Justice judges of ancient Hindu law Do you mean ancient Hindu India? I know how important it is for Indians to have a basic understanding of Hindu laws. Even though Indian history is mostly Hindu, people from other nations and religious beliefs lived in India for at least 2 thousand years. Hindu laws sustained a complex society in peace. Ask the Syrian Christians, the Jews, the Parsis, the Chinese, the Sufi and Ahmadi Muslims. It all changed when we had Muslim rulers and then the British rulers. Hindus were immediately relegated to kafirs and heathens, with little or no status before their laws. With the upcoming demographic change, there is a strong possibility that India will be ruled by Islamic sharia law again. In fact, some Muslims have already started asking for more Sharia laws for them in India. Muslim Personal laws are based on Sharia, but those are limited in scope at this time. Fortunately, those demands are not supported by all Muslims.
I am by no means a student of law. However, I have studied several scholarly books on Hindu law, and feel competent enough to answer your question. Only scholars who have titles such as Nyayatirtha and Mimamsa-Shastri should be expected to give comprehensive answers. They are the only ones who understand Hindu laws in letter and in spirit, and can properly interpret them. I am not one of them. For some years now, an idea promoted by the Indologist-Marxist-Dravidian-Dalit- Missionary community that Hindu law is Manuvad and horrible. This is completely false. Hindu laws are neither Manuvadi nor horrible. I have written at least two posts about the Manu Smriti in Quora. Here is one, in which I write that no Hindu king used the Manu Smriti. Dhruba Chakravarti's answer to Are Hindu scriptures like Manusmriti, Dharma shastra, etc., truly bad or portrayed in a distorted way? And another post, in which I point out that many laws of Manu Smriti are more progressive than what we have today. For example, it is pro-small farmers over big businesses. The original Manu Smriti was called Manava-dharma Shastra, and it was a huge text written in the Satya Yuga. That text is not available. No one has seen it. The text we have today has been altered countless times. That means, you must understand that the currently available text is not a reflection of ancient Hindu society. The reality is, none of the 19 Smriti texts have any direct relevance to Hindu laws. I know it will be hard for you to trust that last line right away. Please bear with me for a bit, I hope to be able to explain the purpose of these Smriti texts and what relevance they had in society. You may have heard this statement before: when there is a conflict between Shruti and Smriti, go with Shruti. When this subject is discussed, people generally give an example of differences in specific instructions for yajnas, especially how the Brahmana text opinion should be upheld. But this Shruti over Smriti principle also applies to social laws. Shruti takes positions based on universal ethics, not moral values. Smriti texts reflect moral values. But the Smriti texts are not holy books, and their moralistic pronouncements do not have the same status as, say, those in the Bible, owing to its claim of Divine origin. The Smriti texts are man-made and their opinions can be discarded in favor of universal ethics. The most we can say that Smriti texts reflect the moral values of their times. But that too would be correct if it can be demonstrated that they were used in the Hindu judicial system. They were, but not directly. This is the part that most Indians do not know. In the first linked post, I pointed out that after ascending the throne, the new king would ask his court pundits and the kula-guru to write a new Vyavahara Shastra. This is a text of laws to be used in his kingdom, based on three considerations: the king’s family traditions, the culture of his subjects and their time. The question would be, did they pay any attention to the Smriti texts? We will know the answer if we examine how the authors of the Smriti texts discussed the Vyavahara Shastras. They do talk about Vyavahara Shastras quite a bit. As far as I can, I will try to spare you the details. But the first thing to look for is how the Smriti texts define Vyavahara texts. The Katyayana Samhita says: “Vyavahara is that which removes various doubts on law” (26) Why is such a definition? Easy to see. The Smriti texts are the source of the confusion, which makes writing the Vyavahara text necessary. Next, let's examine what the Smriti authors say should be the scope of Vyavahara texts. Yajnavalkya Samhita says: “When a person complains about somebody flouting the provisions of laws given in the Smriti texts and the prevalent customs and goes to the king, that comes under the purview of Vyavahara.” Think about that. This is a straightforward admission that Vyavahara text supersedes Smriti texts. Interesting, isn’t it? Let’s look at some other quotes about the scope of Vyavahara texts. Vrihsaspati Samhita says: “Vyavahara is two-fold, about Dhana and about Himsa.” That is, civil and criminal. That leaves out what? It leaves out nothing. We still have two kinds of laws only, civil and criminal. The only difference from today is, in ancient times, the same court decided on both civil and criminal cases. We now have separate courts. I do not want you to miss what Yajnavalkya said about Vyavahara. He mentioned “when Smriti is flouted” as one of the two conditions when Vyavahara laws will be initiated. Doesn’t that give legitimacy to the Smriti texts? even though they may be confusing? We can only decide on this question after we take a look at exactly how the judicial system was laid out in Hindu India. Who were the judges? Narada says: “There were five levels of judges.” Kula (Family elders), Shreni (Business council), Gana (Traveling groups of legal scholars), Adhikrita (a Vedic scholar of Nyaya and Mimamsa) and Nripa (King). This sequence of judges supersedes the previous judges. That makes the king the final authority. The first authorized judges were family elders. Let’s think about them. They are not experts on Smriti texts. If the two contesting sides are unhappy with their judgment, they go to the next level of judges: members of the Business Council. They too are not experts on Smriti texts. They will insist on enforcing peace through compromise. If the contesting sides are unhappy with that judgment, they go to the traveling judges. These judges were enforcers of the Vyavahara text of their kingdom. They are not philosophical people who know the letter and the spirit of the laws. If the contestants do not like the judgments of the traveling judges, they go to the Adhikrita judge. The title Adhikrita should tell you that these are the scholars, who can be trusted with properly interpreting the laws of the kingdom. And the Adhikrita judges frequently gave equivalent judgments that did not physically harm anyone. If your job is to “properly interpret” the Vyavahara laws, and you upheld the judgment of the traveling judges, then you are completely redundant to the judicial system. Right? You have to justify your job by giving equivalent judgments. They would pronounce judgments like, publicly insulting a famous person is akin to killing him. That is an equivalent judgment. The contestants may still not like his judgment, then they get to go to the king’s court. That is the final level, like the Supreme Court of today. Yes, some Smriti texts have provisions for very nasty punishments. But think about this logically. Which family elder would give those punishments? No one would. That is not how families work. The higher up the contestants go, in theory at least, the more likely they will be exposing themselves to harsh punishments. The Smriti texts provided scary punishments, primarily to keep frivolous cases from taking up too much valuable time of the higher courts. Think about Shri Rama’s court and how that dhobi’s family quarrel could destroy His family. Shri Rama treated this case as if this were a threat to Ayodhya society. The reality was, it was just one person. Other people of Ayodhya were quite happy with Shri Rama and Mother Sita. The situation could have been treated as an isolated case. That lesson was learned by Hindu kings. They did not want any more minor cases to reach the court of the king and disrupt the kingdom in such a major fashion. These are some of the reasons why they developed this five-tier judicial system. K R IRS through the eyes of a blogger 28324 -- You received this message because you are subscribed to the Google Groups "Thatha_Patty" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To view this discussion on the web visit https://groups.google.com/d/msgid/thatha_patty/CAL5XZooxxBxxMLVTQd1mu5xaHFKG62G%3D00zyVb9eMTwwiFitoQ%40mail.gmail.com.
