Universal and Particular elements of reality and knowledge are explored in this study of dharmasastra

1. Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts
28th July, 2023, Banaras Hindu University, Varanasi

2. Mystical Reality
Law has been too often perceived mainly as formal rules and
institutions that provide a scientific and positivist alternative to religious
concepts and practices and traditional customs. Vedic tradition questions
the Western perspective and highlights close linkages between moral and
legal, universal and particular, spiritual and material, infinite and finite.
As a preliminary study of Vedic law and jurisprudence this
presentation is structured around the key Shruti and Smriti texts. It provides
an overview of the Hindu way of legal thinking through a brief examination
of some of the Vedic and Dharmasastra texts. Nasadiya (Creation), Asya
Vamya (Coexistence), Purusha (Individual), Vag Sukta (Language).

3. Vedic Legal Tradition
The absence of an equivalent word for ‘law’ in Sanskrit has given
rise to misconceptions that ancient Indians were somehow deficient in legal
theorising and lacked a clear conceptualisation of ‘law’. The field of
jurisprudence now needs to be reviewed, to see the rich plurality of
meanings of what are in fact various types and conceptualisations of ‘law’ in
Indian tradition.
In the Vedic tradition we can see an indigenous system of law and
justice, focused on the key concepts of rta and satya. In addition,
dharma, danda, vyavahāra, ācāra and other terms are relevant to a
deeper understanding of the richness of ancient India’s conceptualisations of
‘law’.

4. Law and Morals
 In the Vedic tradition there is no one textual statement or
documemt that can represent ‘the law’ as it is understood today. The Vedic
legal system is not built on codified statements by a human legal authority,
to which factual situations are then related, nor is it based on a fixed
revelation, which came down from heaven one day and binds all adherents.
 Vedic tradition of law is based on awareness of a universal order,
the observable and comprehensible system of nature, conceptually embodied
in the Vedic concepts of rta and Dharma. The Vedic concept of
macrocosmic order, beyond direct human reach, transcends and envelops
any form of positivistic human law-making.

5. Western Tradition
Legal positivists see law and adjudication deterministically. For
them, the law defines specific rules. They differ in respect of what leads
judges to answers in a case, just legal rules or also principles. However, they
believe in common that if a judge has enough knowledge and skills, he
would reach the one correct legal answer in the case.
Legal realists, and pluralists see the probabilistic nature of law
and judicial decision-making. Rarely are the possibilities either right or
wrong. In other words, they are all equally right in different contexts. The
one chosen in a particular case will become legally true for that case, and
will become one of the factors constraining judges in future cases.

6. Legal Culture
The idea of legal culture has an important place in recent debates
about the nature and aims of law. It means that law should be treated
as embedded in the broader culture of society. In a sense, law is culture.
Concept of legal culture encompasses much more than the professional
juristic realm. It refers to a more general consciousness or experience of law
that is widely shared by those who constitute a nation.
Western positivist notions of law do not touch the reality of the
way most people understand and live their lives in India. A legal
system that does not correspond to the social, religious and cultural
sensitivities of a society can not be owned by the people but will be seen as
foreign and imposed. Without a conducive social and cultural concept-
ualization mere formal law cannot create willing legal and moral obligation.

7. Universal and Particular
In Vedic tradition universal and particular reality is inter-connected,
integrated, and emergent. This seamless connection can be described in
linguistics as levels of Para, Pasyanti, Madhyamika, Vaikhari. The
relationship is autpattik, meaning is both siddhantic and vyavaharik.
Words are finite but meaning is embedded in thought which is
infinite, ambiguous and uncertain. The ultimate context is infinite,
unmanifest. It lies outside space and time but creates events and objects that
can be located in space and time.
All objective forms like language and law are embedded in and
enveloped by the infinite, subjective reality. The finite becomes more
meaningful with the awareness of the infinite in the finite.

8. Absolute Reality
There are approximately 100 billion (10,000 crore) stars in each of 2 trillion (2 lakh crore) galaxies in the known universe.

9. Immanent Reality
100 trillion atoms with eternal life span, in each of 40 trillion cells in human body, with average renewable span of 7 years

10. Connectome
There are roughly 100 trillion atoms with almost eternal life span, in each of 40 trillion cells in human body, with
average renewable span of 7 years

11. Connectome

12. Complex Adaptive System
We have a hundred billion neurons in our brains, as many as there
are stars in a galaxy, with a hundred trillion links and potential
combinations through which they can interact. 100 trillion atoms in a cell,
including few free radicals.
The individual and the neurons in the brain are not separate. They
are the same thing. An individual is a process: complex, tightly integrated.
Human behaviour is too complex to be predicted. But it is adaptive.
In the big picture of contemporary world there are many things that
we do not know or understand, and one of the things which we understand
least about is ourselves. It is the most complex adaptive system.

13. Judicial Process
We assume that in the work of arguing and deciding cases in
thousands of courts in the country the judge and the lawyer can easily and
clearly comprehend and describe the process they follow.
Nothing could be farther from the truth. Sources of information,
applicable precedents, logical consistency, prevailing custom, personal
understanding of justice and morals, all these and more elements enter in
varying proportions to make the strange compound of judicial process.
Judicial process, being interaction of mind, matter and life, is
uncertain, entangled, complementary, emergent and creative. Judicial
process, like other branches of administration, arrives at decisions by the
logic of probabilites rather than the logic of certainty.

14. Holistic Interpretation
Bhishma tells Arjun that it is very difficult to define truth.
Sometimes untruth becomes truth, and truth becomes untruth. Robbers
chasing sage. A modern Bhishma could say the same about democracy.
If a soldier kills enemies on the border he gets an award. If he uses
the same gun to kill friends at home he gets the noose.
Concept of just war is entrenched in Indian tradition as a duty. The
concept of human rights cannot be extended to enemies of the society and
state.
All fundamental rights are subject to the limitation of maintenance
of public order. Rule of law demands restraint on anti-social activities.

15. Dharmasastra
Inquire into whether justice and righteousness are only casual
arrangements changing with circumstances and times, or behind this
confusing variety there existed perennial notions of right and wrong, justice
and injustice.
In contrast with shifting formal rules, dharmasastra speak of a
cosmic law which reasonable creatures everywhere are bound to recognize,
a common law recurring among different societies, rules ingrained in the
heart of man.
In this context, creation, individuality, openness, cohesion, and
transcendence are seen as concrete examples of the ever-recurring rules of
the cosmic law of nature, in the lives of individual and society.

16. Eternal Rta
 The concept of rta or eternal law is a multifaceted concept
connected to all the fundamental concepts in the Vedic tradition. Rta is the
eternal law of order and harmony underlying the cosmic phenomenon. This
eternal and universal order or law, maintained by Varuna is all pervasive
and the universe is the expression of this order observed by all gods.
 The sphere of rta is physical, metaphysical and ethical. The term
signifies the course of the natural world perceived through its rhythms,
seasons, cyclic movements and equilibrium and harmony in nature. It refers
to three basic elements, activity, order, and system. Hence, “heaven and
earth exist in close unison in the womb of rta”. (Rg Veda, 4.23; 10.65; 10.190)

17. Social Dharma
Indian legal tradition is not a Western-style legal system with codes
and cases but upholds at all times the situation-specificity of justice based on
natural law principles. Law exists outside the realm of the human also, and
there is a subtle link between cosmic order and human existence. Individual
freedom rests on socially operative normative order to which ruler is also
accountable. Freedom is in law.
Dharma denotes not just ‘religion’ or ‘law’, but moralised duty,
placed upon every individual, to contribute to macrocosmic as well as
microcosmic order. In Dharma, the central rule is that an individual should
do the right thing at the right time and place. Appropriate action, following
one’s duty, is the aim of life.

18. Dandaniti AS
Danda used after full consideration, endows the subjects with
spiritual good, material well-being and pleasures of the senses. Used
unjustly, in passion or anger, or in contempt, ascetics and householders
alike. If not used at all, it gives rise to the law of the fishes. AS1.4.7
With full consideration of the person, the offence, the motive,
seriousness of the offence, the consequences, the present effects, and the
place and time, punishment at the highest, the lowest or the middle level
shall be given, remaining neutral between the king and the subjects. AS4.11.8
Varuna is the punisher of kings who behave wrongly towards men. AS4.13.43
In whatever suit false evidence should have been given, the effect of that
shall cease, what has been done shall be undone, and penalty imposed.

19. DandanitiMS
After ascertaining the motive, the time and place, and taking into
consideration the condition and the nature of the offence, punishment shall
be given to those deserving punishment. MS 126
Punishment shall be given in the form of reprimand, reproach,
fine, or capital punishment. MS 12
Unjust punishment is destructive of reputation and subversive of fame;
it leads to loss of heaven; shall therefore be avoided. MS 127
The king, punishing those who do not deserve to be punished, and not
punishing those who deserve, attains great ill-fame, and hell. MS 128.
Stating the untruth in evidence, the witness becomes firmly
bound in Varuṇa’s fetters, helpless during a hundred births. MS,82

20. Conclusion
Law and jurisprudence must touch the social reality, as the
formal state law can not, on its own fulfill the social objectives of liberty,
equality, fraternity and justice. This requires formulation of laws with
reference to indigenous social norms and values. Law based on
positivist assumptions needs to be seen in the context of Vedic tradition
of jurisprudence which is holistic.
Vedic tradition shows us the value of thinking about law in
close connection to both dharma and life of common people.
It reminds us that legal processes and institutions are not the exclusive
province of state and legislature, and should function in close touch
with the most vital of human contexts. Law enables human
advancement as much as it constrains human follies.

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