BRIHASPATI ON JUSTICE

SOURCES OF LAW
As regards the sources of law, we have to fall back upon Manu. Manu defined
Dharma as: ‘ The whole Veda is the source of Dharma, next the traditions
(smriti) and the tradition and practice of those that know it (the Veda), and the
customs of holy men and finally self-satisfaction.’(II.6). Medhatithi and
Yajnavalkya agree with Manu and thus we have three recognized sources of
Dharma, namely, srauta (derived from the srutis, that is Veda), smarta( derived
from the smritis that is Dharmasastra) and sadachara( the usages of virtuous
men who know the Vedas). Kautilya, however, lays down that ‘Dharma (sacred
law), Vyavahara(contract), Charitra(custom) and Rajasasana (royal decree) are
the four legs of law, the later one superseding the earlier one( dharmas-cha
vyavaharas-cha charitram rajasasanam vivadarthas-chatuspadah paschimah
purva-badhakah). Thus the king becomes the highest authority for promulgating
law. The four sources of law as given by Narada (I.10) is almost a repetition of
Kautilya. Brihaspati’s explanatory statements clarify the statement of Kautilya
and Narada. According to him (I.19- 21, IX.2-7), when a decision is based on
the admission on oath by the defendant 35 Law and Judicial Systems it is said to
be Dharma. When a decision is based only on sastra or evidence or arguments it
is said to be a vyavahara. When a decision is based on inference or usages or
customs of corporations it is said to be charitra. When a king decides a disputed
case in a manner which is neither opposed to sastra nor is against the opinion of
the sabhyas, it is called rajajna and this order overrides local customs etc. It is to
be noted that vyavahara which included documentary evidence, cannot be called
a source of law. As for transactions, like sale or mortgage, the deeds had to be
drawn in conformity either with sastra rules or local customs or both. Normally
three sources of law were accepted: srauta, smarta and sadachara. The subject
matters of litigation could be many and varied. Manu gives us a list of eighteen
titles of the law(vyavahara pada) which are also more or less agreed by
Yajnavalkya, Narada and Brihaspati. These are : 1) Non-payment of debt 2)
Deposit and pledge 3) Sale without ownership 4) Concerns among partners 5)
Resumption of gifts 6) Non-payment of wages 7) Non-performance of
agreements 8) Rescission of sale and purchase 9) Disputes between the
owner(of cattle) and his servants 10) Disputes regarding boundaries 11) Assault
12) Defamation 13) Theft 14) Robbery and violence 15) Adultery 16) Duties of
man and wife 17) Partition (of inheritance) and 18) Gambling and betting. That
this list of eighteen topics is not exhaustive is made clear by both Medhatithi
and Kulluka. The reason behind this is that with the passage of time society had
become much more complex and naturally there was increase in the causes of
litigation. Similarly in the Dharmasutras, which have discussed a few topics of
law like murder, adultery, theft, defamation and inheritance, we do not get the
other titles of law as in Manu as the society was much more simpler in the days
of the Dharmasutras. But even then slow development of civil and criminal law
is clearly perceptible in the Dharmasutras. Gautama says, ‘Cultivators, traders,
herdsmen, money-lenders and artisans have authority to lay down rules for their
respective classes. Having learnt the state of affairs from those who in each
class have authority to speak, the king shall give the legal decision.’ Thus
emerging important social groups like traders, money lenders and artisans were
given due recognition

CLASSIFICATION OF LAW
The first clear recognition of the division between civil and criminal law was
made by Brihaspati. The fourteen titles of law, according to him, comprise
money lending, deposits, invalid gifts, concerns of partnership, non-payment of
wages, nonperformance of service, disputes about land, sale without ownership,
rescission of sale and purchase, breach of contract, relations between husband
and wife, theft and inheritance as well as gambling. These fall within the
purview of civil law. On the other hand, the four titles of law comprising the
two kinds of insult (parushya), violence (sahasa) and criminal connection with
another’s wife spring out of injury to others were within the domain of criminal
law. To begin with civil law, we find that Manu deals with it in an elaborate
manner. A few of them may be cited. The monthly interest on debt is allowed at
the rate of 2,3,4 or 5 per cent according to the order of the castes. Inheritance
was a very important matter and minute rules are prescribed to meet various
contingencies. Property was divided only after the death of the father and the
eldest brother got as his share, either the whole property or a larger share than
the other brothers. Maiden sisters also got a share, which was normally one-
fourth of the brother’s. As regards ownership of a property Manu opines that the
enjoyment of property for more than 10 years gives a prescriptive right to it.
Yajnavalkya observes that title is superior to possession in all cases except
where possession has descended from a line of ancestors. According to him
while possession without title creates no claim except in cases of long
continuity, title without possession has no force. As regards partition of
property he says that partition may take place either during the life time of the
father or else after his death. In general if the father divides his property, the
best share goes to the eldest son or else equal share to all the sons. But if the
partition takes place after the death of the father, then it is divided equally
among all the sons, both the assets and the liabilities. The mother also gets an
equal share as the sons and the daughter one fourth of the son’s share.
Yajnavalkya , thus gives the widow the full right to succeed. But the picture is
different in Narada smriti. He does not give the right of succession to the
widow. She is granted only the right of maintenance till her death. The term
‘stridhana’ is used in the Smritis not in the etymological sense of all property
possessed by a woman, but in the technical sense of ‘certain kinds of property
given to a woman on certain occasions or at different stages of life.’ The
different classes of stridhana are what was given to a woman before the nuptial
fire (adhyagni), what was given at the time of the bridal procession
(adhyavahanika), what was given to a woman through affection (pritidatta) and
what was received from the brother, the mother or the father. To this Katyayana
adds other kinds of stridhana such as the bridal price (shulka), what was
obtained by a woman after marriage from the family of her husband or of her
parents (anvadheya) and what was obtained by a married woman in her
husband’s house or by a maiden in the house of her father (saudayika). As a
result “all property (whether movable or immovable) obtained by a woman,
either as a maiden or at marriage or after marriage from her parents or the
family of relatives of the parents or from the husband and his family (except
immovable property given by the husband) is included within the scope of
stridhana”. Again according to Narada, if the father divides the property, he
distributes the property equally or unequally after keeping two shares for
himself. In case of division after his death, the sons get equal share after paying
the debt. In case of laws of debt, narada refers to four kinds of interest:
periodical (kalika), stipulated (karita), corporal (kayika) and compound
(chakravriddhi). The last three are condemned by Manu but interestingly they
are approved by Gautama Dharmasutra (XII.34-35). While dealing with the 37
Law and Judicial Systems recovery of debts, Brihaspati mentions that creditor
shall lend money after securing a pledge (adhi) of adequate value or a deposit
(bandha), or a trustworthy security, or a bond written by the debtor himself or
else attested by witnesses. Moreover he adds two more kinds of interest namely
shikha vriddhi (hair interest) and bhoghalabha (interest by enjoyment). Hair
interest is so called because it grows constantly like hair and does not cease till
the cutting of the head, while the latter is based upon the use of a mortgaged
house or the produce of a field. Criminal law reflected caste privileges and
disabilities. Punishment depended on the caste of the criminal and so for
identical offences, punishments varied. As a general rule Brahmanas were to be
exempted from capital punishment. The worst punishment for a Brahmana was
banishment but even then he was allowed to take with him all his property.
Manu’s law on defamation clearly underlines the role of caste. For defaming a
Brahmana, a Kshatriya was to be fined a hundred panas, a Vaishya from one
hundred and fifty to two hundred, while a Sudra was to suffer corporal
punishment. On the other hand, a Brahmana should be fined fifty, twenty five
and twelve panas for defaming a Kshatriya, a Vaishya and a Sudra respectively.
There was a uniform penalty of twelve panas for a Brahmana for defaming a
fellow Brahmana. Similar distinctions are also made by Manu in the case of
assaults. Manu says, ‘With whatever limb a man of a lower caste injures a man
of three higher castes, even that limb shall be cut off.’ For adultery various
penalties were imposed according to the caste of the accused and the
circumstances under which the crime was committed. The penalties included
fine, forfeiture of property, imprisonment and even death (except for a
Brahmana). Yajnavalkya more or less follows Manu’s dictum on criminal law.
But his views on offences dealt through public justice are quite strong.
According to him, a person not giving evidence is liable to pay the entire debt
together with an additional one tenth, while he who knows the facts of the case
but refuses to give evidence is liable to the same punishment as a false witness.
Narada is much more systematic regarding various crimes and their
punishments. Treating theft as a separate offence from sahasa (violence) Narada
divides it into three grades according to the value of the property stolen. The
punishment for theft varies from fine to corporal punishment, mutilation and
death, according to the amount or value of the object stolen. Theft was regarded
as a sin and a thief confessing his guilt is freed from sin. Brihaspati too echoes
the sentiment of Narada or goes a step further when he says that punishment for
theft or violence is proportioned to the gravity of the offence without reference
to the caste of the offender. In the matter of fixing penalties, there is no doubt
that the king enjoyed a great latitude in criminal matters. While imposing a
penalty, Manu and Yajnavalkya recommends that the king should take into
consideration the motive, the period and location of the offence, also the
capacity of the culprit to endure the penalty, in particular his age and gender.
Thus the sentence is determined by the circumstances of each case. It is
extremely variable and depends largely upon the will of the king who must
remain master of his own justice.
Chronological Table of the Texts (according to History of Dharmasastra)
Dharmasutras : 600 B.C.—300 B.C. Manusmriti : 200 B.C. –200 A.D.
Yajnavalkya smriti : 100 A.D.—300A.D. Narada smriti : 100 A.D.—400 A.D.
Brihaspati smriti : 300A.D.—500 A.D. Katyayana smriti ; 400 A.D.—600 A.D.

ADMINISTRATION OF JUSTICE
 Administration of justice was an essential part of the protection to which
people are entitled from the government. Manu(VIII.1-2) and Yajnavalkya(II.1)
felt that though the king should normally preside over the law courts, he should
not dispense justice alone. So a king should be assisted by learned Brahmanas
and experienced counsellors. In the opinion of Manu, if the king is absent in the
court, he should appoint a learned Brahmana to perform his duties and three
sabhyas should be associated with this Brahmana. This provision is also found
in Yajnavalkya and Narada, though they do not set any limit to the number of
sabhyas. Giving justice is equivalent, say Manu (VIII.306) and Yajnavalkya
(I.359), to performing a sacrifice capable of procuring the highest spiritual
benefits. Brihaspati repeats this formula on several occasions and does not
hesitate to identify a law case (vyavahara) as a sacrificial act (yajna). Just as if
he were performing a sacrifice, the king ought, then, scrupulously to observe the
rules laid down by the text. He is bound by the terms of the sastras like a
sacrificer by the ritual manual. However the king must always seek out the truth
and make sure that he does not come to a hasty judgment. Moreover no legal
rule may be applied until he has obtained complete familiarity with the matter.
According to Brihaspati, ‘A judgment should not be passed in reliance upon the
text of the sastras alone, for a trial of a case without taking account of the
circumstances of a case leads to a loss of Dharma.’
Brihaspati (I.57-58) maintains that courts of justice were of four kinds : a)
pratishthita, established in a fixed place such as a town, b) apratishthita, not
established in a fixed place but moving from place to place, c)mudrita, the court
of a judge who is authorised to use the royal seal, and d) sasita or sasrita, the
court in which the king himself presides. The king is indeed the supreme judge
in his realm and is held responsible as a matter of duty to protect his subjects
and to warrant that their disputes shall be settled justly. It is reasonable that he
should be guided and counselled by smriti writers. Besides these courts there
were other tribunals recognised as integral parts of the judicial system.
Yajnavalkya (II.30), Brihaspati (I.92,94) and Narada (I.7) declare that law suits
may be decided by kula, sreni, gana / puga, the royal judges, and the king in
order of precedence. The jurisdiction of these courts is illustrated by the rules
that kulas (families), srenis (associations of merchants and craftsmen),
ganas(group of artisans dependent on mutual help) / pugas(association of
persons belonging to different castes and following different occupations but
living in the same place) and so forth, which are duly authorised by the king,
shall decide all cases other than those relating to sahasa. The Mitakshara states
that from the kula’s decision one could appeal to a sreni and from the latter’s
decision to a puga. From the puga’s decision appeal lay with the king, and here
Vijnanesvara, the author of Mitakshara quotes Narada as his authority. In the
opinion of Yajnavalkya (II.8) and Brihaspati (I.17), there are four stages or feet
of a law suit, namely, the plaint (bhasa-pada), the reply (uttara pada), the
evidence or proof (kriya-pada) and the decision ( nirnaya pada). Kautilya
prescribes fines and even corporal punishment for corrupt judges. Yajnavalkya,
Narada and Katyayana prescribe heavy penalties for sabhyas (associate judges)
who were corrupt. Elaborate judicial procedures are given by the Smriti writers.
According to the general smriti rule, he who first approaches the court with his
plaint is the plaintiff. A plaint may be amended at any time before the answer of
the defendant has been 39 Law and Judicial Systems filed. Narada gives the
plaintiff the right of keeping the defendant under legal restraint of four kinds
which includes such processes as arrest before judgment or temporary
injunction till the arrival of the king’s summons so that the defendant cannot
abscond. Following the claim of the plaintiff, the defendant has to put in his
answer. According to Narada, the answer may be of four kinds, namely, denial,
confession, a special plea and a plea of previous judgment. The defendant was
expected to file his reply on the same day, but under certain circumstances a
short period was allowed for the defendant to file his reply. After the statements
of the plaintiff and the defendant had been recorded, the evidence had to be
placed before the court. Proofs were of two kinds, namely, human and divine.
The former consisted of witnesses and documents, the latter being ordeals. All
the smritis lay down that ordeals were to be resorted to only when none of the
human means were available or possible. Brihaspati gives elaborate rules of
procedure regarding evidence in these words, ‘ A witness prevails over
inference, a writing (document) prevails over witnesses, undisturbed possession
for three generations prevails over both.’ Finally the parties were asked to leave
the court to enable the sabhyas to deliberate after considering the evidence. The
victorious party received a document of victory called the jayapatra, while the
defeated party was to be punished by the king according to the sastra. Some of
the jayapatra’s bore the king’s seal and others, the seal of the chief judge. The
Mitakshara holds the jayapatra to be a judgement giving a summary of the
plaint, the reply, the evidence and the decision. When the plaintiff was defeated,
the document was called a hinapatra.

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