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Books > Hindu > Sanskrit > Dharmakosa: Vyavaharakanda-Vyavaharamatrka : A Comprehensive Source-Book on Living According to Dharma (Sanskrit Only in Three Volumes) - An Old and Rare Book
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Vol. 1


Introduction

A history of Hindu Society and of Hindu Civilization forms an important material for the study of sociology. The social history of Indian can claim the same importance in the sociological science as belongs to the social history of ancient nations like Sumer, Egypt, Assyria, Babylonia, Syria, China, Iran, Greece, Rome and Arabia or of modern countries like Germany, Spain, England, France and U.S.A. In some respects the history of Hindu society can claim an importance of an altogether special character. The reasons for this importance are as follows:

(1) Chronologically the Hindu society forms one of the most ancient societies in the world. In the opinions of the scholars of the West as well as of the East the history of Hindu society and of Hindu civilization is at least five thousand years old; and the Hindu civilization is one of the few great civilizations that have survived the ravages of time.

(2) Hindu society stands first amongst the ancient civilizations outside China in view of its population and its geographical extent and diversity.

(3) India would rank probably as the greatest meeting-place of conflicting civilizations of ancient and modern times. It has been a scene of the immigrations, of the invasions and of the fusion of various peoples belonging to known and unknown races of mankind, such as the Dravidians, Aryans, Nagas, S’akas, Hunas, Mahomedans and Europeans, and these diverse civilizations have made deep and lasting impressions on the sociology of this country.

(4) Three of the greatest world religions, viz. Brahmanism, Jainism and Buddhism had their rise and expansion here.

(5) It was here that the Varna and Caste system, with the predominant priestly caste of Brahmans at the head, a feature which is peculiar to India, started on its career and has enjoyed a stable existence extending over thousands of years. The Hindu society can very well claim to be distinguished from other societies by this institution.

(6) Hinduism, distinguished by the diversity of its methods of worship and of its faiths and well-known as a source of diverse philosophies, complimentary and antagonistic to each other, is another feature of this society.

(7) Like other ancient civilizations this civilization has also made great advances and original discoveries in Literature, Law, Logic, Metaphysics, Medicine, Astronomy, Mathematics and other positive sciences and in fine arts such as painting, sculpture, architecture.

Many scholars, in some rare cases from the East but mainly from the West, have in the past endeavoured to explore India’s past and Indian scholars are now putting forth their best efforts to write a comprehensive history of Hindu society at the different epochs and in its diverse aspects, after carefully sitting the extant materials for such a history. They have explored the antiquities of India and museums have been founded and an archaeological department maintained by Govt. to collect and protect them. Stone inscriptions, copper-plate grants and palm leaf Mss. Have been searched for and studied. Scholars have also investigated into the customs and manners, the religious belief, the dialects, the folk-lore and folk songs of the different tribes in different the provinces. Literary works of the earliest days reaching down to our own be days have been studied and published and splendid collections have been made of them in libraries. Well-ordered histories of the languages, of the religions, of the philosophies, of the customs and the castes as well as of the dynasties of the Indian kings have been written. Plenty of material has been thus made available for a study of India and it is being enriched from day to day. And yet Sanskrit religious literature is probably of the highest importance in all the material mentioned above for a history of Indian sociology. For the Hindu view of life includes in the sphere of religious ideology call endeavour and thought for the conservation and advancement of society and that is why the history of s Hinduism includes a substantial portion ka of the history of the social life of Hindus. The history of Hinduism in fact ought so to extend its sphere as to include a study A of the family rites and religious usages, K of the expiratory rites, of the sacrifices, pi of the festivities and modes of worship, h: of the fasts and the pilgrimages, of the religious faiths and of the gods, of meta- B physical speculations and the philosophies, of the rules governing the individual conduct towards the family, the caste or society, of ethics, law and politics e and of all social institutions of the e Hindus.

The religious literature of the Hindus affords all this material and the Dharmakosa is intended as a classified statement of this material, arranged according to general and special headings in chronological order and as an exposition of the l historical conclusions that may be gleaned from it. The quotations from Rgveda on each topic have been given the first place. For it stands as the oldest and most authoritative work in our religious literature and it is in the Rgveda that the most important nucleus for a social history of India is to be found. Then follow the Yajurveda-Samhitas in the following order: the Taittiriy a, the Kathaka, the Kapisthala, the Maitrayaniya and the Vajasaneyi. The Samhitas of the Samaveda and Atharvaveda follow next. Most of the verses of the Samaveda being identical with those of the Rgveda, the former may be regarded as belonging to the same period as the latter. Western scholars put the Yajurveda-Samhita, as anterior to the Atharvaveda-Samhita, but from the evidence it does not appear that they belong to different epochs, although from the point of view of cultural evolution the culture disclosed in the Atharva-Samhita appears to be less advanced and therefore earlier than that of the RV.-Samhita. After the Samhitas follow Brahamanas the Aranyakas and the Upanisadas in due order and then come the Nirukta, the Srautasutras and Grhyasutras and the Dharmasutras.

All this literature from the BV. to the Kalpasutras may safely be regarded as pre-Buddhistic. After this the next place has to be given to the two epics, the Manusmrti, a part of which is probably pre- Buddhistic and a part post-Buddhistic, and the other smrties. Quotations from Puranas, Agamas, Tantras and similar he kinds of literature have been accorded the next place, and then finally come- he extracts from the ancient commentations and the authors of treatises, dating from the seventh century onwards, like Asahaya, Vishwaroop, Megatithi and Vigyaneshwar followed by those from later commentaries and treatises that were composed up to the- end of the 18th century.

This ocean of literature conceals in its bosom valuable historical material which could throw a light on the history of Indian Sociology, which when arranged the with the proper perspective, would most dork truly reflect the social life, civilization and progress as well as the deterioration of the Hindu society; and this is why we have felt it necessary to explore it.

The original texts and the other extracts have been so digested in the Dharmakosa that readers might find an orderly sequence of cultural evolution in regard to each topic death with. The Dharmakosa with thus be making available material for the study of the following three subjects which are of the highest sociological value:

1. Hindu law and politics (One would find the ancient ideas and institutions and rules and regulations arranged here chronogically and with full details so as to facilitate a study how they developed).
2. Religion, ethics and philosophy (One would see here a detailed exposition and a historical survey of the general and specific topics in this connection);
3. Social institutions, (Here may be studied the family, the caste, education and marriage and property in relation to society and other such matters fully dealt with).

This material has been arranged according to six main divisions:

(1)law and political administration: (2) the duties of the castes and the As ramas; (3) the duties enjoined in Puranas and the denominational texts of various sects; (4) expiation and quiescence; (5) The discipline preparatory to final deliverance; and (6) the sacrificial rituals. These main divisions have been further cut up into subdivisions and these into subsidiary topics. Under each topic the texts have been chronologically arranged according to their order of provenance, e.g. the S’rutis, Sutras, the Mbh., the Ramayana, the Smritis, the Puranas, the sectarian writings the commentaries and the digests occur hundreds of quotations, culled out from Smrtis that are now lost; we have made collection of these quotations according to respective authors, and thus of the Smrti texts of Harita, Sankhalikhita, Brhaspati, Katyayana, Pitamaha, Vyasa, Prajapati, Yama, and of more than a dozen other authors, which are no longer extant; a complete list of quotations will be found in an appendix to this book. Scholars have before now restored two or three of the lost Smrtis, while the material we give can be utilized for the restoration of many more. A complete list of the Hindu law texts, printed otherwise, which we have used has been given in another appendix. The Bhasyas of Medhatithi and Asahaya, the Vayavaharakalpatru are full of mistakes which we have corrected. (See the Appendix on the Bhasyas of Medhatithi and Asahaya.).

We invite the attention of the readers to the general plan which we have adopted for this edition of the Vyavaharakanda as it gives them an idea of our methods of editing the rest of the Dharmakosa.

The Vyavaharakanda

The laws that regulate the life of a society, reflect faithfully the actual life led by it, and give as true an idea of it as might be acquired from personal observations, certainly a better one than what their religious and ethical notions can g iv e. It is therefore that the laws of society are regarded as n important means for ascertaining the exact nature of life that was lived by the society. Religion, ethics and philosophy, might give an insight into its ideology, but it is only a study of its laws that would enable us to understand the position of the individual, of the family, of the class and the race in that society. In the history of ancient law the greatest importee attaches itself to the code of Hammurabi, to the laws of Moses, to the Greek notions of justice, to the regulations of Manu and the other sages of India, and in a special measure to the Roman law, which appears to have had a most systematic growth and forms the basis of most of the modern codes of law in Europe. Law in ancient India has also evolved on independed lines, but the intervention of the Mahomedan and British rules has tampered with its natural growth during the last seven or eight hundred years. There was no doubt a voluminous commentary literature, but its free growth was at an end. In the days that preceded the Mahomedan invasion of India, it appears that Hindu legal literature had attained the fullest growth and the Vyavaharakanda of Dharmakosa gives all the available material for a study of this legal literature in its entirety.

The history of Hindu law ca be roughly divided into four main periods; (i) The period of religious domination, when religious usage, law and expiation of sin were all regarded as equally governed by religion. Let us take the instance of adultery as it figures in the Veda. It was the custom in ancient times to make the wife confess her adultery. The wife was asked to name her paramour and if she named him or if she did not name him, a prayer was made to Varuna to punish him. Marriage and divorce had been regarded until recently as matters falling under the purview of religion, but are now regarded as mere legal matters that are outside the scope of religion. Similarly all laws in ancient times regarding wrongs to property, or, to human life, or transgressions in sexual matters were of the nature of religious regulations; and all contracts were solemnized before the sacred fire; the alliance, for instance, between Ravana and Valin were so solemnized according to the Ramayana. The inclusion of solemn oath and ordeals in the legal administration would point out the continuance of religious domination in legal matters in the days of the Smrtis. The coronation of a king and the adoption of a son are even today held to be of a sacramental character. The Smrtis also mention religious rites in connection with excommunication and the emancipation of slaves. Dharmasutras like those of Apastamba mention expiatory rites as penalties for theft and adultery. Indeed, as long as the family priest of the king was his chief minister and the king the religious head, it was inevitable that law should be a part of religion.

(ii) The period of the growth of political institutions, when a distinction was made between rules conductive to benefit in the other world, and rules which regulated the secular conduct of man, or, other words, religion was now distinguished from law and politics. The Manusmrti assigns separate places to political administration and legal administration. The king’s priest was no longer his chief minister and only attended to religious matters as distinct from law and politics, which later on claimed an importance on the same footing as religion. The Mahabharata, the Manusmrti, the Arthasastra of Kautilya, the Sukraniti and the Kamasutra enumerate politics amongst the main disciplines. Religious ideas however dominated the legal ideas during this period. The insistence on the judge being a Brahman in the Smrtis shows the priestly influence in legal matters.

(iii) The period of complete deliverance of law and politics from religious ideas and religious domination, with the result that they had an unfettered growth. The historical evidence for it, is offered by the Arthasastra of Naradasmcti. In the first we have an indepenent place given to law in the chapter on legal administration; the Naradasmrti deals with the law alone. Visvarupa’s Commentary on the Vyavahara chapter from the Y.S. quotes often the sutras of Brhaspati. Which appear to deal only with law and political administration. That law and political administration, developed independently of religion. would appear to be further evidenced by the numerous references to older Arthasastra writers in the Mbh. and the Kautiliya Arthasastra and to the references in the Yajnavalkya-Smrti and the Narada-Smrti to a possible opposition between the Dharmasastra and the Arthasastra.

(iv) The period of restrictions imposed on the unfettered growth of law and political administration in the days of the Yajnavalkya-smrti. The Yajnavalkya- smrti boasts of having established the authority of the legal texts in the Dharmasastra and deprived the Arthasastra of any independent authority in legal matters; As a consequence the growth of the legal institutions was arrested and jurists had only one work left for them, namely, to write commentaries on the old texts and to prepare digests. The result was a tremendous accumulation of commentaries and digests.

The ancient Indian literature discloses several views on the genesis of the legal institutes: (i) The king and the law, according to one, are both of them created by the people. The Mbh, and the Kautiliya-Arthasastra state that popular usage is one of the sources of Dharma, i. e. law, and the king also is made by the people. The same view has been expounded by Medhatithi in his Bhasya on Manusmrti and by Vijnanesvara in his Mitaksara. The Mbh. maintains that the Dharma as enjoined in the Veda and the Smrti is of popular origin and the Smrti also repeatedly enjoin that the litigation amongst people of special localities and tribes and amongst members of families, guilds and corporations and amongst agriculturists, shepherds and artisans should be decided only after taking into account their specific regulations as explained by experts. (ii) The Mbh. gives expression to a view that The law, i. e. Danda, proceeds both from the sovereign and the Veda. The Smrtis regard government conducive to public welfare an important principle of legislation. The Vedic literature which is extant today contains a few indications of the legal institutions then in existence.

The term Danda in the Mahabharata was probably intended to include the positive and negative injunctions in the Veda. The authors of the Smrtis have admitted the twofold authority of kings, namely to decide upon legal proceedings and to amend the laws, and the Danda was understood to proceed from kings in both these senses. Lt has been presupposed, however. That the king’s authority to enact new laws was limited in scope and could be exercised only in exceptional cases, (iii) The third view is, that of the divine origin of laws; The Mahabharata, the Kama sutra and other works mention God as the author of a group of texts which were calculated to regulate the fourfold ends of human existence, law and politics, being included among them. (iv) The fourth view attributes the origin of the law to the sages ‘This concentration of wisdom’, says the Mahabharata ‘is the honey gathered by the sages. The Vedas, the Smrtis and the Puranas and other such works having been promulgated, by the sages, this theory of the sages being the promulgators of law, can be regarded as only reasonable. The authors of the Sastras have based these four views about the origin of laws, from the people, from the sages, from the Vedas, and from the kings, on observed facts; Their religious ideas are responsible for the view of the Divine origin of laws.

We have here placed before our readers the law as it was promulgated by the sages and expounded by the learned. We contemplate to give to our readers, bebore long in a separate publication, a detailed and complete exposition of the growth of the ancient Indian law, and of jurisdical principles that can be distinguished from it. Many Indian and outside scholars such as Weber, Buhler, Jolly, Meyer, Mazzarella from the West and V.N. Mandlik, MM. Gangnath Jha, Prof. P.V. Kane, Prin. J.R. Gharpure, and Jogeshchandra Ghose from India have produced work showing the most laudable industry and acumen. Our only hope is that ours may be a contribution to the subject deserving a place alongside theirs.

 


Vol. II





Vol.III




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Dharmakosa: Vyavaharakanda-Vyavaharamatrka : A Comprehensive Source-Book on Living According to Dharma (Sanskrit Only in Three Volumes) - An Old and Rare Book

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Vol. 1


Introduction

A history of Hindu Society and of Hindu Civilization forms an important material for the study of sociology. The social history of Indian can claim the same importance in the sociological science as belongs to the social history of ancient nations like Sumer, Egypt, Assyria, Babylonia, Syria, China, Iran, Greece, Rome and Arabia or of modern countries like Germany, Spain, England, France and U.S.A. In some respects the history of Hindu society can claim an importance of an altogether special character. The reasons for this importance are as follows:

(1) Chronologically the Hindu society forms one of the most ancient societies in the world. In the opinions of the scholars of the West as well as of the East the history of Hindu society and of Hindu civilization is at least five thousand years old; and the Hindu civilization is one of the few great civilizations that have survived the ravages of time.

(2) Hindu society stands first amongst the ancient civilizations outside China in view of its population and its geographical extent and diversity.

(3) India would rank probably as the greatest meeting-place of conflicting civilizations of ancient and modern times. It has been a scene of the immigrations, of the invasions and of the fusion of various peoples belonging to known and unknown races of mankind, such as the Dravidians, Aryans, Nagas, S’akas, Hunas, Mahomedans and Europeans, and these diverse civilizations have made deep and lasting impressions on the sociology of this country.

(4) Three of the greatest world religions, viz. Brahmanism, Jainism and Buddhism had their rise and expansion here.

(5) It was here that the Varna and Caste system, with the predominant priestly caste of Brahmans at the head, a feature which is peculiar to India, started on its career and has enjoyed a stable existence extending over thousands of years. The Hindu society can very well claim to be distinguished from other societies by this institution.

(6) Hinduism, distinguished by the diversity of its methods of worship and of its faiths and well-known as a source of diverse philosophies, complimentary and antagonistic to each other, is another feature of this society.

(7) Like other ancient civilizations this civilization has also made great advances and original discoveries in Literature, Law, Logic, Metaphysics, Medicine, Astronomy, Mathematics and other positive sciences and in fine arts such as painting, sculpture, architecture.

Many scholars, in some rare cases from the East but mainly from the West, have in the past endeavoured to explore India’s past and Indian scholars are now putting forth their best efforts to write a comprehensive history of Hindu society at the different epochs and in its diverse aspects, after carefully sitting the extant materials for such a history. They have explored the antiquities of India and museums have been founded and an archaeological department maintained by Govt. to collect and protect them. Stone inscriptions, copper-plate grants and palm leaf Mss. Have been searched for and studied. Scholars have also investigated into the customs and manners, the religious belief, the dialects, the folk-lore and folk songs of the different tribes in different the provinces. Literary works of the earliest days reaching down to our own be days have been studied and published and splendid collections have been made of them in libraries. Well-ordered histories of the languages, of the religions, of the philosophies, of the customs and the castes as well as of the dynasties of the Indian kings have been written. Plenty of material has been thus made available for a study of India and it is being enriched from day to day. And yet Sanskrit religious literature is probably of the highest importance in all the material mentioned above for a history of Indian sociology. For the Hindu view of life includes in the sphere of religious ideology call endeavour and thought for the conservation and advancement of society and that is why the history of s Hinduism includes a substantial portion ka of the history of the social life of Hindus. The history of Hinduism in fact ought so to extend its sphere as to include a study A of the family rites and religious usages, K of the expiratory rites, of the sacrifices, pi of the festivities and modes of worship, h: of the fasts and the pilgrimages, of the religious faiths and of the gods, of meta- B physical speculations and the philosophies, of the rules governing the individual conduct towards the family, the caste or society, of ethics, law and politics e and of all social institutions of the e Hindus.

The religious literature of the Hindus affords all this material and the Dharmakosa is intended as a classified statement of this material, arranged according to general and special headings in chronological order and as an exposition of the l historical conclusions that may be gleaned from it. The quotations from Rgveda on each topic have been given the first place. For it stands as the oldest and most authoritative work in our religious literature and it is in the Rgveda that the most important nucleus for a social history of India is to be found. Then follow the Yajurveda-Samhitas in the following order: the Taittiriy a, the Kathaka, the Kapisthala, the Maitrayaniya and the Vajasaneyi. The Samhitas of the Samaveda and Atharvaveda follow next. Most of the verses of the Samaveda being identical with those of the Rgveda, the former may be regarded as belonging to the same period as the latter. Western scholars put the Yajurveda-Samhita, as anterior to the Atharvaveda-Samhita, but from the evidence it does not appear that they belong to different epochs, although from the point of view of cultural evolution the culture disclosed in the Atharva-Samhita appears to be less advanced and therefore earlier than that of the RV.-Samhita. After the Samhitas follow Brahamanas the Aranyakas and the Upanisadas in due order and then come the Nirukta, the Srautasutras and Grhyasutras and the Dharmasutras.

All this literature from the BV. to the Kalpasutras may safely be regarded as pre-Buddhistic. After this the next place has to be given to the two epics, the Manusmrti, a part of which is probably pre- Buddhistic and a part post-Buddhistic, and the other smrties. Quotations from Puranas, Agamas, Tantras and similar he kinds of literature have been accorded the next place, and then finally come- he extracts from the ancient commentations and the authors of treatises, dating from the seventh century onwards, like Asahaya, Vishwaroop, Megatithi and Vigyaneshwar followed by those from later commentaries and treatises that were composed up to the- end of the 18th century.

This ocean of literature conceals in its bosom valuable historical material which could throw a light on the history of Indian Sociology, which when arranged the with the proper perspective, would most dork truly reflect the social life, civilization and progress as well as the deterioration of the Hindu society; and this is why we have felt it necessary to explore it.

The original texts and the other extracts have been so digested in the Dharmakosa that readers might find an orderly sequence of cultural evolution in regard to each topic death with. The Dharmakosa with thus be making available material for the study of the following three subjects which are of the highest sociological value:

1. Hindu law and politics (One would find the ancient ideas and institutions and rules and regulations arranged here chronogically and with full details so as to facilitate a study how they developed).
2. Religion, ethics and philosophy (One would see here a detailed exposition and a historical survey of the general and specific topics in this connection);
3. Social institutions, (Here may be studied the family, the caste, education and marriage and property in relation to society and other such matters fully dealt with).

This material has been arranged according to six main divisions:

(1)law and political administration: (2) the duties of the castes and the As ramas; (3) the duties enjoined in Puranas and the denominational texts of various sects; (4) expiation and quiescence; (5) The discipline preparatory to final deliverance; and (6) the sacrificial rituals. These main divisions have been further cut up into subdivisions and these into subsidiary topics. Under each topic the texts have been chronologically arranged according to their order of provenance, e.g. the S’rutis, Sutras, the Mbh., the Ramayana, the Smritis, the Puranas, the sectarian writings the commentaries and the digests occur hundreds of quotations, culled out from Smrtis that are now lost; we have made collection of these quotations according to respective authors, and thus of the Smrti texts of Harita, Sankhalikhita, Brhaspati, Katyayana, Pitamaha, Vyasa, Prajapati, Yama, and of more than a dozen other authors, which are no longer extant; a complete list of quotations will be found in an appendix to this book. Scholars have before now restored two or three of the lost Smrtis, while the material we give can be utilized for the restoration of many more. A complete list of the Hindu law texts, printed otherwise, which we have used has been given in another appendix. The Bhasyas of Medhatithi and Asahaya, the Vayavaharakalpatru are full of mistakes which we have corrected. (See the Appendix on the Bhasyas of Medhatithi and Asahaya.).

We invite the attention of the readers to the general plan which we have adopted for this edition of the Vyavaharakanda as it gives them an idea of our methods of editing the rest of the Dharmakosa.

The Vyavaharakanda

The laws that regulate the life of a society, reflect faithfully the actual life led by it, and give as true an idea of it as might be acquired from personal observations, certainly a better one than what their religious and ethical notions can g iv e. It is therefore that the laws of society are regarded as n important means for ascertaining the exact nature of life that was lived by the society. Religion, ethics and philosophy, might give an insight into its ideology, but it is only a study of its laws that would enable us to understand the position of the individual, of the family, of the class and the race in that society. In the history of ancient law the greatest importee attaches itself to the code of Hammurabi, to the laws of Moses, to the Greek notions of justice, to the regulations of Manu and the other sages of India, and in a special measure to the Roman law, which appears to have had a most systematic growth and forms the basis of most of the modern codes of law in Europe. Law in ancient India has also evolved on independed lines, but the intervention of the Mahomedan and British rules has tampered with its natural growth during the last seven or eight hundred years. There was no doubt a voluminous commentary literature, but its free growth was at an end. In the days that preceded the Mahomedan invasion of India, it appears that Hindu legal literature had attained the fullest growth and the Vyavaharakanda of Dharmakosa gives all the available material for a study of this legal literature in its entirety.

The history of Hindu law ca be roughly divided into four main periods; (i) The period of religious domination, when religious usage, law and expiation of sin were all regarded as equally governed by religion. Let us take the instance of adultery as it figures in the Veda. It was the custom in ancient times to make the wife confess her adultery. The wife was asked to name her paramour and if she named him or if she did not name him, a prayer was made to Varuna to punish him. Marriage and divorce had been regarded until recently as matters falling under the purview of religion, but are now regarded as mere legal matters that are outside the scope of religion. Similarly all laws in ancient times regarding wrongs to property, or, to human life, or transgressions in sexual matters were of the nature of religious regulations; and all contracts were solemnized before the sacred fire; the alliance, for instance, between Ravana and Valin were so solemnized according to the Ramayana. The inclusion of solemn oath and ordeals in the legal administration would point out the continuance of religious domination in legal matters in the days of the Smrtis. The coronation of a king and the adoption of a son are even today held to be of a sacramental character. The Smrtis also mention religious rites in connection with excommunication and the emancipation of slaves. Dharmasutras like those of Apastamba mention expiatory rites as penalties for theft and adultery. Indeed, as long as the family priest of the king was his chief minister and the king the religious head, it was inevitable that law should be a part of religion.

(ii) The period of the growth of political institutions, when a distinction was made between rules conductive to benefit in the other world, and rules which regulated the secular conduct of man, or, other words, religion was now distinguished from law and politics. The Manusmrti assigns separate places to political administration and legal administration. The king’s priest was no longer his chief minister and only attended to religious matters as distinct from law and politics, which later on claimed an importance on the same footing as religion. The Mahabharata, the Manusmrti, the Arthasastra of Kautilya, the Sukraniti and the Kamasutra enumerate politics amongst the main disciplines. Religious ideas however dominated the legal ideas during this period. The insistence on the judge being a Brahman in the Smrtis shows the priestly influence in legal matters.

(iii) The period of complete deliverance of law and politics from religious ideas and religious domination, with the result that they had an unfettered growth. The historical evidence for it, is offered by the Arthasastra of Naradasmcti. In the first we have an indepenent place given to law in the chapter on legal administration; the Naradasmrti deals with the law alone. Visvarupa’s Commentary on the Vyavahara chapter from the Y.S. quotes often the sutras of Brhaspati. Which appear to deal only with law and political administration. That law and political administration, developed independently of religion. would appear to be further evidenced by the numerous references to older Arthasastra writers in the Mbh. and the Kautiliya Arthasastra and to the references in the Yajnavalkya-Smrti and the Narada-Smrti to a possible opposition between the Dharmasastra and the Arthasastra.

(iv) The period of restrictions imposed on the unfettered growth of law and political administration in the days of the Yajnavalkya-smrti. The Yajnavalkya- smrti boasts of having established the authority of the legal texts in the Dharmasastra and deprived the Arthasastra of any independent authority in legal matters; As a consequence the growth of the legal institutions was arrested and jurists had only one work left for them, namely, to write commentaries on the old texts and to prepare digests. The result was a tremendous accumulation of commentaries and digests.

The ancient Indian literature discloses several views on the genesis of the legal institutes: (i) The king and the law, according to one, are both of them created by the people. The Mbh, and the Kautiliya-Arthasastra state that popular usage is one of the sources of Dharma, i. e. law, and the king also is made by the people. The same view has been expounded by Medhatithi in his Bhasya on Manusmrti and by Vijnanesvara in his Mitaksara. The Mbh. maintains that the Dharma as enjoined in the Veda and the Smrti is of popular origin and the Smrti also repeatedly enjoin that the litigation amongst people of special localities and tribes and amongst members of families, guilds and corporations and amongst agriculturists, shepherds and artisans should be decided only after taking into account their specific regulations as explained by experts. (ii) The Mbh. gives expression to a view that The law, i. e. Danda, proceeds both from the sovereign and the Veda. The Smrtis regard government conducive to public welfare an important principle of legislation. The Vedic literature which is extant today contains a few indications of the legal institutions then in existence.

The term Danda in the Mahabharata was probably intended to include the positive and negative injunctions in the Veda. The authors of the Smrtis have admitted the twofold authority of kings, namely to decide upon legal proceedings and to amend the laws, and the Danda was understood to proceed from kings in both these senses. Lt has been presupposed, however. That the king’s authority to enact new laws was limited in scope and could be exercised only in exceptional cases, (iii) The third view is, that of the divine origin of laws; The Mahabharata, the Kama sutra and other works mention God as the author of a group of texts which were calculated to regulate the fourfold ends of human existence, law and politics, being included among them. (iv) The fourth view attributes the origin of the law to the sages ‘This concentration of wisdom’, says the Mahabharata ‘is the honey gathered by the sages. The Vedas, the Smrtis and the Puranas and other such works having been promulgated, by the sages, this theory of the sages being the promulgators of law, can be regarded as only reasonable. The authors of the Sastras have based these four views about the origin of laws, from the people, from the sages, from the Vedas, and from the kings, on observed facts; Their religious ideas are responsible for the view of the Divine origin of laws.

We have here placed before our readers the law as it was promulgated by the sages and expounded by the learned. We contemplate to give to our readers, bebore long in a separate publication, a detailed and complete exposition of the growth of the ancient Indian law, and of jurisdical principles that can be distinguished from it. Many Indian and outside scholars such as Weber, Buhler, Jolly, Meyer, Mazzarella from the West and V.N. Mandlik, MM. Gangnath Jha, Prof. P.V. Kane, Prin. J.R. Gharpure, and Jogeshchandra Ghose from India have produced work showing the most laudable industry and acumen. Our only hope is that ours may be a contribution to the subject deserving a place alongside theirs.

 


Vol. II





Vol.III




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