O nastanku protoprava u staroj Indiji

Abstract

In ancient India there was no law stricto sensu. Indian proto-law is a sort of ethico-legal phenomenon, marked by religious origin, blurred distinctions between moral and legal elements, limited domain of regulation and jurisdiction (i.e. the most important conditions of the caste system) and the Hindu legitimation basis (the karma principle, sacrificial rituals, etc.). The reasons for the nonexistence of universal law in ancient India were the lack of transparency of the basic social conflict and the absence of the balance of power among the main social groups. The only social group interested in law creating was the Brahman caste, and it was not involved in 'open' conflict with any of the other powerful social actors (first of all, the king and the Ksatriyah caste), which would have to be 'legally' regulated. However, the Brahman caste was not the most powerful social group in the ancient Indian society, and for that reason its proto-legal regulation of the caste system was limited by regulation - very often arbitrary and casuistic - and jurisdiction domains of other (especially professional) social groups and the king himself.