Medhātithi discusses corporeal punishments whenever Manu does, but in two different ways: At times (e.g., in his commentary on MDhŚā 9.248) he just repeats what Manu says, without adding further elaborations and without attempting a general argument about the overall consistency of the punishments suggested. At other times, he allows the jurist and philosopher of law within himself to talk and gives more details about the purpose of the punishments. These are the passages I will focus on in this post.
1. Terminology: One of the things not completely clear in MDhŚā (and consequently in Medhātithi’s commentary thereon) is what kind of corporeal punishment are meant by māraṇa ‘imposing death’, hiṃsā ‘violence’ and vadha ‘killing’. All could just mean ‘death penalty’ (and hiṃsā and māraṇa are used in the commentary on MDh 8.318 as if they were synonyms). However, in other cases other forms of corporeal punishment (śārīra daṇḍa) are mentioned, e.g., aṅkana ‘branding’ (so Medhātithi on 9.236). Could these be included within maraṇa, vadha and hiṃsā as well? It will be evident in the following that Medhātithi takes advantage of each vagueness in MDhŚā in his efforts to make the text consistent.
Medhātithi on 9.249 comments on a passage speaking of vadha, but ex- plicitly broadens the concept, so as to encompass other types of punishment apart from death penalty. It is noteworthy that he mentions two topics that will be highlighted also in section 3.3, namely holding back crimes as a purpose of punishment, and the distinction between visible and invisible purposes:
“This mention [in the MDhŚā] of vadha is for the sake of summarising (upasaṃhṛ-) suppressive [punishments] (nigraha). Therefore, according to the law code (yathāśruti) this vadha can occur through various manners. In this context, given that the mention of vadha [in the MDhŚā] is meant for the sake of perceptible purposes, it does not need to be necessarily a killing. Such being the case, there is no flaw if [the punishment] is realised also through other means, e.g. detention (bandhana).”
(nigrahopasaṃhārārthas tv ayaṃ vadhopadeśaḥ. ato yathāśruti citravadhopāyaiḥ kartavyaḥ. […] tatra dṛṣṭaprayojanatvād upadeśasya na niyato vadhaḥ. evaṃ ca saty upāyāntareṇāpi bandhanādinā ’viniyacchato’ na doṣaḥ.)
2. Multiple purposes for corporeal punishments: In the commentary ad MDh 8.324 Medhātithi discusses the different pun- ishments (ranging from a fine to beating and to death) for stealing, as pro- portioned to the moment in which the stealing has been committed and to the purpose which could have been fulfilled by the stolen item. For instance, stealing war animals during a war encounters a more severe penalty than stealing them at a normal time. Similarly, stealing a rare medicine when it would have been needed by a certain patient encounters a severe punishment, whereas stealing the same medicine when no one needs it receives a smaller punishment. The mention of paying a fine vs death as punishment in the various circumstances in which one could steal a sword strongly suggests that fines are considered the smaller punishment.
3. Corporeal punishment vs. fines: Notwithstanding what has been seen in section 2, the choice between fines and corporeal punishment is not just driven by the severity of the crime.
The passage I will analyse here is the commentary ad MDh 8.318. Looking back at the Mīmāṃsā 6-fold dialectical scheme above, the topic here is corporeal punishment, even though it remains implicit. The doubt is also implicit, but it can be reconstructed as: Does corporeal punishment have an invisible purpose? A further implicit background assumption only became clear to me at the end of my analysis: There are either monetary punishments or corporeal ones.
• topic: corporeal punishment [implicit]
• doubt: Does corporeal punishment have an invisible purpose? [implicit]
1st speaker (Medhātithi): punishment in the form of fines is useful to the king (implicit: because he earns money), [hence] corporeal punishment must be useful to the person who undergoes it.
2nd speaker (Obj): No, it is needed for the sake of protecting other people from crimes.
(Medhātithi): Why should protection not be possible without hurting?
(Obj): Without the hurt, the person would repeat the act
(Medhātithi): This could be achieved also by reprimanding them etc.
(Obj): By seeing them punished, others would desist.
(Medhātithi): The suffering could be brought about even by fines.
(Medhātithi): Moreover, even though criminals are punished, thousands of people are found to do the same act again and again!
Conclusion: Corporeal punishment purifies the person who undergoes it by creating an invisible force, so that they can be admitted to heaven like innocent people, as said by Manu. What follows at this point seems a redundant addition, since it seems to come after the conclusion:
- 1. There are restrictions concerning the cutting off of limbs…
- 2. Also prescriptions such as the one about the elephant, etc.
- 3. Therefore, it is established that one is liberated from one’s bad karman only once there is corporeal punishment,
- 4. And analogously, branding (aṅkana) will be prescribed in the case of major offenders, to whom everything has been confiscated, and who are punished by entering into water, so that people avoid getting in touch with them. The figure below summarises the whole discussion.
4. Unspoken strategies: Medhātithi does not feel the need to spell out strategies and premisses he is mostly reusing from Mīmāṃsā.
The first unspoken premiss of Medhātithi is: Never question the juridical corpus one is commenting upon, just try to make sense of it (as Mīmāṃsā authors do with the Veda). This means that Medhātithi cannot conclude that corporeal punishments should be avoided. He can discuss the why, not the whether. Correspondingly, the juridical corpus can be interpreted, not refuted.
The second unspoken assumption is: Every action needs a purpose (cf. prayojanam anuddiśya na mando’pi pravartate, Kumārila). This leads to the conclusion that punishment needs a purpose.
A third unspoken assumption is that there is a distinction between visible and invisible purposes (dṛṣṭa and adṛṣṭa in Mīmāṃsā terminology).
This is accompanied by the forth unspoken assumption, namely, the preference for visible purposes whenever possible, and by the fifth one, namely that only one purpose is possible (ekārthatā), both of which borrowed from Mīmāṃsā. Therefore, Medhātithi only concludes that corporeal punishment has an invisible purpose once he has ruled out possible visible ones.
A sixth unspoken assumption is that ceteris paribus, we should not harm any living being, because of the Vedic prohibition “One should not harm any living being” (na hiṃsyāt sarvā bhūtāni), largely discussed in Mīmāṃsā.
5. Corporeal punishment and adultery: As seen above, corporeal punishments are not a deterrent to crime (although they can have other purposes). However, Medhātithi ad 8.359 seems to admit of corporeal punishments as deterrent, while discussing punishments for adultery. The passage reads as follows:
“If by [minor things] like talking together there were only a minor penalty, then people would keep acting. Then, inflamed by the deity of love, overpowered by another conversation with another man’s wife, and attracted by the arrows of love, they would consider the king’s correction as negligible and disregard [even] their bodies’ sustenance.
By contrast, if by the first undertaking they were caught, it would be possible to drive them away, given that their desire has been interrupted (aprabandhavṛtti). Hence, it is correct to have major penalties even for people just whispering to other people’s wives.”
Is this passage in sheer contradiction with the previous one? Should not fines be enough? This question brings us back to the kind of Mīmāṃsā Medhātithi is following, which is possibly a Maṇḍana-flavoured Bhāṭṭa Mīmāṃsā in which the addressee of a command can evaluate costs and benefits (for instance, of fines and theft). However, in the case of love and lust, people are unable to calculate costs and benefits. Hence, the only way to protect women is by eliminating their potential seducers. Thus, corporeal punishment in those cases might just aim at making adultery impossible by removing the potential seducer.
6. Conclusions: Punishments are prescribed by Manu on different bases. Medhātithi partly tries to systematise Manu’s lore and in several cases discusses a multifaceted structure of punishments. For instance, in the commentary on MDhŚā 8.334 Medhātithi specifies that Manu’s reference to the cutting of a limb as a punishment for theft only regards “one who is repeatedly addicted to stealing” (transl. by G. Jhā) after they have been repeatedly fined. This is relevant as a harmonising comment, because the previous verses of Manu had mentioned fines.
According to Medhātithi, punishments can be nuanced based on multiple factors. The first and main factor is the purpose to be achieved by the punishment: discouraging crimes (e.g., stealing weapons during war is severely punished in the commentary on MDhŚā 8.324), making crimes literally impossible (as in the case of adultery in the commentary on 8.359) allowing the king to increase their financial resources (commentary on 8.318), warning other people that they are dealing with a convicted criminal (commentary on 9.236), purifying the criminal (commentary on 8.318). This means that although fines are in principle a smaller punishment than corporeal punishments, they can be the preferred option depending on the purpose to be achieved with the punishment.
For some random crimes, such as stealing in normal circumstances, Medhātithi does not aim at eradicating them completely, hence fines are the best strategy (they discourage crimes while increasing the king’s finances). Other crimes (such as adultery, stealing medicines from sick people or stealing a weapon from a person who is directly confronted by an armed enemy) are seen as more threatening and therefore need to be actively discouraged or literally made impossible with extreme measures.
The broadest systematising effort by Medhātithi with regard to punishments seems to occur in his commentary on 8.318, where he lists all punish- ments as being either for the benefit of the punisher (fines, benefitting the king) or for the benefit of the punished (corporeal punishments, purifying the criminal).
Does the reconstruction above convince you? Do you notice other strategies?(cross-posted at my personal blog, elisafreschi.com)