ancient Indians believed that their law-giver was Varunathe great upholder of order, physical and moral (Rita)—who punished the transgressors of his commands. Thus the Vedic seer sang with characteristic candour :

Yat kim ch-edam Varuna daivye jane-bhidroham

manushyas-charāmasi

Achitti yat-tava dharma yuyopima mã nas-tasmād

enaso deva ririshaḥ.2

"Whatever the offence which we men commit, Varuna, against divine beings, whatever law of thine we may through ignorance violate, do not thou, divine Varuņa, punish us on account of that iniquity." (Wilson's translation, Vol IV, p. 181.)

Thus the ancient people thought that Manu, Solon, Lycurgus, Minos or Numa might have reduced the laws of

In the Atharva-Veda illimitable knowledge is also ascribed to this omniscient Varuņa:-"The great superintendent of them sees, as it were, from close by; whoever thinks to be going on in secret, all this the gods know. Whoso stands, goes about, whoso goes crookedly, whoso goes about hiddenly, who defiantly-what two sitting down together talk, King Varupa, as third, knows that. Both this earth is King Varuņa's, and yonder great sky with distant margins (ānta); also, the two oceans are Varupa's paunches; also in this petty water is he hidden. Also whoso should creep far off beyond the sky, he should not be released from King Varuņa; from the sky his spies go forth hither; thousand-eyed, they look over the earth. All this King Varuna beholds (vi-caks)—what is hidden between the two firmaments, what beyond; numbered of him are the winkings of people; as a gambler the dice, (so) does he fix these things." (IV, 16, 1 to 5; Whitney's Atharva-Veda, pp. 176-177).

"The might and greatness of eternal highest beings, their wisdom and justice, their sublimity and kindliness are united in the chief Aditya, Varuna......They (the hymns of the Veda) picture the god as the all-wise creator, preserver and regent of the worlds, the omniscient protector of the good and avenger of the evil, holy and just, yet full of pity." (Dr. Kaegi's" The Rigveda," translated by Dr. Arrowsmith, pp. 61-62). As Dr. Kaegi has pointed out, it was in later times that Varuya was lowered to a mere god of the waters, which stream down from the sky to the earth.

"Varuna opened for thee, O Sindhu, paths to flow (X, 75, 2.) "Without trouble Varuna set the waters free" (X, 124. 7.)

(Vide Dr. Kaegi's" Rigveda," pp. 154-5.)

• Rigveda, VII, 89, 5. Vide Afrecht's Ed., Volume II, p. 67. Varuna is frequently spoken of as a king (rājā Varuņah), as a king of the universe (visvasya bhuvanasya) and as an universal monarch (samrat). (Muir's Sanskrit Texts, Vol. V, p. 122.)

their times to writing, but they could not have made them. The ancient laws were never invented by any one nor were they created by any legislators in the modern sense of the term. As Coulange has pointed out, there is truth in all these traditions as they indicate that the veritable legislator among the ancients was not a man, but a religious belief which men entertained.1

But the facts showing that State Justice was ultimately enforced by means of coercive sanctions, suggestive and interesting as they are, should be regarded in their true historical perspective, as the final outcome of a long unconscious process of evolution, fraught with infinite moment to the human race. For as we go back upon the history of Law, we very soon reach a point at which the theories of Austin are helpless to explain facts. Take for instance, the Smritia source of law, an authority which great masses of men feel themselves bound to follow, not. because they choose but because they must. But certainly it is not a command of the Sovereign in a State, direct or indirect. The conception of command was not unknown to the ancient Hindus, for example, Jaimini in his Mīmāmsā-Sūtras says

Chodana lakshano-rtho dharmaḥ 2

"Dharma or duty is that which, being discernible, is indicated by Vedic injunction." (S. B. H., Vol. X, p. 3.)

This injunction was not the command of a political superior to a political inferior but it emanated from a source which was superior to both and which was equally binding upon all. Dharma was above the king and bound him equally as it did the meanest object. Upon critical examination ancient laws may turn out to be the work of private persons. We find the Code of Hamurabi or the Code of Manu, or other ancient Codes, often purely impersonal documents, compiled

no one exactly knows how, or by whom. Yet it is the controlling force which shapes the daily conduct of large masses of men. They do not even consider the propriety of challenging its authority or disregarding its provisions. It is not the work of the State; it may not even be recognised by the State. We may even go further back in the primitive stages of humanity, there may be no State to recognise it. Yet the essential ideas of law, the evident ancestors of our modern juristic notions, are clearly there. Hence, the Austinian conception of law has proved to be historically incorrect, almost useless in considering the ancient systems of Jurisprudence. As Lawrence Lowell has remarked, the definition of Austin is not universally true of law in general.1 The Neo-Austinian School has also pointed out the great mistake of Austin in regarding law as the command of the Sovereign to the subjects, the theory of Austin thereby giving countenance to the inference that law is the arbitrary creation of the ruler; whereas it is a command not of the ruler but of the State comprising both the ruler and the ruled. The Austinian theory has proved even pernicious as men under the influence of the Analytical School have disputed the existence of Hindu Law except as "a mere phantom of the brain imagined by Sanskritists without Law and lawyers without Sanskrit."

In primitive systems of law where custom had inherent force and could even supersede the edicts of the King or statute law of the realm, the definition of Austin cannot hold good. A custom has its binding effect because the people observe it, not because it has been set by a political superior to a political inferior. Law is not really what the Sovereign enacts but what the subjects observe. The Austinian theory, although more accurate at the present day, is absolutely inaccurate when applied to primitive societies, in which law

5

2

3

was mostly based on pre-existent custom.' It would serve very little useful purpose in our study of ancient Indian jurisprudence. It is historically untrue, as Sir Henry Sumner Maine has pointed out, in the case of countries where the king is not law-making but merely tax-gathering. Take, for instance, the injunction of avoiding forbidden food which is so constantly repeated by the Hindu jurists :— e.g., "All intoxicating drinks are forbidden." Vasishtha, Vishnu,* and Manu also laid down the same injunction in the strictest possible terms and made the breach of it a mahāpātaka. We cannot deny the above rule the title of law simply because it deals with the private conduct of a person and not in his dealings with others. If the British Parliament or the French Legislature would pass a bill embodying such provision and interdicting the use of specific articles, Austin would unhesi'tatingly accept the same as law. But that would be really laying too much stress on the method of law-making in western countries and on the peculiarities of modern jurisprudence. Fustel de Coulange has dwelt upon the omnipotence of the ancient state of Greece and Rome and the far-reaching nature of the legislation which included the minutest details of private life. The Athenian law forbade men to remain single. Sparta punished not only those who remained single but even those who married late. At Athens the States prescribed labour, and at Sparta, idleness. At Locri the law forbade men to drink pure wine, at Rome wine was forbidden to women.

It was

1 Frederick Harrison has pointed out that even in modern states there are some laws which can hardly be made to exhibit the characteristics of a command, obligation and sanction; e.g., enabling Statutes, rules of interpretation, and judicial construction and procedure, etc. ("Fortnightly Review," 1878.)

2 Apastamba, 1, 5, 17, 21. S. B. E., Vol. II, p. 63.

a common thing for the kind of dress to be invariably fixed by each city; the legislation of Sparta went so far as to regulate the head-dress of women and that of Athens forbade them to take with them on their jonrney more than three dresses. At Rhodes and Byzantium the law forbade men to shave the beard. Thus in the ancient world law was at first a part of religion. The ancient codes were collections of rites, liturgical directions and ceremonial rules joined with legal regulations. The laws regarding property and succession had to be picked out of a mass of rules for burial, worship of the dead and sacrifices. The ancient codes regulated penances, marriage rites and the worship of the dead. In those times law and religion were both blended together.

Some primitive systems of law were administered not only to rational beings but also to animals and inanimate objects. There was a court at Athens which tried animals and inanimate objects guilty of injuring human beings. Plato, the great philosopher, recommended the

The ancient State sometimes commanded a father to whom a deformed son was born to put him to death. This law is found in the ancient codes of Sparta and of Rome as well as in the ideal codes of Aristotle and Plato. On the strength of a passage in the KathakaSamhita (XXVII, 9):—“ Tasmāt-strīyaṁ jātāṁ parāsyanti na pumāṁsam," Weber, Delbruck and Zimmer asserted that girl infants were exposed by the Vedic Indians (Altindisches Leben, pp. 319-20 and Z.D.M.G., Vol. XLIV, pp. 494-6). It is now clear after Bohtlingk's explanation that Zimmer, Weber, Delbruck and others misunderstood the above passage which merely referred to the laying of the child aside (legt man bei Seite) while a boy was lifted up (Z.D.M.G., Vol. XLIV, pp. 494-6). As remarked by Macdonell the passage described the innate sentiment of primitive people looking down with disfavour upon the birth of daughters. (Vedic Indez, i, p. 395.) The Atharva Veda distinctly invokes the birth of a son and deprecates that of a daughter. "Prajapati, AnumatiSinivālī hath shaped; may he put elsewhere woman-birth; but may he put here a male" (VI, 11, 3; W. A. V., p. 289). It may be noted that Bohtlingk's view referred to above had been accepted later by Roth and Delbruck (Z.D.M.G., XLIV, 496).

We notice the expression of the same sentiment in a later hymn of the Atharva-Veda which prayed for keeping the male child safe in the embryonic stage;

"Ping, defend thou (the child) in process of birth; let them not make the male female; let not the egg-eaters injure the embryos; drive thou the kimidins from here." (VIII, 6, 25; W. A. V., p. 498.)

The Aitareya-Brahmaņa contains an old verse (VII, 15) which says that a daughter is a misery (kripaṇam), while a son is a light in the highest heaven.