Sources of Law

Chapter II SOURCES OF LAW Laws in any society at any time have served as a parameter for assessing the welfare of people as well as a tool for efficient administration of justice. In the Indian tradition, the unity and conformity in the web of Indian culture has been strongly permeated with Hindu ideals of life and a legal tradition which has imbibed changes as well as retained its core to serve as legacy to the present generation. The concept of law in the legal philosophy has almost never been the same. As discussed in the introductory chapter, whether derived from the Vedic concept of Rta or considered synonymous with dharma, dharma served as the basis of the evolution of later Hindu law It would, therefore be appropriate to survey the development of Hindu Law right from the ancient Vedic texts into the literature of the times in order to arrive at the Hindu theory of Law The sources of laws for our purpose of studying the theory and practice of law encompass the entire range of textual and epigraphic sources within the period of study (i.e. 200 B.C.-650 A.D.) although no hard and fast chronological sequence of early sources could be prepared. The theoretical component of Hindu law predominantly emerged from the earliest stages in the Rgveda and developed through the post Vedic and Smrti epochs of Hindu law. The origin of Hindu Law is probably to be found in vague traces in some earliest records of the people known as . Aryan, who came as settlers on the Indian soil since f..~ J- -. / • AS^O ''^,(0,'' • There is also a pre-Vedic stage of law as expressed in the Dharmasutras but it was the Rgvedic conception of law, in wh'ch rta predominated as the orderinq principle of cosmos, that gradually took into its fold law and religion, characterized as Dharma, and from which even the most advanced law givers could not dissociate. The textual sources include the Vedas, the post Vedic literature, the Dharmasastras and the Epics The Epics - the 11 Mahabharata, the Rarriayana, srimad Bhiagavadgita. the Dharmasastras - that is the smrtis of Manu, Yajnavalkya, Visnu, Narada, Brhaspati and Katyayana, the Arthasastra of Kautilya, the Kamasutra of Vatsyayana, the mah"akavyas and the Sanskrit QIassical literature, prominently from the pen of Bh'a^a, Kalidasa, Sudraka and Vis'akhadatta. The second and the other important half of this study constitute the evaluation of actual legal practices that could possibly be prepared from the available historical evidence, i.e., the inscriptions. Hence, epigraphic records of the period published in the well known Epigraphia Indies volumes and the Corpus Inscrlptionum Indicarum series have been thoroughly scanned. Among the secondary sources on inscriptions, works of D.C. Sircar, Diskalkar, Devasthali and some other works have been taken into account The traditional approaches to studies on law have relied heavily on textual sources and their varied interpretation They have excluded the considerations of epigraphic records from their purview, probably because of the fewer references available or owing to the incidental nature of references. Once this is the basis of source material, the studies pertaining to law have more or less limited themselves to analyzing the theoretical principles of law alone Although the studies done on this basis are valuable and voluminous, the divorcing of theory from practice has rendered their relevance extremely limited. Epigraphic sources In this work, we propose to use the epigraphic records of the period in order to search and ascertain the practice part of the theory of law prevalent in ancient India, in the period under study. It is true that the references relating to pure law or ordinances are very few and mostly indirect or stemming as corollaries from the main. Nonetheless, the effort is firstly, to locate and identify any such references that could be cited as being the practical law or practice of law and second, to examine them in the context of theoretical niaxims that were available from the textual sources on law. Inscriptions pertaining to references on women are also varied and voluminous. They need to be collected, classified and collated for the purpose of throwing light on the legal status of 12 women. The gender approach implies the legal implications of being men or women ought to be understood and analyzed, too and this needs an understanding of epigraphic data pertaining to both men and women. As K.K. Shah has rightly put it in his book - "Early Indian literature, whether of Dharmasastra tradition of orthodox Brahmanism or canonical type of heterodox faiths or even the epic variety, is of normative nature in respect of women. What inscriptions offer us are variations of and even deviations from the norm. It will be seen that no norm has been followed strictly or uniformly all over the country. In fact, in certain areas variations and deviations so dominate the pattern that they render the norm itself as variation. However, by and large, the scenario is one of interplay between the ideal and the real. At times one overshadows the other, while gets overshadowed at other times". ^ Any civilization has embedded in it a tradition. If tradition means the handing down of knowledge from the past to the present, it must be realistic in order to be correct. The normative texts represent the formalized Great Tradition but there are also numerous Little Traditions, the study of the interplay of which is a must to arrive and understand the historical evolution Redfield used these terms to contrast the formal literate tradition exhibited in the urban elite with the largely oral and informal tradition of folks or masses. To Redfield, the Great and Little Traditions complement each other in portraying a single civilization. But to rely on these norms alone, which are often a product of particular circumstances, milieu and mindset would be undesirable. The historical reality is much more complex and multi dimensional for which the epigraphic component must be incorporated to arrive at a holistic understanding. The inscriptions moreover provide the variations from the norm that might have existed and hence, are indispensable in search of historical reality. There has always existed a dichotomy between the normative literature and the inscriptions. D.C. Sircar, the great epigraphist of our times recognized this dichotomy as also the existence of countless local traditions side by side with the great overarching tradition. In clear terms he stated, the state of society suggested by the Dharmasastra, Arthasastra and Kamasutra works is theoretical to a considerable extent, and that this seems to be admitted in the passage, sastrarthan vyWpino vidyat prayogams tv ekadesiksfn, speaking of the wide scope of the sastra and the limited nature of its application" ^ In early India, rocks and lithic, metallic, earthen or woodenU pillars, tablets, plates, pots, bowls and other objects were often' used for engraving inscriptions. There are also found legends on coins, seals or wooden tablets which. Sircar explains are not truly engraved. They vary in nature and type varying from first a mark or word to somewhat longer dedications. It may contain eulogies in kavya form or in drama or mere charters indicating the grants or donations. In the preface to the Epigraphia Indica, Volume I, James Burgess, its great Indologist editor, thus stressed the value of epigraphic records for reconstructing the life and times of early India. "Indian Inscriptions - more so even those of any other country are the real achives of the annals of its ancient history, the contemporaneous witnesses of the events and of the men whose deeds they handed down, and their authenticity renders them most valuable for the historian and deserving of careful record. They supply important data bearing on the chronology, geography, and religious system, affiliations of families and dynasties, taxes, land tenures, magistrates, customs, manners, organization of societies, language and systems of writing of ancient times." However; as Sircar rightly opines - "No doubt many of them deal with historical events and passages, but history is often shadowed in them by poetical, eulogistic and conventional elements. 'Most records' therefore, give the impression that references to historical events in them are incidental" ^ He remarks that their evidence is often indirect and leaves things to be surmised and inferred. This is very true, in the case of this study, too. Inscriptions pertaining to direct laws or ordinances are rare, except for the Edicts of A|pka or the Charter of Visnusena which is an 'Sc^ra sthitipatra. In those that can be cited, legal implications have to be inferred or searched for, wherever possible. These inscriptions are very useful in ascertaining the chronology of the early events. They are also remarkable in that, they were "generally free from variant readings as they were not 14 usually liable to modification, like those of literary works which were copied and recopied by people in later times".4 At times, they have mentioned the names of smrti writers.5 Those inscriptions issued by the ruling authority themselves are more useful than the record of private donations, for the former, depicts the position of state vis-a-vis law, the status of law in the society and the nature of ordinances or laws that were laid down in society with the legitimation from the state authority. The whole range of available inscriptions from Asoka to the post Gupta limes have been studied for the purpose. Asoka's inscriptions are named Edicts, but they are hardly so in the strict sense of the term, signifying commands of a legal overlord breach of which would entail penalties. They are properly speaking summons and exhortations to people at large.

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