A Dharma Reader: Classical Indian Law

The selections presented in this chapter are from the two earliest commentators of Manu, Bharuci and Medhatithi, both belonging to the second half of the first millennium. I have left out Visvarupa, the early commentator of Yajnavalkya. Although, as we have seen in chapter 7.2, he presents a detailed and scholarly disquisition on the epistemology of dharma, he appears to have had little interest in the nitty-gritty of legal procedure and court proceedings. His commentary on the sections on legal procedure is sparse.

These two jurists—Medhatithi more explicitly than Bharuci—present a realistic view of law and dharma, taking it away from the Veda and into the actual laws and practices governing various living communities. This is law on the ground that the courts are called upon to interpret and enforce.

The king should try lawsuits of litigants “every day,” that is, tirelessly, lawsuits “that fall individually under the eighteen avenues,” that is, topics of litigation such as the nonpayment of debts, which will be enumerated below. He should do so according to norms based on the practices of the region, that is, according to the dharma prevalent among farmers, traders, herdsmen, and the like, and according to norms found in authoritative treatises, that is, according to the criteria given in authoritative treatises, such as witnesses, ordeals, and the like.

The first half of the verse sets forth the criteria for arriving at a verdict, while the second half points out the number of subjects of litigation. The phrases “he should try” and “lawsuits” are carried over from the previous verse. “Every day he should try lawsuits”—going³ every day, he should render a verdict in the lawsuits. “Following the criteria”—the word “criteria” refers to the means by which one arrives at a verdict. These criteria are twofold: one consists of evidence and the other consists of norms. Of these, the criteria for a verdict in a case consisting of evidence are witnesses and the like, while the criteria consisting of norms are those whereby, when there is no possibility of a decision in a case, the lawsuit is successfully completed. Thus, for example, a single witness who has taken an oath to tell the truth and who is accepted by both parties—that is, if both the plaintiff and the defendant agree that he will provide authoritative testimony—can provide the criteria for arriving at a verdict even though he may have not been examined by the court assessors. Whereas, unlike in the former example, the untruthful words of a man who has been so examined cannot be the basis for a decision in a case, even with the acceptance of the judicial interrogators.⁴ Thus, norms become judicial criteria.

These norms, moreover, are twofold—general and specific—in terms of the differences among regions. They are also twofold—compatible or incompatible—in terms of the differences in their support.

The compatible ones are such as these. Among some people of the south, a sonless wife, when her husband has died, goes up to the pillar of the court. When she has come up to it, and she has been examined by the court officials and found to be of good character,⁵ she obtains immediately after that her inheritance in the presence of relatives belonging to the same ancestry. Likewise, in the north when there is a marriage proposal for a girl, if a meal is given to the suitor then she is pledged to him even if one does not say the words: “I give her to you.”

The incompatible ones are as follows. In a particular region grain is given on credit in the spring, and twice the amount is received back in the autumn. Likewise, when a pledge has been given with permission for its use and the amount of the loan and interest has become double the loan, the pledge continues to be used until the principal has been paid. Now, these are incompatible with the rules: “He should charge 1.25 percent” (MDh 8.140) and “Interest on a loan shall never exceed twice the principal” (MDh 8.151).

Of these, the ones dependent on differences are the ones pointed out with the words “criteria found in the regions.” The criteria found in authoritative treatises, however, are those one reads in a treatise. Among the latter, some norms have been invented by the authors of authoritative treatises, while others are established according to what is prevalent and simply restated ⁶ by them. Of these, an invented norm is as follows: document, enjoyment, and witnesses. Inference, however, is based on facts:⁷ “As a hunter traces the location of an animal by the trail of blood, so a king should trace the location of justice by inference” (MDh 8.44). Even though every worldly norm does not become authoritative because of a statement of an author of a treatise, nevertheless it remains precisely a worldly norm. In some cases an authoritative treatise must rest on just such a worldly norm.⁸ Now, the norms: “For this sort of crime, this is the ordeal” and “After the lapse of this much time, possession is adequate evidence,” even though they are worldly, yet they are said to be “stated in treatises.”

In the case of such a norm given by authors of treatises, moreover, when it has a proper basis, then it is authoritative. Any that lacks a proper basis should be disregarded. An example of this is the statement on the sequence to be followed in a document: “The scribe should write at the end: ‘At the request of both parties, I, NN, the son of NN, have written this’” (YDh 2.88).⁹ When the scribe writes down his name at the very beginning: “I, NN, the son of NN, am writing this,” it does not create a flaw in the document. The only reason for his writing down his name is to reveal the identity of the scribe: “This was written by this person.” For if that scribe is recognized as a trustworthy person through some other epistemic means, then his document is authoritative. But if he does not make himself known by recording his name and ancestry, then whose trustworthiness are we to investigate through some other epistemic means? On the contrary, if we were to recognize that he is a distinguished scribe by looking at another writing sample of his or through some other means, then, even if his identity is not revealed,¹⁰ it does not create a flaw in the document. In this case, if the scribe does not write, “This was written by me,” yet such a document does indeed have all the required attributes. In such a case this examination of the scribe becomes useful. The scribe who wrote the document is counted among the witnesses only when there are very few other witnesses. Where there are many trustworthy witnesses who have signed the document, however, the trustworthiness of the scribe is of little use.

Likewise, there is this other norm: “He may invalidate a document only on the basis of another document, and what is attested to by witnesses, on the basis of other witnesses, given that a document is superior to witnesses” (NSm 1.125). This norm also is without any grounds. Documents, for instance, are of two kinds: those executed by one’s own hand and those executed by someone else. Those written by someone else are also of two kinds: those written by a scribe with his own hand and those written by an officially appointed scribe. Now, every kind of document executed by someone else must be always attested by witnesses. The reason the above norm is without any grounds is the fact that within this context, the distinction made in the statement “A document is superior to witnesses” is inapplicable. For this is the defining characteristic of a document: “The witnesses—who must be uneven in number—should also write in their own hand: ‘I, NN, am a witness to this document,’ preceded by the names of their fathers” (YDh 2.87).¹¹ Nor do we recognize the authority of a document written by a single person, just like the testimony of a single witness.

However, this may be the basis for the distinction: once the witnesses have placed their signatures, then they themselves are considered the document.¹²

This qualification does not uphold the superiority of a document, because the reason for superiority is trustworthiness, and that should be subject to examination in both cases. Therefore, with respect to this kind of document there is the maxim regarding disagreement among witnesses:¹³ “He should accept the testimony of the majority” (MDh 8.73). Also, the fact that a document was written by an officially appointed scribe does not give it a special status.

Here there is an additional factor, namely that the appointment is made of a person who has been examined.

But not all persons appointed by the king have been subject to a thorough examination. If, however, such an individual is quite honest,¹⁴ it may well be that, because he is of the highest quality, he may, even alone, be accepted as providing corroboration. So, for instance, royal decrees relating to land grants to Brahmans are considered authoritative even when written by a single professional scribe. Take the case of a man who is refusing to pay a debt while there is an admission on his part written in his own hand: “I have received this much from this man, and I am obliged to pay him that.” In this case, if he later says, “I did not receive,” then he loses the case to those who present what was previously written down. In this situation, there is no room at all for witnesses.

Surely, it is by reason of the document executed by the man that one concludes, “He has admitted to this.” And later the same man has said, “I did not receive it.” In this case, between the two admissions, for what reason is the latter annulled by the former, and not the former by the latter? There is a doubt with respect to which contradicts which, because there is equality between the two. The only proper course, therefore, is to bring in other kinds of evidence.

That would be true if there was equality between the two. For it is possible that the admission “I did not receive it” is made because of greed and the like. Without having received it, however, someone will never say, “I received it,” unless he is insane. In this case also, he may say that he repaid it but the original document could not be produced because it was not at hand and a receipt was not procured, either because there was no scribe present or because he was in a rush to attend to some other urgent business. In this kind of situation, there is indeed room for other kinds of evidence, such as witnesses.¹⁵

Also with regard to the statement, “He may invalidate a document only on the basis of another document” (NSm 1.125), it is not possible for this metarule to annul an assessment derived from how things actually work. For it is commonly seen that people pay off in installments the amount recorded in the document left in the hands of the creditor, and they do not record the amount paid off on the back of the document. They do this with the thought: “Today I have paid so much. Tomorrow, bringing the rest and combining the two, I will enter the total afterward. Or else, after paying off the entire amount in a few days, I will tear up the document.” When he has been seized by the creditor, moreover, and is unable to repay the principal and interest apart from the portion already paid off, how can he prevail over the creditor, who says, “I will not yield so long as a receipt has not been given”?

If this metarule, “He may invalidate a document only on the basis of another document” (NSm 1.125), were applicable, furthermore, then how would one investigate whether it was executed through force or fraud? For in such a case there is no possibility of another document. Therefore, as in this case, even when there is clearly a document, other kinds of evidence are brought in to arrive at a decision, so must they be brought in elsewhere as well. Take for example a man who files a plaint, saying, “Placing trust in this man, I drew up the document.¹⁶ He said, ‘Accept this part of the loan today, on account of this being an auspicious day. Tomorrow I will give you the entire amount.’ After saying this, he gave me only that part of the loan. He has not given me the rest.” Under these circumstances, there is room to bring in other kinds of proof. In that case, if the debtor has witnesses for the way it was carried out, then, given that the document presented is rendered invalid, the creditor is obliged to prove that he gave the amount the next day. On the other hand, if the conversation between the parties was carried out in secret, then there is room for ordeals. If, however, they have no faith even in these because they are not invariably accurate, then a ruling should be made through the use of an oath to tell the truth.

Surely, if this were so, a document written in one’s own hand would lack any epistemic validity, because it would require corroboration from other epistemic sources. That would conflict with the statement: “Even without witnesses, a document signed by one’s own hand remains valid.”¹⁷ According to this maxim, when someone does not actually see with his own eyes something as it is being given, but only heard the debtor, after receiving the amount, engaged in a conversation in his presence, saying, “I received this amount from that man,” such individuals can also act as witnesses. Here too it is possible for the debtor to say, “I admitted it because I placed my trust in him.”

We have already stated in this regard that it is not possible to invalidate true facts of the situation simply because they contradict a statement in a text of recollection. Furthermore, in a situation where there is no room for that statement, the document will be valid. In some situations there is no such room—when, for example, the document remains in the creditor’s hands for a long time. One would question: if in fact the loan was not given,¹⁸ then how is it that he never tracked the document down and had it turned over? For in matters of this kind it is most certainly improbable that someone would ignore it for a long time. From this one infers that the debtor is telling a lie. For it is said: “One should report to the king immediately or within three days when force is employed in transactions.”¹⁹ Alternatively, take the situation where there is a collateral that may be enjoyed but, with regard to its enjoyment, the time for redeeming the collateral had not been expressly stated, and there is dispute over it. Here a document executed in one’s own hand remains valid²⁰ even in the absence of witnesses, for the debtors do not get to say: “This was stated out of affection for you.²¹ Now, hand it over.” Nor is there room for the statement given above, namely: “I drew up the document, and then he said, ‘I will give the loan,’ but he never did.” If it was not given, how did he acquiesce in the enjoyment of the collateral?

If that is the case, is it not true that the proof consists of the enjoyment of the collateral accompanied by the document? But authoritative texts state that enjoyment alone constitutes proof: “Document, witnesses, and enjoyment: texts of recollection present these as the three kinds of proof by which a creditor obtains his property when it has been appropriated by someone.” (NSm 1.65)

Why is this question raised against us when it has already been answered? Enjoyment over a specified period of time is proof, not enjoyment as such. For that is what we read: “When an owner looks on silently as something is being enjoyed by others in his presence for ten years, he is not entitled to recover it” (MDh 8.147). Likewise: “When a man looks on without speaking up while his land is being enjoyed by someone else, he loses his title to it in twenty years; in the case of movable property, in ten years” (YDh 2.24).

Other explanations have been well presented by Bhartriyajna ²² himself. Hence, they should be learned from that very work, explanations that are altogether based on authoritative epistemic sources. A norm, which is the cause of a text of recollection, should be adhered to.²³ It is not proper, furthermore, to assume that only texts of recollection are authoritative epistemic sources. For it is not possible to maintain that texts of recollection dealing with legal procedure are rooted in the Veda, because (i) the ways victory and defeat are determined in lawsuits are well-established matters; and (ii) they can be ascertained through means of knowledge such as perception. For this point is established: this is the way one person loses a lawsuit and the other person wins. Even if there is a Vedic statement containing indicators, it should be understood in the same way as: “A man desiring health should eat chebulic myrobalan.”²⁴ With regard to these sorts of verbal affixes that have the nature of injunctions, we have investigated the matter in connection with the purification of articles, and therefore we will not embark on it once again here.²⁵

Success and pleasure ²⁶ are not eternal. Or rather, the eternal dharma consists of norms that do not derive from recent times. He should cherish these. Those, however, that have been initiated by present-day people should be disregarded, because they are not eternal.

There are people following a single profession, such as traders, artisans, moneylenders, and carters. Their dharmas are “the dharmas of guilds.” For example, some leaders of traders present the king’s share verbally fixed: “We make our living by this trade. This is the king’s share due to you from us, irrespective of whether our profits are more or less.” When the king has agreed to this, to obtain copious profits from their trade they create norms among themselves, norms that are not detrimental to the kingdom: “This commodity should not be sold for this length of time”; “This fine is earmarked for the king’s sojourn here²⁷ or for a festival of the deity.” If someone violates this, he should be punished as a man violating in this manner the dharma of the guild.

“The dharmas of families”—a family is a lineage. In such a lineage, there is a dharma that has been instituted by an ancestor of renowned glory: “When anyone born in our lineage obtains wealth from anywhere, he shall not use it for some other purpose without first making a gift to Brahmans”—these statements and others like it are dharmas. Likewise, one should employ as officiating priests only those who have acted as a priest for their ancestors or who have been recipients²⁸ of gifts such as that of a virgin in marriage, so long as they are suitable. When someone violates this, the king should force him to conform.