The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4.t2: 2. Hindu Ideas about the Jury
The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4.t2
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2. Hindu Ideas about the Jury
c10.s4.t2.1
The institution could not but influence the political thinking of the philosophers. Śukra and other writers on the theory of the constitution have therefore naturally been the spokesmen of the philosophy that underlies the English Assizes and the Fehmic Courts of Westphalia. The principle of trial by one's peers is thus stated in the *Śukra-nîti*: ¹ "The foresters are to be tried with the help of foresters, merchants by merchants, and soldiers by soldiers." Śukra lays down also the principle of local judges for local cases in the following terms: "In the village the cases are to be settled by persons who live with both parties, i. e. by neighbours. Those persons are the best judges of the merits of the case who live in the place where the two parties stand, and where the disputed matters and grounds of quarrel exist."²
c10.s4.t2.2
¹ IV, v, lines 44, 45.
c10.s4.t2.3
² IV, v, lines 45—47.
c10.s4.t2.4
In Hindu thought merchants³ appear to have been in high demand as qualified to serve on the jury. Their strong commonsense was evidently their chief merit, or perhaps they were likely to have legal knowledge. In the *Śukra-nîti* even the audience at a court of justice is regarded as part of the jury. In regard to the man who happens to know the law we are told that "one can speak, whether appointed or not, because he speaks the voice of God who knows the law".⁴ And we are also asked to entertain respect for the layman's commonsense view of the case. For, an extremely radical view is adumbrated by Śukra when he declares that "either one should not come to the court or should speak truthfully. That man is a sinner who keeps silence or utters falsehood".⁵
c10.s4.t2.5
³ IV, v, 52.
c10.s4.t2.6
⁴ IV, v, lines 53, 54; see also Nârada, *Legal Procedure*, III, 2.
c10.s4.t2.7
⁵ IV, v, 55, 56.
c10.s4.t2.8
Altogether, then, in Śukra we have to recognize a theorist in regard to the institution of which the practical regulations had been laid down by Śâkya for his Congregation. And if in the absence of evidences from inscriptions or contemporary writings it be safe to take the passages in the *Śukra-nîti* as describing the actual judiciary in certain states of India in any period of its history, the jury must be regarded as an essential feature of the system of Hindu tribunals.⁶
c10.s4.t2.9
⁶ Banerjea's identification of the *sabhyas* (members of a judicial assembly i. e. assessors) with the jury (*Public Adminis*, p. 143) is not acceptable.
Linked texts (1)
- Nāradasmṛti — Nārada, Sanskrit