Householder Stage: Entering a Profession
Grounds for Litigation XIV: Violence
Vijay Dinakar
Professor Friedman
May 9, 2006
Ancient Hindu Law

Introduction
Bordering the Arabian Sea and the Bay of Bengal, between Burma and Pakistan, lies India, one of the world’s oldest civilizations. Indian history dates back to at least 3500 B.C. when Aryan tribes invaded the Indus Valley Civilization and merged with the indigenous Dravidian people to create classical Indian culture.[1] Soon after the Aryan invasion of India, the “Vedas”, a set of influential religious texts were produced and Hinduism was born.[2]
Hinduism, like many philosophical traditions, provides answers to fundamental questions of epistemology, metaphysics, and ethics.[3] Unlike some philosophical traditions, Hinduism does not attempt to disintegrate the sources or method by which one attains knowledge of reality (epistemology), the nature of that knowledge (metaphysics), or the rules of proper conduct for the individual and the state (ethics). All three areas of thought are intimately related.[4]
This paper will attempt to paint a comprehensive picture of Hindu law by demonstrating how the religion’s view regarding epistemology and metaphysics has influenced its approach to more earthly legal matters. With respect to the later, the Manava-Dharmasatra (MDh), Hinduism’s most pre-eminent legal treatise, provides a list of normative and legal rules ranging from the proper role of women in society, to the rules of conduct for a member of one of the four social “castes”, to the consequences for violating the law.[5] Keeping in mind the integral philosophical tenets underlying Hinduism, the overall structure and relevant specific provisions of the Mdh will be outlined and critically analyzed.
Hindu Epistemology
The Vedas, Hinduism’s scriptures, provide the foundation for the Hindu theory of knowledge. Contained within the Vedas are the Upanishads which provide an explanation of Hindu mysticism and philosophy.[6] Hindu philosophy emphasizes that the “common sense” world perceived subjectively through one’s senses is ultimately an illusion, or “Maya.” According to this view, there is only “Brahman” which, loosely translated, means “ultimate reality.” Hindu philosophy claims that the physical world that most humans experience consists of alternating sensations of pain and pleasure which are mediated by the senses and one’s consciousness. That type of duality exemplified in such things as pain and pleasure, night and day, female and male and indeed good and evil are all Maya. In Hinduism, the one (Brahman) is ultimate reality, multiplicity and world of names and forms is illusion.[7] The world of Maya is not only delusory but is ultimately a world of suffering.[8] For this reason, the ultimate problem confronting the Hindu is how to escape or transcend the world of Maya and enter into Brahman.
The Hindu solution to the above problem is that Maya can be transcended by the willing and able human who devotes himself to meditative yoga and achieves “Moksha“ or enlightenment.[9] The attainment of Moksha is the supreme goal of the Hindu individual. Hinduism provides a novel approach to knowledge, which suggests that ultimate reality cannot be conveyed through the senses or in language but may only be directly experienced in meditative practice.
Hindu Metaphysics
While the exact meaning of Brahman cannot be spelled out precisely because it is thought to be beyond definition and form, there is much more to the Hindu conception of reality that is not avoided by use of the word Brahman.[10] The notions of karma, reincarnation, and “Atman” comprise the central tenets of Hindu metaphysics.
Karma refers to the moral, psychological, spiritual, and physical causal consequences of morally significant past choices.[11] Reincarnation is the belief that when humans die, their essence or Atman migrates to another bodily form which, depending on their karma, may or may not be another human body.[12] Atman is thought to be the essence or “soul” existent in all individual life forms. It is thought that through Atman that one’s karma is carried and it is through reincarnation that Atman inhabits different bodily forms. Atman and Brahman are (thought to be) related but are somewhat distinct notions. The Upanishads provide a definition or equation of that relationship: Brahman=Atman=Brahman. That is, “Brahman is the totality of reality outside of oneself; Atman is the totality of reality as it is present within oneself; Brahman is the totality of existence.”[13]
While the esoteric concepts of karma, reincarnation, Moksha, and Atman may be intellectually interesting, what, if any, impact did they have on the formation of more tangible and substantive Hindu views? First, Hindus believe that the existence of karma necessitates a fair world. If all moral decisions result in tangible consequences to one’s karma expressed in present or future incarnations, then, on a Hindu account of the world, one truly does reap what one sows. To the question of why bad things happen to good people (the problem of evil), the Hindu answers: karma.[14] This view has had a profound effect on Hindu ethics. Finally, given that the fundamental goal of each Hindu individual is the realization of Moksha, the main task for society and the law is to produce rules that will maximize the attainment of Moksha for the greatest number.[15]

Hindu Ethics
While significant attention is given to abstruse philosophical concepts in the Vedas (especially in the Upanishads), the bulk of the Vedas focus on the question of ethics: how ought humans properly behave and organize their individual and collective affairs.
In ancient Hinduism, there were thought to be four principal aims of individual life or arthas [in order of importance from least to most significant]: “kama”, “artha”, “dharma”, and “moksha”.[16] Kama involves the attainment of sensory pleasure including aesthetic and sexual pleasures.[17] Artha refers to the attainment of material wealth. Dharma means law or duty and refers to acting properly.[18] Moksha refers to the attainment of final spiritual liberation.[19] Depending on one’s karma and position in life, the attainment of all four aims was thought to be important. In order to organize the attainment of these four goals, Hindus believe that there should be four stages of life (ashramas).[20] In the first stage one is supposed to be a student, in the second a householder, in the third a forest dweller, and finally one is supposed to be a wandering ascetic.[21] Properly performing one’s duties during each stage is thought to ensure the development of good karma along with assuring the attainment of the four individual life aims listed above.
Because of its belief in karma, reincarnation, and the innate differences in humans from birth, ancient Hinduism prescribed a rather rigid social structure known as the caste system. This system divided people according to birth into one of five groups: Brahmin (priest caste), Ksatriyas (warrior and ruler caste), Vaisyas (merchant and farmer caste), Sudras (laborer caste), and untouchables (or outcastes).[22] Taken together, the arthas, ashramas, and the caste system provide the basic structure to Hindu dharma (law).

Manava-Dharmasastra (Manu’s Code of Law)

Background
The best known and most celebrated legal text from ancient India is the Manava-Dharmasatra, which contains general rules of conduct according to one’s ashrama and caste as well as more specific rules regarding criminal and civil disputes.[23] The preeminent position of Mdh among legal authorities was clearly established by the third century CE.[24] There was no reduction in the fame or importance of the Mdh in guiding Hindu ethical and legal thought and practice for the next fifteen centuries right up to the time when the British took over the legal system of India.[25] Not surprisingly, the first Hindu legal text translated into English was the Mdh.[26]

Structure and General Content of Mdh
The Mdh is composed in verse form and begins when a group of students approach Manu, the creator of the world and first king (for figurative purposes of the narrative in Mdh), and ask him to teach them the law.[27] Manu agrees to his students’ request and proceeds to tell them what the law is.
The Mdh is divided into three sections. The first part explains the caste system and proper conduct for the individual depending on what stage of life he is in. The second section outlines the basic structure and rules in the justice system. The final section discusses the law of karma, birth, and final liberation.
The Caste System and the Sources of Law
Manu begins by claiming that different occupations existed for those “born from the mouth, arms, thighs, and feet” of the one (Brahman).[28] To Brahmins, he assigned reciting and teaching the Vedas and teaching meditation. To Ksatriya, he assigned the protection of subjects as a ruler or warrior. To the Vaisya, he assigned trade, money lending, and agriculture. To the Sudra, he assigned “the ungrudging service of those (three) social classes.”[29] From this, it is clear that Hindu law did not view all castes as equal. Brahmins were the most elevated caste while Sudras were the lowest. When a Brahmin was born, “a preeminent birth takes place on earth - a ruler of all creatures to guard the storehouse of Laws... This whole world - whatever there is on earth - is the property of the Brahmin.”[30] The Mdh is not an egalitarian document; it does not believe in the inherent equality of all men and its preferred social system, the caste system, clearly reflects this understanding.
After separating people in society according to their profession,[31] Manu goes on to cite the source for the Mdh. Manu asserts that the Mdh, “contains all knowledge.” That the Mdh, “should not be called into question in any matter” and that one should not rely “on the science of logic” or “he ought to be ostracized by good people as an infidel and a denigrator of the Veda.”[32] This hardly seems to offer much in the way of a justification for why the Mdh ought to be thought correct other than that it, like all religious texts, is thought to contain divine revelation. However, the broad philosophical notions of Hindu law (discussed above) though not explicitly articulated in the Mdh are nevertheless integral to properly understanding the motivations and implicit assumptions of the Mdh.
Stages of Life Generally
Hindu dharma prescribes specific rules of conduct to an individual depending on that individual’s caste and what stage of life they are in. Only Brahmins, Ksatriya, and Vaisya were entitled to enter the four phases of life; Sudras were only to be householders.[33] Brahmins were to be initiated in the formal study of the Vedas (and begin the student phase) at eight, Ksatriya at eleven, and Vaisya at twelve. Failing to be initiated in formal Vedic training was thought to render that person unfit for marriage to a person of that same caste.[34] Female members of the above castes were not entitled to receive Vedic training but were thought to be initiated when they got married: “serving the husband equals living with the teacher, and care of the house equals the tending of the sacred fires.”[35] After beginning their initiation, these men were thought to be “twice-born” which signaled a new birth for them as they formally entered the first stage of their life: the student stage.


Student Stage
When someone was ready to commence the student stage, a teacher knowledgeable in the Vedas was selected to teach that individual. Often the student would go and live with his teacher. The student was trained by a teacher who had mastered the understanding of the Vedas. The Mdh maintains that the primary goal of the student is to gain control of the organs.[36] This means control over the senses so that, “a man feels neither elation nor revulsion at hearing, touching, seeing, eating, or smelling anything.”[37] The desire to exert mastery over the senses is not surprising. Given that Hinduism regards the sensory world as illusory (Maya), being able to control the senses is a necessary condition for transcending the world of Maya. The student stage, therefore, is a necessary preparatory stage for the final stage.
As can be seen in the student stage, there is little in the way of individual choice or autonomy attached to Hindu law. Persons of proper caste and age were expected, without exception, to undertake the responsibilities of the student stage. The same lack of choice will be similarly seen in the householder stage.
Householder Stage: Selection of a Bride
After the student has, “learnt in the proper order the three Vedas... without violating his chastity, he should undertake the householder’s order of life.”[38] While most people will enter the householder stage, some individuals will entirely skip the householder stage, and remain “life-long students.”[39] This option is only available to the most developed students and to those for whom kama is unimportant. More commonly, however, the student would begin the householder stage by first obtaining a proper bride.
The Mdh provides very detailed rules about what type of woman a Hindu man could marry.[40] A man had to marry a woman of the, “same class and possessing the right bodily characteristics.”[41] Marrying a girl from the same caste as oneself helps to ensure the stratification of the caste system and enhances connections among families who have the same profession as one’s own. A man should avoid a woman belonging to a family, “who are negligent about rites, deficient in male issue, without Vedic learning, and with hairy bodies, as well as families prone to hemorrhoids, tuberculosis, dyspepsia, epilepsy, leukoderma, or leprosy.”[42] In sum, families who are not sufficiently dutiful about Vedic law or who have genetic propensities for certain biological disorders are to be avoided.
While it is a law that a man marry a woman from his own caste for his first marriage, the Mdh outlined different rules for second marriages. A Sudra could only marry a Sudra as a wife whether it was his first or subsequent marriage. A Vaisya could marry either a Sudra or a Vaisya. A Ksatriya could marry a Sudra, Vaisya, or a member of his own caste.[43] A Brahmin man could only marry a Vaisya, Ksatriya, or a woman of his own caste. Note that while males could marry “downward”, males could not marry upwards. This makes sense because the child takes the caste of his father, not his mother.[44] Nevertheless, a Brahmin male was explicitly prohibited from taking a Sudra wife because when “men foolishly marry low-caste wives, they quickly reduce even their families and children to the rank of Sudras” and, in fact, “no expiation is prescribed for a man who drinks the saliva from the lips of a Sudra woman, who is tainted by her breath, and who begets himself in her.”[45] Brahmin men were not permitted to marry Sudra women because these women would lower the intelligence of their children, reduce the physical desirability of their children, and bring general shame and condemnation to that man’s family.

Householder Stage: Entering a Profession

Once a man has studied as a student and chosen a wife, his next task is to enter a profession. An appropriate profession is dependent on one’s caste membership. A Brahman should enter a livelihood, which causes neither injury or annoyance to others. Apparently, this rule acts as a prohibition against engaging in morally questionable professions as well as engaging in begging (unless it is necessary).[46] Also prohibited is engaging in a service or trade profession which would likely, “fatigue the body.”[47] Besides these general guidelines, the Mdh does not explicitly list what is an acceptable profession for a Brahman to pursue.
The profession of Ksatriyas is discussed in the Mdh in a chapter entitled, “the law for the king.”[48] Not all Ksatriyas were kings, of course, but all kings were Ksatriyas so this chapter provides a vision of the model Ksatriya. “The King“ refers to the ancient Indian geopolitical reality in which relatively small principalities were ruled by a single king. One of the king’s most important jobs was to “administer appropriate punishment on men who behaved improperly.”[49] The king, therefore, acted as a final enforcer of the law with the idea that “punishment is the king, he is the male, he is the leader, he is the ruler.”[50] Notwithstanding the king’s enormous power within ancient Indian society he was still, after all, a Ksatriya and not a Brahmin. Thus, he is commanded by the Mdh to, “pay honor to Brahmins for whom the whole of the kingdom is created.”[51]
The rules regarding the vocation of Vaisyas and Sudras take up only a few short paragraphs in the Mdh. A Vaisya was ordered to “devote himself to trade and to looking after farm animals.”[52] If he was to be a merchant, he should gain knowledge in the relative values of “gems, pearls, corals, metals, threads, perfumes, and condiments.” Alternatively, if he was a farmer, he should be knowledgeable about the desirable and undesirable properties of goods, the good and bad aspects of regions, the probable profit and loss of merchandise and how best to raise farm animals.”[53] The Mdh devotes a mere three lines to the vocation of the Sudras. Their job was, “simply to render obedient service to distinguished Brahmin householders who are learned in the Veda. When he keeps himself pure, obediently serves the highest class, is soft spoken and humble, and always takes refuge in Brahmins, he obtains a higher birth.”[54] Here, as elsewhere, the model Sudra is to be unequivocally obedient.
Forest Hermit Stage
After living as a householder and making certain that his children are able to live independently, the ancient Indian householder was to live as a forest hermit.[55] When a householder sees “his children’s children, he should take to the wilderness... giving up village food and all his belongings, he should go to the forest, entrusting his wife to his sons or accompanied by her.”[56] The chief objective for the man entering the forest hermit stage is to gain complete control and mastery over one’s “sensory organs.”[57] More specifically, the forest hermit was to reduce the sensitivity of the senses in order to begin to understand the unreality of the sensory world (Maya). An ancient Indian forest likely contained little in the way of sensory stimulation and would, therefore, be an ideal place to reduce the sensitivity of the senses. Towards that end, the forest hermit was to “wear a garment of skin or tree bark, bathe in the morning and evening, always wear matted hair, and keep his beard body hair, and nails uncut.”[58] The forest hermit was not to eat any food that was grown agriculturally on “plowed land” or grown in a village.[59] Additionally, the specific types of food that were permitted was severely limited. “ He may eat vegetables growing on land or in water; flowers, roots, and fruits coming from ritually clean trees; and oils extracted from fruits. He must avoid honey, mushrooms, and meat.”[60] Beyond limiting his diet he was ordered to perform other “austerities.” He should “roll on the ground or stand on tiptoes all day; spend the day standing and the night seated... live in the open air during the rainy season, wear wet clothes in the winter... he should inflict punishment on his body.”[61] This self-induced punishment was not designed to induce masochistic pleasure. Rather, it was to render the body immune from sensory pain as well as decreasing attachment to sensory pleasure.
Wandering Ascetic Stage
If one gained control over one’s senses, one would be ready to enter the last stage, the wandering ascetic stage. The rare individual who, after succeeding in every previous stage rightfully enters this stage, is the model human in Hindu ethics. He is thought to be capable of achieving Moksha, the ultimate end Hinduism. The ascetic is now ready for total renunciation from the material sensory world; he is not even permitted to bring along his wife. He should, “live without fire or house, enter a village to obtain food, be dispassionate, keep no store of food.” He must limit himself to, “a bowl, the foot of a tree, a ragged piece of cloth, a solitary life, and equanimity towards all - these are the marks of a renouncer.”[62]
The wandering ascetic was primarily to engage in yogic meditation in order to become enlightened. Specifically, he “should reflect on the subtle nature of the highest self and on its appearance in the highest and lowest of bodies.”[63] Through the course of meditation, “he should discern the course of his inner self through the highest and lowest creatures.”[64] The “inner self” is a reference to Brahman, ultimate reality. If the ascetic can fully comprehend and become this “inner self” (Brahman), he will have attained the ultimate goal of individual life.
The Justice System
Having explored the rules for proper individual action, it is appropriate to consider the rules for proper collective action in ancient Hindu law. The Mdh outlines the section on the justice system by discussing the eighteen grounds for litigation. These eighteen grounds are divided into four sections: individual and group disputes (grounds 1-10), criminal law (grounds 11-15), domestic law (ground 16), and public order and safety (ground 17).
General Judicial Procedure
All litigation, civil or criminal, was initiated by a private party. There was not, therefore, any public prosecutor for criminal matters. If a crime was committed, anyone in the kingdom could initiate the lawsuit against the perpetrator, although the victim (or his or her family) was most likely to do so. As discussed, the king was in charge of punishment for a given region in ancient India. Therefore, in any court proceeding, the king was entitled to personally try a case. More likely, however, the king would not personally try court cases but would “appoint a learned Brahmin to do so.”[65] This appointed judge should be knowledgeable of the law (as outlined in the Mdh) and under no circumstances a Sudra.[66] The judge in ancient India had complete (non-reviewable) power in ancient Indian court case. The judge acted as fact finder, legal interpreter, and sentencer.

Judicial Conduct and Reasoning
The assessment of court parties’ credibility was an important component of the job of the ancient Indian judge. To do this properly he was to, “discover the internal disposition of men by external signs - voice, color, expression, bearing, eyes, and gestures. Inner thoughts are discerned by the bearing, expressions, gait, gestures, and manner of speaking, and by changes in the eyes and face.”[67] Beyond assessing credibility, the judge was to take into account each litigants caste membership as well as his stage in life in order to arrive at a just result.
Oaths and Ordeals
Ordinarily, witnesses would not have to provide an oath. However, when two people were litigating a matter for which there are no witnesses, and the judge was unable to discern the truth, he should discover it by means of an oath.[68] The nature of this “oath” differed depending on one’s caste membership. A Brahmin would merely be required to swear by the truth. A Ksatriya would have to swear on pain of losing his weapons; a Vaisya on pain of losing his cattle, seeds, and gold; and a Sudra on pain of losing his life.[69] Alternatively, the judge may require an “ordeal” where he might make the person carry fire, stay submerged in water, or lay underneath the hot sun. If the witness refused to undergo this ordeal, the judge would not believe the man. If the witness withstood this ordeal without dying, the man’s testimony would qualify as proof.[70]
Grounds for Litigation I: Non-payment of Debts
When a debtor is delinquent on a payment to a creditor, the creditor was authorized to bring suit. The Mdh, however, prohibits certain types of loans and thereby renders void certain types of debtor-creditor agreements. As a legal starting principle, Hindu law recognizes the validity of loans but prohibits usury. Usury, as defined in Hindu law, does not include all interest on a loan but only “excessive” interest. Excessive interest depends on one’s caste. The rate of interest for a Brahmin was not to exceed 2 percent per month; for Ksatriya 3 percent per month; for Vaisya 4 percent per month; and for Sudra 5 percent per month.[71]
Once a debtor becomes delinquent in his payment of a valid loan, the creditor may bring a lawsuit against the debtor. Alternatively, he may resort to self-help measures including the use of “cunning, ‘traditional strategies’ (fasting at the door of the debtor until the creditor pays), and force.”[72] If a creditor opts to bring a suit against the delinquent debtor, he must establish through sufficient evidence the prior existence of a valid loan and the debtor’s unlawful delinquency. If the creditor is able to satisfy this evidentiary requirement, the judge will order the debtor to pay the creditor according to rules of caste. If the debtor belongs to a caste equal or superior to creditor, he must pay the owed principal and the interest in its entirety at once. If he cannot pay the entire amount, the debtor will be ordered to act as an indentured servant to the creditor until his obligation is satisfied. If the debtor belongs to a higher class than the creditor, he will be permitted to repay the creditor in installment payments the terms of which the court will determine. Given that most moneylenders were Vaisyas, Brahmins and Ksatriyas were not likely to become indentured servants for delinquency on a loan but Sudras often became indentured servants as a result of their delinquency.



Grounds for Litigation II: Deposits
When someone entrusted someone to deposit a valuable possession for safekeeping, the depositor was entitled to that possession in its original condition whenever he was so inclined. He was entitled to the possession as he delivered it - “as the delivery, so the recovery.”[73] When someone refused to hand over a deposit to the depositor upon request (and there were no witnesses), the judge would have spies of proper age and appearance actually deposit gold with that man and then get them to request it. If the man returned the gold in the same manner and condition as he deposited it, then the man should be deemed innocent of the charges brought by the original depositor. If, however, he did not properly return the gold, the judge would compel the man to return both possessions. Additionally, the man was subjected to a penalty levied by the judge.[74]
Grounds for Litigation III: Sale Without Ownership
When someone attempted to sell or give away something, which he doesn’t have legal ownership of, that sale or gift is considered void and the property must be returned to the bonafide owner. Additionally, if the person knew or should have known that he held an illegitimate title to property, that person is guilty of theft and is subject to the criminal penalty attendant with crime.[75] This law is hardly different from the modern (Anglo-Saxon) law except that the Mdh does not elaborate how far back in the chain of ownership a title must be free defects in order for it to be considered valid. The Mdh also specifies that if a father markets his daughter for marriage to a potential groom and then attempts to give the groom a different daughter, the groom is entitled to marry both daughters.[76]
Grounds for Litigation IV: Partnerships
Besides a sole proprietorship, the most common type of business entity was a partnership. If one of the partners in a partnership summarily quits, the partners were obligated to give him an amount of money equal to the work he had contributed to the business. He was not, however, entitled to the amount the business was worth divided by the number of partners. Beyond these very basic rules regulating the business entity, the Mdh remained silent and deferred to the judgment of the judge.[77]
Grounds for Litigation V: Non-Delivery of Gifts
When someone pledges a gift to a beggar, but later does not fulfill that pledge, the beggar is entitled to gift. Additionally, the promisor of the gift, was subject to a fine. This rule is markedly different than the modern (Anglo-Saxon) rule regarding promises for gifts. Only when someone acts in reliance in receiving a gift will someone be forced to give a promised gift. Ancient Indian law did not view giving to beggars in the same way modern society does. Forest hermits and ascetics, who were the pillars of society, regularly engaged in begging. When people promised to give to these people, the law enforced that promise strictly.
Grounds for Litigation VI: Non-Payment of Wages
When a Sudra failed to perform his work out of pride, he was subject to a fine and was not entitled to his wages in a lawsuit. If he failed to perform his work because he was sick, however, he will be entitled to his wages throughout his sickness. Apparently, litigation could for non-payment of wages arose most commonly when people failed to pay their servants who were Sudras.

Grounds for Litigation VII: Breach of Contract
When a contract is formed, non-performance of that contract is subject to civil as well as criminal penalties. The non-performing party was compelled by the judge either to provide performance or the value thereof. Additionally, if the contract was determined to have been breached because of “greed”, the judge should “banish that man from his (the king’s) realm.”[78] Hindu law treated (“greedy”) breach of contract so harshly because toleration of it was thought to lead to the proliferation of greed and dishonesty throughout the kingdom.
Grounds for Litigation VIII: Cancellation of Sale or Purchase
After buying or selling anything, if someone regretted his decision, he could return or take back that article within ten days. If the purchaser attempted to return the item after 10 days, however, he would be fined.[79]
When a father gave “away a defective (non-virgin) girl, without disclosing her defects”, the king was supposed to fine the father. Alternatively, the groom’s parents could void the marriage.[80]
Grounds for Litigation IX: Disputes between Owners and Herdsmen
In ancient Indian society owners of cattle and other farm animals, hired “herdsmen” to take care of their animals. Accordingly, during the day the liability for the animals “safety lay with the herdsmen, and during the night with the owner, provided they are at his house; otherwise, the herdsmen becomes liable.”[81] If an animal was “ravaged by worms, killed by dogs, or perished in a dangerous place because of inadequate effort” it was the herdsmen who was required to pay compensation.[82] However, if the animal was seized by robbers, the herdsmen was not required to pay compensation provided he, “raised the alarm and informed his master at the proper time and place.”[83] Thus the herdsmen were liable for the reasonable protection of animals he was employed to care for.
Grounds for Litigation X: Boundary Disputes
Property lines were supposed to be demarcated by “boundary trees: banyan, papal, Kimsuka, cotton-free, Sala, palm, and trees with milky sap... in this way, the boundary will not disappear.”[84] Apparently, there was no official recording system where title to property could be specified. Instead, property lines were to be marked by the above boundary trees.
When a boundary dispute did arise, the king would summon witnesses who were thought to know about where the property line was. If no witnesses were available, the king “should apportion land between them on his own on the basis of utility.”[85] In considering the “utility” of the property, the king was to consider how each putative landowner would use the property in dispute.
Grounds for Litigation Litigation XI: Verbal Assault
If someone was verbally assaulted, he could bring a lawsuit against his assaulter. The penalties for verbally assaulting a Brahmin were most severe. If a Brahmin was assaulted by a Ksatriya the fine was 100, if assaulted by a Vaisya 200, if assaulted by a Sudra the Sudra would be subjected to corporal punishment.[86] Similarly, a Brahmin would be fined 50 for abusing a Ksatriya, 25 for abusing a Vaisya, and 12 for abusing a Sudra.[87] Additionally, if a man defamed his “mother, father, wife, brother, child, or elder” he was subject to a fine of 100. The law relating to verbal assault and defamation was taken quite seriously in ancient Indian law.
Grounds for Litigation XII: Physical Assault
The penalties for physically harming someone were quite severe. If someone of a lower caste used his limb to injure someone of a higher caste, the punishment would be amputation of that limb.[88] So if, for instance, a Sudra were to strike a Brahmin with his foot, the appropriate punishment would be the amputation of the Sudra’s foot. Similarly, if a lower caste person spit at a higher caste person, the lower caste person’s lips were to be cut off; if he urinated on him, his penis should be severed; and if he “breaks wind at him, his anus” should be detached.[89] In short, when inter-caste violence was initiated by a lower caste person, the punishment was an eye for an eye.
Intra-caste violence was punished less severely. If someone bruised someone or “drew blood”, the fine would be 100. If someone broke someone’s bone, however, he would be sent into exile.[90]
Grounds for Litigation XIII: Theft
Particular attention is paid to the importance of the king protecting against theft in his kingdom. Theft puts wealth at risk and if people can simply move to the next kingdom (as they could in ancient India), there existed the possibility that people with wealth would leave the kingdom. With that in mind, a thief was fined by eleven times the amount of property he stole plus he was obligated to return the property (or its value) to the aggrieved party.[91] “Theft”, as defined in this section, means an act committed outside of the victim’s presence; if property is taken through force and in the victim’s presence, it is considered “violence” (which is punished differently).

Grounds for Litigation XIV: Violence

The punishment for violence is the most severe of any of the crimes mentioned in the Mdh. The king “should never ignore even for a moment a man who perpetrates violence. A man who perpetrates violence should be considered far more evil than someone who is offensive in speech (verbal assault), who steals (theft), or who assaults with a rod (physical assault).”[92] The distinction that the Mdh seems to make between “physical assault” and “violence” is that violence is more severe and more capricious. Whereas physical assault would usually involve a more minor isolated incident against a known person, violence would involve a severe attack against someone. For this type of violence, the penalty was death.
Grounds for Litigation XV: Sexual Crimes Against Women
When a man had sex with a married women, the king should “disfigure their bodies with punishments that inspire terror and then execute them.”[93] When a man carried on a conversation secretly with another man’s wife, he was to be fined. A man who had sex with a virgin against her will, was punished with the death penalty. However, if a man had sex with a consenting virgin, there would be no penalty except that he might be required to pay the virgin’s father as a “bride-price.”[94]
Grounds for Litigation XVI Partition of Inheritance
In ancient India, as in many other cultures, the system of primogeniture was honored. That is, after both parents died, the eldest son took the entire estate. The eldest son in taking the estate was obligated to look after his younger brothers and “they should behave towards their eldest brother as towards their father.”[95] If a father died without a son, the daughter could take the estate.

Grounds for Litigation XVII: Gambling and Betting
Any form of gambling and betting were strictly prohibited by the Mdh. The penalty for engaging in or facilitating any form of gambling or betting was execution.[96] All attempts to prohibit organizers of gambling events should be undertaken by the king because as long as “these clandestine thieves remain in a king’s realm, they constantly harass his decent subjects with their illicit activities.”[97]
Criticism of Mdh
Having considered the contents and underlying policy of the Mdh, it is appropriate to consider some possible critiques of the Mdh.
The caste system, which is defended so fervently in the Mdh, is not consistent with most modern ethical theories, which tend to believe in individual equality. Its favored treatment of Brahmins and its disfavored treatment of Sudras is a recurrent theme throughout the Mdh. The underlying justification for distinguishing among persons belonging to different castes is karma: one’s past life choices determine one’s present life situation including what caste one is born into. The philosophical concept of karma would thus serve as a convenient and effective justification against anyone in ancient India who would openly challenge the laws mandating separate treatment for different castes. To challenge the caste system was to directly challenge one’s religion. As such, the caste system existed without much challenge throughout much of India’s history.[98] In the end, the defensibility of the caste system depends on the truth of karma and reincarnation: if one’s Atman is carried to other physical bodies depending on one’s past life choices, then the caste system seems to be a rational way of demarcating individuals with good karma (high caste) from those with more inferior karma (low caste.)
Quite apart from the metaphysical reality or unreality of Atman, karma, and reincarnation there is the class-based economic critique of ancient Indian law. On this view, the caste system functions in precisely the same manner most economic/legal systems do: to exploit the many for the benefit of the few. “The few” in this case would be the Brahmins. It is clear from the Mdh that the law effectively granted more privileges and exacted less severe punishment on Brahmins. Sudras, on the other hand, were punished more severely. The Mdh explicitly commands society and the king to recognize the alleged superiority of Brahmins. While the precise author of the Mdh is not known, it is clear that the Mdh, when first written, was intended to be read and studied by educated people. The most literate people in ancient India were Brahmins who would translate, read, and argue over the meaning of various scriptures in Hinduism. In this sense, the Mdh can be viewed as an effective weapon that the Brahmins could use to exert their power and gain privileges and favored status. While the Ksatriya might use his sword to exert his power, the Brahmin used his knowledge of “the law” (Mdh) in order to gain power. This critique is very strong because as a historical fact, the publication of the Mdh increased the power and influence of the Brahmins and the caste system generally.[99] However, the Mdh does not advocate that the model Brahmin rule or even become wealthy. Brahmins, though the highest caste, were to limit their material possessions, strive to exert control over their senses, and eventually abandon society in order to meditate in the woods. In practice, of course, few Brahmins lived up to this model standard and did succeed economically and did not abandon the world in search of Moksha. In practice, the caste system as justified by the Mdh, has operated to grant Brahmins a privileged status.
Conclusion
It has been shown that the Mdh has played a critical role in the development of ancient Indian law. Underlying all of the specific individual and collective rules discussed in the Mdh, is an overriding concern with the fundamental aspirations of Hindu doctrine. The Mdh institutionalizes karma and reincarnation with its unwavering support of the caste system. It also articulates a model individual life by examining the proper stages of life. All in all, ancient India law played a critical role in the development of Hinduism as a religious and social system.











[1] http://www.cia.gov/cia/publications/factbook/geos/in.html.
[2] http://en.wikipedia.org/wiki/Vedas. The Vedas, written in Sanskrit, refer to the entire body of Ancient Hindu literature.
[3] Hereinafter when using “Hindu”, I am referring to how Hinduism was understood during Ancient Indian history: the period beginning with the Aryan Invasion around 3,500 B.C. and ending with the (short-lived) rise of Buddhism under Emperor Ashoka in 500 A.D. Additionally, because this paper deals with Indian history predating Buddhism and the rise of Islam (in the 8th century), the word “Hindu” will be used interchangeably with “Indian.” That is, in Ancient India, all Indians were Hindus and all Hindus were Indians.
[4] Notwithstanding the interrelatedness of Hinduism, I have chosen to separate Hindu thought into different sections on Hindu epistemology, metaphysics, and ethics/law. By the end of the paper it should be apparent how all three of these areas function together.
[5] Including, as will be explained, consequences that extend past the present life of the violator and into the next rebirth.
[6] The Vedas consist of four types of literature: the Samhita which contains a number of stanzas which are to be recited by a priest during important ceremonies, the Brahmana which provide explanation of various Hindu rituals, the Aranyaka which give instruction for the mental performance of rituals through meditation, and the Upanishads. Arguably, the phrase “Hindu philosophy” is ambiguous and perhaps misleading given that there is no single, comprehensive philosophical doctrine shared by all (ancient) Hindus. There was and is much debate within the Hindu community about the meaning of the scriptures. Many different and inconsistent interpretations of the Vedas are offered while still other Hindus entirely reject the revealed wisdom of the Vedas. For simplicity’s sake (and for the purposes of this paper), when referring to Hindu philosophy, I am referring to the Vedanta school of H)indu philosophy.
[7] “Hinduism.” http://hinduism.about.com/library/weekly/extra/bl-intro-tenets.htm
[8] The nature and cause of that “suffering” (in the karmic form of birth, death, and rebirth) will be explored when this paper examines Indian metaphysics.
[9] Moksha literally means release and in this context, release from Maya and the cycle of birth and rebirth. It is not distinguishable from the Buddhist concept of Nirvana or enlightenment.
[10] There are many different definitions of Brahman that have been offered by various Hindu authors: Ultimate Reality, The Absolute, Tao, Nirvana, and God. The problem with any of these definitions (especially the last three) is that they carry very loaded connotations while offering little illumination about what is being referred to. For this reason, some Hindus define Brahman as neti neti which, translated literally, means “not this, not this” or “neither this nor that“. Obviously neti neti is hardly more illuminating than any of the other terms.
[11] Ibid. Karma is not unlike Newton’s 2nd law: every action produces an equal and opposite reaction. The main difference between the two views is that in Newton’s world, one can detect the reaction almost immediately following the action. The Hindu account, however, leaves open the possibility that a reaction will follow an action that occurred several incarnations before.
[12] Rambuchan, p. 124, 1991.
[13] Ibid at 127. The “Brahman-Atman-Brahman equation” (which is from the Upanishads) appears to suggest that Brahman and Atman are indistinguishable. Indeed, Hinduism ultimately holds that Atman is Brahman (all is Brahman).
[14]However, if goods things causally result from good actions, what stance does Hinduism take towards free will and determinism? At first glance, it seems that a belief in karma presupposes the existence of free will. For if beings are not free to make decisions (decisions are simply determined by a combination of environmental and biological events and freedom is simply a subjective prospective illusion), then why should beings be rewarded or punished by their actions. However, Hinduism appears to reject free will as traditionally defined: (the objective possibility [viewed retrospectively] that things could have been otherwise). In Hinduism, all actions are determined yet karma is still operative. The actions and reactions (expressed in karma) that follow one’s Atman, is part of a “cosmic drama” of sorts. Of course, this drama is ultimately and really a mayic delusion.
[15] The theory of ancient Hindu law with respect to the idea of Moksha, is obviously related to western utilitarianism. The main difference is that Hinduism, unlike utilitarianism, has an objective definition of the good which it strives to maximize: the attainment of Moksha for the greatest number. Utilitarianism nominally attempts to maximize happiness but happiness, distinguished from material wealth, is difficult to define and measure. Of course, Moksha is even more difficult to define and measure..
[16] Ibid at 133.
[17] The famous text, “Kama Sutra”, is an ancient text devoted to description and instruction in Kama, or sensual pleasure.
[18] Hereinafter “dharma” and “law” will be used interchangeably. In ancient Hinduism, unlike other ethical systems or legal regimes, no meaningful distinction could be made between one’s responsibilities (what one must do) and one’s rights (what one is permitted to do). That is, ancient Hindu life was rigid, highly defined (the four stages), and not “free” in the western sense of the word.
[19] Ibid at 136.
[20] Under the Mdh’s guidelines, only members of certain castes are supposed to divide their lives in this fashion. This will be explained more fully later when the Mdh is focused on.
[21] The specific duties to be performed in each stage (according to caste) will be discussed more fully in the Mdh section.
[22]Another group, the “malecha“, are foreigners or outsiders. They are not considered the lowest caste nor are they considered untouchables (which are the lowest caste). They are not specifically dealt with in the Mdh but since the writing of Mdh they have either been absorbed into the caste system according to their profession (Greeks, Kushans, and Scything invaders) or regarding as being outside of the caste system (Muslims).
[23]Ibid at 141.
[24]Ibid at 143.
[25]Ibid at 144.
[26] Little is known about the author of the Mdh, “Manu.” Previous scholars believed that there was not one single author of the Mdh but that “Manu” referred to a collection of authors who had together helped author the Mdh. However, current scholarship tends to hold the view that there was one single historically real individual who authored the legal text. Nevertheless, the most that can be said with certainty is that the author was a learned Brahmin from somewhere in Northern India. Olivelle, p 19, 2005.
[27] Ibid 24
[28] Ibid at 91.
[29]Ibid at 91.
[30]Ibid at 92.
[31]While people were classified according to their profession, their profession was not something they could choose. Rather, their profession was a function of their in-born caste membership. Only a few professions were available to someone given what caste they had. For instance, in the case of brahmins, one could be a priest, a teacher, or engage in some other learned profession. Brahmins were not ordinarily permitted to be merchants or farmers; even if they did want to.
[32]Ibid at 94.
[33] Ibid at 96.
[34] Ibid at 96.
[35]Ibid at 98.
[36] Ibid at 99.
[37] Ibid at 99.
[38]Ibid at 108.
[39] Ibid at 107.
[40] Obviously, in ancient India, it was the groom, his parents and the bride’s parents who played a role in the arrangement of marriage. The bride herself did played a mostly passive role.
[41]Ibid at 108.
[42] Ibid at 108.
[43]Ibid at 109.
[44]This will be explained more fully later.
[45]Ibid at 109
[46] Ibid at 269 in notes to translation.
[47] Ibid at 125.
[48] Ibid at 154.
[49] Ibid at 154.
[50] Ibid at 155.
[51] Ibid at162.
[52] Ibid at 207.
[53] Ibid at 207.
[54] Ibid at 207.
[55]Generally only Brahmins entered this stage although no explicit prohibition is placed on a member of another caste becoming a forest hermit.
[56]Ibid at 148.
[57] Ibid at 148.
[58]Ibid at 148.
[59]Ibid at 149.
[60] Ibid at 149.
[61]Ibid at 149.
[62] Ibid at 150
[63]Ibid at 151. The precise meaning of this is, of course, extremely amorphous and properly so: the Mdh does not give specific guidance about yogic techniques; other Vedic texts contain that information.
[64] Ibid at 152.
[65] Ibid at 167.
[66]Ibid at 168. Vaisyas were not explicitly permitted or prohibited from being appointed by the king, who was a ksatriya.
[67]Ibid at 168.
[68] Ibid at 173.
[69] Ibid at 173.
[70]Ibid at 173
[71] Ibid at 174.
[72] Ibid at 169.
[73] Ibid at 176.
[74] Ibid at 176
[75]Ibid at 177.
[76] Ibid at 178.
[77] Ibid at 179.
[78] Ibid at 179.
[79] Ibid at 179.
[80] Ibid at 180.
[81] Ibid at 180.
[82] Ibid at 180.
[83] Ibid at 181.
[84] Ibid at 181.
[85] Ibid at 181.
[86] Ibid at 182. The monetary units (100, 200) were only mentioned in number; the type of currency was not mentioned.
[87] Ibid at 182.
[88] Ibid at 182.
[89] Ibid at 183.
[90] Ibid at 183. The severe punishment for breaking someone’s bone in ancient India might have to do with the more severe consequences of breaking one’s bone in ancient India as compared to the consequences of breaking one’s bone today.
[91] Ibid at 184.
[92] Ibid at 185.
[93]Ibid at 186.
[94] Ibid at 186.
[95] Ibid at 195.
[96] Ibid at 201.
[97] Ibid at 201.
[98] Ibid at 30.
[99] Ibid at 32.










































Bibliography
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Rambuchan, Anantand, Accomplishing the Accomplished: The Vedas as a Source of Valid Knowledge in Sankara, (Honolulu: University of Hawaii Press, 1991).

Rothermund, Dietmar, A History of India, (London: Routledge, 1986).

CIA, “India.” http://www.cia.gov/cia/publications/factbook/geos/inhtml. March 6, 2006.

“Hinduism.” http://hinduism.about.com/library/weekly/extra/bl-intro-tenets.htm

“Vedas.” http://en.wikipedia.org/wiki/Vedas