Theory of Government in Ancient India (Post-Vedic) c9.2

Language: English

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The Dharma Sûtras. Both Manu and Kauṭalya are, in their present shape, posterior to the commencement of the Christian era, but they are the best representatives extant of the two dominant types of political thought which had arisen several centuries before. Both have preserved strata of earlier thought. The science of Dharma and the science of Artha had a good deal in common and, in strict theory, supplemented each other and formed a full series with the sciences of Kâma (desire and enjoyment) and Mokṣa (salvation). Thus was exhausted the fourfold object of human existence. But each of the sciences branched off from the parent stem and expanded in its own manner. Dharma and Artha often come together and, for instance, coalesce into a single system in the Mahâbhârata. But for a long while each retained its identity. The earliest literature of either was in Sûtra or aphoristic form, the very acme of brevity. The evidence of literature leaves no doubt that there existed once a Mânavadharma Sûtra, but it is lost. Perhaps, it was wholly incorporated in the Smṛiti of Manu. The Dharma Sûtras which have survived are, in theory, related to Śrauta Sûtras and Gṛihya Sûtras of the respective schools. In ancient India all learning was cultivated in schools and the results arrived at were given, generally, the stamp of schools which, in their turn, were attached to various Vedic sects. Such schools arose all over the country at different ages and differed from one another in details.

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The Dharma Sûtras of Gautama, Baudhâyana, Āpastamba and Vasiṣṭha are not identical in every precept. A Kalpa Sûtra should include Śrauta, Gṛihya and Dharma Sûtras, but soon they all become independent. Their fundamental object, however, was the same—the regulation of human life. The Śrauta Sûtras lay down the intricate details of Vedic sacrifices and ceremonies on the authority of the Brâhmaṇas. They are merely systems of Vedic ritual, but they were of the highest importance to the true Ārya. The Gṛihya Sûtras cover the whole field of home life and treat exhaustively of the ritual which played an important part in it. Their scope, however, seldom extends beyond the household and they are of little use to the student of Governmental theory. The Dharma Sûtras treat of private and associated life together. They mention domestic ritual and stress its importance, but they pass on quickly to speak of social custom, law and government. Sûtras in general, fall between the seventh and second centuries before Christ but the dates of the Dharma Sûtras cannot be precisely determined. Bühler placed them between the sixth and third centuries B.C. and arrived at a chronological order—Gautama, Baudhāyana, Vasiṣṭha and Āpastamba. Jolly assigns the sixth or fifth century B.C. to Gautama and Baudhāyana and the fifth or fourth century to Vasiṣṭha and Āpastamba.

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Jayaswal would ascribe the first forms of the Sûtras to about 500 B.C., but in their present form he would place Gautama at 350 B.C., Baudhāyana at 240 B.C., and Vasiṣṭha at 100 B.C. Hopkins thinks that “probably the Gṛihyas represent the earlier Sûtras; the Dharmas as a whole come later, perhaps 300 B.C. would represent the earliest.” Āpastamba, he concludes, “probably is not older than the second century B.C.” Hopkins regards Vasiṣṭha as even later. Not even the lowest date is, however, always a safe guide in discussing the subject-matter of Sûtras. Their texts have been constantly tampered with. It appears that attempts were made to bring them into line with the later Dharma Śāstras. The oldest of all Dharma Sūtras, those of Gautama, are even known as a Dharma Śāstra. If the canon of historical criticism be rigidly applied, all that is possible to say is that the Dharma Sūtras, on the whole, represent an earlier stage of political and legal thought than the Dharma Śāstras. It will be a mistake to compare either the Dharma Sūtras or the Dharma Śāstras, as Sir William Jones compared Manu, to the institutes of Justinian. The Hindu texts cover far more than law and do not cover the whole of law. They are manuals of conduct, but they leave large tracts to custom. These circumstances explain their failure to create a real science of law. They embody no real system of jurisprudence. They expressly recognise the force of family, caste and local usage.

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The Dharma Sūtras and Śāstras, whatever weight might have been attached to them, could not be placed on any statute book. They grew up in the schools of those who were not only priests but also had a practical monopoly of the higher learning and were the repositories of legal lore. The exigencies of their composition and the dominance of caste explain the extraordinary “benefit of clergy” which they claim. This also explains one striking feature of the Sūtras as well as Śāstras—the system of penances. They view this life not as a whole in itself but as part of the life in past and future births. The sins committed by a person have to be expiated either here or in the long series of existences to come. Expiation may take the form of penances here. So for many actions two classes of punishments are given, or rather, a punishment to be inflicted by the secular power and a penance to be performed by the sinner voluntarily or forced on him by those who wish him well. The ‘sanctions,’ to use a modern term, are both civil and spiritual. It is sometimes difficult to say to which class a writer attaches greater importance. Gautama, for instance, lends colour to the hypothesis that a system of penances, voluntary and enforced, was the earliest Hindu way of promoting virtue and punishing sin, and that justice in the modern sense of the word was introduced only later.¹ Unfortunately, neither the Sūtras nor the Smṛitis throw much light on the origin of law and institutions;

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but it is safe to conclude that the former represent an earlier stage of development. Sir Henry Maine supposed that rules of conduct were first worked out by priestly lawyers who later addressed themselves to the kingly power to have them enforced. The little that we know of legal and administrative evolution in ancient India does not support Maine's hypothesis.² The civil and spiritual jurisdictions seem to have run concurrently, though the former was constantly expanding in scope.