India

Principles of Criminal Law in Ancient Times (1500 BCE to 1100 CE)

In ancient times, dharma, whose Sanskrit roots signify the actions of maintaining and sustaining, was the sacrificial act that preserves the cosmic order (Lingat 1998: 3–4). Later, the concept of dharma came to mean norms of conduct. The Hindu literature on dharma, however, should not be considered a source of law, as it has never been a collection of positive precepts observed by society and applied by law courts. The earliest Hindu sacred writings are the Vedas, which are the basic textual source of dharma. They do not set forth any positive rule of conduct, nor do they provide a model for the administration of justice (Lingat 1998: 7–8). The classical literature of dharmasutra and dharmashastra (treatises on dharma) focus more systematically on the teaching of rules of conduct. However, these texts are neither an accurate description of life of that time nor a direct source of law (Lingat 1998: 135–142). Rather, they are efforts to preserve and favor the knowledge of the Brahman, a literate group who sought to control and influence Indian society (Menski 1992: 323).

Ancient Hindu texts list seven acts as the gravest sins: theft, adultery with the teacher's wife, murder of a Brahman (member of the highest caste in India), killing of an unborn child, consumption of alcohol, the repeated performance of the same sinful act, and telling lies about sinful matters (Kane 1930–1962, vol. 4: 10). This list, dating back to the Vedas and mentioned later in the dharma treatises, has been interpreted as proof of the legal nature of Hindu texts, as have systematic lists of [Page 879]crimes compiled by more recent scholarship (Doongaji 1986; Kaul 1993). However, the underlying concept of dharma as cosmic order concerns the preeminent concept of sin as against a divine order rather than against society. The societal order as set forth in the dharmashastra is to be interpreted in a cosmic dimension where the punishment can be inflicted by divine, semidivine, human, or even anonymous agents (Menski 1991: 309).

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