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A New Note on a Treatise on the Nature and Sources of the Dharmasastra [dharmasastrasya svarupasya mulasya ca visaye eko navino granthah] / By Dr. J. Duncan M. Derrett, D.C.L. (oxon); Professor of Oriental Laws in the University of London / 77-94

[ dharmasastravisayamavalambya suprasiddhalekhakaih sri rabartalimgata mahodayaih phremcabhasayam pranitasya pustakasya samiksatmakah paricayo'smin nibandhe prastuyate | bharatiyadharmasastrasya svarupamatra bahudha suksmadrstya vivecitam vartate| visayapratipadanamatiricya sadhanasamagri samgrahapurvaka sucika'pi samkalitasti | dharmasutra- smrti-pura dharma nibandha tokadisastriya grantha namadharataya, visayagambhirataya, susambaddhasughatitavarnanaparataya sarvatha sailinirdosataya sutarkopolitamidam pustakam paripurnamadvitiyam sarvati- sayiti nibandhakrtam matam | dharmapadarthasya vyakhya'tra visesena prastuta | dharmasya dharmapadena svakartavyaparipalanam vihitasadhananukulam jnayate | lokaritya, vyavaharena, niyamena, rajanusasanena saha sambandhah samyaktaya vicarito vartate | dharmasya vyapakatvad adharmika vyavaharah nastikah raja'pi dharma na sastravirodhino'pi samaje pracalitah sahyanta eva | nirmati, kevalam dharma raksati, dharmanukulam anusasanam ca karoti | rajanirnayo dharmatam na yati, dharmo'ntima nirnayakah ritivyavaharadinabhibhavati | dharma- viruddhanam tu dharmata'styeva | dharmasya mulasrotamsi vedapuranadi, paristhiti- visese vyavaharah, rsiniyamah, pramanapurusa va pramanatvena grhyante | evam jijnasunam pathapradarsakatvena vivaye'bhirucimutpadayitum tatrabhinivestum va prabhavatidam pustakam | senagupta karaneprabhrtimahodayanam krtinam sthaniyatam tathapi na yati | parantu naitavata mahattvamasya matraya'pi hoyate | yata uddharananirdesadina sambaddhitametat rajanayajnanam krte pathaniyatam yati, dharmapradhana purananam tatparyajijnasunam navinanam krte tu visesena visaya- dharmapravanapurananam sratra srilimgatamahodayasya sastra paricayam, vagahanaya mahadupayogi | visayaparijnanam jnanaparipakvatam sramatirekam samalocakadrsti copalabhya nibandhakaro'pi pathakanam svabhavatah paksapato'smin pustake bhavati | pustake pratipaditavisayanamadhyayakramega vislesanatmakam vimarsa prastuya sviyavaidusyam visayavagahitvam visayerucivisesam ca pradarsayati | etenapi pustakanirmatuh maulikamdesakatvena vaisistyameva yotyate | ]

78 puranam - PURANA [Vol. X., No. 1 M. Robert Lingat is known to readers of the Revue asiatique as a writer on questions of jurisprudence and legal history of Indian and South East Asia. His book on Matrimonial Regimes in South East Asia already showed his interest in the dharma- sastra for he had developed the belief that the Buddhist countries of that part of greater India owed more than the savor of their institutions to contact with Indian jurisprudence. M. Lingat has also written in the A. B. O. R. I. and occasionally in other oriental journals. He now publishes Les Sources du Droit dans le Systeme Traditionnel de l'Inde (Paris and The Hague, Mouton & Co., 1967). The volume is no. 32 in the series Le Monde d'Outremer Passe et Present, and also no. 20 in the collection called Les Systemes de Droit Contemporain. It has 300 pp. of text, an excellent select bibliography of Sanskrit books and other sources on the subject, and a careful and helpful index besides. This is the best book that has ever been written on the nature and sources of dharmasastra, and far outstrips all efforts in any other language. Its compactness, and, for more remarkable, its consistency, make it a perfect guide for the beginner, for the tyro, whether Indian or foreign, who wishes to have a balanced and concise introduction to the world's oldest and most fully elaborated legal system. Needless to say, it is equally valuable for those who wish to assess the motives and success of the authors of the greater Puranas who concerned themselves actively with dharma. The present writer is convinced that sooner or later an English translation will be called for (though it will not be child's play to make); and meanwhile here is a short account of its contents and an appreciation of its merits. In a short article called 'A new approach to Dharmasastra' published in the Year Book of Legal Studies (Govt. of Madras), vols. vi and vii, 1962-3, pp. 68-83, the present writer drew attention to the five different approaches to the subject which had theretofore been noticed, the argumentative, the apologetic, the constructive, the historical, and the defeatist. The faults or shortcomings of all these approaches are avoided in this work of M. Lingat, and this in itself is a considerable achievement.

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 79 His achievement is the more remarkable because he has little personal contact with India itself. It seems as if his lifetime's study of Siam and Indo-China, living amongst a people much less westernized, less cerebral, less defensive than the Indian, has been better suited to an academic investigation of the sastra than would have been a personal involvement with the troubles of the sub-continent itself, and possibly a subjection to Indian preoccupations with the question whether the sastra can play any, and if any, what part in the intellectual revivification of the post-Independence world. M. Lingat, of course, reads English easily, and has had access to Indian and foreign publications on his chosen subject; more important he has set himself the task of acquainting himself with Sanskrit. He must have made some progress in that language whilst still in South East Asia; but he studied with the late Louis Renou, and in every case where some critical question arises within his thesis he has consulted, and sets down accurately, the Sanskrit text which has to be relied In some instances where valuable illustration for his upon. proposition was not then available in any European language he has gone to the original, undaunted by its mimamsa or other esoteric difficulty, and leaves upon the reader's mind no doubt but that the original has been mastered. In addition M. Lingat has had available the advice and inspiration of M. Louis Dumont, whose highly individual contributions to Indian sociology stem from an appreciation of modern life as well as more strictly indological materials. Louis Dumont believes in students of India being equipped with Indian Culture, and in this he found ready acquiescence in M. Lingat. The point of view is not widely shared, because sociologists who do not know Sanskrit, and whose minds are not quite up to the task of mastering that language, all too readily preach the doctrine that what is to be found in books cannot be of any help to one whose subject-matter is life as it is lived today. It is fortunate that there are specimens to be found of quite another approach to Indian studies. M. Lingat makes in his preface a generous acknowledgement to P. V. Kane's History of Dharmasastra, without which none of us could get very far. But it is noticeable that he does not rely

80 puranam -- PURANA [Vol. X., No. 1 upon Kane for his approach or his style. He is no imitator of Kane, who in fact has supplied him with instances and hints, but not the spirit which has made this book much more of an advertisement for Hindu law than are Kane's encyclopedic productions, which can daunt the newcomer and tend to be too apologetic in tone for the modern taste. In the preface M. Lingat makes it clear that he is dealing with dharma, for he understands this to mean "duty", which is not the same thing as "law". There is no word in Sanskrit which quite corresponds to "law". Yet "law" is elaborated through the concept of dharma: and this is the kernel of the whole book. Dharma itself was not law, nor was law dharma, yet in providing for the administration of law the Indian scholars utilized the broader and much more flexible concept of dharma. M. Lingat admits that he uses primarily the commentaries and the treatises for his analytical purposes: for these actually show the movement from dharma to law, and enable the broad lines of the system to be identified. Lingat does not try to find out the meaning of the texts prior to the moment when they began to be used for the construction of law a wise, as well as modest, piece of self-limitation. The book seeks to show how rules of dharma came to be given the force of a legal sanction: and thus the author copes with the central problem, which defeated Sir Henry Maine and numerous subsequent scholars who tended to give either too little or too much importance to the written text of the sastra. Needless to say the point of view established in this book does not accord with what the Anglo-Indian courts achieved, and to which, unhappily, the courts of modern India are (subject to the "Hindu Code") in large measure still bound. M. Lingat seeks to enter into sympathy with the orthodox scholars of the preMuslim period, and to see their problems and their achievement through their eyes, and, if the present writer may say so, he has been remarkably successful in so doing. The First Part consists of six chapters in the following order under the general heading "Dharma": (1) the sources of dharma, (2) the dharmasutras, (3) Indian society and rules of law in the

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 81 dharmasutras, (4) the dharmasastras commencing with the Manusmrti, (5) other dharmasastras, (6) the commentaries and digests. He finishes this part with some reflections on the chronology of the dharmasastras. After discussing the nature of dharma and adharma, and noticing the privileged position of the ascetic (quoting the Mitakshara on Yajn. I, 8) M. Lingat passes to consider the relations between dharma (the 'good'), artha (the 'useful') and kama (the 'pleasant'), and takes in turn as sources of dharma the Veda (which he understands in a very large sense). Tradition (which he rightly says is the meaning of smrti) in which must be included various sciences and not merely the smrti devoted to dharma, and good custom. Smrti he says (p. 27) has two senses, the etymological sense, memorial tradition, and the special sense of literature handed down in the dharmasutras and dharmasastras. That is why we have expressions such as "the smrti of those who know the Veda" which is the same as Apastamba's phrase "the agreement of those who know dharma". M. Lingat's understanding of sadacara is particularly interesting. It is the usage of specially qualified persons handed down from antiquity, and it is the task of a parisad to determine whether any particular practice conforms to sadacara. It is important to realise that the Brahmins who might form a parisad were never organized into a college. The logical and moral value of the teaching of the Brahmins was the only criterion of its validity. He adds that it is problem that the dharmasutras and the earlier sastras only gathered up the traditional rules of parisads (p. 31). That is why smrti can be called parsada. The Mimamsa put an end to custom as a continuing source of smrti. The commentators began to be shut up inside a system of interpretation of written rules. The discussion of the dharmasutras is chiefly descriptive, and reveals the author's acquaintance with those works and also the secondary literature devoted to them. The Visnudharmasutra is properly treated in a section to itself. Its dependence upon Manu, Yajnavalkya and even the Bhagavadgita is noted. The third chapter of this part deals with Indian society. It is rightly remarked that no importance can be given to any guesses as to the dates of the sutras. The relatively small 11

82 -PURANA [Vol. X., No. 1 space devoted by them to matters of litigation shows the standpoint from which dharma was then evaluated-it was not yet primarily a source of law, as we know it: it had wider and perhaps more important functions. The theory of the four varnas is an important example of the didactic approach of the writers. M. Lingat briefly explains what the varna-duties amounted to. Even in the time of the sutras themselves the jatis, the real castes, existed in a form which could only with an effort be made to correspond to the four-fold theory. The complicated notions of the origins of mixed castes already show a high degree of sophistication and abstraction from fact. M. Lingat gives adequate space to the views of Senart on the subject of caste, and it is an important feature of this book that it makes available in a conveniently short space the opinions of several French authors who tend to be given less attention by British Indian writers on Indian law and institutions than they deserve. He refers for example to Dumezil (p. 52), whom not everyone takes very seriously, on Indo-European reminiscence on the subject of hierachically-organized societies. In M. Lingat's view the sutras' method of dealing with caste was not so much ingenious as inevitable (p. 53). The sutras' barrier between the dvijas and the sudras seems to have had variable limits, but was complete. But the theories of Jatyut karsa and jatyapakarsa which went a long way towards moderating the severity of the doctrine were already in vigour well before Manu (X, 64-65) and Yajnavalkya (I, 96). The theory of the four stages of life comes to be treated next. The sutras present this as a finished doctrine, the stages are successive, as they fail to be at later stages of the sastra. On the stage of the forest-hermit M. Lingat says (p. 66), 'The speculative and religious nature of the Hindu and the particular point of view from which our authors considered social organisation have alone given to this stage of life a character not to be found elsewhere. There is no theoretical construction here, but perhaps a religious transposition, a sublimation of ancient barbaric custom.' As for the fourth asrama it is certainly the result of a defensive attitude on the part of our Brahmins vis a vis

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 83 ascetics who competed with them in religious contexts. Baudhayana says (II, 6, 11, 28) the two last asramas were invented by an Asura. a The legal provisions of the sutras are mainly in the field of acara, and breaches of the prescriptions lead to sin, which if not expiated by penance will certainly lead to present or future punishment. The distinction between those sins which bring about a loss of caste and those which merely defile is already present. The ceremony for exclusion from caste is given in significant detail (Gaut. XX. 2-7, Vas. XV. 11-14). M. Lingat gives considerable attention, now, to what is meant by penance. There can be no doubt but that the degree of sophistication and juridical nicety given in such ancient times with regard to sin and the awarding of a penance was not excelled when the sastra later came to develop a criminal law, and indeed (one may add) many of the requirements of the latter are simply borrowings, acknowledged or unacknowledged, from the law relating to penance. But one must remember that sin and penance are not "law" in the sense which is used in this book. It is precisely the movement from dharma to law which is its theme. Though Brahmins were more concerned with purity and observance than the rest of the population they were the spiritual directors of the public at large because of their prestige and authority; this gave to their activities a very wide field because the notion of dharma was not confined to purity, observances, and the like. A summary is given of the family law items which appear as aspects of the dharma of the householder. The details are sufficient to enlighten the newcomer appropriately, and the author commences his discussion of the somewhat fictional doctrines of marriage by saying, 'When they integrated the usages of their epoch into acara they made out of them something very different from customary law...a religious value was attached to them and the quality of sin was attached to failure to comply' (p. 74). 'Their hesitations, their contradictions too, show the obstacles which they had to surmount or negotiate in order to attempt to make the rule they wished to see adopted triumph.'

84 puranam - PURANA [Vol. X., No 1 The discussions of the "forms of marriage" cannot be understood unless one realises (p. 76) the effort which the authors made to eliminate practices of which they disapproved: society certainly did not accept their propositions as a matter of course. The divergences between the rules relating to substitute sons illustrate the jurists' difficulties. In the law of partition there were evidently very different usages; the sastra approved of partition, but that did not mean that partition was obligatory, and Gautama's ideas on the subject do not merely reproduce what was in use in his time. M. Lingat notes in passing (p. 80) that penance being for the reform of the individual, the concept of punishment is not exhaustively taken up. It seems also certain that the sutras did not provide for an wrongdoer's being compelled to recompense his victim: the sutras are concerned with the sin and the offence against society. The authors give themselves the task of providing purification from sins, reestablishing the spiritual order broken by the misdeed. Reparation, 'punishment, as such belong to the temporal order, which, at the time of the sutras, is not the direct concern of the Brahmins. No doubt the king is obliged to see to it that penances are performed, and if punishment is added it is to complete the penance (Ap. II, 5, 10, 12-16, and 11, 1) (p. 82). Criminals punished by the king are purified and go to Heaven Vas. XIX. 45 (cf. Manu VIII. 318). The religious and secular law thus interpenetrate each other, a clear distinction between the two realms was not attempted (p. 84). No one can believe for a moment that the ancient Indian king waited for penance to be prescribed before he exercised his right to punish. In the sutras the Brahmins are beginning to advise him how he should act. When one turns to the law of evidence the question arises why written records are not referred to, title deeds, while ordeals are dealt with at length. The answer is the same: the customary law could take care of temporal methods of proof, including title deeds, but only the Brahmins could administer ordeals. At length

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 85 Brahmins are brought to occupy themselves with vyavahara, and their provisions are written, as it were, on the margin of dharma. The Brahmins could not impose their ideas. They could proclaim, and for this purpose they made a choice from amongst the customs in vigour. They borrow from usage, but in their own way and without hope or intention of enforcing any law as such. In chapter four of the first part M. Lingat deals with Manu, and his many and shrewd comments must be summarized here for want of space. Dharma has become an independent discipline and it embraces vyavahara, law properly so called. There were Vedic scholars evidently who specialised in dharma in this wide scope. After a careful and full analysis of the Manusmrti's contents the origin of the book is discussed, and on the whole M. Lingat agrees with Kane against Buhler as to the possible existence of an earlier Manava-dharma-sutra. But Manu could have sprung from an earlier form like a sutra (p. 107). But the smrti obviously did not keep to a traditional plan like that of the existing sutras. Manu is the most ancient of the sastras. Yajnavalkya and Narada are much better in point of definition and detail. The reason is that Manu was produced when the interest in juridical questions was fully awakened but their study had not yet reached such a state of perfection as the later smrtis testify to (p. 110). The connection with the Mahabharata is close and not yet entirely accounted for. In the fifth chapter Yajnavalkya and Narada are dealt with (and it is noted how these travelled eastwards and are cited in Champa, etc.) and other smrtis are mentioned more summarily. M. Lingat quotes (p. 121) Auguste Barth's enthusiastic appreciation of Narada in 1876 and Rodolphe Dareste's question whether Narada cannot have had any knowledge of the Roman legal mind and its work (1889): Lingat's own comment is that whether one accepts these rather uncritical reactions or not they serve to prove the scientific quality of Narada, which is undoubtedly the case. After reading these chapters the newcomer will be fully apprised of the principal smrtis of legal value, although perhaps he needs to be told the role played at so many important places in the later

86 puranam -- PURANA [Vol. X., No. 1 literature of the minor smptis which have never been garnered into collections (as distinct from the spurious late smrtis which have), and of puranas and other late material treated as scriptural by the great jurists. The sixth chapter deals with commentaries and digests. A contrast with Byzantium and the work of Justinian is made justly at p. 129, namely that at a time when Roman Law came to a stop so far as creativity and originality were concerned the later phase of dharmasastra flowered and developed in an increasing flow of doctrinal works. A reference is made to an old Javanese legal work which seems to have been based upon the Manvarthavivrtti of Narayana (see journal of the Greater India Society. vol. 15, 1956, pp. 111 ff.). Lingat lists and describes the principal commentaries and digests. It is very good to see that at the end of the chapter he pays a suitable tribute to the Dharmakos ha of Lakshman Sastri Joshi, which is not merely an aid to students of the dharmasastra but also an exposition of the sastra in its own right, the more remarkable for its having been produced as a private venture in the period immediately prior to the Second World War. At p. 152, having explained perfectly why all attempts strictly to date smrtis are in vain (nearly all the criteria siezed upon by previous scholars are fugitive or misconceived) M. Lingat draws attention to something that many scholors in India will not know, namely that K. V. Rangaswami Aiyangar's praiseworthy attempts to reconstruct the Brhaspati-smrti were vitiated by a naive or unsettled conception of the critical skill required to choose between variant readings, and that that smrti cannot be used nowadays without the notes and emendations of louis Renou, unhappily divided between Indo-Iranian Journal, vol. 6 (1962), p. 82-102, and Studes Vediques et Panineennes, vol. 11 (Paris, 1963). Part II of the book is called "From Dharma to Law", and is the book's real contribution to knowledge, though, naturally, it could not have been presented without the first part. After stating the problem he devotes the first chapter (rightly) to Interpretation, which he illustrates finely, and quite sufficiently for those who do not have the time to read K. L. Sarkar or Kane's

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 87 material in vol. 5 of the History of Dharmasastra. The second chapter deals with the relationship between dharma and custom, and the third, which perhaps is the most useful of all, the relationship between dharma and the royal order or ordinance. At p. 156 M. Lingat makes the significant remark, 'the rule of dharma keeps its character even when it brings legal consequences in its train. Its authority resides essentially in the Hindu's faith in a divine governance of the world the law of which is expressed by the rule in question.' The difficulties which the British (but perhaps not the French ?) experienced in trying to administer such a system are briefly but searchingly explored (pp. 156-9). The conflict between Nelson and Innes (which the present writer has examined in C. H. Philips' volume on Historians of India, Pakistan and Ceylon) is carefully set out, and it is agreeable to see that basically M. Lingat agrees with Nelson. The dharmasastra was not a legal system in the Anglo-American sense of the term, and though it is difficult to imagine what else could have been done, seeing the size of British India (in contrast with French India), and seeing the great difficulty in obtaining reliable and faithful evidence of custom (most people have no idea what their customs are until someone tells them what to say !), the objections to the Anglo-Hindu law raised by the indefatigable Nelson were justified. At pp. 160-162 M. Lingat reproduces the ideas of A. Barth on the subject, which of course are to be found in Barth's Oeuvres, which almost certainly are not available in india, or at any rate not widely available, even granted that Indologists can read French. What Barth grasped was that the judicial officer contemplated by the dharmasastra was not a judge in our sense at all, but a special kind of arbitrator who could decide whether in any particular case one should apply customary usage, the law of the rsis, the practice of ancestors, (or some fourth position), according to the circumstances of and policies attracted by the litigation. Such a situation as the British created, where custom would have no scope unless proved strictly in derogation from the sastra, was a parody of the Hindu system. But it is difficult to see what else could have been attempted once the decision had been taken to eschew indirect rule,

88 puranam - PURANA [Vol. X., No. 1 Suco Dealing with interpretatian M. Lingat commences by pointing out what the Arthasastra meant: it was a science of kingship, and certainly its existence was presupposed by the dharmasastra writers, who occasionally quote from it or refer to it. Incidentally whether Kautilya actually was cited in Jimutavahana's Vyavaharamat ka may still be open to doubt (cf. p. 167, n. i). The dharmasastra authors wrote in the assumption that what the king was actually doing was to be determined by a complex of factors, and that their advice, based upon interpretation of texts, would provide only one item in the argumentation which must precede a legal decision. M. Lingat gives a very adequate account of Jaimini and what his sutras were intended to do. He corrects the statement often encountered in Mayne and elsewhere that Mimamsa is mostly a collection of maxims of common sense. In fact this is to confuse laukika-nyaya with the true mimamsa, which provides tools for the construction of Vedic and so also smrti texts. M. Lingat takes illustrations from the Mitakshara and the Vyavahara-cintamani to show (p. 172) that a mimamsa maxim can be used to strengthen reasoning reached from opposite angles and with opposite results; in neither case does it really determine what the answer will be. Many of the rules are of semantic value, and thus similar to canons of interpretation found the world over. Instances are given where mimamsa is in fact the only overt source of a decision, and one admires the author's handling of this obscure and sometimes barely intelligible science. M. Lingat frankly says that often the mimamsa tags are very far from their correct source, like Latin tags used out of context, But the importance of the technique is not to be minimised. The difference between vid his of various categories is explained at pp. 173-4. A careful discussion is given to a famous instance in adoption in which mimamsa figured in Anglo-Indian jurisprudence throughout the nineteenth century. M. Lingat explains the distinction between drstartha and adrstartha rules (p. 177) by indicating the analogy with the digtinctions between dharma, artha and kama : but whether this is correct remains to be demonstrated more closely. The topic of

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 89 conflict of texts is taken up in the third section of the first chapter. Here we are in the midst of genuine sastric discussion, and the section is, more than any other, likely to be conducive to the study of the sastra by comparative lawyers. Incidentally M. Lingat would correct the translation of a verse of the Bhavisyapurana appearing in the Vyavahara-cintamani so ably and conscientiously translated by Ludo Rocher (himself now a professor at Philadelphia). The puzzling topic of acquisition by adverse possession, which Vijnanesvara handles so curiously and so unsuitably (to the modern mind) is explained at length (from p. 182), and fully illustrates the contention that dharma, on its way to providing "law", maintains a more faithful concern for its own integrity than for the convenience of the public at large. All deficiencies, in that regard could be made good by customary practices of which the jurists took account silently, but with which they were reluctant to contaminate their doctrinal works. M. Lingat shows that there was a preconceived notion of justice which led Vijnanesvara through the maze of texts and predetermined the manner in which he would dispose of anything which tended to show that property could be lost by possession alone. A contrast between his views and those of his more immediate colleagues proves that such doctrines cannot have provided an invariable rule of law in any area or period. That texts could, and indeed should, be interpreted so as to accord with actual practice is, however, acknowledged by Nilakantha on Manu IX. 210 (here p. 189). Madhava's treatment of marriage with close relations in South India and elsewhere is another example of techniques of interpretation, where the jurist attempts to make a widespread custom respectable notwithstanding plain texts to the countrary, and M. Lingat sets out the passage at length at pp. 190 ff. He could hardly have chosen a better example. As he says, even where custom is not alluded to the manner in which the argument is conducted is frequently predetermined by the customs of which the jurist himself approves. Naturally if his doctrines would prevent important local communities from believing themselves to be orthodux Hindus his work would disappear, 12

90 puranam - PURANA [Vol. X., No. 1 The second chapter of the second Part deals with dharma and custom. M. Lingat starts by commenting that the customary rule is in principle indifferent to religious consequences of an act (p. 197). Katyayana accepts that usage may well be adharmya, and yet it is caritra and thus entitled to some protection from the king. A. S. Altekar's conception of caritra is commented upon at p. 199. He is wrong to suppose that dharma ever rested upon traditions or conventions accepted by the populace at large. Such errors are frequently encountered in Indian writers, who have been brought up to think of the dharmasastra as essentially a legal system. In fact dharma was independent of agreement or usage, and a parallel sanction to it. Practice does not become dharma because it is customary but because it is understood as such by those who know dharma or it is prescribed by the Veda. Public opinion is of no importance except in so far as it has a bearing upon one or other of these conditions. Indeed, the motives which move the public are inconsistent, as often as not, with the driving force behind dharma. Of course customs can be rooted too deep for the jurist to ignore them, and this accounts for Manu's tolerance of usages of which he himself plainly disapproves (p. 204). The theory of the yugas does not show that the authors of the dharmasastras thought morality altered from time to time, but rather that varying conditions alter the extent to which the requirements of dharma can be met, and alter the emphasis which may in practice be placed upon its prescriptions. The use of the concept of consensus, custom, had this valuable result that diversity of interpretation was possible, without which law itself could not have developed out of dharma in such a large and heterogeneous country as India (p. 211). There follows a careful discussion of the concept of the Kali-varjyas: he agrees with Kane that it puts an end to the notion of the Unchanging East. Whether after all the theory has really introduced a variable element into the nature of dharma itself is very doubtful. Did dharma ever have so inelastic a character that the Kali-varjya theory should have profoundly modified it? The effect of the theory was to detach

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 91 the changes, which were certainly observed, from human origins, and to retain the notion that dharma was not dependent upon public opinion, or custom, for its character or sanction. Groups which continued to practice the forbidden acts merely announced thereby their fall in the hierarchy of orthodoxy. Thus the interdictions were really a device for declassifying certain elements in the population, which adhered to practices which the more advanced elements had allowed to fall into dissuetude. It was in any case a purely negative device, and introduced nothing new. Meanwhile custom was given a special sanction by dharma lest the result should be social chaos and civil strife. This was not an evaluation of custom as such. If one followed a custom contrary to dharma he might not be punished by his social group, but he was a sinner from the point of view of the religion. There were exceptions, recognized by Brhaspati (II, 31; ed. Aiyangar, L, 130), in which neither penance nor punishment were allowable. Custom there could paralyze dharma completely. The religious sanction was removed. But this of course could never make the aberrant act itself dharma. This was serious, however, because a determined group could nullify dharma in their regard, whereas the Kali-varjya theory depended upon general considerations. Perhaps this is why Nilakantha for example allows those who practice bad customs to escape punishment by way of penance, and not penance as such. Jurists themselves found it difficult to understand how it was that groups practising adharma could be immunised against the spiritual dangers they incurred and could retain prestige and high-caste rating notwithstanding their unorthodoxy (p. 225). But the customs in question were not legitimised, as it were, only tolerated. The influence dharma exerted upon customs was like the reception of the Roman law in areas of Europe previously governed by customary laws. When communities became Hindus they had one point in common with the Hindus in general. From this point a gradual enlargement brought them nearer and nearer into touch with orthodox usages. Participation in dharma meant fulfilment of duties. Hindu civilization tended to dissolve the

92 puranam - PURANA [Vol. X., No. 1 shocking un-Hindu customs which they practised. The power of custom weakened as the standing in the structure of caste and purity rose. An insensible irradiation of all ranks of society was the actual function of the written law. Dharma was always on the winning side: one might say was imperialistic vis a vis the adharmic customs (p. 228). The subject of the relationship between dharma and the royal legislative or regulative power is highly controversial. In the third chapter M. Lingat contradicts ideas of the present writer, he denies any legislative force to royal edicts which, as he rightly says, had no place in the sources of dharma. As a source of law, on the other hand, the king's order had a place. The king might cause adharmic customs to be discontinued. He could positively contribute to the forward march of dharma, but he could not in any negative way hamper the activity of dharma, for the king's sphere, like custom, was different from that of dharma. This is why the sastra never hesitates to dictate to the king and to threaten him with otherworldly penalties. Ksatra is a territorial power, not sovereignty in the modern sense (p. 237). It is a property in respect of the soil. The Ksatriya has the right to take taxation and to punish offenders. The latter is shown in the dharma texts as a quasi-divine prerogative. There is no analogy between the relationship between Brahmin and Ksatriya in India and the doctrine of the Two Swords in medieaval European thought. Ritual and penance are the realms in which the Brahmin is supreme. But he is also supreme in the field of determination of the scope of royal activity. Nothing in the arthasastra tends in fact to delimit the scope of dharma, which itself sets the bounds and the tone of the royal jurisdiction. "Temporal power alone has the capacity to act, but it is a blind force which needs to be directed before its exercise can be efficacious' (p. 242). This is why the king is master of all except the Brahmins (Gaut. XI. i). The king's wishes cannot be substituted for the divine commands relative to conduct (p. 250). Vyavasthas to be found in inscriptions, above all in the South of India, have only a

Jan., 1968] A NEW TREATISE ON THE DHARMASASTRA 93 limited significance, and are to be seen against the background of the uneasy relationship between dharma and custom which we have already studied (p. 253). The king acts not as legislator (though this may be doubted at times, according to one's understanding of the word "legislation") but as administrator. Kings could, and did, have works on dharma compiled for the guidance of their countries: there was no question of the author's introducing new matter at the royal patrons' options. If one, such as Pratapa Rudra, thought his digest would supersede earlier works he was disappointed. The scope of royal jurisdiction to enforce penances awarded by priests or Brahmins (p. 258) itself argues the subordinate capacity of the ruler. The king has no power to determine a penance. There are traces of the king's having once had a kind of sacral power, whereby his punishment could operate as a penance, but these are exceptional (p. 262). The whole subject of criminal justice (section 4) shows how free was the scope of the king where merely secular considerations, the protection of the public, were involved. Here dharma provided him with no superfluous advice. Discussing the topic of civil litigation M. Lingat goes into the question of the meaning of Manu VIII. 24, which requires the king to understand both artha and anartha, as well as dharma and adharma. All the sources make it clear that a valid judgment requires consideration of all four of these. It is the king's duty to modify or moderate the rigour of dharma with the requirements of the occasion, the needs, perhaps, of equity or mercy. That this will sometimes produce a result contrary to law is not so significant as the fact that flexibility and social stability will be better served (p. 280). The decisions of the king cannot have the value of precedents and no case-law could develop. This is a natural result of the absence of any concept that kings could make dharma. In his Conclusion M. Lingat draws together threads, of particular interest to those who wish to compare modern laws in South and South East Asia with their ancient forerunner. First of all the concept of "legality" must be abandoned, and we must

94 puranam - PURANA [Vol. X., No. 1 take up in its place that of "authority". Dharma was a matter of "authority", whether or not it was ever transmuted into law in an individual case. The rules of dharma were securely based in Hindu traditions and aspirations: otherwise they would never have led to any factual result at all. Where custom could not be overcome it remained mistress of the scene. But even so custom's victory did not diminish the authority of dharma. Definitive authority belonged only to dharmic rules. The king's reading of dharma had no more value, and no less, than that of any other scholar (provided he had the qualifications to interpret the dharmasastra). The king's sentences have no future, they are mere isolated events in the legal life of the country. The written text of the law floats above everything. It is vain and presumptuous to draw from it any picture of any substantive law actually in force in any area at any period. That was not its role. The continuous development of the sastra is to be found, not in India, where the British put an end to it, but in further India, in Burma and Indo-China. Orthodox Hindu ideas there had a prolonged life. This short summary or survey has not been able to give any impression of the wealth of citation, or the labour which the author must have expended on this well-matured and closely reasoned book. No doubt it is not a guide to Indian society in all its richness and variety. It does not purport to be. It is not a guide, either, to the substantive rules which the sastra laid down this can be discovered from Kane, or from N. C. SenGupta or elsewhere. But as an introduction to the Indian science of jurisprudence it is, as we have indicated above, unrivalled, and it should lead to a revival of interest in the subject on the continent of Europe and elsewhere at a time when one feared that, in comparison with the much less well documented and less interesting laws of the ancient Near East, the system native to India was about to be consigned to oblivion.