Hindu Law and Custom (Recht und Sitte) c4.2

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.