good and bad,
right and wrong, the permissible and the prohibited. Vedic law, in other words,
is from the start based on a complex and continuous interactive process Much of
this remains invisible and internalized, a truth later brought out forcefully
in the dramatic illustrations of the great epics, which can be seen as ancient
tools for teaching ‘order’ in every sense of the word.
The divinely inspired Vedas, the dharmasastra
reflecting the Vedic ideals, virtuous conduct of the learned and finally, one’s
own conscience formed the four-fold bases of dharma. The common conscience of the community,
emerging in the form of immensely diverse customary practices of different
communities and villages formed dynamic source of law. While customs were elevated to the
status of law, they too had
to be sanctified by good conscience. Thus, in the Vedic tradition we find indigenous
versions of many of the principles that constitute the foundations of our legal
system even today: impartial rules of procedure, principles of equity and even
the subjection of the sovereign to
over-arching ideas of justice.
Dharmasastra
Dharma means much more than what is commonly understood by
religion, and the dharmasastra means much more than religious texts.
While there is something in the very nature of semitic religion which is
divisive, conclusive and exclusive, dharma is inclusive, open and it
unites. Religion excludes all that it is not in a particular religion, dharma
includes every form and view of life. Religion often makes claims that are
not based on experience, the claims of dharma are the claims of life and
science. While religion and politics must necessarily be separated for a safe
and sane world, legal and political thought and practice must necessarily have
its basis in dharma.
As far as basic aspects of Dharma are concerned, they were clearly set
out in Manu Smriti and Yajnavalkya Smriti as follows:- Veda is the first source of Dharma. Smriti texts, the virtuous
conduct of those who are well versed in the Vedas, and lastly, what is
agreeable to the good conscience,
are the other sources. The Vedas, the Smritis, good conduct or approved usage, what is agreeable to conscience proceeding from good intention, are the sources of
law.
The common conscience of the community, emerging in the form of immensely
diverse customary practices of different communities and villages formed
dynamic source of law. While customs were elevated to the status of law, they too had to be sanctified by good
conscience. Being essentially a scheme of just social order, dharma was the goal set for
king and the subjects. It was declared to be the king of kings by means of
which the weak could prevail over the strong. Thus, their structure of law had dharma
as its axis. In identifying
appropriateness of action, multiplicity of views expressed in different dharmashastras prevailed, thus allowing
plurality-conscious universalistic principles.
Dharmasastra provide comprehensive guidance to regulate human
conduct in accordance with the given system of cosmic creation and fulfill the
purpose of one’s life. The whole life of a person considered both as a an
individual and as a member of social groups, as well as a person’s relationship
with fellow individuals, to the other living beings, to cosmic reality
generally and to one’s conceptions of God come within the purview of the
concept of dharma. Among the duties
that were laid down are both self-regarding and other-regarding, those to the
living, those yet to be born and those no longer alive.
The dharmasastra
were an attempt to explain facts of moral life within the terms of a
cosmological order. The structure of dharmasastra law had dharma as its axis. In identifying appropriateness of action,
multiplicity of views expressed in different dharmashastra prevailed, thus allowing plurality-conscious
universalistic principles. The office of king was
regarded as an institution necessary for the maintainance of the order established
by the creator for the good of creatures.
The king had the duty to establish what may have been practised by the
virtuous and learned Brahmins, unless it was opposed to the customs of the
region, clan or caste. The king’s duty to act with a
sense of proportion in the matter of imposition of punishments
demonstrates the link between equality and justice and equity as the corrective
and supporting principle.
Quantification of punishment in proportion to the evil was a sign of a mature
legal system. Similarly, by affirming strongly that in case of doubt punishment
will not be imposed, the legal system exhibited great wisdom.
Brihaspatismriti categorically rules: No sentence should
be passed merely according to the letter of the law. If a decision is arrived
at without reasoning and considering the circumstances of the case, there is
violation of dharma. This approach of
transcending the letter of the law in the light of the spirit of justice
reflects the functional character of the legal system aiming at a benevolent
result. The idea that justice will prevail over law reflects the acceptance of
the limitation of man-made law and a notion of higher moral law as the superior
principle. The larger discretion in the interests of justice gave scope
for application of equity and good conscience.
This view of law is not confined to India alone;
it is characteristic also of the Indianized states of Southeast Asia. In
Cambodia, the Hindu doctrines of law were followed in their original form-although,
as the epigraphy shows, some modifica- tions were made. In Burma, the dhammasattha was an attempt to use the
Hindu system as a model in an environment entirely given over to the Buddhist
faith. For example, the Code of Wagaru retains the sastric classification of
contentious matters into eighteen types; but the content of the texts is very
much a matter of local Burmese rules. The Hindu system was not introduced as
such; rather, it was used as a guide to form.
Although the Buddhist religion did not contain
any revelation on the social order, the dhammasatthas
were held to have originated on the cakkava-la (the wall that surrounds the
universe) and to have been given to man by the hermit Manu. This personage has
nothing in common with the Manu of the smrti except his name, but the choice of
his name does emphasize the separation of the texts from the world of Buddha.
The laws of Buddha reveal the conditions of salvation; those of Manu, the
bringer of the law from the walls of the world, determine the conditions of
social life. However, the law of the dhammasatthas,
like the sastras, transcends the world it rules. It is bound to the cosmic
order and is free from the will of men. It was a universal law in the Hinayana
Buddhist world.
In
pre-twentieth-century Thailand, we also have a dhammasattha dating from the fourteenth century. According to this text the law laid down had authority only when it conformed
to dhammasattha precepts, only when
it expressed the royal will in accordance with the view of nature expressed in
the texts of the law. But it did have the effect of putting the king in the
center of the legal world, and the texts became a more immediate foundation for
the justification of kingly power than was the case in India.
This
is characteristic also of the Javanese and Malay texts; indeed, the over-
whelming impression one gets from such texts is that, although they do contain
rules for the distribution of obligation, their main characteristic is concern
with the nature of royal power, its acquisition and its use according to the
precepts of the received texts.
Power in Javanese thought is both concrete and
constant in quantity. It follows, then, that later generations may acquire and
utilize the power of long-dead heroes and gods. It means also that power is
concentrated at the center, in the ruler, so that central government is
essentially an extension of the ruler's personal household. The ideal form of
temporal power is a world-empire into which all entities are com- bined in a
coherent unity. The existence of this unity is itself defined in the proper use
of power and through the proper conduct of individuals, which must be in accord
with dharma.
Dharmarajya
To the
question whether there was a rule of law prevalent in ancient India, evidence
for a resoundingly affirmative answer is borne out by the great epic texts. The
message of these texts is clear that the King was not above the law. Sovereignty was based on an implied social
compact and if the King violated this traditional pact, he forfeited his
kingship. It refutes the view that the kings in ancient India were despots who
could do as they pleased without any regard for the law or the rights of their
subjects. Coming to the historical times of the Mauryan Empire, Kautilya
described the duties of a king the Arthasastra in the following terms,
“In the happiness of his subjects lies the King’s happiness; in their welfare
his welfare; whatever pleases him he shall not consider as goof, but whatever
pleases his people, he shall consider as good.”
One of the most distinguishing aspects as
between the concept of the law as defined in the Western jurisprudence and that
as defined in Dharmasastras is that whereas the imperative command of
the king constituted the law according to the former, under the concept of dharma,
the law was a command even to the king and was superior to the king. This
meaning is brought out by the expression 'the law is the king of kings'. The
doctrine 'the king can do no wrong' was never accepted in ancient Indian
constitutional system. Tirukkural, says that a king is assured of
heavenly status if he makes the wrongdoer feel the weight of falling sengol,
provided the light of justice is hidden in that blow of sengol.
Another aspect discernible from the
definition of 'law' given in the Brihadarayaka, Upanishad and accepted
in the Dharmasastras is that the law and the king derive their strength
and vitality from each other. It was impressed that the king remained powerful
if he observed the law and the efficacy of the law also depended on the manner
in which the king functioned, because it was he who was responsible for its
enforcement. There was also a specific provision which made it clear to the
king that if he was to be respected by the people, he was bound to act in
accordance with the law.
Thus the first and foremost duty of the
king as laid down under dharmasastra was to rule his kingdom in
accordance with the dharmic law, so that the law reigned supreme and
could control all human actions so as to keep them within the bounds of the
law. Though dharma was made enforceable by the political sovereign -the
king, it was considered and recognised as superior to and binding on the
sovereign himself. Thus under Indian ancient constitutional law (Rajadharma)
kings were given the position of the penultimate authority functioning within
the four corners of Dharma, the ultimate authority. Rules of dharma
were not alterable according to the whims and fancies of the king. The exercise
of political power in conformity with "dharma" was considered
most essential. This principle holds good for every system of government and is
a guarantee not only against abuse of political power with selfish motives and
out of greed but also against arbitrary exercise of political power.
The most rigid enforcement of obligations and
duties form, side by side with the most lavish grant of rights and privileges
to, both the governor and the governed explain the seeming inconsistency and
paradox that characterise the dharmasastra, and the great
complementarity between the theoretically despotic and the practically
democratic features of the political organisation. This is a sound political
maxim and is based on the observation of the fact that the peoples’ interests
and opinions do in most cases differ, and insightful decision making is
required at the political. Random scattering of the public opinion requires
mediation and guidance from the government.
In deciding upon measures the king should
be guided by the truth ‘voice of people is voice of god’. Thus though the king
is himself a god, the god of the king is the people. The king has been
described in dharmasastra as their servant getting remuneration for his
work. The peculiar dualism and integration in the king’s position have been
very unhesitatingly indicated in the Sukraniti. The
king is a god no doubt, but Dharmasastra do not consider him infallible.
The limitations are fully recognised, and moral as well as constitutional
restrictions are imposed upon him as upon other men.
The Theory of the Divine Right of Monarchs
has therefore to be understood with great modifications and the Western notions
of about the infallibility and divinity of Kings and Popes must not be
transplanted into the study of Indian Socio-political institutions. The
theory that a man may be omniscient is rejected altogether in the Dharmasastra
for the very nature of the case goes against the idea. To the argument of
physical magnitude, extensity and vastness of political interests is added that
of intellectual limitations and incapability of man. Man cannot be omnipresent,
he cannot also be omniscient, and therefore he must never be made omnipotent.
The true character of Indian jurisprudence
is therefore different from that of the Anglo-American system. The obedience to
the Shruti and Smriti etc., was not due to any political
authority of their authors, but the veneration in which they were held by those
for whom these writings were intended. These lawgivers showed admirable
practical good sense in prescribing rules. While apparently professing to
follow the Divine Laws and Commands as found in the Vedas and claiming simply
to interpret and explain them to the general public, in reality the Dharmasastra
so moulded these texts as to bring them in conformity with the general sense of
their followers—a fact which secured them a following and obedience which was
as universal and strong as that secured by a political authority.
It
has also to be understood well that the area of the jurisdiction of central
power in ancient India was limited by the wide autonomy of the local bodies, of
village and town governments, and of autonomous, economic, religious and
military organizations. Their consent in the rules of dharma, which touched
them also, had to be taken into account by any ruler. The idea that the central
power was the monistic sovereign did not reflect the reality of social life in
India. In the life of the common man, the direct impact of the central power in
the country or region was not significant. Society was constituted of many
social groups which were voluntary, hereditary, functional and provisional with
several groups performing multiple functions. The legitimacy and authority of
all these social groups was derived from the same source of dharma.
The
economic and social support of the central power came from the allegiance and
cooperation of these diverse social groups which were fairly autonomous in
their day to day functioning. They followed their own dharma which was
usually in consonance with the dharmic law or legal culture of the land.
Thus the central political organisation was not omnipotent or omnipresent like
the fictional sovereign of the legal positivism. It was only one of the many
governing social and religious organizations, often the primary, but not one
that touched the lives of people deeper than the others. Dharmic law was
essentially a pluralist legal culture which included and transcended the formal
command of the political sovereign.
As
a holistic legal system Indian jurisprudence emphasized and instrumentalised
the intricate connection between different interlinking elements of the whole
experience of human life. Indian law principles were in opposition to the
classical positivist theories of law. Indian law concepts thus fall firmly
within the theoretical parameters of the sociological school of jurisprudence,
which treats legal rules as organically grown and socially tested normative
orders and therefore does not accept the domination of legal absolutism or
positivist.
A
deeper analysis of ancient Indian legal culture yields a systemic, multifaceted
truth inherent in dharmic law, which never developed the aspiration to
rule from above in absolutist legal fashion but sought to rule from within the
society and individuals. Legal regulation from above, in the absolutist sense,
may be apparently prominent, but there are deeper levels of legal regulation
which can be ignored only at great cost. Dharmic law and its underlying
philosophy and legal culture does not simply accept the simplistic impression
that legal rules can solve all problems. In Indian cultural conceptualization,
law is eternally and intrinsically connected with other and higher spheres and levels of life.
It
was the influence of the Hindu view of life, as given in the dharmasastra,
that influenced the ruler and the ruled, and promoted their harmonious
relations, and facilitated for both the moderation of their actions in
accordance with the common ideals of coexistence. The best of all guarantees of
good government in the dharmasastra was in bringing up the king and his
ministers in the same ideals as the common man, and make both realize the
supremacy of dharma as the both the letter and the spirit of the human
law. It is only when human life is seen in the perspective of cosmic
coexistence, and how important the self is as part of the cosmic reality and
how all existence is interconnected in the common process of creation and
transformation, that a proper sense of rules and values can be gained. The
function and value of dharmasastra is to show the path to this
realisation.
India’s legal culture or Dharmic law is alive
and well at several conceptual levels of law, and it enables modern India’s
creative use of Indian concepts in seeking to construct a justice-focused legal
system that does not need the crutches of a foreign legal order, but remains
open to modification and reform as and when circumstances suggest it. Thus, to
argue that the ancient Indians did not have ‘law’ would be plain nonsense. If
indeed all human societies have law, why should ancient Indian societies be any
different? The simple answer is that the ancient Indians conceived of law
differently from Western cultures. Dharmic law, as is widely
acknowledged, represents a culture-specific form of natural law.
Both
at the conceptual level and within processes of official law-making and policy
formulation, concepts and rules of dharmic law retain a powerful voice
in how India, in the 21st century, is seeking to achieve social and economic
justice for over a billion people. It holds its position as a major legal
system of the world, often despised and largely unrecognised, but massively
present in the world of the twenty first century. At least a billion people,
roughly a seventh of the world citizenry, remain governed by dharmic law
in one form or another. Numerous decisions of the Supreme Court of India and
the High Courts and subordinate judiciary bear witness to this social reality.
State
law and dharmic law are not incompatible, both interact with each other
in many ways that we cannot even begin to analyse. Indian traditions are
manifestly much more than folkloristic decorations, and dharmic law is a
demanding multi-disciplinary arena which seems to put researchers off. Dharmic
law has always been much more than a fossilised book law that could be
abolished by the stroke of a pen. It could not simply be reduced to redundancy
in the Austinian fashion, that taught Indian leadership to embrace legal
positivism as a philosophy and top-down law-making as a magic tool of
development. Justice Katju has observed that in ancient and medieval India there was tremendous development
not only in the fields of science and philosophy, but also in the field of law.
However, he lamented that the advent of British rule denied us the benefits of
these developments as the alien rulers made it a policy to demoralise and
denigrate us by propagating the idea that Indians were a race with no
worthwhile achievement to their credit.
Rajdharma
The foregoing brief
discussion will make it clear that the rules contained in the dharmasastra
relating to dharmarajya as the
force of law had their roots deep down in the most ancient Vedic tradition and
that the authors of the dharmasastra
were quite justified in looking up to the Vedas as a source of dharma. But the
Vedas do not profess to be formal treatises on dharma; they contain only
disconnected statements on the various aspects of dharma; we have to turn to
the smrtis for a formal and connected
treatment of the topics of the dharmasastra. Indian classical texts
like the Manusmriti, and Sukraniti, which are in the
category of Nitisastra, Arthasastra, Dharmasastra, Tirukkural, or
Dharmasutra deal mainly with the specific topics implied by such
categories as Dharma (morals), Artha (interests) and Kama (desires)
as opposed to Moksa (salvation).
Dharmasastra texts like Manusmriti, Yagyavalkyasmriti
and Sukraniti reveal keen insight into the principles of strong and good
government and political wisdom that find place in Indian texts of the time.
These works are based on the principle that the security of the state depends
not on the passive virtue of obedience to the laws promulgated by it but on the
active cooperation of the people with it in carrying these laws into effect.
The structure and functioning of the Indian political system of these times has
many points which have anticipated the latest principles of good governance
administration and which have yet to be realised by modern States.
In
these texts the existence of conflicts, disunions, rivalry and factional spirit
is considered to be the greatest of all dangers to social peace and political
security. The bond of civil society is torn asunder when the moral system is
disrupted. Hence the greatest political offender and the most criminal sinner
is he who by his conduct promotes the breach between those who should normally
live in amity and peace. The general violence of criminal activity in hindu
jurisprudence is seen as the most insidious threat to the order of law.
The
main problem with violence is less the injury it causes to some person or group
than the threat it poses to the state or other legal authority. Sukraniti provides
against such offences by the socio-political decree issued by the king..
“According to the dictates of Sukraniti the execution of bad men is real
ahimsa i.e., mercy. One is deserted by good people and acquires sins by always
not punishing those ought to be punished, and punishing those who ought not to
be, and by being a severe punisher”.
A
state is a state because it can coerce, restrain, compel. Eliminate control or
the coercive
element from social life, and the state as an entity vanishes. Dharma is
the very essence of statal relations. No danda, no state. A sanctionless
state is a contradiction in terms. The absence of dharma is tanta-mount to matsya-nyaya
or the state of nature. It is clear also that property and dharma do not exist
in that non-state. These entities can have their roots only in the state. The
whole theory thus consists of three fundamental rules : no dharma or sengol,
no state; no state, no dharma; and no dharma, no individuality and property.
Manusmriti considers dharma
to be a tremendous force for discipline, hard to be controlled by persons with
undisciplined minds, it destroys the King who has swerved from duty, along with
his relatives. Then it will afflict his fortress and kingdom, the world along
with movable and immovable things, as also the sages and the gods inhabiting
the heavenly regions. Therefore punishment shall be given appropriately to men
who act unlawfully, after having carefully considered the time and place, as
also the strength and learning of the accused. When meted out properly after
due investigation, punishment makes all people disciplined and happy; but when
meted out without due investigation, it destroys all things.
Discipline cannot be justly administered by one whose mind is
not disciplined, or who is addicted to sensual objects, or who is demented, or
who is avaricious, or whose mind is not disciplined, or who is addicted to
sensual objects. Discipline can be administered by one who is pure, who is true
to his word, who acts according to the Law, who has good assistants and is
wise. The King who metes out punishment in the proper manner prospers in
respect of his three aims of virtue, wealth, and pleasure; he who is blinded by
affection, unfair, or mean is destroyed by that same punishment.
In the same spirit, Tirukkular says that if the sengol of the
king does not rest on justice, and if he acts without wisdom, he will see his
wealth and prestige fade away.
Having duly ascertained the motive and the time and place, and
having taken into consideration the condition of the accused and the nature of
the offence, punishment should be given to those deserving punishment. Unjust punishment is destructive of
reputation among men and subversive of fame; in the other world also it leads
to loss of heaven; he shall therefore avoid it. The king, punishing those who
do not deserve to be punished, and not punishing those who deserve to be
punished, attains great ill-fame and goes to hell.
In
Sukraniti, punishment emphasizes rectitude and deterrence over
retribution. In
fact, dharma in this view is what makes law practical at all as it
contains a recognition
of human imperfection and fallibility. Law in its fullest sense can only exist
in the world if dharma is there to correct the inevitable failings of
human beings. Without dharma, law remains an elusive ideal to which no one can
aspire. With dharma law becomes satya, the truth that upholds social and
individual righteousness. Dharma simultaneously guarantees the overall
stability of the social system and development of the individual. In Tirukkural,
the value of the word of the priest, and the value of the honour for men, is
considered to rest on the value of the sengol held by the king.
Sukraniti sees dharma as a two edged sword that cuts
both ways. On the one hand it is a corrective of social abuses, a moralizer
purifier and civilizing agent. As the Sukraniti says it is by the
administration of dharma that the State can be saved from a reversion to
matsya-nyaya and utter annihilation
and it is by dharma the people are set on the right path and they become
virtuous and refrain from committing aggression or indulging in untruths. Dharma
is efficacious moreover in causing the cruel to become mild and the wicked to
give up wickedness. It is good also for preceptors and can bring them to their
senses should they happen to be addicted to an extra dose of vanity or
unmindful of their own vocations. Finally, it is the foundation of civic life,
being the ‘great stay of all virtues’ and all the ‘methods and means of
statecraft’ would be fruitless without a judicious exercise of dharma. Its use
as a beneficent agency in social life is therefore unequivocally recommended by
Sukra.
But
on the other hand dharma is also a most potent instrument of restrain
the ruler himself,
to the powers that be. The maladministration of dharma says Kamandaka
leads to the fall of the ruler. Manu ls does not hesitate to declare that dharma
would smite the king who deviates from his duty from his ‘station in life’. It
would smite his relatives too together with his castles territories and
possessions. The common weal depends therefore on the proper exercise of the dharma.
Manu would not allow any ill disciplined man to be the administrator of dharma.
The greatest amount of wisdom accruing from the help of councillors and others
is held to be the essential precondition for the handling of this instrument.
“Brihadaranyaka Upanishad
declares that the ruler too is obliged to follow dharma on pain of sanction for
infraction. Dharma was all
encompassing from natural justice, to equality, to considerate treatment of all
mankind and exhortation, to codetermination for betterment of humankind.
Betterment of each individual is the raison d’etre for later societies to
identify and recognise human rights as basic and inherent in humans”.
In
the two edged sword of the dharma then we encounter on the one side
interests of the State and on the other individual morality, virtue, dharma,
etc. In fact, it is to ‘educate’ man out of the primitive license and beastly
freedom that government has been instituted. The State is designed to correct
human vices or restrain them and open out the avenues to a fuller and higher
life. And all this is possible only because of dharma. The conception of this eternal co-relation in societal
existence is one of the profoundest contributions of the political philosophy
of the Hindus to human thought. This concept changes the emphasis from what law
restrains to what law enables. It suggests that every legal system must contain
morals and ethical elements which can be understood in religious terms.
In
accordance with the doctrine of dharma, the state is conceived as a
pedagogic institution
or moral laboratory, so to speak. It is an organization in and through which
men's natural vices are purged, and it thereby becomes an effective means to
the general uplifting of mankind. The Hindu theorists therefore consider the
state to be an institution " necessary " to the human race if man is
not to grovel in the condition of matsya-nyaya
under the law of beasts. Man, if he is to be man, cannot do without political
organization. He must have a state and must submit to sanction, coercion and
punishment — in a word, to dharma.
In recent years social scientists have proposed a
link between social cohesion, religion, and law. Social scientists have argued
that participation in religious and cultural rituals strengthens group
solidarity and improves social harmony. Recently, researchers have tested this
hypothesis through both systematic field studies and laboratory experiments.
Laboratory studies, for example, have shown that synchronous activities foster
greater solidarity and more cooperation. This suggests that deep in our
evolutionary history, social cohesion was favoring social norms and practices
that increased solidarity.
While group-bonding rituals initially evolved to
make face-to-face communities cooperative and cohesive, gradually these practices
transformed for the scaling up of cooperation to larger imagined communities in
which thousands of individuals interact, exchange, and cooperate. To facilitate
this degree of scaling up, researchers have argued, cultural evolution, by
anchoring on human species’ innate capacities to entertain the existence of
supernatural agents, led to the emergence of increasingly powerful and morally
concerned deities (or supernatural forces) who monitor and punish non-cohesive
or antisocial activities, such as murder, theft, or adultery.
Over time, faith and beliefs about these
supernatural forces evolved further to increase their effectiveness: Gods
expanded their range of moral concerns (e.g., openness toward strangers),
ability to monitor norm violators (e.g., mind-reading abilities, omniscience),
and power to punish (e.g., controlling the afterlife). Here, consistent with
models of social norms based on punishment, gods were turned into super
punishers who could impose penalties in this life and the next.
Researchers have shown that individuals from
diverse cultures and traditions who report stronger beliefs in more powerful
moralizing gods are more fair-minded in experiments with anonymous persons and
more supportive of public goods. To examine whether supernatural agents can
indeed cause people to behave more cooperatively, many studies have shown that
when imbued with thoughts of god and specifically thoughts of supernatural
punishment, believers become more fair-minded, cooperative, and honest with
strangers. Together with historical and cross-cultural data supporting the
claim that gods became increasingly morally concerned, powerful, and punishing
over historical time, the psychological evidence suggests that certain
religions may have evolved culturally in ways that have altered people’s
psychology and thereby permitted the cohesiveness of societies.
Conclusion
In the quest for perfection in individual conduct and social order, the dharmasastra explored and prescribed the ways of good conduct of individuals
and arrangements for considerable degree of social cohesion by balancing between harmonious
coexistence and individual autonomy. Flowing gracefully with skill and brevity in
poetic expression, the insightful revelations of Vedic sages blended intuition, philosophy
and conviction to explore and conceptualise a macrocosmic order of high moral and
social conduct in which individuals and societies could grow and flourish in
the path of justice through
willing obedience to the laws of nature and society.
A golden thread of the spirit
of justice inspired the dharmasastra texts and the institutions
of legal systems to internalise the high moral and cosmic order. The
availability of a diversity of adjudicating mechanisms to suit the location and
profession of the litigants and serve the people in their own intimate
environment, collegiate character and strict impartiality of courts and
simplicity of procedure were the predominant features of the legal and judicial
system given in the dharmasastra.
The approach
of the dharmasastra of combining
truth with justice, equity with law and discretion with reason has a universal
message for modern law and jurisprudence. The law and justice system in ancient
India was influenced by a dharma based
understanding of justice as the expression of the absolute reality. The
persuasion of all human beings to do good and avoid evil was the means chosen by
the dharmasastra for conformity to a
high moral and social order. Although these systems were a product of their times they have an abiding
value for truth and justice in contemporary human society.
While Western society stressed on worldly progress and acquisition of
material comforts,
ancient Indian society emphasised both pravritti and nivritti, shreyas and
preyas. Pravritti was the urge to actively engage in material pursuits while
nivritti denoted the pursuit of spiritual pursuits.
Kathopanishad teaches us that preyas is material happiness while there is
yet another, spiritually attainable, happiness of a permanent nature called
shreyas. It is hardly a
wonder therefore that with this worldview Indians emphasised dharma as the
instrument for achieving both.
Capra, 2015; Glen, 2010; Sarat, 1993.
Einstein,1982; Heisenberg, 1989; Carrel, 2019, Chiba p.4.
(Buhler, 2008, 2018; Oliville, 2000; Lariviere, 1984; Lingat, 1973).
Manusmriti, Vol.5, p.289-90.
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