Theory of Government in Ancient India (Post-Vedic) c9.s1.39

c9.s1.39

Like Nārada, Brihaspati deals primarily with law. He cannot be placed later than the sixth or seventh century A. D. and belongs pretty much to the same period as Nārada. He begins by pointing out the need of courts of justice in a manner which recalls theories of the origin of the state itself. "In former ages men were strictly virtuous and devoid of mischievous propensities. Now that avarice and malice have taken possession of them, judicial proceedings have been established."⁴ Brihaspati divides courts into four classes, (1) stationary, that is, those held in towns or villages, (2) those moving about, (3) those presided over by the chief judge, and (4) those directed by the king himself.⁵ As in Manu, the king should be assisted by three assessors.⁶ But the popular element enters into the administration of justice in a much more pronounced manner than in Manu. Cultivators, artizans, companies of tradesmen, artists, money-lenders, dancers, religious mendicants, and even robbers are told to adjust their disputes according to the rules of their own profossions. Families, craft-guilds and local assemblies may be authorised by the king to dispose of law-suits among their members except such as concern violent crimes. Bṛihaspati also provides for appeal from meetings of kindred to companies, thence to assemblies and finally to the royal judges on the ground that the lower courts have not duly investigated or deliberated on the cause. The law which the royal courts are told to administer takes account of sacred injunctions, customs and equity. Thus, the king in the court is exhorted to listen to the Purāṇas, codes of law, and rules of polity, to act on the principles of equity, and abide by the opinion of the judges and the doctrine of the sacred law. It was a political necessity to preserve intact the time-honoured institutions of every country, caste and family. "Otherwise the people would rise in rebellion, the subjects would become disaffected towards their rulers; and the army and treasure would be destroyed." Among those who are not to be consulted in adjudication are people ignorant of local customs. A little later, Bṛihaspati expressly lays down that no sentence should be passed merely according to the letter of the law, but the circumstances of a case must be closely examined. Local custom, however, can be overruled by royal edicts, which thus constitute a distinct source of law. As in Manu, the law on defamation and adultery is vitiated by considerations of caste. Bṛihaspati counsels itinerant courts. "For persons roaming the forest, a court should be held in the forest; for warriors, in the camp; and for merchants, in the caravan."¹ It is needless to follow Bṛihaspati into rules of procedure, etc., for they correspond to those enunciated by Manu. But it may be pointed out that, according to him, law-suits fall into two categories, those originating from disputes regarding wealth and those relating to injuries. Roughly, 'ie distinction corresponds to civil and criminal suits.¹ In the absence of the king, some Brāhmaṇa versed in law is to act as judge.²