Raja Dharma: The Duty of the Ruler
Chapter Seventy
Syllabus topic 4, "The Concept of Justice"
Pages 283 to 286 of 356
In one line
The classical Indian position is that the king is not the source of the law but its servant, which is the rule of law stated two thousand years before Dicey.
In the wording a student can write in an exam: raja dharma is the dharma of the ruler. Its content is that the king exists for the protection of his subjects; that he is bound by dharma and does not make it; that his function in adjudication is to apply dharma and not his own will; that he owes duties of protection, welfare and impartiality; and that a king who departs from dharma forfeits the obedience he would otherwise be owed. The classical maxim is that the law is the king of kings.
The five elements
1. The king exists for protection. The classical justification of kingship is functional: in the absence of a ruler the strong devour the weak, which the texts call matsya nyaya, the law of fishes. The king is instituted to prevent it. His authority is therefore conditional on performing that function, which is a contractual rather than a divine account of sovereignty and is worth comparing with [The Liberal Contractual Tradition].
2. The king is under dharma. He does not create it. The most quoted formulation is that dharma is the king of kings, mightier than the king, so that even a ruler is subject to it. This is the proposition that makes the tradition relevant to modern constitutional law.
3. In adjudication he applies dharma, not his will. He is to decide according to the sources, assisted by those learned in them, and not according to preference, anger or favour. The texts require him to sit with assessors, to hear both sides, and to give reasons, which is procedural justice stated in classical terms.
4. He owes affirmative duties. Protection of person and property; relief in famine and calamity; protection of the weak, of widows, of children, of the aged and of those without support; maintenance of the conditions of livelihood; and the taking of taxation proportionate to what is produced, the classical image being the bee taking honey without destroying the flower.
5. Departure has consequences. A king who fails in raja dharma is not owed obedience in the same way, and the tradition contains statements permitting resistance to a ruler who abandons dharma. The remedy is not judicial in the modern sense, which is the tradition's weakness, but the principle that authority is conditional is stated clearly.
The comparison with the rule of law
| Raja dharma | Dicey's rule of law | |
|---|---|---|
| Ruler's position | under dharma, which he does not make | under the ordinary law, administered by ordinary courts |
| Source of the standard | Sruti, Smriti, Sadachara, Atmatushti | the common law and the constitution |
| Content | protection, welfare, impartial adjudication, proportionate taxation | absence of arbitrary power, equality before the law, rights secured by ordinary law |
| Enforcement | none institutional; obedience conditional | courts, with judicial review |
| Modern Indian expression | Article 51A and the Preamble's justice | Articles 13, 14, 32, 226 |
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