Justice: Perspectives from Indian Philosophy

Godavarish Mishra

9 July 2010 (9:30-11)

Lecture - I

LAW AND JUSTICE – INDIAN TRADITION

Introduction

With the background of events happening today in the country, specially related to the institution
of Judiciary, Executive, portrayal of vulgarity and crime in visual and print media, unabated
terrorism, corruption and helplessness of common man to seek justice at every stage, the subject
of justice has become a topic of paramount importance. The effectiveness of the constitution
depends a lot on who operates it and for whom it is made. Commenting on the efficacy of the
Indian Constitution, Mark Galanter said: “It is notoriously incongruent with the attitude and
concerns of much of the population which lives under it.” The modern Indian legal system, then,
presents an instance of the apparent displacement of a major intellectual and institutional
complex within a highly developed civilization by one largely of foreign inspiration.”1 Gandhi
always felt that the British had committed blunders, while interpreting native law.

Within this tradition law is separated from morality. After independence, the same tradition was
superimposed by constitution. In the making of the tradition, the Dharmashastra component was
completely obliterated, perhaps deliberately. Warren Hestings, the then Governor at Calcutta
believed that Indians should not be administered by British Laws which they did not know, but
should be administered by local Muslim and Hindu Laws which they understood and had held
them in high esteem for centuries. Probably he was the first and the last to hold this view other
than Gandhiji. Sir William Jones, the father of Indology, was a Judge in Supreme Court in
Calcutta in 1783. Since 1772 Pandits were attached to the Anglo-Indian Courts and they
continued to act as legal Counsellors until 1864 when their office was abolished. The British
judges never liked their dependency on Pandits and did not trust them. It is interesting to note
here that Jones desire to learn Sanskrit was linked to his distrust of Court Pandits. In a letter dt.
28th Sept. 1785 written from Krishnagar, a town in Bengal to Charles Chapman, Jones writes-

I am proceeding slowly, but surely, in this retired place, in the study of Sanskrit, for I can
no longer bear to be at the mercy of our Pandits, who dole out Hindu Law as they please,
and make it at reasonable rates when they cannot find it readymade.2

. FIFTH SUMMER SCHOOL “Philosophy for the Social Sciences and Humanities” Theme: The Idea of
Justice, 1-15 July, 2010, Manipal Centre for Philosophy and Humanities (MCPH), Manipal University
 2

This inspired Jones to learn Sanskrit and translate Manusmrti into English. Manusmruti was
published by him in Calcutta in 1794. Manusmruti is also one of the early Sanskrit works to be
translated into any European Language. Within two years i.e. in 1796 it was reprinted in England
and in 1797 it was translated into German.

Jones' translation of Manusmruti was published by the order of the Government and was
intended primarily to serve the administration of justice. According to Jones -

“It must be remembered, that those laws are actually revered, as a word of the Most High,
by nations of great importance to the political and commercial interests of Europe, and
particularly by millions of Hindu subjects, whose well-directed industry would add
largely to the wealth of Britain, and who ask no more in return than protection of their
persons and places of abode, justice in their temporal concerns, indulgence to the
prejudices of their old religion, and the benefit of those laws, which they have been
taught to believe, sacred and which alone they can possibly comprehend.”

T.B. Macaulay known for his ignorance and disrespect for ancient Indian education and culture
was a member of the Indian Law Commission of 1833. He opined that-

Neither as the languages of Law nor as the language of religion have the Sanskrit and Arabic any
peculiar claim to our encouragement.

In a correspondence with Lord William Bentick, then Governor General of India, Macaulay
writes -

The Shastras and the Hadith will become useless' and further he states - 'I would strike at
the root of the bad system which has hitherto been fostered by us. I would at once stop
the printing of Arabic and Sanskrit books. 3

Sir Henry Main, a prominent and celebrated sociologist of the century also exercised a profound
influence on Indian mind. He believed the wisdom in Dharmashastra to be 'dotages of
Brahminical superstition'. This opinion formed the foundation of future law reforms and
scholarship in India.

J.H. Nelson a British Administrator at Madras in the l9th century also questioned the reliability
of Manusmruti as a source of law. Govind Das, an Indian Sanskrit Scholar, also believed that it
was a profound error to regard the smritis as complete codes of law. He states -

After all this, can one seriously contend that Hindu Law was in the main ever more than a
pious wish of its metaphysically minded, ceremonial - ridden priestly promulgators, and
but seldom a stern reality.

Western educated Indian elite in the 19th and 20th centuries echoed the same prejudices which
were further strengthened by Marxist ideologues. This laid the foundation of misinformation,
distortion and utter hatred towards ancient Indian, social and legal institutions.
 3

With this mind-set of most of the educated Indians supplanting native Indian Law and replacing
it with modern western principles was comparatively an easy task.

By 1882 codification of virtually all commercial, criminal and procedural law was completed.
Only Hindu and Muslim personal laws were exempted. A highly deterministic, mechanistic,
definitive structure and framework of legal system was thus established. The damage was severe.
The language, ideas and idioms, all were foreign. Indian cultural, moral, religious beliefs were
not only disrespected but were branded as being unscientific and uncivilized. All elasticity,
accommodativeness and localness were lost. A new breed of interpreters (lawyers) emerged.
Justice was made complicated and expensive, for the sake of political unity and standardization
needed by the British to rule this country with the help of a miniscule doctored bureaucracy. On
this Mark Galanter points out-

Dharmashastra tolerated diversity, preferring unification by example, instruction and slow

absorption rather than by imperative imposition. Change was piecemeal rather
than comprehensive. In contrast, the new legal system provides machinery (and ideology)
legislation to be enforced throughout the society. Such a system, along with mass
communications, makes possible unprecedented consolidation and standardization of Hinduism,
as well as of Indian Society generally.

Consolidation and standardization as remarked by Plark Galanter is also a product of western

imagination since Hindusim is inherently pluralistic yet it has retained a widespread spiritual
unity.

Gandhiji strongly believed in the Indian tradition, which according to him was still alive in the
villages. He demanded complete replacement of imposed British law by native law. He wanted
decentralisation of political and economic structure and village as the basic social unit. Apart
from paying lip service to Gandhism, Gandhian principles were never incorporated in the
structure of the Constitution.

Gandhi and the importance he attached to the Indian tradition, culture, religious and moral values
were exceptions to the mainstream of western educated Indians. For them Dharmashastra
literature and specially Manu appeared a villain and a disgrace. They were and have been only
parroting the views of their British mentors and masters. Manu became the whipping boy of
socialist and Marxist ideologues. Fortunately not all Western and Indian scholars were so
prejudiced. G. Buhler, Nietzsche, William Jones, Max Muller etc... all held Manusmruti in high
esteem. Nietzsche, while commenting on Manu and Women, states

I know of no book in which so many tender and kind remarks are addressed to woman as
in the law-book of Manu, these old greybeards and saints have a way of being polite to
women which has perhaps never been surpassed.4

According to J.D.M. Derrett, dharmashastra literature and specially Manu's text constitutes
India's greatest achievement in the field of jurisprudence. Even in the field of comparative law
 4

serious researchers both eastern and western have regarded Manu's work as one of the world's
premier compositions in ancient law.

These scholars also found various contradictions in Manu's statements but instead of dismissing
them as proofs of inconsistency they found that this was inevitable for avoiding determinism. It
was necessary to accommodate diverse practices prevalent in different sections of the society.
Option was a better policy than elimination. Eminent scholar Ludo Rocher has aptly pointed out,

The important but easily overlooked point is that it is normal, that it is a premise, in
Hinduism, that what is Dharma for one is different from what is Dharma for another.
Dharma, basically, is accepted custom (acara) i.e. custom accepted in a region, in a
village, even in a caste or a sub-caste within a village. But all these different customs are
Dharma in their own right. With the single and relatively vague proviso that "they should
not be contrary to the Veda", the Dharmasutras and Dharmasastras themselves
unanimously accept the validity of practices recognised within a region, a caste, or a
family, they provide that customs peculiar to cultivators, traders, herdsmen, money-
lenders, artisans etc., are binding on these various groups.

He further says-

“In actual dispute-settlement each of these customs, or sets of customs, was applied,
consistently, in the appropriate circumstance. Members of one area or one group always
divided paternal property equally, others unequally, others again did not divide it at all.
Among some there was levirate, among others there was not. In India's largely oral
culture these area specific or group-specific rules were transmitted in the form of
Memorial verse in the vernacular, and they remained unwritten. The composers of the
Dharmashastras, on the other hand, compiled treatises on Dharma, on anything they
considered worthy of being recorded as Dharma with some people, somewhere. They
gathered that information in books, in the languages of the learned, sanskrit.5

'Black letter law' tradition can never have this flexibility and accommodativeness. In a living
society and culture there cannot be absolute, final answers. Equality is a good political agenda,
but may not offer equal justice. Abortion is a thorny issue in the economically advanced western
countries today. In spite of scientific outlook and 'modernity' there is no consensus solution.
Modern translators of Manusmruti, Werdy Doniger and Brian A. Smith, have discussed
hypothetical response of Manu to this issue.

“Despite the relativity of Dharma its context sensitivity paradoxically guards Manu from the
dangers of true relativism. He is not 'Pro-choice' like a modern American liberal. He believes
that, in any given circumstance, there is only one thing to do. Though he himself, in his own
period and culture, is, violently opposed to abortion, if he were a law-giver nowadays, and were
to enter our contemporary debates about abortion, one can imagine the sort of stance he would
take. He would not say, 'Every women can choose whether or not to have an abortion' (which
would be relativistic, at least to the degree that it acknowledged different ideals for different
individuals), nor would he say, ' No woman can have an abortion'. (Which would be univocal),
 5

nor would he say, ' Every woman can choose whether or not to have an abortion' and ' No
woman can have an abortion' (which would be contradictory). He would probably say something
like this -

A woman who already has three children and is over thirty can have an abortion, and a
woman who has no children and is under thirty cannot have an abortion' (a statement
nuanced to the infinite varieties of the human conditions). The fact that he would not
cover the case of a woman over thirty with no children or that of a women under thirty
with three children would allow ample scope for the commentaries.6

Manu, and for that matter other Smritikars, had strong views and opinions, but they do not seem
to be dogmatic, authoritarian or deterministic. None of them were kings or religious heads who
could enforce conformance to their writings. Smritis were not lawbooks unlike their modern
counterparts.

“Mere restatement in English legal terminology distorted the Hindu and customary rules'
(Galanter). Thus translation of ' Dharma' as 'religion' imposed the limitations of 'religion' on
'Dharma' and prevented its full understanding. Similarly calling 'Smruti' as 'Law book' imposed
the dogma of inflexible commandments (Moses) onto smritis. To give fuller justice to this
subject we need to separate ourselves from the conditioning due to our system of education and
zeal of reformism. To quote (Gonda).

The study of Indian antiquity requires familiarity with a non-modern mentality; With a dynamic
conception of the cosmic events with religious convictions indissolubly associated with social
life, with a tendency to be in conformity with tradition and Socio-religious norms and ideals;
with mythical formulations or thoughts, which, though products of imagination, are far from
being mere fantasy, with various forms of speculation that, as a rule unrestricted by disciplined
conformation with the results of objective and analytical investigation, found unlimited
possibilities for development, and with what in the eye of modern men would be a marked
oversight of contradictions and incompatibilities.

Apart from oral and literary traditions, other source material, specially epigraphical records help
us immensely. It tells us how little human nature has changed during last thousands of years.

The legislative powers of any king were extremely limited. He could not oppress people by
means of harsh and unjust laws. This was because he was enjoined to govern the people and to
administer justice strictly in accordance with the civil and criminal laws laid down in the
Smrutis. This is clearly stated in NAVASARI plates (A town in Surat district of Gujrat State) of
Jayabhatta-3, (Kalachuri year 456 which according to Cunningham is 706 A.D.)

His son (was) the illustrious Dadda-(3), who was clever in performing his duty by discrimination
acquired by the study of the sacred treatises composed by the great sage Manu and who, by
maintaining (The institutions of) varnas (caste) and Ashramas (order of Life).
 6

In the same plate, while exempting the done from various taxes, he has also been exempted from
fines imposed for the ten offenses. According to Dr. Mirashi these ten sins are the same
enumerated in the shukranitisara (adhyay-3, sl-6) viz. murder, theft, adultery, slander, harsh
language, lying, divulgence of secrets, evil designing, atheism and perverseness.

Some of the early records of northern Shilaharas mention officers such as chauroddharanika
(the eradicator of thieves) and Gaulmika (station-house police officer). As mentioned earlier the
fines for the various offences were determined by a committee of sixteen members. It was known
as Smarika, probably because it called attention to the relevant rules in Smrutis.

This is a clear cut indication that Smrutis did influence while framing and implementing
administrative and revenue guidelines in the village functioning. Some Shilahara inscriptions
have mentioned kumarisahasa (crime against an unmarried girl) as an instance of Sin.

The administrative pattern for maintaining law and order at the village level is found to be
maintained by principles carried forward by tradition of thousands of years. We find that till the
advent of the British, in some or other form this system was in vogue. All sections of the society
including dalits formed a part of this system. Mountstuart Elphinstone has classically described
this in his Book. He says,

The Patil is responsible for the police of his village. He is aided by his coolkurnse and chaugulla,
and when the occasion requires it, by all the inhabitants. His great and responsible assistant in
matters of police is the village watchman, who is called the Talarree in the carnatic, the mahar in
the maratta country, and the Jagla in Candeish, in the first named district he is by caste a Beder,
in the second a Dher, and in the third a Beel. Though there is only an allowance for one
watchman in a village, the family has generally branched out into several numbers, who relieve
and aid each other in the duties. The duties are to keep watch at night, to find out all arrivals and
departures, observe all strangers, and report all suspicious persons to the patil. The watchman is
likewise bound to know the character of each man in the village, and in the event of a theft
committed within the village, bounds, it is his business to detect the thief. He is enabled to do
this by his early habits of inquisitiveness and observations, as well as by the nature of his
allowance, which being partly a small share of the grain and similar property belonging to each
house; he is kept always on the watch to ascertain his fees, and always in motion to collect them.
When a theft or robbery happens, the watchman commences his enquiries and researches.

While describing how the boundary disputes were settled, Elphinstone has made a very
important disclosure, he states

Those about boundaries, which are extremely frequent, (except in candeish) were settled by a
Panchayat, composed of Daishmooks, Daispandies, patils and coolkurnees, assisted by the
Mahars of the disputing villages, who are the established guardians of landmarks and boundaries.

This is the same book in which Elphinstone has made uncomplimentary remarks regarding
Barhmins, and has also criticised their character. The participation and the nature of roll Mahars
are playing in the village affairs as described by Elphinstone does not indicate that they were
 7

outcaste and untouchables. The condition seems to have deteriorated speedily in the British raj.
Police became a servant of the state and he started receiving low and inadequate pay. He used to
received about a Rupee a month. Mr. Wilie, First Judge of the Calcutta Court of small causes,
has described the situation very aptly

The police can oppress with impunity. The visit of a police darogah (officer) to a native villager
is a calamity. If a robbery is committed, the poor are afraid to complain; if any one is wanted as a
witness, he is taken for several days from his labour and treated as a prisoner; if a criminal, or
suspected criminal, is arrested, he is at once presumed to be guilty, and is very probably tortured
to confess.... The insecurity of property induces all who can afford it, to hire watchman, in fact,
bludgeon men, of their own; and these, whenever occasion requires, are of course used as agents
of any amount of violence and oppression.... The people sink under the weight of fear, and heir
natural cowardice is increased by a sense of hopelessness of resistance. Justice is to a large
extent, practically denied them; the land-holders and the police are chief powers they know; and
they are hunted by both, till they surrender themselves to servility, to despair.

Many may find this description a true picture of today !

The British while justifying their colonial rule in Indian claimed Indians lacked civilised system
of self rule and their presence in this country gave India a sense of justice and rule of law. Many
Indians today hold these views in their heart. These views are incorrect. British supplanted
ancient Indian law and introduced in its place their own system of law. One has to understand
that this was not a simple change of laws but was the imposition of a totally alien philosophy,
understanding of human nature, belief system, way of life and concept of polity. This was and is
a mismatch. We have descriptions and reports of fragility of British judicial system and its
impact on the social, moral and cultural fabric of the society. Situation of law and justice 50
years after colonial consolidation of power in India in all respect i.e. about 150 years ago from
now and that of today is astonishingly similar. This is not an accident or coincidence but it is a
failure at fundamentals. It was an inevitable consequence of that imposition. To quote Wylie
again.

It is, doubtless, the first duty of a state to make its authority respected in every corner of the land,
and to render the redress of the grievances of all classes cheap and expeditious; and not, by the
imposition of taxes on the process of the law, to close the courts of justice against the evinces of
the poor. Tried by the above rule every upright end intelligent person, who is well acquainted
with the interior of the country; will be constrained to acknowledge that, in this respect, the
Indian Government fails. The administration of the law is too dilatory and expensive for the
labouring poor to avail themselves of the protection which it is designed to afford; many,
therefore, submit to oppression, extortion and robbery as a lees evil than appealing to the courts;
while he who gains his suit sustains in the payment of legalised fees and enforced ones, in time
unnecessarily wasted, and in injury to his crops while, absent from home, a loss which he often
feels for years, and sometimes during the whole of his life.
 8

When there was an outright rejection of more organised ancient literature of law and justice it
was just not possible that any sympathy or efforts to understand a system like oaths and ordeals,
which has a divine element could have been appreciated.

The method appeers to be irrational and barbaric to the modern mind. A. Dubois believed ordeals
to be foolish beliefs of which human mind was capable of.

Romans, Chinese or ancient American Indians had refused to develop the system. It is developed
elaborately only in India. African and Teutonic people developed it partially. Greeks probably
knew it but their law ignored it.

India had living tradition of writing on the subject of law and justice till the latter half of l5th
Century. Scholars hardly can ignore the work of Vardhaman Upadhyaye titled Dandaviveka, a
unique medieval sanskrit work on Hindu Criminal Law.7

JUSTICE AND INDIVIDUAL MORALITY – PHILOSOPHICAL PERSPECTIVES

Justice, in the sense of a distributive equity, can be divided into three types: a.) moral justice, b.)
social justice and c.) legal justice. Each of these forms of justice is viewed as a particularization
of the general principle of the universe seen as a total organism. From the broadest to narrowest
conception, the ancient Indian views on justice are inextricably bound up with a sense of moral
economy. This sense of economy includes an idea that from the very birth a man incurs a debt to
the universal organism. That is how the asrama-vyavastha is designed to make the individual to
pay back his obligations to the cosmos, which are owed specifically to the Gods, the Seers (rsi)
and the forefathers (Pitr).

The human institutions of justice like state, law, the types of government etc. are those which
participate in the overall economy, but the nature remained to be the ultimate and final arbiter of
justice, which is cosmic. This is to say that to the classical Indian culture the universe is
essentially a moral universe. Nature is guided by principles which become translated into ethical
terms in the individual and social lives of men. Of course, human life itself is seen as part of this
natural process, having a bearing on the functioning of the whole, but not by any means
dominating it.

The justice can be examined in the three areas 1. individual morality, 2. society and the state, and
3. the functions of law. In a sense, this scheme represents a movement outward from the core
significance of justice in Indian culture to its most artificial and gross manifestation in codes of
legislation and customs.

Despite fairly frequent impressions that India is a society that engulfs its individuals in its
various collective units, the status, dignity and autonomy of the individual person have always
been held in high value, in theory as well as in practice. Valorization of the significance of
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individual life begins with the earliest literature and becomes extremely prominent by the time of
the early Upanisads (c. 600 B.C.).

Viewing the natural world as an organic whole, all forms of life are seen as interrelated. The
thrust of nature is evolutionary and teleological. A single individual may be incarnated at a
number of different levels within the order of nature as he progresses (or retrogresses) on the
evolutionary scale. The ultimate perfection of life, moksa or spiritual emancipation, is achieved
most usually only after the individual passes through a number of animal and human
incarnations. The status of man is at the zenith of the chain of existences insofar as opportunity
for realization of the final goal is concerned. The central ideal of classical Indian culture in both
its orthodox and heterodox forms is decidedly anthropocentric.

The individual is a temporary embodiment or apparent delimitation of the highest spiritual

principle, whether it is called jiva, atman, brahman, purusa. et al. It is this principle which
underlies universal life and burgeons forth in all the variety of nature. Within man alone,
however, can this principle come to full consciousness and realization. Therefore, human life is
not simply taken as a "given", but is conceived of as an opportunity to work towards, if not
actually achieve, the ultimate teleological fruition. Most Indian philosophical and religious
traditions thus conceive of human status as relatively rare in the overall context of myriads of life
forms, and accordingly, existence as a man is invested with seriousness and high purpose. The
latter qualities are most apparent among professional religions, but as cultural phenomena they
come to inform a broad range of Indian institutions usually regarded as secular, and influence the
regulation of collective life.

The individual, then, and not the community is regarded as the locus of the highest spiritual
value.8 Every individual, consciously or not, is on the path to the highest goal and is, therefore,
an inviolable center of potential spiritual realization. It is this fundamental notion, cast in a
variety of expressions that becomes the matrix of the Indian sense of justice and of the
institutions which embody it.

Man in ancient India could expect perfect equity as he interacted either consciously or
unconsciously within his cosmic environment. As part of nature, as a natural power in his own
right, the same economic principles of natural balance and normative harmony applied to man's
moral behavior as they did to other functions of the universe. The destiny of the individual over a
series of lifetimes was determined, as is well known, by the quality of his actions or deeds, by his
karma.

Self-responsibility for one's own position in society meant that the hierarchy of classes was itself
regarded as a reflection of karmic justice. Social inequality is seen as equitable in that the rights
and duties, the privileges and responsibilities of a particular class are envisioned as
commensurate with the levels of spiritual and moral development of its individual members. Any
system of rights and duties which did not take into account the actual differences between these
individual levels of advancement on the path of evolution and which advocated indiscriminate
equality would itself have been seen as unjust. The salvation of the individual lies in the quality
of his performance at the level on which he finds himself. To expect all men to adhere to the
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same standard or to act in a manner beyond the capacities of their present stage of spiritual.
moral, and intellectual unfoldment would be neither just nor natural.
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Justice: Perspectives from Indian Philosophy

Godavarish Mishra

9 July 2010 (300-4.30)

Lecture - II

II. JUSTICE IN SOCIETY AND STATE

Man is social. This fact automatically involves the individual in relation with others and places
him in an empirical social context which is conceived of as entirely natural and organic. The
individual is the result of his past deeds over which he no longer has any control. Yet one's
progress in the ladder of evolution is subject to conscious control in the present. A major
institution of Indian society is designed around the possibility which exists for the individual to
take the harmonious development of his own nature consciously into his own hands. This
institution is the well-known purusartha system, in which an ideal life-program is mapped out in
terms of goals to be achieved and progressive stages in life in which they are to be pursued. The
goals (Purusartha) are moral, ethical and social rectitude (dharma), aesthetic and erotic
gratification (kama), material well-being and prosperity (artha) and most important, spiritual
liberation and self-realization (moksa). In order to fulfill each of these goals in a balanced and
harmonious progress, the life has been divided into four stages (asrama) of the student
(brahmacarya), householder (grhastha), forest-dweller (Vanaprastha) and renunciate (sannyasa).
Not only individual harmony but also the concepts of social ethics and interpersonal justice
revolve around the right of individuals and groups to advance within the teleological structure
without interference from their fellows. The ideal society envisioned by Indian sages is an
association in which individuals respect and help one another to work out their respective
spiritual destinies.

Legends of the origins of society and the state analogous to and anticipating those of Rousseau,
Hobbes, Locke and others are ubiquitous in early Indian literature. These accounts, which bear
distinct resemblances to the similar Greek theories in story-form can be regarded as representing
a culturally widespread substratum of the Indo-European heritage. In effect, the Indian myths of
this sort are created more for morally didactic purposes, than as theories in any scientific sense,
but this itself serves to indicate a distinctive Indian approach to personal ethics and social justice.
In the Indian accounts both society and the state are seen, in an attitude similar to that of Plato's
Republic, as both natural and necessary developments informed by an underlying idea of justice.

The sources for Indian ideas concerning the origins of society and the state are as old as Indian
literature itself. Already in the Rg-veda are found germinal elements of later, more formal
elaborations. The basic ideas are expanded to some extent in the Brahmana books which follow.

. FIFTH SUMMER SCHOOL “Philosophy for the Social Sciences and Humanities” Theme: The Idea of
Justice, 1-15 July, 2010, Manipal Centre for Philosophy and Humanities (MCPH), Manipal University.
 12

In the Aitareya and Taittiriya Brahmanas particularly, there are rudimentary efforts to comment
on the origin of the state and kingship in connection with certain rituals which are the main
concern of this genre of literature. The Aitareya Brahmana contains what is perhaps the first
adumbration of a contractual theory of kingship in the context of warfare between the Asuras
("Titans") and gods. : "The Gods said, 'Through our lack of a king they conquer us; let us make a
king.' "Here the establishment of the state emanates from a social need for self-defense. Later in
the same Brahmana Indra is elected ruler and consecrated in the Mahabhiseka ceremony. Indra is
chosen for his personal might. "The Gods with Prajapati said 'He is of gods the mightiest, the
strongest, the most real, the best to accomplish; let us anoint him.' "Significantly, the ceremony
entails ritual objects taken from species of the vegetable world which are deemed appropriate,
due to their imputed sovereignty over others of their kind. The selection of a king is a natural
human reflection of a hierarchy which already exists in the state of nature.

This rudimentary contractual theory is developed and systematized after a fashion in the Pali
scriptures of early Buddhism. These afford for the first time a direct view of the ideal of practical
justice in the formation of the principal institutions of society and the state. The principal Pali
text, dating from c. 300 B.C., is the Aganna-Suttanta, number 27 of the Digha Nikaya.

As the sutta opens, two novices of the Buddhist order, Brahmans by birth, complain of the
opprobrium they have to endure from their fellow Brahmans as a result of their conversion to
Buddhism. The Buddha himself takes the opportunity to enunciate a theory of social organization
in which he repudiates the arrogant Brahman claims to superiority by dint of having been born
from the mouth of the god Brahma, while other varnas were born of lesser organs of the divinity.

The Buddha states quite simply that in their arrogance, the Brahmans have forgotten the origin of
things and are born from their mothers' wombs like everyone else. In passing, then, the sutta
intimates that the Buddha was quite familiar with such Brahmanical traditions as the creation and
gradation of the varnas which goes back to Hymn X, 90 of the Rig Veda. Although the
purusarthas are not mentioned at all, the vanaprastha and sannyasa asramas seem to be implied as
part of the Buddha's awareness of his contemporary social scene.

The Buddha goes on to state that the claims of the Brahmans should not be taken seriously
because according to the real teleological norm (dharma) of life, only those who have achieved
spiritual liberation are "chief." Although couched in specific Buddhist terminology, the appeal to
a cosmic standard as the guarantor of true justice is characteristically Indian.

Having forgotten their true origins, continues the Buddha, the Brahmans no longer recall a time
(analogous to the Krita Yuga of the Hindus), when all men dwelt in a "Shining World." In this
original condition of things there were not the distinctions which apply today. "Beings were
counted as beings only." From this point the Buddha proceeds to account for the serial
appearance of social institutions based on social and economic developments which gradually
produce a collective appeal for the administration of justice. The anthropologist can easily read
into the figurative account of the sutta various typical stages in the gradual elaboration of the
means of subsistence and production.
 13

The Buddhist text goes on to indicate, albeit sketchily, that these social and economic
developments further produce distinctions and classifications in the community which, at least at
the outset, are based on a functional division of labor. The institution of monarchy gives rise to a
"circle of nobles or ksatriyas". The Pali word khattiya (Sanskrit: k.satriya) is even given a
fanciful derivation from "khettaana.m pati" or "lord of the fields" to emphasize the origin of this
class of Indian society as protectors of the rights of others once the ownership of private property
has been established.

One of the earliest extant evidences of a developed Brahmanical exposition of the social contract
theory is the Arthasastra attributed to Kautilya. The finished work as it has come down to us
probably dates back no further than the Third Century A.D. However, it contains materials which
presumably go back to the Kautilya who reputedly was minister to King Candragupta Maurya in
the Fourth Century B.C., and beyond to other Arthasastra literature incorporated by Kautilya, but
now lost. Kautilya outlines essentially a similar process of increasing anarchy as does the
Buddha, a process which leads to the election of the first king Manu in the interests of justice.

Another major and later source of Brahmanical versions of the social contract theory is the vast
epic poem, the Mahaabhaarata. The twelfth book, `Santi Parva, is particularly relevant. In
Chapter 59 of the `Santi Parva, Yudhisthira, himself a king, inquires about the origin of his
office. A noble named Bhishma replies,

Certainly, O best among men, do you listen to everything in its entirety - how kingship
originated first during the golden age (krita-yuga). Neither kingship nor king was there in the
beginning, neither scepter (danda) nor the bearer of a scepter. All people protected one another,
by means of righteous conduct (dharma). Thus, while protecting one another by means of
righteous conduct, O Bharata, men eventually fell into a state of spiritual lassitude. Then
delusion overcame them. Men were thus overpowered by infatuation, O leader of men, on
account of the delusion of understanding; their sense of righteous conduct was lost ...Then they
sought to acquire what should not be acquired. Then the gods approached Vishnu, the lord of
creatures, and said: 'Indicate to us that one person among mortals who is alone worthy of the
highest eminence.' Then the blessed lord god Naarayana reflected, and brought forth an
illustrious mind-born son, called Virajas [who became the first king].9

Later the first king Virajas renounces the world and is succeeded by a tyrant, Vena, who nearly
destroys the social order by approving of inter-caste marriages. The ancient Rsis kill him and
create Prthu, the new king. The Rsis charge Prthu with very strict conditions under which he will
be allowed to rule.

Once again, as in the Buddhist legend, the original condition of man is seen as a stateless and
spontaneously just society. The administration of justice is regarded as an expediency
necessitated by a falling-away from the Golden Age as the degeneration of the universe is
reflected in human affairs. Later in the Santi Parva, in Chapter 67, this degeneration is
characterized specifically in terms of cruelty, disregard for private property and threat to the
family through violation of the chastity of women. Unlike the Buddhist account and those of the
Braahmanas, the Mahabharata does not refer to the actual popular election of the king to remedy
 14

these conditions, but rather to his appointment through divine agency. Even so this appointment
comes as a divine response to human disorder which itself jeopardizes the universal harmony. As
a result, the participation of the Gods in the affairs of men can be seen as the interaction between
two parts of the same organic whole in the interests of a just economy affecting all. The
contractual nature of the transaction is preserved in the account of the deposition of Vena, the
tyrant, and the restrictions imposed on Prthu by the Rsis.

From the foregoing, it should now be clear that ancient Indian society, as a collection of
individuals who bear the highest spiritual principle, actually continues to supersede the
institution of the state. As Basham remarks, "Society, the age-old divinely ordained way of
Indian life, transcended the state and was independent of it. The king's function was the
protection of society, and the state was merely an extension of the king for the furtherance of that
end."10 In its turn, society itself was ideally oriented towards the spiritual perfection of each
individual, and existed for the purpose of ensuring the just and harmonious unfoldment of each
individual according to his capacities, with a minimum of interference from his fellows. Social
cooperation under the purview of the king could provide the material necessities and rights of
ownership prerequisite to the development of the spiritual aspects of life.

The individual requires maintenance, protection, and help even for spiritual realization, and
therefore the economic, political and legal organizations of society are deemed necessary. It is
the duty of the ideal state to create conditions and opportunities that will gradually help man
overcome his ignorance, selfishness, and immoral tendencies, so that a harmonious community
may evolve in which every individual can advance toward the supreme goal of spiritual freedom
- freedom from ignorance and selfishness and all the vices that follow therefrom.11
 15

Justice: Perspectives from Indian Philosophy

Godavarish Mishra

10 July 2010 (9:30-11)

Lecture - III

III. DISPENSATION OF JUSTICE AND DOMAIN OF LAW

"The theory of justice must be more concerned with the elimination of removable injustices
rather than defining a perfectly just society," said Nobel Prize-winning economist Dr. Amartya
Sen at an event hosted by Asia Society Northern California.

The ancient Indians were not only idealists but also realists and pragmatists. They were fully
aware that the official world-view and the actual ethos of men do not always, in fact, correspond
with each other. Even if justice and harmony were spontaneous in the Krta Yuga, it was
unreasonable to expect that they would remain so in the Kali Yuga, the present age of decadence.

Therefore the state performed its duty of protection of society and the individual through
coercive enforcement of the standards of justice, which are reduced for the purpose into the
minutiae of positive law (vyavahaara). Early codes of law, covering every aspect of life, are
preserved in the voluminous Dharmasutra and Dharmasastra literature, of which perhaps the
Manavadharmasastra or Laws of Manu is the most well-known.

The books do not betray any overblown estimation of the goodness of men. Their attitude is fully
attuned to the actuality of man's frequent failure to act from a sense of his own best interest, and
to his frequent total disregard for the karmic repercussions of his deeds. Yet it remains the duty
of the state to use coercion to effect adherence to legal statutes which themselves are more or
less explicitly directed to maintenance of justice for all and the moral welfare of the individual.
As indicated at the end of the last section, through practical law-enforcement the state must
actually seek to controvert the ignorance of those men in society who remain unaware or
unconvinced of the very purposes for which they themselves, the state, and society exist.
Accordingly, the traditional Indian king has been invested with danda,"the scepter," a symbol of
the power and authority of the state which rules inexorably by law and punishment. The practical
necessity of danda in the administration of justice in the Kali Yuga is considered a further
outgrowth of the ongoing degeneration of the times which, as we have seen, was responsible for
the institution of the state in the first place. Manu, as a realist, insists in his discussion of the role
of the king that if he does not " . . . inflict punishment on those worthy to be punished, the

. FIFTH SUMMER SCHOOL “Philosophy for the Social Sciences and Humanities” Theme: The Idea of
Justice, 1-15 July, 2010, Manipal Centre for Philosophy and Humanities (MCPH), Manipal University
 16

stronger would roast the weaker like fish on a spit ... "12 "Having fully considered the time and
the place (of the offence), the strength and knowledge (of the offender), let him justly inflict that
punishment on men who act unjustly,"13 The exercise of the coercive power of danda with regard
to law-enforcement is considered just in the highest sense, since particularistic legal codes are
considered to be concrete and detailed embodiments of the more abstract and exalted principles
of justice (e.g. rta, dharma) which are fundamental to the cosmos.

The administration of legal justice and redressive punishment was not performed mechanically
or indiscriminately without respect for persons, however. Even here the informing vision of man
on an evolutionary and hierarchical path to the realization of the highest spiritual value holds full
sway and brings us back to our point of departure. Men did not stand as equals before the law. A
hypothetical suggestion to the effect that men were equal before the law would most likely, have
been dismissed as unjust. Justice was not blind in ancient India.

Insofar as the varna hierarchy indicated karmic retribution or reward for lifetimes, it was
considered only natural to take varna into account in the administration of legal justice. The
italicized portion of the above quotation from Manu indicates that the king, acting as judge.
should consider "the strength and knowledge" of the defendant. His strength and knowledge are
estimated as functions of his varna. Legal consideration of varna rank has two main outcomes,
one having to do with responsibility, the other with privilege, and one concerning the
perpetrators of crime the other its victims.

In the latter case crimes against persons were adjudicated with reference to the class-status of the
victim. Here is reflected perhaps, some of the Brahmanical hauteur decried by the novices in the
Buddhist legend already discussed. The penalty for a crime was increasingly severe the higher
the varna of the victim. For example, in the Dharmasuutras of Baudhaayana and Aapastamba it is
stated that the expiatory fine for murdering a ksatriya is a thousand cows and one bull while that
for a sudra is only ten cows and a bull.14 A similar prescription is recorded in Manu. Yet it
should be remembered that what may appear to us as a crass. arrogant and arbitrary assignment
of value to human life on the basis of birth and social rank is, in the context of ancient Indian
society, another reflection of the assumption of differing and karmically self-determined stages
on the ladder of advancement towards the ultimate value.

The same underlying idea is reflected more positively in the legal administration of Indian justice
through the notion that the more elevated a man is in terms of varna, the more responsibility he
should bear for his misdeeds. If varna is determined karmically, then those at the top of the
hierarchy should be expected to be morally superior. They were, in fact, considered ritually
purer, more knowledgeable and closer to the final enlightenment and beatitude. Their behavior
should reflect the long process of spiritual and moral development implied by their higher varna
status. This is reflected in law as the requirement of a greater penalty for those of higher station
and a milder punishment for the more lowly. Thus Manu says:

“When another common man would be fined one kaarshaapana, the king shall be fined one
thousand; that is the settled rule. In (a case of) theft the guilt of a `Suudra shall. be eight-fold,
that of a Vai`sya sixteenfold, that of a Kshatriya two-and-thirtyfold, that of a Braahma.na sixty-
 17

fourfold, or quite a hundredfold, or (even) twice four-and-sixtyfold; (each of them) knowing the
nature of the offence.”15

It is only just in this scheme of things that more in the way of a penalty should be expected of
those with greater moral capabilities, and who should be expected to know better, while less
should be required of those less advanced on the path.

In summary, then, we have seen that the varnasrama-dharma system so frequently decried as a
form of virtual enslavement especially in some of its modern forms, in classical times was
officially regarded as an instrument of both social cooperation and individual emancipation. By
following the duty (svadharma) of one's varna which was clearly detailed in books of law and
subject to the just administration of the state, one actually attained the necessary liberty to
engage in the universal spiritual quest. Society's organization and functioning are so devised as
to enable the individual to fulfill his function as an individual - a free spirit associated with the
whole apparatus of mental, biological, and rational substructures. This plan contemplates the
maximum automatization of the activities of the inferior part so that the maximum opportunity
may be available for the consummation of the free self.

One of the chief duties of the king is the maintenance and protection of the varna system through
his power of danda. This is so and the king is obeyed because it is realized that varna and the
state are necessary aids to the achievement of the final goal of life. Stemming from the moral
conception of the universe and the axiom of the individual's destiny to self-realization, the
ethical, social, state and legal distinctions of ancient India are firmly based on an ideal of equity
and justice expressed in terms of natural hierarchy rather than of equality.

Dealing with a complex issue like justice and its relevance in the practical sense, Sen suggested
that one might revert back to the ancient Hindu thought which examines the concept of Niti and
Nyaya. Niti in Sanskrit legal thinking deals with just rules and institutions, while Nyaya is about
their realization. Niti is an abstract exercise that, if implemented completely, would result in
maximum public welfare and justice. Nyaya, on the other hand, relates to the enforcement of
laws and regulations. Addressing the issue of affirmative action in India, Sen explained that Niti
drives the policy, whereas it should be a Nyaya-based approach. He noted that there is only so
much one can achieve by affirmative action.

In his concluding remarks Sen said, "My job as an economist has been about identifying
injustice, and I am concerned with developing human freedom and capabilities as tools, and not
just relying on institutions."

Notes

1. "Varnaa`srama-dharma; Ends and Obligations of Man." in Joseph W. Elder (ed.) Lectures in Indian
Civilization (Kendall/Hunt Publishing Company, Dubuque, Iowa, 1970) pp. 68 ff.
2. Dhirendra Mohan Datta "The Moral Conception of Nature in Indian Philosophy," International Journal
of Ethics, XLVI, No. 2 (January, 1936).
 18

3. Philips, C.H.(ed), The correspondence of Lord William Cavendish Bentick, Governor General of
India, 1828-1835, Oxford University Press 1977 p.1410, 1411 & 1412.
4 Nietzsche, Friedrich, The Antichrist, (1895) frams. R.J. Hollingdale (Harmondsworth, 1968)
5 Ludo Rocher, law Books in an oral culture : The Indian Dharmashastras p.266 7.
6 . Donigar, Wendy; Smith, Briank. The laws of Manu Penguin Books 1991, & LVII (Introduction ).
7. Dhirendra Mohan Datta, "Some Philosophical Aspects of Indian Political, Legal and Economic
Thought," in Charles A. Moore, (ed.) The Indian Mind (University of Hawaii Press, Honolulu, 1967)
pp. 271 & 275.
8. Tyajedekam kulasyarthe gramasyarthe kulam tyajet, gramam janapadasyarthe, atmeathe prthivim
tyajet.
9. Mahabharata 12.59.5., 13-30. 93-94 as translated in William Theodore de Bary (ed.) Sources of Indian
Tradition (Columbia University Press, New York, 1958), pp. 242-244.
10. A. L. Basham, The Wonder That Was India (Grove Press, Inc., New York, 1959) p. 88.
11. Manu, VII. 20. Georg Buhler (trans.) The Laws of Manu (Dover Press Publications, Inc., New York,
1969) p. 219. This resonates with the Indian notion of the state of nature governed by matsyanyaaya,
the "law of the fish," in which big fish eats little fish.
12. Manu, VII. 16. Buhler (trans.), op. cit., p. 219.
13 . Manu, VII. 16. Buhler (trans.), op. cit., p. 219.
14 . Baudhayana, I. 10. 19, 1 & 2. Aapastamba, I. 9. 24. 1-4., Manu, XI. 130 ff.
15. Manu VIII, 336-338. Georg Buhler (trans.) The Laws of Manu, p. 313.