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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c16.s1.t3: b) The Doctrine of Dharma (Law, Justice, and Duty)

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c16.s1.t3

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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.

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