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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c16.s1: Section 1. The Theory of the State

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c16.s1

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English

Contents

Section 1. The Theory of the State

a) The Doctrine of Mâtsya-nyâya (The Logic of the Fish)

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At the back of all thinking in India there was the process of dichotomy between the *a-râjaka* (non-state) and the state by .erentiating it from the non-state. Their method was logical as well as historical. That is, in the first place, they tried to investigate in what particulars the state analytically differs from the non-state; and in the second place, they tried to picture to themselves as to how the pre-statal condition developed into the statal, i. e. how the state grew out of the non-state. The chief solution of both these problems they found in the doctrine of *mâtsya-nyâya* or the logic of the fish.

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What, now, is the non-state according to Hindus? The same question was asked by the philosophers of Europe thus: "What is the state of nature?" And the Hindu answer was identical with the European.

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According to Hooker (1554—1600) in the *Ecclesiastical Polity* the state of nature is a state of strife. The *Leviathan* of Hobbes (1588—1670) declares similarly that the state of nature is a state of war and of no rights. In Spinoza's (1632—77) opinion also, in the *Tractatus Theologico Politicus*, the state of nature is a state of war and a state of the right of might. The non-state is thus conceived to be a war of "all against all", an "anarchy of birds and beasts", or a regime of vultures and harpies as John Stuart Mill would have remarked.

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It is interesting to observe that in China also the state of nature was analyzed by Moh-Ti (*c* 500—420 B. C.) in almost self-same terms. In the non-state, as Su Hu explains it in *The Development of Logic in Ancient China*, "each man has his own notion of right. Therefore one man has one notion of right, two men have two notions of right, and ten men have ten notions of right. The more men there are, the more conceptions of right will there be. Consequently each man approves his own notion of right and denounces every other man's. So they denounce one another".

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This Hobbesian "law of beasts and birds" or the *Naturprozess* of Gumplowicz is the logic (*nyâya*) of the fish (*matsya*) in India. Should there be no ruler to wield punishment on earth, says the *Mahâbhârata*¹ (*c* B. C. 600—A. C. 200), "the strong would devour the weak like fishes in water. It is related that in days of yore people were ruined through sovereignlessness, devouring one another like the stronger fishes preying upon the feebler". In the *Manu Samhitâ*² likewise we are told that "the strong would devour the weak like fishes" if there be a virtual reversion to the non-state (if, for example, the king is not vigilant in meting out punishments to those that should be punished). The *Râmâyaṇa*¹ also describes the non-state region as one in which “people ever devour one another like fishes”. And a few details about the conditions in this non-state are furnished in the *Matsya-Purâṇa*.² “The child, the old, the sick, the ascetic, the priest, the woman and the widow would be preyed upon”, as we read, “according to the logic of the fish” (should *danda* or punishment fail to be operative at the proper time).

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¹ *Sânti-Parva*, LXVII, 16—17; LXVIII, 11—12. The history of the theory of *mâtsya-nyâya* in European sociology from Heracleitus to Gumplowicz is clearly summarized in Barnes' article on "The struggle of races and social groups" in the *Journal of Race Development* (April, 1919), pp. 394—400. For Protagoras' conception of the pre-political condition see Barker's *Greek Political Theory—Plato*, p. 130.

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² VII, 20. LXVII, 31.

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The idea of the fish-like struggle for existence or self-assertion was thus a generally accepted notion in the “floating literature” of Hindûstân. It found an important place in the exclusively political treatises also. It was exploited as early as the latter half of the fourth century B. C. by Kautilya, one of the first, as we have seen, among the historical names in political science. According to him in the *Artha-śâstra*³ the logic of the fish prevails while the state is unformed. “In the absence of the wielder of punishment the powerful swallows the powerless”. And Kâmandaka also, who several centuries later generally follows Kautilya, writes in his *Nîti-sâra*⁴ (Digest of Politics) that in the absence of punishment (*danda*), the destructive or ruinous logic of the fish operates through mutual animosities of the people and leads to the disruption of the world.

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Nor was the doctrine confined within the circle of academicians and theorizers. We find it prevalent even among diplomatists and practical statesmen, e. g. of the ninth century. In the declarations of the Bengalî emperor Dharmapâla⁵ we are informed that his illustrious dynasty owed its origin to an “election” by the people. We are told further that it was “in order to escape from the logic of the fish”, i. e. in order to escape from being absorbed into another kingdom, or to avoid being swallowed like a fish that the people of Bengal “made his father Gopâla accept the sovereignty”. The mediaeval Hindu monarch was here using almost the same metaphor as has been employed in the nineteenth century by Mill in his essay on *Liberty* when he explains how “in order to prevent the weaker members of the community from being preyed upon by innumerable vultures it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down”.

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This theory of the non-state or the state of nature has had important arings on other doctrines of Hindu political philosophy. For the present we have only to note that in India political speculation was not divorced from the general intellectual currents in the society. The political philosophers kept themselves abreast of the contemporary thought in other branches of inquiry. The logical apparatus and dialectical machinery used in political discussions were familiar instruments in the cultural *milieu* of the scientific world.

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*Mâtsya-nyâya*, for instance, is an expressive technical term in India's legal phraseology. In Raghu-nâtha's (fifteenth century) *Laukika-Nyâya-Samgraha*¹ (Compilation of Popular Legal Maxims) we find the "logic of the fish" coupled with the "logic of the monsters". The logic of the monsters is known as *Śundopaśunda Nyâya*. Śunda and Upaśunda are two monster-brothers, like Pyrochles and Cymochles in Spenser's *Faerie Queene*. They are said to have quarrelled over the nymph Tilottamâ and destroyed each other in the contest. Thus when two contradictory facts are equally strong, they neutralize each other. But when they are of unequal strength, i. e. when the one can overpower the other, there is generated a field for the operation of the logic of the fish and the survival of the fitter.

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¹ Kishori Lal Sarkar's *Rules of Interpretation in Hindu Law*, Lecture VI, p. in

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The logic of the fish arises, as Raghu-nâtha explains it, under a double set of conditions. First, there must have to be a conflict between a powerful and a comparatively powerless unit. And secondly, the latter must have been crushed and obliterated by the former. It is frequently referred to, says he, in the *Itihâsas* (treatises on history) and the *Purâṇas*, and he quotes the following passage from Vaśiṣṭha:² "By this time that Rasâtala region had become extremely sovereignless, i. e. an anarchic non-state, characterized by the ignoble logic of the fish." Vaśiṣṭha's verse is elucidated by Raghu-nâtha with the gloss that "strong fishes began to make an end of the weaker ones".

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² Cited in Maitra's *Gauda-lekha-mâlâ* (Inscriptions of the Bengali Imperial Dynasty) p. 19. theory of *mâtsya-nyâya* in in Barnes' article on "The pril, 1919), pp. 394—400.

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The non-state is then a state of anarchy, one in which the "tyranny of robbers" has full play, "justice is non-existent", and the "people prey upon one another". It is "the greatest evil".³ "Enjoyment of wealth and wives is impossible" under it.⁴ Only the robber is then happy. Even his happiness is precarious, because "the one is deprived of his loot by two, the two are robbed of theirs by several combined".⁵ "A free man is made a slave" and "women are raped".⁶

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³ *Mahâ.*, *Śânti*, LXVII, 1—3.

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⁴ *Ibid*, *Ibid*, LXVII, 12. ker's *Plato*, p. 130.

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⁵ *Ibid*, *Ibid*, LXVII, 14.

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⁶ *Ibid*, *Ibid*, LXVII, 15. tury A. C.) in discussing the causes which have made government ssary holds the view that "men departed from God and hated their w men, and fell into confussion and disorder of every kind; and so set men over each other imposing the fear of man upon man, and ting men to the authority of men, that by this means they might elled to some measure of righteousness and just dealing".[^1]

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Idea that "the institution of government was made necessary and is a divinely appointed remedy for sin" was continued and developed by St. Augustine and St. Gregory the Great. It was "emphatically restated by the ecclesiastical and political writers" of the period from the ninth to the thirteenth century, and found a champion in Pope Hildebrand, Gregory VII (1073—1085).²

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² *Ibid*, Vol. II, 143—146, Vol. III, 97, 105, 187.

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The verdict of Hindu thinkers on the nature of man is identical. According to Kâmandaka,³ men are by nature subject to passions and are covetous of one anothers' wealth and wives. "Rare", says Manu,⁴ "is the man pure or sinless" (by nature). *Durlabho hi śuchirnarah.* The lower ones tend to usurp the places of the higher. People are prone to interfering with the rights of others⁵ and violating morals and manners.⁶

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³ II, 42.

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⁴ VII, 22.

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⁵ Manu VII, 21.

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⁶ *Ibid*, VII, 24.

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Not that there was no Saturnian golden age of pristine purity and bliss. For, says the *Mahâbhârata*⁷ anticipating by over a millennium the dogmas of Father Lactantius and others, "at first there was neither state nor ruler, neither punishment nor anybody to exercise it. The people used to protect one another through innate righteousness (*dharma*) and sense of justice". But, as among Stoics and Canonists, the "fall" of mankind is accounted for by Hindus also on the basis of a postulate of sin, loss of true religion, *moha*, stupidity, and what not.

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⁷ *Śânti* LIX, 14.

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On the whole, therefore, it is not a roseate romantic conception of human tendencies and instincts that the *Mahâbhârata* offers. The dictum, "spare the rod, and spoil the child", proverbial in western pedagogics, might be dittoed by the Hindu thinkers. For, as we read in the Book on *Śânti*, by nature "men tend to overthrow⁸ one another. Left to itself the "whole world would be in a mess" like a devil's workshop. As a rule, men are used to behaving like "the creatures⁹ that cannot see one another when the sun and the moon do not shine", or like th "fishes in shallow waters", or "birds in places safe from molestat where they can fly at each other's throats in a suicidal strife".

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¹ *Ibid*, Vol. I, p. 129.

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⁸ *Ibid* LXVIII, 8.

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⁹ *Ibid*, LXVIII, 10—12.

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Men, we are told, normally acknowledge only one right and is the right of might. Those who do not part with their proper the asking run the risk of being killed.¹ Wives, children and the weak are liable to be seized perforce by the strong. "Murd finement and persecution constitute the eternal lot of the prop classes".² The very phrase, 'This is mine' (*Mamedam*), may be lost from the vocabulary, and *mamatva* or property become extinct" — an ideal which is being anxiously sought for in the contemporary Utopia of Soviet Russia.

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The natural tendency of human relations,³ again, according to the *Mahâbhârata*, is toward sexual promiscuity (*yonidoṣa*). The formation of marriage alliances or of stable societies is not instinctively prompted to man as he is. And if possible, he would shirk even agriculture, commerce, and other means of livelihood, preferring a state of slothful ease and "primrose path of dalliance".

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Such is the man natural, or man as nature made him, in the political anthropology of the *Mahâbhârata*. This state of license is the furthest removed not only from a Wordsworthian "Nature's holy plan" but also from the picture of original man governed by a law of "reason" as exhibited in Locke's treatises on *Civil Government*. Nor is it anything but antipodal to the Rousseauesque faith in man's natural impulses and idealization of the "human heart by which we live". Instead, therefore, of postulating with the writer of the *Emile* that "all things are good as their Author made them, but everything degenerates in the hands of man", or finding "reason to complain what man has made of man", the Hindu students of political theory set a high premium on the institutions and conventions that make up the artificial thing called civilization. In fact it is to "educate" man out of the deplorable mire of primitive license and beastly freedom that government has been instituted, say they. The state is designed to correct human vices or train them and open out the avenues to a fuller and higher life. And this is possible only because of *daṇḍa*.

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'll discussions of political theory, therefore, the doctrine of *daṇḍa* most place. Some writers have even called their treatises on politics and statecraft *Danda-nîti* (Laws of Sanction, or Science of Danda). In the *Manu Samhitâ*, at any rate, no other category is calculated to command greater attention. For, is not *danda* “divine, God’s own son, the protector of all beings, and as powerful as law itself?”¹ Indeed, it keeps all created beings to their respective duties (*sva-dharma*) the “virtues” of Plato or the “functions” of Bradley and other neo-Hegelians, and makes them cooperate to the enjoyment (*bhoga*) or happiness of mankind.² Nay, it is in reality “the king, the male (compared with which all other things are female), the manager of affairs, the ruler, the surety for the four orders pursuing their own duties in life”.³ Further, it governs, protects, watches; and, last but not least, is identical with law.⁴ To crown all, the whole world is rectified by *danda*⁵ and even the gods and demigods are subject to its authority.⁶

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¹ *Manu*, VII, 14.

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² *Ibid.* VII, 15; cf. Carr’s *Philosophy of Benedetto Croce*, pp. 127 etc.; Bosanquet’s *Some Suggestions in Ethics*, pp. 43—44, 64—65; *Pos. Back*, Vol. II, p. 28.

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³ *Ibid*, VII, 17.

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⁴ *Ibid*, VII, 18.

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⁵ *Ibid*, VII, 22.

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⁶ *Ibid*, VII, 23.

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*Danda*, as interpreted by Manu, is obviously the very principle of omnipotence, comparable to the *majestas* of Bodin or the *summa potestas* of Grotius. It is the abstraction of that power whose concrete embodiment is *aiśvarya*, *svâmitva* or sovereignty in a state, which is explained by Figgis as the real “divine right” of kings. It is absolute, with jurisdiction over all, uncontrolled by any entity.

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A ruler *in office* personifies this *danda*, but the ruler *as a person* is subject to it as every other individual is. Hence the inevitable dilemma of kingship in the Hindu theory of the state. It is by wielding this terrible weapon that the king is to preside over and regulate the state. He is the *danda-dhara* i. e. holder or bearer of the instrument of sovereignty, but he is himself liable to be scorched by it, may be one of its first victims for he is not “infallible”.

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In Hindu political thought, therefore, *danda* is a two-handed engine and cuts both ways. On the one hand, it is a terror to the people and is a corrective of social abuses. It is a moralizer, purifier, and civilizing agent. As Kâmandaka⁷ observes, it is by the administration of *danda* that the state can be saved from a reversion to the logic of the fish and utter annihilation, as well as the people set right. It is through fear of punishment, according to the *Sukra-nîti*,⁸ that people become “virtuous" and refrain from committing aggression or indulging in untruths. *Danda* is efficacious, moreover, in causing the cruel to become mild, the wicked to give up wickedness, and the garrulous to beware of loquacity. It can subdue even beasts, and of course it frightens the thieves and terrifies the enemies into submission as tributaries, demoralizing all those that are wayward. Nay, it is good also for preceptors and can bring them to their senses, should they happen to be addicted to an extra dose of vanity or unmindful of their own avocations.¹ Finally, it is the foundation of civic life, being the "great stay of all virtues"; and all the "methods and means of statecraft" would be fruitless without a judicious exercise of *danda*.² Its uses as a beneficent agency in social life are, therefore, unequivocally recommended by Śukra.³

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⁷ II, 40—42.

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⁸ IV, i, lines 92—97.

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¹ IV, i, lines 99—100.

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² IV, i, lines 101—102.

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³ IV, i, line 98.

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But, on the other hand, *danda* is also a most potent instrument of danger to the ruler himself, to the powers that be. For, "unweary lies the head that wears the crown", in more sense than one. The mal-administration of *danda*, says Kâmandaka,⁴ leads to the fall of the ruler. If the ruler is wise enough to manipulate it carefully, as Manu observes,⁵ it is surely conducive to the greatest good of the people. But what is the guarantee that the holder of the weapon would not bungle with it and handle it thoughtlessly or arbitrarily? Should that be the case, the *danda* would lead to the ruin of the state. And would the office-bearer, the king, got scot-free? By no means. Manu is an advocate of regicide. He does not hestitate to declare that *danda* would smite the king who deviates from his duty, from his "station in life". It would smite his relatives too together with his castles, territories and possessions. The common weal depends, therefore, on the proper exercise of the *summa potestas*, the *aiśvarya*.

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⁴ II, 39.

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⁵ VII, 19.

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*Danda* thus carries with it its own nemesis, and we are at once reminded of Mill who says in his *Liberty* that "as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies it was indispensable to be in a perpetual attitude of defence against his beak and claws". It is a like bulwark of people's rights as against the ruler that is furnished by the Hindu doctrine of *danda*, in so far as its efficacy is attributed to the careful handling of it. In the first place, Manu would not allow any ill-disciplined man¹ to be the administrator of the *danda*. In the second place, the "greatest amount of wisdom", e. g. that accruing from the "help of councillors and others"² is held to be the essential pre-condition for the handling of this instrument. And here is available the logical check on the possible absolutism of the *danda-dhara* in the Hindu theory of sovereignty.

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⁶ VII, 28—29.

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By the doctrine of *danda*, then, the state is conceived as a pedagogic institution or moral laboratory, so to speak, not necessarily a Lycurgan barrack, of course. It is an organization in and through which men's natural vices are purged, and it thereby becomes an effective means to the general uplifting of mankind. Hindu theorists therefore consider the state to be an institution "necessary" to the human race if it is not to grovel in the condition of *mâtsya-nyâya* ruled by the law of beasts. Man, if he is to be man, cannot do without political organization. He must have a state, and must submit to sanction, coercion and punishment, in a word, to *danda*.

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The Theory of Property, Law, and Social Order.

a) The Doctrine of Mamatva (Property)

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According to the *Mahâbhârata*, *Manu Samhitâ*, *Śukra-nîti* and other texts of Hindu political theory, government is by nature coercive because man is by nature vicious. The state can thus be born only in and through *danda*, i. e. punishment or sanction. It is out of a condition of the "logic of the fish" (*mâtsya-nyâya*) or the Hobbesian and Spinozistic "state of nature", that *danda*³ brings into existence a well regulated civil society called the state. In Aristotelian terminology *danda* would 'se" o 'he state.

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How does it declare its exke itself "srating them, and people recognize it in its activities fostering their nurture. *Mamatva* and *dharma* are therefore two fundamental categories in the political speculation of the Hindus.

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Property does not exist in the non-state¹ (*mâtsya-nyâya*) i. e. in the condition of men left to the pursuit of their "own sweet will". In the non-state, of course, men can possess or enjoy, but they do not "own". Property, however, is not mere *bhoga* i. e. enjoying or possessing, its essence consists in *mamatva* or *svatva* i. e. ownership.² It is "one's own"-ness that underlies the "magic of property". To be able to say *mamedam*³ (This is mine) about something constitutes the very soul of owning or appropriation.

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This proprietary consciousness is created in men for the first time by the state through its sanction, the *danda*. For it enjoins⁴ that vehicles, apparel, ornaments, and jewels must be "enjoyed by those to whom they belong", and that one's wife, children, and food "must not be encroached upon by others." And it is only through *bhaya*⁵ or fear of the state that the people observe these injunctions, and the sanctity of property is kept entire.

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A distinction is here brought out between mere *bhoga* and *mamatva* as the basis of the difference between the non-state and the state. In Europe the identical discrimination has been made by Rousseau in his *Social Contract*. "In the state of nature," says he, "there is but possession which is only the effect of the force or right of the first occupant"; whereas "ownership which is founded only upon a positive title" is an incident of "civil society".

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Property (*bhoga* plus *mamatva*), then, is a *differentium* between the non-state and the state. And juridically speaking, the property taken cognizance of by the state is *laukika* i. e. worldly, material, or secular, as the *Mitâkṣarâ*, the *Sarasvatî-vilâsa*, and other law-books⁶ make it clear. Thus considered, it is necessarily a' a differ state and the extra-state, e. g. of Bliss in D "beiand a deer to him and jurisdiction in in common or private, it is pertinent to observe that the sacredness of property can be established only by the state through its *danda*.

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Two miraculous changes are effected in social life, once private property is thus ushered into existence. First, people can sleep at night without anxiety "with doors open."⁶ And secondly, women decked with ornaments may walk without fear though "unattended by men".⁷

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⁶ *Mahâ*, *Śânti*, LXVIII, 30.

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⁷ *Ibid*, LXVIII, 32.

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This sense of security as regards property is therefore the first great achievement in the humanization of Caliban. This is the first item in the civilizing of man by *danda* out of the *mâtsya-nyâya* or "law of beasts and birds".

b) The Doctrine of Dharma (Law, Justice, and Duty)

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Property is the first acquisition of man through the state. His second acquisition is *dharma*. The doctrine of *dharma* is like the doctrine of assoin his *Jurisprudence*. is used both in scientific treatises as well as in common parlance, viz.,

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¹ *Manu*, X, 115.

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² *Vasiṣhtha*, XVI, 10.

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³ Jolly, 90—92.

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⁴ IX, 44.

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⁵ Letourneau's *Property: Its Origin and Development*, p. 72.

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1. religion, a category of theology, e. g. Confucian *dharma*, Mohammedan *dharma*, Christian *dharma*, Hindu *dharma* etc.,
2. virtue, as opposed to vice or sin, a category of ethics,
3. law, as a category of jurisprudence,
4. justice,
5. duty.

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For purposes of political theory we have to neglect 1. and 2. and confine ourselves to the import of *dharma* as law, justice, and duty. The doctrine of *dharma* then enunciates three propositions:—first, that the state differs from the non-state as a law-giving institution; secondly, that the state differs from the non-state as a justice-dispensing institution; and thirdly, that the state differs from the non-state as a duty-enforcing institution.

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In the *mâtsya-nyâya* there is no law, no justice, no duty. The state is the originator of law, justice and duty.

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¹ *Ibid*, LXVII, 1.

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² *Id*, LXVIII, 22.

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³ VII, 14, 15, 18.

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A. Dharma as law

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*Dharma* (law) is the creation of the state, and the state, as such, has the sanction of *danda*. Theoretically, therefore, every *dharma*, if it is nothing but *dharma*, is *ipso facto* what should be called “positive” in the Austinian sense. *Dharma* is obeyed as *dharma*, only because of the coercive might of the state. All *dharma-śâstras*, i. e. the legal text books e. g. those of Manu, Yâjnavalkya, Nârada, Brihaspati, and others, would thus automatically acquire the character of “statute”-books simply because their validity, provided they have any validity, depends on the authority of the state. The Yâjnavalkyas and Manus would obviously have no “sanction” in a condition of *mâtsya-nyâya*.

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But probably, so far as actual practice is concerned, the *dharma-śâstras* of India had no greater sanctity than as treatises embodying the “positive morality” of the different ages. Let us therefore examine how the nature of *dharma* (as law) was understood by the theorists themselves. As is well known, law as a category of jurisprudence, has passed through two stages in European thought. The same two concepts we notice in Hindu political philosophy also.

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In ancient European theory law is the embodiment of eternal justice. Thus according to Demosthenes (fourth century B. C.) laws are the gifts of the gods and the discovery of the sages. In Aristotle’s conception law is the rule of god and reason. Stoics like Cicero and Seneca believed that law lies in the hearts of all men.

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This doctrine of “natural law”, of law as the “king of all things”, was maintained by the jurists such as Gaius and others whose views are codified in the *Digest* of Justinian. It was the theory also of Celsus and other Church Fathers. In medieval European (Teutonic) theory, so far as there was any theory independent of the traditions of Roman jurisprudence, law was not something “made” or “enacted” but something which existed as a part of the national, or tribal, “life”.

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The modern theory of law in Europe may be said to have started in the sixteenth and seventeenth centuries with Bodin and Grotius’s analysis of sovereignty. It has since become classical through the handiwork of Austin,² the father of analytical jurisprudence. According to this view, law is the command of the sovereign.

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² *Lectures on Jurisprudence*, VI.

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Thus there are two theories of law, — first, that it is eternal, original, existing either as a part of the universal scheme of things taught by “natural reason”, or as a custom among the people;

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¹ Carlyle, Vol. I, p. 235; Mackenzie’s *Studies in Roman Law*.

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secondly, law as created by the fiat of a law-maker, as something which is to be obeyed not because it is just, good or eternal, but because it has been enacted by the state. Both these conceptions are to be found among the speculations of Hindu political philosophers. The distinction between positive law and ethics is clearly set forth by Vijnâneśvara (eleventh century) in his notes on the text of Yâjnavalkya¹ in regard to the judicial duties of the King.

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¹ K. L. Sarkar, Lect. IX, p. 116.

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The ethical conception of law as the dictate of conscience, i. e. as *jus naturale* has a long tradition in Hindu thought. In the *Brihad-âraṇyak-opaniṣat*² law is identical with truth and is as powerful as king. It is of course the creation of God. Brahman (God), we are told “was not strong enough.” So he “created still further the most excellent *dharma*.*** There is nothing higher than law. Thenceforth even a weak man rules a stronger with the help of the law, as with the help of a king. Thus the law is what is called the true. And if a man declares what is truth, they say he declares the law; and if he declares the law, they say he declares what is true. Thus both are the same.”

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² Upanishads, Vol. II, p. 89.

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According to Âpastamba,³ law is what is “unanimously approved in all countries by men of the Aryan society who have been properly obedient to their teachers, who are aged, of subdued senses, neither given to avarice nor hypocrites”. In the *Manu-Samhitâ*,⁴ again law is whatever is practised and cherished at heart by the virtuous and the learned, who are devoid of prejudices and passions. Vaśiṣṭha⁵ and Baudhâyana⁶ also hold the view that law is the practice of the *śiṣtas* i. e. those whose hearts are free from desire.” The *śiṣtas* or *riṣis*, i. e. passionless and unavaricious persons of India are obviously the “sages” of Demosthenes.

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According to Yâjnavalkya's Code⁷ according to which law is *sadâchâra* or the “practice or conduct of good men”, what “seems pleasant or good to oneself”, and the “desire that springs from mature consideration.” So also in the *Vyavahâra Darpana*, where law is described as “impersonal and self-existent, the king of kings”, far “more powerful than they, we have once more the Oriental counterpart of the Stoic, Roman and Patristic conceptions of law In Hindu analysis *dharma* came to be defined as positive law also. The conception of law as *râjnâm âjnâ* in Kautilya's language i. e. as, command enforced by sanction finds clear expression in the writings of Nârada, Śukra, Jaimini and his commentator Śabara Svâmi. In Nârada's *Smriti*¹ we are informed that the performance of duty having fallen into disuse, positive law (*vyavahâra*) has been introduced, and that the king as superintending the law is known as *danda-dhara* or wielder of *danda* (the power to punish). The sanction is definitely mentioned in the *Śukra-nîti*,² according to which the sovereign should categorically state in his commands that he would "surely destroy by severe punishment those offenders who after having heard these his decrees would act contrary to them."

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¹ Introduction, I, 2.

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² I, lines 623—624.

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In order that the law may be seriously recognized as command Śukra stipulates that the greatest amount of publicity should be given to it. For instance, it is the duty of the sovereign to have the laws announced by the state drum³ or have them inscribed in esplanades as written notices. The documents embodying these commands (*śâsana-patra*)⁴ are to bear the king's signature, date, etc. Laws thus being the promulgations of the state, we read further in the *Śukra-nîti*⁵ that the king is the "maker of the age", the "cause of time" and of the good and evil practices, and that since the ruler is the dictator of virtues and vices, people make it a point to practise that by which he is satisfied. Besides, as law is upheld by sanction we can easily understand why Śukra advises the sovereign to make use of his terrible weapon⁶ in order to maintain the people each in his proper sphere.

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³ *Śukra*, I, 625—626.

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⁴ *Ibid*, II, 607—608.

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⁵ IV, i, lines 116—119.

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⁶ *Ibid*, I, 120.

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The same idea of positive law is expressed by Jaimini in the very definition of *dharma*. As we find in his *Mimâmsâ-Sûtra*, *chodanâlak-shano’rtho dharmah*.⁷ *Dharma* is that desired-for object (*artha*) which is characterized by command (*chodanâ*). Jaimini has also examined the reason as to why that which is determined by a command should be obligatory. He analyzes the reason as lying in the fact that "the relation between the word of command and the purpose to which it is directed is eternally efficacious."⁸

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⁷ Ganganath Jha's "*Shabara Swami's Commentary on Jaimini's Mimamsa*" in the *Indian Thought* for 1910.

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⁸ K. L. Sarkar, Lect. I, pp. 23—24.

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The doctrine of *dharma* as law introduces into the theory of the state the cardinal element of *aiśvarya* or *svâmitva*, i. e. sovereignty. Whether *dharma* be taken as equivalent to the dictates of a moral sense, or as the observance of a tribal or some other established usage, or as the deliberate order issued by an authority with threat of punishment in case of violation, it is clear enough that *dharma* is like *danda* the most awe-inspiring fact in the state's life. *Danda* and *dharma* are indeed the two faces of the political Janus, so to speak, the one looking to the failures, the other to the triumphs. Or, to express the same thing in a different way, *danda* is the root of a tree which flowers in *dharma*. The state can be recognized positively by *dharma* which is in evidence, while *danda* maintains its vitality from behind.

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B. Dharma as justice

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We have now to understand the doctrine of *dharma* as justice in its bearing on the theory of the state. Justice does not exist in the *mâtsya-nyâya*; if therefore a reversion to *mâtsya-nyâya* is to be avoided i. e. if the state is to be maintained, justice must not be tampered with. Justice is necessarily as integral a limb of sovereignty in Hindu conception as law.

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The dignity of justice has been declared by Manu¹ in the following terms: "If justice is violated, it destroys the state, if preserved, it maintains the state. Therefore justice must not be destroyed". Such sentiments in the *Manu Samhitâ* could be bodily incorporated in the writings of a Jonas or an Alcuin of the ninth century and other mediaeval European theorists² with whom the maintenance of justice is the *sine qua non* of the state and kingship.

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¹ VIII, 15.

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² Carlyle, III, 109.

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But what is justice? It is a most practical or pragmatic definition that Hindu theorists offer. According to Manu³ justice consists in the application of law to the cases arising between the members of the state. And that law is to be known from the customs and from the *Institutes*, e. g. those of Gautama, Yâjnavalkya and others.

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³ VIII, 3.

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Justice, as interpreted by Śukra,⁴ consists of two elements. First, it consists in a discrimination of the good from the bad (of course, according to the laws). Secondly, it has a utilitarian basis in as much as it is calculated to minister to the virtues of the rulers and the ruled and promote the common weal.

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⁴ IV, v, lines 7-11.

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The doctrine of *dharma* as justice is thus organically connected with the theory of the state as contrasted with the non-state.

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C. Dharma as duty

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*Mâtsya-nyâya* is a condition in which duties are nil. Men left to themselves tend even to persecute¹ their mothers, fathers, the aged, the teachers, the guests and the preceptors. It is the fear of *danda* that brings about an order among men, each man minding his own duty (*sva-dharma*).² The doctrine of *dharma* as duty is thus like that of *dharma* as justice naturally a doctrine of the conservation of the state. It is only from this standpoint that the theory of duties has a bearing on the theory of the state.

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¹ *Mahâ, Śânti*, LXVIII, 16.

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² *Ibid*, LXVIII, 8; *Manu*, VII, 21, 22, 24; *Śukra*, I, lines 45-51.

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The doctrine of duty as stated in the *Gîtâ*³ runs thus: "One's own duty, though defective, is better than another's duty well performed. Death in performing one's own duty is preferable; the performance of the duties of others is dangerous". The passage here has no mere metaphysical significance. This theory of *sva-dharma* (one's own duty) or "My station and Its Duties" as Bradley would define it, has a political significance as well. It has the sanction of the state behind it; for, says Manu⁴ "neither a father, nor a teacher, nor a friend, nor a mother, nor a wife, nor a son, nor a domestic priest must be left unpunished if they do not keep within their duty". According to Śukra⁵ also, the people should be kept each in his proper sphere by a "terrible use" of the weapon of sovereignty.

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³ ch. III; cf. Bosanquet's *Philosophical Theory of the State*, pp. 204-207; Barker's *Plato*, p. 176.

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⁴ VIII, 335.

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⁵ I, line 120; IV, iii, 15.

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Duties are thus enforced by *danda*, which also backs the laws. Indeed from the angle of the *prajâ* or *prakriti* (the people in the state), *dharma* as duty is but the obverse of *dharma* as law. What the state calls "laws" are recognized as "duties" by its members as a matter of course. The doctrine of duty is thus identical with that of law turned inside out.

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Altogether, then, the doctrine of *dharma* in its entirety imparts to the state the character of an institution for the advancement of "culture". The state elevates man out of the law of beasts by instituting legislation, adjudication, and enforcement of duties. The functions of the state are thus in keeping with the ideas involved in the doctrine of *danda*. The state as a pedagogic or purgatorial or moral-training institution is not merely a *mamatva*-insuring instrument i. e. a property-securing agency, but a *dharma*-promoting *samûha* (public association) i. e. a *Kultur-Staat* or the "virtue"-state of Plato. And herein the Hindu theory meets Aristotle's conception of the state as the means to the furtherance of the "highest good" of man.

c) The Doctrine of Varnâsrama

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*(Classes and Stages).*

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Out of *mâtsya-nyâya* evolves *dharma* through the fiat of *danda*. Now *dharma* has need to be embodied, i. e. the *Kultur-Staat* must have to materialize itself in space and time. This is accomplished in the *râstra*, which provides *aisvarya* (sovereignty) with "a local habitation and a name". It is in and for the *râstra* that the state institutes *mamatva* and *dharma*. Property, law, justice and duty are concretely realized through this medium. The doctrine of *râstra* thus furnishes the crowning arch in the Hindu theory of the state.

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What is this *râstra*? It signifies "the country". Both "movable and immovable things" are indicated by the term.¹ It is a territorial concept comprehending an aggregate of human beings and material possessions and thus constitutes the "physical basis" of the state. It may be taken almost as equivalent to *res publica*. The doctrine of *râstra* would therefore naturally consist of two parts: (1) the doctrine of property and (2) the doctrine of *prajâ*, *prakriti* or population. The doctrine of property has already been investigated. Let us now examine the doctrine of population in its bearing on the theory of the state.

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¹ IV, iii, line 2.

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In the *mâtsya-nyâya* condition there is the people, but no state, because there is no *danda* to enforce *dharma*. If the *prajâ* is not to remain ad infinitum an amorphous mass of selbständig atoms, it must have to follow *sva-dharma*, i. e. the members of the society must perform their respective "duties", which, as we have seen, are really "laws" turned inside out. The observance of these duties would necessarily imply the organization of the people into a unified state, a *samûha* or a *pada*.

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Now, communally speaking, the *prakriti* or members of a society naturally fall into economic and professional groups, classes or orders, the so-called castes of India. The alleged classification of a society into four occupational groups, e. g. Brâhmaṇa, Kṣatriya, etc., is however a conventional myth, at best, a legal fiction. Students of *Realpolitik* like Śukra² are aware that the actual number of these orders or castes is "unlimited". The reason, as may be guessed, is stated in the *Śukra-nîti* to be the “intermixture of blood through marriages”. These orders of *prajâ* or classes of members of the state are known as *varṇas*¹ i. e. colors, probably designated after some typical (or hypothetical?) ethnic complexion. Further, from the standpoint of the individual, we have to notice that people pass through well-marked physiological stages, e. g. infancy, adolescence, etc. These stages or periods of life in every person are called the *âśramas*.² They are arbitrarily known to be four in the span of human existence.

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² IV, iii, lines 22–23.

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¹ *Kâmandaka*, II, 18—21.

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² *Ibid*, II, 22—31.

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The total population with all its interests and problems of all the different periods of life is then comprehended by the two categories, *varṇas* (classes) and *âśramas* (stages). If therefore the people is to constitute a state, every member of each of the *varṇas* (no matter what their number and what their occupations) must have to perform the duties (*sva-dharma*) of his “station” at each of the four *âśramas* or periods of life. Thus, the soldier at the front must “do or die”, the young man while at school must not marry, the king must keep to the coronation oath, and so forth. This is the doctrine of *varṇâśrama*,³ the counterpart of the Platonic correlation of “virtue” and status (*Republic*, II, III, IV).

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³ *Kâmandaka* II, 35; *Pos. Back.* Vol. II, p. 90.

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As soon, therefore, as the *prajâ* is organized into a state, be it in any part of the world or in any epoch of history, a *varṇâśrama* spontaneously emerges into being. It is inconceivable, in this theory, that there should be a state and yet no *varṇâśrama*. To say that the state has been born and yet the various orders or classes of the people do not follow *dharma* would indeed be a contradiction in terms, a logical absurdity. *Sva-dharma* leads inevitably to *varṇâśrama*, the two are “relative” terms. They indicate coexistent phenomena in the social world. In other words, the doctrine of *varṇâśrama* is a corollary to that of *dharma* as duty, *varṇâśrama* is but *sva-dharma* “writ large”.

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The non-existence of *varṇâśrama* is possible only under conditions of non-performance of duty. Suppose the *varṇas* do not follow *dharma*, e. g. the soldier flies from the enemy in a cowardly manner, the husband does not maintain the wife, the judge encourages the fabrication of false evidence, the king violates the *samaya* or compact with the *prakriti*, and so forth. According to Śukra⁴ the offenders are to be rectified by the *daṇḍa* of the state. This is the supreme moment for the exercise of *aiśvarya* (sovereignty). Why, even the king is not immune from penalty.

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⁴ IV, iv, 6, 82—83.

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Rather, as Manu¹ declares "the settled rule", wher "a common man would be fined one *kârṣâpaṇa*, the king shall be fined one thousand". Really, a state is no state unless it can enforce as duty the *dharma* that it has enacted as law. This should be postulated in the irreducible minimum of the state's functions. One can therefore easily understand with Kâmandaka² why if *dharma* is violated by the members of the state there is bound to be a *pralaya* or dissolution of the world. Verily, with the extinction of *varnâśrama* there is a reversion to *mâtsya-nyâya*. The violation of *sva-dharma* and of *varnâśrama* brings back the "state of nature", and the state automatically ceases to exist.

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¹ VIII, 336.

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² II, 34.

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*Varnâśrama*, though obviously a socio-pedagogic and ethnico-economic term, is thus fundamentally a political concept. It is an indispensable category in an organic theory of the state. It is identical with *râstra* from the demographic (*prajâ* or population) aspect. The doctrine of *varnâśrama* is therefore the doctrine of *râṣtra* minus the doctrine of property; and further, the doctrine of *dharma* (as law and duty) applied to the total *prakriti* (or members of the state) coincides with the doctrine of classes and stages. The doctrine of *varnâśrama* then is clearly an integral part in a consistent philosophy of politics.

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