The Conception of Positive Law in Ancient India The greatest obstacle to a comparative study of the legal history of ancient India is the influence of the Analytical School of Jurists of which John Austin was the most con spicuous representative. The present generation has consciously or unconsciously imbibed the Austinian doctrinethat Law is a command of a determinate political superior to an inferior enforced by sanction. Every serious student of comparative legal history who studies the evolution of law, from the earliest germination of legal consciousness in ancient societies, realises the various inconsistencies in the doctrine of the great jurist. The main plank in Austin's theory that sovereignty must reside in a determinate body-is inconsistent with the modern conception of popular sovereignty, ignores the power of public opinion and takes no account of "political sovereignty." His theory has been criticised by a formidable array of distinguished historical jurists like Maine, Clark, Sidgwick, Lowell, and others. As Sir Henry Maine has pointed out, it is a historical fact that sovereignty has often been in the hands of persons not determinate. The Austinian theory of law as a command emanating from a determinate superior-has been criticised on the ground that it ignores the great body of customary law which has never had its origin in the will of a determinate political superior. It errs in treating law as merely command. It identifies sovereignty with legal despotism. It exaggerates the single element of force in law to the neglect of all other historical facts and the forces and influences which contribute to the evolution of legal norms. But Austin's theory is not wholly defective. The contents of legal systems may be complex and variable, but the idea of law is comparatively simple. Despite all criticism, Austin's main position is unassailable, regarded as a summary of existing facts. What the State wills, that the individual can be compelled to obey by means of coercive sanctions. When the evolution of Jurisprudence reached a comparatively mature stage in ancient India, we find that amidst the labyrinths of secular and ceremonial rules and rituals positive law gradually differentiated itself from religious and semi-religious injunctions. When the state became the determining factor in the administration of law and justice, positive law secured for itself a definite position and estab. lished its sway by virtue of the punishment which the State would inflict in case of its infringement. In the later Smritis the main principles of Austinian theory are noticeable :— Smrity-achara-vyapetena margen-adharshitaḥ paraiḥ "If a person, molested by others in the way which contravenes the Smriti or established usage, complains to the King, that gives rise to a topic for judicial proceeding." As pointed out by Dr. P. N. Sen,' this injunction of Yājñavalkya implies three elements, viz. : 1.-transgression of law as laid down in the Smriti or established by usage, 2.-injury to some one other than a transgressor, and 3.-intervention of the King in his judicial capacity. The Hindu conception of positive law was not very different from the Austinian theory thereof. (1) It emphasises that "law was added because of transgressions." 2 "Hindu Jurisprudence " (Tagore Law Lectures, 1909), p. 29. (2) It shows that the intervention of the King is called for because and in so far as these transgressions cause injury to people other than the transgressors. (3) It indicates that whether a transgression be of some rule of action laid down in the Smritis or of some established usage, in either case it is the intervention of the King, who is the protector of the people and dispenser of justice, that converts religious or customary law into positive law. This comparison also shows some points of difference as well. According to Austin, law, in its normal form, consists of commands emanating from the Sovereign in the State and the duty of enforcing the same is a self-imposed duty. But according to the great Hindu jurist Law issues from a source superior to the Sovereign and the duty of enforcing the same is cast upon him from above. Thus the Brihadaranyaka Upanishad lays down :— "Sa n-aiva vyabhavat-tach-chhrey orūpam-atyasṛijat dharmam Tad-etat kshatrasya kshatram yad-dharmas-tasmād dharmat-paraṁ n-āsti Atho abaliyan balīyāṇsam āśamsate dharmeņa yathā rājñ-aivam Yo vai sa dharmaḥ satyam vai tat dhaṛmaṁ vā vadantaṁ satyaṁ vadat=īti Etad-dhy-ev-aitad-ubhayam bhavati.1 "He...... created still further the most excellent Law (dharma). Law is the Kshatra (power) of the Kshatra, therefore there is nothing higher than the Law. Thenceforth even a weak man rules a stronger with the help of the Law, as with the help of a King. Thus the Law is what is called the true. And if a man declares what is true, they say he 1 I, 4, 14; Sacred Books of the Hindus, Vol. XIV, p. 93. declares the Law, and if he declares the Law, they say he declares what is true. Thus both are the same." 2 99 1 In the Dharma-Sutras we find that the protection of all created beings as well as the infliction of lawful punishments was the primary duty of a King. Manu went so far as to identify the King with Punishment and laid down that the enforcement of coercive sanctions was a Dharma Sa raja purusho dandaḥ sa netā sasita cha saḥ Chaturṇām-āśramāṇāṁ cha dharmasya pratibhūḥ smṛitaḥ Dandaḥ supteshu jāgarti daṇḍaṁ dharmam vidur-budhāḥ.3 3 "Punishment is (in reality) the King (and) the male, that the Manager of affairs, that the ruler, and that is called the surety for the four orders' obedience to the law. "Punishment alone governs all created beings, punishment alone protects them, punishment watches over them while they sleep; the wise declare punishment (to be identical with) the Law." (S. B. E., Vol. XXV, p. 219.) The author of the Sukranīti like the earlier Smriti writers also enjoins the King to administer justice by the infliction of punishment :— Dushta-nigrahanaṁ kuryyād-vya vahār-ānudarsanaiḥ. "The King should punish the wicked by administering justice. The subjects who are made to observe his orders are always under his authority." (S. B. H., Vol. XIII, p. 183.) Gautama, X, 7, 8; and XI, 28. Āpastamba, II, 5, 10, 6. Vašishṭha, XIX, 1. Cf. Vishnu, III, 2. 3 VII, 17 and 18; Cf. VII, 27. ⚫ IV, 5, 1. Thus the idea of sanction as an essential element of law was emphasised by the Hindu Jurists, specially by the author of the later Dharma-Sastras. The system of law prevalent in ancient India grew not out of legislation but was based on religion. The old Roman definition which the jurisconsults preserved even up to the time of Justinian-Jurisprudentia est rerum divinarum atque humanarum notitia-also points to the same conception. Like other ancient people, the ancient Indians believed that their laws came from the gods. The divine origin is referred to in the above passage of the Brihadaraṇyaka. The ideal King in ancient India was also accounted semi-divine. Arājake hi loke-smin sarvato vidrute bhayat a King, "For, when these creatures, being without through fear dispersed in all directions, the Lord created a King for the protection of this whole (creation), taking (for that purpose) eternal particles of Indra, of the Wind, of Yama, of the Sun, of Fire, of Varuņa, of the Moon and of the Lord of Wealth (Kubera)." (S. B. E., Vol. XXV., p. 216.) The ancient Cretans attributed their laws, not to Minos, the actual law-giver, but to Jupiter. The Lacedaemonians believed that their legislator was not Lycurgus, but Apollo. The Romans believed that Numa wrote under the inspiration of the celebrated Goddess Egeria. The Etruscans believed. that they had received their laws from the god Tages. The The Hindu Jurists, however, constantly reminded the King to administer justice and to enforce coercive sanctions with great circumspection and with an eye to all the surrounding circumstances, like the status of the criminal, the nature of the crime, etc.; e.g., Gautama, XII, 51; Apastamba, II, 11, 27, 18; Vasistha, XIX, 9; Vishnu, III, 91, Manu, VII, 16, 19, 27-32 and Yajnavalkya, I, CCCIX-CCCXI, CCCLIV. * Manu, VII, 3 and 4. |