A Dharma Reader - Classical Indian Law

Whether defined by family, lineage, caste, professional or religious association, village, or region, India's diverse groups did settle on a concept of law in classical times. How did they reach this consensus? Was it based on religious grounds or a transcendent source of knowledge? Did it depend on time and place? And what apparatus did communities develop to ensure justice was done, verdicts were fair, and the guilty were punished? Addressing these questions and more, A Dharma Reader traces the definition, epistemology, procedure, and process of Indian law from the third century B.C.E. to the middle ages. Its breadth captures the centuries-long struggle by Indian thinkers to theorize law in a multiethnic and pluralist society. The volume includes new and accessible translations of key texts, notes that explain the significance and chronology of selections, and a comprehensive introduction that summarizes the development of various disciplines in intellectual-historical terms. It reconstructs the principal disputes of a given discipline, which not only clarifies the arguments but also relays the dynamism of the fight. For those seeking a richer understanding of the political and intellectual origins of a major twenty-first-century power, along with unique insight into the legal interactions among its many groups, this book offers exceptional detail. historical precision, and expository illumination.

PATRICK OLlVELLE is professor emeritus of Sanskrit and Indian religions at the University of Texas at Austin. He is the author and editor of a number of books, including King, Governance, and Law in Ancient India (2013); Visnu's Code of Law: A Critical Edition and Translation of the Vaisnava Dharmasastra (2009); Dharma: Studies in Its Semantic, Cultural, and Religious History (2009); Manu's Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra (2005); and Dharmasatras: The Law Codes of Ancient India (1999).

This series Historical Sourcebooks in Classical Indian Thought is the brainchild of Sheldon Pollock. These are sourcebooks like no other, because, unlike the common sourcebooks that attempt to give the flavor of a particular textual or religious tradition by citing text fragments, these aim at telling the story of the intellectual and theoretical engagement of classical Indian scholars with issues and problems within a particular system of knowledge, as well as their interaction and debates with each other. At the outset, therefore, I want to thank Shelly for inviting me to participate in this exciting project. I have learned so much from looking at the long textual history of the science of dharma (dharmasastra) spanning over a millennium and a half with simply one question in mind. Rarely does one get the opportunity to scan this entire landscape with a focused lens, in my case focused on the epistemology of law and legal procedure.

Over the past six years or so during which I have been engaged in this project at varying degrees of intensity, there have been many friends and colleagues who have shared their knowledge and expertise. These include, but are not limited to, Ashok Aklujkar, Joel Brereton, George Cardona, Madhav Deshpande, Oliver Freiberger, Dominic Goodall, Ludo Rocher, and Albrecht Wezler. I want to thank in a special way Don Davis and Dominik Wujastyk for reading through my entire manuscript and providing valuable feedback. Leslie Kriesel of Columbia University Press copy-edited my manuscript with a sharp eye, catching every infelicitous phrase or idiom. She is the best editor I have had, and I want to thank her for her diligence. The University of Texas provided a publication subsidy for this volume. To them all, a heartfelt "Thank you!"

At a personal level, I want to thank my wife, Suman, who has always been a partner in my various publication projects, and to the growing family of my daughter, Meera, and her husband, Mark, and, of course, in a special way, to my grandchildren, Keya, Maya, and Max.

Linguistic and cultural translations are always fraught with misunderstandings and misinterpretations; much is lost in translation. The .two terms at the heart of this exploration of classical Indian thought-law and dharma-make translation even more difficult. The English word "law" is a term about whose definition, extent, and application much has been written with little agreement. Its translation into an appropriate Sanskrit term therefore becomes doubly complicated. The Sanskrit word dharma has perhaps the most extensive semantic range of any term in the Sanskrit vocabulary; its very centrality within Indian culture, religion, and philosophy prompted thinkers to take it in a myriad different directions. Most modern scholars of ancient India confess to its untranslatability. Yet, large areas of its semantic compass, especially those relating to rules of morality, ritual, religious life, civil and criminal law, and norms of social interaction, intersect with what is commonly understood as law in contemporary societies and academic discourse.

This sourcebook does not simply survey the ways Indian thinkers have grappled with issues relating to dharma in its multiple meanings during a period of over a millennium and a half; it is not a semantic and cultural history of that term.' Neither does it seek to present the history of law, taken in its narrow sense of criminal and civil law or in its broad sense of rules governing social, ethical, and religious behaviour, in India." It is rather an exploration of the ways Indian thinkers down the centuries have wrestled with fundamental issues pertaining to law in a geographically vast, multiethnic and pluralistic society with multiple polities and a multiplicity of customs, rules, norms, and laws that governed the lives of individuals as parts of larger groups-be they family, lineage, caste, professional or religious association, village, or region-and the lives of these groups as they interacted with each other in the wider society.

First, what terms did they use to identify these norms of varying degrees of authority, range, and power operating at different levels of society? Did they arrive at an abstract concept of "law" beneath and beyond the specific manifestations in particular rules of limited scope? How did they theorize law? second, how did they resolve the inevitable conflicts between different kinds of rules? What rule should one follow, for example, when a village law is in conflict with a caste rule, or a norm of morality with a commercial contract? Third, and most centrally, what is the epistemology of these various rules and laws? How do we come to recognize law? And how do we know whether any given source of law is legitimate? Are laws simply learned from observation and custom or are they codified in written texts? If they are so codified, what is their relationship to unwritten but equally authoritative laws handed down by tradition? Are all the sources of law ultimately religious-that is, founded on a transcendent and supra historical source of knowledge? Or are they contingent, dependent on time and place? Finally, how do people resolve disputes and deal with those who violate accepted and established laws? What are the judicial apparatus and procedures that permit communities to ensure that justice is done, that verdicts are fair, and that the guilty are appropriately punished?

H. L. A. Hart's? magisterial, controversial, and justly famous book on jurisprudence and philosophy of law, The Concept of Law, proposes a significant and basic classification of law into primary and secondary rules. Primary rules are the norms that govern individual and group activities, of the "Thou shalt not steal" variety. This is easy to understand, and it is to this variety that most people apply the term "law." More significant for the philosophy of law, however, is Hart's concept of secondary rules, which encompass rules of recognition, change, and adjudication. The theory of secondary rules, especially the rule of recognition, has been subject to criticism. This is not the place to enter into that debate, but I think the basic premise underlying Hart's theory is not only sound but, as Shapiro (2009: 1) has shown, incontrovertible:

For as Hart painstakingly showed, we cannot account for the way in which we talk and think about law-that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on-without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication.

The secondary rules, as Hart (2012: 94) puts it, are all about primary rules:
While primary rules are concerned with the actions that individuals must or must not do, these secondary rules are concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.

The rules of recognition, simply put, provide both ordinary citizens and state officials, especially judges, the criteria for identifying what is a valid law and what is not. Rules of change identify the legitimate ways existing laws can be modified and annulled and new laws can be enacted. Rules of adjudication provide criteria for determining whether a primary rule has been violated, identify individuals who are competent to adjudicate, confer judicial powers on them, and provide legal procedures to be followed in adjudicating cases in a court of law.

This source book is limited to the Hartian "secondary rules." The first part focuses on the rules of recognition, that is, the epistemology of law/dharma. How does an individual recognize a valid law/dharma, or identify and repudiate an invalid one? In modern nation-states with legislatures empowered to enact laws and with official records that catalogue those laws, the rules of recognition may not be too complicated. For his native England, Hart gives the pithy rule: "The queen in parliament" as the criterion for a valid law. For traditional India, where law as dharma is often viewed as not humanly created but founded on a transcendent source, and various kinds of law pertaining to different regions, villages, and corporate, religious, and ancestral groups are recognized, the rules of recognition become enormously complex and convoluted. In modern nation-states, rules of change also are clearer, because the legislature has the power not only to enact new laws but also to change or abrogate existing laws. For traditional India, where no law-making body such as a legislative branch of government is recognized, the legal and theoretical issues are more complex. If law is based on a transcendent and suprahistorical source, such as the Veda, then how can it account for the multiplicity and variety of laws observed on the ground? And how can one enact new laws or change or abrogate existing ones? Whatever the theoretical and theological problems, laws have to and do change. We will explore the strategies the legal philosophers employed to understand and explain the variety of observed laws and to account for and facilitate change in laws.

The second part of this source book deals with what Hart calls "the rules of adjudication." In modern nation-states, laws setting up the judiciary and conferring power on judges are enacted by legislatures or constitutions. In traditional India, along with executive power, judicial power was, for the most part, also concentrated in the person of the king. Given the complexity of administering law in a relatively large territory, de facto adjudication of lawsuits was carried out by a professional judiciary with an established court system. The rules that governed the system were not viewed as dependent on the will or caprice of the king. Rather, they were also considered to be universally applicable across kingdoms and territories. How then are we to account for these rules? What is their epistemology?

These then are the questions, and the ways the legal scholars of ancient India grappled with them, that will occupy this sourcebook. Law and dharma will be put into dialogue, not because dharma is law as such, but because for much of the period under discussion it was under the category of dharma that, for the most part, discussions of issues pertaining to law took place. In other words, the modern category of law gives us the theoretical tools to ask the right questions and theorize the Indian intellectuallabors on these issues, while dharma provides the major, although not the only, indigenous category within which those labors were carried out.

LAW AND THE TRADITION OF POLITICAL SCIENCE

The use of the term dharma for law, nevertheless, was neither universal nor inevitable. This is borne out by the first century C.E. author Kautilya's compendium Treatise on Politics (Arthasastra). The significance of Kautilya's work for the history of law in India rests primarily on the fact that it provides a different and in many respects unique lens into that history. His treatise belongs to a distinct scholarly tradition with social and political priorities different from those represented by the science of dharma (dharmasastra), the primary discipline devoted to jurisprudential reflection within the Brahmanical scholastic tradition. Kautilya makes no attempt to reduce the variety of laws within society into the single category of dharma. Indeed, we do not find a single comprehensive term within the Treatise on Politics to refer to law as such, or even to the broad areas of religious and secular norms covered by the term dharma within the discourse of the science of dharma. What is clear, however, is that Kautilya, both formally and in obiter dicta, argues for the plurality of law; law is not one but multiple. Although his text is later than the earliest documents of the science of dharma, it nevertheless taps into an alternate intellectual history that probably ran parallel to the one represented by the science of dharma. The Treatise on Politics was a product of an expert tradition based within royal chanceries and dealing with political science, theory of governance, and jurisprudence. Although much of this intellectuallabor was carried out by Brahmans working as counsellors, ministers, and government officials, their outlook and priorities were significantly different from those of their colleagues working within the confines of Vedic institutions of learning-the kind of Brahman intellectual that produced the texts of the science of dharma.

Contents

	Preface	ix
	List of Abbreviations	xi
	Introduction	1
	Part I: Nature and Epistemology of Law	49
Chapter One	Early Thinkers	51
	1. Apastamba (Late Third Century B.C.E.)	51
	2. Patanjali (Mid-Second Century B.C.E.)	55
Chapter Two	Later Aphoristic Text on Dharma	59
	1. Gautam (Late Second Century B.C.E.)	59
	2. Baudhayana (Early First Century B.C.E.)	61
	3. Vasistha (Late First Century B.C.E.)	65
Chapter Three	Perspectives from Political Science: Kautilya (First -Second Century C.E.)	69
Chapter Four	Innovations of Manu (Mid-Second Century C.E.)	73
Chapter Five	Developments After Manu	81
	1. Yajnavalkya (Fourth-fifth Century C.E)	82
	2. Vishnu (Seventh Century C.E)	84
	3. Parasara (seventh -Eighth Century C.E)	85
Chapter Six	The School of Vedic Exegesis
	1. Sabra (Fifth Century C.E.)	89
Chapter Seven	Early Commentators
	1. Bharuci (Seventh Century C.E)	107
	2.Visvarupa (Early Ninty Century C.E)	108
	3. Methatithi (Second Half of the Ninth Century C.E)	121
Chapter Eight	Medieval Commentators and Systematizers
	1. Commentators of Manu	142
	Govindaraja (Eleventh-Twelth Century C.E) Nandana	142
	Kulluka (Fourteenty Century C.E)	143
	2. Commentators of Yajnavalkya	145
	Vijnanesvara (fl. 1100-1125 C.E)	145
	Apararka (First Half of the Twelth Century C.E)	145
	3. Legal Digests: Nibandhas	161
	Devanna Bhatta (Circa 1200 C.E.)	161
	Part II: Courts of Law and Legal Procedure	179
Chapter Nine	The Beginnings	181
	1.Apastamba (Late Third Century B.C.E.)	181
	2.Gautama	182
	3. Baudhayana (Early First Century B.C.E.)	185
	4.Vasistha (Late First Century B.C.E.)	186
Chapter Ten	The Early Theorists	189
	1. Kautilya	189
	2. Manu	199
Chapter Eleven	The Mature Phase	209
	1. Yajnavalkya (Fourth-fifth Century C.E)	209
	2.Barada (Fifth-Sixth Century C.E.)	218
Chapter Twelve	Early Commentators	233
	1. Bharuci	233
	2. Medhatithi	235
Chapter Thirteen	Medieval Commentators and Systematizers
	1. Vijnanesvara	242
	2. Devenna Bhatta	269
	Notes	335
	Glossary	389
	Bibliography	395
	Index	405