In order to understand and appreciate ancient Indian jurisprudence it is necessary

to start from its foundations upon which the theoretical superstructure was built.
Some of the theories were, afterwards, modified or conditioned and to some extent
even forsaken or abandoned, due to the exigencies of social and political life of
later ages. Invasions by other people and influence of foreign ideas have created
great tensions and consequent re-adjustments which are reflected in the evolution
of legal theory as we shall notice hereafter. To understand the philosophic base of
law we must directly turn to the Rig-Vcdic thought, which is considered as the
sheet anchor of Indian culture and civilisation wherein the Indian mind is seen
embedded with all its potency, vitality and simplicity. This mind which is latent
with us, can be still considered to be the substratum for a legal reconstruction of
the present Indian life.

Law as Culture Dharma

Jurisprudence, broken up in so-called schools today ill-provides a whole
view of law. An understanding of the nature and function of law then becomes
difficult. The jurists of these schools behave like the leaders of political parties
who thrive by criticising their opponents. The student is at a loss to understand and
has to read between the lines to make his way through them. This fragmentation
and regimentation in the field of jurisprudence is the by-product of scientific and
materialistic approach to law in Europe initiated by renaissance and nationalism
which gave a spur to separatist and conflicting tendencies in Western culture and
civilisation. The need of a complete synthesis is now felt by western jurists and
they are in search of a constructive juridique. The developing countries can
scarcely afford to suffer the sins of these movements because they need a better
understanding of law in order to solve their problems of law and society. Legal
theory is a theory of human and social existence and is a method of securing the
well-being of human beings upon whom a legal system is imposed. The province
of law is nothing but "the establishment of rules for regulation of human conduct
amidst diversity of inclinations and desires, so as to reconcile and harmonise the
wishes of the individual with the interests of community in which ultimately the
interest of the individual is also involved: it curtails the fictitious freedom of
unregulated desire by subordinating the particular nature of individual man to the
discipline of the community acting upon universal rational principles and thereby
gradually tends to bring about the higher freedom which consists in the
dependence of the individual on the dictates of reason while governing the
community is also his". Thus jurisprudence is an understanding of the science of
law but this study depends for its depth and insight into the knowledge of human
nature with all its aspirations and failings, the bonds of social obligation and
responsibility, the inbuilt values and the process of evolution directing itself
towards progressive realisation of the ends of life with all the counter moves,
limitations, physical and institutional, which put hurdles for conscious planning
through law which is all the more urgent and is to be done all the same with the
greatest consideration, caution and foresight:

Ancient Indian legal philosophy arises from the very scheme of life and is
the very aspect of it. It has no prejudices against religion, ethics and politics but is
intertwined with them. It unfolds a complete universe of law. The dharmic
philosophy is encyclopaedic in its approach to law and provides a source of
inspiration-a juristic heaven to a fatigued Western jurist and a founding rock for
any scheme of social reconstruction.
 In the West itself, at first legal theory did not view law in a narrow technical
sense as something laid down by the sovereign political authority and backed by
force. It represents the aspects of individual and social life with all the
considerations of its religion and ethics. It was spoken of as an embodiment of
eternal justice, a gift of gods, a discovery of sages, the rule of God or reason or
nature seated in the hearts of men, etc. It was not considered subordinate to King
but was considered to be the King of all kings. Law was not considered as
something 'made' but an existence which was a part of local, tribal and national
life. The modern imperative theory of law is only a sequel of the doctrine of
sovereignty formulated by Bodin and Hobbes in the Sixteenth and Seventeenth
Centuries. This view of law is the negation of the very spirit of common law which
has its myth that it cannot be made and is to be obeyed even by Kings.

Natural law thinking is not absent in the Indian legal philosophy. Juristic
thinking ensures from the concept of Rit as eternal order. In Brhadarnyaka
Upanisad (1.4.14), this law or eternal order is equated with truth. Law is viewed by
Apastamba of Sutra period as that which is approved by Aryan society. To Manu,
Yajnavalkya, Vasistha and Baudhayana, it is embodied in the virtuous conduct of
'Sistas' (virtuous learned men) and practice of good men-Sadachara. Law has been
declared as self-existent and King of Kings in Vyavahara Darpana.

Positive thinking about law is not absent in the ancient legal theory. In
Kautilya's language it is a command enforced by sanctions i.e., rajnam djnd. In
Narada Smriti the reason of the existence of positive law is contemplated in the
context of Dharma. We are informed that when "performance of duty having fallen
into disuse positive law (Vyavahara) has been introduced and the King as
superintending the law is known as 'Danda-dhara' or wielder of danda, the power to
punish". Sukra Nitisara specifically states punishment as the sanction of law but it
is to be used to maintain the people, each in his proper sphere. Jaimini States that
'Dharma' is the desired object, 'Arth' is characterised by command. It means that
Dharma is to be enforced through force. The reason is that it then becomes more
efficacious. Dharma or law is upheld by different classes in a different way.
Brahmins keep to Dharma by knowledge and education, Ksatriyas protect it by
mighf, Vaisyas observe it through truthful and fair dealing and Sudras serve it by
service and duty. Dharma has then the sanction of knowledge, force, truth and
duty. It was due to this all pervading concept of Dharma that the ancients made it a
foundation of their juridical thought in the conviction that in it lies the complete
mystery of law. It is, therefore, necessary to unravel its meaning in all its aspects.

DIFFERENT MEANINGS OF DHARMA

Metaphysically, Dharma is the mystic force which pervades and regulates
this universe and is the law of its being. Religiously, it is the sacrificial act or
ritual. In its moral meaning, it is the end of life higher than Arth and Kama and
expresses the belief in conservation of moral values and in the eternal moral order
which is based on 'cosmic archetypal ideation which persists immutably and which
is utterly independent and indifferent to merely human preferences". Socially,
Dharma is the complete 'Constitution of Hindu Society' and signifies those
principles which are said to uphold society, expressing its culture which makes life
worth-living. As such "Dharma is an instrument of cohesion and integration which
imparts flavour to the whole corpus of values which go by the name of Indian
Culture". It represented, the "privileges, duties and obligations of man, his standard
of conduct as a member of the Aryan community, as a member of the one of the
castes (Varna) and as a member in particular stage of life (Asrama). Dharma-rules
were "agreed upon in assemblies" in a great measure and represented social habits.
Dharma is not so absolute but is relative according to one's own status. In its
normal meaning Dharma gives coherence and direction to all life, the harmony of
the whole man who finds the right way for just law of living. It is then the totality
of duties which bears upon the individual and totality of rules to which he must
conform if he does not want to fall. So the whole legal theory of ancient India has
its axis in Dharma. In its juridical meaning Dharma is custom, law and righteous
conduct sanctioned by dharmasastras, reason, authority, conscience, etc. It is
Dharma which gives authority to king to rule. Dharma, then, is the ruler of rulers
and is a mystic force which destroys the wicked ruler bent upon violating its
Ordinances. Dharma when preserved, preserves and when violated destroys. As a
concept of power" Dharma, derives its potency from the idea of 'Vrata' a Rig Vedic
concept which has the connotation of law. Accordingly, if the content of
sovereignty is force (Danda) it must solely be used for enforcing the Ordinances of
Dharma. As early as Vedic times, the concept of 'Raja-dharma' or Dharma of the
state was considered to be the main function of the Vedic King. In the Buddhist
literature there is the same insistence on the primacy of Dharma over Danda. In
politics, Dharma acted as a check upon royal absolutism. The King could be
dethroned if he acted against the distates if Dharma. This is sanctioned by Manu.

Dharma has in it elasticity and comprehension. In Sanskrit, no term relating

to human life and conduct is dissociated from its ethical sense. Terms like jus,
recht, droit, diritto signify more than one meaning and express the idea of right as
well as law. For the juridical purposes Dharma expresses the notion of law, justice
and duty. To our mind, bred and nurtured in professional notion of law, ancient
Indian concept of law as Dharma may seem vague, indistinct and confusing as an
amalgam of law, religion and ethics, but the truth is that law is in fact of such
nature. No exact definition of law can be possible nor is necessary. The
dissociation of law from society, and morals have been effected only due to the
prolonged struggle and reactions against theocratic and feudalistic conception of
law, i.e., the ties of human fidelity and divine guidance, the exaggerated emphasis
upon individual free will. In this way individualistic jurisprudence came into being,
“If individualistic civilisation were now to give away before the one based on a
socialistic conception of the social tie, all the positions of our jurisprudence will
have to be reconsidered.”

Law is knowledge, participation and regulation. It is a concept of recognition

and control; without having a clear knowledge of its nature and the secret of its
binding force, all our approaches to it are partial, and we can neither be able to
make it a workable instrument of social change nor can get popular support and co-
operation for the success of our planning through law.

Therefore, two problems of philosophy of law are: (1) The difficulty of

identification of nature and content of law, and (2) the difficulty of ensuring its
obedience by the people, i.e., its effectiveness. The first is epistemological dealing
with the theory of knowledge of law and the second is ethical, searching for
justification of duty to obey law. These are, also, the two tests to be applied in
determining a complete theory of law. It is, therefore, necessary to ascertain
whether the concept of Dharma, as a theory of law in ancient India qualifies itself
to be so. Examination of legal theories will reveal to us the extent they suffer from
over-emphasis and exaggeration by undermining the essential elements of law, and
by affecting elimination or delimitation of its relevant sphere or scope. A complete
concept of law includes the meaning of law, i.e., its true nature and function, its
correlation with a community, its acceptance as standard or value, its potency to
deal with fundamental issues of social and individual life, and proper developed
machinery to accomplish its ends and methods to mirror changing concepts of
justice, transference of power and shifting interests, etc.

What is to be identified as law: Law is a synthetic concept. In Western

Jurisprudence, it has ceased to be so, because of the birth of different political
ideologies and social theories which have their impact upon legal theory, with the
effect that a limited aspect of law is identified as law. The result is that a part is
identified as a whole. Every legal theory wants to appropriate the juristic field to
itself exclusively. Consequently, law is treated as a property or monopolised sphere
or a hand maid of a particular class of society, at a particular time, when it holds
political power and wields social influence. Jurisprudence then, becomes, directly
or indirectly the justification or propoganda of the class in power. Law, from
ancient times to present day in the West is the story or a spectacle of changing
phases of the panorama of legal theory of different interests called jurisprudence.
Karl Marx tried to seek remedy of this state of affairs by preaching the end of
class-war and recognising the interest of only one class, i.e., workers.
Jurisprudence of interests culminating in sociological pragmatism of Roscoe Pound
has given recognition to all types of interests and has preached business of law to
be balancing of interests without friction and waste. His jurisprudence has become
an accounting or auditing and maintaining or balance of interests, and law-making
a business management, i.e., recognition and satisfying of different demands
representing different interests. This business has to be entrusted to the jurist who
does not work on the basis of any ideology but with all the consciousness,
responsibility and skill of a social Engineer. Dharma, as law, demands more than
such social engineering. Dharma; while reconciling various interests of society also
attempts to keep in tact the value and ideology which would make a man perfect in
every sense as a member of a social group. It emphasises that its principal function
is the welfare of the people and this welfare cannot be secured mechanically by the
agency of law, and" so, social engineering bereft of values, will not be worthwhile.
Ideologies like individualism, socialism, capitalism, anarchism etc. are partial
approaches to the solution of the problems of law and life. Dharma, the ancient
Indian legal theory of law does not suffer from any danger of becoming a doctrine
creating imbalances in society nor is it regressive. Of course, it may suffer
deterioration by enslavement and by imposition of a foreign legal system. On such
occasions, Dharma is likely to receive a setback. Dharma, as law, as has been
already stated, is a complete aspect of law and more than that it is law of law itself.
Law in the West is fragmented. In India, it is a complete symbol of juristic matter,
form, function, programme and objectives. Today when we are striving to have
social justice by adhering to socialism, we are incurring the displeasure of classes.
Social justice, which is our goal, today, can easily be achieved, not by accepting
any 'isms' but by adhering to the concept of dharma which not only takes into
account the welfare of society at large but also of each individual, prescribing for
his righteous conduct. If everyman does his duty well and rightly, society is bound
to flourish in every way and social justice will not be far to seek. It is tragic that so
great a country like India, with so great a cultural heritage cannot bring all its legal
acts and ideals to one alter or one whole when there is a concept like Dharma
which fulfilled this want of ours in ancient India. In those days our legal theory
was an amalgam of matter and spirit of life in contradistinction to the present day
theories which are only inclined towards materialism.

We have discussed the nature of Dharma which identifies the sum and
substance of ancient Indian Life, culture and law. In order to bring into focus the
excellence of Dharma as law, it will be worthwhile to examine critically the
Western legal thought. Idealism, in Western legal philosophy is expressed by
natural law theory. Natural law thinking started in ancient Greek civilisation with
observation of order, regularity, uniformity, harmony, etc., in physical nature
which appealed to the thinkers and they wanted to incorporate the same qualities in
legal systems. These thinkers wanted to order life according to reason. On the
political and legal planes, they made natural justice the end as they made virtue the
end of the moral life of the individual. Natural law offered the doctrine of natural
justice as ideal justice. In ancient India the controlling power" of reason to bring
order in life and thereby creating just conditions for living a virtuous life, was
reflected truly in Rit and later in Dharma. Dharma is the very law of the universe,
its characteristic function and the direction of its movement which is nothing else
than the good of the humanity. Dharma is the total frame-work of all human
thought and action. It is not a static concept but a dynamic one. By its very nature
it is flexible and variable according to time and place (Yugas). Dharma is a
standard measurement of all thought and action or required resultant of all rules
and procedures of law or a conversion table of all individual and social action. This
Dharma has equation with right, law and justice and covers not only the filed of
moral 'ought' but also governs the entire universe of the discourse of law. Dharma
has multiple sources e.g., the Vedas, the Smritis, reason, testimony and custom,
etc. It completely answers 'the question what is law as it comprehends the complete
theory of law. The Greek natural law theory at its inception was comprehensive
like our Rit and Dharma but soon sowed the seed of discord. It created a dualism in
legal theory by separating the law of the state and law. of Nature which proved
ruinous to the future of legal theory. This dualism resulted, in failure to recognise
positive law as law proper because it could not express the ideal of justice. Natural
law, in early medieval socholastic thought ran counter to the State. But later, it lent
its support to it when religious authority donned a political mantle also. It then
considered positive law as an earthly expression of the will of God, and the margin
between ideal law and actual law began to blur. The 18th Century recognised that
law as law which ensured freedom of the individual and his right to property.
Modern natural law recognises as law that which is just and provides a minimum
standard of living. Modern natural law recognises positive law which has in it the
element of 'value'. This value may not be absolute but be relative to time and place,
nevertheless they (thinkers) consider it as necessary. In sum, it can be said that
Natural Law under-rates positive law and thrives upon vague feelings of frustration
and appeals to ideal law.

Historical jurisprudence of Savigny answers the question, what is law, by

pointing to what resides invisibly in the general consciousness of a people, which
is called 'Volksrecht' by Savigny and 'Volksgeist' by Puchta. It is a mystic and
romantic concept like that of Dharma which is also a mystic force which holds the
Varna society together. To this extent Savigny's doctrine is similar to Dharma. But
it is not a complete theory because it is reactionary and favours only a certain mode
of law e.g. custom. His doctrine reacts against the movement of codification started
in France under the influence of natural law. He forges fetters for the legislator and
the codifier of law and thereby betrays 'juristic pessimism' as regards the rational
development of law. Again, his deification of 'Volk' has lent a theoretical support
to fascist tendencies. The doctrine of Henry Maine is an anthropological approach
to the evolution of law; it is application of the evolutionary theory of Darwin with
its faith in progress but is swayed by Hegelian idea of 'freedom' as a value in itself
culminating in his dictum 'Status to contract'. In a way he represents the
progressive view of the dharmic doctrine but he falls short of it because firstly, he
unduly favour legislation as a source of law and secondly, he has implicit faith in
the freedom of the individual as the sole end of law.
 Utilitarianism both individual and social, makes happiness the end of law. In
this it approaches a characteristic of Dharma which is conducive to the welfare of
the people. But in utilitarianism this concern for happiness is vitiated by improper
emphasis given either to the individual or the society. Benthamite utilitarianism
holds happiness as the end of legislation but its view of happiness is one sided.
Bentham bases his doctrine upon the individual's ego or his self-interest. To him
happiness is that which makes an individual happy. His theory undermines the
interest of society because society to him is a misnomer and a fiction, i.e., not more
than the aggregate of the individuals. With its hedonistic calculus and its slogan of
the greatest good of the greatest number', this theory fails to lead him convincingly
from psychological egoism to ethical altruism, as the bridge between self-interest
and interest of all, is unbridgeable. Again, he considers law as a necessary evil and
inspite of his zeal for reform pleads for minimum of law and subscribes to the
notion of law merely as a command of the sovereign. Social utilitarianism of
hering postulates society as real, considers, law as a partnership between the
individual and the society and the end of law as balancing of interests. Though he
recognizes subjective elements like love, honour, friendship, etc. Yet his doctrine
can fall an easy prey to any political ideology, which purports to undermine
individual in the name of society. Inspite of the fact that he has a greater juristic
canvas, he still adheres to the definition of law as a command of the state.

Pound's sociological positivism also known as pragmatism with all its

overemphasis upon method, is more of a reaction against formalistic and
metaphysical approaches because it asserts and propogates an 'ideological void',
and an aversion to precept or formula. When he considers law as a means of
civilisation, displays juristic optimism and desires the maximum satisfaction of
human wants by balancing of interests without friction or waste or with least
friction and waste, called social engineering, he expresses pseudo-dharmic view.
Dharma—is condusive to human welfare; and aims at progress of society and
perfection of individual personality. It prefers good to pleasurable and has equation
with the Good or the Right or the Duty; rises above the mere satisfaction of human
desires and physical wants and by sublimating these leads to the spiritual
engineering of life. The mere consciousness of the responsibility that the jurist is a
social Engineer without any ideology is a false parallelism to 'doing ones duty for
its own sake'. Without any grounding in values; it is nothing but to reduce clean
vital' or life force into the mechanical energy of an automation. The moral
insensibility of a social engineer makes the whole task of engineering a craft. This
half-hearted approach with delusive statistics, extensive programme without
predetermined values of life is a return of technicalism and formalism in
jurisprudence. The assertion of the highest degree of juristic freedom in absence of
self-guidance with the highest degree of duty or responsibility to the juristic task
may be possible in logic or theory but not a practice. The aversion to theory, ethics
acd metaphysics is reactionary, in kind and obviously prcpostrous. A true religion
cannot afford to have prejudices towards any other religion. So is the case of any
jurisprudential theory which must necessarily be broad minded.

"Scientism" is the belief "that with the same techniques, that have worked in
physical sciences we can eventually create an exact science of man. But this is a
false hope, for, human conduct cannot be interpreted well by this 'Scientism’. It is
forgotten that "human relationships do not belong to engineering, mathematics,
chess which other problems which can be perfectly solved". But this happens in a
mechanistic society and "when they have turned away in dispair from these
'problems', they begin asking for more and better 'machinery' where in fact there
cannot be any machinery at all. Felix S. Cohen observes that it is fallacious to infer
that "settling of such disputes is the sole norm of law. It is the right settling of
conflicts, the right delimitation of interests, which the "law ought to secure. And
since the problems raised by litigation are always parts of larger wholes in which
individual values and values beyond the spheres of the opposed parties are
involved, this rightness will depend upon factors beyond the immediate conflicting
interests which the law adjusts. Thus although law is limited in its direct
application to outward conduct, it must take into account the spiritual values it
calls into being". There is the need of more human legal philosophy which must
look for the goods of human existence and goals of life beyond the pale of social
controversy. Law cannot exist without balancing of interests in some way or other
but this preliminary is not the end of law. The dharmic theory of law does also the
balancing of the interests of society. This balancing of interests is put on
permanent footing in Varna system. But in the Indian Legal Theory this incidental
function is the beginning of law as Dharma, whereas in the Western American
sociological theory it has become the end of law.

There is another jurist who comes forward as a sociological positivist but

idealism creeps in his theory. In him we find an explicit denial and an implicit
assertion of ethics like that of Dharma. In his theory of 'social solidarity' which is
almost identical to the 'Varna' system of ancient India we witness a cohesive
principle and a division of labour and consequent specialisation of functions. To
this extent he seems to affirm the concept of Dharma. However, as a sociological
positivist he denies the ethical value in law. To him, a juridical obligation is an
obligation to do what is a social value, that is, not to do what is anti-social. The
criterion of social principle is the social reaction which is capable of being socially
organised. This amoral social obligation is liable to political exploitation by
irresponsible individualism as well as fascist totalitarianism. Again, this types of
so-called positive interpretation is at bottom Hegelian. "The idea of freedom is
replaced by an idea of 'the social'. The inexorable law is not progressive unfolding
of freedom as an idea; it is progressive unfolding of 'the social' by organisation of
the social reaction against the anti-social" Leon Duguit then, considers law as-a
social fact and a resultant of social interdependence which is also a fact and which,
in its turn, is the requirement of social solidarity. It emerges as an ideal and value
in itself. If it is not, as he asserts, then in the opinion of this humble author Duguit
seems to have conceived human society as an extention of organisation of ants who
in their co-operative instinct must be expressing perfectly his idea of social
interdependence. In the society of ants there are not privileges except perhaps that
of the queen Ant. There are no rights, no sovereignty but only a spectacle of doing
work ceaselessly based on the working ants who do their duty on the basis of
instinct. This is true, especially in the light of the view that his 'sense of justice is
an after-thought and a later development worked out in self-defence. Unlike,
Duguit's social solidarity which has been examined and shown as lacking, in a vital
aspect of law "Dharma" does not enter into antagonisms, and refutation of theories
but merges them (theories) into one another in such a way that it becomes "unity in
diversity". In its form it is as terrible as the vision like that of the divine in cosmic
form (Virat) and as soothing like the vision of the divine in Gentle Human Form-
described in the Gita (Chapter IX). This concept of Dharma as law is the richest
legacy of the Indian legal philosophy bequeathed to the world of jurisprudence.

Analytical positivism looks to the form as the identification of law. To

Austin, law is a command of the sovereign, to Kelsen it is a norm. Both of them
make law destitute of morality. H.L.A. Hart modifies the position of Austin when
he says that laws or rules of law also have their internal aspect, i.e., provide a
criterion of criticism. Scandinavian realists resemble modern schools in their
positivistic outlook and in their desire to eliminate metaphysics. To them law can
be explained in terms of observable facts and study of such facts, is the province of
the science of law. To Olivercrona, rules of law are not subjective states of mind
expressed by the notion of command but are 'independent imperatives'. To Ross,
Valid law means "the abstract set of normative ideas which serve as a scheme of
interpretation for the phenomena of law in action. To Lundstedt, law is simply the
fact of social existence in organised groups and the conditions which make
possible the co-existence of masses of people. His slogan is: "That nothing is valid
which can be proved as a fact." these are purely subjective states or reflections of
class or political ideologies. It is not possible to construct a science on such a basis.
American realism identifies the nature of law in judicial process which took a start
from what Holmes said as "the prophesies of what the country will do in fact, and
nothing more pretentious are what I mean by law." It tends to indeterminism and
lacks constructive approach to jurisprudence or legal theory because it implies the
study of indeterminate and inarticulate extra legal factors. Analytical positivists or
'realists' confuse law either with form or circumstances or process. The partial
studies of analytical positivists and realists make their so- called studies of real
law, -unrealistic. It is the bane of the Western jurisprudence to suffer from
particularity, partiality, limitedness and fragmentation in their views about law.
The western jurisprudence exhibits the wear and tear of the materialistic
civilisation with all its clashes of ideologies. They appear to make jurisprudence
the hand maid to wash their dirty ideological linen. The West cannot view law as a
whole which like the Vedantic Brahman is more than the aggregate of rules and
theories about law and transcends their meaning and scope in which it is
immanent. To the ancients, law symbolised the representative mode of Indian
thinking and is a reflection of the totality of Indian Culture.
 The author has endeavoured to discuss in the foregoing pages the leaders of
Western jurisprudential thought with a view to ascertain the nature of law. The
discussion leads this humble author to believe that each and every Western
thinkers, while expounding the nature of law, has taken into consideration only a
partial view of law. The Western jurists have approached the problem of
identification of law either from the point of view of form, or its function, or its
purpose or its methodology or its growth and evolution. It is here that we perceive
the lacuna. Law cannot be understood in this way. Law is an integrated, synthetic
and complete concept and any attempt to explore its true nature has to be equally
integrated and syntheticised bringing in its wake the totality and pervasiveness of
life itself for which law exists. By comparison, at appropriate places, it has been
shown now the ancients tackled the problem of the nature of law by relating it to
the nature of life and to the whole existence.

The same question perturbs the modem jurists who have thought of
abolishing or disowning state, and society to seek freedom. Indian mind too has
sought complete freedom from society and state but it has sought it in the spiritual
realm, i.e., Kevaliya (Salvation) usually after spending lift of duty and dedication
to Dharma. To them, problem of the binding nature of law lies resolved from the
very beginning in various ways:

1. Metaphysically, Dharma as law is the mystic force which is governing this

world. It is the law of its very being, as such the rules of Dharma are felt
binding because Dharma is an obligation or a bond due to the very nature of
man himself who must have some Dharma.
2. Sociologically Dharma is to be enforced because of its literal and
etymological meaning. "The most general sense provided by its root 'Dhri'
 which signifies the action of maintaining, sustaining or supporting and which
has produced free in Latin (fretus, depending upon daring to) and fir (firmus
strong in physical and moral senses whence solid, hard and durable). Dharma
is what is firm and durable, what sustains a"nd maintains, what hinders
fainting and falling". According to K. Balasubrahmania Iyer in its abstract
conception it means "underlying fundamental law of ones being, that which
holds a thing together, makes it what it is prevents it from breaking up and
changing it into something else. In other words, the characteristic function,
peculiar property, fundamental attribute or essential nature of a thing is its
Dharma, the law of its being. Further enlarged and idealised, it has come to
mean that which makes the world what it is and holds all its parts together as
one whole. It has the same significance as the English phrase 'world order'.
3. "In external terms dharma is the action which, provided it is conformable to
the order of things, permits man to realise his destiny to the full, sustains him
in this life, and assures his well-being after death".
4. In internal sense "dharma signifies the obligation, binding upon man who
desires that his actions should bear fruit, to submit himself to the laws which
govern the universe, and to direct his life in consequence. That obligation
constitutes his duty-" This duty of the individual is to his family, to his society
to his God, to his higher self-all are called Dharma.
5. In yet another sense Dharma is binding because it is the distinguishing feature
of man that he is conscious of his obligation to do his duty, and can
deliberately impose upon himself the obligation to do his duty. Obligation of
following Dharma was also rationalised by the theory of the origin or Dharma.
Ancient Indian society, which was from the very beginning organised on the
principle of division of labour-called Varna, system, postulated functional
separation. It was feared that the principle of division of labour which was
meant for increased efficiency and specialisation might tend towards schism
and disintegration. Hence Dharma was forged as an integrating and co-
ordinating force. Brahadaranyka Upanisad says: God created one as Brahman,
as an embodiment of intelligence, then Ksatriya as of power, then Vaisya of
trade and then Sudra as of service and felt not satisfied at each act of his
creation, because weak would not be able to exist against strong in such a
scheme of creation. He created Dharma above all these classes to impose duty
on all and to be obeyed by all. By Dharma they will 'hold together' and by it
the weak will be able to assert against the strong when he had a rightful claim.
The rationale of this Upanisadic story is that Dharma is an integrating force
and mechanism of all the four sections of society. That is how Dharma has
acquired the meaning of 'holding together' all the parts of society. It unites
individual to himself, as well as to society in the same way as it unites
different classes to one another and the society as a whole. The individual,
class and society are integrated for all time. To make it a more permanent hold
the Indian thinkers have been wise enough to conceive it also as somewhat
relative, flexible, and modifiable, according to 'desh, kala and yugh (place,
time and age) according to which its contents could be varied. By this method
its collapse is avoided. It is also asserted at times of extreme emergency
Dharma need not to be followed. This is succinctly contained in the popular
maxim which in the Western juristic literature is-necessity needs no law. For
such emergent times, it is rationalised by holding that Dharma, ultimately
cannot be known, its aspect is shrouded in mystery, as no one can know,
Dharma completely for all time. But the test is whether the particular act is
conducive to the welfare and stability of society. It is also said that Dharma is
known by one who knows social welfare.
 In the sum, the question why Dharma is binding is not very difficult to
answer. Firstly, it is binding from within because it is the mystic force of this
universe as a whole, a characteristic quality of everything, and distinctive feature
of man's rationality to abide by Dharma or law. Secondly, it is binding because it is
an integrating agency brought into being for smooth functioning of the ancient
society which had divided itself into different classes and allotted different
functions to each of these classes. In order to hold them together, they found in
'Dharma' the cohesive and co-ordinating instrument. Thirdly, in order that man
may lead a virtuous life, he has of his own free will, to impose upon himself such
duties and obligation which may subserve this purpose. Fourthly, Dharma is
considered as the highest end of life.28 Fifthly, Dharma leads essentially to the
welfare of the people. As a dynamic concept Dharma permits man to depart from it
in times of crisis when such departure may be thought of to be conducive to
general welfare, with variations according to time and place. Dhariwa is also
binding as injunctions of the Vedas and Oharmasastras. And lastly, as a symbol of
what is great and good in he Indian Culture and civilisation, Dharma strikes the
chord of feeling l the heart of an enlightened ancient Indian citizen, which is a
foretaste pirituality. If at all Ancient Indian jurisprudence is to be called ny name it
is to be called by the name of "spiritual jurisprudence" hid Dharma is the cult and
culture itself. Dharma is then binding irj» way by its etymology and ontology; by
right and ritual by ;«t and conscience, by the Vedic injunction and virtuous A, in
one word for Self-realisation, social unity and human »j Dharma permeates and
transcends every branch of Indian id thought and is the emblem of its spirituality
which is the 11 phase of evolution an eternal aspiration and the everlasting Ji ; of
strength and vitality. How else, India after invasions, locutions, subjugation,
mutilation, with all the foreign imitations of language, dress and ways of thinking
could survive iuougrrtxaituries; how else, surrounded by antagonistic states,
jingoistic make-believe propoganda and hostile culture it could still how also
would she (India) survive with its over-population, recourses, inefficient controls,
and disorganising forces. For the future and in the present if the great task of
ensuring to every citizen justice, social, political and economic, is to be fulfilled it
is 'Dharma' alone or a concept based on Dharma which can help achieve these
objects. Dharma, by its juristic light would enlighten all the parts of Indian thought
and action.

Materialistic Western jurisprudence, which is a by-product of exploration of

matter, commercialisation of life and its values, promotions of the prospects of
material comforts, turning towards territorial aggrandisements, germinating
warring ideologies, nurturing or nurtured by disharmonies of social and individual
existence, cannot think of such a concept of law as Dharma.

THE NOTION OF AUTHORITY IN POSITIVIST JURISPRUDENCE OF

THE WEST
A sociological jurist, like Max Weber, understands the notion of authority in
terms of legitimacy but describes it purely as a psychosis. As C.J. Friedrich points
out: "The legitimacy of an order according to Weber may be guaranteed (1) purely
internally (i.e., subjectively) in three ways: (a) purely emotionally; by emotional
devotion; by faith in the order's absolute validity as an expression of ultimate
values (moral, aesthetic and others); and (b) religious; by the faith that salvation
depends upon it (the orders) maintenance; or (2) also (or only) by expectation of
specific external consequences, that is by interests; but these expectations are of a
particular kind". As Friedrich points out this approach stressed the psychological
aspect of legitimacy, to him, devotion, faith and expectations as psychological
factors are more transitional phases which cannot explain the concept of
legitimacy. He observes "an order is provided by its having a basis in positive law.
Legitimacy is related to right and justice; without clarification of what is to be
understood by the rightness and justice of law, legitimacy cannot be comprehended
either. Hitler's rule was legal but it was not legitimate. It had a basis in law, but
none in right and justice. This rule possessed unheard of power but it lacked
authority to a large extent". Legitimacy, even if considered in the authority of the
will of the majority, must be related to the higher reason of a system of values
which point to reasoned elaboration or rationality. Hence not 'devotion' or 'faith' or
similar psychic phenomena provide genuine authority; not legitimacy either but
'augmentation', i.e., the reinforcement by reason, expresses itself in the judgment of
the old, the learned and the wise; only by such a relationship to reason, that is to
say, only by reasoned elaboration in terms of the community's ideas, values, and
beliefs, is authority added to the exercise of power, whether autocratic or
democratic. In the final analysis, the authority of law accordingly, "rests upon its
reasonableness—that is to say its justice—that the legitimacy of a constitution, a
statute, or a decision rests upon its rightfulness and that its legality rests upon its
accord with positive laws".

EVOLUTION OF THE CONCEPT OF AUTHORITY IN ANCIENT INDIAN LAW

This universe has been conceived of by the Rig Vedic Indians as sentient
with purpose, menifesting all the aspects of life and action. The first sign or germ
of the notion of authority lies in the very scheme and being of this Universe the
eternal teleos. This gives rationale to any direction or authorised guidance to
human beings which proceeds from law. Law becomes then a functional
participation in the purpose of this World and is expressed as Rit. Thus we see the
concept of 'Authority' arising out of the purposeful universe. This purpose of the
universe, in relation to human beings is the welfare, perfection and happiness, all
rolled into one. From this ensues the regulation of life and activity by means of
reason which not only imposes restrictions on individuals to act in a particular
manner but also, in doing so, contributes to, the theory of law, by influencing
human conduct in various ways viz.; volition, interpretation and administration.
The idea of reasonableness and justice are clearly seen in such comprehension of
the concept of law. According to the ancients a law devoid of reasonableness and
justice is not law but "Adharma", the negation of 'Dharma', and hence devoid of
any authority. Reason or Reasonableness, to which we have alluded, is inherently,
seated in Dharma and men's conduct has to be in accord with this 'Dharma'. In this
sense the authority of law is contained in the concept of Dharma which has
reference to what is right, just and reasonable. Dharma is then internally what is
right and externally what we may call law. 'Authority', in this sense only, is
capable of persuading men to desist from evil. As early as the Rig Vedic times,
Indian mind put forward the doctrine of free will. According to Rishi Vasistha God
gave to man and man alone a conscience so that he may decide for himself what is
right and what is wrong. Rishi Vamdev conceived 'self-interest' or 'egoism' to be
the starting point of his theory of law. "If law is to be respected it is perhaps
because that will ensure one's own benefit... But it must be said to the credit of
these early Vedic philosophers that they do not at the same time fail to lay stress on
the ethical foundation of law". Man, according to "Rishi Mahidas of Brahmana
period, is endowed with "capacity to reason, and it is necessary for the ordering of
his sensations and experiences, to reason from particular to general Reason
postulates the subordination of conscious ego to its environment and consequently
requires a certain concordance between egoistic and altrustic impulses. This gives
rise to the legal sense and the legal impulse, and these manifest themselves in an
inclination towards external order. Yajnavalkya of Sutra period expresses the
philosophy of self-love but for proper function of this doctrine of self-love one has
to keep in mind the Kathoupanishadic distinction between what is pleasurable
and what is good According to him, authority of law enforces.
'Dharma' or the good and relates it to the ideal living which is a better form
of self-love. Thus man has a conscience to judge and the reason to regulate his life
for the attainment of higher ends of life which in his own interest are to be pursued
and practised. The notion of authority then gets formal expression as 'ought' or
command in the concept of which is an embodiment of 'Rit'. This Vratam consists
of a body of rules ordained or dictated divinely. "It is indeed looked upon as the
command of this or that deity and its non-observance is met by punishment at the
hands of the deity whose 9rf is violated". Radha Binod Pal has distinguished
get from Both Vratam and Ritam are conceived as invoilable; they are so in as
much as any violation of them will at once be followed by penalties. But while
there scarcely seems to be any possibility of wilful violation of Rit, with Vrata,
human beings are conceived as having great deal of freedom. Vratas are also
expressed as injunctions of religio-legal philosophy and are further classified into
negative and positive. The authority of law in order to be worthy, be such as would
direct human behaviour not because of any political power but because of its own
in-built potency. Law thus retains its authority, preserves its sanctity, and sustains
itself as an emblem of Justice and Reason and guarantees human welfare. A
number of Vratas have been enjoined by gods according to which social habit or
habitual obedience has been inculcated. Religious Vratas of today are social
counterparts of the legal rules and have served the purpose of a jural consciousness
of the civilised society. They are a sort of jural postulates which have been
conceived by Kohler and adopted by Pound in his sociological theory of law.

One of the socio-religious Vrata which is prescribed of Jainism and

Buddhism, and adopted also by Hinduism is Ahimsa or nonviolence. "Ariimsa is
not only a moral or religious Vrat or vow but has deep jural significance; it is
supplementary to the dictates of law which receive a social recognition. Formal
law forbids violence under the threat of punishment, whereas Ahimsa enjoins the
practice of non-violence by forgiveness, pardon and expiation. It is not only a
reaction against Vedic ritualism but is the voice of reason which speaks of non-
interference with and non-injury to persons and beings. Without the propogation of
non-violence, law would have failed to convince us and would have appeared as a
brute force destitute of the legitimate authority. In the inculcation of 'Karuna' and
'Maitri', i.e., active compassion and service and a great tolerance of other beliefs
we get the greatest success of law. Like Ahimsa, the other Vrata of "truth" is also a
legal ideal. The whole purpose of legal procedure in legal philosophy of India is a
search for truth. The law of contracts is based upon good faith and truthfulness,
i.e., it demands that one should be true to ones word. It is said in Rig Veda that
Law and Truth were born together as twins. Truth is knowledge of existence as
well as existence itself and is acclaimed as the God himself. Similarly, the Vrat of
(Asteya) enjoins not to commit theft, and (Aparigrah) enjoins not to commit
adultery. In fact, most of the offences are committed as a result of lust and greed;
law and punishment are only needed for keeping this part of human nature in
control. Similarly, other Vows or Vratas work for the enforcement of law. In fact,
these types of Vratas are true specimen of social legislation or living law because
they are legislated by society and not by the State. The social counterpart of the
force of laws or 'dand' lies in the doctrine of Karma or causation which can uphold
the authority of Dharma without the instrument of force. It becomes the moral
retribution and possesses such a convincing force of its potency and efficacy thai in
ancient limes it had so much controlling and regulating force that the doctrine of
danda must have appeared as its offshoot or a by-product or supplementary to it.
Modern jurisprudence which was deviated from its path has been torn to pieces and
now is making defensive attempts to justify itself by acknowledging secretly the
semi-religious and ethical base in 'willingness', 'recognition', social welfare, utility,
freedom, etc. Inspite of the touch of modernity and sophistication given to them,
the legal theory has failed to sustain itself and is bound to revert to the ancient base
of law consisting of morality and religion which commanded authority with
reverence.

Authority has two kinds. The first commands obedience, the second confers
power to legislate. Authority to command obedience, as we have seen, is derived
from the concept of Vrata which is the form of Rit. Authority to legislate is derived
from the conception of this universe which is permeated with conscious designing,
i.e., Legislation in a wider sense. This authority to legislate was rationalised by the
Indian thinkers in the form of a myth. In the Mahabharat, the great epic we notice
how Dharma had deteriorated and fallen. Though the concept of, as eternal statute
(its plural eternal statutes) was in existence yet it had to be reinforced. Bhisma
points out that at first there was "neither sovereignty nor sovereign, neither
punishment nor punisher ( ). At that time the people used to govern
themselves by means of justice or righteousness (dharma). In later times, however,
they began to degenerate and were assailed successively by the vices of
intoxication, greed, wrath and self-indulgence. The world was disturbed, and the
Vedas as well as justice perished; the gods were frightened; and they sought the
protection of Brahma. The great God created for their sake and for the blood of the
world a gigantic treatise consisting of one thousand Chapters which treated the
four-fold ends of life-Dharma, Artha, Kama and Moksha. This was called Dandniti
(The law of punishment) and became' the arche type out of which successive
summaries were prepared by gods Siva and Indra, and the sages Brihaspati and
Sukra". This is the genesis of all Dharma Sutras and Smritis and Commentaries
which lay down rules which declare, or discover or interpret the rules of law which
have been codified in Dharma Sastra which is the most important source of law.
Bhisma does not consider human nature as intrinsically bad. It is only due to
external influences and change of times and ‘Yuga' that dharma loses its hold on
human beings. As such, codifications of dharma becomes an authoritative source,
not from within but from without, having divine sanction to ad hoc considerations
of social situations. Authority was then seated in the reason or intelligence of that
Supreme God and in nothing else. To Manu reason is also one of the sources of
law. Even the authority of Dharma was not so absolute as to be autocratic. Dharma
could be violated in exceptional circumstances. All this shows that the authority of
law in its ultimate analysis, is a manifestation of reasonableness.

It would thus seem that law exists on the basis of this authority and
whenever it is violated, the violation; depending upon its nature is dealt with by
'Danda', i.e., punishment. This is not all. The ancient sages have interestingly,
given an explanation for the need of punishment. The origin of punishment or
coercive force as Danda lies in a myth. According to Manu the lord created the
instrument of punishment, in the form of his own son so that the king may protect
'Dharma’. Punishment, he says is the protector of all creatures. It is the incarnation
of law, i.e., Dharma (Manu VII-14). But this punishment must be right. It is
specifically said that if the punishment is not inflicted properly and after due
consideration, it destroys every thing (Manu VII-19). In this way punishment is
identified with Dharma, i.e., what is just and reasonable. In other words, the
authority of Punishment lies in Dharma which is an embodiment of Reason. The
King possessed summa potestas (Aisvarya) and this protestas had to be exercised
rightfully and justly. Though punishment is considered as the foundation of civil
life and the keeper of virtues, yet all the benefits of such life in the state will not be
available without its judicious use. In the conception of danda lie merged the
political . interests of state, the social interests of the group and the moral interests
of the individual. This merger takes place through the agency of Dharma.

The development of the concept of authority in Western jurisprudence is not

only interesting but also strange. At first, the authority of law appears as 'divine
authority' and law becomes divinely "ordained or divinely dictated body of rules,
as the code of Hammurabi which is believed to have been handed down by the sun-
God, ready made, or as the Masaic law of the Ten commandents of the Lord. When
in later ages, conflicts were created between the State and Church, then the
religious authority of God as the authority of law, lost its ground. Another source
of authority of law was seen in nature. This thought found its origin in Greek
philosophy and resulted in the doctrine of natural rights, with exaggerated
emphasis upon freedom of the individual and sanctity of property. Consequently, a
great distrust has been created in the minds of men towards the State, as they fear
their property may be expropriated at any time. Reaction has set against natural
law land the authority of nature as a result of which nature as the authority of law
has lost its appeal to the modem man. Yet, in another way, authority of law was
located in the political power of the state. Law began to be conceived of as the will
of the Roman emperor. It was then conceptualised in the principle of sovereignty.
This found favour later with the lawyers of the Sixteenth and the Seventeenth
Centuries who supported royal authority. With the popularity of democracies,
parliament became powerful and sovereignty or authority of law was located in the
parliament. Again with republics, having concerned for the welfare of the people,
this sovereignty was sought in the general will of the people as the single, ultimate,
unchallengeable power and source of all law. This general will is more of a fiction
than a fact. It seems that by such a concept the principle of authority has lost all its
worth and significance. It may boost every law as the will of the people and instead
of God or Nature or Religion it has posited a political God in the form of people.

Be it a fradulent or hypocritical hum age paid to this political god, the

essential truth which is borne out is that both law and state are meant ultimately for
the people. It is for the welfare of people or the good of the community wherein
lies the reason of the existence of State and law. In this sense, the authority is
grounded in reasonableness is not absolute power but only a legitimate exercise of
power and the principle of sovereignty in its last analysis is only the principle of
knowing the source of legitimate power or authority. But this basic truth is seldom
realised by those who run the machinery of law and State. Inspite of the fact that
he doctrine of sovereignty, as supreme and absolute power has lost its ground in
political and legal theory, it has still in the psychology of the functionaries of
State and law. When we know that all the governmental functions are to be
performed and administration of justice by courts is to be done with the aim of the
welfare of the people, it is disconcerting to note that parliament, at times, becomes
hypersensitive of its power and authority begins to view judiciary with irrational
prejudice as such becomes jealous of its power of judicial review. Judiciary is
not far behind in retaliating by exhibiting its own professional prejudices. One
claims to represent the will of the people and the other, the conscience of the
nation. Both are working manifestly and consciously for the welfare of the people.
But unknowingly they are looking to the sphere of their authority as their own
exclusive property and are apprehensive of its encroachment or tresspass. The
whole orientation of the theory of authority is not so much on the theory of
rights and powers as it is on the theory of duties and service. Most of our problems
of law and politics can be solved by setting a right this authority-complex of ours.
 The ancient legal philosophy of India can perform the therapeutic function in
this direction to cure the ailing body of jurisprudence. In the foregoing paragraphs
an attempt has been made by comparison of the Western jurisprudential thought,
regarding authority of law, and the ancient Indian legal philosophical basis of
authority and it has been logically proved that the concept of authority in Western
thought is not clear and has no ethical base which may be strong and solid enough
to embrace all the facts of 'authority' of law. On the other hand, as has been shown,
the ancient concept of authority is built upon solid foundations of 'Dharma' which
not only has the element of coercion, which is not borne out of mere fear, but has
also the promptings of inner responses towards law and its authority. 'Dharma' is
all righteousness, morality and such conduct by individuals which subserves, social
interests and contributes to social and individual, welfare. It is that master-concept
which harmonises and integrates all the aspects of human life with which law is
closely and intimately related and concerned. If this harmonisation and integration
is not achieved, law becomes inspid, empty, and insular. It is in this respect that the
authority of law as 'Dharma' becomes relevant in its many manifestations viz.
order, culture, precept, practice, and administration of justice. The whole world of
law in all its unity and diversity lends moral tone and viability to the theory and
practice of law. In this lies its enduring source of authority.

Custom, in its organic function and creation, is crystalisation in settled mode

or pattern of behaviour, a psychological force called habit. This habit, the so-called
second nature of man gives the first expression of law in form of custom. Custom
is then the first visible seed of human legal system and manifests the first idea of
wrong which is nothing but a conceptual product of man's non-participation in
settled and accepted mode of social life, with the feeling of uneasiness and
apprehension of public sensure, as an evil consequence invoking the displeasure of
the social group .and gods.3 The doctrine of "living law*' of Ehrlich is the modem
expression Of the old Indian concept of "Swadha" which has the efficacy of
bringing a mass of man under its fold by inner organic force without, coercion and
does not call for a»y indirect and incidental means for enforcement of law. Law,
then, becomes an organic function of society, and realises ; elf into pattern-
following habit of man. This pattern-forming habit is also the unavoidable and
main presupposition or axiom of Austinian theory of law, and is expressed as
"habitual obedience". Who pays Isguised tribute to the efficacy of custom. The
nature of man-in-; roup,'in relation to automatic and spontaneous creation of law,
without, need of conscious willing at the initial stage, has been idolised y SaWgny
as Volksgeist, i.e., the spirit of the people, the fountain ree of law. 'Swadha', then
may be taken to reside as common iciousness and a mystic force whose external
form is custom, ording to Salmond custom embodies those principles which have
tmanded themselves to national conscience as principles of justice J public utility.4
Its existence as established usages is the basis of itional expectation of its
continuance in future.3 In this way, custom ive predictability and stability to
ancient legal orders which were dented on custom and usage. According to modem
sociological vilysis "Custom in fact is not merely a pervailing habit, but also a ilo
or norm of action. The rule is supported on the emotional side two sets of forces.
There is firstly a sentiment or group of emotional losiuons attaching to custom as
such, and condemning its breach, this sentiment there is a rational element, the
recognition, however, vague, of the importance of order, and the necessity of
knowing what to expect in given situation. Around these, cluster the social
feelings; and the obedience of customary rules is one of the most elementary ways
in which the individual responds to the call of social life and realizes his
dependence upon the group."6 There is an assumption of goodness in custom. This
assumption imparts it an 'emotional ethical value.' Violation of the rule of custom
is taken as an insult and offence against the group life and outlook. Hopes and
ideals of the group are reflected in its customs, and acquire sanctity through legend
and myth.

There are four main sources of Ancient Indian law. They are: (1) Sruti or
Veda, (2) Smriti or Tradition, {3) Custom, (4) Digest and Commentaries (The last
named belong to the medieval period mainly, but were worked out later also).

Law, in Ancient Indian Legal theory, is said to have divine origin in the
Vedas which are revealed texts. Divinity is an early mode of thinking, religion a
means of social control and theology the general frame of knowledge. But this
belief, of the divine origin of law is not confined to Indian law alone. It is a
universal feature which is found in all legal systems of the world. We have already
mentioned earlier that Hammurabi received the code from the Sun-God. This is
supported also by S. Vardhachariar who observes: "Hammurabi was believed to
have received his Code from the Sun-God. Moses received the Commandments
from Jehovah. Similar beliefs were entertained as to the laws of Lycurgus in
Greece and Numa in Rome".7 The theory of common law that the fundamental
rules of law had been derived from a divine source also reinforces this belief.
Keble J. said as late as 1653 that there was no law in England which was not the
laws of God. For there are very many consequences reasoned out of the scriptures.
Even Blackstone held the view that all human law rested on the twin foundations
of law of Nature and the Law of Revelation. Vinogradoff also observes: "Looking
back on the historical evolution of Jurisprudence, we may discern three stages, the
first stage of thought is dominated by the idea of Providence. In this respect, there
is no fundamental difference between the Heathen world and the Christian world.
All societies place in the centre of their conception of the human world, the idea of
the guidance of Providence"

THEORIES ABOUT-CUSTOMARY LAW

There are two theories about the importance of custom as source of law in
ancient Indian law. According to one view custom is a formative and primary
source of law. The other view holds that it is only a material and -secondary source
of law. They resemble the historical and analytical schools of customary law in
Western jurisprudence.

(1) Sadachara or Good Custom as the Source of Law

Altekar traces the evolution of ancient Indian law through the agency of
Sadachar, the Good custom. In his view,13 when Sadachar also spelt as Sadacara
or good custom or the practices of the virtuous Veda-knowing people, were
recognised as source of Dharma or law, the first great concession was given to
custom. The category of Sadachar was not at first extensive but later it became so,
as a result of which various types of customs were included in it by Smriticars and
Commentators. "Sadacara has been defined in several works as the conduct of
ideally selfless Veda-knowing persons who are above temptations, jealousy and
passions."14 The behaviour of such persons at first appeared rather as guidance in
spiritual matters than in secular ones like social customs and in positive law.
Sadachar signified the customs and traditions approved by society and the need to
define it precisely was not realised at first. Accordingly, as pointed out by the
Mahabharat, it is indefinable and is, what is inferred from the conduct of cultured
persons. It appears that Sadachar began to acquire a wider meaning as it was not
confined only to the virtuous and the Veda-knowing people became widespread
among others as well. Taittiryaranyaka also points that 'dharma' need not only be
inferred from the persons who are of too rigid and narrow a nature. It implies that
some customs can be accepted as 'dharma', even if they were not followed by the
cultured few, if practised and followed by the uncultured many. This was actually
done lateron. Practically, it was thus not necessary in course of time to respect the
fiction that Sadachar as custom must not be in opposition to Srutis and Smritis.

The scope of Sadachar in time to come, became more extensive when if

included : (1) Kuldharma, (2) Jatidharma, and (3) Qeshdharma. These consisted
generally of custom and unwritten laws. It included their customs, conventions and
usages of trade, profession and guilds, and determined the rights, liabilities and
responsibilities of their members and of the guilds.

(2) Impact of Sastric Law Upon Custom: Lingat's Theory

S. Robert Lingat, in his book "The Classical Law of India" states that in
Roman Jurisprudence the doctrine of consensus occupies a significant place. This
doctrine of consensus, which amounts to saying that all law is the result of
consensus, is foreign to Indian Juristic thinking, and plays only a minor role except
in the case of 'conventions' which are considered as one of the sources of dharma.
Custom is purely a human development in the sense that it develops at the level of
human groups involved in social interaction. However, Hindus did not consider its
origin in the manner like that of Roman jurisconsults of the classical period, who
thought of its origin in convention. Law is bom of a more or less conscious
agreement of wills of those called upon to obey it. The Indian law cannot be
explained on this basis. Its origin eludes human memory, confers upon itself a
force which it neither had nor has it in Eastern civilisations.20 Custom in its pure
aspect, is indifferent to religious consequences and may be in accordance with the
precepts of Sastras but may also be in conflict with them. It has been defined by
Katyana as all that man practices, whether or not it conforms to dharma, simply
because it is the constant usage of the country. It has its authority because of its
inveterate character. The rule of custom has reference to factual circumstance and
is a phenomenon governed by time and place.