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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3.t8: 8. Dynamic Character of Hindu Law

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s3.t8

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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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