Classical Hindu law in practice
Classical Hindu law in practice originates from community, not a state polity. In this way, particular groups of society began to gain influence in the creation and administration of law. Primary corporate groups, Kingships, and Brahmins were the factions, which conveyed Hindu jurisprudence in practice. Corporate groups were responsible for legislating law through the conception of
Administration of Classical Hindu Law
Corporate groups
Corporate groups in medieval India included, but were not limited to, merchants, traders, religious specialists, soldiers, agriculturalists, pastoralists, and castes. These groups held legal prominence in classical Indian society because the primary authority and responsibility for law at the time came from the community, not a state polity.
Because of the social implication revolving around the importance of the household and the community in the creation and administration of law, Hindu law jurisprudentially subordinated state law to the law of castes and life-stages (varnasramadharma).[3] In this manner, each caste and life-stage was responsible for highly localized occupations. –
Table 1. Dharmas of the Castes, showing the subordinate place of political rulership[1]
I. Brahmin
- a. six occupations – teaching and studying the Veda, offering and officiating at sacrifices, giving and accepting gifts (MDh10.74-75)
II. Kṣatriya
- a. three occupations – studying the Veda, offering sacrifices, and giving gifts (MDh 10.77, 79)
- b. special dharmas = rājadharma, the dharma of a ruler (MDh 10.79-80)
- 1. protection of the people (MDh 7.144; YS 1.323, 335)
- 2. promulgation of the law of castes and life-stages (MDh 7.24, 35; 8.41, 390-91, 410-418; YS 1.361; NS 12.117, 18.5)
- 3. punishment of the wicked (MDh 7.14-31; YS 1.338, 354-359)
- 4. adjudication of disputes
III. Vaiśya
- a. three occupations – studying the Veda, offering sacrifices, and giving gifts (MDh 10.78-79)
- b. special dharmas (MDh 9.326-333; 10.79-80)
- 1. trade
- 2. animal husbandry
- 3. agriculture
IV. Śūdra
- a. special dharma – "obedient service to distinguished Brahmin householders who are learned in the Veda" (MDh 9.334)
Although the household and family were central to corporate groups’ influence, medieval India was a time of political integration over larger and larger core areas.[4] During the time, corporate groups showed increased importance in the creation and administration of law. Such influence came with the development of corporate groups as intermediary tools. These intermediate-corporate groups exercised influence in two main ways:
- they moderate legal influences of both "highly local sources (villages, families, etc)" and "elite-level political rulers", which promotes pragmatic conflict resolution and the circulation of legal standards for specific groups, and
- they reconcile legal norms that influence local and regional customary law with esoteric Brahminical dialogue of Dharmaśāstra which establish "viable ideologies" that respect both customary and textual law.[5]
Corporate groups also created their own laws and systems of jurisprudence. Specifically, the concept of ācāra in the Hindu legal texts (i.e. the Dharmaśāstra) legitimized these localized laws.[1] Ācāra allowed localized corporate groups to create their own laws, especially in the situations where Hindu legal texts were vague, ambiguous, or completely silent.[3] In particular, ācāra of specific corporate groups plays out in practice as "norms accepted and imposed by the leaders of various social institutions".[3] The key to the legitimization of these norms created and accepted by the leaders of corporate groups is the concept of the ‘good person’ in ācāra. This principal allows for the dissemination of sastric and Vedic control over practice through the mediation of experts who are learned in the texts. Through this, the Dharmaśāstra is connected to real life in a "mediate" way.[6] Ācāra is also recognized and validated in a legal sense through the device of paribhāṣā, which deemed the conventional rules of ācāra as technical supplementary refinements of the rules of the śāstra.[5]
Kingships
The dharmasastras, starting with
Punishment and justice
The royal function gives two main privileges: the right to tax and the right to punish (
Punishment falls under royal authority because it pertains to accomplishing true justice—a concept only the king can judge. Thus, where there is textual silence, kings are responsible for administrating trials (vyavahāra) of criminal law as well as administering punishment (daṇḍa) for criminal acts.[2] King's judge trials other than criminal cases too, except when parties do not wish to appear before him. When parties do not wish to bring a complaint to the king, individuals and corporate groups conduct their own trials. In these cases, although corporate groups such as castes and vocational sects have their own jurisdiction (which came from customary origins) they are still in the king's control. The king exercises this control through the recognition of a corporate group's particular jurisprudence. Recognition is important because the king's court is the only jurisdiction Dharmasastras identifies, thus the king's acceptance of other courts transfers sastric meaning to the particular jurisdictions.[2] The king also employs danda when the Dharmasastra gives more than one penalty for a crime or when texts are contradictory. He is a source of last resort on questions of both fact and law, but once the king passes judgment it is not up for review.[2]
Lawmaking
Kings were not very active in legislating especially for the reason that Hindu legal texts always preceded the authority of the king.
Brahminical jurisprudence
The
Judicial practices of Classical Hindu Law
There are no references of Judicial procedure in early Vedic times but there was a frequent mention of the term
- Kings at the center of the court, facing the east- Sabhyas and Pradvivka on his right facing the north side, bench clerk on the left accountant opposite the bench clerk facing west. The King acted as the supreme judge and had the final decision issued under his signature and seal.
- Pradvivakas and Sabhyas- assist the king in arriving at the truth and giving correct judgment.
- Sabhyas seven, five or three in number—selected for their knowledge of the law and they had to advise the king on laws applicable to the case. Including only the people well versed in the Vedic lore and civil law.
- Bench clerk wrote down the pleading made orally in the case.
- Accountant made calculation of money involved in the suits.
- Sadhyapala preserved the order in the court, execute its decrees and see to the attendance of parties and witnesses.
The decision of a case in ancient India was based on eight sources according to brahmanical law givers. These sources are the three Pramanas (possession, documents, and witnesses) logical inference, the usages of the country, sapathas (oaths and ordeals), the king's edict and admission of the litigants.[11] If there were cases where no possessions, documents and recourse can be provided the decision of the King became the ultimate authority.
Four parts of a trial—
- Pratijna - plaint or complaint
- Uttaram — answer of written statement
- Kriya — Trial
- Nirnaya — Decision according to Yajnavalkya
Ordeals
Ordeals also referred to as Divya were divine methods of proof. They decided what cannot be or is not to be decided by human means of proof. The general rule stated by Yājñavalkya,
Four major ordeals
- Ordeal of balance (Tula, Dhata)—mostly given to women, minors and old or disabled people. The person performing the ordeal was twice weighed on a balance. If the person weighed lighter than the previous weight they were considered innocent; if they were heavier the second time they were considered guilty.
- Ordeal of fire (Agni)—A hot ball of iron had to be carried across a certain distance in the palm of the hand using pipul leaves. If the hand did not end up getting burnt the person was declared innocent. If the hand was burnt the person was found guilty.
- Ordeal of water (Salila)—The person had to dive into a river and keep themselves under water, while at the same time an arrow was also shot into the water and was brought back by a fleet runner. If the person stayed under water till that time and no body part was visible then the person was considered innocent. If the person floated back up again before the arrow was retrieved or a body part other than the top of the head became visible the person was found guilty.
- Ordeal of Poison (Visa)—the person had to take a certain quantity of poison and was monitored for any reactions for a certain time period. If there was no visible effect of the poison the person was considered innocent.
Other types of ordeals included ordeals mentioned in the Smrtis like the ordeal of sacred libation in which an image of a deity was washed in holy water and the accused had to drink that water. If within a certain time period a misfortune occurred in his life he was found to be guilty. Ordeal of rice grains, ordeal of heated piece of gold, ordeal by ploughshare, ordeal by lot also existed within various texts. Ordeals played a significant part in the judicial administration of ancient India, even though they were not really rational and couldn't really detect guilt. As pointed out in Medhatithi ordeals were like magic and were meant to scare the guilty party and come out with the truth.
Oaths
Oaths are an affirmation of truth which can be liable to punishment for perjury if the statement given turns out to be false. Manu recommended that when human proofs failed Sapatha or oath could be applied in search of the truth.[13] According to the Smrti oaths were intended to be used in simple cases, while ordeals were used only in serious cases. A person making an oath was to swear on his near and dear ones. He might touch the head or feet of a Brahman or his wife or his son, or the feet of an image of a deity or take sacred grass or sesamum, silver, gold, earth, fire, water according as the value of the disputed property.[13] The waiting period on the oaths was one, three, five or more days depending on the nature of the accusation. There is a great amount of sanctity attached to Oaths as explained in Manu that if a man swears on an oath falsely even in a small matter will be lost in this world as well as the next.
Notes
- ^ a b c d Davis:The Spirit of Hindu Law
- ^ a b c d e f g h i j k l m n o p q r Lingat: 1973
- ^ a b c d e f g h Davis
- ^ Davis:2005
- ^ a b Davis:2005
- ^ Olivelle:2004, xl
- ^ yājñavalkya, vijñāneśvara
- ^ yājñavalkya I.323
- ^ Davis: The Spirit of Hindu Law
- ^ Das: 1977. 93-127.
- ^ Kaul:1993. 136-37.
- ^ a b c Kaul:1993. 149-155.
- ^ a b Das:1977. 93-127.
References
- Das, Sukla. "Judicial Administration." Crime and Punishment in Ancient India. 1st ed. New Delhi: Abhinav Publications, 1977
- Davis, Jr. Donald R. Intermediate Realms of Law: Corporate Groups and Rulers in Medieval India JESHO (2005)
- Davis, Jr. Donald R. The Spirit of Hindu Law Forthcoming
- Kaul, Anjali. Administration of Law and Justice in Ancient India. 1st ed. New Delhi: Sarup & Sons, 1993
- ISBN 978-1882239085
- Olivelle, Patrick. 2004. The Law Code of Manu. New York: Oxford University Press