266 Internat ional and Compara t i ve Laze Quarter ly [VOL 11

its validity but also to its effect He should therefore also have applied the alternative approach t o the incidence of the effect of that contract If under such an alternative approach the law of the State of New York applied to the effect of the contract as well then as mentioned earlier the plaintiff would have failed in her action

3 In the view of the learned judge in South Africa the breach of promise must not necessarily but may and in the particular case did amount to injuria entitling the injured party to recover in addition to contractual damages if any delictual damages and the contractual and delictual elements must therefore be clearly separated In the premises it is respectfully submitted the prin- ciple of the proper law of the contract is wholly inadequate to cover the delictual elements of the breach of promise and the con- flicts rule governing delicts (torts) should have been ascertained 30 and applied in regard to the delictual elements of the hrearh of promise

4 The learned judge applied the proper law of the contract to marry which in his view was the law of South Africa The law of South Africa happened also to be the l e z fori I t is probably for this reason that the learned judge did not deal with the ques- tion whether the claim before him was not in the nature of a remedy subject to the e x fori on that ground This too is a matter of regret For the South African conflict of laws lawyer is eagerly waiting for a judicial pronouncement on the question whether the incidence of damages or a t least the measure of damages appertains to the law of procedure and is therefore governed by the l e x f ~ r i ~ O Had the proper law of the contract to marry been that of the State of New York which as mentioned did not give a right to damages for breach of promise an inquiry into the nature of the claim would have been all i m p ~ r t a n t ~ ~

TALKto a knowledgeable Hindu about religion and you will be given to understand that Hinduism has all the answers India itself advises the nations of the world that if they would follow d h a r m a

30 See Hahlo and Kahn T h e U n i o n of S o u t h A f r i c a (Tol 3 of T h c B r i t i s h C o m n z o n w e a l t h ) 1960 p 731

31 There were such inquiries in Hartsert v D i x o n ( s u p r a note 5) and l i r c ~ n c z iv R i d q u a y ( s u p r a note 21) which however called for criticism see particularl- Lipstein ( s u p r a note 22) last paragraph I n the instant case Hollse11 I- D i x o ~ l v-as quoted in support of the application of the proper lav- of tlrr contract to marry but no reference -as made to K r e ~ ) l c z iv X i d o ~ c o u

and observe the rules of non-violence and self-determination then peace would reign Julius Stone recently challenged India to explain what precisely other countries can learn from her cul-tural heritage and from her more recent example Two dozen knowledgeable people including law-teachers historians and pro- fessors of political science avd international affairs (an impressive gathering which was watched by a representative of the Ford Foundation) sat down in Delhi University from March 9 to 11 1960 to try to answer the thirty-six questions he innocently fired at them The questions were sharply-norded in some cases triple- barrelled and loaded with irony They ranged optimistically from righteous use of political power through pacta sunt servanda to redistribution of values [sic] The mountain laboured valiantly The results are on the whole negative if in places provisional One admires then the courage of Delhi University in publishing such a coolly objective r e p ~ r t ~ If the Seminar were the last authority on the subjects dealt with the claims of tradi- tional India to moral leadership of the world in international relations would vanish into thin air

1 A typical expression of the Indian love-of-peace theme with references to Kautilya Gandhi and Krishna Menon together with a confession that the J I a h i b h d r a t a does not recommend peace at any price appears in B S Mudgal Poli t ical E c o n o m y in A n c i e n t I n d i a (Kanpur 1960) pp 187-197 For manifestations of Indian attitudes see I n d i a a n d t h e U n i t e d r a t i o n s R e p o r t of a S t u d y G r o u p s e t u p b y t h e I n d i a n Counc i l of W o r l d A f la i rs (Nen-York 1957) R K Berkes and M S Bedi T h e D i p l o m a c y of I n d i a Ind ia i t F o r e i g n Pol icy in t h e U n i t e d hra t ions (StandfordLondon2 1958) B V Govinda Raj I n d i a a n d D i s p u t e s in t h e U n i t e d S a t i o n s 1g4G-64 (Bombay 1959)

2 One has in mind HI-derabad the Portuguese enclaves the S a g a problem Reference appears also to Indias attitudes to apartheid Mau hlau Hungary

3 I n d i a n T r a d i t i o n s a n d t h e R u l e of L a w antong Sa t io R e p o r t of t h e A l l - I n d i n S e m i n a r 1960 he ld o n i l Iarch 9-11 a t t h e Unicers i t] of D c l h i on t h e s u b j e c t Poss ib le C o n t r i b u t i o n s of I n d i a n T r a d i t i o n s Concern ing t h e R e i n -tioi7r of J Ia jor O r g a i ~ i s e d G r o u p s t o C o n t e m p o r a r y Probleirts of In terna t io ia l Lace Inquiries failed to elicit whether this brochure is available commer-cially or if so at x h a t price There are no references The glossary provided by (the historian) Prof K 4 Kilakanta Sastri deserves two comments the D i y n b h i g n (p 28) is an independent ~ o r k and not a commentary and the $ u k r a n i t i s h r a is probably a work of the 14th-15th centuries The passages referred to in passina in the Report seem to have been the following-11) in the ~ u k r a n i t i p i r a (pp 19-20) at I 758 (see B D Basu trans S u k r a n i t i (Sllahabad 1911) SBH X I I I p 52) (2) in the M a h d b h d r a t n (p 19) at the opening chapters of the U d y o g a p a r r a (P C Roys trans (Calcutta 1886) Tol 5) (3) i n the R i t m d y a n a (pp 19-20) at chh xii-xviii of Rk I T where the hero-king apparently engages in unfair fight (see M N Dutt trans T h e R a m a y a n a (Calcutta 1892) 11 pp 711-745 and the discussions by Ilt S Ramasa-ami Sastri S t u d i e s in R a n ~ a y a n a(Baroda 1044) pt ii pp 112-116 and T S Srinirasa Sastri L e c t u r e s o n t h e Ran~ccya~lcc (Madras 1949) 155-177) (1) in the Kaut i l i ya-ar thahi i s t ra (pp 11-15) at ch xvii of HkTI1 (trans R Shamasastry (hlysore 19291 p 341-bnt tlie whole chapter seems to have been discussed) and (5) in the Y d j i i a v a l k y a -s m r i t i (p 15) at 11 21 (2) to be read with the enlightening commentary of the IlitEkshari in J R Gharpnre trans and ed Y i j i i a o a l k y a S ~ n r t iwith t h e C o m c n t a r i e s of (1) the I l i t iksharE V y a w a h i r i i d l l y i g a c h h I - J ~ I I (Bombay 1938) at pp 708-713

268 Internat ional and Compara t iuz L a w Quarter ly [VOL 11

For convenience some of the questions and the answers are summarised below in columns (the pages refer t o the report) though naturally this cannot do justice to the many ideas which are recorded as having arisen in discussion I t must be borne in mind that traditional Indian thought on international relations presupposes independent kingdoms run by governments trained in dhamzai i is tra ( science of righteousness ) and orthnsiistrn ( science of ways and means)

Quest ions Answers Were Indian kings the high- No answer est servants in the commun-ity or trustees for the people (p 8)

How is d a n d a (force a t the Non-violence does not apply kings disposal) related to non- to State action (p 21) and violence and mediation means in such spheres a t most (P- 8) strong support for a policy

of negotiation (p 22) War is basic to Indian institutions (p 18) But non-violent individuals might influence policy (p 23)

Is the classical limitation of Expediency itself was not in-the kings foreign policy differ- consistent with the kings ent from the alleged Western dharmcl (p 18) tradition of relying on expedi-ency (p 8-9) Was the king subject to re- No (p 14) straint as well as admonished in conscience by the dharma-ids t ra (p 9) Are there any traditions con- (i) Perhaps but no machinery cerning (i) the sanctity par- existed to adjudicate where ticularly (ii) the continuing the meaning or effect of trea-sanctity of agreements between ties was disputed or to com-groups (p 9) pel compliance (pp 14-15]

(ii) No (p 16)

4 S V Viavanatha International Law in Ancient India (Madras 1925) and H Chatterjee International Law and Inter-State Relations in Aicient I n d i n (Calcutta 1958) Both are vitiated by a desire to see western institutions in the Ind ian evidence For another approach see Derrett The ~llaintenance of peace i n the Hindu x~or ld practice and theory (1958) IYRIA 361-387 (also to be published with amendment in the ci~rrent ~ o l i i m e of the R~cue i l s de la Socikti Jean Bodin)

JAN19621 Notes 269

Questions Does tolerance and non-align- ment square with the tradi-tional requirement to des-troy the evil (p 10) Does the Hindu preference for peace offer a new direc-tive and is i t an absolute preference (p 10) Are wars of aggression con-demned (p 10)

Is Hindu loyalty to the group important for world order

(P- 10) Does Hindu tradition (espe-cially in view of the negative aspects of caste) realise the principle of equality of human beings (p 12) Are demands by poor groups for redistribution to be granted (p 12)

(i) Does Indian history before the arrival of Europeans ex-emplify self-determination of peoples (ii) Does the India of to-day ignore this principle and if so why (p 12-13) What are the powers of States over

(a) high seas and territorial waters

(b) outer space (c) the use of new instru-

ments of violence (p 13)

Answers Xon-alignment is in any case not traditional (p 19) and the doctrine of mandala was opposed to i t (p 20) No answer

Wars to forestall aggression were more dharmic than wars of aggression (p 14) but no limitations on resort to war could be traced (p 22) No answer

No answer

The spirit of giving which promotes the d h a r m a of the donor was a t work (p 17) No evidence of this between kingdoms (i) No (p 20)

(ii) Indeterminate answer

No answer

5 Explained in Shamastrys trans of the A ~ t h a s i s t r a (cited above) a t pp 290 307 341 it i s a concept of balance of power and the Seminar should ha-e noticed that Kautilya sees the m a n d a l a or Circle of States as a check L I ~ O I I

kings acting irregularly There is a valuable discussion in 1 S Ghoshal H i s t o ~ y o f I n d i a n Polifical Ideas (Bombay Oxford U P l959) pp 93-91

270 International and Comparativt Law Quarterly [VOL 11

I t emerged that appeal to third-party judgment could hardly be identified in known material (pp 19 23) even with regard to resolving conflicts of intepretation of the requirements of dharma (p 22) I t was noted (p 14) that the king was provided with a spiritual adviser I t was not observed that in ancient times kings certainly could and did consult the only independent observers available sanyasis (ascetics) and there is no reason t o doubt that the opportunity to consult such sources of dharma was taken in medieval times I t was noted in passing that the sense of belonging even to people one dislikes was ingrained in Hindu society (p 24) and that negotiation until a compromise was reached would be persisted in so faithfully that counting of votes was practically unheard of (p 24)

Yet scraps of classical material of diverse kinds and the debate- able activities of Gandhiji hardly supplied a representative picture of the specifically Indian outlook Were the questions wrongly phrased or was the Seminar too Western in training or out- look A traditional exponent of the dharmaiastra or a disciple of Gandhiji if patiently questioned might have produced something more lively with a result somewhat like the following

The Indian outlook stems from Indias very old and consistent experience Non-Westernised Indians views on international as on national problems reflect a theory of life which with necessary modifications might fit world as well as Indian situations Tra-ditional sources speak of caste and caste-duty we can translate this into function-the interdependence of interlocking castes is paralleled outside India by the mutual dependence of occupations In the Indian view the State (in classical terms the king) organi- cally furthers the fulfilment of the subjects dharnza This is the subjects duty and is determined by reference to his gender age caste and station For example acquisitiveness fitted the mer-chant but made a teacher look silly People might disagree whether an individual fulfilled his dharma but that he had a dharma no one doubted The kings dharlna (a t its lowest) was to eliminate threats to the dharmas of all subjects All sources of instability internal and external must be repressed by all means short of hindering the subjects fulfilment of their dhar7nas A programme disturbing the permitted channels for greed and pride for example was non-dharrnic and portended the States down-fallG Alliances with those who could counteract aggrandisement in an immediate neighbour were d e ~ i r a b l e ~ Understandings

6 This aspect of d h a r m a i u s t r a inspired Thomas More to n r i t e U t o p i a (see Thomas More and Joseph the Indian forthcoming in (1962) Journal o j t h e R o y a l A s i a t i c S o c i e t y )

7 See note 5 above

271 JAN19621 N o t e s

between States were progressive if they forwarded dharma the reverse might lead to a States merger within another

Dharma implies self-determination within the caste-structure a structure that could be adjusted by negotiation between the groups bearing prestige and wielding pressure Individual ambi- tions are sunk in the family sub-caste and caste Yet freedom of belief and of expression of belief is guaranteed by dharma which desires the individuals rise through births and deaths to an ulti- mate goal that only faith and activities expressive of faith can achieve

Struggles between European countries seem inept in Indian eyes Each has corresponding functions to facilitate fulfilment of dharma it is not clear whether the causes of jealousy and fear are related to any hindrances to such fulfilment Struggles between blacks and whites within a State come in another category Each group must find its own level without resort to force since force cannot settle the limits of caste-function and duty moreover dis-crimination by colour is meaningless for caste and colour (which were once related) are not coextensive Hostility on the ground of belief is senseless since belief must be free (as must non-belief) the State being concerned to enable the subject to find his salvation along his own path provided that path does not entail the closing of others Wiliness in diplomacy may be allowable but hypo-crisy in declaring aims is inconsistent with the function of the State and may be fatal to it Truth is not only practical but profitable for dharma requires and provides sympathy with the unreasonable as well as the unpleasant

Weapons which destroy non-combatants are fundamentally wrong as life may only be at risk in defence of the social order or dharma itself The concept of the caste-function runs indeed through the whole theory Is it useless for non-Indians We have noted an appropriate translation above Even India herself is rapidly developing towards a revision of the definition of caste which is now more and more recognised (if at all) as a matter of aptitude or a reward for merit World-conflicts should be resolved by commencing not at the top but at the bottom Indi-viduals should realise their real needs and functions (as opposed

On the nature of dharma (in this context) see P V Kane History o f Dharmadaxtra (Poona 1941) 11 1 pp 2-11 K V Rmangaswami Aiyangar ed Krtyahalpataru of Bha t fa Lakgmidhara (Baroda 1948) Vol I introd 17-30 the same Rajadharma (Adyar 1941) the same Aspects of the Social and Political S y s t e m o f J lanusmyt i (Lucknow 1949) the same Some A ~pec t s of the H i n d u View of L i f e according to Dharmains tra (Baroda 1952) the same Ind ian Caneralism (Adyar 1919) lectures 111 IT and T I

3 See the unscholarly but significant dissenting judgment of Justice Kapur in V i Giri v D Su1i Dora [I9591 AIR SC 1318 1331

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent

268 Internat ional and Compara t iuz L a w Quarter ly [VOL 11

For convenience some of the questions and the answers are summarised below in columns (the pages refer t o the report) though naturally this cannot do justice to the many ideas which are recorded as having arisen in discussion I t must be borne in mind that traditional Indian thought on international relations presupposes independent kingdoms run by governments trained in dhamzai i is tra ( science of righteousness ) and orthnsiistrn ( science of ways and means)

Quest ions Answers Were Indian kings the high- No answer est servants in the commun-ity or trustees for the people (p 8)

How is d a n d a (force a t the Non-violence does not apply kings disposal) related to non- to State action (p 21) and violence and mediation means in such spheres a t most (P- 8) strong support for a policy

of negotiation (p 22) War is basic to Indian institutions (p 18) But non-violent individuals might influence policy (p 23)

Is the classical limitation of Expediency itself was not in-the kings foreign policy differ- consistent with the kings ent from the alleged Western dharmcl (p 18) tradition of relying on expedi-ency (p 8-9) Was the king subject to re- No (p 14) straint as well as admonished in conscience by the dharma-ids t ra (p 9) Are there any traditions con- (i) Perhaps but no machinery cerning (i) the sanctity par- existed to adjudicate where ticularly (ii) the continuing the meaning or effect of trea-sanctity of agreements between ties was disputed or to com-groups (p 9) pel compliance (pp 14-15]

(ii) No (p 16)

4 S V Viavanatha International Law in Ancient India (Madras 1925) and H Chatterjee International Law and Inter-State Relations in Aicient I n d i n (Calcutta 1958) Both are vitiated by a desire to see western institutions in the Ind ian evidence For another approach see Derrett The ~llaintenance of peace i n the Hindu x~or ld practice and theory (1958) IYRIA 361-387 (also to be published with amendment in the ci~rrent ~ o l i i m e of the R~cue i l s de la Socikti Jean Bodin)

JAN19621 Notes 269

Questions Does tolerance and non-align- ment square with the tradi-tional requirement to des-troy the evil (p 10) Does the Hindu preference for peace offer a new direc-tive and is i t an absolute preference (p 10) Are wars of aggression con-demned (p 10)

Is Hindu loyalty to the group important for world order

(P- 10) Does Hindu tradition (espe-cially in view of the negative aspects of caste) realise the principle of equality of human beings (p 12) Are demands by poor groups for redistribution to be granted (p 12)

(i) Does Indian history before the arrival of Europeans ex-emplify self-determination of peoples (ii) Does the India of to-day ignore this principle and if so why (p 12-13) What are the powers of States over

(a) high seas and territorial waters

(b) outer space (c) the use of new instru-

ments of violence (p 13)

Answers Xon-alignment is in any case not traditional (p 19) and the doctrine of mandala was opposed to i t (p 20) No answer

Wars to forestall aggression were more dharmic than wars of aggression (p 14) but no limitations on resort to war could be traced (p 22) No answer

No answer

The spirit of giving which promotes the d h a r m a of the donor was a t work (p 17) No evidence of this between kingdoms (i) No (p 20)

(ii) Indeterminate answer

No answer

5 Explained in Shamastrys trans of the A ~ t h a s i s t r a (cited above) a t pp 290 307 341 it i s a concept of balance of power and the Seminar should ha-e noticed that Kautilya sees the m a n d a l a or Circle of States as a check L I ~ O I I

kings acting irregularly There is a valuable discussion in 1 S Ghoshal H i s t o ~ y o f I n d i a n Polifical Ideas (Bombay Oxford U P l959) pp 93-91

270 International and Comparativt Law Quarterly [VOL 11

I t emerged that appeal to third-party judgment could hardly be identified in known material (pp 19 23) even with regard to resolving conflicts of intepretation of the requirements of dharma (p 22) I t was noted (p 14) that the king was provided with a spiritual adviser I t was not observed that in ancient times kings certainly could and did consult the only independent observers available sanyasis (ascetics) and there is no reason t o doubt that the opportunity to consult such sources of dharma was taken in medieval times I t was noted in passing that the sense of belonging even to people one dislikes was ingrained in Hindu society (p 24) and that negotiation until a compromise was reached would be persisted in so faithfully that counting of votes was practically unheard of (p 24)

Yet scraps of classical material of diverse kinds and the debate- able activities of Gandhiji hardly supplied a representative picture of the specifically Indian outlook Were the questions wrongly phrased or was the Seminar too Western in training or out- look A traditional exponent of the dharmaiastra or a disciple of Gandhiji if patiently questioned might have produced something more lively with a result somewhat like the following

The Indian outlook stems from Indias very old and consistent experience Non-Westernised Indians views on international as on national problems reflect a theory of life which with necessary modifications might fit world as well as Indian situations Tra-ditional sources speak of caste and caste-duty we can translate this into function-the interdependence of interlocking castes is paralleled outside India by the mutual dependence of occupations In the Indian view the State (in classical terms the king) organi- cally furthers the fulfilment of the subjects dharnza This is the subjects duty and is determined by reference to his gender age caste and station For example acquisitiveness fitted the mer-chant but made a teacher look silly People might disagree whether an individual fulfilled his dharma but that he had a dharma no one doubted The kings dharlna (a t its lowest) was to eliminate threats to the dharmas of all subjects All sources of instability internal and external must be repressed by all means short of hindering the subjects fulfilment of their dhar7nas A programme disturbing the permitted channels for greed and pride for example was non-dharrnic and portended the States down-fallG Alliances with those who could counteract aggrandisement in an immediate neighbour were d e ~ i r a b l e ~ Understandings

6 This aspect of d h a r m a i u s t r a inspired Thomas More to n r i t e U t o p i a (see Thomas More and Joseph the Indian forthcoming in (1962) Journal o j t h e R o y a l A s i a t i c S o c i e t y )

7 See note 5 above

271 JAN19621 N o t e s

between States were progressive if they forwarded dharma the reverse might lead to a States merger within another

Dharma implies self-determination within the caste-structure a structure that could be adjusted by negotiation between the groups bearing prestige and wielding pressure Individual ambi- tions are sunk in the family sub-caste and caste Yet freedom of belief and of expression of belief is guaranteed by dharma which desires the individuals rise through births and deaths to an ulti- mate goal that only faith and activities expressive of faith can achieve

Struggles between European countries seem inept in Indian eyes Each has corresponding functions to facilitate fulfilment of dharma it is not clear whether the causes of jealousy and fear are related to any hindrances to such fulfilment Struggles between blacks and whites within a State come in another category Each group must find its own level without resort to force since force cannot settle the limits of caste-function and duty moreover dis-crimination by colour is meaningless for caste and colour (which were once related) are not coextensive Hostility on the ground of belief is senseless since belief must be free (as must non-belief) the State being concerned to enable the subject to find his salvation along his own path provided that path does not entail the closing of others Wiliness in diplomacy may be allowable but hypo-crisy in declaring aims is inconsistent with the function of the State and may be fatal to it Truth is not only practical but profitable for dharma requires and provides sympathy with the unreasonable as well as the unpleasant

Weapons which destroy non-combatants are fundamentally wrong as life may only be at risk in defence of the social order or dharma itself The concept of the caste-function runs indeed through the whole theory Is it useless for non-Indians We have noted an appropriate translation above Even India herself is rapidly developing towards a revision of the definition of caste which is now more and more recognised (if at all) as a matter of aptitude or a reward for merit World-conflicts should be resolved by commencing not at the top but at the bottom Indi-viduals should realise their real needs and functions (as opposed

On the nature of dharma (in this context) see P V Kane History o f Dharmadaxtra (Poona 1941) 11 1 pp 2-11 K V Rmangaswami Aiyangar ed Krtyahalpataru of Bha t fa Lakgmidhara (Baroda 1948) Vol I introd 17-30 the same Rajadharma (Adyar 1941) the same Aspects of the Social and Political S y s t e m o f J lanusmyt i (Lucknow 1949) the same Some A ~pec t s of the H i n d u View of L i f e according to Dharmains tra (Baroda 1952) the same Ind ian Caneralism (Adyar 1919) lectures 111 IT and T I

3 See the unscholarly but significant dissenting judgment of Justice Kapur in V i Giri v D Su1i Dora [I9591 AIR SC 1318 1331

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent

JAN19621 Notes 269

Questions Does tolerance and non-align- ment square with the tradi-tional requirement to des-troy the evil (p 10) Does the Hindu preference for peace offer a new direc-tive and is i t an absolute preference (p 10) Are wars of aggression con-demned (p 10)

Is Hindu loyalty to the group important for world order

(P- 10) Does Hindu tradition (espe-cially in view of the negative aspects of caste) realise the principle of equality of human beings (p 12) Are demands by poor groups for redistribution to be granted (p 12)

(i) Does Indian history before the arrival of Europeans ex-emplify self-determination of peoples (ii) Does the India of to-day ignore this principle and if so why (p 12-13) What are the powers of States over

(a) high seas and territorial waters

(b) outer space (c) the use of new instru-

ments of violence (p 13)

Answers Xon-alignment is in any case not traditional (p 19) and the doctrine of mandala was opposed to i t (p 20) No answer

Wars to forestall aggression were more dharmic than wars of aggression (p 14) but no limitations on resort to war could be traced (p 22) No answer

No answer

The spirit of giving which promotes the d h a r m a of the donor was a t work (p 17) No evidence of this between kingdoms (i) No (p 20)

(ii) Indeterminate answer

No answer

5 Explained in Shamastrys trans of the A ~ t h a s i s t r a (cited above) a t pp 290 307 341 it i s a concept of balance of power and the Seminar should ha-e noticed that Kautilya sees the m a n d a l a or Circle of States as a check L I ~ O I I

kings acting irregularly There is a valuable discussion in 1 S Ghoshal H i s t o ~ y o f I n d i a n Polifical Ideas (Bombay Oxford U P l959) pp 93-91

270 International and Comparativt Law Quarterly [VOL 11

I t emerged that appeal to third-party judgment could hardly be identified in known material (pp 19 23) even with regard to resolving conflicts of intepretation of the requirements of dharma (p 22) I t was noted (p 14) that the king was provided with a spiritual adviser I t was not observed that in ancient times kings certainly could and did consult the only independent observers available sanyasis (ascetics) and there is no reason t o doubt that the opportunity to consult such sources of dharma was taken in medieval times I t was noted in passing that the sense of belonging even to people one dislikes was ingrained in Hindu society (p 24) and that negotiation until a compromise was reached would be persisted in so faithfully that counting of votes was practically unheard of (p 24)

Yet scraps of classical material of diverse kinds and the debate- able activities of Gandhiji hardly supplied a representative picture of the specifically Indian outlook Were the questions wrongly phrased or was the Seminar too Western in training or out- look A traditional exponent of the dharmaiastra or a disciple of Gandhiji if patiently questioned might have produced something more lively with a result somewhat like the following

The Indian outlook stems from Indias very old and consistent experience Non-Westernised Indians views on international as on national problems reflect a theory of life which with necessary modifications might fit world as well as Indian situations Tra-ditional sources speak of caste and caste-duty we can translate this into function-the interdependence of interlocking castes is paralleled outside India by the mutual dependence of occupations In the Indian view the State (in classical terms the king) organi- cally furthers the fulfilment of the subjects dharnza This is the subjects duty and is determined by reference to his gender age caste and station For example acquisitiveness fitted the mer-chant but made a teacher look silly People might disagree whether an individual fulfilled his dharma but that he had a dharma no one doubted The kings dharlna (a t its lowest) was to eliminate threats to the dharmas of all subjects All sources of instability internal and external must be repressed by all means short of hindering the subjects fulfilment of their dhar7nas A programme disturbing the permitted channels for greed and pride for example was non-dharrnic and portended the States down-fallG Alliances with those who could counteract aggrandisement in an immediate neighbour were d e ~ i r a b l e ~ Understandings

6 This aspect of d h a r m a i u s t r a inspired Thomas More to n r i t e U t o p i a (see Thomas More and Joseph the Indian forthcoming in (1962) Journal o j t h e R o y a l A s i a t i c S o c i e t y )

7 See note 5 above

271 JAN19621 N o t e s

between States were progressive if they forwarded dharma the reverse might lead to a States merger within another

Dharma implies self-determination within the caste-structure a structure that could be adjusted by negotiation between the groups bearing prestige and wielding pressure Individual ambi- tions are sunk in the family sub-caste and caste Yet freedom of belief and of expression of belief is guaranteed by dharma which desires the individuals rise through births and deaths to an ulti- mate goal that only faith and activities expressive of faith can achieve

Struggles between European countries seem inept in Indian eyes Each has corresponding functions to facilitate fulfilment of dharma it is not clear whether the causes of jealousy and fear are related to any hindrances to such fulfilment Struggles between blacks and whites within a State come in another category Each group must find its own level without resort to force since force cannot settle the limits of caste-function and duty moreover dis-crimination by colour is meaningless for caste and colour (which were once related) are not coextensive Hostility on the ground of belief is senseless since belief must be free (as must non-belief) the State being concerned to enable the subject to find his salvation along his own path provided that path does not entail the closing of others Wiliness in diplomacy may be allowable but hypo-crisy in declaring aims is inconsistent with the function of the State and may be fatal to it Truth is not only practical but profitable for dharma requires and provides sympathy with the unreasonable as well as the unpleasant

Weapons which destroy non-combatants are fundamentally wrong as life may only be at risk in defence of the social order or dharma itself The concept of the caste-function runs indeed through the whole theory Is it useless for non-Indians We have noted an appropriate translation above Even India herself is rapidly developing towards a revision of the definition of caste which is now more and more recognised (if at all) as a matter of aptitude or a reward for merit World-conflicts should be resolved by commencing not at the top but at the bottom Indi-viduals should realise their real needs and functions (as opposed

On the nature of dharma (in this context) see P V Kane History o f Dharmadaxtra (Poona 1941) 11 1 pp 2-11 K V Rmangaswami Aiyangar ed Krtyahalpataru of Bha t fa Lakgmidhara (Baroda 1948) Vol I introd 17-30 the same Rajadharma (Adyar 1941) the same Aspects of the Social and Political S y s t e m o f J lanusmyt i (Lucknow 1949) the same Some A ~pec t s of the H i n d u View of L i f e according to Dharmains tra (Baroda 1952) the same Ind ian Caneralism (Adyar 1919) lectures 111 IT and T I

3 See the unscholarly but significant dissenting judgment of Justice Kapur in V i Giri v D Su1i Dora [I9591 AIR SC 1318 1331

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent

270 International and Comparativt Law Quarterly [VOL 11

I t emerged that appeal to third-party judgment could hardly be identified in known material (pp 19 23) even with regard to resolving conflicts of intepretation of the requirements of dharma (p 22) I t was noted (p 14) that the king was provided with a spiritual adviser I t was not observed that in ancient times kings certainly could and did consult the only independent observers available sanyasis (ascetics) and there is no reason t o doubt that the opportunity to consult such sources of dharma was taken in medieval times I t was noted in passing that the sense of belonging even to people one dislikes was ingrained in Hindu society (p 24) and that negotiation until a compromise was reached would be persisted in so faithfully that counting of votes was practically unheard of (p 24)

Yet scraps of classical material of diverse kinds and the debate- able activities of Gandhiji hardly supplied a representative picture of the specifically Indian outlook Were the questions wrongly phrased or was the Seminar too Western in training or out- look A traditional exponent of the dharmaiastra or a disciple of Gandhiji if patiently questioned might have produced something more lively with a result somewhat like the following

The Indian outlook stems from Indias very old and consistent experience Non-Westernised Indians views on international as on national problems reflect a theory of life which with necessary modifications might fit world as well as Indian situations Tra-ditional sources speak of caste and caste-duty we can translate this into function-the interdependence of interlocking castes is paralleled outside India by the mutual dependence of occupations In the Indian view the State (in classical terms the king) organi- cally furthers the fulfilment of the subjects dharnza This is the subjects duty and is determined by reference to his gender age caste and station For example acquisitiveness fitted the mer-chant but made a teacher look silly People might disagree whether an individual fulfilled his dharma but that he had a dharma no one doubted The kings dharlna (a t its lowest) was to eliminate threats to the dharmas of all subjects All sources of instability internal and external must be repressed by all means short of hindering the subjects fulfilment of their dhar7nas A programme disturbing the permitted channels for greed and pride for example was non-dharrnic and portended the States down-fallG Alliances with those who could counteract aggrandisement in an immediate neighbour were d e ~ i r a b l e ~ Understandings

6 This aspect of d h a r m a i u s t r a inspired Thomas More to n r i t e U t o p i a (see Thomas More and Joseph the Indian forthcoming in (1962) Journal o j t h e R o y a l A s i a t i c S o c i e t y )

7 See note 5 above

271 JAN19621 N o t e s

between States were progressive if they forwarded dharma the reverse might lead to a States merger within another

Dharma implies self-determination within the caste-structure a structure that could be adjusted by negotiation between the groups bearing prestige and wielding pressure Individual ambi- tions are sunk in the family sub-caste and caste Yet freedom of belief and of expression of belief is guaranteed by dharma which desires the individuals rise through births and deaths to an ulti- mate goal that only faith and activities expressive of faith can achieve

Struggles between European countries seem inept in Indian eyes Each has corresponding functions to facilitate fulfilment of dharma it is not clear whether the causes of jealousy and fear are related to any hindrances to such fulfilment Struggles between blacks and whites within a State come in another category Each group must find its own level without resort to force since force cannot settle the limits of caste-function and duty moreover dis-crimination by colour is meaningless for caste and colour (which were once related) are not coextensive Hostility on the ground of belief is senseless since belief must be free (as must non-belief) the State being concerned to enable the subject to find his salvation along his own path provided that path does not entail the closing of others Wiliness in diplomacy may be allowable but hypo-crisy in declaring aims is inconsistent with the function of the State and may be fatal to it Truth is not only practical but profitable for dharma requires and provides sympathy with the unreasonable as well as the unpleasant

Weapons which destroy non-combatants are fundamentally wrong as life may only be at risk in defence of the social order or dharma itself The concept of the caste-function runs indeed through the whole theory Is it useless for non-Indians We have noted an appropriate translation above Even India herself is rapidly developing towards a revision of the definition of caste which is now more and more recognised (if at all) as a matter of aptitude or a reward for merit World-conflicts should be resolved by commencing not at the top but at the bottom Indi-viduals should realise their real needs and functions (as opposed

On the nature of dharma (in this context) see P V Kane History o f Dharmadaxtra (Poona 1941) 11 1 pp 2-11 K V Rmangaswami Aiyangar ed Krtyahalpataru of Bha t fa Lakgmidhara (Baroda 1948) Vol I introd 17-30 the same Rajadharma (Adyar 1941) the same Aspects of the Social and Political S y s t e m o f J lanusmyt i (Lucknow 1949) the same Some A ~pec t s of the H i n d u View of L i f e according to Dharmains tra (Baroda 1952) the same Ind ian Caneralism (Adyar 1919) lectures 111 IT and T I

3 See the unscholarly but significant dissenting judgment of Justice Kapur in V i Giri v D Su1i Dora [I9591 AIR SC 1318 1331

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent

271 JAN19621 N o t e s

between States were progressive if they forwarded dharma the reverse might lead to a States merger within another

Dharma implies self-determination within the caste-structure a structure that could be adjusted by negotiation between the groups bearing prestige and wielding pressure Individual ambi- tions are sunk in the family sub-caste and caste Yet freedom of belief and of expression of belief is guaranteed by dharma which desires the individuals rise through births and deaths to an ulti- mate goal that only faith and activities expressive of faith can achieve

Struggles between European countries seem inept in Indian eyes Each has corresponding functions to facilitate fulfilment of dharma it is not clear whether the causes of jealousy and fear are related to any hindrances to such fulfilment Struggles between blacks and whites within a State come in another category Each group must find its own level without resort to force since force cannot settle the limits of caste-function and duty moreover dis-crimination by colour is meaningless for caste and colour (which were once related) are not coextensive Hostility on the ground of belief is senseless since belief must be free (as must non-belief) the State being concerned to enable the subject to find his salvation along his own path provided that path does not entail the closing of others Wiliness in diplomacy may be allowable but hypo-crisy in declaring aims is inconsistent with the function of the State and may be fatal to it Truth is not only practical but profitable for dharma requires and provides sympathy with the unreasonable as well as the unpleasant

Weapons which destroy non-combatants are fundamentally wrong as life may only be at risk in defence of the social order or dharma itself The concept of the caste-function runs indeed through the whole theory Is it useless for non-Indians We have noted an appropriate translation above Even India herself is rapidly developing towards a revision of the definition of caste which is now more and more recognised (if at all) as a matter of aptitude or a reward for merit World-conflicts should be resolved by commencing not at the top but at the bottom Indi-viduals should realise their real needs and functions (as opposed

On the nature of dharma (in this context) see P V Kane History o f Dharmadaxtra (Poona 1941) 11 1 pp 2-11 K V Rmangaswami Aiyangar ed Krtyahalpataru of Bha t fa Lakgmidhara (Baroda 1948) Vol I introd 17-30 the same Rajadharma (Adyar 1941) the same Aspects of the Social and Political S y s t e m o f J lanusmyt i (Lucknow 1949) the same Some A ~pec t s of the H i n d u View of L i f e according to Dharmains tra (Baroda 1952) the same Ind ian Caneralism (Adyar 1919) lectures 111 IT and T I

3 See the unscholarly but significant dissenting judgment of Justice Kapur in V i Giri v D Su1i Dora [I9591 AIR SC 1318 1331

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent

272 Internat ional and Compara t i ve L a w Quarter ly [VOL 11

to their fancied interests)-the State is in any case committed to forwarding these-then causes of hindrance (if any) should be identified and removed by bargaining At all events steps which impede d h a r m a cannot logically be adopted in an attempt to fur- ther dharma Indian experience certifies that individual prestige is less important than the satisfaction of human needs on a broad scale and reason as well as superstition worked to maintain a respect for ultimate sanctions (the sought-for third force ) which lay in an inter-group and intra-group public opinion This public opinion existed throughout Indian kingdoms and was on the whole very successful We appear to be beginning to create something like a counterpart to it in the world at large

J DUNCANM DERRETT

REVISIONof the Criminal Code in Ghana was overdue I t was first enacted in the Gold Coast as Ordinance No 12 of 1892 Subse-quent amendments and accretions had of course accumulated but until 1960 there had been no thorough-going overhaul and revision of the Code These have now been accomplished and from January 1 1961l the new shorter Code (Act 29) has been in operation- simplified in many respects and amended significantly in certain parts to produce clarity with economy in drafting and arrange-ment but fundamental changes of substance are few Most strik- ing and welcome are the recasting of the Code involving the wholesale rearrangement of and within sections the repeal of obsolete enactments the consolidation in the Code of provisions formerly found elsewhere (in amendments or separate enact-ments) and the new grading of offences But i t is evident that the Code has been thoroughly combed and considered with a view not to importing major changes but to improving the presentation of the existing law

The Criminal Code enacted in 1892 and its contemporary Criminal Procedure Code were prepared by Sir Joseph Hutchin- son (Chief Justice of the Gold Coast from 1889 to 1895) and closely modelled on the Codes drafted by Chief Justice Carrington for St Lucia enacted there in 1889 and still in force (as amended from time to time) The St Lucia Criminal Code in turn was based on that drafted for Jamaica by Mr R S (later Mr Justice) Wright but never brought into force there3 This interesting genealogy

1 See s 319 (1) 2 319 sections replacing the 470 of the forruer Code and parts of seven other

enactments 3 -1 similar Code a s introduced in British Honduras and St Vincent