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Equity In Judgments Based On Procedural Propriety In Vedic Law – A Reasonable Man’s Perspective

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By Author: Premkumar Nadarajan
Total Articles: 19
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The Vedas describe legal procedure or the exercise of the enforcement of the laws of Dharma as being guided by the objectivity of the reasonable man, but leaves open the grey area of probable equitable subjectivity in assessment of the actual outcome in the trial and sentencing itself. The reasonable man in law when in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling the reasonable man to see and perceive the transition of raw subjectivity to a logical and sensible objectivity.The immediate essentials of an act of civil procedure in Vedic society are the parties to the action combined with the methods which they adopt, the intellectual arbiters and the court which gives the judgement. Of these three the last is often the most significant, as giving the key to the theory of the jurisdiction exercised, and as it is the primary condition of justice being done at all, and as its character is less variable than that of the other two elements, it demands an early consideration. The Vedic justice system has ...
... the first characteristic which we have mentioned in an exceptional degree; its foundations in itself lays down a theory of justice, and its composite character contains the germ of that distinction which has now become well-nigh universal — the distinction between judge and jury, law and fact. From the very earliest times to which Vedic tradition ascribes a fundamental division of competence between the magistrate on one hand and the index or indices on the other; this turns into an indicium. The original theory which underlay this division of power between the skilled interpreter and the layman of practical common sense, which, whether it actually exercised an influence on the development of the modern jury-system or not , was yet one of the revelations of new principles that Vedic Law evidences, has not unnaturally been the subject of theories of much investigation and conjecture. We may on one hand at set aside the view that it is the outcome of any abstract principle of justice, of a desire to separate for ideal ends . It seems that the reasonable man may then be a conduit of the province of interpretation rather than that of principle. For, even assuming that the unskilled reasonable man is a better applier of principle than the skilled subjective ruler, the supposition that the primitive former’s mind was perplexed with the solution of such an abstract difficulty is wholly inadmissible. Theories of its origin based on the assumption of practical or political difficulties demand more respect. It has been thought that the object was to create an essential division of the Vedic arbiter’s power for the purpose of guarding against unjust and arbitrary sentences on the part of the ruler. In this case the institution of the Vedic tradition would be akin to the collegiate principle which was introduced into the magistracy, and would have been regarded as an added safeguard to the ethical foundations of equitable reasons within the Vedic context. This view, apart from the somewhat anachronistic idea of the ‘essential division of the judicial power,’ is closely akin to another which represents the institution of the index as the outcome of a desire for popular control; the simple cognition of the magistrate did not content the parties; hence the creation of the special index and of the boards of the intellectuals and agnostics alike in the Vedic tradition. This theory represents the institution of the laws as analogous to that of the appeal to the people; it brings it into relation with the logic and reason of objectivity and with the later institution of the indices of the criminal courts. This division was introduced merely to lighten the burden of the arbiter’s duties: for without the index civil jurisdiction could not have been transacted by even at least two civil arbiters of the Vedic structure. The arbiter’s appointment was necessary only when doubtful facts had to be settled; where there was no doubt as to the matter of fact the ruler delivered the judgement himself, for, in this case, he could pronounce a judgement as quickly and as certainly as he could draw up a formula for the sentencing. The questionable character of the latter part of the statement we shall examine later; but it is obvious that the motive here given for the institution of the index in connexion with the arbiters applies with equal force to the period when the rulers themselves were the supreme heads of the judicature, and a fortiori to the epoch when the emperor was the only judge. The element common to all these explanations is that they represent the division of the judicial authority as an artificial institution, introduced at a time when the Vedic state had a definite political organization. The arbiter in no uncertain terms was coined as a miniscule dictator so to speak, a as the master of the people, more generally as the ‘Regulator’ of things human and divine, and by titles with which we are more expressly concerned, for they mark him out as the supreme head of jurisdiction, those of arbiter and executioner. The ruler, although the true head and representing the active intelligence of the State, exercising, an imperative of the reason over the passions of the administrative body, yet cannot be regarded as more than the arbiter and the minister of the people. Even the royal insignia, adopted by the kings of Vedic and even Dravidian dynasties, could be assumed by them only after ratification by the intellectuals of the King’s court and people; and, although officers appointed for special purposes were not judges per se but strictly delegates of the king, yet the permission to exercise such power of delegation could be gained only through an edict of the intellectuals of the King’s court . The citizens of the Vedic society, too, possessed a share in criminal jurisdiction; whether their intervention took the form of an exercise of the truly sovereign right of pardon, or whether it was due to a long- standing privilege of expressing ideas on the trying of criminal cases as a final symbol or outcry of appeal, makes the objectivity of the reasonable man of much importance in those terms.

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lecturer at a private learning institution ( UTAR).

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