Punishment and Expiation: Overlapping Domains in Brahmanical Law

Abstract

It has long been debated whether it is possible to distinguish between secular and religious elements in 'Hindu law'. At present, the general view is that law cannot be separated from religion in the Indic context, not least because, according to the Shastras, Veda is the chief source of Dharma. Nevertheless, it is recognized that the Dharmashastra incorporates diverse elements: (a) explicitly stated norms of two types: (1) rules derived from priestly ritual codes, and (2) precepts drawn from the Arthashastra (political science) tradition; as well as (b) recognition of the authority of customs specific to region, caste, or profession. Although all these are subsumed within the Brahmanical system, we can discern different conceptions of the relative authority of brahmins and the ruler. This distinction of overlapping spheres of authority is reflected in the treatment of misconduct: the same act may entail punishment by the king as well as distant but automatic consequences due to the operation of karma, consequences that can be averted only by expiatory ritual performances. The ritual impurity of a sin also can have social consequences such as stigma or ostracism, which is likewise removed though expiation. Despite the interlinking of these spheres, their fundamental distinctness is acknowledged in the legal process prescribed in the codes as well as in the glimpses we have of actual legal practice in pre-modern India. Although the Dharmashastra overall represents a system of natural law based on the Brahmanical religious cosmology, it contains within it elements derived from a seemingly positive legal system based on the supreme authority of the king in settling disputes. Further, the distinction between brahmin and royal authority corresponds to a distinction, not between religion and law, but between two parallel and complementary legal subsystems, each with its own set of standards, procedures, and sanctions.

Keywords: religious, law, priestly, punishment, penance, expiation, crime, sin, India, Brahmanical, authority, king, royal, secular, ancient, natural law, positive law

JEL Classification: K14, K42