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

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 parthivah I vyavaharas caritrena tada tenaiva badhyate II viruddham nyayato yat tu caritram kalpyate nrpaih I evam tatra nirasyeta caritram tu nrpajaaya II anena vidhina yuktam badhakam yad yad uttaram I anyathabadhanam yatra tatra dharmo vihanyate II

When in a dispute the guilty party acknowledges his deed and the creditor gets his money, the verdict is according to dharma alone.

When some smrti text is presented by the court officials for the purpose of arriving at a verdict in lawsuits, it is said to be vyavahara.

Whatever someone may constantly practice, whether it is according to dharma or not, because it is the practice of that region--it is called carina.

The dharma that the king promulgates that is not in conflict with legal treatises and the customs of the region is a lawful royal edict.

When a lawsuit is tried according to jurisprudential reasoning and the employment of ordeals is excluded, there vyavahara overrides dharma, and nowhere else.

He should not rescind what they say is a constant dharma among people born through illicit marriages or living in the fort, even if it disagreeable.

When, however, the king renders a verdict according to such a dharma, that caritra overrides vyavahara.

When kings assess that a caritra is in conflict with law, there caritra is annulled by the order of the king.

When this procedure is followed, each succeeding one overrules each preceding one. Where the overruling is done otherwise, there dharma is destroyed. (KSm 35-43)

The question all this raises is why Narada presented this classification with precisely these terms that required these long and intricate explanations. This question becomes significant especially because his predecessor, Yajnavalkya, whose section on legal procedure set a new standard in Indian legal literature, as we have already seen, either ignores or is ignorant of this verse and presents a very different classification of legal procedure.

That our skepticism with regard to Narada's formulation is not entirely unfounded is shown by an opposing position, purvapaksa, given by Devannabhatta, the great thirteenth century jurist, in his Smrticandrika (Vyavahara Kanda, p. 23). The opponent rejects Narada's view that each subsequent foot annuls each previous one and argues for exactly the opposite:
   Then is it not true that Narada's statement, "each succeeding one
   countermands each previous one," becomes pointless, because, given
   that each preceding kind of verdict more closely corresponds to the
   truth, it is the prior ones that annul the succeeding ones? (5)


Devannabhatta actually agrees with the opponent, but defends Narada by showing some examples, a bit farfetched one could argue, in which the later ones would annul the previous:
   A man, such as an Abhira, is accused by some person: "This man has
   committed adultery with another man's wife, and there are
   witnesses," and he responds: "What the witnesses have said is true.
   Nevertheless, I should not be punished, because I did this on the
   strength of custom. And the king has recorded this in the book."
   (6) When something like this happens, legal procedure is annulled
   by custom, because the punishment stipulated by the legal procedure
   is annulled by means of custom. (7)


PART TWO: THE FOUR FEET IN KAUTILYA'S ARTHASASTRA

Narada's classification, or for that matter any other classification of legal procedure, is absent in Manu, the other major jurist preceding Yanavalkya and Narada. So, where did Narada find it? We do not have to search far, because an almost identical verse is found at the end of the first chapter of the third book of Kautilya's Arthasastra:

dharmas ca vyavaharas ca caritram rajasasanam I vivadarthas catuspadah pascimah purvabadhakah II

Dharma, vyavahara, caritra, and royal edict: these are the four feet of the subject of a legal dispute; each succeeding one countermands each preceding one. (KAS 3.1.39)

The only significant difference between this formulation and that of Narada is that these are presented as the four feet of vivadartha, "a disputed matter," while Narada uses the term vyavahara, which for him probably meant legal procedure. Just as in Narada, however, the meanings of the first three terms are not obvious, and the author is forced to explain them in a second verse:

tatra satye sthito dharmo vyavaharas tu saksisu I caritram samgrahe pumsam rajnam ajna tu sasanam II

Among these, dharma rests on truth, vyavahara on witnesses, and caritra on the consensus of people, while royal edict is a king's command. (KAS 3.1.40)

This subsequent verse corresponds closely to NSm Ma 1.10, which was cited earlier. But, as we have pointed out, Narada has already established at NSm Ma 1.9 that he sees the four feet as elements of legal procedure. In this context, therefore, we are justified in interpreting the four feet presented in NSm Ma 1.10 as defining procedural means for reaching a verdict, as the later Smrtikaras just examined do. Such an interpretation, however, does not necessarily suggest itself for these two verses as they appear in the Arthasastra, because there the four feet are said to be those of a vivadartha, "a disputed matter." This allows for broader interpretive latitude.

Unconstrained by the context of legal procedure, it appears that KAS 3.1.40 cannot be referring to methods for reaching a decision in a legal case, at least not any method known to us. This is particularly obvious with regard to caritra, (8) which for Kautilya always means "custom." In KAS 3.1.40c caritra is said to be "based on the consensus of people." If caritra is interpreted as a way of coming to a decision, then we must imagine it as referring to a process for reaching a verdict that relies somehow on the consensus of a group of people. It is not clear how this would lead to a verdict in a way similar to admission of guilt by the defendant (as dharma might be interpreted) or the testimony of witnesses (as vyavahara might be interpreted). Based on the principle of purvabadhaka specified at KAS 3.1.39d, moreover, this "consensus of people" would be able to overturn what witnesses had testified to or, even more strangely, nullify an admission of guilt on the part of the defendant. Such is the nature of Devannabhatta's objection just examined.

We would argue that, rather than outlining methods for reaching a verdict in a lawsuit, KAS 3.1.39 must actually have been a well-established maxim articulating a hierarchical system of legal domains. The puzzling aspects of Narada's presentation of the four feet and the difficulties confronted by the later Smrtikaras concerning them can, on this ground, be 8 explained as arising from the attempt to interpret a maxim originally describing four distinct legal domains as instead describing four methods for reaching a verdict.

We note, in this regard, that the Arthasastra presents an interesting reinterpretation of the four feet just a few verses later, at KAS 3.1.43-45:

anusasad dhi dharmena vyavaharena samsthaya I nyayena ca caturthena caturantam mahlm jay et II samstha ya dharmasastrena sastram va vyavaharikam I yasminn arthe virudhyeta dharmenartham vinirnayet II sastram vipratipadyeta dharme nyayena kenacit I nyayas tatra pramanam syat tatra patho hi nasyati II

When he renders verdicts according to dharma, vyavahara, samstha, and, fourthly, edict, he will conquer the earth up to its four ends.

When, with regard to a lawsuit, the Dharmasastra contradicts samstha or the conventional treatise, (9) he should decide the case according to dharma.

When the treatise is contradicted by any edict with regard to dharma, on that matter the edict is authoritative; for there the text is nullified.

At first glance, it seems that these verses reinterpret the four feet as procedural methods for reaching a verdict in a manner similar to the later Smrtikaras: the king renders a verdict (anusasan; vinirnayet) by means of the four feet. If we look more closely, however, we recognize that the four are, in fact, still treated as specific rule sets. There are several changes made here to the formula as presented in KAS 3.1.39, but we need here take account of only a few. First, caritra has been replaced with samstha, probably still meaning "custom," and rajasasana has been replaced by nyaya, probably still meaning "edict." Second, dharma is equated with Dharmasastra and vyavahara becomes vyavaharika sastra, probably meaning "treatise on vyavahara" (3.1.44). Finally, the principle of purvabadhaka has been removed, and the relative authority of the various feet reconfigured, with dharma/Dharmasastra now countermanding caritra/samstha, as well as vyavahara/vyavaharika sastra. The status of royal edict as given at 3.1.45 is unclear, but its authority over "sastra" (whatever that may specifically refer to here) is in some fashion limited. While the exact nature of the reconfiguration is somewhat obscure, it is clear that the four feet are also seen here as distinct legal domains set in hierarchical relationship to one another. It appears that the composer of these verses also felt the need to provide an intricate reinterpretation of the four feet, even if somewhat different from that offered by the later Smrtikaras.

We believe the disagreement observed between the presentation of the four feet at KAS 3.1.39-40 and 3.1.43-45 can be explained by the textual history of the Arthasastra. As Olivelle, in the introduction to his translation of the. Arthasastra (2013), and McClish (2009, 2012) have shown, these chapter-ending verses were not part of the original recension of the Arthasastra and were added by a later redactor sometime after Manu. (10) Here the redactor has presented ten verses (KAS 3.1.38-47) on the resolution of disputes by the state. The incongruity between the presentation of the four feet (KAS 3.1.39-40) and their reconfiguration at KAS 3.1.43-45 arises, we believe, from the historical fact that the redactor of the text felt compelled to deal with an early legal theory presenting a hierarchy of four legal domains, which is not only found in the maxims at KAS 3.1.39-40 but is also present in the original recension of the Arthasastra, to which he did not subscribe. We will discuss this further in a moment, but it essentially means that the redactor of the Arthasastra was reacting to a structuring of the legal order that he found unacceptable and is, with respect at least to his opposition, fundamentally in agreement with Narada and the other Smrtikaras, all of whom struggled to explain the four feet as methods for reaching a verdict.

Our interpretation, namely that the four feet originally referred to four distinct legal domains, finds support in Kautilya's instructions for the establishment of the Bureau of Official Records (aksapatala), in KAS 2.7. Here, we find the formula dharma-vyavahara-caritrasamsthana used twice. The first instance comes in a list of information to be recorded by the Superintendent of the bureau:

The Superintendent should get the bureau of official records with separate rooms constructed facing the east or the north as a depository for registry books. (KAS 2.7.1) In that bureau he should have the following entered in the registry books:

concerning departments--the totality of their number, procedures, and income;

concerning factories--the extent of the following: gain and loss of material in the manufacturing process, expenses, additional weight, surcharge, admixture, location, wages, and labor;

concerning precious stones, articles of high value, articles of low value, and forest produce--price, sample, size, weight, height, depth, and container;

concerning regions, villages, castes, families, and associations--dharma, vyavahara, caritra, and samsthana (desagramajatikulasamghanam dharmavyavaharacaritrasamsthanam);

concerning those in the king's service--the receipt by them of favors, land, benefits, exemptions, rations, and wages;

concerning the king's wives and sons--the receipt by them of precious stones and land, and of special allowances and remedial measures during disasters;

concerning allies and enemies--payments and receipts in connection with peace pacts and declarations of war. (KAS 2.7.2)

The second instance of this formula in KAE 2.7 is clearly related to the first. Here, officials suspected of wrongdoing are investigated according to dharma-vyavahara-caritrasamsthana:

akrtahorupaharam masam akankseta | masad urdhvam masadvisatottaram dandam dadyat | alpasesalekhyanivikam pancaratram akankseta | tatah param kosapurvam ahorupaharam dharmavyavaharacaritrasamsthanasamkalananirvartananumanacaraprayogair avekseta |

If someone does not bring in the daily accounts, he should wait for one month. After one month, he should pay a fine of 200 Panas, increased by 200 Panas for each additional month. If a small amount of the recorded balance remains outstanding, he should wait for five days. If he first deposits the amount in the treasury and then brings in the daily accounts after that period, he should investigate the matter taking into account dharma, vyavahara, caritra, and samsthana; by examining the sum total; by scrutinizing the work carried out; and by inference and the use of informants. (KAS 2.7.26-29)

The only difference between this group and that presented at KAS 3.1.39ab and NSm Ma 1.10ab is the use of the term samsthana as the fourth element rather than rajasasana. In both passages cited from KAE 2.7 samsthana refers to "fixed" or "established" rules or instructions, probably in specific contrast to caritra or customary rules, a distinction Kautilya appears to draw at KAS 2.7.3 (11) and KAS 2.7.10. (12) The context there makes clear that such established rules, even if not identical with sasana as edict, nonetheless represent injunctions established and enforced by royal authority (see also KAS 2.6.14). We can, therefore, think of samsthana as comprehending bylaws and statutes established either by the local authorities or by the king himself. The connection between samsthana in this sense and rajasasana, as a command or edict of the king, is evident.

As such, it appears that we have at KAS 2.7.2 and 2.7.29 not only an earlier attestation of the four concepts that appear in KAS 3.1.39, but also their formulaic appearance in a set order: dharma, vyavahara, caritra, and samsthana/rajasasana. We can assume, therefore, that the principle of purvabadhaka is also at work in KAS 2.7, with the compound moving from more general rules to more specific ones, following the hermeneutical axiom that general prescriptions are set aside by specific ones. (13) Certainly, among the four, samsthana/ rajasasana represents the final word.

Most importantly, the context in which this compound is used in KAS 2.7 reinforces our view that these terms represent four legal domains. In KAS 2.7.2 the records keeper is instructed to record the dharma-vyavahara-caritra-samsthana of regions, villages, castes, families, and corporations. It is clear that three of these terms, dharma, caritra, and samsthana refer to normative orders or positive rule sets, specifically as they pertain to various social groups. Vyavahara is less clear, but it likely also refers to just such a normative order. The term vyavahara has several meanings in the Arthasastra, but, other than perhaps in the verses following KAS 3.1, which we know to be later additions to the original recension, vyavahara never means "judicial procedure" or "lawsuit" in the Arthasastra. Its most common meaning in the Arthasastra is "transaction," but it certainly cannot be that the records keeper was meant to record all of the "transactions" conducted by these various groups; that would have been an impossible task. (14) What is more, we have the example of KAS 2.7.29 just examined, which orders the investigation of officials suspected of malfeasance according to dharma-vyavahara-caritra-samsthana. If we take this as a copulative compound (dvandva) and assume that vyavahara is operating in the same capacity as the other terms of the compound with respect to the investigation, then we are dealing with vyavahara as some kind of legal domain.

It would follow from this that the formula dharma-vyavahara-caritra-samsthana was meant to refer to the entirety of the greater legal order in society, particularly as it pertained to the prevailing legal domains within which civil disputes could be resolved. For it cannot be that each family, caste, and village possessed its own independent samsthana, for example. Rather, the intention is for the records office to record all of the rules in force as they bore on different communities. As such, we can read dharma-vyavahara-caritrasamsthana as representing a taxonomy meant to comprehend and structure all of the various normative orders operating within society.

The verse at KAS 3.1.39, then, would seem to record the earliest reference to these same four feet specifically within the context of legal discourse. And it is clear, as discussed earlier, that these four feet do not there refer to means for reaching a verdict. Keeping in mind that the later redactor includes the subsequent verses (KAS 3.1.43-45) that still interpret the four feet as legal domains but restructure their relative authority, we can conclude not only that the four feet were understood as legal domains organized by the principle of purvabadhaka, an understanding at work in both KAS 2.7 and 3.1.39, but also that what he objected to primarily was the authority assigned to each by the principle of purvabadhaka. Here we begin to understand the motive behind Narada's puzzling reformulation of the four feet, which we discuss further below.

We then have here in both KAE 2.7 and KAS 3.1.39 an early jurisdictional map or model of the greater legal order within the Kautilyan state, at least as understood from the perspective of state jurisprudence. Not only does this provide us with a new perspective on legal thought and order in the early classical period, but it also situates us fruitfully between the domains of law and political power by addressing the issue of jurisdictional hierarchy within the plural legal order, before the identity of and relationship between dharma, vyavahara, caritra, and rajasasana/samsthana had been fully reinterpreted by the later Smrtikaras.

PART THREE: THE GREATER LEGAL ORDER IN THE ARTHASASTRA

A full explication of the greater legal order as presented in the Arthasastra would require a broader investigation of each of the four legal domains, which is beyond the scope of this paper. We note here, however, that dharma in the original formulation of the four feet likely refers generally to what is considered righteous or just in society, akin to the Asokan sense of dharma and agreeing with its use in the Arthasastra when Kautilya speaks of dharmasamyukta interactions, dharmya interest rates, and adharmistha customs. Dharma, at any rate, does not seem to refer here to Brahmanical dharma specifically or to Dharmasastra. Caritra, by contrast, refers to the accepted and recognized (or recognizable) rules of private groups; it is usually translated as "custom," but in this taxonomy caritra must refer specifically to the aggregate of various rule sets prevailing among private groups. (15) This meaning is also revealed in KAE 3.1.40, which defines caritra as resting "on the consensus of people." These rules were sufficiently explicit and recognizable that they could be recorded in the registry books kept in the state archive. We will examine vyavahara in a moment, but both rajasasana and samsthana, as already noted, refer to specific rules and directives established or put in force through the authority of the king.

Our supposition, which is consistent with the presentation of these four domains at KAE 2.7.29 and KAS 3.1.39, is that the formula dharma-vyavahara-carita-samsthana/rajasasana records the relative authority of various legal domains within state law and royal courts. Foremost among them was any rule or instruction formally enunciated by or on behalf of the king that might bear on, but may not have been necessarily enunciated with specific regard to, the case at hand. (16) In the absence of any such rule, the customary law of private groups (caritra) would be the "law" in effect. When, however, caritra was deemed--presumably by royal justices themselves--incapable of resolving the dispute at hand, the court was to refer to vyavahara. Finally, if vyavahara was insufficient, the justices would rule based on dharma: what was considered generally "just" or "right."

Hence, the greater legal order as presented in the original formulation of the four feet is framed by two legal domains, dharma and rajasasana, quite different from the legal domains represented by vyavahara and caritra. Dharma here represents a rather diffuse sense of social justice and propriety--not entirely abstract, to be sure, but somehow less defined and not linked to specific groups in the manner of caritra. As the least and, in a sense, most fundamental of the legal domains, dharma would need to be flexible and broad enough to act as the ultimate normative backstop in a dispute. In the absence of an applicable rule, presumably provided by one of the other three legal domains, the judge's discretion was at its greatest, but perhaps also most subject to the general cultural sense of justice. At the other end, the king's command was quite the opposite: specific and piecemeal, not a complete body of law per se, but a collection of independent rules and directives, perhaps representing primarily the king's ultimate right as sovereign to generate exceptions to or modify the rules of the other legal domains. The bulk of positive or specific rules in the greater legal order, then, would presumably have been provided by vyavahara and caritra, both of which would have been closer to systematic "codes of conduct" within their respective spheres.

What, then, does vyavahara mean here? The term has a narrower semantic range in the Arthasastra than it does in the later legal literature. Various forms of the term occur seventy-three times in Kautilya's text and usually indicate a "transaction" or "trade." (17) At crucial points in the text, however, vyavahara indicates specifically a "valid transaction," such as in the term vyavaharika at KAS 3.1.1. What is more, it seems also, in at least two places (aside from the passages under discussion here), to refer to something like a specific rule. In the first instance we read of nullifying an existing vyavahara and instituting one contrary to it (pratilomasthapana):

vyavaharam avasthitam va pratilomasthapanena nisamayeyuh I

Alternatively, they should get them to nullify a settled vyavahara by establishing the contrary. (KAS 11.1.13)

The second instance states that the king could, in a conquered territory, end an adharmistha (unrighteous and harmful) caritra and enact a dharmya vyavahara:

yac ca kosadandopaghatakam adharmistham va caritram manyeta tad apaniya dharmyavyava haram sthapayet |

Whatever caritra he may consider to be detrimental to the treasury and army or to be very unrighteous, he should set it aside and establish a righteous vyavahara. (KAS 13.5.14)

In both examples, we read of the establishment of a vyavahara. The first relates the replacement of one vyavahara with another, while in the second the king replaces a caritra with a vyavahara. The second example is particularly instructive. Not only is the king endowed with the authority to suspend or refuse to recognize a customary rule, but also it is clear that the king does not institute new rules concerning broad social norms within the domain of caritra, but instead within the domain of vyavahara. It also suggests a kind of equivalency between the legal domains of vyavahara and caritra as two rule sets providing general norms of conduct; this would seemingly be distinct from rajasasana/samsthana, which comprise, instead, limited, specific directives.

How, then, do we derive a specific legal domain for vyavaharal We note again that the term never refers to legal procedure or to a lawsuit anywhere in the Arthasastra. Rocher (1978: 584), in his brief but important essay on the term avyavaharika, notes that at KAS 3.1.1 the phrase vyavaharika artha clearly refers to legal cases "which are valid and legally binding." Here, we argue, one can find the normative force of vyavahara as used in the Arthasastra and understand vyavahara as a legal domain of positive law. It is clear in the Arthasastra that vyavahara most commonly represents a domain of human activity specifically centered around trade, but it is equally clear that this domain is subject to regulation. So, eleven of the seventy-three occurrences of the term occur in contexts referring to the right to engage in vyavahara, specifically praptavyavahara and atitavyavahara. The former refers to a young man or woman who has reached the age of majority and is now able to engage in valid social transactions. The latter refers to a person who is too old to engage in a valid transaction. Additionally, detailed rules are given in the Arthasastra with respect to the conditions under which a vyavahara becomes valid.

Further, the Arthasastra grants to state justices (dharmasthas) the right to regulate vyavahara. Rules for justices given at KAS 3.1.12-14 identify which individuals are allowed to engage in valid transactions. And, as Rocher (1978) points out, the text also gives state justices the power to invalidate any vyavahara conducted outside of established parameters (KAE 3.1.2-5) and to allow exceptions to these rules under special circumstances (KAS 3.1.6-11) spelled out in the following passage:

They should invalidate transactions (vyavahara) carried out in absentia and those executed inside a house, at night, in the wilderness, by fraud, or in secret.... Transactions carried out in absentia shall be valid when a debt is secured with an absent pledge or when they are viewed as not blameworthy. Transactions executed inside a house shall be valid when they are connected with inheritance, consignments, deposits, and marriage or contracted by secluded women and sick persons of sound mind. Transactions executed at night shall be valid when they are connected with forcible seizure, trespass, brawl, marriage, and royal command, and when they are contracted by individuals carrying out business in the early part of the night. (KAS 3.1.2-8)

The text also articulates specific positive rules and requirements for a transaction to be deemed valid:

In each respective group, however, all transactions shall be valid when they are executed at the proper place and time, by someone with proof of ownership, observing all the formalities, with valid documentation, and noting down the appearance, distinctive marks, quantity, and quality. (KAS 3.1.15)

These rules delineate the boundaries of vyavahara as a legal domain in the Arthasastra. Here the state defines a public space for transactions in which actors are constituted legally by and through rules enforced by the authority of the state. Keeping in mind the broader, non-legal sense of vyavahara as "commerce" or even "dealings," it should be emphasized that we are not proposing that the state created vyavahara as a domain of rule-governed activity, merely that it took upon itself the role of articulating and enforcing its boundaries and rules.

Regarding the rules of vyavahara specifically, we read at Arthasastra 3.1.1 that, aside from simply nullifying or validating transactions, the king's justices are specifically commanded to investigate cases concerning transactions deemed valid (vyavaharika). It is clear that what follows, in chapters KAS 3.2-20, are precisely the rules or jurisprudential framework based on which justices would reach a verdict in these cases. As such, we argue that the legal domain of vyavahara referred to in KAS 2.7.2 and 2.7.29, as well as in the original formulation of the four feet at KAS 3.1.39, is reflected in the rules and/or jurisprudence to be found in the third book of the Arthasastra.

In this model, vyavahara represents a positive legal domain specifically in force with reference to the authority or sovereignty of the state. Whereas the legal domain of caritra would have comprised many independent sets of customary rules, each of which pertained only to one specific group, vyavahara seems to have been a more universal set of rules applying to all valid transactors that was available when caritra failed to provide a legitimate framework for the resolution of a given dispute. To this extent, the Kautilyan state clearly recognizes the limitations of the customs of private groups, while at the same time establishing its own, more comprehensive, legal framework meant to regulate transactions occurring across or outside of these customary legal frameworks. It is this sphere of public transaction, outside the authority of any given private group, that the state regulates through its legalization of vyavahara. Hence, we can account for the transition from vyavahara as "transaction" to vyavahara as something like "transactional law." The value, perhaps even necessity, of such a system for the state is self-evident.

Vyavahara, in this model is the law of the Kautilyan state, albeit not produced systematically through legislation, nor necessarily "black letter law," nor ever completely effacing the limited authority of private groups to impose their own rules on their members. Rather, vyavahara is a legal domain in force through the authority crafted by the systematic reflection of jurists on observed practices regarding commerce within the public sphere and functioning to resolve disputes that private legal institutions could not. And it is with respect to this that we would venture more boldly to suggest that the origin of systematic jurisprudence in "Hindu law" lies with the processes through which the state asserted the right to articulate and enforce the rules of vyavahara, the realm of public commerce, through its own jurists and legal institutions and created vyavahara as a legal domain of the state.

CONCLUSION: THE FOUR FEET AND INDIAN JURISPRUDENCE

We can now return to the enigma we began with: the double usage of vyavahara in Narada's verse (NSm Ma 1.10). One can, of course, only offer an educated guess as to Narada's intentions, but it appears that he had inherited, on the one hand, a well-established traditional list of four items: dharma, caritra, vyavahara, and sasana, and, on the other, vyavahara as the technical term for legal procedure and court proceedings. Further, there were two ways of conceiving the four feet of anything: either as four constitutive parts (which is how Yajnavalkya interpreted it) or as four things on which something stands, like the four feet of a cow. The latter meaning is apparent in Manu's statement about the four feet of dharma. Narada appears to take his four feet in a similar sense to mean four factors that are the bases for a court verdict. Given that vyavahara as court proceeding has its culmination in the verdict (nirnaya), we can see how vyavahara may have been viewed through that lens. The entire court procedure culminating in a verdict rests on four factors, and those that are listed later have greater force than those listed earlier in reaching a verdict. This would have been quite accurate even if we assume that the four were viewed, as they were originally intended to be, as different domains of law. If a litigant based his case, say, on vyavahara, while his opponent based his case on caritra or rajasasana, everything being equal, the latter would win the case. The further, and perhaps injudicious, step taken by Narada and later jurists was to interpret the four as procedural means for reaching a verdict. It is the last interpretive step of these jurists that became the source of the confusions and labored interpretations that we have seen above.

It has long been recognized that the Arthasastra possesses the first full extant legal code in South Asia. And it is equally evident that its most enduring influence on later culture lies precisely with what came to be known as the vyavaharapadas or "titles of law" recorded in its third book. It is possible, then, to see in the Arthasastra's third book the initial, or at least early, results of the efforts by states to establish themselves and to promote order and control in their realms through systematic jurisprudence, just as it is possible to assume that states played a decisive role in the development of systematic jurisprudence in South Asia. According to the original formulation of the four feet and the greater legal order they collectively describe, the development of vyavahara by states may well have played the central role not only in originating the legal tradition as we know it in classical South Asia, but in giving order to the multiplicity of legal domains operating within the state.

Having, it is hoped, clarified Narada's puzzling presentation of the four feet, we might venture further to address his motive. The chief evidence lies, perhaps, in verses KAS 3.1.43-45 examined previously. These verses reject not so much the existence of four hierarchical legal domains denoted as the "four feet," but the specific authority assigned to each. While aspects of these verses are difficult to understand, it is clear at least that their composer objected primarily to the principle of purvabadhaka, whereby the later among dharmavyavahara-caritra-rajasasana countermands the prior. His reformulation gives dharma precedence over vyavahara and caritra and limits the authority of the king's edict. Why does he do this? The answer, we would argue, is that he associated dharma with Dharmasastra (KAS 3.1.44), and it was, we suggest, unacceptable to him, writing in a later period under different intellectual conditions, that either custom (caritra/samstha) or state law (as vyavahara/ vyavaharika sastra) could overrule Dharmasastra. There is, in other words, a crucial semantic distinction between the dharma of the original formulation of the four feet ("righteousness") and the dharma of Brahmanical law. With later jurists associating dharma specifically with Brahmanical law as opposed to a general sense of righteousness, the original formulation of the four feet would have been either unacceptable or nonsensical. Although the strategy of Narada's verses is different from that of KAS 3.1.43-45, the result is the same: the nullification of the hierarchical structuring of legal domains present in the original formulation of the four feet. Narada and the later Smrtikaras, as well as the redactor of the Arthasastra, were confronted with a legal maxim that, at least within Brahmanical jurisprudence, could not mean what it appeared to mean.

The hermeneutical transformations of the four feet wrought by the Smrtikaras become highly significant insofar as they obscure the intimate relationship between vyavahara and the state that we have proposed here. Moreover, the later legal tradition emphasizes the traditional origins of the rules of vyavahara and sanctifies these traditions by association with the concepts of Brahmanical dharma and Vedic authority. This has led to the assumption that dharma has always been the key concept within South Asian jurisprudence, which it certainly does become, and that the legal tradition was born out of Brahmanical reflection on their own customary laws. What we are suggesting here is that, in terms of the early development of South Asian jurisprudence, particularly its initial systematization in the Arthasastra, it is vyavahara--not as legal procedure or lawsuit, but in an earlier and more elementary meaning as rules governing public transactions--that is the central term and that it leads us to identify the origin of systematic jurisprudence in the manner through which the state created a public space by systematizing and enforcing rules of public commerce.

ABBREVIATIONS

BrSm Brhaspati Smrti. Edited in Aiyangar 1941.

KAS Kautilya, Arthasastra. Edited in Kangle 1969. Translated in Olivelle 2013.

KSm Katyayana Smrti. Edited and translated in Kane 1933.

MSm Manu Smrti. Edited and translated in Olivelle 2005.

NSm Narada Smrti. Edited and translated in Lariviere 1989.

NSm Ma The initial Matrka section of the NSm.

YSm Yujnavalkya Smrti. Edited in Pandey 1967.

REFERENCES

Aiyangar, Rangaswami. 1941. Brhaspati Smrti (Reconstructed). Gaekwad's Oriental Series, vol. 85. Baroda: Oriental Institute.

Devannabhatta. Smrticandrika. Ed. L. Srinivasacharya. 6 parts. Mysore: Government Branch Press, 1914-1921. Tr. J. R. Gharpure. 6 parts. Bombay: Collection of Hindu Law Texts, 1946-1955.

Derrett, J. D. M. 1968. Custom and Law in Ancient India. In J. D. M. Derrett, Religion, Law and the State in India. Pp. 148-70. London: Faber.

Kane, P. V. 1933. Katyayanasmrtisaroddharah or Katyayanasmrti on Vyavahara. Poona: Oriental Book Agency.

--. 1962-75. History of Dharmasastra. 5 vols. Poona: Bhandarkar Oriental Research Institute. Kangle, R. P. 1969. The Kautiliya Arthasastra, pt. 1: A Critical Edition with a Glossary. Bombay: University of Bombay.

Lariviere, Richard W. 1989. The Naradasmrti, pt. 1: Edition; pt. 2: Translation. Philadelphia: Univ. of Pennsylvania, Dept, of South Asia Regional Studies.

Lingat, Robert. 1962. Les quartre pieds du proces. Journal asiatique 250: 459-503.

McClish, Mark. 2009. Political Brahmanism and the State: A Compositional History of the Arthasastra of Kautilya. PhD diss., Univ. of Texas, http://repositories.lib.utexas.edu/handle/2152/10568

--. 2012. Is the Arthasastra a Mauryan Document? In Reimagining Asoka: Memory and History, ed. P. Olivelle, H. Ray, and J. Leoshko. Pp. 280-309. Delhi: Oxford Univ. Press.

Olivelle, Patrick. 2005. Manu's Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra. New York: Oxford Univ. Press.

--. 2013. King, Governance, and Law in Ancient India: Kautilya's Arthas'astra. New York: Oxford Univ. Press.

Pandey, U. C. 1967. Yujnavalkya Smrti Edited with Vijnunesvara's Mitaksara. Kashi Sanskrit Series, vol. 178. Varanasi: Chowkhamba Sanskrit Series.

Rocher, Ludo. 1978. Avyavaharika Debts and Kautilya 3.1.1-11. Journal of the Oriental Institute (Baroda) 28: 17-20. (Cited after rpt. Studies in Hindu Law and Dharmasastra, ed. D. Davis. London: Anthem Press, 2012.)

--. 1979. caritram pustakarane. Indologica Taurinensia 7: 345-50. (Cited after rpt. Studies in Hindu Law and Dharmasastra, ed. D. Davis. London: Anthem Press, 2012.)

PATRICK OLIVELLE, UNIVERSITY OF TEXAS, AUSTIN

MARK MCCLISH, BIRMINGHAM-SOUTHERN COLLEGE

(1.) The classification of something into four designated as four feet, evoking the image of an animal standing on four feet, is a common feature of classical Indian thought. Thus we have dharma with four feet (MSm 1.81-82) and medicine with four feet (physician, medicine, attendant, and patient; Caraka Samhita, Sutrasthana, 9).

(2.) Normally, the burden of proof would fall on the plaintiff. But if a particular kind of plea is entered, e.g., if the defendant admits that he borrowed the money but claims that he paid it back, then the burden may shift to the defendant.

(3.) The reference here is probably to the plea of admission (guilty plea), which is given the technical term satya, probably because the defendant says "satyam" ("True"), in assenting to the claim made in the plaint.

(4.) ekaiko dvividhah proktah kriyabhedan manisibhih I aparadhanurupam tu dandam ca parikalpayet II samyag vicarya karyam tu yuktya samparikalpitam I pariksitam tu sapathaih sa jheyo dharmanirnayah II prativadi prapadyeta yatra dharmah sa nirnayah I divyair visodhitah samyah nirnayah samudahrtah II pramananiscito yas tu vyavaharo sa ucyate I vakcchalanuttaratvena dvitryah parikirtitah II anumanena nirnitam caritram iti kathyate I desasthitya trtiyas tu sastravidbhir udahrtah II pramanasamatayam tu rajajfia nirnayah smrtah I sastrasabhyavirodhena tathanyah parikirtitah II (BrSm 9.2-7)

sastram kevalam asritya kriyate yatra nirnayah I vyavaharah sa vijneyo dharmas tenapi vardhate II desasthityanumanena naigamanumatena ca I kriyate nirnayas tatra vyavaharas tu badhyate II vihaya caritacaram yatra kuryat punar nrpah I nirnayam sa tu rajajna caritram badhyate taya II (BrSm 1.19-21)

(5.) nanv evam tarhi uttarah purvabadhakah iti naradavacanam asambaddham tattvarthanugunyatisayena purvasyaivottarabadhakatvat II

(6.) Interestingly, as we will see, the four terms we are dealing with first occur in the Arthasastra (KAS 2.7.2) precisely in the context of writing them in a record book.

(7.) yada punah paradarabhigamanam krtam anena saksino vidyanta iti kascid abhiradih kenacid abhiyukto brute satyam etat saksibhasitam tathapi naham dandyah caritrabalan mayaitat krtam I nivesitam ca pustake rajna tad iti caritrena vyavahara badhyate vyavaharatah praptasya dandasya caritrato nivrttatvat II

(8.) See Rocher's (1979) article, "caritram pustakarane," on difficulties in rendering caritra as one of the four feet.

(9.) This may well be a reference to the Book 3 of the KAE.

(10.) Arguments for placing the redactor of the KAE after Manu are given in McClish 2012.

(11.) tatah sarvadhikarananam karaniyam siddham sesam ayavyayau nivim upasthanam pracaram caritram samsthanam ca nibandhena prayacchet [parallel] "From that bureau he should deliver in writing to all departments the records of their estimated revenue, established revenue, outstanding revenue, income and expenditure, balance, additional revenue, procedures, caritra, and samsthana." (KAS 2.7.3)

(12.) pracaracaritrasantsthanany anupalabhamano hi prakrtah samudayam ajnanena parihapayati utthanaklesasahatvad alasyena sabdadisv indriyarthesu prasaktah pramadena samkrosadharmanarthabhirubhayena karyarthisv anugrahabuddhih kamena himsabuddhih kopena vidyadravyavallabhapasrayad darpena tulamanatarkaganitantaropadhanal lobhena II "For, an official may cause a loss of revenue--if he is unacquainted with the procedures, caritra, and samsthana, through ignorance; if he is incapable of enduring the travails of entrepreneurial activity, through laziness; if he is addicted to sensual objects such as sound, through carelessness; if he is scared of agitations or of acting against dharma or artha, through fear; with regard to those who come to plead their cases, if he is inclined to favor them, through love, and if he is inclined to hurt them, through anger; if he relies on his learning, wealth, or connection to a royal favorite, through arrogance; and if he inserts discrepancies in weights, measures, estimates, and accounting, through greed." (KAS 2.7.10)

(13.) The rule is often formulated as utsargad apavado baliyasi, "an exception has greater force than a general rule." [Mimamsa Kosa II: 1110)

(14.) Interestingly, at KAS 2.35.3, the Revenue Officer is to record, among other things, certain transactions taking place among the king's subjects. Crucially, however, he is not told to record vyavahara specifically, which, given the exhaustiveness of the list, could easily have been enumerated. It is equally unlikely that vyavahara refers to something like "legal precedent," which does not appear to have any basis in the legal thought of the period.

(15.) This is the domain of law that is called samaya in later literature.

(16.) This principle is clearly articulated by Manu: "Therefore, when the king issues a dharma for those he favors or an unfavorable one for those he does not favor, one should not cast doubt on that dharma." (MSm 7.13)

(17.) Most typically, this is some kind of commerce, although we find also samvyavahara referring to more general social interactions. It is unclear whether it also has this meaning in the compound danda[bala]vyavahara at KAS 8.1.34, 8.1.38, 9.2.4, and 13.3.15.
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