The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3.t7: 7. Despotism of Custom in Europe
The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3.t7
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7. Despotism of Custom in Europe
c10.s3.t7.1
The enactment of law is the most important function of modern states. This “modernism” dates however from the promulgation of the Code Napoleon.
c10.s3.t7.2
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
c10.s3.t7.3
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.
c10.s3.t7.4
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.
c10.s3.t7.5
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.
c10.s3.t7.6
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.