Legal History

What Is Subject Matter Of the Discipline Legal History?

History has for its subject matter everything that has already happened in the past and that which

belongs to the world of nature as well as the world of man. In History, man emerges as conscious being.

This individual is one who sees, thinks, Knows, plans and decides. Thus History in a restricted frame

deals with human experiences and Human events in the Past.

1) It is the task of History to comprehend all Human activities as suggested by evidence which may

or may not be fragmentary. History is the study of the past in the light of the present. Historians

have suggested that present evidence is more important than past existence in the understanding

of the historical verses. However, no meaningful history can be written without interpreting the

past according to the present and the present being shaped after the past. Thus this close

relationship between the past and present is possible with the help of facts and evidence.

2) History then is a form of inquiry and investigation. A historian has the responsibility of

researching the past which makes history a complex social process. Thus all individuals

mentioned in History including the historian are social being. The eminent Oxford Historian of

early 20th century R.W. Collingwood has said that “ Knowing oneself is knowing what one can do

based on what can be done”. Piety to the past is not for the sake of the past alone but for the sake

of the society we live in the present and also for the leading to the creation of better social and

economic process in the future. The task of Historian is not to orient history towards past/ present

but lead to an understanding of a better future.

3) The fourth object of a Historian is to ensure that history does not move in a fixed Direction i.e.

linear direction. The Historians focus of attention changes from to time and from class of

historical facts to another which may be determined by the respective generation. Thus the nature

of writing of History changes making history time-bound. Thus change plays a vital role in

making the contours of History. The eminent Aligarh Historian Irfan Habib has said that re-

reading of the past frame is a continuous process. Thus as Oxford Historian E.H Carr says”

History is an unending dialogue between the past and the present” and an unending process which

underlies the importance of continuity also. As Habib also says “In History, The perfection of the

science of History is an index of its progress toward collective consciousness and towards a fuller

attainment of its conscious capacity to act.” Out of this emerges his conviction in historical

materialism that forms the basis of Marxism. Yet Historical science is both plural and

accommodative of choice. All Historians admit that plurality must inform the interpretation of

social organization and politics of the past.

Purpose of History

1) The First purpose of History is to use the subject to understand the society of which we are

members and of the tradition of which we are heirs and the institution we serve and the laws

we are compelled to obey. History seeks to understand the natural and the manmade world

we live in. As European Historian have suggested that the present is the daughter of the past

and in a way the present becomes the past itself. The purpose of History is to treat past

happenings as precedents for action both individual as well as social. Thus the central

purpose Of History is to illuminate human nature and tell the story of mans actions through

which History seeks to explain a History of Humanity. This seeks to broaden the Mental

Horizon

2) History assists in learning from our past mistakes. We profit from the stumbles and tumble of

our ancestors. History makes us aware of our limitations from which we also learn that

exponents of new History are skeptical about the didactic value of history. A proper and

honest reading of history tells us we should not be in awe of i.e. we should pay respect to our

past but not show too much reverence to our past. History then emerges as a teacher. History

furnishes us with precedents of conduct which enables us to ensure that our present conduct

is proper. This happens in the light of proper knowledge of the past. Great Historians have

suggested that History is not only a scientific inquiry but a school for active learning and

Political Life.

3) It is generally assumed that History does not repeat itself. This is a fallacious assumption.

History repeats itself but not in exact detail since its purpose is to draw lessons from the past,

historical lessons from one range to the other to repeat itself in small ways. For Example, The

History of revolutions suggest that most revolutions have been similar to each other like the

English Revolution (1640), French Revolution (1789) and the Russian Revolution (1917-

1918) are found to have been similar to each other where the old regime was replaced by the

egalitarian Government. However the Historical events are not necessarily relived since

History repeats itself but not in exact ways. There is certain amount of Historical uniformity

that represents continuity. Had Historical events been unique there would have been more

errors in the present.

What is Law?

1) It is founded on Dogmas and experiences of life. Rational laws are needed to bring order

and stability in the society for the preservation of social institutions. Justice or Dharma is

needed for the political progress of state. Dharma In this sense means equality for all in

the eyes of law. Dharma acts as a restraining influence on law and curbs anarchy in

society.

2) In primitive and modern societies, law has always represented a Supreme social force

compelling obedience from Individuals. A body of customs that are binding upon the

whole Body of people in the society exists, violation of which leads to the imposition of

penalty. In this Situation, Coercion does not play an important role although the notion of

Sanction does. Customs form the basis of all the Law making in the Society. It may be

seen as Divinely Ordained.

3) A great function of law is to maintain the fundamental order with which men find

security and which offers equal security to all men. Law has been defined as mainly an

embodiment of ancestral injunction. Legal Institutions developed just like any other

socio-political institutions. It is not an objective body of rules. It has a Social role to play

as well.

It follows from this then that law is a body of principles applied by the courts in the

exercise of their respective jurisdiction and in this regard the sources of law are customs,

judicial Constructions, Precedents and legislations. Although the first source custom still

remains the substructure of law. A statement made by a judge in the course of judgment

by way of explanation and or illustration becomes a precedent. Such obiter Dicta have no

binding force as such. A Statute another source of law aims emphatically at forming legal

rules in a definite manner.

Law thus becomes an important instrument of progress. The habits and customs and the

History and tradition as well as social lives and religious beliefs represent the laws of the

state which are most often agents of progress. To understand these Sources, one needs to

have a proper grounding in the subject matter of Legal History. Thus we come to the

connection between History and law. Just as the present is the daughter of the past, the

present legal system is rooted in the past system. The laws are said to be the instrument to

pry open the human mind and understand the spirit of the nation and it’s thought.

History is important because historical interpretation is necessary to understand

legislations. Legislations that should ideally be liberal in nature can’t be comprehended

properly until and unless we know the historical interpretation in the context of its

background. That forms the principle of social progress. Law mirrors organic political

life. It is also an index of ethical judgment although here ethics do not justify religion.

Theories of the origin and functions of state cannot be understood until and unless we

seek to relate history with law.

All legal historians should be lawyers. There is a utilitarian connection between law and

history; precedents play an important role in law making. Yet a legal historian should not

exclusively live in a world of his own. He is not an entity unto himself. He must borrow

from other disciplines such as politics, Sociology and Economics. To understand an

enactment one needs a proper understanding of History. Therefore, there is harmonious

relationship between the two; both the subjects depend on each other.

History of Ancient India.

Polity in India (Ancient)

At the time of the Aryan invasion of India, both agricultural and urban communities

existed in Indian Subcontinent. We learnt from the Vedas that these communities were

organized under powerful monarchies. This period stretched from the end Of the

Mohenjo-Daro Civilization to the 5th century B.C. During this period first steps in the

formation of the state and society were taken. This period marks the first significant stage

in the development of Indian State and Society.

The Tribal Polity in India.

The Aryans who came to India were Semi- Nomadic, pastoral people. The Aryans who came to India

were at the beginning semi nomadic tribes. They followed pastoral mode of Economy. At the beginning

the Aryans did not possess any Knowledge of the use of Iron and did not practice effective cultivation.

Even Though they rode on Horses, The Aryans used primitive tools and weapons made of copper that

did not give them edge in the art of warfare. Thus in the initial phase of Aryan invasion of occupation of

the part of North Indian Subcontinent, there was no meaningful effort build large empire. That could

lead to the formation of the developed state organization. Thus in the initial phase of their arrival of

Aryans in India, They gave more importance to the social life rather than a strong state.

The Semi nomadic people were mobile people. Their existence as Semi nomadic kept them permanently

mobile and unsettled life, weak state formation and an emphasis on the polity meant that there was

little hope for stable kingdom, since the territorial states could be established on when settled life could

be established when settled life is guaranteed, thus the early Aryan period saw an absence of territorial

state formation. This was reflected on the existing structures on social relations that could be neither

rigid nor too strictly stratified; hence only loose tribal principalities could be staged in Northern India.

Features

The social structure in ancient India was based on the principal of kingship. The terms “Gotra” and

“Vrata” occurred in the Rig Veda in several places. Gotra refers to the same shed under which a family

lived. The Economic activities of the clan revolve around this concept of Gotra. Thus a Gotra can be

rendered as a clan or lineage, this was then a central foundation on which the social structure of the

early Vedic people rested.

Avrata literally means a hoard or troop or assembly. The Vrata was a kin based group meaning a

collection of related families, which was also one of the foundations early Rig Vedic structure. Once the

Rig Vedic people took to more settled form of agriculture, the Vrata denoted villages and inclined a

sedentary life. The Vrata also formed in the sense of a village, the smallest political unit. Other basic

elements of the early Rig Vedic period included “Jana” and “Vis”. Both these categories implied that the

early Vedic people had not moved from the tribal stage. “Jana” was the highest social unit based on

patriarchal Kinship. Some scholars believed that, it corresponded to the tribe; there was a “Janapati” or

the “raja”. The “vis” was a subdivision of the Jana; it was a clan of the tribe which had a head the

“visampti” or “vispati”. A “vis” was a fighting unit with a visampti/vispati as its head. Battalions emerged

out of the “vis”. Thus what emerges from this illustration of the social rig Vedic period is that the early

Aryans wore their loyalty to their king rather than any fixed territory. Also the tribute that the victorious

king received from the vanquished was rather obligatory than being regular. There was never a Standing

army. The Army would be mobilized from the Kinsmen as an when the need aroused. Thus the society

was based on constant but disorganized form of warfare. Yet the process that gave rise to the formation

of state organ had already begun in the early Rig Vedic time.

Tribal Assembly

Essential part of tribal polity in ancient India.

There were three main types of tribal assembly in Ancient India.

These were as follows

1) Vidhata

2) Sabha

3) Samiti

The term Vidhata derives from the root word “Vid” which means to exist. The eminent Historian A.S.

Altaker suggests that this assembly was a religious or sacrificial gathering. Performance of which

requires the highest knowledge of the Vedas. It was a parent folk assembly from which emerged the

Sabha, Samiti, and Sena which corresponded to civil ministry and religious functions.

This assembly organized the religious life of the people. It is note worthy that women took an active

part in the Vidhata. A closer reading of the Vedas suggests that the Vidhata was a family council.

The Vidhata was deliberate body which made Laws and ordinances for regulations of tribal life. It

conducted military operations under a chief. It appears to have been large assembly probably

representing an entire tribe. In short Vidhata was the earliest form of assembly attended by both

men and women performing all kind of rituals and fares, economic, military, social and religious.

It was made to answer to all the needs of primitive society. Which at this stage know hardly any division

of labor which probably shared its entire product in common .Thus the key stone of this system was

cooperation where there was a near total absence of male chauvinism. But the Vidhata does not seem

to have taken any active interest in administration.

Sabha

The Sabha was a popular assembly. It was a note worth organization of the Rig Vedic people. A unique

organ of Rigvedic polity, this term has been interpreted by both Oriental and Occidental Scholars.

According to one school of scholars it was like the upper house of the Parliament where priests and

Aristocrats Sat. According to other Historians it was just a assembly, Historian N.C Bandhopadhyay

Suggests that the Sabha was an association of Kinsfolk but later it became an association bound

together by ties of blood or local antiquity. The Sabha emerges as Central aristocratic gathering

associated with office of King and in self record a political council. In Rig Vedic period women also

attended Sabha (discontinued later).

The primitive assembly assumed Patriarchal and aristocratic character in the later Vedic period. A

member of Sabha normally possessed enormous wealth and men and women of very high status could

become members.

The Sabha had political and non political functions. It was a sort of national adjudicator. However as the

eminent Historian R.C. Majumdar even during the phase of Royal imperial centralization Judial Sabha

traces a popular origin. The Sabha also had commercial functions to perform free and frank discussions

were held before arriving at Decisions. In all political and non political matters king had a role to play.

Thus as R.C. Majumdar in his book entitled “Corporate Life In Ancient India” suggests that the Sabha

allowed the tribal People of North India to participate in the corporate activities of their polity and

society. It was not merely an effete body but was vested with real powers of the King; it formed a well

known feature of Public Administration of Rig Vedic Time.

Samiti

The Samiti was an important Constitutional body of Vedic times. It developed after the emergence of

the Sabha. Rig Veda says that it was an assembly of Vedic tribe. According to some German scholars

Emile Ludwig says that it was a lower house of the parliament- a comprehensive body comprising of the

common people of the Vedic period which in Sanskrit are called Visah. It also included the Brahmans

and other rich People. The Historian N.C Banerjee says that it was the gathering of the entire folk of the

community making it an assembly of the Rashtra. It’s Functions Included holding of the royal Coronation

and wartime meetings were held with the Samiti. Thus the Samiti had a way of discharging political

work. Other Historians such as A.S. Altaker hold that Samiti was made of Aristocratic Element and the

priest especially the Royal chaplain attended its meetings. At the same time the Samiti retained its

popular character. According to Jaiswal, the Village formed the basis of the Samiti, if Not initially,

certainly later Vedic terms, however this claim has not found too much support. Amongst its most

important function, Samiti was given the task of electing the King, in Vedic times Kings could be re-

elected. Matters of the state especially in regard to military and executive were discussed in the Samiti.

Another Historian U.N. Ghosal suggests that the Samiti was not Sovereign body and did not exercise

control on executive, Judicial or Legislative or policy matters. Thus Samiti emerges as a basic feature of

Public administration in the Rig Vedic Times. The non political issues discussed in the Samiti revealed it

was a sort of national academy. It tested the Knowledge of the educated segments of the tribe’s i.e.

Visah. All non political matters were attended by the King. Thus the Samiti emerges as a Deliberate Body

where debate and Discussions were encouraged that was democratic in nature. Emphasis was laid on

co-operation between the king and the people, R.C. Majumdar has said that that the independence of

the assembly was never undermined. Honestly prevailed in the Samiti. All Discussions were held and all

decisions were taken in the light of reason. (Mentioned in the Book Vedic age).

The Existence of such an organization indicates that the Rig Vedic people were seriously interested in

Politics. A sense of public life and political activism pervaded the ranks of the tribal people. This was

possible because of the Size of the tribe. The compactness of the tribe kept them together as well as

politically active. With the growth of States and emergence of the territorial states in ancient India, the

status of the Samiti began to decline. The King became all powerful. Meetings became irregular and

eventually the Samiti began to disappear. K.P. Jaiswal has added that overtime the Samiti were re placed

By parishads while Sabha Developed as the Privy Council of the King.

Later Vedic developments.

With the passage of time, Small tribal state developed into large territorial state due to settled life.

Agriculture became the main mode of economy. Regular tributes were paid to the King. This was the

period when rituals were invented by the wealthy class which led to the subjuciation of the peasant. A

strong and highly complex power structure emerged in the later Vedic Period which clearly favored

the formation of States. Private property came to be protected. Patriarchy became entrenched in North

India. Around 500 BC there was an increase in the availability of Surplus and Machinery.

Kingship In India.

There is a considerable amount of speculation regarding the origin of the Kingship in North India in

later Vedic time. The Aitareya Brahmans referred to the origin of kingship suggesting that the lack of

central authority in India was responsible for the eventual need for a monarch. A King was needed to

guide his people in times of war. This line of thought is supported in the Buddhist texts as well. The

Agnna Suttanta suggests that there was a state of “Matsyanyaya” in Northern India literally means the

logic of Fish i.e. a state in which the strong devours the weak a state of anarchy. The Buddhist text

suggest that to curb this state of Anarchy a strong central authority was needed and this authority came

to be Known as “MahaSamanta” or the Great Elect. He was called the “Kshatriya” because he was the

lord of the field and Rajan, because he was the protector of the law and order. This has been stated in

K.M. Panikkars “The Idea of Sovereignty and the State in Indian Political Thought”.

This speculation in the origin of Kingship implies that monarchy was both elective and contractual. The

Buddhist literature point towards a close relationship between the social and political contract in the

making of the Institution of kingship. It is suggested that a social contract was followed by apolitical

contract. The precedence of social contract points out the advanced stage of social development in

ancient North Indian Society. We find that there was a growing importance given to the strong and

viable social order. In Northern India that can be seen as an essential for the prerequisite for an equally

strong political order. This combination for the political and social was essential to hold Society and

Polity together at times when internal differences cropped up and which later turned into a larger

political order. This emphasis also distinguishes the Buddhist contract theory from the Brahmans version

of origin of Kingship as is stated in R.S. Sharma’s “Aspects of Political ideas and institutions of Ancient

India” As professor Sharma suggests with the passage of time and Rig Vedic State System the

qualifications of a monarch changed The Buddhist texts have suggested that the King had to possess

Physical qualities of the aesthetic type, along with the virtues of head and Heart. He also had to be the

protector of lands but since he was Kshatriya and also the representative of the community, not owner,

a principal that closely informs the contract theory. The king also had to be protector of law and order.

Here law Implies Dharma, i.e. righteous or justice. Therefore the King had to be universally respected.

The Theory of origin of kingship in Kautalyas Arthashastra

In the Arthashastra of Kautalya the origin of king Ship occurs incidentally which is related to espionage.

The Arthashastra suggests that kingship emerged as a result of Anarchy. It is mentioned that the

responsibility of maintaining security of People and giving punishment and levying taxes. A central

Authority was needed. This section in Arthashastra also deals with Contract theory. King is invested with

Divine power. Kautalya is quick to point –out that king Central Duty is to receive revenue to offer

protection. King is the spiritual leader of his tribe or even state, even with regard to this spiritual

function the King is bound to the Contract theory. Thus the survival of monarchy in Ancient North India

was Subject to popular reviewing. This suggests that the contract theory was meant to act as a check on

the unbridled show of power by the Monarch. All officials of the state were subject to a Contract

including the King mentioned in all three texts and interpreted by many Historians. Texts (Aitareya

Brahmans, Agnna Suttanta and Arthashastra

Theory of origin of Kingship in ShantiParv.

The First speculation which lays emphasis on Divine Power suggests that the King is the heir of Lord

Vishnu and that in a Monarchy; the Power of Brahmins should remain intact. The Contract is between

the king and the Brahmin. The Contract according to this section was a unilateral one in which the

Brahmins have a great deal of privilege. The King promised to show respect to the Brahmins in return for

which the Brahmins accepted the lordship of the Monarch. The importance of the Brahmins increased

through such a Contract. This speculation comes in the 67nth chapter of the ShantiParv. Even this

Speculation suggests that the origin of Kingship may be subjected to divine will. This speculation is more

authoritative of the first one and lays stress on the concept of the king as a protector of Law and order.

The second Speculation (57nth of ShantiParv, Mahabharata) suggest that the Divine will is all powerful,

the King as the Supreme Authority who can punish , in the sense of treasurer he was a Kosa, while

someone who can give punishments he was the protector of Dandniti around which Hindu Dharma

revolved. This is where Hinduism becomes a Distinctive religion, which other religion lack. The king is

identified as a contractual one who has duties to perform but is accountable. This also does not depict

the king as an absolute entity. Monarchy in the Dharmic notions is not an absolute notion as understood

by the overzealous Republicans of the Modern times. This makes the contractual notion of kingship

somewhat untenable in the modern constitutional state as the latter are republican in nature. Kingship

is meant to curb anarchy which a republican state fails to do.

Limitations on the notion Of kingship in India.

Unlike Europe in India kingship was never an absolute concept. Our knowledge of Kingship is governed

by European absolutism.

1) Numerous illustrations of kings in Indian history demonstrate that the King is not a just ruler but

more a guardian of the people. The king necessarily has the obligation of looking after his

subjects in a social and political Contract. So the legitimization of monarchy in Brahminical

literature comes only when the monarch is seen as a protector and not a ruler. Here a protector

is one who has no absolute power. The king is the representative of the people. The king has to

carry out his duties in the light of the provisions of the contract. This provision leads us to

believe that absolutism is not restricted to monarchy alone.

2) The Monarchs principle responsibility is to emerge as an institution to curb anarchy. If he fails to

perform this task, he shall to cease to rule. Legitimization of monarchy in Hinduism comes from

the need to curb monarchy. The task of the monarch is to maintain social order. So monarch in a

limited sense emerges as a policy maker and not as an absolute ruler.

Royal Functions of Kingship

The monarch is a Representative of the people. This is much amplified in the Rajput History in India. For

Instance, post independence when the princely states were integrated in the Indian Union, Sardar Patel

emphasized on the integration of Hyderabad based on Mewars acceptance into the Indian union.

Kingship was accepted widely in India. Kingship should be interpreted in the light of principles of

kingship that are democratic and unauthoritarian.

1) The first royal function is the protection of the people and the assurance of security, life,

property and religious belief. One major strand in the Hindu Kingship is that of faith and religion.

The Mahabharata describes the king as a protector of internal and external Peace, preserver of

social order and ensurer of freedom and the right to choose. This View is to be found also in

Kautalyas Arthashastra where it is stated that however the absolute be the power of the King,

he has to act with certitude. Another important element that informs the representativeness of

the Monarch is the Concept of “Prajahita” i.e. welfare of the people, one of the first principles of

Rajneeti.

2) The second Royal function is to uphold Justice. The King emerges as a moulder of society and

has the responsibility of bringing harmony between the twin concepts of class and caste. It also

has to be remembered while the welfare of the people is the prime responsibility of the king; he

also has to ensure his own prosperity. Self interest also informed the building up of the

institution of kingship.

Councilors and the Officials

The Councilors and the officials formed an important segment of the Ancient Indian political System.

They had mostly religious and political functions to perform. They were all Ratnis. The Historian K.P.

Jaiswal suggested that these were high functionaries of the state. According to him there were 11 such

officials The Gramani (leader of Small troops) and Senani (Commander –In –Chief). R.S. Sharma has

suggested that there were some other officials Purohita (Priest), Rajanaya One who represents The

Mother Goddess thus representing Matriarchal Society, Parivrikti, and The Queen. Based on his reading

Of PanchaVinsa Brahmans, Sharma says that these officials were subordinate to the king but at the same

time, Contributed to the Strengthening of the kingship. Thus In ancient India especially in later Vedic

period, Kingship was supported by a strong bureaucracy.

Nature

These councilors and officials who were identical formed a sort of Bureaucracy. The Arthashastra of

Kautalya recognizes it as such. The member of the councilors and officials point towards a highly

developed political organization. This Organization had a developed and complex Machinery of taxation.

The tax officer (BhagaDugha), so the political system of ancient India especially later Vedic Times points

to a modern form of Governance in which taxation formed a major formed a major component.

Regarding the question of whether these officials were elected or not the Vedic sources are Unclear.

Historians such as K.P. Jaiswal have said that these officials were either elected or selected .The Principle

of caste and class representation also informed either selection or election. What is also note worthy of

the bureaucracy of later Vedic time was the participation of women in all political, social and Cultural

matter. The later Vedic polity gives evidence of fairly liberal but at the same time a top Bureaucracy

where Religion played a Important role.

Oligarchies and Republics.

In Pre-Mauryan India, tribal States were governed by oligarchies that run parallel to Monarchies. These

Oligarchies in Due course of time assumed republican characteristics. The Ruling class of the Republics

of The Shakyas and the Licchavis came from the same class and Varna, Thus narrowing the field of Co-

option of elites thus demonstrating the growth of Oligarchies. These tribes and clans were based on

blood ties. The Individual members of the groups retained their Independence but owed allegiance to

their Chiefs. The Tribes and the clans were forever engaged in Warfare. These tribes were, however

inspite of their Oligarchical and republican in nature, popular in Character, thus demonstrating the Pre-

Dominance of a relatively progressive and Modern Out look toward governance in Ancient India.

The nature of Republic in Ancient Indian Political System.

According to the Pali texts republics were quite common In Ancient India. Two republics that were

Vrijian Confederacy and the republic of Sakya of KapilVastu. The Chief elements of the confederacy were

the Licchavis of Vaishali. The Ekapanna Jataka have said that Vaishali had in all 1100 kings to govern the

kingdoms , which means that governance was fragmented in this period. The Jain accountants refer to

an Inner Council of 36 tribal chieftans controlling the affairs of Licchavis and Mallas. The republics came

into the 6 Mahajanapadas. (3 important Anga, Banga and Kalinga.) The Monarch held office for life; this

was particularly evident in the republics of Shakyas.

Administrative machinery of Shakyas

The Administrative machinery was simple and rudimentary. The Administrative and Judicial functions

were carried out in Public assemblies were men and women of all ages allowed to participate; a single

chief was elected as office holder. It was Similar to the Roman Council. The local affairs of each village

were carried out in open assemblies. The Sakyan state was territorial in nature, was an aristocratic

republic. It had single permanent hereditary chief called the Rajan and an assembly of ruling caste and

class. The assembly deliberated on public affair and issues of war and Peace, decision was based on

Voice of majority. The longevity and future of these republics depended on the changing socio-economic

conditions of the time, as well as on external pressures of the rising Kingdom of eastern India. For

example The Vrijian republic succumbed to the intrigues of the King Ajatashatru at the time of Buddha’s

death. Unlike in eastern India, the republics in western India could stand up to the intrigues of the

Mauryan Empire. Kautalyas Arthashastra and Megasthenes Indica discussed the western Indian

Republics and successful defence of their territorial integrity. The 107nth section of The ShantiParv In

Mahabharata suggests that the republican states did consider the complex problem of welfare in

ancient India. Some of these republics were Yaudhyas, the Malavas, and the Arjunayanas. The western

Indian republics were Independent. The Malavas were the founders of the Vikram era. With the coming

of the Samudragupta during 4th and 5th century A.D., These republics exist and with that we witnessed

the eclipse of Indian constitutionalism. A.L. Basham says that debates and discussions informed the

government of each such republic.

Feudalism and Quasi Feudalism.

Quasi- Feudalism: It refers to the relationship between a vanquished ruler and Victorious one, According

to A.L. Basham, European Feudalism cannot be transported to India, in which there was a complex

structure of centralized relation covering the King to the villain. Kautalya advises the defeated king to

offer voluntary homage to his Victorious neighbor. Quasi feudalism refers to the relationship between

large territorial Kingdom of centralized authority and weaker vassals, who were the petty and the local

chieftans. The ruler of larger territorial Kingdom and vassals who were the petty and local chieftans for

example we can look at the relationship between the Rashtrakutas and the Chalukyas and the Hoysalas

and the Cholas. If we investigate the inscription of 8th century A.D. in Duthpani in Southern Bihar then

we come across a complex system of Patronage mongering and demonstration of loyalty that eventually

leads to the creation of Zamindari. A.S. Basham suggests this system did not approximate to western

Model.

Feudalism

The term feudalism comes from the word “feudem” which refers to military organization. There is a

great controversy regarding the applicability of feudalism and manoralism in ancient India. The well

known Historian Vijay Kumar Thakur In his Histography of Indian feudalism compares the European and

Indian Manoralism. The European manoralism of land revenue was interwoven with administrative

organization in middle ages. According to this system land tilling peasants were at first attached to land

owning class. The nucleus of the system was the manor. The manorial system was safe in an age of

economic decentralization and bartering. In European system the king was the holder of all the land in

hid realm which he lent out to his Barons and Chiefs stipulating certain terms and conditions of services.

In return the baron or the tenant chief had to make some payments and supply soldiers in times of war,

in turn could let out the land in conditions of service. On the Death of a tenant-in –chief or tenant, His

successors had to pay a fine in order to succeed. Similarly if he had to pay a sell a land he had to pay a

fee. In addition the tenant in chief had to supply to the master the articles when his eldest son was

knighted or his eldest daughter was getting married.

Indian Feudalism

The Indian feudalism may be attributed to the writings of D.D. Kasambi and R.S. Sharma. Sharma

suggests that in the Indian model of feudalism, the king transferred the administrative and judicial

powers as well as economic ownership to the beneficiaries. In the Gupta Period fiscal and administrative

immunities were granted to the beneficiaries. The wakataka records show that the ruler gave up his

control over his sources of revenue including pastorages means of production of salt forced labor and

hidden or unknown royal Treasures, when he made grants. The Gupta and post Gupta showed that in

ancient India a feudal lord was expected to give up the right to govern the in habitants of the village that

were granted. This shows that in the Indian model of feudalism, the system of letting out and subletting

financial assets was very much prevalent. There are also instances in these records of donors asking the

inhabitants, cultivators and artisans to pay customary taxes to the donee and to obey his command. Also

the government officials and soldiers were not directed to cause any disturbances to the Brahmins, who

were the integral part of the feudal society. All these different features of the Indian model of feudalism

demonstrates complex surrender of power of state to feudal society at particular time i.e. Gupta and

Post Gupta society, later they were granted the right to punish thieves. Later they were also granted the

right to punish in the event of offences committed against property, family and person. Sharma shows

that gradually the powers of the state were also transferred to the Brahmans or the priestly class or the

warrior class.

While making these land grants certain conditions were imposed on the parties, these conditions

included

1) That Donee shall not commit treason against the state

2) The Donee shall not slay a Brahmin

3) The Donee shall not commit theft or Adultery

4) The Donee shall not wage war or commit crime against any village.

Therefore the onus of responsibility lay firmly on the donee. The objective of such a one sided

approach was to secure the support of the priest and to prevent them from mobilizing against

feudal lord. So we find in the Gupta period and the post Gupta period through Indian feudalism

very conservative practice was introduced in ancient Indian Society.

Relationship between Indian Feudalism and Bengal Feudalism.

The Land Grants in Bengal differ from the land grants in the rest of the country in two ways. Firstly the

land grants were a result of sale transactions, affected by Individuals involving only the transfer of

revenue from land which the donee could enjoy in perpetuity. Secondly these land grants were made

with the consent of the central government and enjoyed immunity on taxes only.

The Donee did not have the right to alienate the land or grant the land to others. So the land grants

made in Bengal did not give any index of sub-infudation (break down). Whatever may have been the

intention of the donors, the feudatory and the private Individual. The grants help to create powerful

intermediaries yielding considerable amount of political and economic power. These intermediaries

mostly belonged to the priestly caste that is the Brahmins, who soon started to shed their priestly

functions and turn their attention to land management and administration and other secular duties.

In the KathaSarit Sagar we find mention of a Royal Priest who had hundred villages making him

Samanta. In this way temples and monasteries also became large land owners. In the area of land lord,

the original title of a cultivator or a Social occupant must have been interfered with to some extent.

Thus we see the beginning of the reduction of cultivators into share croppers and temporary tenants.

These developments in Bengal demonstrate the nature of Feudal society and polity in late ancient India.

Local Administration in Ancient India.

Gupta and Post Gupta Period.

The village of the Gram formed the pivot of local administration in ancient India. Its importance was

naturally great at the time when industrialization and faster communication was UN known. The local

administration was carried out by dividing the local area into various political or administrative divisions

to facilitate the smooth functioning of the whole state. The smallest unit of administration was the

village with a small number of families pursuing traditional occupations. Next to the group of villages

came group of 10 villages Gahanna, above that came group of 200 villages or Kharbavatika. Next came

the group of 400 hundred villages and finally came group of 800 villages. The administration of the

village was left in the hands of the village headmen the Gramani. He was a state official and was

responsible to the government rather than the villagers. He was answerable to the Ratnis from the Vedic

age. His work was to ensure territorial integrity of the villages. He was a surveyor of land and surveyed

the land. He managed gardens, forests, temples, irrigation, pastorages and roads among other

departments. He also periodically took the census of the villages. He also maintained a register of

accounts to keep a note of collection of actual revenue. As a leader of the village militia, it was his duty

to look after the peace and order. The office of the village head men was hereditary but the government

could decide upon a village headman from a member of his family. The village headman enjoyed rent

free land in lieu of salary in addition to other officers. Other officers under him included the accountant.

One powerful official was the Thaniko, head of the group of 800 villages who reported to finance

ministry. The Thaniko was an intelligence officer as well and kept a tale of migratory patterns of the

immigrants. He was also Law and order officer. The different units of rural administration were self

maintained groups answerable only to the central government, in all financial matters. The central

government hardly interferes in the internal matters of the village, if rent was not collected properly or

deposited to the central exchequecher. In all matters the local administration enjoyed full autonomy

that resembled modern-self government. The village assembly which was also the village panchayat was

entrusted with the duty of carrying on the administration. The composition of village assembly from

region to region normally comprised of elders of the village. These members were known as Mahajans

whose work was to oversee administration and settle local disputes. According to Kautalyas

Arthashastra, the panchayat acted as the trustee of the estate of orphans and minors as well as those of

the temples. The Chola records give a more detailed picture of the constitution and functioning of the

village assembly. There were two types of villages in south India “Urs” and “Bramahdayas”. The Urs

were more common and were the more ordinary type of villages with an assembly of the same name. It

included all the members of the villagers except the untouchables. The work of these types of

assemblies of Urs mostly dealt with law and order issues. Justice was central to their functioning. The

Brahamadayas villages were Agrahara grants were made by the king to the Brahmans. They had their

own assemblies which were called mahasabha acting as autonomous bodies. Elections were held in the

mahasabha which we learn through the Uttarmerur inscriptions of Parantaka I.

Working of the Mahasabhas of the Brahamhadayas:

The Mahasabha was a democratic assembly which was also autonomous. It possessed sole authority,

over village land and was left free to manage its own internal affairs. It collected its rent in both in Cash

and Kind and paid to the royal treasury. The assembly had complete power regarding the reclassification

and reclamation of the forest waste lands. The Ukkal inscriptions make clear that the assembly

possessed all the powers of the state. Within its narrow ambit. It controlled corporate property which

could be sold for public purposes like meeting needs of the temples. It was a trustee of public charities

and received and deposited money, land and paddy under conditions stipulated by the donors such as

the Brahmans. In times of famine and failure of crops, the assembly had to provide relief and

rehabilitation to victims and remit land revenue. The assembly had to provide communication and look

after irrigation works. It was also responsible for education. The king always could not interfere in the

work of the assembly lent in the case of disputes. The assembly had judicial functions. There was a

judicial committee called nyayattar that settled disputes and gave judgments. The king was the

fountainhead of justice and could pass the final judgment. In this period punishment or Dand did not

play a central role in the Hindu law.

It is clear that there was clearly a corporate spirit in rural administration in India. Rural administration

ran along efficient lines. There was a high sense of Justice and fair play. There is evidence of rule of Law

in ancient Indian Society. The Bureaucracy was strong and efficient.

Varna System.

The Varna system makes the Indian Society different. The term Varnashram Dharma implies that

Dharma is not same for every one. There is a Sadharan Dharma which is common to everybody inspite

of Dharma implying different norms for different people. The qualities of Sadharan Dharma are the Basic

foundations of the Hindu social order which is the moral order that is binding on every person. It binds

all men in a common fellowship and then binds them to the universe which is both animate and

inanimate. The Varnashram Dharma is unique system of social obligations. It implies that there is a

Dharma appropriate to every class and stage in life of every individual.

According to A.L. Basham , the original meaning of the concept of Varnashram Dharma appears to be

that every individual is part of stupendous home but at the same time retains his/her distinctive

characteristics. Caste is however not unique to the Indian subcontinent, other societies such as the

European and west Asian Culture has similar form of stratification. In Europe the clergy, the nobility, the

bourgeois, the Surfs and the Proletariat formed the four different levels of the society. The four fold

grouping is also to be found in Iran where the priests, the warriors, and the head of families and manual

workers constitute the society. If the foreign origin of the Aryans is accepted they brought this system at

the time of invasion. Even In the earliest hymns of the Vedic Aryans we find mention of the nobility or

the Kshatriya and the ordinary tribesmen or the Visah.

Theories of origin of the Varna System.

According to the western scholars and orientalists, casteism was introduced in the Indian subcontinent

by Aryan invaders who sought to subjugate the “Dashoors” who may be considered the ancestors of

Shudras. We learn from the Vedas that the difference between the Aryans and the original inhabitants

were because of cults rather than cultures. This theory of casteism in India is not supported by the fact

that the Shudras or the productive caste need cannot be necessarily being identified with the original

inhabitants or their origins need not be traced to a servile past. The exclusion of the productive caste

from the rituals and other religious functions of the Aryans may be attributed to political and economic

hostility between the invaders and the original inhabitants. Exclusion of the Shudras was voluntary.

Brahminical view

The second view that is the Brahminical view supports a divine theory of origin of the caste system. The

Purushashuktas which is a late Vedic hymn suggests that purusha from where all the castes have

emerged is in it the caste system and is meant to preserve the unity, integrity and harmony of the

universe. The Brahman is placed at the apex of his hierarchy. The Gita also supports this view. A

philosophical justification of this theory comes from the Upanishads. According to the Chandoya

Upanishads, a man’s Varna is part of retributive justice that pursues the self from one birth to another.

The ShantiParv of the Mahabharata suggests that a man attains a superior Varna by performing certain

righteous acts by adhering to the tenets of Varna, ashram and Moksha.

Marxist View.

In more recent times R.S. Sharma has proposed that the move of production involving the theory of

surplus leading to the formation of classes and with that also leads to the formation of a caste system.

Giving an economic analysis of the origin of the caste system, Sharma suggests that it is wrong to think

that the caste system was already formed at the time of arrivals of the Aryans. He says that the Varna

system has to be understood in the sense of social mechanism which was created in response to a mode

of production in which the upper-class were represented by priests, warriors and noblemen became the

managers and collectors of the surplus produce in which the lower class were presented by the artisans,

peasants and agricultural laborers who were free to carry on the production since the beginning of the

Vedic time.

Let us now look at the development of the stratification:-

The Rigvedic people lived in a pastoral society. They were semi nomadic in nature. Their chief

production included cattle and horses. Wars were natural and logical functions of these people. Cattle

were an important source of livelihood. Even the Rajas main duty was to protect the cattle. Peasants,

Priests, and warriors also formed the bulk of the society which was egalitarian in nature towards the

beginning of the Vedic age when we find relative absence of stratification in the Vedic tribes. With the

passing of time the Vedic people increased and took to agriculture on a large scale. Sacrifice as a ritual

also increased thus making the priest even more important in the society, placing them above the Visah.

The Distinction between the ruler and the ruled were not sharpened. The tribesman was not fully

fledged tax-Paying peasants. The wide spread use of iron in the age of Buddha helped in clearing the

densely forested areas and the use of Iron Plough share led to the production of sufficient surplus for

the emergence of class based and state based society in which the religious and the governing

branches of the ruling class could collect taxes, tributes, tithes. The predominant Brahminical ideology

gave legal and religious sanctions to the caste system. The governing class devised an elaborate social

mechanism through which the fruits of economic expansion could be conferred by the priests and

Princes at the expense of the peasants, artisans and the agricultural laborers. The mechanism formed

the basis of Varna system. The notion of purity was closely tied into this rationale the more a person

withdrew from physical labor The purer he used to be Thus using purity as a tool for the growth of

Brahminical power. The productive classes were saddled with social disabilities and economic

obligations which were enforced through Varna system and an oppressive administrative apparatus. The

Brahminical Varna ideology was thus a clever means of regulating production tax/gift collection and

distribution. Those who were concerned with the distribution and appropriation of social surplus

belonged to the upper class. Those who were engaged with the work of primary production belonged to

the lower class.

Gotra and Pravara.

These came into prominence in the later Vedic times and the Brahmins attached a lot of importance to

these two institutions. They indicate social and ritual identities. Both like “Vrata” refer to cattle herding.

The semantic History of the Gotra shows that the need procurement of subsistence resulted in the

formation of clans. We find Gotra mentioned in the Atharvaveda for the first time. It means a kin based

unit. The Indo-European people such as the Romans had exogamous clans and endogamous tribes. The

Gotra system traces its origin to Indo-European traditions. It can be linked to the transformation of

occupational guides into castes in early medieval period The Pravara is a stereotyped list of the names of

ancient Rishis who are believed to be the founder of families. They had similar functions to perform. In

their daily functions, the Brahmins not only mentioned the names of their founders of the Gotra but also

the names of the ancient sages. Marriage norms in Hindu personal law have been strictly regulated by

the norms of the Pravara. The adoption of the Gotra and Pravara system benefited the Brahmans

considerably. They were meant to weigh the social religious status of the priests. The other twice born

castes in Hinduism do not claim descent from the ancient sages. Thus deleting them from these

institutions. The status of women in ancient India has been widely debated. Conservative historians like

Altaker have suggested that the status of women in primitive societies were low although in the Vedic

period it improved. Altaker seeks to present a favorable picture of the Vedic age. Sudhira Jaiswal

suggested that women participated in all forms of work in the primitive age including, hunting and

gathering. Agreeing with anthropologists Jaiswal says that society in the primitive age was egalitarian

where there was a relationship of reciprocity rather than subordination. Subordination emerged most

clearly in the class based societies of later Vedic times. R.S. Sharma offering a Marxist interpretation of

relationships in society suggests that a state of perpetual warfare of a pastoral society brought out the

patriarchal elements in Ancient Indian Society.

In the Rig-Vedic period women were certainly considered to be important members of the society,

whose contribution was vital to the production. There was reciprocity and autonomy in an egalitarian

frame work. Women and men took equal part in Sacrificial rights. Women participated in the work of

the earliest folk assembly for the Vidhata. Even some of the ministers were women. Women’s

participation in the work of the earliest folk assembly of the Vidhata. Even some of the ministers were

women; women’s participation was basically in the area of food production. With the emergence of

cheap/forced labor of the enslaved population, the necessity of women started Declining. This

happened around 300 B.C. and thus their status began to decline.

In the age of Buddha especially during the life time of Buddha, the status of women remained

considerably high. Buddha admitted women into the monastic order. Buddhism clearly states that

women have a right to earn their living. At the same time structural equalities are not allowed in

Buddhism. In Gupta times Varamihira says that women can be allowed to become ascetics even though

he went in the injunction of smritis, especially Manusmriti. During the period of the latter Samhitas the

position of women remained satisfactory. The Sathapatha Brahmins suggested that women were

treated as equal in house hold duties. Women were allowed to be initiated into Vedic studies or

education from the time of the Upanayan ceremony. Women enjoyed a high religious status within the

family with the arrival of priestly class, their importance increased with regard to such ceremonies. By

500 B.C. the Upanayan ceremony was replaced by marriage. Thus their status further deteriorated. The

participation of women in productive activities such as agriculture, manufacturing of locks, bows and

arrows and other war materials were responsible for their continued prominence in society. With the

decline of their participation in such fields also lead to decline in their status so the position of women in

ancient Indian society was closely tied in with the material culture of the people.

PASTORALISM.

The study of the stages of the evolution of the ancient Indian economy from pastoralism to a developed

mode of economy represented the stability and expansion of the economy. Especially of agriculture,

industry, trade and commerce both internal and overseas and also the money economy. The Rig Vedic

people were primarily pastoral people. Livestock formed the chief possession of Rigvedic people. The

Pre-Aryan practice of tilling the soil was common which meant the cutting of furrows in the field with a

wooden ploughshare. The crop cultivated was Probably Barley. The Neolithic people also grew wheat;

Rice was not cultivated till a later stage In Rig Vedic Period. The people of Rig Vedic era lived a pastoral

life is evident from the use of “Vraja” which literally means Cowpens. Settled life was promoted through

cultivation and cattle rearing. All this led to the presupposition of a settled life. Property consisted of

Livestock, land, houses and weapons although land was not a very important constituent in the

property. The Aryans did not attach much importance to land since a cattle rearing was more important

than agriculture. The relative failure of agriculture at this point was that plough shares were wooden

and did not yield much crops. The use of Iron Plough shares was not known to the Rigvedic people. This

explains the reason behind their travels from one riverbed to another in search of water thus

abandoning the former tracts of land. Also at this stage Aryans occupied small pieces of land thus

reducing importance of territories as well. Land was not classified as a gift unlike cattle slaves and

houses. Still land was beginning to be handed from one generation to the other and clans controlled it.

In the Rig Vedic period, the various operations of agriculture were ploughing, sowing, reaping and

threshing. These were formed by the members of the family. In the Rig Veda there is no reference to

hired laborers and wage earners. We find mention of Domestic slaves in the Vedas. Thus, the domestic

slave may have been first wage earners In Ancient Indian History. The absence of hired laborers may rest

upon the inhibition of the accumulation of private property. In the Pastoral mode of economy of Rig

Vedic times, there is no reference to leasing, hiring, lending and borrowing, sale and purchase and trade

and commerce. Although of all these activities commercial activities find mention. In the absence of

coins in the Vedic period, there was no practice of money lending on interest and lack of surplus failed

to foster commerce adequately. Buying and selling was fully in evidence and was done through barter

system. Also in the Barter System only Two forms of commercial activities are mentioned in the Rig

Vedas. Thus basic commercial work prevented the accumulation of property in the Rig Vedic period. The

Rig Vedic period was migratory in nature. They were thinly scattered over a large area and their simple

needs were easily met by a pastoral mode of economy. Society was clearly stratified with unequal

distribution of Wealth. But as is evident in writings of Marxist Historian like R.S. Sharma poverty was not

grinding in this period. The peasant phase began with the end of migration of the tribes in this phase.

Settled life was encouraged. In Sedentary life, Continuous means of subsistence was assured. The

importance of agriculture was realized. It became the main occupation. Field agriculture became all

important. Iron was used to make weapons and these tools and appliances were used to clear forests.

The Sathapatha Brahmins give a graphic Description of the various forms of agriculture. The Artha Veda

also discusses the means and methods dealing with Droughts and excessive rains. Irrigation which was

until know unknown to the tribal people began to be discussed. The later Vedic texts depicted an

essentially agricultural society. Different cereals and pulses were cultivated point to the prevalence of a

more than subsistence economy. The peasants produced enough to feed themselves leaving a little

surplus for the ruling of the classes. The use of iron implements was still not widespread until 600 BC;

most of these implements were not major ones. The Atharva Veda prescribes sacrifices for peasants for

the purpose of acquiring material wealth and benefits. The ruling class strived to establish its control

over the peasants. This is the phase were the rituals were developed. The peasants took the burden of

taxation upon themselves. They paid 1/10 of the produce as taxes. Taxes were paid in Kind and not in

cash. The peasant phase saw the rise of food producing economy. The peasants were expected to pay

the Rajans. Availability of surplus was limited in this stage. Around 500 B.C. burgeoning agriculture

emerged even at this stage there was resistance to heavy extractions from the peasantry. Although

gradually the burden of sustaining the higher classes fell on the peasants, the levies that were

introduced began to carry ritualistic status. The Sedentary and settled life of new agricultural

communities now began to witness the introduction of houses on lands, and constituents of property.

The tribal practice of owning property commonly remained but individual ownership also began to

emerge. Land was still not considered the part of the property. The ideas of individuals had not

developed during this phase.

Reasons for Neglect of Hindu Law

1. Hindu Law is closely related to Sanskrit. Most of the texts of HL are written in Sanskrit.

In early colonial period with the coming of British administrator, Sanskrit began to

decline as an important language in India. Gradually the no of Sanskritists also

significantly fell. The no of lawyers with knowledge in Sanskrit also fell. So there was a

decline in popularity and importance of Hindu Law.

2. In this period, there was a lack of professional interest in the Hindu Legal System with

the advent of Anglo Hindu legal tradition; Hindu law began to recede to the background.

British common Law began to dominate HL from the start of the 17th century.

3. Mainstream HL has been relegated to the status of Personal laws. Modern pressures of

political correctness emerging from globalizing tendencies further marginalized HL.

Viewing the subject as a reactionary misogynist remnant of the past, the study of HL is

even now seen as a dubious scholarly activity. However as Werner Menski suggests,

Hindu concept of lawmaking closely informs areas such as Indian public law,

fundamental rights as well as environmental rights and consumer protection.

4. The increase in importance of global framework of reform has also contributed to

marginalization of HL. Globalization leads to growth of uniformity in old forms of law-

making that tend to relegate traditional sub-continental or national laws to a sub-

terrainean level. So HL owes its relative insignificance to the rise of post-colonialism.

Relevance of HL in Modern Legal Systems like India

1. HL is relevant to academic work in school and college curriculum because it imparts a

sense of local and regional form of judicial administration. HL gives better understanding

of local law-making in the Indian subcontinent. It helps us to understand the laws of the

indigenous people in India.

2. It also helps us to understand the development of global framework of law and legal

scholarship. There is a need for comparing and contrasting HL with other indigenous

laws, specially the Customary Laws of Africa, to understand how regional and

indigenous laws have developed and sustained in the Colonial period. It is crucial for the

understanding of the critique of colonialism.

3. It helps us explore Post-Modern Indian legal system which is a combination of both

tradition and modernity. HL within a post-modern legal framework helps us tide over the

difficulties of modernist legal axioms and linear developments. It also helps us to

understand the principle of unity in diversity which is central to the Indian Constitution

within a post-modern legal framework.

Dharma

The four great aims of Human Endeavour or the Purusarthas are Dharma, Artha, Kama

and Moksha. Dharma is moral behavior, Artha is wealth, Kama is worldly pleasures and

Moksha is salvation. Moksha is the highest ideal of an individual. The pursuant of the

first three aims is aimed at attaining Moksha. Dharma not only signifies an absolute and

immutable concept of righteousness but it also includes the idea of duty that every

individual owes to oneself, society, ancestors and the Universe. Dharma is law in its

widest sense. Spiritual, moral, ethical and temporal. Every person the ruler or the ruled

has his/her Dharma. The commandments revealed in the sacred texts are to be followed

implicitly by a person. When by choice a man errs, a system of reward and retribution

arises. This leads to the codification of Dharma which signifies a comprehensive

normative system by which the conduct of an Individual towards all other Individuals and

living beings is regulated. This is meant to help in preserving and upholding the order of

the universe. The early Dharmshastra demanded obedience to the sacred prescriptions

through spiritual- temporal mechanisms of inducement and retribution. When it was

found that law cannot be made on the basis of divine will the divine powers were sought

to be entrusted in the hands of the king. The King emerged as the sole law maker and law

giver. He had the responsibility of enforcing the sacred order and norms prescribed by the

Dharmshastra. These norms are what is ought to be carried, the sanctions of the state.

Thus the role of the state informed the percepts of Dharma from the pre classical period.

Dharma has three branches –

Achara or right conduct

Vyabhara

Prayschith

In the medieval period Vyabhara gradually emerged out of Dharma to assume a separate identity

for it self. Dharma was seen as the undefined and ethered touch stone for the purpose of testing

the validity of more practical and moral rule of law. Dharma sets the rule of Law making since

the middle ages such as the philosophical concept of justice, equity and good conscience. Certain

values and methods of mobilization and agitation in modern times. Indian politics such as

ahimsa/non violence and Satya/truth are defining characters. So in the modern and the medieval

sense , dharma means social and moral obligations meant for governing a society.

Dhamma is the Buddhist version of Dharma. In the Buddhist view the origins of the world

system not only rejects creation but importantly, it rejects the system of Varna’s which is ratified

in the brahminical social system, legitimized by the notion of Dharma. In Dhamma the

Arthashastra system of self interest in politics is also rejected. Theravada Buddhism identifies

Dhamma with the establishment of righteous order. The Buddhist asserts that Dharma is the all-

encompassing norm that governs the society and politics as well as it sets the code of kingship

embodying the virtue of righteousness. Dharma thus, is the external manifestation of the conduct

of worldly affairs. Therefore Dhamma infuses and suffuses the conduct of righteous order and

includes in its scope all three society, polity and economy on terms of equality. This perspective

is different from the Brahminical concept of Dharma because in Brahmanism, dharma is larger

than Artha, in its narrowest sense.

Artha

Artha follows from Dharma. As explained in the Arthashastra, Artha has a broader connotation

than the acquisition of wealth. Kautalya in his Arthashastra says that the wealth of the nation is

both the territory of the state and also of its inhabitants who may follow various occupations. The

state or the government plays an important role in the maintenance of the material well being.

Therefore an important part of Arthashastra is the science of economics which includes the

starting of productive enterprises, taxation, revenue-collection, budget and accounting. The aim

of pursuing successful economic policy particularly through productive enterprises also increases

the revenue of the state and appropriates the surplus to the state treasury or Kosha. It is an

essential constituent of the state. The Arthashastra warns against the depletion of the resources

of the treasury by the king. A balance is to be maintained between the welfare of the people and

the maintenance of the state resources according to the Arthashastra- this presupposes two things

– the maintenance of law and order and adequately efficient administrative machinery. By the

maintenance of Law and order, Kautalya meant the detection of crime and handing down of

punishment so the major element Arthashastra is the policy of Dandniti which is the science of

enforcement which Kautalya Says is necessary for the upholding of the fabric of the society. The

state according to him has the responsibility of maintaining smooth inter-personal relationship.

Thus the state in Hindu Law has been given the legitimacy of intervening in Domestic matters

for not only the maintenance of Law and order but also the upholding of an honest society. The

Arthashastra prescribes a comprehensive set of fines and punishments. Dand not only means

punishments but also implies the army. It is the four methods of Dispute settlement and connotes

the use of force. Kosha Dand is an expression which implies the combined strength of Economic

power and military might. Dand thus covers all aspects of the coercive power of the state.

Kautalya continually refers to just Punishments. The state under the ruler has the responsibility

of promoting economic well being of the people as well as preserving the law and order and

maintaining the administrative machinery of the state.

A ruler’s duty in the internal administration of the country as discussed in The Arthashastra is as

three fold

a) Maintenance of Raksha: Protection of state from external aggression.

b) “Palana”: Maintenance of law and order within the state.

c) “YogaShema”- Safeguarding of the welfare of the people.

So the welfare economics finds mention in Kautalyas Arthashastra. The Arthashastra also

discusses the importance of foreign policy and seeks to connect it to warfare.

Legal Literature.

The Dharmshastra represents the canonical views of the authors that are Brahmins. The Arthashastra on

the other hand are far more secular in its orientation. The Arthashastra differ from the Smritis with

regard to many particulars. To Begin with Dharma Shastras are semi religious and semi moral. The

Outlook of the Dharmshastra towards government and political process is molded by religious

orientation. The Dharmshastra are deductive where as Arthashastra is based on inductive reasoning. At

the same time Arthashastra like Dharmshastra relies on Vedas. The authors of Arthashastra enjoy

relative intellectual freedom. This conclusion lies in the field of politics. It seeks to separate politics from

theology. This emphasis on politics should not be seen as repudiation of orthodoxy. The Dharmshastra

lays greatest importance to Dharma while Arthashastra gives to Artha, but it seems to touch upon the

significance of Dharma.

The chief areas of discussion in Arthashastra are as follows.

1) The Central and local governments.

2) Taxation

3) Alliances and wars.

4) Appointment of Officers

5) Punishment.

The Arthashastra aimed to veen away men from the thoughts of Ascetism and involve them in

the daily activities of Social Life as well as power and politics. The Dharmshastra acquired more

importance after the age of Manu. It became the central texts for governance in the post Manu

period. The Smritis gradually gained importance on the other hand the Dharmshastra set before

themselves very high standard goals and ideals that went a longway in disintegration of society

so both the Dharmshastra and Arthashastra played crucial role in preserving political and social

unity of the Hindu Legal system.

Sources of Hindu Law

Dharma that emerges from Vedas is the main source of Hindu law, according to Manu revelation of

Shrutis is the Supreme authority in Hinduism and those who desire to know meaning Of Dharma. The

Vedic concept of Reet and Satya are the precursors to the concept of justice. That is the straight path,

leading man to perfection. It also means a divine cosmic order by which the universe or even the gods

are governed. It is the Law that that regulates the performance of Vedic sacrifices. It is similar to

Confucian idea of order and absence disturbance. It as a complete system of ethics in mans daily activity

which manifests itself in moral law. Its manifestation as mans Moral Consciousness it came to be called

to be truth, Satya , Satya stands for perfection of social order where there is harmony, where everything

is in place and every Individual is given his duty and performs his or her duty in accordance with his or

her capabilities. Satya and Dharma are the main goals of ethical endeavor. Let us know look at other

authors of Hindu law , The Vedas are the first and foremost sources of Hindu Law Apastamba

maintained that the Vedas alone are the main sources of Hindu law but with growing complexities in the

Hindu society it is felt that Vedic hymn are difficult to comprehend but also cannot be easily be related

to current practices with the passage of time the Vedas became inadequate for the regulation of large

society as a result consequently the Dharmshastra were absorbed into tradition the Dharmshastra along

with the Vedas were seen as the origins of Dharma and the sources of Hindu Law.

Manu the preeminent scholar of Hindu Law sand the most well known exponent of the Dharmshastra

School says that Hindu Law has four legs these are as follows

Shrutis or the Vedas

Smritis or the customs of holy men sadacara and fourthly ones one inclination. According to him in case

of conflict Shrutis or the Vedas prevail over the smritis and they also have precedence over Sadacara and

personal inclinations. Other authors such as Yagjnavalka suggest fivefold division of the sources of Hindu

law. He adds equity and customs as independent sources of law to the other sources of law suggested

by, manu he sadacara to mean those religious acts that are performed by men to counter certain human

defects such as selfishness, Hipocracy.

Customs and traditions are also accepted as sources of Hindu Law. Kautalya in his Arthashastra suggests

that there are four sources of Hindu law in ascending order of validity

Dharma which imbibes in the nature of things

Vyavahar or Contract which is to be establishes by witness

Local customs or caritas

Which is to be interpreted independently by the different leaders therefore we have various

Ramacharitramanas

The Kings Order or Rajasasan

According to Kautalya sacred law or Shastras is more important than history when sacred law is in

conflict with rational law that is the kings law reason is to be given more importance according to

Kautalya Customs are subjected to king’s personal interpretations. Dharma in this sense is brought

directly with the boundaries of the province of the king yet the statute law has to be compatible with

the Vedas and the social order defined in it. Kautalya does not favor radical departure from customs

but extols royal power particularly the power of the legislation by edicts and decrees. The rules and

regulations of the Shrenis.

The nigams as well as the nimansha, nyaya or logic, purans and itihas also came to be considered as

important sources of law in the later Vedic period.

Law making and Law Interpreting Process.

A body constituted for the purpose of framing laws was unknown in ancient India till about the

beginning of the Christian era. The Vedas or The Shrutis constituted the pillar of the Hindu law. Thus the

Vedas and the Shrutis were given paramount authority for law making and interpreting. Sacredness was

attached to the Vedas as they were considered to be of supernatural origin but with the passage of time

and growing complexities in society, Vedic regulation could not be related to current practices, this

brought the smritis in Sharper focus. The Smritis regulation took into consideration of the needs of the

changing society when laws were made these laws were both secular and spiritual. The Smritis are

drawn from the Shrutis or the Vedas. Thus for the first time divine authorship was replaced by laws and

Ordinances that emanated from Humans Soul or that were written by non Divine sources. The eminent

legal scholar Kautalya was the first Hindu Scholar to have suggested statutory laws. According to

Kautalya Law and Order supersedes all other sources of Law making including dharma, He suggests that

the King is the ultimate law maker as well interpreter of Law. As Kautalya believed that if there is conflict

between sacred law and rational Law, rational Law triumphs thus emphasizing monarchs control of law.

Kautalya emphasized on royal power, however didactic in nature was supported by Asoka’s edicts that

upon social and religious life as well thus we see that, in Asokan Period as well as in the writings the

state emerges as one of the most important law making and interpreting body with the king as its epic

centre and also the fountain head of justice. The role of corporations and guilds such as Shrenis and

Nigam is also important in interpretation and making of law. Shrenis, Dharma rules and regulations of

guilds was determined by an executive committee of the Guild and was binding on the members of the

guild. Heads of the Guilds were bound by the provisions of Shrenis or Dharma, but the kings have a

presence in the life of corporations especially with regard to settling of disputes between the members.

For the Better part of the Vedic period, Sears or sages also had a role to play in the interpretation of law.

The Rishis of the Upanishads were law makers and interpreters as well such men had to be honest and

un corruptible and learned in sacred texts. They formed Vedic Sabha for the administration of Justice.

The Brahmins were also considered equally law makers and interpreter and were responsible for the

administration of justice. They were seen as advisers of the King.

Parishads were other institutions for making and interpreting of Laws. Members of these parishads had

to be versed in Vedas. A Parishad would contain judges or assessors. They were given the power to bring

the king to right path of Justice. With the introduction of the pleaders a new dimension was added to

Law making and interpreting.

Judicial Institutions In India.

There is no clear reference to the existence of judicial institutions in Ancient India especially in the pre

Mauryan Period. Village elders mostly acted as Judges and gave out punishments according to the

nature of the offence and also local customs and institutions. In the Vedic period Criminal and Civil law

were not very clearly differentiated, Law was seen as both legal and Moral. In that sense the ancient

Indian Law was half legal and half moral. In that sense Ancient Indian Law was half legal and half moral.

There was very little judicial organization and procedure of Law in the Vedic period. Justice as a distinct

branch was still in making at this stage. In ancient Indian Administration, Justice was centralized it was

separate from the executive and generally in form and ever independent in spirit. The king was the

fountain head of Justice, he was his own executioner, the growing and the settled order of society made

impossible for the King to carry out all judicial function as a result the administration of justice was

devoured to Lower level and it was derogated to the hands of Legal expert, The kinga court was

reserved for appeals and serious crimes against the states. The rest of the litigation was entrusted to

other lower level courts. The various types of courts as mentioned in Ancient Indian scholar Vrihaspati

there were four types of courts.

1) A court established in a fixed place such as a town or Pratisheet.

2) The Circuit court or apratisheet

3) A court presided over by a judge who was authorized to use the royal shield called Mudrita.

4) A court presided over by the King Himself Sasita.

Other legal scholars of ancient India of Narad, known for Naradsmriti also enumerates a list of

courts that existed in his time, these were

1) Village Counsels

2) The Guild courts

3) The assembly

In the Sanchi Stone inscriptions of Chandragupta ll we come across the term Panchamandal, which

resembles the modern panchayats, the village court or Gram Panchayat was lowest union of Indian

Judiciary. This was based on the sovereignty of the people. The modernization of court with

different power of jurisdiction was distinct feature of Indian Judiciary. The magistrate’s bench was

given precedence over single judge. A story in Jataka tales speaks of a bench insisting of five

magistrates. Kautalya in his Arthashastra advises the king to establish court with bench of 3

magistrates for every 10 villages with higher courts in the District and provinces. Manu in His

Manusmriti suggests bench comprising chief justice or Pradvivaka and three other judges. The

constitution of a court described in Wrikshkoti consisted of chief judge, a wealthy merchant and a

kaistha. The Supreme Court was presided by the King and this was the highest court of appeal. The

existences of lower courts are first time mentioned in Mauryan Inscriptions.

The role Of Village Panchayats in Ancient India.

The village panchayats in ancient India were popular courts which were invested with judicial powers,

we find mention of village panchayats in ancient legal texts such as Arthashastra as well as Agnipurana,

the Agnipurana explains in detail the various functions of different heads of the panchayats, the

panchayats were highly integrated organisms. The main function of the panchayat goes down to settle

disputes in the villages even though these panchayats were non official and popular in character, they

carried the authority of the King, we find mention of panchayats as bodies that carried the royal

authority as mentioned in the Yagjnavalka Smritis . In all these legal texts the government is advised to

execute decrees because the state delegates these powers to the government. The Judicial procedures

of these courts were similar to the procedure of Royal courts with some necessary modifications. These

village panchayat courts were civil courts. There was no limit to their civil jurisdiction from but they did

not deal with criminal cases apart from cases like accidental homicide, suicide.

The Arthashastra gives a great deal power to the head of these panchayats, the Chola inscriptions give a

graphic account of the working of the village assemblies which were completely autonomous and

democratic in nature.

Note dictated on: 12/9/2011

Urban Centers and Guilds

Reasons for establishment of Urban Centers in India

Urban centers envisages a state of development in which there is compact conglomeration of inhabitant

within a delimited area with a central governing organism such a condition cannot be expected in rural

environment which has dispersed population over large area with a lenient administration and urban

centre can flourish only when there is agriculturally prosperous land, since economic activities depend

on the economic condition of the rural area. Commercial intercourse enabled the urban centers to

acquire vitality to accumulate wealth and to encourage basic operation

India In the 6th century BC had all these prerequisite for the emergence of towns ,it has been suggested

by historians that in 600BC India witnessed the second trend of urbanization the use of iron plough shed

and other things of iron played a crucial role in clearing the dense forest in the middle gigantic planes

and other northeastern areas of the subcontinent which made settlements in these areas possible ,the

new agricultural production led to the production of surplus on a scale never produced before, thus the

ground for establishment for the urban settlements.

Guilds paid a significant role in the promotion of trade, crafts and industries in ancient India. Some

people following diverse profession grouped themselves into organized bodies for the promotion of

their individual as well as collective interests , each groupings were called guilds, caste based

exploitation played a role in the formation of guilds and corporation that was vital for developed

economic activity , guilds were variously called sreni, kula, sangha and Jati. Several factors such as

freedom for industrial classes , localization of industries led to the formation of guilds. The head of the

guild was called Sristi.

The Role of Judges

The Hindu legal texts set very high standards for the judges. Judges had to be learned, religious, even

tempered and impartial. Kautalya in Arthashastra discusses in length the conduct of the judges and

prescribes punishment for direction of duty. Judges according to him may not threaten, send anybody

out of courtroom or take side or abuse the disputed. He has to ask what has to be asked in a court room

and may not make any in appropriate inquiries. A judge may not be responsible for any delay in

dispensing justice. Arthashastra takes a clear stand against award of unfair corporal punishment.

Falsification of evidence is prohibited. Judicial corruption is referred to bribery, which is prohibited.

Vishnusmriti prescribes punishment and forfeiture of all property of a judge who is found to have been

indulged in corruption so corruption was indeed present in ancient Indian Judiciary. The Hindu legal

texts and plays like Mrichakoti discuss the existence of Hindu rule of law. The Darashakumarcharita

refers to a pidge who takes a bribe. The trial of cases depended on the burden of proof both human and

divine. When human proof failed to offer viable solution recourse was taken to ordeal sanctioned by

religion that was barbaric and deeply superstitious. But these ordeals were not always applied and

remained in books as deterrent. Eminent constitutional scholars P.V. Brave says that Brahmins acted as

judicial advisors –but there is no certainty that they were seen as a class of proof pleaders. Thus the

conduct of judges and emphasis laid upon the need for evidence laid in Hindu legal system

demonstrates a developed and increasingly complex system that was indeed free and fair even if there

were tendencies towards corruption especially in Mauryan times. There indeed was a Hindu rule of law

in later Vedic period around 4th century B.C. that shows the development of sophisticated Hindu legal

mind which informs the Hindu law even in the modern age. The legal system of modern India is not only

derivative of English Common law, derives equally from the Hindu legal system and legal principles

stated in smritis , Dharmshastra and Dharmsutra.

THE END.