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 rereading 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

2)

Horizon
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

3)

Political Life.
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 (19171918) 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 its thought.
History is important because historical interpretation is necessary to understand
legislations. Legislations that should ideally be liberal in nature cant 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. Its 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
tribes 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. Sharmas 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
Buddhas 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 4 th 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 8 th 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)
2)
3)
4)

That Donee shall not commit treason against the state

The Donee shall not slay a Brahmin
The Donee shall not commit theft or Adultery
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 mans 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. Womens participation in the
work of the earliest folk assembly of the Vidhata. Even some of the ministers were
women; womens 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.

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.
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.

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 lawmaking that tend to relegate traditional sub-continental or national laws to a subterrainean 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.

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.

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 Varnas 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 allencompassing 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 rulers 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)
3)
4)
5)

Taxation
Alliances and wars.
Appointment of Officers
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 kings 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 Asokas 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 magistrates 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 4 th 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
stated in smritis , Dharmshastra and Dharmsutra.

THE END.

and legal principles