Eternal India Encyclopedia

The above provisions laid down that dictates of prudence could

not be given overriding effect over the Dharmashastras. This rule

meant that no one should claim to be wiser than the sacred texts of

law and refuse to obey on the ground that they were opposed to

reason. However the superiority of custom evolved on the basis of

good reason and accepted and acted upon by society over the

Dharmashastras was recognised.

Asahaya, an eminent commentator on Narada, holds the view

that by virtue of the above provisions of Narada, in case of conflict

between the sacred law and approved usage or custom, the latter

prevails. Therefore Narada, Gautama and Brihaspathi recognised

the right of the people to evolve and accept by consensus and

practice any changes in the law which were good for society though

contrary to written texts. This latitude gave sufficient scope for

adjusting the law to suit the changing needs of society and was fully

utilised by the later commentators.

So far as Shruti and Smriti were concerned they were specific

and therefore the provisions contained therein were always known

and ascertainable. As regards the conventions or trade usage

which formed another source of law, in order to make them known to

the public, specific provisions were made in the Smritis for the

registration of such provision under the royal seal.

Katyayana (48-50) says: “Whatever conventions are settled

in accordance with the consent of the people of a country should

always be preserved in writing sealed with the Royal Seal. Such

conventions should be enforced just like the sacred law and the king

should decide after considering them. Whatever trade conventions

are reduced to writing by traders as fit to be carried out, these must

be given effect to and the king should not lay down anything

contrary to them.”

The above provision also reinforces the idea that it was for the

people to evolve the law even in respect of fields uncovered by the

Shruti or Smritis and that the duty of the king was only to register

and enforce the law accepted by the people, against the individuals

who contravened them.

Pitamaha states: “In cases where no principle of law is found in

the Shruti, Smritis or custom, the king shall decide according to his

good conscience.”

The above provision also did not authorise the king to legislate.

The authority recognised was that in the absence of law on any

point the king could give a decision according to the best of his

judgment having due regard to all the facts and circumstances of the

case. This is similar to the principle in modem law which authorises

the court to decide according to justice, equity and good conscience

in matters not covered by any specific provision of law.

The power to decide complicated questions of law by resolving

the conflicts or to lay down a legal provision was recognised in an

assembly of persons with prescribed qualifications called the Par-

ishad (vide Manu VII 110-114). Even in such a situation no

legislative power was vested in the king. Kings however were

empowered to issue Raja Shasana (royal edict) subject to the law

declared in the Shrutis and Smritis.

The legal literature of ancient law can be divided into two parts

The religious texts (Shruti) in which certain principles are laid

down which later developed into law. ii) The Smritis, Dharmashas-

tras and commentaries which specifically deal with civil and criminal

law.

Yagnavalkya states that the

Shrutis

and

Smritis

are the

sources of law.

Shruti

means the

Vedas

as heard and handed down

from generation to generation orally. The source of the Shruti was

believed to be divine. They include the four

Vedas

viz., i)

Rigveda

ii)

Yajurveda

iii)

Samaveda

iv)

Atharvaveda.

Further 108

Upan-

ishads

are considered as part of and supplementary to the respec-

tive

Vedas.

DHARMASUTRAS

To meet the requirements of a changing society, laws and

treatises regulating the rights and liabilities of individuals

interse

as also between the king and his subjects were written which came

to be known as

Dharmasutras

Smritis.

Some of these were in

the form of

Sutras

(aphorisms) and therefore came to be called

Dharmasutras

and others were in the form of s

lokas

(verses). The

works entitled the Smritis are all in

Sloka

form. All such literature

is collectively called

Dharmashastra.

Yajnavalkya refers to as many as 20 names including himself

as the author of

Dharmashastras

Smritis.

He states that Manu,

Atri, Vishnu, Harita, Yajnavalkya, Usanas, Angiras, Yama, Apas-

tamba, Samvartha, Katyayana, Brihaspathi, Parasara, Vyasa,

Sankha, Likhita, Daksha, Gautama, Satatapa and Vashista are the

promulgators of the

Dharmashastras.

These

Dharmashastras

therefore are regarded as the earliest works of the Hindu legal

system.

The next and the most important and authoritative source of

Hindu law is found in the

Smritis.

The compilation of the

Smritis

resembles the modem method of verification. All the legal prin-

ciples here and there scattered in the

Vedas

and Dharmasutras,

custom and usage, which came to be practised and accepted by

society were collected together and arranged subjectwise in a sys-

tematic manner. The

Smritis

also dwelt with the constitution and

gradation of courts, appointment of judges, their qualifications as

also the procedural law for the enforcement of substantive law.

They disclose a well-developed legal and judicial system. The

important

Smritis

are 1.

Manu Smriti

Yajnavalkya Smriti

Narada Smriti

Parashara Smriti 5. Brihaspathi Smriti

Katyay-

ana Smriti.

As the

Vedas

, Dharmasutras and Smritis were considered as

the law in ecclesiastical matters as well as in the field of forensic

law, the adoption of the art of

Mimamsa

(Interpretation) became

inevitable to understand the real meaning of the provisions of these

authoritative texts.

The development of Mimamsa in the first instance was for the

purpose of evolving the principles governing interpretation of relig-

ious injunctions expressed in short and cryptic sentences. Later

the same principles of interpretation came to be adopted by com-

mentators of

Dharmashastras

and

Smritis

for the interpretation of

civil and criminal law. Consequently works which exhibit outstand-

ing intellectual advancement in the matter of interpretation came to

be produced.

Mimamsa

by Jaimini, its celebrated commentary by

Sabaraswami and

Tantra vartika

by Kumaravila Bhatta constitute

the valuable source of rules of interpretation of laws.

CODIFICATION

The codification of the

Smriti

and the development of

Mimamsa

gave scope to jurists to contribute to the further development of law

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