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Textual accounts (ācāra)

There are a number of telling references to ācāra in Dharmaśāstra texts which reveal the real importance custom had for the settling of legal disputes. Nārada, for example, states that when something stated in a text on dharma conflicts with custom, custom wins out over the text.[18] Asahāya, in his commentary to this statement, confirms that the texts should never overturn lokācāra, or the "customs of the people." Yājñavalkya 1.156 agrees that what is considered anathema by the people, even if proscribed by the smṛtis, is not to be enforced. Manu 8.41 likewise states that a judge must study the specific laws practiced by castes (jātidharma), particular regions (janapadharma), and families (kuladharma) before making any legal pronouncements relating to them.

Even in rules concerning legal procedure itself, the importance of custom is evidenced. Nārada 1.115 states that the validity of documents, i.e. whether they must be witnessed, written in one's own handwriting, etc., should be determined based on local conventions.

With regard to individual groups' own self-governance, Nārada 10.2-3 requires that the king allow heretical monastic groups (like Jains and Buddhists), guilds, local councils, and other corporate groups to exercise their own laws and customs.[19] According to Yājñavalkya 1.342-343, the king must preserve the customs and conventions of all newly conquered lands as well.

Renunciation in Dharma Literature

The Dharmasūtras and Dharmaśāstras give a number of detailed rules regarding at what stage of life a person may renounce, who is entitled to renounce, and what their legal and social standing is following renunciation.

When can a person renounce?

The earliest Dharmasūtras evince a very disapproving attitude towards renunciation. The author of the earliest stage of the Baudhāyana Dharmasūtra, for example, is critical of renunciation because ascetics do not reproduce. The birth of a son was necessary for a twice-born man to repay his spiritual debt to his ancestors. Because a Vedic student (snātaka), having completed his education, is required to start a family as a householder, Baudāyana states that only the householder's āśrama exists for him. It must be noted that at the time Baudāyana was composed the āśramas were most likely permanent states of life chosen after one finished his time as a snātaka, not the sequential life stages they would later become.

The Vasiṣṭha and Āpastamba Dharmasūtras represent a transition from the disapproval of the idea of various āśramas (including that of the ascetic) expressed in Baudāyana and Gautama to the acceptance of the āśrama system and gradual efforts to incorporate it into the framework of texts on dharma. Those efforts culminated in the form of the aśrama system found in the Manusmṛti; by the time that text was composed, the āśramas had taken the form of sequential temporary stages which would allow one to pass from Vedic studentship to householder to forest-dwelling hermit to renouncer. Thus, Manu and Yājñavalkya after him are able to stipulate that a renouncer must have paid his triple-debt as a householder before renouncing the world. However, Yājñavalkya differs from Manu and Viṣṇu over whether passing through the āśrama of the vanaprastha is necessary. Manu 6.33 and Viṣṇu 96.1 state that one should renounce from the forest-dwelling hermit's āśrama, while Yājñavalkya 3.56 states that one may renounce from the householder's āśrama, provided he has paid the triple debt (to his ancestors, the Vedic sages, and the gods).

Who may renounce?

Although the question of which vaṛṇa renunciation is allowed to is not dealt with explicitly in dharma literature, it was understood that the āśrama system, including the āśrama of renunciation, was only open to dvija men. Accordingly, when speaking of the rules for renouncers, Dharmaśāstra texts only directly address twice-born men. For instance, when Manu speaks of the qualities of a renouncer or the conditions under which he renounces, the person being spoken of is outrightly specified a "a Brahmin" or "that twice-born man."

Nevertheless, Dharmaśāstra texts themselves attest to the fact that people besides twice-born men, that is, Śūdras and women, did renounce, even if the texts only mention such renouncers to castigate them. One must ask why Yājñavalkya 5.115 and Viṣṇu 2.235 would place a fine on feeding a Śūdra ascetic at a festival, or why Manu 8.363 would place a fine on conversing with a female renouncer, if such individuals did not exist in the first place.

Legal and social status of renouncers

In renouncing the world, the ascetic becomes, for all religious and social purposes, dead. A ritual death is, in fact, part of the rite of renunciation itself. The ascetic is no longer bound to perform the Vedic rites enjoined upon twice-born men; he leaves his family behind to live a homeless life. This state of being ritually dead is reflected in the laws relating to ascetics found in the Dharmaśāstras. Laws pertaining to renouncers are closely connected to and overlap with laws relating to the dead. Thus, Viṣṇu 6.27 states that when a debtor dies, renounces the world, or is in a far-off country for over twenty years, his male progeny should settle his debts. Nārada 13.24 allows the brothers of a renouncer to partition amongst themselves any inheritance he may have received from his father, except for a portion of money which should go to his "widow." Nārada 12.97 allows a wife to remarry if her husband disappears or dies, or becomes a renouncer, a eunuch, or an outcaste. Some texts, however, require that a man have provided financially for his wife and children before renouncing. Relatedly, Nārada 1.7 states that if a renouncer dies in debt, all the merit produced by his spiritual practice goes to his creditors.

Thus, renunciants are not only socially dead by legally dead as well. And, like any dead person, they cannot enter into new contractual agreements. Kauṭilya provides a clear expression of this in the Arthaśāstra when he states that transactions cannot be completed by dependents and renouncers (3.1.12). Nārada 1.159-169 includes renouncers among those who cannot be questioned as witnesses in a court case.

It is interesting to note that other rules pertaining to ascetics hinge on the spiritual power they were believed to have acquired through their austerities. The Bṛhaspatismṛti, at 1.27, warns the king to have a proxy, and specifically someone schooled in the three Vedas, hear cases involving ascetics and others skilled in sorcery. Since ascetics were believed to have supernatural powers, incurring the anger of the losing party to such a case would have been viewed as potentially threatening to a king's life. What is more important to the larger discussion of ascetics and Ancient Indian law, however, is the acknowledgment that cases could and sometimes did involve ascetics, despite their legally and socially dead status.

Monarchy in Ancient India was sovereignty over a territory by a king who functioned as its protector, a role which involved both secular and religious power. The meaning and significance of kingship changed dramatically between the Vedic and Later Vedic period, and underwent further development under the influence of Buddhism. Although there is evidence that kingship was not always hereditary during the Vedic and into the Later Vedic period, by the time of writing of the Brāhmaṇa literature, traces of elective kingship had already begun to disappear. Over time, the king evolved from the equivalent of a tribal chief to a fully divine god-king on whose sacrifices the kingdom depended for prosperity and on whose legislation society depended for order.

Kingship in the Vedas

Vedic ideas about the establishment of the office of the king ultimately draw upon legends about the coronation of one god as king of all others. Legends abound as to which of the gods won this position ; In the Ṛg Veda, Indra, Agni, Soma, Yama, and Varuṇa are all addressed as "King." Indeed, kingship in the Ṛg Veda largely manifests only in the form of gods as kings. Hymns directly addressed to earthly kings, like 10.173-10.175, are the exception rather than the rule. In these hymns, the king is said to have been "established" by Indra and "made victorious" by Soma and Savitṛ. Although this implies a close dependence of the king upon the gods, the rarity of the figure of the human king in the Ṛg Veda agrees with the idea that kings at this time were basically on a level with tribal chiefs and were not viewed as divine. There is a provocative line at 10.124.8 which mentions people electing their king, and 3.4.2 in the Atharvaveda seems to confirm this. Also, several hymns in Ṛg Veda demonstrate the importance of the samiti (10.166.4, 10.191) the governing assembly, further indicating that the early Vedic king ruled in a tribal setting where decision making by assembly still played a major role.

As was stated above, the king was not considered divine in the early Vedic period. By the time the Brāhmaṇas were composed, however, the king was increasingly associated with the gods through his qualities and the rituals he performed. Also by this time, kingship had transitioned to a hereditary position and the samiti began to wane in importance

Kingship in Dharma Literature

Divinity of the King

By the time of the composition of the Mānava Dharmaśāstra, the divinity of the king had become well established. In Manu 7.4, the king is said to be made out of divine particles of several gods, including Yama, Indra, Varuṇa, and Kubera. This may be seen as closely related to the earlier belief that at his coronation, the king assumed various aspects of the gods. At Manu 7.8, it is stated that even an infant king must never be treated with disrespect, because he is in reality a god on earth. Nārada 18.49-50 echoes this sentiment, saying that the king's divinity is apparent in the force of his decrees: his words are law as soon as he utters them. This is in contrast to earlier Dharmasūtra texts, which seem to stress the king's subordinate status in comparison to Brahmins and make no mention of his divinity.

King as Protector

The Dharmasūtras and Dharmaśāstras agree that it is the special duty of the king to protect, to punish, and to preserve dharma for those in his kingdom. However, a new myth of the creation of kingship not found in the Dharmasūtras and differing from those found in previous Vedic literature is seen in the Dharmaśāstras. At Manu 7.2, it is stated that the Self-existent Lord created the king to restore order to the chaotic world which had existed without him. Then the Lord created Punishment (spoken of as a deity), because through punishment the world is subdued (Manu 7.22). By performing his duty as protector and punisher, the king flourishes (Manu 7.107). The weak and helpless (i.e. widows, children, the mentally ill, the destitute) were to receive royal protection. Beyond protecting his subjects against each other, the king, as a kṣatriya, also had a duty to protect his subjects against external threats and wage war with rival kingdoms. Manu 7.87, for instance, states that a king, when challenged, must never back down from a battle; indeed, doing battle is his dharma.

Varṇa of the King

As was stated above Manu 7.2 specifically states that a kṣatriya who has received vedic initiation is eligible to become a king. Elsewhere, any twice-born person is forbidden to live in a country ruled over by a Śudra (4.61); likewise, Brahmins are forbidden to accept gifts from any king not of proper royal lineage (4.84). Yet commentators like Medhātithi, Kullūka, and Vijñāneśvara essentially overturned such view on the identity of the king, stating that any person recognized as having power over a territory is to be understood as king, regardless of his varṇa.

Authority of the King

The basis of the king's authority is a matter of some discrepancy in the Dharma literature. Some authors of dharma texts make it seem as though the king's power lies solely in his adherence to dharma and its preservation. His edicts are powerful only in that they are in accordance with the Law; his legal decisions should be based on what is stated in the śāstras alone, not on his own will and authority. Furthermore, the king really only enforces what his Brahmin advisers declare to be dharma. The Vasiṣṭha Dharmasūtra, for example, is explicit that Brahmins will state what is dharma for the three varṇas, and the king will govern accordingly (1.39-41). In other texts however, or even in passages in the same texts, the authority of the king involves the application of his own reason and will. So, in contrast to Manu 7.28-31, 8.44-45 in the same text states that the king should rely on his own powers of deduction in the administration of justice. Reasoning as a means of reaching a judgment even appears as early as the Gautama Dharmasūtra (11.23-24). But by the time of the Nāradasmṛti, royal decree had been placed above all other sources of law as the most powerful, abrogating all others. The power behind royal decrees is thus located increasingly in the king himself, even though he is still urged to preserve dharma.

Statecraft

Following in the tradition of the Arthaśāstra, Manu and Yājñavalkya, in defining rājadharma (law of or for the king) go into great detail regarding how the king is to set up his government and manage his kingdom. In Manu, for example, the discussion of how the king should choose his ministers directly follows the description of qualities a king should cultivate. Manu 7.54 advises the king to choose seven or eight counselors who are learned and of noble birth, without specifically defining their vaṛṇa. Out of these, however, one individual should be chosen as a prime minister, and the text specifies that this individual is to be a Brahmin. Yājñavalkya 1.310, on the other hand, advises that all mantrins be Brahmins.

Lower officials (amātyas) should be assigned to duties based on their personal attributes, including honesty, intelligence, and cleverness. Among the tasks to be overseen by the amātyas were collecting taxes, supervising the royal mines, and collecting tolls for use of public transportation.

Manu follows Kauṭilya in saying that envoys (dūta) should be chosen based on cleverness and the ability to decipher hints and gestures, i.e., to read a rival king's appearance for clues as to his intentions and general disposition. The role of the envoy was vital for both diplomacy and reconnaissance. The importance of the role of the envoy can be seen in Yājñavalkya 13.328, where an involved set of preparations in made for both the dispatching and return of the dūta, including the meeting of the king with all his ministers.

As to the organization of his kingdom, a king, according to Manu, should place constables between ever second, third, and fifth village, and at the hundreth village. Superintendents with jurisdiction over one, ten, twenty, a hundred, and a thousand villages should also be appointed (Viṣṇu 3.9-10 has one, ten, a hundred, and a whole district). Any problems arising in villages are to be reported to progressively higher superintendents; Viṣṇu states that when a solution is not reached by a lower superintendent, the problem must be reported to the next highest superintendent and so on.

The King and Legal Procedure

Main article: vyavahāra

According to Nārada, the king is the highest venue of legal procedure. This would indicate that only the most important of cases would be heard directly by the king, i.e. cases for which a decision had not been reachable in local community or guild courts. Manu and Viṣṇu both state that the king may either try cases himself (accompanied, of course, by Brahmin jurists), or he may appoint a Brahmin judge to oversee trials for him. Manu even allows that a non-Brahmin dvija can be appointed as a legal interpreter, but under no circumstances may a Śudra act as one.

Dharma texts uniformly stress that the king be impartial in his judgments. Manu states that a king who is partial and unjust in his inflicting of punishment will himself be punished (7.27), saying at 8.128 that punishing one who does not deserve to be punished condemns the king to hell. Elsewhere, Viṣṇu and Nārada stress that both the king and his judges be unbiased in their hearing of cases. This had religious as well as strictly legal implications; according to Nārada Mātṛkā 1.65, a king who follows proper procedure in hearing lawsuits is ensured fame in this world and heaven in the afterlife.

Much as an envoy is to decipher the disposition of a rival king through bodily and gestural clues, the king is advised to note a litigant's external clues while hearing cases to discern his disposition. Manu 8.62-72 distinguishes who the king may or may not have questioned as a witness in connection with a trial; a greatly expanded list is given at Nārada 1.159. Upon hearing contradictory testimony from witnesses, the king is advised at Manu 8.73 to rely on what the majority of witnesses say, or else the testimony of witnesses of superior qualities; if discrepancy persists, the testimony of Brahmins is to be relied upon. Nārada 1.142 states that the king should dismiss witnesses whose testimonies continuously contradict each other.

Following this inquiry, the case may be decided upon.