Law Books in an Oral Culture: The Indian "Dharmaśāstras"

Author(s): Ludo Rocher

Source: Proceedings of the American Philosophical Society, Vol. 137, No. 2 (Jun., 1993), pp. 254-
267
Published by: American Philosophical Society
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 Law Books in an Oral Culture:
The Indian Dharmasastras
LUDO ROCHER

ofSouthAsian Studies
W NormanBrownProfessor
ofPennsylvania
University

n 1772the Britishauthoritiesin Calcuttadecided that,to be fair

to the Indians, they should administerto them not Britishlaws,
which the Indians did not know and would not understand,but the
local Hindu and Muslim laws, which theynot only understoodbut had
held in high esteem forcenturies.1
A fair,humane decision it was; a practical,easy decision it was not.
The difficulty was not so much with the Muslims: theyhad the Quran
and the Sharia, and manyofthe Englishmenwho were to administerlaw
to them knew Persian, some even Arabic. The problem was with the
Hindus. They too, had law books, but these were in Sanskrit,and ofthat
language no Englishman had any notion whatever.
I will pass over the earlyBritishsolutions to thatproblem,since they
are not relevantto the point I wish to make. I will just note that, after
a few years, some courageous Englishmencame to the conclusion that
there was only one way to do it right:they had to learn Sanskrit.That
and only thatwould enable themto read the originaltextsofthe Sanskrit
law books, withouthaving to depend on intermediaries,pandits, whom
they no longer trusted.2
The Britishwere told that the laws of the Hindus were contained in
books called dharmas'astras, i.e., s'astras"texts,treatises"on dharma"the
aggregateof all the rules which a Hindu is supposed to live by."3The

l GovernorWarrenHastings's Plan fortheAdministration ofJusticeincluded a section to

the effectthat "[i]n all suits regardinginheritance,marriage,caste and other religious
usages or institutions,the laws of the Koran with respectto the Mohamedans and those
of the Shaster with respectto the Gentoos shall invariablybe adhered to." It became law
as S. 27 of the Administrationof JusticeRegulationof 11 April 1780.
attachedto the Anglo-IndianCourts in 1772; theycontinued to act
2 Pandits were first

as legal counselors until1864 when theirofficewas abolished. On the distrustof pandits,

see, e.g., J.D.M. Derrett,"The Britishas Patronsofthe Sastra,"in Religion,Law and theState
in India (London: Faber and Faber,1968), 243.
3 The termdharmasastra, in a generalsense, is used forboththe dharna-sitras,which are
in prose, and the dharma-sastras strictosensu, which are in verse. The individual dharna-
PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY, VOL. 137, NO. 2, 1993

254

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 LAW BOOKS IN AN ORAL CULTURE 255

British also learned that the dharmas'astra the Hindus most highly
respected was the one attributedto Manu, one of the several ancient
sages who are supposed to have composed-rather, "revealed"-treatises
on dharma.
One of the Englishmenwho studied Sanskritwas Sir WilliamJones,
since 1783 a judge in the Supreme Court of Judicaturein Calcutta.4In
1794 Jones indeed completed and published, in Calcutta, an English
translationofthe dharmasastra ofHinduLaw:
attributedto Manu: Institutes
or,theOrdinancesofMenu.
To be sure,Jones'stranslation,whichwas "printedbythe orderofGov-
ernment,"was intended,primarily, to servethe administrationofjustice.
Accordingto Jones,the judge,
itmustbe remembered, thatthoselaws areactuallyrevered,as thewordofthe
MostHigh,bynationsofgreatimportance to thepoliticaland commercialinter-
estsofEurope,
and particularly
bymillionsofHindusubjects,whosewelldirected
industrywould add largelyto the wealthof Britain,
and who ask no morein
returnthanprotection
fortheirpersonsand placesofabode,justicein theirtem-
poralconcerns,
indulgencetotheprejudicesoftheirold religion, and thebenefit
ofthoselaws,whichtheyhavebeen taughtto believesacred,and whichalone
theycan possiblycomprehend.5
Yet,at the same timeJones,the scholar,expressed an opinion thatis par-
ticularlyimportantin the contextofthisessay. Joneswas convincedthat,
by translatingManu, he not only had access to the laws to be applied
to Hindus in 1794,but learned fromtheManusmrti"thatsystemofduties,
religious and civil, and the law in all its branches, which the Hindus
firmlybelieve to have been promulgatedin the beginning of time by
MENU:'6
The Manusmrticontinued to attractattentionafter1794.7Yet, more
than a halfcenturywould pass beforethe publicationof the translation

suitrasand dharmasastras are also called smrtis,and the entirecorpus ofthese textsis referred
to as part of "the" smrti(literally,"memory"),i.e., a formof revelationinferioronly to the
higherformof revelationcontainedin the several Vedic texts(sruti).I must stressthatthis
entireessay deals with this body of textsonly,not with the immense commentariallitera-
ture on them, which developed at a latertime.
4 The factthatJones'sdecision to study Sanskritwas linked to his distrustof the Court
pandits is highlightedin a letterto Charles Chapman, writtenfromthe Bengal town of
Krishnagaron 28 September1785: "I am proceedingslowly,but surely,in thisretiredplace,
in the study of Sanscrit; forI can no longer bear to be at the mercyof our pundits, who
deal out Hindu law as theyplease, and make it at reasonable rateswhen theycannot find
it ready-made" (Garland Cannon, ed., The LettersofSir WilliamJones[Oxford:Clarendon
Press, 1970], 683-684).
5 Haughton's reprint(see note 7), 2: xxi-xxii.
6 Ibid., viii. Even though he was to be proved wrong on that account, Jonesbelieved
that the Manusmrtiwas composed as early as 1280 B.C.
7 Jones'stranslationwas reprinted,in England, in 1796,and translatedinto German in
1797.It was again reprinted,with an edition of the Sanskrittextand new annotations,by
Graves Chamney Haughton, in 1825. For these and later editions, see Garland Cannon,
Sir William A Bibliography
Jones: ofPrimary
andSecondary
Sources
(Amsterdam:
Benjamins,
1979), 32-34. The firstedition of Manu in France, by Auguste Loiseleur Deslongchamps,
appeared in 1830; his 1833 translationwas reprintedin 1840.

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256 LUDO ROCHER

of a second dharmas'astra, the one attributedto Yajniavalkya.This trans-

lation was not in English but in German, and it was not produced to be
of any service whateverto the administrationof justice in India. As the
translator,AdolfFriedrichStenzler,pointed out, the Britishhad turned
away fromthe ancient dharmas'astras to other Sanskrittextsthat were
totallydevoted to law and, consequently,more importantforthe admin-
istrationof justice.8
Stenzler noted that the time had come to make a scholarlystudy of
the entirecorpus of Indian law books. He submittedthat,once the rel-
ative chronologyof the textswas established,"[a] comparativestudy of
all these textsis bound to lead to resultswhich will contributenot a little
to our understandingof the development of life in India."9 One year
laterhe argued even more forcefully and in greaterdetail that"[iutis to
be expected that a more accurate knowledge of this richlydeveloped
branch of Indian literature,which draws on the most varied situations
of life,will provide true insightsinto the historyof the Indian people."10
Stenzler thus formulated,forthe dharnasastraliteratureas a whole, the
same expectationvoiced forManu by Jonesmuch earlier,namely that
these textsprovide a true pictureof the law of the land, i.e., of law as
it was actuallypracticedin classical India.
The same idea appears again and again in later scholarlyliterature.I
will restrictmyselfto quoting some of its major proponents. Friedrich
Max Mullernoted,at least as faras the prose dharmasatras -which he con-
sidered to be older than the versifieddharmas'astras-are concerned,that
"[t]heyare of greatimportanceforforminga correctview of the old state
of society in India.""1In 1868 AlbrechtWeber expressed the hope that
the publication of more dharmatexts"would spread the kind of light

8 YajiiavalkyadhannaNastram. Gesetzbuch.
Yajfnavalkya's SanskritundDeutsch,2 vols. (Berlin:
Dummler,1849), Vorrede to the translation,iii. Englishtranslationsof otherancientdharma
textsappeared more than one centuryafterHastings's Plan. Exceptfora preliminarytrans-
lation, frommanuscripts,of the NC7radasmrti by JuliusJolly(London: Trubner,1876), most
translationswere published, at Oxford,in Max Muller's The SacredBooksoftheEast: Apas-
tamba and Gautama (vol. 2, transl. Georg Buhler,1879), Vignu (vol. 7, transl.Jolly,1880),
Vasisthaand Baudhayana (vol. 14, transl.Buhler,1882),Manu (vol. 25, transl.Buhler,1886),
Narada and Brhaspati(vol. 33, transl.Jolly,1889). Many otherdharnagastras, some of them
known only fromquotations in the commentaries,stillremain untranslated.
9 Vorrede,iii.
10 "Zur Literaturder indischen Gesetzbucher,"in AlbrechtWeber's IndischeStudien
(Berlin: Dummler,1850), 1: 232-246 at 237.
11 A Historyof AncientSanskritLiterature (London: Williams & Norgate, 1859), 134.
There is a potentiallymisleadingstatementby Georg BiihlerconcerningMuller's views on
the versifieddharmna0stras. In connectionwith the dharnasuitras attributedto Apastamba,
Buhler noted: "Their discoveryenabled ProfessorMax Muller, nearlythirtyyears ago, to
dispose finallyof the Brahmanicallegend accordingto which Hindu societywas supposed
to be governed by the codes of ancient sages, compiled forthe express purpose of tying
down each individual to his station,and of strictlyregulatingeven the smallestacts of his
daily life" (SacredBooksof the East, 2: ix). What Muller really meant is that the versifled
sastras, which he considered to be more recentthan the prose sutras, should not be used
to reconstructlifein earlierVedic times,for"theylikewise admittedthe rules and customs
of a laterage" (A History,61). Muller did not say thatthe versifieddharma0astraswere unre-
liable sources as faras theirown times were concerned.

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 LAW BOOKS IN AN ORAL CULTURE 257

which we can as yethardlyfathom."'12 ArthurCole Burnellrealized that

there were considerable differencesbetween the various dharmas'astras,
but thatwas "no reason to believe thatthese works do not representthe
actual laws which were administered."'13 Leopold von Schroeder spoke
ofthe Indian law books as being "ofthehighestimportanceforthe knowl-
edge of public and privaterelations,nay of any aspect of Indian lifeand
activity.'14
WillyFoy proposed to use the dharmasastras to draw a picture
of royal power which was to be "importantfor the culturalhistoryof
India,"'15and JosephDahlmann heralded the law books as "trulyhistor-
ical records."'16
Perhaps most importantof all is that JuliusJolly'sclassic work on
Hindu Law and Customand Pandurang Vaman Kane's monumentalHis-
toryofDharmasastra were based on the assumptionthatthe legal precepts
contained in the textswere real,17and thatthe two standardtreatisesof
modern Hindu law confirmin theirintroductionsthat"[t]herecan be no
doubt thatthe smritirules were concernedwith the practicaladministra-
tion of the law,"18and, in connectionwith Manu, speak of "the system-
aticand cogentcollectionofrules ofexistinglaw thatit gave to the people
with clarityand in language simple and easy of comprehension."19
Yet, not everyoneagreed. I will mentiononly in passing the opinion
of Thomas BabbingtonMacaulay that "neitheras the languages of law
nor as the languages of religion have the Sanskrit and Arabic any
peculiar claim to our encouragement,"and his expectationthat,once the
Indian Law Commission of 1833, on which he sat, had completed its
task, "the shastras and the hadith will become useless.720

12 Literarisches
Centralblatt1868, no. 30, 815-817; reprintedin IndischeStreifen 2 (1869),
404-408 at 408. Quoted with approval by Aurel Mayr, Das indischeErbrecht(Vienna:
Becksche Universitats-Buchhandlung, 1873), 2.
13 Daya-vibhaga.The Law of Inheritance (Madras: Higginbotham,1868), xiii. This is all
the more remarkablesince Burnell was a close friendof JamesH. Nelson whose-very
different-viewson the dharmasastras will be discussed later.
14 IndiensLiteraturund Culturin historischer Entwicklung(Leipzig: Haessel, 1887), 734.
15 Die kdnigliche
Gewaltnachdenaltindischen Rechtsbiuchern,den Dharmasfitrenund dlteren
Dharmas'stern(Leipzig: Haessel, 1895), 4.
16 "Der Gesellschaftskundeerschliessen sich seit dem neunten Jahrhundert v.Chr. im
Bereiche des indischen Rechts wahrhaftgeschichtlicheQuellen" (Das altindischeVolkstum
und seineBedeutung fiirdie Gesellschaftskunde
[Cologne: Bachem, 1899], 48). Dahlmann op-
posed the opinion of Senart; see below.
17 Hindu Law and Custom(Calcutta: GreaterIndia Society,1928) is an authorized trans-
lation of Jolly'sRecht und Sitte, einschliesslichder einheimischen Litteratur(Strassburg:
Trubner,1896). In it Jollyrefersto the siutrasand the sastrasas two "stages of Indian legal
literature"(2). In Kane's third volume (Poona: Bhandarkar Oriental Research Institute,
1946), which is more specificallydevoted to the legal aspects ofdharma,he says: "This work
in intentionand scope . . . concerns itselfwith pointingout what the law of the Smrtis
and writersof medieval digests was" (544).
18 Mayne'sTreatiseofHinduLaw and Usage,11thed. by N. ChandrasekharaAiyar(Madras:
Higginbotham,1950), 2.
19 Mulla: PrinciplesofHindu Law, 13th ed. by Sunderlal T. Desai (Bombay: N.M. Tri-
pathi, 1966,reprinted1970), 20.
20 C.H. Philips, ed., The Correspondence of Lord WilliamCavendishBentinck,Governor-
Generalof India, 1828-1835(Oxford UniversityPress, 1977), 1411, 1410. Macaulay wished

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258 LUDO ROCHER

Far more importantwas the proclamation,as earlyas 1861,of no less

a personage than Sir Henry Sumner Maine that
[t]heHindooCode, calledtheLawsofMenu,whichis certainly a Brahmin com-
pilation,undoubtedly enshrinesmanygenuineobservancesoftheHindurace,
but the opinionof thebestcontemporary is, thatit does not,as a
orientalists
whole,represent a setofruleseveractivelyadministeredin Hindostan.It is, in
greatpart,an ideal pictureofthatwhich,in theviewoftheBrahmins, oughtto
be thelaw.21
Maine put theblame squarelyon WilliamJones:"The opinions ofSir Wil-
liam Jonesproduced greateffectsboth in the East and in the West....
The Anglo-Indian Courts accepted fromthe school of the Sanscritists
which he founded the assertion of his Brahmanicaladvisers, that the
sacred laws beginningin the extantbook of Manu were acknowledged
by all Hindus to be binding on them.722
Maine's view found support fromvarious quarters.Both forpractical
and academic reasons, JamesHenry Nelson who was active in various
locations in South India,23was unhappy administeringthe Hindu law
created by Jones and other Sanskrit scholars in farawayCalcutta. He
raised the question, "Has such a thingas 'HinduLaw' at any time existed
in the world? Or is it that 'HinduLaw'is a mere phantom of the brain,
imagined by Sanskritistswithoutlaw and lawyerswithout Sanskirt?"24
Nelson questioned not onlythe reliabilityofthe Manusmrtias a source
of law, but the existenceof Manu himself:"If he at any timeexisted .

to go even further:"I would strikeat the root of the bad systemwhich has hithertobeen
fosteredby us. I would at once stop the printingofArabicand Sanskritbooks" (ibid., 1412).
21 AncientLaw (London: Routledge), 14. On Maine, see J. Duncan M. Derrett,"Sir
Henry Maine and Law in India," TheJuridical Review1959,40-55. It is not clear to me whom
Maine means by "the best contemporaryorientalists."Accordingto Derrett(42) "much of
what turnsup in Maine" was supplied by JamesMill's "disastrous"HistoryofBritishIndia
(firstpublished in 1817). As far as I know Mill did not make any statementsimilar to
Maine's. Speaking about the "endless conceits"of Sanskritgrammaticalliterature,he said,
though, that"[i]t could not happen otherwisethan thatthe Hindus should, beyond other
nations, abound in those frivolousrefinementswhich are suited to the tasteof an uncivil-
ized people. A whole race of men were set apart and exempted fromthe ordinarycares
and labours of life,whom the pain of vacuityforcedupon some application of mind, and
who were under the necessity of maintainingtheirinfluenceamong the people, by the
creditof superiorlearning,and, ifnot by real knowledge,which is slowly and with much
difficulty attained,by artfulcontrivancesfordeceiving the people with the semblance of
it. This view of the situationof the Brahmans serves to explain many thingswhich modify
and colour Hindu society"(reprintfromthe 2d edition,1820 [Delhi: Associated Publishing
House, 1972], 1: 383-384). Mill also agreed with FrancisWilfordthat the king lists in the
Puranas "are the creationof the fancies of the writers"(ibid., 464).
22 "The Sacred Laws of the Hindus," in Dissertations on Early Law and Custom(New
York:Holt, 1886; reprintedNew York:Arno Press, 1975), 6. At least this much is clear,that
Jones,the "orientalist,"was also one of the principal betesnoiresof JamesMill.
23 On Nelson see J.D.M. Derrett,"J.H. Nelson: A ForgottenAdministrator-Historian
of India," in C.H. Philips, ed., HistoriansofIndia,Pakistanand Ceylon(London: OxfordUni-
versityPress, 1961), 354-372.
24 A View of the Hindu Law as Administered by the High Courtof Judicature at Madras
(Madras: Higginbotham,1877), 2.

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 LAW BOOKS IN AN ORAL CULTURE 259

which is most unlikely,Manu cannot be supposed to have set laws to

India.725And he continued:
Assuming,however, forargument's sake thata mannamedManu once existed
and setlawstomen. . ., itmust... be concededthathe setthemonlytocertain
massesofmenabidingin and aboutpartofthePunjab,namelyto certainArya
tribesor familiesand in some instancesalso to certaintribesor familiesstyled
Siudras.
Now: whethera remnant ofanyone ofthosetribesorfamilies stillexists
in anypartofIndia ofcourseis exceedingly doubtful.And whethera remnant
ofanyone ofthemexistedat anytimewithinthelimitsoftheMadrasProvince,
exceptperhapson theWesternCoast,is stillmoredoubtful.26
Arguments against the dharmas'astras also came from one eminent
European Sanskrit scholar, the FrenchmanEmile Senart. In Les castes
danslInde.Lesfaitset le systeme27Senart was less concerned with the
legal sectionsofthedharmas'astras thanwiththeirpresentationofthefour-
fold caste system:brahman,ksatriya,vaisya, sudra. Yet,the resultof his
study was damaging to the law books as a whole. Senart contrastedthe
infinitelycomplex modern caste systemwith the relativelysimple and
structuredway in which it appears in the dhannas'astras and otherclas-
sical textssuch as the epics. He submittedthatthe present-daycomplex-
ities must, to a certaindegree, go back as faras the time of the ancient
texts,and concluded: "What seems certainto me is thatneitherthe epics
nor, above all, the Smrtisshould be accepted as straightforward and
faithfulwitnesses [temoinsintegres etfideles]of contemporarydata."28
Finally,accordingto Govinda Das, an Indian Sanskritscholar,"[i]tis
a profounderrorto regardthe Smritisas complete codes of law or as get-
ting all their'rules' rigidlyenforcedby the political authoritiesof their
times.729 And he concluded a long discussion with the question: "After
all this can one seriouslycontend thatHindu law was in the main ever
morethan a pious wish ofitsmetaphysically-minded, ceremonial-ridden
priestlypromulgators,and but seldom a sternreality?"30
In otherwords,accordingto a numberofreputablescholarstheancient

25 Ibid., 4.
26 Ibid., 4-5. JohnD. Mayne, whose TreatiseofHindu Law and Usagewas firstpublished
one year afterNelson's View(Madras: Higginbotham;London: Stevens and Haynes, 1878),
admitsthat"[i]n much thathe says I thoroughlyagree withhim."Yet,"it seems to me that
the influenceofBrahmanismupon even the Sanskritwritershas been greatlyexaggerated,
and thatthose parts of the Sanskritlaw which are of any practicalimportanceare mainly
based upon usage, which, in substance,thoughnot in detail,is common to boththe Aryan
and non-Aryantribes" (vii).
27 Annales du Musee Guimet. Bibliothequede vulgarisation,tome 10, 1896; second un-
changededition,witha new foreword, Paris:Geuthner,1927(page referencesare to thelatter).
28 Ibid., 11. Senart's view was criticizedby Hermann Oldenberg ("Zur Geschichtedes
indischen Kastenwesens,"Zeitschrift der deutschenmorgenldndischen Gesellschaft51 [1897]:
267-290 at 268), and by Dahlmann (Das altindischeVolkstum, 49-50: "Der ganze Charakter
des aus der Wirklichkeit des Lebens hervorgehendenRechtsschliesstaber jene bewusste
Falschung auf das entschiedensteaus").
29 "The Real Characterof Hindu Law," being the introduction to the edition of Balam-
bhatta Payagunda's Vyavahara-balambhattf (Banaras: Chowkhamba Sanskrit Book-depot,
1914), 8.
30 Ibid., 16.

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260 LUDO ROCHER

Indian dhannas2stras duly and trulydescribedthelaw oftheland; accord-

ing to other equally reputable scholars they were the product of pure
brahmanicalfantasyand theytellus only what the brahmancaste would
have liked the law of the land to be. The dilemma this situationcreates
forthe historianofclassical Hindu law is obvious. Eitherthe information
broad and detailed,allowinghimto reconstruct
at his disposal is infinitely
both substantiveand adjective law in ancient India with a high degree
of accuracy;or the entirecorpus of classical Indian law books is untrust-
worthyand should be dismissed as a source ofinformation on what really
was the law of the land. I will suggest in the followingpages thatthere
is a betterand more productiveapproach to understandingthe nature
and meaning of the Indian dhannas'astras than asking the single question
whetheror not theydescribe the law of the land and, depending on the
answer, concluding that theyare or are not reliablelaw books.31
By way of introductionI would like to remindthe reader of the signal
importance,in India, of memorization.It is well known that the entire
systemof education in classical, and to a certainextentin modern India,
was and is based on learningby rote.32From a very early age onward
Indians were-and still are-trained to memorize sentences, passages,
even books on all kinds of topics, whetherlearned or trivial.
Numerous Westernvisitorsto India have expressed theiramazement
at this phenomenon, but I wish to concentrateon two such visitors
because they reportednot only on the mnemonics of Indians but also
on law and law books.
In the fnrst place there is a statementattributedto Megasthenes, the
ambassador whom Seleucus Nicator,one of the successors of Alexander
the Great, sent to Candragupta, the king of the Mauryas. Megasthenes
visited India, perhaps several times,ca. 300 B.C. A fragmentof his lost
Indica, as recorded in Strabo's Geography, relates the ambassador's sur-
prise that there was so littlecrime among the Indians, "and that too
among a people who use unwrittenlaws only. For,he continues, they
have no knowledge of writtenletters,and regulate every single thing
frommemory."33 Megasthenes must have seen an Indian courtof law at
work. As a Greek, he was puzzled that the judge did not use any law
books; as a Greek, he drew the logical conclusion that,ifthe judge did,
i.e., had to do, without a law book, first,the Indians did not have law
books, and, second, theymust not have known the art of writing.

31 This essay supersedes my earlier attemptsat understandingthe nature of the dhar-

masastras:"De historischegrondslagen van het Oud-Indische Recht" [= "The Historical

Foundations of AncientIndian Law"], Indonesie10 (1957): 472-495; "Hindu Law of Succes-
sion: fromthe Sastrasto Modern Law,"Revuedu sud-estasiatique6 (1967): 1-47; "Hindu Con-
ceptions of Law," The HastingsLaw Journal 29 (1978): 1284-1305.
32 Hence the emphasis on mnemotechnicdevices in books on Indian education. See,
forexample, Radha Kumud Mookerji,AncientIndianEducation(Brahmanical and Buddhist),
4th ed. (Delhi: Motilal Banarsidass, 1969), 211-215. Cf. Ludo Rocher,"ScholarlyEditingin
SanskritLiterature"(in press).
33 The Geography of Strabo,ed. and transl. Horace Leonard Jones. Loeb Classical
Library,vol. 7, 1930 (reprinted),15.1.53,pp. 86-89.

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 LAW BOOKS IN AN ORAL CULTURE 261

Megasthenes was wrong as faras the latterpart of his conclusion is

concerned. We know thattherewas writingin India in the timeofMegas-
thenes. Also, one of his predecessors,Nearchus, Alexander'sfriendand
companion, reportedthat,accordingto some, Indians "writemissiveson
linen cloth that is very closely woven."34But Nearchus did confirm
Megasthenes' conclusion thatthe Indians had no law books: "Nearchus
. . . declares ... [t]hattheirlaws, some public and some private,are
unwritten."35
Nearchus' and, farmore so, Megasthenes' statementson the absence
of law books have attractedmuch scholarlyattention.Knowing, as we
do, thatthe Indians had manydharmasfitras, some of which may go back
to 500 B.C., the Greek observersmusthave been misled. Accordingto one
explanation, the ancient Indians did have writtenlaw books, but they
were not needed in the law courtsbecause the judges had memorized
them.36In the opinion of the latest editor of Megasthenes' fragments,
"the laws were indeed mainly unwritten;it was not customary [for
Indians] to reduce theirsacred books (and the dharmasastras belong to
them) to writing."37 Others, finally,dismissed the statementson the
absence of law books in ancient India as one of the many instances "in
which the ignorance of the classical writersis difficultto explain."38
At thispoint I will introducea documentproduced by the second vis-
itorto India whom I announced earlier.It is a letter,sent to a prominent
juristin Paris,by a FrenchJesuitmissionary,fromPondicherryin South
India, in 1714. It has been published in several editions of the Lettres
edifiantes et curieuses,the vast collection of letterswrittenfromvarious
Jesuitmissions. The writerof the letteris FatherJeanVenantBouchet;
except foran introductory paragraph, the long letteris entirelydevoted
to the administrationof law as Bouchet saw it in India, some two thou-
sand years afterMegasthenes.39Yet, some two millennia afterMegas-
thenes, FatherBouchet's firstsentence sounds uncannilyfamiliar:"They
have neithercodes or digests,nor do theyhave any books in which are
writtendown the laws to which theyhave to conformto solve the dis-

34 Strabo 15.1.67,pp. 116-117

35 Strabo 15.1.66,pp. 114-115.
36 E. A. Schwanbeck, MegasthenisIndica. Fragmentacollegitcommentationem
et indices
addidit(Bonn: Pleimes, 1846), 50-51, n. 48. Schwanbeck adds an alternativeexplanation,
namely that"forsome reason" (quadamcausa) Indians call theirlaw books smrti(= mne^me,
memory).Cf. Ludo Rocher,"Megasthenes on Indian Lawbooks,"Journal oftheOrientalInsti-
tuteBaroda6 (1956-57): 125-128.
37 B.C.J. Timmer, Megasthenesen de Indische maatschappij[=Megasthenesand Indian
Society](Amsterdam,1930), 245.
38 R.C. Majumdar, The ClassicalAccounts ofIndia (Calcutta: K.L. Mukhopadhyay,1960),
xix.
39 Although the letterhas not remained unnoticed, it has not received the attentionit

deserves. J.H. Nelson referredto it,especiallyin "Hindu Law at Madras,"Journal oftheRoyal

AsiaticSocietyn.s. 13 (1881): 208-236.Foran annotatedEnglishtranslation,see Ludo Rocher,
"FatherBouchet's Letteron the Administration ofHindu Law,"in RichardW. Lariviere,ed.,
Studiesin Dhannasastra(Calcutta: K.L. Mukhopadhyay,1984), 15-48.

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262 LUDO ROCHER

In otherwords, as astute and inquisi-

putes thatarise in theirfamilies.740
tive an observeras FatherBouchet did not see any Hindu law books in
1714, either.
The observations on the absence of law books in settlingdisputes
among Hindus, made by two foreignersvisitingIndia at an intervalof
two thousand years, raise a number of questions. First,what did the
Hindu judicial authoritiesuse instead of law books to settle disputes?
Second, where were the dharmasastras, composed fromca. 500 B.C. on-
ward, of which neitherMegasthenes nor Bouchet saw any trace?Third,
and most important,what are the dhannas'astras which William Jones
accepted as representingthe law of the land, and which Henry Sumner
Maine dismissed as brahmanicalfantasy?
On the firstquestion Bouchet leaves no doubt. Echoing Megasthenes'
briefremarkthat unwrittenlaws among Indians did not entail a higher
degree of lawlessness, Bouchet explains, in far greater detail, that
absence of law books did not in any way imply absence of justice.
foundedon a numberofcustomswhich
is entirely
Theequityofall theirverdicts
theyconsiderinviolable,and on certainusages whichare handed down from
fathertoson.Theyregardtheseusagesas definite rules,tomaintain
and infallible
peace in thefamilyand to end thesuitsthatarise,notonlyamongprivateindi-
viduals,but also amongroyalprinces.41
Bouchet makes it clear that some of these customs were "accepted in
all castes,"such as the beliefthatchildrenoftwo brothersor oftwo sisters
are brotherswhereas childrenof a brotherand a sisterare cousins, with
the resultthatthelattercan intermarry, theformercannot. Othercustoms
on the contrary, are valid withina particularcaste only,and customsmay
varyfromcaste to caste: "As soon as it has been proven that someone's
claim is based on a custom that is followed within the caste, and on
common usage, thatis enough."42Also, whereas the village head is the
natural judge in suits arisingin his village, "[i]f it is a question related
to caste, it is the heads of the castes who decide."43
In connectionwiththefactthatthese customswereunwritten,Bouchet
relateshow a European gentlemansuggested to him thattheremust be
much injusticein a systemin which, unlikeEurope, judges were notheld
in check by writtenlaws.
I shallnotexamineheretheenormousadvantagesone pretendsto derivefrom
thisprodigiousmultitudeoflaws; but it seemsto me thattheIndiansare not
reallyto be blamedfornothavingcaredto codifytheircustoms.Afterall, is it
notenoughthattheypossessthemperfectly? And,ifthisis so,whatis thegood
ofbooks?In reality,
nothing knownthanthesecustoms:I haveseenchil-
is better
drentenor twelveyearsold who knewthemperfectly.44

40 Rocher,"Bouchet's Letter,"18.
41 Ibid., 18-19.
42 Ibid., 19.
43 Ibid., 31.
44 Ibid., 21.

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 LAW BOOKS IN AN ORAL CULTURE 263

Finally,as to the formin which the customsare memorizedand trans-

mitted,Bouchet uses, interchangeably, the terms"maxims,""proverbs,"
and "quatrains,"the latterof which seems to indicate that theywere in
verse. At one point he morespecificallyrefersto the factthat"theyquote
a quatrain which is to them more or less what Pibrac's quatrains are to
us."45
Bouchetquotes and commentson severalofthesemaxims.Forinstance:
Whenthereareseveralchildren ina family,
themalesaloneinherit;thegirlshave
no claimat all to theinheritance.46
Iftheproperty has notbeendividedupon thedeathofthefather, anything that
has been acquiredbyone ofthechildrenshallbe enteredintothecommonstock
and dividedequally.47
Adoptedchildrenshareequallyin theestatewiththechildrenoftheiradoptive
fathers and mothers.48
The fathershallpay all debtscontracted
byhis children;childrenshallequally
pay all debtsoftheirfather.49
Bouchet's letterends as follows:
It is thesegeneralmaxims,Sir,thatserveas substitutesforlaws in India; it is
these thatare followedin the administration
of justice.Thereare othermore
specificlawswhichareapplicablewithineachcaste.Sincethesewouldlead me
toofar,theyshallbe thesubjectofanotherletter
whichI willbe honoredtowrite
you.50

Unfortunately, this other letterdoes not seem to have been written.

The main conclusion to be drawn fromBouchet's letteris thatin the
area of India with which he was familiar,and probably in most other
areas as well, law was administeredon the basis of unwrittenmaxims,
which were transmittedfromgenerationto generation,in the local ver-
naculars,some ofthemapplicable to the population ofthe area generally,
othersto specificgroups such as the membersof a particularcaste only.
I oftenwonder whether,had Bouchetalso providedthe readingsofthese
maximsin the originalvernacular,therewould notbe ample opportunity
to compare them with specificverses, "quatrains,"slokas,in the written,
Sanskritdharmas'astras.51

45 Ibid., 28-29. This is a referenceto the collectionof

moralizingquatrains by Gui du
Faur, Seigneur de Pibrac (1529-1584). Firstpublished in 1574,theybecame very popular,
and went throughnumerous editions, with additions.
46 Ibid.,38-40.
47 Ibid.,42-43.
'8 Ibid., 43-45.
49 Ibid.,47-48.
50 Ibid., 48.
51 For example,
Bouchet's firstmaxim closely resembles a half stanza preserved in the
Baudhayanadharmas'astra (2.2.3.46) which declares women to be adaya "withouta share,"an
idea which also occurs in earlierVedic texts(Taittirfyasamhita 6.5.8.2: women are adayada).
Cf. even Rigveda3.31.2: "The son-of-the-body did not share the inheritancewith his sister"
(transl.Geldner). The principlereferredto in the fourthmaximquoted above is well known
in the dharmagastras, and corresponds to what in Anglo-Indian law was to be called the
pious obligation.

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264 LUDO ROCHER

Turningto the second question I asked earlier,it is quite clear thatthe

dharmas'astras were unknown to Bouchet's informants.In fact,theywere
unaware of, and opposed to, even theirown maximsbeing preservedin
writing.Bouchet reportsthat he inquired why they had not collected
their customs in books to consult if needed. "Their answer is that, if
these customs were enteredinto books, only the learned would be able
to read them, whereas, iftheyare handed down orallyfromgeneration
to generation,everyoneis fullyinformed.752
Yet,thereare indicationsthatthe dharmas'a-stras existedin writtenform
perhaps even at a relativelyearly date. According to a verse in the
Niaradasmrti, the s'a-strais one of the eight "limbs" of legal procedure,
togetherwith the king or chiefjudge, the assessors, the accountant,the
scribe, gold, fire,and water.53A s'loka"quatrain" attributedto the lost
Brhaspatismrti prescribesthat "the king should cause gold, fire,water,
and the codes ofthe sacred law (dharmasastras, plural) to be placed in the
midstof them [i.e., the membersof the court],also (other)holy and aus-
picious things."54 Two other verses attributedto Brhaspatialso provide
the earliestinterpretation and reconciliationof the conflictingviews on
levirate appearing in the preserved Manusmrti(to which I will return
later).5
Finally,even Bouchet's informantswere vaguely aware of certainlaws
inscribedon mysteriouscopper plates, and guarded withcare by learned
brahmans in a big towerin the cityof Conjeeveram. However, "[slince
the Moors have nearlyentirelydestroyedthislargeand famous town,no
one has been able to findout what happened to these plates; the only
thingwe know is thattheycontainedeverythingthatrelatesto any caste
in particular and the relations which differentcastes should observe
among one another.756
In otherwords, law books, even law books in the vernacular,and, a
fortiori,Sanskritlaw books, were the preserveofthe learned, ofthe select
few who were able to read - and write- them. In ordinarylegal practice
everyoneused detached, unconnected maxims.
I can now returnto the thirdquestion I raised: what exactlyare the
learned, writtendharmas'astras?57 To answer this question I must refer
to one of their most salient features,which has helped me greatlyto
reach the conclusion I presentin this essay. The point is that thereare,
in the dharmasastras, some strange and troublingcontradictions,not

52 Rocher,"Bouchet's Letter,"20.
53 Transl. Jolly,introduction1.16.
54 Transl. Jolly1.17 I must note, though, thatthis verse is attestedin one later digest,

Devanabhatta's Smrticandrikta, only.

55 Transl. Jolly24.16-17.
56 Rocher,"Bouchet's Letter," 20.
57 I wish to remindthe reader thatthe conclusions thatwill followrelateto the ancient
dharmasfutras and dharmasastras only (cf. note 3). The commentaries,which are also part of
the dharmas'astra nature.
literaturein its broader sense, raise problemsof a totallydifferent
See, e.g., my "Schools of Hindu Law," in J.Ensink and P. Gaeffke,ed., India Maior. Con-
gratulatoryVolumePresentedto J. Gonda. (Leiden: Brill,1972), 167-176.

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 LAW BOOKS IN AN ORAL CULTURE 265

only between differentdharmagastras,58 but within one and the same

textas well.
For instance,in Manu's section on inheritancethereis a verse (9.104)
to the effectthat,afterthe death of both parents,the sons get together
and divide the inheritanceequally. The next verse (9.105), withoutany
transitionwhatever,enjoins that, afterthe death of both parents, the
eldest son gets everythingand the youngersons continue to live under
him as they did under theirfather.A few verses are then dedicated to
praisingthe greatnessof an eldest son. And then, again withouttransi-
tion, Manu (9.112) declares that, when both parents are deceased, the
inheritanceis divided, but in such a way thatthe eldest son receives an
additional share of 5 percent,the nextson an extrashare of halfof that,
etc. In other words, within the briefspan of nine verses Manu offers
three different ways forsons to deal with the parental inheritance.
Elsewhere Manu (9.57) informsus that,when a husband dies without
having a son, his youngerbrothershall substituteforhim and have a son
with his elder brother'swidow. The textgoes into detail on how and
when the intercourseshall take place, on how the parties shall behave,
etc. All of this clearlyindicatesthatManu is familiarwith the custom of
leviratewhich is also known in other legal systems.59But Manu (9.64)
then goes on to say that a widow should never have intercoursewith
anyone other than her husband, including her brother-in-law.Such
behavior,the textadds is pas'udharma "dharmaof pas'us,beasts" (9.66).60
Contradictionsof this kind occur throughoutthe Manusmrti,but they
are particularlyobvious in the ninth book devoted to familylaw.61
Scholars who believed that the dharmas'astras were codices representing
the law of the land were forcedto look forjustifications.It has been sug-
gested that contradictoryrules in the dharmas'astras, as in all revealed
Hindu texts,must be interpretedas options.62Accordingto Lingat, "[i]t
emerges fromthese textsthatthe author of the Code of Manu was hos-
tile" to a number of practices,"but he was confrontedby customs too
deeply rooted forprohibitionto be efficacious.All he could do was to
tryto discreditthem.763In connectionwith leviratein particular,it has

58 Cf. Kane: HistoryofDharmasastra,3: 866-870.

59 The son born of thiskind of union is called ksetra-ja
"field-born,"
i.e., born fromseed
sown in someone else's field. Manu describes his share in the inheritanceat 9.120-121.
60 On the historyof niyoga,fromVedic times onward, see M.B. Emeneau and B.A. van
Nooten, "The Young Wifeand Her Husband's Brother:Rgveda10.40.2and 10.85.44,"Journal
oftheAmericanOrientalSociety111 (1991): 481-494.
61 For other examples, see Robert Lingat, The Classical Law of India (French original,
1967; transl. J.D.M. Derrett[Berkeley,etc.: Universityof CaliforniaPress, 1973], 182).
62 Buhler, The Laws of Manu, xcii-xciii.(Hence Buhler introduces Manu 9.105 which
makes the entirepaternalpropertydevolve on the eldest son with the word "[Or]" which
is not presentin the Sanskrittext.)He also offersan alternateexplanation:the factthatthe
versifiedManavadharmas'astra is, in his view, a recast of a lost prose Manavadharmasfutra
"alone is sufficientto account forcontradictions."
63 ClassicalLaw ofIndia, 182. Accordingto Derretttoo, "the Rishis are found to acknowl-
edge as existingand worthyof regulationa few institutionswhich affrontedtheirrefined
moral senses" (The Death ofa MarriageLaw. EpitaphfortheRishis [New Delhi etc.: Vikas

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266 LUDO ROCHER

been suggested by some thatManu intended the practiceto be allowed

forsidras, but forbiddenforthe threehigherclasses.64Most otherexpla-
nations tacitlyassume thatHindu societymoved froma stage in which
niyogawas common practice to a stage in which it was considered
taboo.65The verses prohibitinglevirate,therefore,"are probably a later
addition";66theyhave "obviouslybeen tacked on ... at a timewhen the
practice of Niyoga had fallen into disuse,"67the practice having to be
described neverthelessas "being part of the traditionalDharma."68
Notwithstandingthese and otheringenious efforts, by the commenta-
tors first,by modern scholars later,to account forthe contradictionsin
the dharmas'astras,it is obvious that books that prescribethree different
ways of dealing with paternalproperty,books thatfirstprescribelevirate
and then forbidit, are hardly usable in legal practice.
The importantbut easily overlookedpoint is thatit is normal,that it
is a premise,in Hinduism, thatwhat is dharmaforone is different from
what is dharmaforanother.Dharma,basically,is accepted custom (iiciira),
i.e., customaccepted in a region,in a village,even in a caste or a sub-caste
withina village. But all these different customs are dharmain theirown
right.69With the single and relativelyvague proviso that "they should
not be contraryto the Veda," the dharmasuitrasand dharmas'astras them-
selves unanimously accept the validityof practicesrecognized within a
region, a caste, or a family;theyprovide thatcustoms peculiar to culti-
vators,traders,herdsmen,money-lenders,artisans,etc., are binding on
these various groups.70In the case of inheritancein particular,a verse
in Kautilya's Arthas'a-straprescribes: "Whatever be the customarylaw

PublishingHouse, 1978],52) and he refersto niyogaas a primeexample. Seventyyearsear-

lier JosephKohler used Manu's passage on niyogaas "a well-knownexample" of the fact
thatlexposterior derogatprioriis a Western,not an Easternprinciple("Das altesteLehrbuch
der juristischenAuslegungs- und Methodenlehre. JaiminisMimansa-Regeln,"Archivfiir
Rechts-und Wirtschaftsphilosophie4 [1910]: 235-243 at 242).
64 This interpretationbased on Manu 9.66 ("the practiceis reprehendedby the learned
of the twice-bornclasses"), appears as early as Eduard Gans (Das Erbrecht in weltgeschicht-
licherEntwickelung, 4 vols. [Stuttgart& Tubingen, 1824-25], 1: 77), and has oftenbeen
repeated.
65 Typically,Ludwik Sternbach'sintroduction to Chakradar Jha'sHistoryand Sourcesof
Law in AncientIndia (Delhi: Ashish PublishingHouse, 1987), vii. I should note thatthis is
also the traditionalIndian interpretation, exhibitedforthe firsttime in the passage from
the Brhaspatismrti to which I referredearlier:niyogawas allowed in the threeearlierworld
ages, but is forbiddenin the present,decadent Kali age.
66 Edward Washburn Hopkins's note at Arthur C. Burnell, The Ordinancesof Manu
(London: Trubner,1884), 255.
67 JuliusJolly,Outlinesofan HistoryoftheHindu Law ofPartition, and Adoption.
Inheritance
Tagore Law Lecturesfor1883 (Calcutta: Thacker,Spink, 1885), 48.
68 Jolly,Hindu Law and Custom,121.
69 Marc Galanter rightlypointed out that this is one of the main differences between
traditionaland modernIndian law which"put[s] forthclaimsin termsofgeneralrulesappli-
cable to the whole society" ("Hinduism, Secularism, and the Indian Judiciary,"1971;
reprintedin Law and Society,ed. Rajeev Dhavan [Bombay,etc.: Oxford UniversityPress,
1989], 237).
70 See e.g., Kane, HistoryofDharmasastra, 3: 857-863.

266

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 LAW BOOKS IN AN ORAL CULTURE 267

(dharma)ofa region,a caste,a corporationor a village,in accordancewith

that alone shall he [i.e., the judge] administerthe law of inheritance."71
In actual dispute settlementeach ofthese customs,or sets of customs,
was applied, consistently, in the appropriatecircumstances.Members of
one area or one group always divided paternalpropertyequally, others
unequally, othersagain did not divide it at all. Among some therewas
levirate,among others there was not.72In India's largely oral culture
these area-specificor group-specificrules were transmittedin the form
of Memorialverse, in the vernacular,and theyremained unwritten.73 The
composers ofthe dharmas'a-stras, on the otherhand, compiled treatiseson
dharma,on anythingtheyconsideredworthyofbeing recordedas dharma
with some people, somewhere.Theygatheredthatinformation in books,
in the language of the learned, Sanskrit.
What I wanted to show in this essay is thatit is possible, in a culture
in which memorizationplays an importantrole in day-to-daylife,to have
books, the dharmas'a-stras,thatare legal fictionbecause theywere divorced
fromthe practicaladministrationof justice-the role theywere given in
177274-but which are not forthatreason the productofbrahmanicalfan-
tasy.75They are books of law-rather, books of laws-containing "a mass
of floating verses of rules and observations" that were, indeed, at
some timeand in some place "governingthelifeand conductofpeople."76

71 The Kautilrya Arthas'astra,

transl. R. Kangle (Bombay: University,1963), 249 (3.740).
A nearly identical verse is transmittedas part of the lost Katyayanasmrti (ed. and transl.
Kane [Poona: OrientalBook Agency,n.d.], 313 [884A]).
72 On the practiceof leviratein modern India, see Emeneau-van Nooten: "The Young
Wifeand Her Husband's Brother,"487,based primarilyon IrawatiKarve, KingshipOrgani-
sationin India (Poona: Deccan College Postgraduateand Research Institute,2d ed. 1965).
73 I borrowthe termMemorialverse in the contextof Sanskritdharmaliteraturefroman
articlebyHeinrichLuiders,"Eine arischeAnschauunguberden Vertragsbruch," 1917;reprinted
PhilologicaIndica.Ausgewazhlte kleineSchriften(Gottingen:Vandenhoeck& Ruprecht,1940),
438-463.
74 The question whetherHastings's decision was rightor wrong has been the object of

much scholarly discussion. Derrettrefersto K.V. VenkatasubramaniaIyer,according to

whom Hastingsmisunderstoodwhatfunctionthegastrahad, when he made itthesole source
oflaw, and adds: "thisis not quite certain,but the factthatthe doubt can arise is significant"
("The Administrationof Hindu law by the British,"in Religion,Law and theStatein India,
288). K. Lipstein'sconclusion thatthe Plan of 1772 "led to the application of rules which
were eitherobsolete or neverin force"has to be seen againstthe backgroundof his opinion
thatthe s'stra "was nevermorethan a fiction"("The ReceptionofWesternLaw in a Country
of a DifferentSocial and Economic Background[India]," TheIndianYearBookofInternational
Affairs6 [1957]: 277-293 at 281).
75 The argumentof"brahmanicalfantasy" has been used in otherareas as well. Cf. Mill's
statementon the brahmans (note 21). Also, in connection with the Dhatupatha,a list
ofsome twothousandverbalrootsofwhichmorethanhalfhave notbeen metwithin Sanskrit
literature,ithas been suggestedthatitwas "concocted"by the Indian grammarians(William
DwightWhitney,"The StudyofHindu Grammarand the StudyofSanskrit,"1884;reprinted
in J.E Staal, ed., A Readeron theSanskritGrammarians (Cambridge MA: MIT Press, 1992),
142-154at 142. In fact,the Indian pandits have been accused of inventingthe Sanskritlan-
guage (Dugald Stewartand ChristophMeiners,quoted in Rosane Rocher,Orientalism, Poetry,
and theMillennium:The Checkered LifeofNathanielBrasseyHalhed 1751-1830[Delhi: Motilal
Banarsidass, 1983], 78).
76 V. Raghavan, "The Manu Samhita," in The CulturalHeritageofIndia (Calcutta: The
RamakrishnaInstituteof Culture, 2d ed. 1962), 2: 335-363 at 335.

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