The four feet of legal procedure and the origins of jurisprudence in ancient India.

Author:Olivelle, Patrick
Position:Essay
 
FREE EXCERPT

Half a century ago the French Indologist Robert Lingat published an influential study (Lingat 1962) dealing with a puzzling verse found in several Dharmasastras presenting a fourfold classification of legal procedure that they refer to as "four feet." (1) The locus classicus is found in the Narada Smrti:

dharmas ca vyavaharas ca caritram rajasasanam I catuspad vyavaharo 'yam uttarah purvabadhakah II

This vyavahara has four feet: dharma, vyavahara, caritra, and king's decree; each succeeding one countermands each previous one. (NSm Ma 1.10)

Several problems confront us here, problems that have led to numerous and sometimes contradictory commentaries, as well as Lingat's essay. First, the meanings of three terms in the verse, dharma, vyavahara, and caritra, are unclear. Second, and even more importantly, we have the strange case of vyavahara being a foot or part of vyavahara. The term cannot mean the same thing in the first and third padas, and if they do not mean the same, the question arises why the author simply did not use a different term for one of these meanings. If he was forced to use both terms, then it would be enlightening to find out what forced his hand. In answering these questions, we will build on the foundation laid by Lingat, but will depart from his analysis in significant ways. Although his account is correct insofar as the understanding of later smrtis, is concerned, his historical explanation, we think, is inadequate. This has already been partly rectified by the insightful study of Derrett (1968), but even Derrett does not fully explore the history of these four terms as they occur in the earliest available document, Kautilya's Arthasastra. Our exploration of the history of this curious formulation will also provide new insights into the history of law and jurisprudence in ancient India and into the ways Indian jurists defined and labeled the diverse laws and norms prevalent in ancient Indian society.

PART ONE: THE FOUR FEET REEXAMINED

Looking at the meanings of the terms for the four feet given in the first line of Narada's verse, we find different and sometimes conflicting definitions in the Dharmasastra literature. These have been collected by both Lingat and Kane:

dharma = (1) truth (satya), that is, the admission of guilt by defendant; (2) ordeal; (3) oath

vyavahara = (1) witnesses; (2) more broadly, evidence (documents, etc.); (3) texts, sastra; (4) illegitimate plea (anuttara)

caritra = (1) local customs; (2) legal inference (anumana); (3) customs recorded in books

The term vyavahara in the third pada, on the other hand, has been interpreted to mean legal procedure or court proceeding. But this is unsatisfactory, because these four items, if we are to believe the commentators, constitute at most a small portion of that procedure. Kane (1962-75, III: 260) sees the problem and attempts to solve it by saying:

Dharma and the other three are really four feet of nirnaya (decision), which is one of the four stages of a lawsuit (vyavahara) and so only in a secondary or far-fetched sense is said to be the four padas of vyavahara. Lingat (1962: 492) comes to the same conclusion. Neither has explained why, if Narada actually meant nirnaya, he did not use that term instead of vyavahara and why, given the multivocality of this term, he used it not once but twice in this verse.

Indeed, we find a better enumeration of the four parts of vyavahara in the normal meaning of court procedure in the Yajnavalkya Smrti, which, significantly, ignores or is ignorant of the classification presented by Narada. Yajnavalkya states clearly, using the very same words as Narada in the first half of the line:

catuspad vyavaharo 'yam vivadesupadarsitah II In litigations, this legal procedure has been shown to have four feet. (YSm 2.8cd)

Although he does not enumerate the four with technical terms as later authors do, the four feet are clearly enunciated in the preceding verses:

smrtyacaravyapetena margenadharsitah paraih I avedayati ced rajhe vyavaharapadam hi tat II pratyarthino 'grato lekhyam yathaveditam arthina I samamasatadardhaharnamajatyadicihnitam II srutarthasyottaram lekhyam purvavedakasamnidliau I tato 'rthi lekhayet sadyah pratijuatarthasadhanam II tatsiddhau siddhim apnoti viparitam ato 'nyatha I

If someone who has suffered an injury at the hands of others in a manner contrary to the dictates of smrtis or normative practice reports it to the king, it is a foot of the legal procedure.

In the presence of the defendant, the allegation should be written down exactly as reported by the plaintiff, noting the year, month, fortnight, day, name, caste, and so forth.

After the defendant has heard the plaint, his plea should be written down in the presence of the petitioner. Immediately thereafter, the plaintiff should have the evidence he will use for what is alleged written down.

If it is successful, he obtains success; the opposite, if it is otherwise. (YSm 2.5-8ab)

According to this enumeration, the four feet are (1) the accusation by the plaintiff called a "foot of legal procedure" (vyavaharapada) in verse 5, which should be written down in the presence of the defendant (verse 6); (2) the response or plea of the defendant, which should also be written down (verse 7ab); (3) the evidence that will be presented (verse 7c-d); (4) victory or defeat of the litigants, that is, the verdict (verse 8ab).

Later texts present these four feet as plaint (called by two names: bhasapada and purvapaksa), plea (uttarapada), evidence (kriyapada), and verdict (nirnayapada or sadhyasiddhipada). Yajnavalkya's enumeration is repeated in an even clearer formulation by Brhaspati using the technical terms:

purvapaksah smrtah pado dvitiyas tuttaras tatha I kriyapadas tatha vacyas caturtho nirnayas tatha II

The plaint is said to be the (first) foot; the plea is the second; likewise (the third) should be called the foot of evidence; and the fourth is the verdict. (BrSm 1.1.17)

Katyayana, on the other hand, removes the verdict from the four feet and replaces it with the initial court deliberation as to whether the burden of proof falls on the plaintiff or the defendant. (2) The reason probably is that, in the case of a guilty plea, there is no true verdict.

purvapaksas cottaram ca pratyakalitam eva ca I kriyapadas ca tenayam catuspat samudahrtah II

The plaint, plea, court deliberation on burden of proof, and evidence--these are said to constitute the four feet. (KSm 31)

These enumerations are clear and concise and follow the normal court procedures laid out in the legal texts to the letter. So why did Narada invent a totally obscure classification of the four feet of vyavahara or legal procedure, by which he is supposed to have actually meant nirnaya or verdict?

Before attempting to answer that question, it is useful to review other post-Narada authors who also present the same four feet as Narada, although in somewhat different formats, and offer similar explanations of the four. Here is Brhaspati:

dharmena vyavaharena caritrena nrpajnaya I catusprakaro 'bhihitah samdigdhe 'rthe vinirnayah II

A verdict in a doubtful case is said to be of four kinds: based on dharma, vyavahara, caritra, and king's order. (BrSm 1.1.18)

Brhaspati makes three significant changes to Narada's formulation. First, he gets rid of the problematic metaphor of padas or feet, replacing it with the more understandable prakara, means or ways. Second, in the second line he replaces vyavahara, which is ambiguous at best, with the more forthright vinirnaya, verdict or decision. Third, he omits the content of Narada's last pada that each subsequent means nullifies each preceding one. He will, however, present this last provision in his explanations of each of the four methods. This reformulation clarifies the intention of the classification, namely that these pertain to the verdict, which is only one step of the judicial process, even though it leaves the three ambiguous terms of the first line, dharma, vyavahara, and caritra, untouched and needing explanation.

Explanations of the four feet are given by both Narada and Brhaspati as well as by the later jurist Katyayana. Narada's explanation is brief and reflects the early explanations of these terms found also in Kautilya's Arthasastra that we will examine presently.

tatra satye sthito dharmo vyavaharas tu saksisu I caritram pustakarane rajajaayam tu sasanam II

Of these, dharma rests on truth, (3) vyavahara on witnesses, caritra on what is recorded in books, and decree is king's order. (NSm Ma 1.11)

Brhaspati's explanations are elaborate, attempting to bring within this fourfold classification all possible reasons for a verdict. He divides each into two categories. Thus, dharma is when the verdict is based either on an ordeal or on the admission of guilt by the defendant. A verdict follows vyavahara when it is based either on evidence or on recognizing deception through judicial reasoning or a defective plea. It is based on caritra when the decision is arrived at through inferential reasoning or according to regional custom. (4)

Likewise, the complex cases where these four overrule each other are given by Katyayana in nine verses, and this shows the growing concern among jurists that local rules or the caprice of the king could derail the proper conduct of judicial proceedings.

dosakari tu kartrtvam dhanasvami svakam dhanam I vivade prapnuyad yatra dharmenaiva sa nirnayah II smrtisastram tu yatkimcit prathitam dharmasadhakaih I karyanam nirnayarthe tu vyavaharah smrto hi sah II yad yad acaryate yena dharmyam vadharmyam eva va I desasyacararian nityam caritram tat prakirtitam II nyayasastravirodhena desadrstes tathaiva ca I yam dharmam sthapayed raja nyayyam tad rajasasanam II yuktiyuktam tu karyam syad divyam tatra vivarjitam I dharmas tu vyavaharena badhyate tatra nanyatha II pratilomaprasutesu tatha durganivasisu I viruddham niyatam prahus tam dharmam na vicalayet II nirnayam tu yada kuryat tena dharmena...

To continue reading

FREE SIGN UP