पृष्ठम्:धर्मकोशः (व्यवहारकाण्डम्) संचिका १ भागः १.djvu/२०

Vyavaharakānda had a most systematic growth and forms the basis of most of the modern codes of law in Europe. Law in ancient India had also evolved on independent lines, but the intervention of the Mahomedan and British rules has tampered with its natural growth during the last seven or eight hundred years. There was no doubt a voluminous commentary litera- ture, but its free growth was at an end. In the days that preceded the Mahomedan invasion of India, it appears that Hindu legal literature had attained the fullest growth and the Vyavaharakanda of Dharmakos'a gives all the available material for a study of this legal litera- ture in its entirety. The history of Hindu law can be roughly divided into four main periods: (i) The period of religious domination, when religious usage, law and expia- tion of sin were all regarded as equally governed by religion. Let us take the instance of adultery as it figures in the Veda. It was the custom in ancient times to make the wife confess her adult- ery. The wife was asked to name her paramour and if she named him or if she did not name him, a prayer was made to Varupa to punish him. Marriage and divorce had been regarded until re- cently as matters falling under the pur- view of religion, but are now regarded as mere legal matters that are out- side the scope of religion. Similarly all laws in ancient times regarding wrongs to property, or, to human life, or trans- gressions in sexual matters were of the nature of religious regulations; and all contracts were solemnised before the sacred fire; the alliance, for instance, between Rama and Sugriva and that between Rävana and Välin were so solemnised according to the Rāmāyaṇa. The inclusion of solemn oath and ordeals in the legal administration would point out the continuance of religious domi- nation in legal matters in the days of the Smrtis. The coronation of a king. and the adoption of a son are even today held to be of a sacramental charac. ter. The Smrtis also mention religious rites in connection with excommuni- cation and the emancipation of slaves. Dharmasutras like those of Apastamba mention expiatory rites as penalties for theft and adultery. Indeed, as long as the family priest of the king was his chief minister and the king the reli- gious head, it was inevitable that law should be a part of religion. (ii) The period of the growth of poli- tical institutions, when a distinction was made between rules conducive to benefit in the other world, and rules which regulated the secular conduct of man, or, other words, religion was now dis- tinguished from law and politics. The Manusmrti assigns separate places to political administration and legal ad- ministration. The king's priest was no longer his chief minister and only attended to religious matters as distinct from law and politics, which later on claimed an importance on the same footing as reli- gion. The Mahabharata, the Manusmrti, the Arthas'astra of Kautilya, the S'ukra- niti and the Kamasutra enumerate poli- tics amongst the main disciplines. Reli- gious ideas however dominated the legal ideas during this period. The insist- ence on the judge being a Brahman in the Smrtis shows the priestly influence in legal matters. (iii) The period of complete deliverance of law and politics from religious ideas and religious domination, with the result that they had an unfettered growth. The historical evidence for it, is offered by the Arthas'ästra of Kautilya, the S'ukra- nitisara and the Näradasmrti. In the first we have an indepenent place given to law in the chapter on legal administra- tion; the Naradasmrti deals with the law alone. Vis'varupa's Commentary on the Vyavahara chapter from the Y.S,