A Dharma Reader: Classical Indian Law

Three texts within the literary tradition of the science of dharma and written in aphoristic prose fall between the texts composed by Apastamba in the third century B.C.E. and by Manu in the second century C.E. They are the aphoristic texts on dharma ascribed to Gautama, Baudhayana, and Vasistha. As already noted, from citations and references in the extant literature we know that numerous other similar texts were composed during these centuries, but none of them is extant.¹

2.1 GAUTAMA (LATE SECOND CENTURY B.C.E.)

Gautama’s Aphoristic Text on Dharma is the earliest of the three documents examined here. Gautama’s reflections, as I have already noted in the introduction, indicate several new and significant directions in the conception and epistemology of law, directions further developed by Manu a few centuries later. Gautama, for example, is the first to highlight the centrality of the Veda as the source of dharma and the first to invoke the category of recollection within the context of the epistemology of dharma. More than any of the other early authors, he also focuses on courts and legal procedure, presenting some of the earliest information on this topic.

The text of Gautama has come down as a separate treatise without any connection to a larger aphoristic ritual text. Traditionally, Gautama has been associated with the Sāmaveda, as attested to by Kumarila (on PMS 1.3.15). This connection is supported by, among other factors, the fact that the twenty-sixth chapter on penance is taken from the Sāmavidhāna Brāhmaṇa belonging to the Sāmaveda. Gautama also refers to the five great utterances (vyāhṛti; GDh 1.51; 25.8), which, as Visvarupa (on YDh 1.15) explains, is a special feature of the Sāmaveda.

This text is unique in that it does not contain a single verse; all other aphoristic texts on dharma contain verses either as part of the composition or as citations. Gautama appears to have deliberately emulated the “aphoristic style” of the grammarian Panini; his sentences are brief and pithy. There are two extant commentaries on Gautama, by Maskarin and Haradatta. Maskarin can be assigned to 900–1000 C.E. and is therefore older than Haradatta, to whom are ascribed commentaries on both Gautama and Apastamba, and is assigned to the twelfth–thirteenth centuries C.E. It appears that Haradatta in commenting on Gautama has made extensive use of Maskarin’s commentary, a usage that would amount to plagiarism if done today. A close comparison of Haradatta’s commentary on Gautama, however, reveals that it is unlikely to have been authored by the same Haradatta who wrote the commentary on Apastamba. The commentary on Gautama does not give variants and rarely discusses difficult readings; on the whole, it does not measure up to the standard set by the commentary on Apastamba (see Olivelle 1999).

Veda is the root of dharma, as also the recollection and conduct of those who know it.²

Transgression of dharma is seen, as also violence, in great men. They are not the root of dharma, however, as they have a purpose that is seen and on account of the lack of power of those listed later.³

When rules of equal power are in conflict with each other, there is an option. (1.1–4)

There is, however, only a single order of life, teachers maintain, because the householder’s state is enjoined in perceptible Vedic texts. (3.36)

The king’s administration of law shall be based on the Veda, treatises on dharma, Vedic supplements, subsidiary Vedas, and Purana.⁴ The dharmas of regions, castes, and families that are not in conflict with the sacred scriptures are authoritative.

Farmers, merchants, herdsmen, moneylenders, and artisans exercise authority in their respective groups. The king should render a legal decision after he has ascertained the facts from authoritative persons of each group. (11.19–22)

With respect to unknown matters, one should do what is commended by a minimum of ten persons who are cultured elite, skilled in reasoning,⁵ and free from greed. A legal assembly is said to consist of a minimum of ten members—four who have mastered the four Vedas; three belonging to the three orders of life enumerated first;⁶ and three who know three different treatises on dharma. When these are unavailable, however, in a doubtful case one should do what is told by someone who is learned, knows the Veda, and is a cultured elite, because such a man is incapable of hurting or favoring creatures. (28.48–51)

People belonging to the different classes and orders of life who are steadfastly devoted to the dharma proper to them enjoy the fruits of their deeds after death. Then, with a residue of those fruits, they take birth again in a prosperous region, a high caste, and a distinguished family, with a handsome body, long life, deep learning, and virtuous conduct, and with great wealth, happiness, and intelligence. Those who act in a contrary manner disperse in every direction and perish. The teacher’s advice and the king’s punishment protect them; therefore, one should never belittle the king or the teacher. (11.29–32)

2.2 BAUDHAYANA (EARLY FIRST CENTURY B.C.E.)

The Aphoristic Text on Dharma of Baudhayana, like that of Apastamba, forms part of Baudhayana’s Aphoristic Ritual Text (kalpasūtra). Unlike Apastamba’s, however, the texts of Baudhayana have been tampered with repeatedly and contain numerous additions and interpolations. The extent and structure of the entire Aphoristic Ritual Text are not altogether clear. The last four books contain the text on dharma. The only commentary is by one Govindasvamin, whose date is uncertain, but he cannot be very ancient. Baudhayana’s text on dharma has undergone repeated revisions, and only the first two books are considered original. I date these original books to the middle of the first century B.C.E.

In selection #1, Baudhayana presents several advances over Gautama in thinking about the epistemology of dharma. He follows Gautama in highlighting the preeminence of the Veda, but in using the somewhat ambiguous term prativedam (corresponding to or in each Veda) he seems to be following the general view that people belonging to various Vedic branches (śākhā) should follow the injunctions within their respective branches.⁷ Although Gautama also uses the term “recollection” (smṛti), it probably refers to the recollection of normative traditions rather than to textual forms of such traditions. Baudhayana, however, in using the derivative term smārta (what is related to or found in a text of recollection") clearly refers to a text,⁸ which he calls “second,” the first time we see such an explicit count of the epistemic sources. Thus we locate the two principal sources of dharma in actual texts: the Veda and the text of recollection.

Then he presents a third epistemic source of dharma, calling it śiṣṭa-āgama. This is the first use of śiṣṭa (cultured elite) within the discussion of legal epistemology, and, along with the companion term āryāvarta (Arya land), it was probably borrowed from Patanjali (ch. 1.2), one of the earliest to use these novel concepts. The term āgama is somewhat ambiguous; it can mean the norms and traditions that have come down from generation to generation, even though in later usage it often refers to various kinds of scriptural texts. Here it is probably used in the same sense as ācāra (practice) in Apastamba, the normative behavior and traditions of a community. However, at BDh 1.2.8 we have the expression śiṣṭasmṛti, where smṛti appears to have a meaning similar to its usage by Gautama, namely, recollections of the cultured elite. This example shows that smṛti was probably still a fluid concept, being used for both textual and oral forms of tradition.

Next, Baudhayana gives a definition of the cultured elite reminiscent of Patanjali’s, without, however, a direct link to a sacred geography, which Baudhayana presents separately (see selection #4) as a region whose practices (here he uses the term ācāra) are authoritative. The verse provides interesting insights into Baudhayana’s view on the role of these cultured elites with regard to the epistemology of law. They know the Veda and the subsidiary Vedic texts, and most important, they know how to draw inferences⁹ from the extant Veda; these inferences probably related to extracting dharma from the Veda, while providing proof texts from the extant Veda to buttress their arguments. These are, then, the Vedic exegetes now acting as the authoritative guardians of law.

In selection #2, Baudhayana turns to a situation when none of the above three ways of knowing dharma is available. Here he picks up a theme already mentioned very briefly by Apastamba (ch. 1.1: #4) and more fully by Gautama (ch. 2.1: #3), that is, the institution of legal assembly (pariṣad). Baudhayana, however, is the first to use this institution explicitly within the context of his discussion of the sources of law. The issues on which such a deliberative body would pronounce, however, are not spelled out clearly, even though one principal duty appears to be the determination of appropriate penances for offenses (1.1.15).

We have already seen (ch. 1.1: #8) that dharma is distinguished according to specific regions and groups (caste, family). In selection #3, Baudhayana, for the first time in the legal literature, presents a detailed account of differing practices of two broadly defined regions, the south and the north. His view appears to be that these practices, even though they are at variance with common dharma or Vedic injunctions, are legitimate within their respective regions. But they do not have common validity and therefore cannot be practiced outside those regions. This restricted authority is called deśaprāmāṇyam (1.2.6), that is, their legal authority (or, better, their validity as an epistemic source of law) is restricted to that specific region. This is a geographical variation of the common rule that people of previous ages behaved in ways that appear abhorrent by contemporary standards, yet that behavior is justified on the grounds that dharma is different in different world ages (see ch. 1.1: #8). Baudhayana says, however, that this view is explicitly rejected by Gautama because such practices are contrary to the normative tradition of the cultured elite. Actually we do find a statement in the extant text of Gautama (ch. 2.1: #2) that appears to support this position.

Within the context of his discussion of regions, Baudhayana, in selection #4, turns to the topic of the Arya land (āryāvarta) that was first introduced by the grammarian Patanjali. Unlike the specific dharmas of the south and the north and, implicitly, of other regions, the practices of this region have universal authority; they constitute dharma for all. The definition of the Arya land is the same as the one provided by Patanjali, but Baudhayana presents an alternate definition: the region between the Ganges and the Yamuna, which in some ways restricts the region. The quotation from Bhallavins further complicates matters by bringing in another defining characteristic: the region where the black antelope roams naturally, picked up later by Manu (ch. 4: #4). Beyond defining the sacred land, Baudhayana also identifies outlying regions that are evil and should not be visited by those wishing to abide by dharma.

Dharma is taught in each Veda. In accordance with that, we will explain it. What is given in texts of recollection is the second. The tradition of the cultured elite is the third.

Now, the cultured elite are those who are devoid of envy and without pride, who possess just a jarful of grain and are without covetousness, and who are free of hypocrisy, arrogance, greed, folly, and anger.

The cultured elite are those who have studied the Veda together with its amplifications¹⁰ in accordance with dharma, know how to draw inferences from them, and adduce Vedic texts as perceptible proof. (1.1.1–6)

In the absence of these,¹¹ there should be a legal assembly with a minimum of ten members. Now, they also quote:

Four men, each proficient in one of the four Vedas; one exegete; one who knows the Vedic supplements; one scholar of treatises on dharma; and three Brahmans belonging to three orders of life ¹²—these constitute a legal assembly with a minimum of ten members.

Or they could be five or three; or just one, if he is of unimpeachable conduct, may explain dharma, but not others, be they in their thousands.

A Brahman who does not recite the Veda is like an elephant made of wood or a deer made of leather: all three are so only in name.

When fools, befuddled by darkness, make a pronouncement without knowing dharma, that sin, compounded a hundredfold, engulfs those who proclaim it.

The path of dharma that has many gates is narrow and difficult to follow. When there is a doubt, therefore, one man, however learned, should not pronounce on it.

When twice-born men, riding in the chariot of treatises on dharma and wielding the sword of the Veda, make a pronouncement even in jest, that is the highest dharma: so states a text of recollection.

As the wind and sun make the water collected on a stone disappear, so a sin clinging to a sinner vanishes like that water.

A man who knows dharma should prescribe the penances with discernment, after examining a man’s build, strength, and age, as well as the time and the deed.

Even if people who have not kept the vows or studied the Veda and who use their caste only to make a living come together in their thousands, they do not constitute a legal assembly. (1.1.7–16)

There are five areas in which there is disagreement with respect to the south, and likewise with respect to the north. We will explain the ones specific to the south. They are: eating in the company of an uninitiated person, eating in the company of one’s wife, eating stale food, and marrying the daughter of the mother’s brother or the father’s sister.

The ones specific to the north, on the other hand, are: selling wool, drinking spiritous liquor, trafficking in animals with teeth in both jaws,¹³ making a living as a soldier, and traveling by sea.

If a man follows the practices of the former in the latter, and those of the latter in the former, he becomes defiled. The authority of the region applies solely to each respective area.

“That is untrue,” says Gautama. “A man should pay no heed to either set of practices, because they are shown to be opposed to the recollection of the cultured elite.” (1.2.1–8)

The region to the east of Adarsa, west of the Kalaka forest, south of the Himalayas, and north of Pariyatra is the Arya land.¹⁴ Any practice within it is authoritative.

Some say that it is the region between Ganga and Yamuna. In this connection, furthermore, the Bhallavins quote this verse:

The boundary river in the west and where the sun rises in the east—between these, as far as the black antelope roams, so far does Vedic splendor extend.

The inhabitants of Avanti, Anga, Magadha, Surastra, the southern region, Upavrit, and Sindh, and the Sauviras are of mixed pedigree.

If someone visits the lands of the Arattas, Karaskaras, Pundras, Sauviras, Vangas, Kalingas, or Pranunas, he should offer a Punahstoma or a Sarvapristha sacrifice.¹⁵ Now, they also quote:

When someone travels to the land of the Kalingas he commits a sin through his feet. The seers have prescribed the Vaisvanari sacrifice as an expiation for him.¹⁶ (1.2.9–15)

2.3 VASISTHA (LATE FIRST CENTURY B.C.E.)

The Aphoristic Text on Dharma ascribed to Vasistha is the latest of the extant texts written principally in aphoristic prose. It is also the text that has been most tampered with and has a very weak manuscript tradition (Olivelle 2000). In general, Vasistha follows Baudhayana in dealing with the epistemology of dharma and provides few major advances or innovations, except perhaps for the eulogy of practice or good conduct (ācāra), taken not simply as authoritative practice but as good and exemplary conduct in the abstract, that is, moral virtue. The influence of Vedic exegesis on Vasistha is evident in the very opening sentence: “Next comes the desire to know dharma for the sake of attaining the highest good of man.” This is a paraphrase of the opening aphorism of the root text of the school of Vedic exegesis (Mīmāṃsā Sūtra 1.1.1).

We have seen that the dharmas of particular regions, castes, and families are presented as authoritative by both Apastamba (ch. 1.1: #8) and Gautama (ch. 2.1: #2). They discuss this, however, within diverse contexts: Apastamba in the context of inheritance and Gautama in the context of legal procedure. Both, moreover, surround such particular dharmas with restrictions; they must not be in conflict with Vedic injunctions.

Vasistha is the first author to address this issue explicitly within the context of the epistemology of law (selection #3), even though Baudhayana does talk of the distinctive practices of the north and south. When the Veda is silent on a particular issue, Vasistha says, then the dharmas of one’s own region, caste, or family can fill the void. In this, these particular dharmas parallel the practices of the cultured elite, which are also authoritative in the absence of specific rules laid down in the Vedas and the texts of recollection. Vasistha’s view has a nuance distinct from that of the previous authors. They demand that the regional dharmas must be shown to be not in conflict with Vedic statements, whereas Vasistha places emphasis only on the fact that the Vedas do not address a particular issue. Even though Vasistha would agree with his predecessors that in the event of a conflict the regional or family norms must be set aside, he elevates these norms to the level of a positive source of dharma.

The supremacy and exceptionalism of the Brahmans are reiterated in selection #4. Vasistha follows in the footsteps of Baudhayana (ch. 2.2: #2) in presenting the Brahmans as the ultimate arbiters of law, thus concentrating social and legal power in the hands of this community. The king is reduced to being the enforcer of laws determined by the Brahmans.

Vasistha does not discuss the legal assembly within the context of legal epistemology, but rather while discussing individuals who purify those with whom they sit while eating (selection #5). The significance of this institution appears to have waned by the time of Vasistha, and it retains its marginal position in the writings of later authors.

The term “practice” or “good conduct” (ācāra) gathered around it a broad spectrum of meanings, especially in relation to morality, virtue, and right living. Vasistha proclaims that “good conduct” is the highest dharma (selection #6), clearly using the latter meaning of the term; in this context I translate it as good conduct. One of the earliest expressions of this moral significance of the term within the science of dharma is this passage of Vasistha.

Dharma is laid down in Vedic texts and texts of recollection. In the absence of these, the practice of the cultured elite is authoritative. The cultured elite, however, are free from desire; and dharma is without a tangible motive. (1.4–7)

The dharmas and the practices of the region to the east of Adarsa, west of the Kalaka forest, north of Pariyatra, and south of the Himalayas—north of the Vindhya¹⁷—all those should be accepted; but not others, the depraved dharmas of the jungle.¹⁸ This is called the Arya land. Some also say that it is the region between Ganga and Yamuna. Others say Vedic splendor extends as far as the black antelope roams. The Bhallavins, moreover, in their Book of Causes quote this verse:¹⁹

The boundary river in the west and where the sun rises in the east—between these, as far as the black antelope roams, so far does Vedic splendor extend.

What men who have mastered the three Vedas and know dharma declare to be dharma, that is dharma for cleansing and for administering cleansing: in this there is no doubt. (1.8–16)

When there is no scriptural text, Manu has prescribed the dharma of the region, the dharma of the caste, and the dharma of the family. (1.17)

The three social classes shall abide by the instruction of the Brahman. The Brahman shall proclaim the dharmas, and the king shall govern accordingly. (1.39–41)

One proficient in the four Vedas; one exegete; one who knows the Vedic supplements;²⁰ one scholar of dharma; and three prominent men belonging to three orders of life²¹—these constitute a legal assembly with a minimum of ten members. (3.20)

Good conduct is the highest dharma for all—that is certain. A man bereft of good conduct and whose self is corrupt comes to ruin in this world and the next.

Whether it is austerities, the Veda, daily fire sacrifices, or sacrificial gifts— nothing will ever rescue a man bereft of good conduct and gone astray.

The Vedas, even if they have been recited along with the six supplements, do not purify a man bereft of good conduct. The Vedic texts forsake him at the time of death, like birdlings a nest when they have grown their wings.

What happiness, however, can the Vedas in their entirety, along with the supplements and sacrifices, bring to a Brahman who is bereft of good conduct, like a pretty wife to a husband who is blind?

Vedic texts cannot rescue from his wickedness a deceitful man living by deceit. When even a couple of syllables are recited properly, that Veda purifies the man, like clouds in the autumnal month.

For a man of evil conduct is the object of contempt in the world. Woes follow him at all times—he is afflicted with sicknesses and lives a short life.

Through good conduct flourishes dharma; through good conduct flourishes wealth; through good conduct one obtains prosperity. Good conduct obliterates inauspicious marks.

Even if he lacks any auspicious mark, a man of good conduct, full of generosity and free from envy, will live a hundred years. (6.1–8)