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Legal History
What Is Subject Matter Of the Discipline Legal History?
History has for its subject matter everything that has already happened in the past and that which
belongs to the world of nature as well as the world of man. In History, man emerges as conscious being.
This individual is one who sees, thinks, Knows, plans and decides. Thus History in a restricted frame
deals with human experiences and Human events in the Past.
1) It is the task of History to comprehend all Human activities as suggested by evidence which may
or may not be fragmentary. History is the study of the past in the light of the present. Historians
have suggested that present evidence is more important than past existence in the understanding
of the historical verses. However, no meaningful history can be written without interpreting the
past according to the present and the present being shaped after the past. Thus this close
relationship between the past and present is possible with the help of facts and evidence.
2) History then is a form of inquiry and investigation. A historian has the responsibility of
researching the past which makes history a complex social process. Thus all individuals
mentioned in History including the historian are social being. The eminent Oxford Historian of
early 20th century R.W. Collingwood has said that “ Knowing oneself is knowing what one can do
based on what can be done”. Piety to the past is not for the sake of the past alone but for the sake
of the society we live in the present and also for the leading to the creation of better social and
economic process in the future. The task of Historian is not to orient history towards past/ present
but lead to an understanding of a better future.
3) The fourth object of a Historian is to ensure that history does not move in a fixed Direction i.e.
linear direction. The Historians focus of attention changes from to time and from class of
historical facts to another which may be determined by the respective generation. Thus the nature
of writing of History changes making history time-bound. Thus change plays a vital role in
making the contours of History. The eminent Aligarh Historian Irfan Habib has said that re-
reading of the past frame is a continuous process. Thus as Oxford Historian E.H Carr says”
History is an unending dialogue between the past and the present” and an unending process which
underlies the importance of continuity also. As Habib also says “In History, The perfection of the
science of History is an index of its progress toward collective consciousness and towards a fuller
attainment of its conscious capacity to act.” Out of this emerges his conviction in historical
materialism that forms the basis of Marxism. Yet Historical science is both plural and
accommodative of choice. All Historians admit that plurality must inform the interpretation of
social organization and politics of the past.
Purpose of History
1) The First purpose of History is to use the subject to understand the society of which we are
members and of the tradition of which we are heirs and the institution we serve and the laws
we are compelled to obey. History seeks to understand the natural and the manmade world
we live in. As European Historian have suggested that the present is the daughter of the past
and in a way the present becomes the past itself. The purpose of History is to treat past
happenings as precedents for action both individual as well as social. Thus the central
purpose Of History is to illuminate human nature and tell the story of mans actions through
which History seeks to explain a History of Humanity. This seeks to broaden the Mental
Horizon
2) History assists in learning from our past mistakes. We profit from the stumbles and tumble of
our ancestors. History makes us aware of our limitations from which we also learn that
exponents of new History are skeptical about the didactic value of history. A proper and
honest reading of history tells us we should not be in awe of i.e. we should pay respect to our
past but not show too much reverence to our past. History then emerges as a teacher. History
furnishes us with precedents of conduct which enables us to ensure that our present conduct
is proper. This happens in the light of proper knowledge of the past. Great Historians have
suggested that History is not only a scientific inquiry but a school for active learning and
Political Life.
3) It is generally assumed that History does not repeat itself. This is a fallacious assumption.
History repeats itself but not in exact detail since its purpose is to draw lessons from the past,
historical lessons from one range to the other to repeat itself in small ways. For Example, The
History of revolutions suggest that most revolutions have been similar to each other like the
English Revolution (1640), French Revolution (1789) and the Russian Revolution (1917-
1918) are found to have been similar to each other where the old regime was replaced by the
egalitarian Government. However the Historical events are not necessarily relived since
History repeats itself but not in exact ways. There is certain amount of Historical uniformity
that represents continuity. Had Historical events been unique there would have been more
errors in the present.
What is Law?
1) It is founded on Dogmas and experiences of life. Rational laws are needed to bring order
and stability in the society for the preservation of social institutions. Justice or Dharma is
needed for the political progress of state. Dharma In this sense means equality for all in
the eyes of law. Dharma acts as a restraining influence on law and curbs anarchy in
society.
2) In primitive and modern societies, law has always represented a Supreme social force
compelling obedience from Individuals. A body of customs that are binding upon the
whole Body of people in the society exists, violation of which leads to the imposition of
penalty. In this Situation, Coercion does not play an important role although the notion of
Sanction does. Customs form the basis of all the Law making in the Society. It may be
seen as Divinely Ordained.
3) A great function of law is to maintain the fundamental order with which men find
security and which offers equal security to all men. Law has been defined as mainly an
embodiment of ancestral injunction. Legal Institutions developed just like any other
socio-political institutions. It is not an objective body of rules. It has a Social role to play
as well.
It follows from this then that law is a body of principles applied by the courts in the
exercise of their respective jurisdiction and in this regard the sources of law are customs,
judicial Constructions, Precedents and legislations. Although the first source custom still
remains the substructure of law. A statement made by a judge in the course of judgment
by way of explanation and or illustration becomes a precedent. Such obiter Dicta have no
binding force as such. A Statute another source of law aims emphatically at forming legal
rules in a definite manner.
Law thus becomes an important instrument of progress. The habits and customs and the
History and tradition as well as social lives and religious beliefs represent the laws of the
state which are most often agents of progress. To understand these Sources, one needs to
have a proper grounding in the subject matter of Legal History. Thus we come to the
connection between History and law. Just as the present is the daughter of the past, the
present legal system is rooted in the past system. The laws are said to be the instrument to
pry open the human mind and understand the spirit of the nation and it’s thought.
History is important because historical interpretation is necessary to understand
legislations. Legislations that should ideally be liberal in nature can’t be comprehended
properly until and unless we know the historical interpretation in the context of its
background. That forms the principle of social progress. Law mirrors organic political
life. It is also an index of ethical judgment although here ethics do not justify religion.
Theories of the origin and functions of state cannot be understood until and unless we
seek to relate history with law.
All legal historians should be lawyers. There is a utilitarian connection between law and
history; precedents play an important role in law making. Yet a legal historian should not
exclusively live in a world of his own. He is not an entity unto himself. He must borrow
from other disciplines such as politics, Sociology and Economics. To understand an
enactment one needs a proper understanding of History. Therefore, there is harmonious
relationship between the two; both the subjects depend on each other.
History of Ancient India.
Polity in India (Ancient)
At the time of the Aryan invasion of India, both agricultural and urban communities
existed in Indian Subcontinent. We learnt from the Vedas that these communities were
organized under powerful monarchies. This period stretched from the end Of the
Mohenjo-Daro Civilization to the 5th century B.C. During this period first steps in the
formation of the state and society were taken. This period marks the first significant stage
in the development of Indian State and Society.
The Tribal Polity in India.
The Aryans who came to India were Semi- Nomadic, pastoral people. The Aryans who came to India
were at the beginning semi nomadic tribes. They followed pastoral mode of Economy. At the beginning
the Aryans did not possess any Knowledge of the use of Iron and did not practice effective cultivation.
Even Though they rode on Horses, The Aryans used primitive tools and weapons made of copper that
did not give them edge in the art of warfare. Thus in the initial phase of Aryan invasion of occupation of
the part of North Indian Subcontinent, there was no meaningful effort build large empire. That could
lead to the formation of the developed state organization. Thus in the initial phase of their arrival of
Aryans in India, They gave more importance to the social life rather than a strong state.
The Semi nomadic people were mobile people. Their existence as Semi nomadic kept them permanently
mobile and unsettled life, weak state formation and an emphasis on the polity meant that there was
little hope for stable kingdom, since the territorial states could be established on when settled life could
be established when settled life is guaranteed, thus the early Aryan period saw an absence of territorial
state formation. This was reflected on the existing structures on social relations that could be neither
rigid nor too strictly stratified; hence only loose tribal principalities could be staged in Northern India.
Features
The social structure in ancient India was based on the principal of kingship. The terms “Gotra” and
“Vrata” occurred in the Rig Veda in several places. Gotra refers to the same shed under which a family
lived. The Economic activities of the clan revolve around this concept of Gotra. Thus a Gotra can be
rendered as a clan or lineage, this was then a central foundation on which the social structure of the
early Vedic people rested.
Avrata literally means a hoard or troop or assembly. The Vrata was a kin based group meaning a
collection of related families, which was also one of the foundations early Rig Vedic structure. Once the
Rig Vedic people took to more settled form of agriculture, the Vrata denoted villages and inclined a
sedentary life. The Vrata also formed in the sense of a village, the smallest political unit. Other basic
elements of the early Rig Vedic period included “Jana” and “Vis”. Both these categories implied that the
early Vedic people had not moved from the tribal stage. “Jana” was the highest social unit based on
patriarchal Kinship. Some scholars believed that, it corresponded to the tribe; there was a “Janapati” or
the “raja”. The “vis” was a subdivision of the Jana; it was a clan of the tribe which had a head the
“visampti” or “vispati”. A “vis” was a fighting unit with a visampti/vispati as its head. Battalions emerged
out of the “vis”. Thus what emerges from this illustration of the social rig Vedic period is that the early
Aryans wore their loyalty to their king rather than any fixed territory. Also the tribute that the victorious
king received from the vanquished was rather obligatory than being regular. There was never a Standing
army. The Army would be mobilized from the Kinsmen as an when the need aroused. Thus the society
was based on constant but disorganized form of warfare. Yet the process that gave rise to the formation
of state organ had already begun in the early Rig Vedic time.
Tribal Assembly
Essential part of tribal polity in ancient India.
There were three main types of tribal assembly in Ancient India.
These were as follows
1) Vidhata
2) Sabha
3) Samiti
The term Vidhata derives from the root word “Vid” which means to exist. The eminent Historian A.S.
Altaker suggests that this assembly was a religious or sacrificial gathering. Performance of which
requires the highest knowledge of the Vedas. It was a parent folk assembly from which emerged the
Sabha, Samiti, and Sena which corresponded to civil ministry and religious functions.
This assembly organized the religious life of the people. It is note worthy that women took an active
part in the Vidhata. A closer reading of the Vedas suggests that the Vidhata was a family council.
The Vidhata was deliberate body which made Laws and ordinances for regulations of tribal life. It
conducted military operations under a chief. It appears to have been large assembly probably
representing an entire tribe. In short Vidhata was the earliest form of assembly attended by both
men and women performing all kind of rituals and fares, economic, military, social and religious.
It was made to answer to all the needs of primitive society. Which at this stage know hardly any division
of labor which probably shared its entire product in common .Thus the key stone of this system was
cooperation where there was a near total absence of male chauvinism. But the Vidhata does not seem
to have taken any active interest in administration.
Sabha
The Sabha was a popular assembly. It was a note worth organization of the Rig Vedic people. A unique
organ of Rigvedic polity, this term has been interpreted by both Oriental and Occidental Scholars.
According to one school of scholars it was like the upper house of the Parliament where priests and
Aristocrats Sat. According to other Historians it was just a assembly, Historian N.C Bandhopadhyay
Suggests that the Sabha was an association of Kinsfolk but later it became an association bound
together by ties of blood or local antiquity. The Sabha emerges as Central aristocratic gathering
associated with office of King and in self record a political council. In Rig Vedic period women also
attended Sabha (discontinued later).
The primitive assembly assumed Patriarchal and aristocratic character in the later Vedic period. A
member of Sabha normally possessed enormous wealth and men and women of very high status could
become members.
The Sabha had political and non political functions. It was a sort of national adjudicator. However as the
eminent Historian R.C. Majumdar even during the phase of Royal imperial centralization Judial Sabha
traces a popular origin. The Sabha also had commercial functions to perform free and frank discussions
were held before arriving at Decisions. In all political and non political matters king had a role to play.
Thus as R.C. Majumdar in his book entitled “Corporate Life In Ancient India” suggests that the Sabha
allowed the tribal People of North India to participate in the corporate activities of their polity and
society. It was not merely an effete body but was vested with real powers of the King; it formed a well
known feature of Public Administration of Rig Vedic Time.
Samiti
The Samiti was an important Constitutional body of Vedic times. It developed after the emergence of
the Sabha. Rig Veda says that it was an assembly of Vedic tribe. According to some German scholars
Emile Ludwig says that it was a lower house of the parliament- a comprehensive body comprising of the
common people of the Vedic period which in Sanskrit are called Visah. It also included the Brahmans
and other rich People. The Historian N.C Banerjee says that it was the gathering of the entire folk of the
community making it an assembly of the Rashtra. It’s Functions Included holding of the royal Coronation
and wartime meetings were held with the Samiti. Thus the Samiti had a way of discharging political
work. Other Historians such as A.S. Altaker hold that Samiti was made of Aristocratic Element and the
priest especially the Royal chaplain attended its meetings. At the same time the Samiti retained its
popular character. According to Jaiswal, the Village formed the basis of the Samiti, if Not initially,
certainly later Vedic terms, however this claim has not found too much support. Amongst its most
important function, Samiti was given the task of electing the King, in Vedic times Kings could be re-
elected. Matters of the state especially in regard to military and executive were discussed in the Samiti.
Another Historian U.N. Ghosal suggests that the Samiti was not Sovereign body and did not exercise
control on executive, Judicial or Legislative or policy matters. Thus Samiti emerges as a basic feature of
Public administration in the Rig Vedic Times. The non political issues discussed in the Samiti revealed it
was a sort of national academy. It tested the Knowledge of the educated segments of the tribe’s i.e.
Visah. All non political matters were attended by the King. Thus the Samiti emerges as a Deliberate Body
where debate and Discussions were encouraged that was democratic in nature. Emphasis was laid on
co-operation between the king and the people, R.C. Majumdar has said that that the independence of
the assembly was never undermined. Honestly prevailed in the Samiti. All Discussions were held and all
decisions were taken in the light of reason. (Mentioned in the Book Vedic age).
The Existence of such an organization indicates that the Rig Vedic people were seriously interested in
Politics. A sense of public life and political activism pervaded the ranks of the tribal people. This was
possible because of the Size of the tribe. The compactness of the tribe kept them together as well as
politically active. With the growth of States and emergence of the territorial states in ancient India, the
status of the Samiti began to decline. The King became all powerful. Meetings became irregular and
eventually the Samiti began to disappear. K.P. Jaiswal has added that overtime the Samiti were re placed
By parishads while Sabha Developed as the Privy Council of the King.
Later Vedic developments.
With the passage of time, Small tribal state developed into large territorial state due to settled life.
Agriculture became the main mode of economy. Regular tributes were paid to the King. This was the
period when rituals were invented by the wealthy class which led to the subjuciation of the peasant. A
strong and highly complex power structure emerged in the later Vedic Period which clearly favored
the formation of States. Private property came to be protected. Patriarchy became entrenched in North
India. Around 500 BC there was an increase in the availability of Surplus and Machinery.
Kingship In India.
There is a considerable amount of speculation regarding the origin of the Kingship in North India in
later Vedic time. The Aitareya Brahmans referred to the origin of kingship suggesting that the lack of
central authority in India was responsible for the eventual need for a monarch. A King was needed to
guide his people in times of war. This line of thought is supported in the Buddhist texts as well. The
Agnna Suttanta suggests that there was a state of “Matsyanyaya” in Northern India literally means the
logic of Fish i.e. a state in which the strong devours the weak a state of anarchy. The Buddhist text
suggest that to curb this state of Anarchy a strong central authority was needed and this authority came
to be Known as “MahaSamanta” or the Great Elect. He was called the “Kshatriya” because he was the
lord of the field and Rajan, because he was the protector of the law and order. This has been stated in
K.M. Panikkars “The Idea of Sovereignty and the State in Indian Political Thought”.
This speculation in the origin of Kingship implies that monarchy was both elective and contractual. The
Buddhist literature point towards a close relationship between the social and political contract in the
making of the Institution of kingship. It is suggested that a social contract was followed by apolitical
contract. The precedence of social contract points out the advanced stage of social development in
ancient North Indian Society. We find that there was a growing importance given to the strong and
viable social order. In Northern India that can be seen as an essential for the prerequisite for an equally
strong political order. This combination for the political and social was essential to hold Society and
Polity together at times when internal differences cropped up and which later turned into a larger
political order. This emphasis also distinguishes the Buddhist contract theory from the Brahmans version
of origin of Kingship as is stated in R.S. Sharma’s “Aspects of Political ideas and institutions of Ancient
India” As professor Sharma suggests with the passage of time and Rig Vedic State System the
qualifications of a monarch changed The Buddhist texts have suggested that the King had to possess
Physical qualities of the aesthetic type, along with the virtues of head and Heart. He also had to be the
protector of lands but since he was Kshatriya and also the representative of the community, not owner,
a principal that closely informs the contract theory. The king also had to be protector of law and order.
Here law Implies Dharma, i.e. righteous or justice. Therefore the King had to be universally respected.
The Theory of origin of kingship in Kautalyas Arthashastra
In the Arthashastra of Kautalya the origin of king Ship occurs incidentally which is related to espionage.
The Arthashastra suggests that kingship emerged as a result of Anarchy. It is mentioned that the
responsibility of maintaining security of People and giving punishment and levying taxes. A central
Authority was needed. This section in Arthashastra also deals with Contract theory. King is invested with
Divine power. Kautalya is quick to point –out that king Central Duty is to receive revenue to offer
protection. King is the spiritual leader of his tribe or even state, even with regard to this spiritual
function the King is bound to the Contract theory. Thus the survival of monarchy in Ancient North India
was Subject to popular reviewing. This suggests that the contract theory was meant to act as a check on
the unbridled show of power by the Monarch. All officials of the state were subject to a Contract
including the King mentioned in all three texts and interpreted by many Historians. Texts (Aitareya
Brahmans, Agnna Suttanta and Arthashastra
Theory of origin of Kingship in ShantiParv.
The First speculation which lays emphasis on Divine Power suggests that the King is the heir of Lord
Vishnu and that in a Monarchy; the Power of Brahmins should remain intact. The Contract is between
the king and the Brahmin. The Contract according to this section was a unilateral one in which the
Brahmins have a great deal of privilege. The King promised to show respect to the Brahmins in return for
which the Brahmins accepted the lordship of the Monarch. The importance of the Brahmins increased
through such a Contract. This speculation comes in the 67nth chapter of the ShantiParv. Even this
Speculation suggests that the origin of Kingship may be subjected to divine will. This speculation is more
authoritative of the first one and lays stress on the concept of the king as a protector of Law and order.
The second Speculation (57nth of ShantiParv, Mahabharata) suggest that the Divine will is all powerful,
the King as the Supreme Authority who can punish , in the sense of treasurer he was a Kosa, while
someone who can give punishments he was the protector of Dandniti around which Hindu Dharma
revolved. This is where Hinduism becomes a Distinctive religion, which other religion lack. The king is
identified as a contractual one who has duties to perform but is accountable. This also does not depict
the king as an absolute entity. Monarchy in the Dharmic notions is not an absolute notion as understood
by the overzealous Republicans of the Modern times. This makes the contractual notion of kingship
somewhat untenable in the modern constitutional state as the latter are republican in nature. Kingship
is meant to curb anarchy which a republican state fails to do.
Limitations on the notion Of kingship in India.
Unlike Europe in India kingship was never an absolute concept. Our knowledge of Kingship is governed
by European absolutism.
1) Numerous illustrations of kings in Indian history demonstrate that the King is not a just ruler but
more a guardian of the people. The king necessarily has the obligation of looking after his
subjects in a social and political Contract. So the legitimization of monarchy in Brahminical
literature comes only when the monarch is seen as a protector and not a ruler. Here a protector
is one who has no absolute power. The king is the representative of the people. The king has to
carry out his duties in the light of the provisions of the contract. This provision leads us to
believe that absolutism is not restricted to monarchy alone.
2) The Monarchs principle responsibility is to emerge as an institution to curb anarchy. If he fails to
perform this task, he shall to cease to rule. Legitimization of monarchy in Hinduism comes from
the need to curb monarchy. The task of the monarch is to maintain social order. So monarch in a
limited sense emerges as a policy maker and not as an absolute ruler.
Royal Functions of Kingship
The monarch is a Representative of the people. This is much amplified in the Rajput History in India. For
Instance, post independence when the princely states were integrated in the Indian Union, Sardar Patel
emphasized on the integration of Hyderabad based on Mewars acceptance into the Indian union.
Kingship was accepted widely in India. Kingship should be interpreted in the light of principles of
kingship that are democratic and unauthoritarian.
1) The first royal function is the protection of the people and the assurance of security, life,
property and religious belief. One major strand in the Hindu Kingship is that of faith and religion.
The Mahabharata describes the king as a protector of internal and external Peace, preserver of
social order and ensurer of freedom and the right to choose. This View is to be found also in
Kautalyas Arthashastra where it is stated that however the absolute be the power of the King,
he has to act with certitude. Another important element that informs the representativeness of
the Monarch is the Concept of “Prajahita” i.e. welfare of the people, one of the first principles of
Rajneeti.
2) The second Royal function is to uphold Justice. The King emerges as a moulder of society and
has the responsibility of bringing harmony between the twin concepts of class and caste. It also
has to be remembered while the welfare of the people is the prime responsibility of the king; he
also has to ensure his own prosperity. Self interest also informed the building up of the
institution of kingship.
Councilors and the Officials
The Councilors and the officials formed an important segment of the Ancient Indian political System.
They had mostly religious and political functions to perform. They were all Ratnis. The Historian K.P.
Jaiswal suggested that these were high functionaries of the state. According to him there were 11 such
officials The Gramani (leader of Small troops) and Senani (Commander –In –Chief). R.S. Sharma has
suggested that there were some other officials Purohita (Priest), Rajanaya One who represents The
Mother Goddess thus representing Matriarchal Society, Parivrikti, and The Queen. Based on his reading
Of PanchaVinsa Brahmans, Sharma says that these officials were subordinate to the king but at the same
time, Contributed to the Strengthening of the kingship. Thus In ancient India especially in later Vedic
period, Kingship was supported by a strong bureaucracy.
Nature
These councilors and officials who were identical formed a sort of Bureaucracy. The Arthashastra of
Kautalya recognizes it as such. The member of the councilors and officials point towards a highly
developed political organization. This Organization had a developed and complex Machinery of taxation.
The tax officer (BhagaDugha), so the political system of ancient India especially later Vedic Times points
to a modern form of Governance in which taxation formed a major formed a major component.
Regarding the question of whether these officials were elected or not the Vedic sources are Unclear.
Historians such as K.P. Jaiswal have said that these officials were either elected or selected .The Principle
of caste and class representation also informed either selection or election. What is also note worthy of
the bureaucracy of later Vedic time was the participation of women in all political, social and Cultural
matter. The later Vedic polity gives evidence of fairly liberal but at the same time a top Bureaucracy
where Religion played a Important role.
Oligarchies and Republics.
In Pre-Mauryan India, tribal States were governed by oligarchies that run parallel to Monarchies. These
Oligarchies in Due course of time assumed republican characteristics. The Ruling class of the Republics
of The Shakyas and the Licchavis came from the same class and Varna, Thus narrowing the field of Co-
option of elites thus demonstrating the growth of Oligarchies. These tribes and clans were based on
blood ties. The Individual members of the groups retained their Independence but owed allegiance to
their Chiefs. The Tribes and the clans were forever engaged in Warfare. These tribes were, however
inspite of their Oligarchical and republican in nature, popular in Character, thus demonstrating the Pre-
Dominance of a relatively progressive and Modern Out look toward governance in Ancient India.
The nature of Republic in Ancient Indian Political System.
According to the Pali texts republics were quite common In Ancient India. Two republics that were
Vrijian Confederacy and the republic of Sakya of KapilVastu. The Chief elements of the confederacy were
the Licchavis of Vaishali. The Ekapanna Jataka have said that Vaishali had in all 1100 kings to govern the
kingdoms , which means that governance was fragmented in this period. The Jain accountants refer to
an Inner Council of 36 tribal chieftans controlling the affairs of Licchavis and Mallas. The republics came
into the 6 Mahajanapadas. (3 important Anga, Banga and Kalinga.) The Monarch held office for life; this
was particularly evident in the republics of Shakyas.
Administrative machinery of Shakyas
The Administrative machinery was simple and rudimentary. The Administrative and Judicial functions
were carried out in Public assemblies were men and women of all ages allowed to participate; a single
chief was elected as office holder. It was Similar to the Roman Council. The local affairs of each village
were carried out in open assemblies. The Sakyan state was territorial in nature, was an aristocratic
republic. It had single permanent hereditary chief called the Rajan and an assembly of ruling caste and
class. The assembly deliberated on public affair and issues of war and Peace, decision was based on
Voice of majority. The longevity and future of these republics depended on the changing socio-economic
conditions of the time, as well as on external pressures of the rising Kingdom of eastern India. For
example The Vrijian republic succumbed to the intrigues of the King Ajatashatru at the time of Buddha’s
death. Unlike in eastern India, the republics in western India could stand up to the intrigues of the
Mauryan Empire. Kautalyas Arthashastra and Megasthenes Indica discussed the western Indian
Republics and successful defence of their territorial integrity. The 107nth section of The ShantiParv In
Mahabharata suggests that the republican states did consider the complex problem of welfare in
ancient India. Some of these republics were Yaudhyas, the Malavas, and the Arjunayanas. The western
Indian republics were Independent. The Malavas were the founders of the Vikram era. With the coming
of the Samudragupta during 4th and 5th century A.D., These republics exist and with that we witnessed
the eclipse of Indian constitutionalism. A.L. Basham says that debates and discussions informed the
government of each such republic.
Feudalism and Quasi Feudalism.
Quasi- Feudalism: It refers to the relationship between a vanquished ruler and Victorious one, According
to A.L. Basham, European Feudalism cannot be transported to India, in which there was a complex
structure of centralized relation covering the King to the villain. Kautalya advises the defeated king to
offer voluntary homage to his Victorious neighbor. Quasi feudalism refers to the relationship between
large territorial Kingdom of centralized authority and weaker vassals, who were the petty and the local
chieftans. The ruler of larger territorial Kingdom and vassals who were the petty and local chieftans for
example we can look at the relationship between the Rashtrakutas and the Chalukyas and the Hoysalas
and the Cholas. If we investigate the inscription of 8th century A.D. in Duthpani in Southern Bihar then
we come across a complex system of Patronage mongering and demonstration of loyalty that eventually
leads to the creation of Zamindari. A.S. Basham suggests this system did not approximate to western
Model.
Feudalism
The term feudalism comes from the word “feudem” which refers to military organization. There is a
great controversy regarding the applicability of feudalism and manoralism in ancient India. The well
known Historian Vijay Kumar Thakur In his Histography of Indian feudalism compares the European and
Indian Manoralism. The European manoralism of land revenue was interwoven with administrative
organization in middle ages. According to this system land tilling peasants were at first attached to land
owning class. The nucleus of the system was the manor. The manorial system was safe in an age of
economic decentralization and bartering. In European system the king was the holder of all the land in
hid realm which he lent out to his Barons and Chiefs stipulating certain terms and conditions of services.
In return the baron or the tenant chief had to make some payments and supply soldiers in times of war,
in turn could let out the land in conditions of service. On the Death of a tenant-in –chief or tenant, His
successors had to pay a fine in order to succeed. Similarly if he had to pay a sell a land he had to pay a
fee. In addition the tenant in chief had to supply to the master the articles when his eldest son was
knighted or his eldest daughter was getting married.
Indian Feudalism
The Indian feudalism may be attributed to the writings of D.D. Kasambi and R.S. Sharma. Sharma
suggests that in the Indian model of feudalism, the king transferred the administrative and judicial
powers as well as economic ownership to the beneficiaries. In the Gupta Period fiscal and administrative
immunities were granted to the beneficiaries. The wakataka records show that the ruler gave up his
control over his sources of revenue including pastorages means of production of salt forced labor and
hidden or unknown royal Treasures, when he made grants. The Gupta and post Gupta showed that in
ancient India a feudal lord was expected to give up the right to govern the in habitants of the village that
were granted. This shows that in the Indian model of feudalism, the system of letting out and subletting
financial assets was very much prevalent. There are also instances in these records of donors asking the
inhabitants, cultivators and artisans to pay customary taxes to the donee and to obey his command. Also
the government officials and soldiers were not directed to cause any disturbances to the Brahmins, who
were the integral part of the feudal society. All these different features of the Indian model of feudalism
demonstrates complex surrender of power of state to feudal society at particular time i.e. Gupta and
Post Gupta society, later they were granted the right to punish thieves. Later they were also granted the
right to punish in the event of offences committed against property, family and person. Sharma shows
that gradually the powers of the state were also transferred to the Brahmans or the priestly class or the
warrior class.
While making these land grants certain conditions were imposed on the parties, these conditions
included
1) That Donee shall not commit treason against the state
2) The Donee shall not slay a Brahmin
3) The Donee shall not commit theft or Adultery
4) The Donee shall not wage war or commit crime against any village.
Therefore the onus of responsibility lay firmly on the donee. The objective of such a one sided
approach was to secure the support of the priest and to prevent them from mobilizing against
feudal lord. So we find in the Gupta period and the post Gupta period through Indian feudalism
very conservative practice was introduced in ancient Indian Society.
Relationship between Indian Feudalism and Bengal Feudalism.
The Land Grants in Bengal differ from the land grants in the rest of the country in two ways. Firstly the
land grants were a result of sale transactions, affected by Individuals involving only the transfer of
revenue from land which the donee could enjoy in perpetuity. Secondly these land grants were made
with the consent of the central government and enjoyed immunity on taxes only.
The Donee did not have the right to alienate the land or grant the land to others. So the land grants
made in Bengal did not give any index of sub-infudation (break down). Whatever may have been the
intention of the donors, the feudatory and the private Individual. The grants help to create powerful
intermediaries yielding considerable amount of political and economic power. These intermediaries
mostly belonged to the priestly caste that is the Brahmins, who soon started to shed their priestly
functions and turn their attention to land management and administration and other secular duties.
In the KathaSarit Sagar we find mention of a Royal Priest who had hundred villages making him
Samanta. In this way temples and monasteries also became large land owners. In the area of land lord,
the original title of a cultivator or a Social occupant must have been interfered with to some extent.
Thus we see the beginning of the reduction of cultivators into share croppers and temporary tenants.
These developments in Bengal demonstrate the nature of Feudal society and polity in late ancient India.
Local Administration in Ancient India.
Gupta and Post Gupta Period.
The village of the Gram formed the pivot of local administration in ancient India. Its importance was
naturally great at the time when industrialization and faster communication was UN known. The local
administration was carried out by dividing the local area into various political or administrative divisions
to facilitate the smooth functioning of the whole state. The smallest unit of administration was the
village with a small number of families pursuing traditional occupations. Next to the group of villages
came group of 10 villages Gahanna, above that came group of 200 villages or Kharbavatika. Next came
the group of 400 hundred villages and finally came group of 800 villages. The administration of the
village was left in the hands of the village headmen the Gramani. He was a state official and was
responsible to the government rather than the villagers. He was answerable to the Ratnis from the Vedic
age. His work was to ensure territorial integrity of the villages. He was a surveyor of land and surveyed
the land. He managed gardens, forests, temples, irrigation, pastorages and roads among other
departments. He also periodically took the census of the villages. He also maintained a register of
accounts to keep a note of collection of actual revenue. As a leader of the village militia, it was his duty
to look after the peace and order. The office of the village head men was hereditary but the government
could decide upon a village headman from a member of his family. The village headman enjoyed rent
free land in lieu of salary in addition to other officers. Other officers under him included the accountant.
One powerful official was the Thaniko, head of the group of 800 villages who reported to finance
ministry. The Thaniko was an intelligence officer as well and kept a tale of migratory patterns of the
immigrants. He was also Law and order officer. The different units of rural administration were self
maintained groups answerable only to the central government, in all financial matters. The central
government hardly interferes in the internal matters of the village, if rent was not collected properly or
deposited to the central exchequecher. In all matters the local administration enjoyed full autonomy
that resembled modern-self government. The village assembly which was also the village panchayat was
entrusted with the duty of carrying on the administration. The composition of village assembly from
region to region normally comprised of elders of the village. These members were known as Mahajans
whose work was to oversee administration and settle local disputes. According to Kautalyas
Arthashastra, the panchayat acted as the trustee of the estate of orphans and minors as well as those of
the temples. The Chola records give a more detailed picture of the constitution and functioning of the
village assembly. There were two types of villages in south India “Urs” and “Bramahdayas”. The Urs
were more common and were the more ordinary type of villages with an assembly of the same name. It
included all the members of the villagers except the untouchables. The work of these types of
assemblies of Urs mostly dealt with law and order issues. Justice was central to their functioning. The
Brahamadayas villages were Agrahara grants were made by the king to the Brahmans. They had their
own assemblies which were called mahasabha acting as autonomous bodies. Elections were held in the
mahasabha which we learn through the Uttarmerur inscriptions of Parantaka I.
Working of the Mahasabhas of the Brahamhadayas:
The Mahasabha was a democratic assembly which was also autonomous. It possessed sole authority,
over village land and was left free to manage its own internal affairs. It collected its rent in both in Cash
and Kind and paid to the royal treasury. The assembly had complete power regarding the reclassification
and reclamation of the forest waste lands. The Ukkal inscriptions make clear that the assembly
possessed all the powers of the state. Within its narrow ambit. It controlled corporate property which
could be sold for public purposes like meeting needs of the temples. It was a trustee of public charities
and received and deposited money, land and paddy under conditions stipulated by the donors such as
the Brahmans. In times of famine and failure of crops, the assembly had to provide relief and
rehabilitation to victims and remit land revenue. The assembly had to provide communication and look
after irrigation works. It was also responsible for education. The king always could not interfere in the
work of the assembly lent in the case of disputes. The assembly had judicial functions. There was a
judicial committee called nyayattar that settled disputes and gave judgments. The king was the
fountainhead of justice and could pass the final judgment. In this period punishment or Dand did not
play a central role in the Hindu law.
It is clear that there was clearly a corporate spirit in rural administration in India. Rural administration
ran along efficient lines. There was a high sense of Justice and fair play. There is evidence of rule of Law
in ancient Indian Society. The Bureaucracy was strong and efficient.
Varna System.
The Varna system makes the Indian Society different. The term Varnashram Dharma implies that
Dharma is not same for every one. There is a Sadharan Dharma which is common to everybody inspite
of Dharma implying different norms for different people. The qualities of Sadharan Dharma are the Basic
foundations of the Hindu social order which is the moral order that is binding on every person. It binds
all men in a common fellowship and then binds them to the universe which is both animate and
inanimate. The Varnashram Dharma is unique system of social obligations. It implies that there is a
Dharma appropriate to every class and stage in life of every individual.
According to A.L. Basham , the original meaning of the concept of Varnashram Dharma appears to be
that every individual is part of stupendous home but at the same time retains his/her distinctive
characteristics. Caste is however not unique to the Indian subcontinent, other societies such as the
European and west Asian Culture has similar form of stratification. In Europe the clergy, the nobility, the
bourgeois, the Surfs and the Proletariat formed the four different levels of the society. The four fold
grouping is also to be found in Iran where the priests, the warriors, and the head of families and manual
workers constitute the society. If the foreign origin of the Aryans is accepted they brought this system at
the time of invasion. Even In the earliest hymns of the Vedic Aryans we find mention of the nobility or
the Kshatriya and the ordinary tribesmen or the Visah.
Theories of origin of the Varna System.
According to the western scholars and orientalists, casteism was introduced in the Indian subcontinent
by Aryan invaders who sought to subjugate the “Dashoors” who may be considered the ancestors of
Shudras. We learn from the Vedas that the difference between the Aryans and the original inhabitants
were because of cults rather than cultures. This theory of casteism in India is not supported by the fact
that the Shudras or the productive caste need cannot be necessarily being identified with the original
inhabitants or their origins need not be traced to a servile past. The exclusion of the productive caste
from the rituals and other religious functions of the Aryans may be attributed to political and economic
hostility between the invaders and the original inhabitants. Exclusion of the Shudras was voluntary.
Brahminical view
The second view that is the Brahminical view supports a divine theory of origin of the caste system. The
Purushashuktas which is a late Vedic hymn suggests that purusha from where all the castes have
emerged is in it the caste system and is meant to preserve the unity, integrity and harmony of the
universe. The Brahman is placed at the apex of his hierarchy. The Gita also supports this view. A
philosophical justification of this theory comes from the Upanishads. According to the Chandoya
Upanishads, a man’s Varna is part of retributive justice that pursues the self from one birth to another.
The ShantiParv of the Mahabharata suggests that a man attains a superior Varna by performing certain
righteous acts by adhering to the tenets of Varna, ashram and Moksha.
Marxist View.
In more recent times R.S. Sharma has proposed that the move of production involving the theory of
surplus leading to the formation of classes and with that also leads to the formation of a caste system.
Giving an economic analysis of the origin of the caste system, Sharma suggests that it is wrong to think
that the caste system was already formed at the time of arrivals of the Aryans. He says that the Varna
system has to be understood in the sense of social mechanism which was created in response to a mode
of production in which the upper-class were represented by priests, warriors and noblemen became the
managers and collectors of the surplus produce in which the lower class were presented by the artisans,
peasants and agricultural laborers who were free to carry on the production since the beginning of the
Vedic time.
Let us now look at the development of the stratification:-
The Rigvedic people lived in a pastoral society. They were semi nomadic in nature. Their chief
production included cattle and horses. Wars were natural and logical functions of these people. Cattle
were an important source of livelihood. Even the Rajas main duty was to protect the cattle. Peasants,
Priests, and warriors also formed the bulk of the society which was egalitarian in nature towards the
beginning of the Vedic age when we find relative absence of stratification in the Vedic tribes. With the
passing of time the Vedic people increased and took to agriculture on a large scale. Sacrifice as a ritual
also increased thus making the priest even more important in the society, placing them above the Visah.
The Distinction between the ruler and the ruled were not sharpened. The tribesman was not fully
fledged tax-Paying peasants. The wide spread use of iron in the age of Buddha helped in clearing the
densely forested areas and the use of Iron Plough share led to the production of sufficient surplus for
the emergence of class based and state based society in which the religious and the governing
branches of the ruling class could collect taxes, tributes, tithes. The predominant Brahminical ideology
gave legal and religious sanctions to the caste system. The governing class devised an elaborate social
mechanism through which the fruits of economic expansion could be conferred by the priests and
Princes at the expense of the peasants, artisans and the agricultural laborers. The mechanism formed
the basis of Varna system. The notion of purity was closely tied into this rationale the more a person
withdrew from physical labor The purer he used to be Thus using purity as a tool for the growth of
Brahminical power. The productive classes were saddled with social disabilities and economic
obligations which were enforced through Varna system and an oppressive administrative apparatus. The
Brahminical Varna ideology was thus a clever means of regulating production tax/gift collection and
distribution. Those who were concerned with the distribution and appropriation of social surplus
belonged to the upper class. Those who were engaged with the work of primary production belonged to
the lower class.
Gotra and Pravara.
These came into prominence in the later Vedic times and the Brahmins attached a lot of importance to
these two institutions. They indicate social and ritual identities. Both like “Vrata” refer to cattle herding.
The semantic History of the Gotra shows that the need procurement of subsistence resulted in the
formation of clans. We find Gotra mentioned in the Atharvaveda for the first time. It means a kin based
unit. The Indo-European people such as the Romans had exogamous clans and endogamous tribes. The
Gotra system traces its origin to Indo-European traditions. It can be linked to the transformation of
occupational guides into castes in early medieval period The Pravara is a stereotyped list of the names of
ancient Rishis who are believed to be the founder of families. They had similar functions to perform. In
their daily functions, the Brahmins not only mentioned the names of their founders of the Gotra but also
the names of the ancient sages. Marriage norms in Hindu personal law have been strictly regulated by
the norms of the Pravara. The adoption of the Gotra and Pravara system benefited the Brahmans
considerably. They were meant to weigh the social religious status of the priests. The other twice born
castes in Hinduism do not claim descent from the ancient sages. Thus deleting them from these
institutions. The status of women in ancient India has been widely debated. Conservative historians like
Altaker have suggested that the status of women in primitive societies were low although in the Vedic
period it improved. Altaker seeks to present a favorable picture of the Vedic age. Sudhira Jaiswal
suggested that women participated in all forms of work in the primitive age including, hunting and
gathering. Agreeing with anthropologists Jaiswal says that society in the primitive age was egalitarian
where there was a relationship of reciprocity rather than subordination. Subordination emerged most
clearly in the class based societies of later Vedic times. R.S. Sharma offering a Marxist interpretation of
relationships in society suggests that a state of perpetual warfare of a pastoral society brought out the
patriarchal elements in Ancient Indian Society.
In the Rig-Vedic period women were certainly considered to be important members of the society,
whose contribution was vital to the production. There was reciprocity and autonomy in an egalitarian
frame work. Women and men took equal part in Sacrificial rights. Women participated in the work of
the earliest folk assembly for the Vidhata. Even some of the ministers were women. Women’s
participation in the work of the earliest folk assembly of the Vidhata. Even some of the ministers were
women; women’s participation was basically in the area of food production. With the emergence of
cheap/forced labor of the enslaved population, the necessity of women started Declining. This
happened around 300 B.C. and thus their status began to decline.
In the age of Buddha especially during the life time of Buddha, the status of women remained
considerably high. Buddha admitted women into the monastic order. Buddhism clearly states that
women have a right to earn their living. At the same time structural equalities are not allowed in
Buddhism. In Gupta times Varamihira says that women can be allowed to become ascetics even though
he went in the injunction of smritis, especially Manusmriti. During the period of the latter Samhitas the
position of women remained satisfactory. The Sathapatha Brahmins suggested that women were
treated as equal in house hold duties. Women were allowed to be initiated into Vedic studies or
education from the time of the Upanayan ceremony. Women enjoyed a high religious status within the
family with the arrival of priestly class, their importance increased with regard to such ceremonies. By
500 B.C. the Upanayan ceremony was replaced by marriage. Thus their status further deteriorated. The
participation of women in productive activities such as agriculture, manufacturing of locks, bows and
arrows and other war materials were responsible for their continued prominence in society. With the
decline of their participation in such fields also lead to decline in their status so the position of women in
ancient Indian society was closely tied in with the material culture of the people.
PASTORALISM.
The study of the stages of the evolution of the ancient Indian economy from pastoralism to a developed
mode of economy represented the stability and expansion of the economy. Especially of agriculture,
industry, trade and commerce both internal and overseas and also the money economy. The Rig Vedic
people were primarily pastoral people. Livestock formed the chief possession of Rigvedic people. The
Pre-Aryan practice of tilling the soil was common which meant the cutting of furrows in the field with a
wooden ploughshare. The crop cultivated was Probably Barley. The Neolithic people also grew wheat;
Rice was not cultivated till a later stage In Rig Vedic Period. The people of Rig Vedic era lived a pastoral
life is evident from the use of “Vraja” which literally means Cowpens. Settled life was promoted through
cultivation and cattle rearing. All this led to the presupposition of a settled life. Property consisted of
Livestock, land, houses and weapons although land was not a very important constituent in the
property. The Aryans did not attach much importance to land since a cattle rearing was more important
than agriculture. The relative failure of agriculture at this point was that plough shares were wooden
and did not yield much crops. The use of Iron Plough shares was not known to the Rigvedic people. This
explains the reason behind their travels from one riverbed to another in search of water thus
abandoning the former tracts of land. Also at this stage Aryans occupied small pieces of land thus
reducing importance of territories as well. Land was not classified as a gift unlike cattle slaves and
houses. Still land was beginning to be handed from one generation to the other and clans controlled it.
In the Rig Vedic period, the various operations of agriculture were ploughing, sowing, reaping and
threshing. These were formed by the members of the family. In the Rig Veda there is no reference to
hired laborers and wage earners. We find mention of Domestic slaves in the Vedas. Thus, the domestic
slave may have been first wage earners In Ancient Indian History. The absence of hired laborers may rest
upon the inhibition of the accumulation of private property. In the Pastoral mode of economy of Rig
Vedic times, there is no reference to leasing, hiring, lending and borrowing, sale and purchase and trade
and commerce. Although of all these activities commercial activities find mention. In the absence of
coins in the Vedic period, there was no practice of money lending on interest and lack of surplus failed
to foster commerce adequately. Buying and selling was fully in evidence and was done through barter
system. Also in the Barter System only Two forms of commercial activities are mentioned in the Rig
Vedas. Thus basic commercial work prevented the accumulation of property in the Rig Vedic period. The
Rig Vedic period was migratory in nature. They were thinly scattered over a large area and their simple
needs were easily met by a pastoral mode of economy. Society was clearly stratified with unequal
distribution of Wealth. But as is evident in writings of Marxist Historian like R.S. Sharma poverty was not
grinding in this period. The peasant phase began with the end of migration of the tribes in this phase.
Settled life was encouraged. In Sedentary life, Continuous means of subsistence was assured. The
importance of agriculture was realized. It became the main occupation. Field agriculture became all
important. Iron was used to make weapons and these tools and appliances were used to clear forests.
The Sathapatha Brahmins give a graphic Description of the various forms of agriculture. The Artha Veda
also discusses the means and methods dealing with Droughts and excessive rains. Irrigation which was
until know unknown to the tribal people began to be discussed. The later Vedic texts depicted an
essentially agricultural society. Different cereals and pulses were cultivated point to the prevalence of a
more than subsistence economy. The peasants produced enough to feed themselves leaving a little
surplus for the ruling of the classes. The use of iron implements was still not widespread until 600 BC;
most of these implements were not major ones. The Atharva Veda prescribes sacrifices for peasants for
the purpose of acquiring material wealth and benefits. The ruling class strived to establish its control
over the peasants. This is the phase were the rituals were developed. The peasants took the burden of
taxation upon themselves. They paid 1/10 of the produce as taxes. Taxes were paid in Kind and not in
cash. The peasant phase saw the rise of food producing economy. The peasants were expected to pay
the Rajans. Availability of surplus was limited in this stage. Around 500 B.C. burgeoning agriculture
emerged even at this stage there was resistance to heavy extractions from the peasantry. Although
gradually the burden of sustaining the higher classes fell on the peasants, the levies that were
introduced began to carry ritualistic status. The Sedentary and settled life of new agricultural
communities now began to witness the introduction of houses on lands, and constituents of property.
The tribal practice of owning property commonly remained but individual ownership also began to
emerge. Land was still not considered the part of the property. The ideas of individuals had not
developed during this phase.
Reasons for Neglect of Hindu Law
1. Hindu Law is closely related to Sanskrit. Most of the texts of HL are written in Sanskrit.
In early colonial period with the coming of British administrator, Sanskrit began to
decline as an important language in India. Gradually the no of Sanskritists also
significantly fell. The no of lawyers with knowledge in Sanskrit also fell. So there was a
decline in popularity and importance of Hindu Law.
2. In this period, there was a lack of professional interest in the Hindu Legal System with
the advent of Anglo Hindu legal tradition; Hindu law began to recede to the background.
British common Law began to dominate HL from the start of the 17th century.
3. Mainstream HL has been relegated to the status of Personal laws. Modern pressures of
political correctness emerging from globalizing tendencies further marginalized HL.
Viewing the subject as a reactionary misogynist remnant of the past, the study of HL is
even now seen as a dubious scholarly activity. However as Werner Menski suggests,
Hindu concept of lawmaking closely informs areas such as Indian public law,
fundamental rights as well as environmental rights and consumer protection.
4. The increase in importance of global framework of reform has also contributed to
marginalization of HL. Globalization leads to growth of uniformity in old forms of law-
making that tend to relegate traditional sub-continental or national laws to a sub-
terrainean level. So HL owes its relative insignificance to the rise of post-colonialism.
Relevance of HL in Modern Legal Systems like India
1. HL is relevant to academic work in school and college curriculum because it imparts a
sense of local and regional form of judicial administration. HL gives better understanding
of local law-making in the Indian subcontinent. It helps us to understand the laws of the
indigenous people in India.
2. It also helps us to understand the development of global framework of law and legal
scholarship. There is a need for comparing and contrasting HL with other indigenous
laws, specially the Customary Laws of Africa, to understand how regional and
indigenous laws have developed and sustained in the Colonial period. It is crucial for the
understanding of the critique of colonialism.
3. It helps us explore Post-Modern Indian legal system which is a combination of both
tradition and modernity. HL within a post-modern legal framework helps us tide over the
difficulties of modernist legal axioms and linear developments. It also helps us to
understand the principle of unity in diversity which is central to the Indian Constitution
within a post-modern legal framework.
Dharma
The four great aims of Human Endeavour or the Purusarthas are Dharma, Artha, Kama
and Moksha. Dharma is moral behavior, Artha is wealth, Kama is worldly pleasures and
Moksha is salvation. Moksha is the highest ideal of an individual. The pursuant of the
first three aims is aimed at attaining Moksha. Dharma not only signifies an absolute and
immutable concept of righteousness but it also includes the idea of duty that every
individual owes to oneself, society, ancestors and the Universe. Dharma is law in its
widest sense. Spiritual, moral, ethical and temporal. Every person the ruler or the ruled
has his/her Dharma. The commandments revealed in the sacred texts are to be followed
implicitly by a person. When by choice a man errs, a system of reward and retribution
arises. This leads to the codification of Dharma which signifies a comprehensive
normative system by which the conduct of an Individual towards all other Individuals and
living beings is regulated. This is meant to help in preserving and upholding the order of
the universe. The early Dharmshastra demanded obedience to the sacred prescriptions
through spiritual- temporal mechanisms of inducement and retribution. When it was
found that law cannot be made on the basis of divine will the divine powers were sought
to be entrusted in the hands of the king. The King emerged as the sole law maker and law
giver. He had the responsibility of enforcing the sacred order and norms prescribed by the
Dharmshastra. These norms are what is ought to be carried, the sanctions of the state.
Thus the role of the state informed the percepts of Dharma from the pre classical period.
Dharma has three branches –
Achara or right conduct
Vyabhara
Prayschith
In the medieval period Vyabhara gradually emerged out of Dharma to assume a separate identity
for it self. Dharma was seen as the undefined and ethered touch stone for the purpose of testing
the validity of more practical and moral rule of law. Dharma sets the rule of Law making since
the middle ages such as the philosophical concept of justice, equity and good conscience. Certain
values and methods of mobilization and agitation in modern times. Indian politics such as
ahimsa/non violence and Satya/truth are defining characters. So in the modern and the medieval
sense , dharma means social and moral obligations meant for governing a society.
Dhamma is the Buddhist version of Dharma. In the Buddhist view the origins of the world
system not only rejects creation but importantly, it rejects the system of Varna’s which is ratified
in the brahminical social system, legitimized by the notion of Dharma. In Dhamma the
Arthashastra system of self interest in politics is also rejected. Theravada Buddhism identifies
Dhamma with the establishment of righteous order. The Buddhist asserts that Dharma is the all-
encompassing norm that governs the society and politics as well as it sets the code of kingship
embodying the virtue of righteousness. Dharma thus, is the external manifestation of the conduct
of worldly affairs. Therefore Dhamma infuses and suffuses the conduct of righteous order and
includes in its scope all three society, polity and economy on terms of equality. This perspective
is different from the Brahminical concept of Dharma because in Brahmanism, dharma is larger
than Artha, in its narrowest sense.
Artha
Artha follows from Dharma. As explained in the Arthashastra, Artha has a broader connotation
than the acquisition of wealth. Kautalya in his Arthashastra says that the wealth of the nation is
both the territory of the state and also of its inhabitants who may follow various occupations. The
state or the government plays an important role in the maintenance of the material well being.
Therefore an important part of Arthashastra is the science of economics which includes the
starting of productive enterprises, taxation, revenue-collection, budget and accounting. The aim
of pursuing successful economic policy particularly through productive enterprises also increases
the revenue of the state and appropriates the surplus to the state treasury or Kosha. It is an
essential constituent of the state. The Arthashastra warns against the depletion of the resources
of the treasury by the king. A balance is to be maintained between the welfare of the people and
the maintenance of the state resources according to the Arthashastra- this presupposes two things
– the maintenance of law and order and adequately efficient administrative machinery. By the
maintenance of Law and order, Kautalya meant the detection of crime and handing down of
punishment so the major element Arthashastra is the policy of Dandniti which is the science of
enforcement which Kautalya Says is necessary for the upholding of the fabric of the society. The
state according to him has the responsibility of maintaining smooth inter-personal relationship.
Thus the state in Hindu Law has been given the legitimacy of intervening in Domestic matters
for not only the maintenance of Law and order but also the upholding of an honest society. The
Arthashastra prescribes a comprehensive set of fines and punishments. Dand not only means
punishments but also implies the army. It is the four methods of Dispute settlement and connotes
the use of force. Kosha Dand is an expression which implies the combined strength of Economic
power and military might. Dand thus covers all aspects of the coercive power of the state.
Kautalya continually refers to just Punishments. The state under the ruler has the responsibility
of promoting economic well being of the people as well as preserving the law and order and
maintaining the administrative machinery of the state.
A ruler’s duty in the internal administration of the country as discussed in The Arthashastra is as
three fold
a) Maintenance of Raksha: Protection of state from external aggression.
b) “Palana”: Maintenance of law and order within the state.
c) “YogaShema”- Safeguarding of the welfare of the people.
So the welfare economics finds mention in Kautalyas Arthashastra. The Arthashastra also
discusses the importance of foreign policy and seeks to connect it to warfare.
Legal Literature.
The Dharmshastra represents the canonical views of the authors that are Brahmins. The Arthashastra on
the other hand are far more secular in its orientation. The Arthashastra differ from the Smritis with
regard to many particulars. To Begin with Dharma Shastras are semi religious and semi moral. The
Outlook of the Dharmshastra towards government and political process is molded by religious
orientation. The Dharmshastra are deductive where as Arthashastra is based on inductive reasoning. At
the same time Arthashastra like Dharmshastra relies on Vedas. The authors of Arthashastra enjoy
relative intellectual freedom. This conclusion lies in the field of politics. It seeks to separate politics from
theology. This emphasis on politics should not be seen as repudiation of orthodoxy. The Dharmshastra
lays greatest importance to Dharma while Arthashastra gives to Artha, but it seems to touch upon the
significance of Dharma.
The chief areas of discussion in Arthashastra are as follows.
1) The Central and local governments.
2) Taxation
3) Alliances and wars.
4) Appointment of Officers
5) Punishment.
The Arthashastra aimed to veen away men from the thoughts of Ascetism and involve them in
the daily activities of Social Life as well as power and politics. The Dharmshastra acquired more
importance after the age of Manu. It became the central texts for governance in the post Manu
period. The Smritis gradually gained importance on the other hand the Dharmshastra set before
themselves very high standard goals and ideals that went a longway in disintegration of society
so both the Dharmshastra and Arthashastra played crucial role in preserving political and social
unity of the Hindu Legal system.
Sources of Hindu Law
Dharma that emerges from Vedas is the main source of Hindu law, according to Manu revelation of
Shrutis is the Supreme authority in Hinduism and those who desire to know meaning Of Dharma. The
Vedic concept of Reet and Satya are the precursors to the concept of justice. That is the straight path,
leading man to perfection. It also means a divine cosmic order by which the universe or even the gods
are governed. It is the Law that that regulates the performance of Vedic sacrifices. It is similar to
Confucian idea of order and absence disturbance. It as a complete system of ethics in mans daily activity
which manifests itself in moral law. Its manifestation as mans Moral Consciousness it came to be called
to be truth, Satya , Satya stands for perfection of social order where there is harmony, where everything
is in place and every Individual is given his duty and performs his or her duty in accordance with his or
her capabilities. Satya and Dharma are the main goals of ethical endeavor. Let us know look at other
authors of Hindu law , The Vedas are the first and foremost sources of Hindu Law Apastamba
maintained that the Vedas alone are the main sources of Hindu law but with growing complexities in the
Hindu society it is felt that Vedic hymn are difficult to comprehend but also cannot be easily be related
to current practices with the passage of time the Vedas became inadequate for the regulation of large
society as a result consequently the Dharmshastra were absorbed into tradition the Dharmshastra along
with the Vedas were seen as the origins of Dharma and the sources of Hindu Law.
Manu the preeminent scholar of Hindu Law sand the most well known exponent of the Dharmshastra
School says that Hindu Law has four legs these are as follows
Shrutis or the Vedas
Smritis or the customs of holy men sadacara and fourthly ones one inclination. According to him in case
of conflict Shrutis or the Vedas prevail over the smritis and they also have precedence over Sadacara and
personal inclinations. Other authors such as Yagjnavalka suggest fivefold division of the sources of Hindu
law. He adds equity and customs as independent sources of law to the other sources of law suggested
by, manu he sadacara to mean those religious acts that are performed by men to counter certain human
defects such as selfishness, Hipocracy.
Customs and traditions are also accepted as sources of Hindu Law. Kautalya in his Arthashastra suggests
that there are four sources of Hindu law in ascending order of validity
Dharma which imbibes in the nature of things
Vyavahar or Contract which is to be establishes by witness
Local customs or caritas
Which is to be interpreted independently by the different leaders therefore we have various
Ramacharitramanas
The Kings Order or Rajasasan
According to Kautalya sacred law or Shastras is more important than history when sacred law is in
conflict with rational law that is the kings law reason is to be given more importance according to
Kautalya Customs are subjected to king’s personal interpretations. Dharma in this sense is brought
directly with the boundaries of the province of the king yet the statute law has to be compatible with
the Vedas and the social order defined in it. Kautalya does not favor radical departure from customs
but extols royal power particularly the power of the legislation by edicts and decrees. The rules and
regulations of the Shrenis.
The nigams as well as the nimansha, nyaya or logic, purans and itihas also came to be considered as
important sources of law in the later Vedic period.
Law making and Law Interpreting Process.
A body constituted for the purpose of framing laws was unknown in ancient India till about the
beginning of the Christian era. The Vedas or The Shrutis constituted the pillar of the Hindu law. Thus the
Vedas and the Shrutis were given paramount authority for law making and interpreting. Sacredness was
attached to the Vedas as they were considered to be of supernatural origin but with the passage of time
and growing complexities in society, Vedic regulation could not be related to current practices, this
brought the smritis in Sharper focus. The Smritis regulation took into consideration of the needs of the
changing society when laws were made these laws were both secular and spiritual. The Smritis are
drawn from the Shrutis or the Vedas. Thus for the first time divine authorship was replaced by laws and
Ordinances that emanated from Humans Soul or that were written by non Divine sources. The eminent
legal scholar Kautalya was the first Hindu Scholar to have suggested statutory laws. According to
Kautalya Law and Order supersedes all other sources of Law making including dharma, He suggests that
the King is the ultimate law maker as well interpreter of Law. As Kautalya believed that if there is conflict
between sacred law and rational Law, rational Law triumphs thus emphasizing monarchs control of law.
Kautalya emphasized on royal power, however didactic in nature was supported by Asoka’s edicts that
upon social and religious life as well thus we see that, in Asokan Period as well as in the writings the
state emerges as one of the most important law making and interpreting body with the king as its epic
centre and also the fountain head of justice. The role of corporations and guilds such as Shrenis and
Nigam is also important in interpretation and making of law. Shrenis, Dharma rules and regulations of
guilds was determined by an executive committee of the Guild and was binding on the members of the
guild. Heads of the Guilds were bound by the provisions of Shrenis or Dharma, but the kings have a
presence in the life of corporations especially with regard to settling of disputes between the members.
For the Better part of the Vedic period, Sears or sages also had a role to play in the interpretation of law.
The Rishis of the Upanishads were law makers and interpreters as well such men had to be honest and
un corruptible and learned in sacred texts. They formed Vedic Sabha for the administration of Justice.
The Brahmins were also considered equally law makers and interpreter and were responsible for the
administration of justice. They were seen as advisers of the King.
Parishads were other institutions for making and interpreting of Laws. Members of these parishads had
to be versed in Vedas. A Parishad would contain judges or assessors. They were given the power to bring
the king to right path of Justice. With the introduction of the pleaders a new dimension was added to
Law making and interpreting.
Judicial Institutions In India.
There is no clear reference to the existence of judicial institutions in Ancient India especially in the pre
Mauryan Period. Village elders mostly acted as Judges and gave out punishments according to the
nature of the offence and also local customs and institutions. In the Vedic period Criminal and Civil law
were not very clearly differentiated, Law was seen as both legal and Moral. In that sense the ancient
Indian Law was half legal and half moral. In that sense Ancient Indian Law was half legal and half moral.
There was very little judicial organization and procedure of Law in the Vedic period. Justice as a distinct
branch was still in making at this stage. In ancient Indian Administration, Justice was centralized it was
separate from the executive and generally in form and ever independent in spirit. The king was the
fountain head of Justice, he was his own executioner, the growing and the settled order of society made
impossible for the King to carry out all judicial function as a result the administration of justice was
devoured to Lower level and it was derogated to the hands of Legal expert, The kinga court was
reserved for appeals and serious crimes against the states. The rest of the litigation was entrusted to
other lower level courts. The various types of courts as mentioned in Ancient Indian scholar Vrihaspati
there were four types of courts.
1) A court established in a fixed place such as a town or Pratisheet.
2) The Circuit court or apratisheet
3) A court presided over by a judge who was authorized to use the royal shield called Mudrita.
4) A court presided over by the King Himself Sasita.
Other legal scholars of ancient India of Narad, known for Naradsmriti also enumerates a list of
courts that existed in his time, these were
1) Village Counsels
2) The Guild courts
3) The assembly
In the Sanchi Stone inscriptions of Chandragupta ll we come across the term Panchamandal, which
resembles the modern panchayats, the village court or Gram Panchayat was lowest union of Indian
Judiciary. This was based on the sovereignty of the people. The modernization of court with
different power of jurisdiction was distinct feature of Indian Judiciary. The magistrate’s bench was
given precedence over single judge. A story in Jataka tales speaks of a bench insisting of five
magistrates. Kautalya in his Arthashastra advises the king to establish court with bench of 3
magistrates for every 10 villages with higher courts in the District and provinces. Manu in His
Manusmriti suggests bench comprising chief justice or Pradvivaka and three other judges. The
constitution of a court described in Wrikshkoti consisted of chief judge, a wealthy merchant and a
kaistha. The Supreme Court was presided by the King and this was the highest court of appeal. The
existences of lower courts are first time mentioned in Mauryan Inscriptions.
The role Of Village Panchayats in Ancient India.
The village panchayats in ancient India were popular courts which were invested with judicial powers,
we find mention of village panchayats in ancient legal texts such as Arthashastra as well as Agnipurana,
the Agnipurana explains in detail the various functions of different heads of the panchayats, the
panchayats were highly integrated organisms. The main function of the panchayat goes down to settle
disputes in the villages even though these panchayats were non official and popular in character, they
carried the authority of the King, we find mention of panchayats as bodies that carried the royal
authority as mentioned in the Yagjnavalka Smritis . In all these legal texts the government is advised to
execute decrees because the state delegates these powers to the government. The Judicial procedures
of these courts were similar to the procedure of Royal courts with some necessary modifications. These
village panchayat courts were civil courts. There was no limit to their civil jurisdiction from but they did
not deal with criminal cases apart from cases like accidental homicide, suicide.
The Arthashastra gives a great deal power to the head of these panchayats, the Chola inscriptions give a
graphic account of the working of the village assemblies which were completely autonomous and
democratic in nature.
Note dictated on: 12/9/2011
Urban Centers and Guilds
Reasons for establishment of Urban Centers in India
Urban centers envisages a state of development in which there is compact conglomeration of inhabitant
within a delimited area with a central governing organism such a condition cannot be expected in rural
environment which has dispersed population over large area with a lenient administration and urban
centre can flourish only when there is agriculturally prosperous land, since economic activities depend
on the economic condition of the rural area. Commercial intercourse enabled the urban centers to
acquire vitality to accumulate wealth and to encourage basic operation
India In the 6th century BC had all these prerequisite for the emergence of towns ,it has been suggested
by historians that in 600BC India witnessed the second trend of urbanization the use of iron plough shed
and other things of iron played a crucial role in clearing the dense forest in the middle gigantic planes
and other northeastern areas of the subcontinent which made settlements in these areas possible ,the
new agricultural production led to the production of surplus on a scale never produced before, thus the
ground for establishment for the urban settlements.
Guilds paid a significant role in the promotion of trade, crafts and industries in ancient India. Some
people following diverse profession grouped themselves into organized bodies for the promotion of
their individual as well as collective interests , each groupings were called guilds, caste based
exploitation played a role in the formation of guilds and corporation that was vital for developed
economic activity , guilds were variously called sreni, kula, sangha and Jati. Several factors such as
freedom for industrial classes , localization of industries led to the formation of guilds. The head of the
guild was called Sristi.
The Role of Judges
The Hindu legal texts set very high standards for the judges. Judges had to be learned, religious, even
tempered and impartial. Kautalya in Arthashastra discusses in length the conduct of the judges and
prescribes punishment for direction of duty. Judges according to him may not threaten, send anybody
out of courtroom or take side or abuse the disputed. He has to ask what has to be asked in a court room
and may not make any in appropriate inquiries. A judge may not be responsible for any delay in
dispensing justice. Arthashastra takes a clear stand against award of unfair corporal punishment.
Falsification of evidence is prohibited. Judicial corruption is referred to bribery, which is prohibited.
Vishnusmriti prescribes punishment and forfeiture of all property of a judge who is found to have been
indulged in corruption so corruption was indeed present in ancient Indian Judiciary. The Hindu legal
texts and plays like Mrichakoti discuss the existence of Hindu rule of law. The Darashakumarcharita
refers to a pidge who takes a bribe. The trial of cases depended on the burden of proof both human and
divine. When human proof failed to offer viable solution recourse was taken to ordeal sanctioned by
religion that was barbaric and deeply superstitious. But these ordeals were not always applied and
remained in books as deterrent. Eminent constitutional scholars P.V. Brave says that Brahmins acted as
judicial advisors –but there is no certainty that they were seen as a class of proof pleaders. Thus the
conduct of judges and emphasis laid upon the need for evidence laid in Hindu legal system
demonstrates a developed and increasingly complex system that was indeed free and fair even if there
were tendencies towards corruption especially in Mauryan times. There indeed was a Hindu rule of law
in later Vedic period around 4th century B.C. that shows the development of sophisticated Hindu legal
mind which informs the Hindu law even in the modern age. The legal system of modern India is not only
derivative of English Common law, derives equally from the Hindu legal system and legal principles
stated in smritis , Dharmshastra and Dharmsutra.
THE END.
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