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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3: Section 5. The Making of Laws (Sâsanas)

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3

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Section 5. The Making of Laws (Sâsanas)

1. Hindu Archives

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The supreme government of the Chola Empire (900—1300) had a record office² as one of its bureaus of administration. It was here that every *sâsana* (or *râjnâm âjnâ* as it is called by Kautilya, i. e., "command of the state") was registered. This department was the depositary also of all official papers having permanent value. In southern India historiography must thus have received an impetus from the public registration of royal decrees and charters.

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² Aiyangar's *Anc. Ind.*, pp. 175, 177, 178.

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Hiuen Thsang noticed that in regard to the records of events each prefectural province of the Vardhana Empire (606—647) had its own official for preserving them in writing. The records were called *nîla-pita* (blue deposit). Good and evil events were mentioned therein, as well as calamities and fortunate occurrences.³

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³ *Si-Yu-ki*, Vol. I, p. 78.

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Further, we know from Megasthenes⁴ that under the Mauryas (B. C. 322—185 B. C.) the city fathers of Pâtali-putra regularly kept census and vital statistics of the municipal area. Such data were compiled for every territorial jurisdiction, as is borne out by the *Arthaśâstra*. The gazetteer of the village was compiled by the *gopa*.¹ The *sthânika* was responsible for the district gazetteer, as the *nâgaraka* for that of the city. The imperial gezetteer was the compilation of the *samâhartâ* or collector-general from these local directories. All details from the number of males and females to the incomes and expenditures of the families were to be found in these official registers.

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⁴ Mc Crindle's *Anc. Ind.*, pp. 87—88.

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¹ *Ind. Ant.*, 1905, p. 5.

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But, curiously enough, with the exception of certain sections in the *Artha-śâstra*² bearing on revenues and on crimes and punishments students of Hindu polity can hardly point to any collections of *śâsanas*, (ordinances and statutes) or statistical documents in ancient Indian archives. Semi-historical writings like Kalhaṇa’s *Râja-tarangiṇî* (Kashmir) Sandhyâkara’s *Râma-charita*³ (Bengal) and Bilhana’s *Vikramânka-charita* (Deccan),⁴ all of the twelfth century, which may be likened to a certain extent to the *Shu* books of China are, moreover, few and far between. Further, in the Sanskrit literature on legal institutions no treatise has yet been discovered which can be compared to the three volumes compiled during the reign of Justinian (526—565), viz., the *Digest* containing fragments of the work of lawyers like Gaius and Ulpian of the second and third centuries, the *Institutes* drawn up by his own lawyers, and the *Code* embodying the imperial “constitutions” from Hadrian (117—138) to his own times.⁵

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² Books III, IV. Kautilya defines *śâsana* as *râjnâm âjnâ*, i. e. the commands of rulers. *Vide* Law’s *Hind. Pol.*, pp. 122—123.

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³ Edited by Hara-prasad Shastri (*Memoirs of the Asiatic Society of Bengal*, Vol. III, no. 1).

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⁴ Edited by Bühler for the *Bombay Sanskrit Series*.

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⁵ Mackenzie’s *Studies in Roman Law*, pp. 21—27; Article on Justinian in the *Enc. Brit.*; Moyle’s *Institutes of Justinian*; Taylor’s *Mediaeval Mind*, Vol. II, 239—248.

2. The So-called Law-Books of the Hindus

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The only literature available for the present is twofold. First are the *dharma-śâstras*⁶ associated with the names of Manu, Yâjnavalkya, Bṛihaspati and others. Next come the *nîti-śâstras*⁷ like the *Kâmandakî-nîti*, *Śukra-nîti* and Bhoja’s *Yukti-Kalpa-taru*. For our present purpose the important question is to find out how much of the laws and manners mentioned in these books constitute "law" in the Austinian sense. From this point of view it is doubtful if these so-called legal codes of India have barely even as much legitimacy or validity as the twelfth and thirteenth century compendiums of feudal customs¹ in Europe which were expressly modelled on Justinian's achievements. Neither the *Manu Samhitâ* nor the treatise of Sukra can legitimately be likened to the *Spiegel* ("Mirrors") of the Saxons and Swabians, the *Summa de legibus* of the Normans, and the *Consuetudines Feudorum* of the Lombards, or the "*Bracton-nîti*" (*De Legibus et Consuetudinibus Angliae*) of England and the contemporary *Beaumanoir-nîti* (*Coutumes de Beauvoises*) of France. The simple reason is that there is a lack of undisputed archeological proofs concerning the actual life in ancient India. Consequently it is not easy to analyze these Indian *sâstras* (*Wissenschaften*) and point out precisely which passages describe the conscious and positive "will" of the state (*râjnâm âjnâ*) or actual laws enforced by "sanction", which indicate merely the immemorial customs or "unwritten laws" of the land, and which others, finally, are nothing but the "pious wishes" of the Hindu Ciceros and Senecas, Alcuins and Jonases, Augustines and Isidores, those champions of *dharma* (i. e. justice and truth).

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⁶ *The Sacred Books of the East Series*, Vols. II, VII, XIV, XXV, XXXIII. For a general account of the entire legal literature see Jolly’s *Recht* (Ch. I. *Die Quellen*). In his articles in the *Zeit. Deut. Morg. Ges.* (1913, pp. 51—90, and 1914, pp. 345—347) he has pointed out the passages that the *Artha-* has in common with the *Dharma-* and *Kâma-sâstras*.

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⁷ Sanskrit text of Kâmandaka in the *Bibliotheca Indica Series* (English translation by M. N. Dutt); Sans. text of Śukra edited for the Madras Government (Engl. transl. for the Panini Office Series by B. K. Sarkar); Sans. text of Bhoja published by the Sanskrit Press Depositary, Calcutta.

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¹ Carlyle's *Mediaeval Political Theory in the West*, Vol. III, pp. 35, 36, 42; Walsh's *Thirteenth, Greatest of Centuries*, p. 361.

3. Epigraphic Data on Hindu Dharma (Law)

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It is not surprising, therefore, that Henry Maine whose indology was confined mostly to the *sâstras* and the so-called "village communities" of a politically defunct India should have started the notion, since then held in reverence by Eur-American sociologists, that Hindu states were not *dharma*-enacting i. e. legislating *samûhas* but mere tax-exacting bodies or rather tribute-collecting corporations.² But the student of Indian epigraphy today is master of enough historical material to be able to demonstrate that for the period of over fifteen hundred years from Kautilya, the Richelieu or Bismarck of the Mauryas, to Kulottûnga, the Châlukya-Chola, the statesmen of India consciously instituted laws and modified and revised them at will. The "making" of laws in addition to the simple "declaration" of traditional usages must therefore be reckoned among the institutional achievements of the Hindus.

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² *Early His. of Inst.*, Lect. XIII, pp. 380—383. See *infra* (analysis of *dharma*, *danda* etc.).

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The inscriptions, although mainly donative in character, leave no doubt as to the legislative functions of the states. The fiat of official proclamations is known to have often abolished old customs and introduced new usages. The new regulations were held binding within jurisdictions for which they were intended. And the state exercised its "sanction" (*danda*) or penal authority, the essence of Austinian sovereignty, in order to punish the violation of its orders and announcements.

4. Legislation in ancient Madras and Ceylon

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It was a law of Râja-râja the Great by which in 986 the village *panchâyats* of southern India were anthorized to take possession of and sell the lands of the persons who failed to pay the government dues for three years.¹ The abolition of tolls that had weighed heavily upon the people for generations was likewise effected by Kulot-tûnga's liberal legislative enactment in 1086.² The "positive" character of Chola legislation is manifest as much in the local government ordinances as in the cadastral and other centralizing measures.

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¹ Aiyangar, pp. 161—162, 149—150. For other Chola legislation see *supra* (the section on rural communes) and *infra* (national finance).

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² Aiyangar, pp. 161—162, 149—150. For other Chola legislation see *supra* (the section on rural communes) and *infra* (national finance).

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In Ceylon the charter by which the rural commune enjoyed its liberties emanated from the state as an 'Act to confer immunities'. In the tenth century a law was passed by King Kassapa IV (963—80) "in Council" to define the privileges of a village belonging to a hospital. "Whereas it was decreed," ran the proclamation, "that boundary stones \*\*\* should be set up \*\*\* all these officers of state \*\*\* have come from the council and set up in this village a pillar." According to this bill of rights granted by royal order, enforcers of customary laws were not to enter the village. It was placed beyond the jurisdiction of headmen of districts and keepers of district records. Servants of the royal family were likewise declared inadmissible. Laborers, carts, oxen and buffaloes of the territory were not to be appropriated. It was also made into an asylum against the right of extradition. Criminals who sought refuge in the village could not be arrested.³

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³ *Ep. Zeyl.*, Vol. II, no. 5.

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We have specimens of fiscal legislation also in Ceylonese inscriptions. From a desire that "succeeding kings should not again impoverish the inhabitants of Lamkâ by levying excessive imposts" Kirti Nissarnka Malla (1153—86) ordained certain rates at which alone revenue should be collected. And since "those who labor with billhook in clearing thorny jungles for cultivation earn their livelihood distressfully" he granted them by the same Act perpetual exemption from taxation.⁴

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⁴ *Ibid*, Vol. I, nos. 9, 21.

5. The Institutes of Asoka

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Asoka's Edicts¹ are well known to have been mainly moral or social in their scope. Some of these declarations can be scheduled as "sumptuary" regulations in a wide sense. Not all the proclamations of the Emperor-propagandist were, however, *râjnâm âjnâ* or statutes binding on the empire as a political organization. The *corpus* of Asokan rescripts had, on the whole, no greater authority on the state than are the announcements of a zealous and sincere educational missionary. Constitutionally speaking, they belong to the same category as the Educational Rescript (1890) of Mikado Mutshuito in *Meiji* Japan, or the "messages" to Congress from the Presidents of the United States.

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¹ Cunningham's *Inscriptions of Asoka*.

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These the people were persuaded by commissioners, magistrates and judicial officers to respect and observe. But the main body of Asoka's time to time messages was not treated as the "commands of a sovereign", the violation of which would be cognizable offence to be tried and punished by the courts of justice. All the same, a minute analysis brings out the fact that some real legislation or lawmaking is to be found in the midst of these thirty pronouncements of various sizes.

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One positive law is referred to in Pillar Edict IV. (*c* B. C. 243). By it Asoka gave respite of three days to prisoners convicted and sentenced to death.² It was universally applicable throughout the Empire and calculated to bring about legislative centralization and uniformity. An imperial command to this effect was specially called for, because otherwise there might be a great diversity in administrative practice. And such diversity was naturally expected because of Asoka's custom of granting independence to the members of the civil service "in the award of honors and penalties" in order that they might "in security and without fear perform their duties". The Provincials' Edict likewise embodies the purport of a law by which officers in charge of the city were to "prevent unwarranted imprisonment or unwarranted torture of the citizens".³

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² Smith's *Asoka*, pp. 148—150, 136—138.

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³ Smith's *Asoka*, pp. 148—150, 136—138.

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Regulations in regard to *ahimsâ* or non-slaughter i. e. sanctity of animal life appear also to have been laws in the strictest sense of the term. According to Pillar Edict V (*c B.* C. 243), parrots, starlings, adjutants and other animals were exempted from killing.⁴ By Rock Edict I (*c* B. C. 257) Asoka disallowed even the animal sacrifices indispensable for certain ceremonial performances.⁵ The humane legislation was thus arbitrary and intolerant enough to curtail religious liberty, or, at any rate, the freedom of practice. When, therefore, we read the touching self-complacent note in Rock Edict IV (c B. C. 257)¹ in which the monarch congratulates himself on the growth of non-killing and "prevention of cruelty to animate beings" in his reign, can we not believe that the ideals of a "moralist" had indeed in a considerable degree been rigidly transformed into positive law?

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⁴ *Inscr. of As.*, pp. 138, 117, 118—119.

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⁵ *Inscr. of As.*, pp. 138, 117, 118—119.

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¹ *Inscr. of As.*, pp. 118—119.

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Similarly in the statement recorded in Pillar Edict V (c B. C. 243) that "in the period extending up to my twenty sixth coronation day I have twenty five times liberated the prisoners", one may read the gist of a law on the general pardon of convicts at coronation-anniversary.² Further, in the report about the growth in humanitarianism among Asoka's subjects we are told by this self-conscious emperor that the thing was unknown "for many hundred years past". Here then is to be detected a change of ancient customs brought about, although not exclusively perhaps, by definite commands of the state.

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² Smith's *Asoka*, pp. 150—152.

6. Code Kautilya

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We are on more solid ground in regard to the legislation of Asoka's grandfather, Chandra-gupta,³ the founder of the Maurya House. Megasthenes (B. C. 302) was an eye-witness to the law about the license-tax paid by merchants and the tithes on sales. A person convicted of bearing false witness suffered mutilation of his extremities. He who maimed any one not only suffered in return the loss of the same limb but his hand also was cut off. If he caused an artisan to lose his hand or eye, he was put to death.⁴ The *Artha-śâstra* corroborates all these statements of the Greek. Laws of foreign trade regulating the customs duties are given in Kautilya's treatise.⁵ It describes also the laws relating to the sale of lands, escheat, the royalty from mines, and the terms on which salt, a government monopoly, could be manufactured by private capitalists.

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³ *Vide* "The Law of Contract" in Law's *Hind. Pol.*, and Shamasastry's article on "Land and Revenue Policy" in the *Ind. Ant.*, 1905.

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⁴ Meg. XXVII in Mc Crindle's *Anc. Ind.*, p. 71.

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⁵ II, xxii, xxxv, xxxvi.

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All violations of harbor regulations⁶ were severely punished by the *nâvadhyakṣa* or superintendent of ships (port commissioner). The ships of pirates were doomed to destruction, as well as those bound for the enemy’s country. The legislation required the arrest of suspected persons, e. g. those having a perturbed appearance, those travelling without baggage, and those pretending to be suffering from disease. And the commodities of persons travelling without a pass as also of those who with a heavy load forded a river at an unusual place and time were liable to confiscation at the discretion of the harbor or port officials.

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⁶ *Ind. Ship.*, pp. 106, 107, 109, 111.

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The violation of fiscal laws was generally punished with confiscation or fine. The evasion of the tax on sales was a capital offence. The punishment for false statements to census officers about age, income, expenditure, etc. might extend even to death. Offenders against sanitary and other municipal laws were punished with fines which ranged from ¹/₈th of a *paṇa*, i. e. about 3 cents to 3000 *paṇas* ($ 750).¹

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¹ *Ind. Ant.* 1905, pp. 52, 59.

7. Despotism of Custom in Europe

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The enactment of law is the most important function of modern states. This “modernism” dates however from the promulgation of the Code Napoleon.

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But in the present epoch students of political science, used as they are to daily law-making and legal reforms, are apt to forget the comparative absence of “legislation” in ancient and mediæval European polity and to ignore the long ages during which the “despotism of custom” held its sway in the West.² When, therefore, they come in touch with the institutions of the Old Orient they are easily tempted to dwell on the “primitive” character of Asia’s achievements and mark them down as distinctively “oriental”. They are, moreover, misled by the paucity of reliable data into taking for granted that law-making was not practised by Hindu states at all.³

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² Jenks’ *Law and Politics in the Middle Ages*, Ch. II, pp. 59, 63—64; Carter’s *Law, Its Origin, Growth and Function*, p. 109; Willoughby’s *Government of the Modern States*, pp. 306—308.

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³ Maine’s *Ancient Law*, Ch. II, p. 22. On this point as on others Banerjea (pp. 137, 139) echoes the stereotyped notions. He misunderstands, besides, the term *droit administratif* in employing it with reference to Hindu *śâsanas*. For its technical significance see Dicey’s *Law of the Constitution*, 326—346.

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But now, no epigraphist and archeologist entertain any doubts as to the complex, centralized and well-differentiated machinery of imperialism wielded by the Maurya, Gupta, Pâla, Chola and other *sârva-bhaumas* (world-emperors). One might then suggest, even on *a priori* grounds, that the extensive *Weltherrschaften* consolidated through the enterprise of men of “blood and iron” were not based exclusively on moral maxims, “declared” customs and unwritten laws like the tribal commonwealths of the earlier epochs of pre-Maurya and Vedic India.

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The postulate about the “unchanging East” is indeed an *idola* of the nineteenth century. In any event, Asia was not more stationary than Europe, epoch for epoch. The dynamic process in India’s legislative annals can be illustrated by the changes in the penal code from age to age.

8. Dynamic Character of Hindu Law

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It is undeniable that the criminal legislation of the Mauryas¹ was exceedingly severe. Lengthy was the schedule of capital offenses even under Asoka the Great, benevolent preacher though he was of *ahimsâ* (mercy to animal life) and propounder of the cult of *dhamma* (piety or duty). We have only to observe, however, that the capital list in the East was much too short when compared with that in the West.

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¹ ^1 *Artha*, Book I, Ch. iv, II, xxxv, xxxvi.

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There is nothing exclusively oriental in this barbarity of the Maurya laws. Europe’s record in penal legislation down to very recent times has not been at all different from that of Asia. Let us ignore for the present the Roman XII Tables and the Christian Inquisition. The penal code of England during the seventeenth, eighteenth, and early nineteenth centuries was fostered in the same psychology and was as inhuman and Draconian as was that of India of the third and fourth centuries B. C. During George III’s reign more than sixty offences were added to the list of capital crimes. In 1845 two hundred and fifty offences (including, of course, some of the most trivial, e. g. breaking a window and stealing two pence worth of paint) were punishable by death. The generation preceding this date witnessed 1400 executions among the English people for offences that have since then been removed from the capital list.²

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² ^2 Article on “Capital Punishment” in the *Enc. Brit.* Lea’s *His. of Inquis*, Vol. I, pp. 234—236, 421—423, etc.; Vol. III, p. 300. For severity of the Twelve Tables and punishments in Roman law see Mackenzie, 5, 6, 351—356.

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In the perspective of this criminal statistics in modern Europe the India of the Gupta Vikramâdityas in the fifth century A. C. must have been a veritable utopia. For it was a land of profoundly humane legislation, almost millennial, that Fa-Hien, the Chinese traveller, found in the Hindu Empire. To say that the administration of the criminal law appeared to him milder than in China would not mean much to the modern mind. But the important point is that fines were the ordinary punishments for almost all crimes, capital punishment being all but unknown. Amputation of the right hand was the penalty for repeated rebellion, brigandage, and so forth. But even this was resorted to very rarely; and the Chinese scholar testifies to the absence of judicial torture among Hindus.¹

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¹ Legge's *Fa Hien*, Ch. XVI, pp. 42—43.

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India's judicial sense did not thus stop at the findings of Kautilya recorded in the *Artha-śâstra*. Radical legislative changes embodied the new tendencies of the Hindu mind in subsequent ages; and the law-makers knew that they were deliberately breaking the traditional customs.

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For the seventh century Hiuen Thsang gives the same evidence as Fa Hien for the fifth in regard to the absence of capital punishment. The offenders against the "power of the ruler", i. e. seditionists were imprisoned. They were "simply left to live or die and were not counted among men". This amounted to life-long social ostracism. Amputation of limbs or deportation was a penalty for the violation of what in Confucian ethics is known as the rules of domestic "propriety". For other offenses the punishment was a small payment of money. In the investigation of criminal cases there was no use of rod or staff to obtain proofs of guilt.²

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² *Si-Yuki*, Vol. I, pp. 83—84.

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Gupta and Vardhana India was thus inestimably in advance of that of the Mauryas. Nay, the modern world which has restricted capital punishment to three crimes, viz., murder, treason, and piracy (Act of British Parliament, 1861) and which liberally practises torture to extort confession is still behind the Hindu conscience of the fifth century. It was left to the Bolsheviks of Russia to revive India's ideal under the Guptas by removing capital punishment from statute books for the first time in European history.

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In any case it ought to be clear to students of *Staatswissenschaft* that Hindu law (public or private) cannot be summed up in single shibboleths, whether those of Kautilya, or, as it was the custom so long, the slogans of the hoary Manu. It has changed from epoch to epoch and region to region. Besides, for the study of the legal institutions and positive laws of India the attention of scholars must have to be diverted from the so-called lawbooks³ to the inscriptions and archeological documents. The fact that the rates of assessment on land which obtained in Maurya and Chola India⁴ are entirely different from the conventional 1/6th of the produce idealized in the *śâstras* is but one of many instances of discrepancy between custom and actual law which should warn the student of *Realpolitik* against depending too much on the Manu’s and the Śukraś in his institutional investigations.

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³ Jolly's *Recht und Sitte* is a comprehensive study of Hindu laws and morals based on this body of literature. See Gibelin's *Etudes*, Vols I and II, for a comparison of Hindu "private law" with that of the Greeks, Romans and Teutons.

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⁴ *Infra* (National Finance), pp. 115—116, 124.

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