The Jurisprudence of Mahabharata reveals that it is a tale of imperfect humans, vying to find a balance between dharma and adharma.
People in modern society associate law with the enactments made by lawmakers. They are able to distinguish between legal and moral rules, the former being one that are enforced by courts, while the latter sustained solely by social pressure and individual conscience. However, this has not always been the case. The people in olden societies considered that certain customary rules were binding upon them. These rules were not the kind that courts, in the modern world, would enforce. It was also not possible to determine how these rules came into existence. However, from the viewpoint of the people who followed them, these rules were as obligatory as laws are for the modern world. These rules of olden societies can be equated to the concept of dharma in Mahabharata.
INCERTITUDE BETWEEN DHARMA AND ADHARMA
The great Hindu epic of Mahabharata is said to be a tale of the fight of good against evil, or dharma against adharma. On closer scrutiny, it is the tale of imperfect humans, and their struggle to rise above themselves. The distinguishing feature of Mahabharata is that unlike other religious texts, the characters of Mahabharata are more like the mortals akin to us, fallible and errant. They face constant moral dilemmas and choices in decisions that are to be made in their day to day lives. Yudhishthir is physically not the strongest of the Pandavas, but he is most convinced that dharma should be followed. Yet, when the Gandharva Chaitrath imprisons the Kauravas who had merely come to the forest to make a mockery of the Pandavas, Yudhishir orders his brothers to go and get them released. He explains this by saying that although it is their dharma to avenge the injustice done to them, yet it would not be proper to let the Kauravas, who are after all their brothers, be murdered by Gandharvas. Another such instance is seen in the Karnaparva, when Yudhishthir is angry with Arjuna and says that the only reason he went to war was his confidence in Arjuna and his bow, Gandiva. The word of Arjuna being the best archer in the world was proving to be hollow. Thus, Yudhishthir insulted not only Arjuna, but also Gandiva. Arjuna, now had to choose between killing his elder brother, and breaking his vow – the vow of killing anyone who insulted Gandiva. The Kshatria Dharma demanded Arjuna to keep his vow and kill his elder brother, but Krishna intervened and told him that it is true that dharma must be followed, but it is not unconditional and absolute, especially when it comes to grossly unjust or criminal acts such as patricide of fratricide.
There is a large scope of congruence between modern day jurisprudence and the jurisprudence of Mahabharata. As the Pandavas constantly grapple between the scope of Dharma in war, so do the judges today, facing the constant question of morality in law.
DHARMA AND MORALITY
The above questions were raised by Draupadi in front of an assembly hall, full of elderly, learned men, most of whom were kings and/or great warriors, when she was dragged into the sabha as Dharmaraja Yudhishthir loses her in a game of dice. Her question is the question of Dharma in the sabha, which is both, men’s gambling hall as well as the courtroom to dispense justice. Although Dharma as a concept has a myriad of meanings, and is subtle and untranslatable, yet it has been defined as the cosmic power behind the ruling class. It is called Ksatraya Ksatram, i.e., the power behind the ruling class.
Her first question goes unanswered, because of which she raises the second moral question. However, even the learned statesman Bhishma avoids the question by stating that Dharma is subtle, hence there is no clear answer. Bhishma speaks of Dharma in a lengthy treatise in the Shanti Parva, but the same Bhishma is tongue tied on Draupadi’s demand for an explanation for the adharmic way in which she had been dragged and humiliated in the presence of the royal household, the so-called custodian of dharma.
This has a likeness to the position of our courts when the question of the place of morality in law arises. However, the society constantly faces such dilemmas and the courts cannot afford to take a Bhishma like approach, reveals our study of jurisprudence of Mahabharata. Even if dharma is subtle, legal reasoning and judicial decision-making is inevitable and cannot be avoided. The question as to whether a mentally challenged woman has a right to abortion may involve a question of dharma, but the courts cannot wash their hands off it and deny a definitive answer. Lawfulness doesn’t necessarily mean righteousness or vice versa. Similarly, the concept of dharma can be said to be the counterpart of the modern-day concept of morality in law with regard to the assertion of the Natural Law Theory, that there is a connection between law and morality.
The classical natural law theory was, for a long time, associated with God, that is until Hugo Grotius, the father of international law, delinked the connection explicitly and forcibly, by stating that –
“What we have been saying would have a degree of validity even if we should concede that, which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.”
Contrary to popular belief, Mahabharata does not associate the concept of dharma with God, which stands in contrast to the old concept of morality in natural law. Draupadi, when humiliated in court, did not plead to God, but questioned the dharma of the kings. Neither do any of the others witnessing the incident make any reference to God.
DHARMA AND THE LAW
Though the most famous verse to “be intent on the action, not on the fruits of action” in the Krishna-Arjuna dialogue moments before the war indicates that the end does not justify the means, it is not the most compelling argument. Arjuna remains unfazed. Krishna’s ultimate argument is that of destiny where Arjuna realises that he is merely a tool for what has already been ordained. Reliance upon the argument of destiny may indicate entry of God through the backdoor. However, the final words of Krishna to Arjuna are instructive — invoking the criticality of human agency he says: “This knowledge I have taught is more arcane than any mystery — consider it completely then act as you choose.” The ball is in Arjuna’s court now.
Further, Bhishma, in the Shantiparva says that what is dharma and what is adharma must be decided according to one’s own intelligence. Therefore, the dharma of one may be adharma for another. There is also a possibility that the same act in one set of circumstances, might qualify as dharma, but would not in another set of circumstances. But this means that dharma and adharama both arise from intelligence and are also known through it. Thus, the jurisprudence of Mahabharata enunciates the reasoning that law and morality are known through reason and experience and one cannot restrict himself to one branch of knowledge for illuminating the path.
In another episode of the epic, Vishwamitra, starving and desperately hungry because of the famine, is in search of food when he finds a fresh piece of dog meat outside a hut. He is about to take the meat and leave, when Chandala, the owner of the hut, warns him that doing so would spoil his dharma, and years of his penance would be destroyed. Vishwamitra replies that in extraordinary situations, when a person can save his life, he should, even when the means do not testify to the touchstone of Dharma. This is because life is preferable to death, and dharma can be attained only when one is alive. Bhishma reiterates this story to Yudhishthir in the Vanaparva, to explain to him that the shastras cannot be read in isolation. There are various shrutis and the opinion of no sage can be taken as conclusive. The totality of the shastras has to be considered to obtain wisdom that is not rigid and mechanical, much like the position of the modern-day courts in stating that totality of the law, the letter and the spirit, has to be kept in mind before coming to a decision.
When Draupadi is summoned in court by a messenger after Yudhishthir had lost her, she asks the messenger to get answers to her question, without which she would not come to court. The first question, as already stated, is ‘who did you lose first? Yourself, or me?’ But this question, when presented in the court by the messenger, is changed in form, and is asked as,‘Whose ownership was lost first?’ Thus, the messenger changes Draupadi’s question into a legal question of ownership. Draupadi further adds to this dilemma by questioning Yudhishthir’s right over her, especially after he had lost himself in the game. Thus, Draupadi, rather than focusing on the moral aspect of Dharmaraja’s action, shifts focus on the legal aspect, raising the question of the right of husbands over wives and the independence and liberty of wives. The question of the legality of Yudhishthir’s stake was first raised by Vidura, who urged the sabha to answer Draupadi’s questions. Bhishma, used to solving matters of state, goes on to say that no matter what state a husband is in, his ownership over his wife does not cease. Karna reiterated this view by saying that as Yudhishthir had lost all his possessions as a free man when he lost himself, he had already lost Draupadi (abhyantar ca sarvasve draupadi). Thus, both Bhishma and Karna, treat Draupadi as a thing capable of being owned in their answers.
As per the jurisprudence of Mahabharata, the ancient Hindu law does not concerns itself with the complicated theories of ownership. However, Roman law defines ownership or dominium as the absolute right over a thing, Black’s Law Dictionary defines ownership as an entity with an asset’s or thing’s legal claim or title. Thus, ownership, in essence, is concerned with respect to an object or thing. However, Austin defines things as such permanent objects, not being persons, as are sensible or perceptible to the senses – permanent objects in the sense that they are perceptible repeatedly. Thus, going by Austin’s definition, Draupadi does not qualify as a thing, and could not be owned by anybody. What then, was the legality of Yudhishthir’s act, of putting not only Draupadi, but also his brothers at stake?
The philosophy of Mahabharata is acutely empowering. It places reliance on human wisdom, to answer complex questions. As Krishna placed the ball in Arjuna’s court for deciding what is to be done, so does the answer to the complex question of the scope of morality in law, depend on the wisdom of judges. Thus, the Mahabharata shifts the focus from formalism to realism. Formalism postulates that law is a closed and gapless system of rules that can be applied logically, without taking into account any policy or moral considerations. On the other hand, realists claim that law in law books is very different from law in real life. The real law, according to them, depends on the judge’s interpretation of facts in particular cases. Realism, and the Mahabharatan philosophy, both, do not believe that law has an authority and should be obeyed verbatim. It relies on human intelligence and the voice of reason for the application of the black letter law. The philosophy of Mahabharata is opposed to the contention that a norm would lose its authority if the subjects of the norm decide what that norm is.
Another truth that Mahabharata teaches us through Vishwamitra in Shantiparva, as mentioned above, is that law cannot merely be studied. It has to be continuously tested through reason to determine to ambit of its applicability. There is no absolute or rigid law. The law of ordinary life is different from the dharma in crisis situations, and such situations are infinite, so how can law be reduced to a mere rigid code? This is reflected in modern society where the law in peace is different from the law in war or during emergency, when most fundamental rights enjoyed by an individual on a day to day basis, are suspended.
The Mahabharata does not reflect a black and white world view. It acknowledges the grey area. It does not intend to fully settle the dispute of Dharma. The jurisprudence of Mahabharata grapples with the dilemma of choosing the lesser of the two evils. It is not the story of dharma versus adharma, but the story of the victory of the lesser adharmic. Should the Kauravas, though wrong, be defeated by impure means? Lord Krishna’s answer is affirmative, owing to the choice of lesser evil. This is similar to Professor H.L.A. Hart’s remark in the celebrated Hart-Fuller debate that the choice of lesser evil could be, in certain circumstances, preferable.
Thus, the Mahabharata, by posing questions about the role and nature of dharma, through the constant dilemma faced by the characters, and by answering the questions thus posed at the same time, can be instrumental in answering the modern questions of the scope and nature of law, and the presence of morality in law.
 Mahabharata, Book VIII.
 Draupadi, The Mahabharata, II.61.7.
 Draupadi, The Mahabharata, II.62.12.
 PATRICK OLIVELLE, THE SEMANTIC HISTORY OF DHARMA: THE MIDDLE AND LATE VEDIC PERIODS 75-81 (2013).
 Emilt T. Hudson, Disorienting Dharma: Ethics and the Aesthetics of Suffering in the Mahabharata (2013).
 Book XII, Mahabharata.
 Suchita Srivastava v Chandigarh Administration. (2009) 9 SCC 1.
 Grotius, The Law of War and Peace, prolegomena, p 11.
 Gurcharan Das, The Difficulty of Being Good: On the subtle art of dharma (2009), at 95.
 Gurcharan Das, The Difficulty of Being Good: On the subtle art of dharma (2009), at 99.
 Book XII, Mahabharata.
 Shantiparva, Book XII, Mahabharata.
 Book III, Mahabharata.
 Draupadi, Mahabharata, II.61.
 Draupadi, Mahabharata, II.61.
 Shalini Shah ,The Making of Womanhood- Gender relations in Mahabharata (2012).
 Karna, The Mahabharata, II.62.