The administration of justice, to which we have already alluded, was ideally the task of Kshatriya judges advised by Brahman assessors; the books lay down the qualifications of the sabhasad (judicial assessor), which are admirable by any standard. But in the villages all decisions would be taken by village councils; the villager would be bound by them because dharma required compliance with an agreement to which he was theoretically a party, even if (as in the case of an untouchable) he had no right of speech at the meeting, and even if his opinion failed to win the general acceptance which always did duty for majority vote.
The villager was theoretically present in his village parliament, and the raja, his far-away ‘father’, was related by less tangible if definite religious ties. The raja, not surprisingly, was required by the sastra to take the local decisions seriously, and if they affected custom to inquire into and register them. The king’s own orders, the sasanas referred to above, were likewise recorded and put up in archives for future reference.
If the village could enact by-laws and the king promulgate regulations by decree it would seem to follow that the society was progressive, moulding its laws and constitution to meet developments. On the contrary some observers emphasize the static nature of both. It was at one time supposed that dharma could disallow positive legislation, but this view has no foundation.
Decrees emanating from the palace are actually contemplated by the dharma-sdstra itself. ‘These goods shall not be exported’ and ‘Animals shall not be slaughtered on these days’ are examples. The artha-sastra actually authorizes the aggressor to combine tactics, noble and ignoble, and the conflict between the transcendental and the expedient ends, with a distinct advantage to enlightened expediency.
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From successful treachery the king can purify himself by penance; by a failure in diplomacy he may lose his kingdom and inflict chaos upon his former subjects. In a war, or with reference to a projected war, the dharma-sastra itself did not purport to chart the king’s fiscal and administrative powers.
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Dharma had thus an isolated existence of its own. It was not adjustable to suit opinions and occasions. We should look into its origins and relations with secular law more closely. In matters of detail, where the established ideals were not clear guides, the sastra must needs follow custom.
As customs so recorded became antiquated the sastris, or teachers, felt authorized to pass over many of the smritis, i.e. the immemorial maxims or oracular statements, which had accompanied the inspired philosophical and ethical material that made the greater dharma-sastras, in particular that attributed to Manu, such splendid vehicles for law. Alternatively, they would interpret them if they retained them, in ways which would save their validity whilst insinuating a more contemporary meaning.
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What was dharma was enunciated by the teachers, not the books, a jealously and successfully guarded privilege. Manu tells us that a committee of ten, of three, or, if need be, only one brahman, properly qualified in point of character and learning, can give an authoritative and binding decision on a point of law, whether ritual or spiritual, or on judicial matters.
No appeal from such a decision is contemplated, though evidently the royal court acted as a supreme court of revision, where the best-qualified pandits could give a ‘final’ reading of the sastra to meet the case. The state as such could not redefine dharma in any context. A custom, properly established, or a genuine sasana might authorize a departure from dharma in a particular class of cases or a particular litigation, but then only if the court’s attention was drawn to the former, and then without any bearing on the spiritual aspects of the question, in respect of which what was both ‘right’ and ‘law’ was immutable. Legislation by consent of the people did not exist, and the provision, which we have seen, that what the public abhorred could not be law, was of merely temporary and conditional effect.
The dharma-sastra from its very beginnings must have presupposed professional interpreters and a governmental machinery lacking jurisdiction to make more than ad hoc inroads upon it. This in turn presupposes a multiple, if ‘isolationist’ society, far from the tribe or clan.
What was best had been discovered by ancestors long ago, who had obtained it evidently from revelation; their insight and experience sufficed for their descendants; and it was thought that scholarship should be devoted to collating, systematizing, and rationalizing what had survived from the supposed corpus of injunctions. Debate was confined to the question whether current versions correctly appraised what the past had achieved.
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Such a theory of society and its government left no room for progress in any modern sense. On the contrary the contemporary state of society was attributed to an inevitable decline, by stages, from a golden age. Apparently ‘progressive’ rules, such as that a girl could obtain an annulment of her marriage with an impotent man, preserved in ancient smritis, were held by the time of the Smriti-chandrika, a thirteenth-century encyclopedia of law, to belong to previous ages, and to be unavailable for the author’s own period.
The seemingly socialistic Directive Principles of the current Constitution of India would have astonished men of that age. Rautilya himself nowhere suggests that the resources of a region should be exploited to their utmost in the national interest, or that individuals should employ their earning power or their talents to their utmost limits that the king should squeeze the peasantry to the limits of their capacity for regular payment was indeed recommended, but that was another matter.
The principles of royal monopoly in numerous objects of production, and the regulation of market prices to avoid undue competition indicate that the attainment of a balance was much more the object of policy than any adventure into the unknown. Individuals carried weight according to their membership of a group, and no group was independent. Hoarding, for example, was the function of merchant groups, who might live very economically, and to appropriate their hoards at his discretion, and so put the coins back into circulation, was a right of the raja.
In turn the raja admitted responsibility for the occasional unfortunate (provided he was not an outcaste) who found himself or herself without support, and the raja was the channel through which groups maintained their balance and those without groups to defend them were themselves protected.
Unduly successful claims upon the raja for increasing the power or privileges of one group would drive the others into the hands of a rival for the throne. Since stability justified the state, the king was, as the sastras interminably insist, bound to practise restraint, not least in forwarding those whom he favoured, for it was all too simple to exchange one raja for another.
We hear of puppet rajas whose seals authenticated their hereditary ministers’ acts, and of conspiracies between notables which terminated in their favorite’s being offered the crown. Ultimately the system aimed at maximizing the spiritual capacity of the individual as a member of a contented household, unambitious, protected from envy and unduly efficient competition, content with lawful acquisition, and relying upon the state for opportunities to put the good things of this world to the service of candidature for higher things in the next. The entire responsibility for this prospect lay upon the king, a figure who has obtained less sympathy than he deserved.
The machinery of government was well suited to its limited aim. The raja rested immune from unseen harm and his enemies’ attacks if his subjects’ welfare was secure, if castes kept to their functions, sages practised austerities, sacrifices were properly performed, nobles and leisured people roamed about gaily clad, merchants accumulated infinite wealth, and the toiling multitudes abstained from protest at the inequalities of life.
An army of spies informed him of maladjustments and plots. Which of the three conventional ‘powers’ of the king was the most essential, his strength of counsel, his material resources, or his personal energy? We have seen what his conventional ‘faults’ were. He needed each of these powers to perform his functions. The petty raja needed neither elaborate espionage nor bureaucracy.
He had his Parishad or council, as later more extensive kingdoms relied on their sabha or samiti, the assembly that represented local populations. In Vedic times the clan assembly advised the king on peace or war. Then women might actually be heard as counselors, a possibility scarcely contemplated in classical times, when women had their own rights to property but only anomalously took upon themselves public responsibility.
In later times the king’s deputy used to attend local gatherings and gave the royal assent to proceedings which often originated in the secretariat. The peace of small units was managed by the delicate interrelations between locally prestige-worthy families and the royal officials, from the village headmen to the district governors and tax-collectors, who were often the ministers to whom we have alluded already.
These latter assisted in but did not necessarily take responsibility for local self-government. Checks and balances, threats of force, and more than anything the appearance of strength, kept people in their places. Officials were regulated by custom, and by dharma (if they were un- corrupt), under the ruler’s oral or written instructions. The village assemblies were ruled by dharma in its most elemental sense, the conscience of the people understood through its customs.