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Hindu Law and Custom (Recht und Sitte) c4: Foreword

Hindu Law and Custom (Recht und Sitte) c4

Language
English

Foreword

c4.1

The subjoined work is a translation of my German work on "Recht und Sitte" which was published in 1896 as the first part of the Encyclopaedia of Indo-Aryan Research of the late lamented Dr. G. Bühler whose researches have done so much towards clearing up the legal history of India and whose untimely death owing to a boat accident was universally felt as such a heavy loss to science. During the more than thirty years which have elapsed since the publication of "Recht und Sitte" the study of Sanskrit law has been progressing with rapid strides and it is a matter of regret that my advanced age and ill-health should have prevented me from thoroughly bringing my work up to date, before it was translated into English. It is hoped, however, that the learned notes added by the translator will to some extent supply this deficiency.

c4.2

Generally speaking, the most important recent discovery in the field of Ancient Hindu Law is that of the Arthaśāstra which though a text-book of Polity is replete with useful information on Law and Judicature as well. Many of its legal rules, it is true, agree literally with the law of the Smṛtis, but others differ widely from it or treat of subjects not found in the Smṛtis. What is more, the general tendency of the Arthaśāstra is directed towards Artha or gain as the name of the book implies, whereas the Dharmaśāstra lays down rules of Dharma, i. e. of dutiful and pious conduct, and ordains superiority of Dharma whenever it comes into conflict with Artha. This explains the fact that the law of evidence in the Dharmaśāstra includes the administration of ordeals as belonging to the religious side of law, whilst the Arthaśāstra omits ordeals but introduces judicial torture of various kinds instead. The antiquity of judicial torture in India is proved by its occurrence in the Daśakumāracarita and in the Mṛcchakaṭikā. Another characteristic feature of the law of evidence of the Arthaśāstra consists of the extensive employment of spies for finding out corruptible judges, perjured witnesses, forgers, wizards, poisoners, thieves and others. The Dharmaśāstra on the other hand tries to establish truth by addressing long admonitions to witnesses in a case and admits perjury to be expiated by a penance in cases where the life of a person is at stake. Religious law in general is passed over in the Arthaśāstra which confines its attention to worldly subjects. The punishments inflicted are chiefly fines and a special chapter is devoted to a number of rules regarding the conversion of diverse corporeal punishments into fines. It should not be overlooked that judicial fines were an important source of income for kings and judges. In the Family Law the strict religious standpoint of the Smṛtis, which does not allow the remarriage of widows, is not shared by the Arthaśāstra in which divorce is not forbidden. In all such questions the rules of this recently discovered book may be supposed to agree more closely with actual practice than the rules of the Dharmaśāstra. For a detailed analysis and examination of the Arthaśāstra I may be allowed to refer to my introduction to the Lahore edition (1923) of that work.

c4.3

Important additions to our knowledge of Dharmaśāstra literature has been supplied by the publication in India of such valuable texts as the Bālakrīḍā of Viśvarūpa, the earliest gloss on Yājñavalkya, Aparārka's commentary of the same work and Bālambhaṭṭa's (not Lakṣmīdevī's) commentary of the Mitākṣarā. The merits of Viśvarūpa and of some other early commentators have been well brought out by P. V. Kane in the recent paper on the predecessors of Vijñāneśvara. The same scholar has examined the Vedic basis of Hindu Law and is engaged on a history of Dharmaśāstra. The labours of Dr. Jha are chiefly directed towards the elucidation of the Code of Manu and its commentaries, Medhātithi's especially. The merit of having edited the Vyavahāramātṛkā of Jīmūtavāhana, the renowned author of the Dāyabhāga, belongs to Sir Ashutosh Mukherji. The Tagore Law lectures, Sacred Books of the Hindus, Madras Law Journal, Ānandāśrama texts and other periodical publications abound in valuable information regarding Sanskrit Law. Several new collections of Smrtis have been printed. The Smṛticandrikā and other old Nibandhas have been edited in the original Sanskrit or in translations. The collections of Smṛti fragments from quotations has been continued by Herberich for Vṛddha-Manu, by Scriba for Pitāmaha, by Kane for Śaṃkha-Likhita and by Bandyopadhyaya for Kātyāyana. Manuals such as Ghose's Principles of Hindu Law go deep into historical questions. Prof. G. Mazzarella of Catania in Italy has written a vast Italian work, six volumes of which have hitherto been published, on Indian Law (1906 foll.). In Germany quite recently Prof. Meyer has proposed a new chronology for the principal Smṛtis and Dr. Losch has tried to trace the Yājñavalkyasmṛti to its original form in the Purāṇas.

c4.4

The translator has spared no pains to make his translation as accurate as possible. He has also corrected a number of misprints and mistakes in the German text.

c4.5

Würzburg, July, 1928. J. JOLLY.

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