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
8
th 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
2
nd 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.
[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.
[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.
[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.
[68]
Ibid at
173.
[69]
Ibid at
173.
[70]Ibid
at 173
[75]Ibid
at 177.
[76]
Ibid at 178.
[81]
Ibid at
180.
[82]
Ibid at
180.
[83]
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.
[93]Ibid
at 186.
[94]
Ibid at 186.
[96]
Ibid at
201.
[97]
Ibid at 201.
Bibliography
Olivelle, Patrick,
Manu’s Code of Law: A Critical
Edition and Translation of the
Manava-Dharmasastra,
(New York: Oxford University Press, 2005).
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