Mathomathis would like to present an article on one of the Yajnavalkya Smriti and Ancient Indian Law. The following article was adapted from “Aloysius Michael, Radhakrishnan on Hindu Moral Life and Action, Concept Publishing Company, Delhi, 1979, p. 130”. Jurisprudence or legal system, which is termed as Vyavahara Dharmasastra, is an important portion as far as the Dharmasastra literature is concerned. The development of this Vyavahara dharmasastra can be traced back to the Vedic texts in which certain principles of law are laid down. The term ‘Rta’ that appears in Vedic Samhitas, though it originally meant the uniformity of nature or cosmic order, stands for law and convention, etiquette and moral principles. The concept of Dharma in Vyavahara portion appears to have developed from this idea of ‘Rta‘. The special manuals that deal with secular as well as religious laws in ancient India are collectively called as Dharmasutras. They comprise texts of three categories: “The Dharmasutras”, “The Metrical Smritis” and “The Commentaries” and digests called ‘Nibandhas‘. These texts are accepted to be the authoritative texts of conducts for the individuals as well as the society. They moulded and governed the moral and social ethics, customs and practices and political laws of Indian society from very ancient times.
The Dharmasutras, otherwise known as Samayacarikasutras (Samaya means agreement and Acara means custom) form a part of the Vedic supplement called Kalpa Sutras, which include mainly three types of expositions such as Srauta, Grhya and Dharma. The fourth one, Sulba Sutras, can be considered as supplements to the Srauta Sutras as they give geometrical and mathematical patterns of the fire altar and sacrificial sheds etc. in different Yagas. The Srauta and Grhya Sutras exclusively deal with ritual matters while Dharmasutras analyze and interpret the wider relations of the individual to the society. It includes areas of individual and social behaviour and norms as well as personal, civil and criminal laws. Several such texts are referred to or cited by various writers of which only four are actually available now. They are that of
Apastamba, Gautama Baudhayana and Vasistha.
These texts are not the works of individual authors, but they are traditions of school of thoughts represented by such authors. Though there are differences of opinion regarding the matter which of these texts are earlier or later, generally their dates can be assigned to a period between 6th and 1st century B.C. The central focus of these texts is the religious rites and ceremonies and moral duties of different classes of the community. In connection with these, topics like marriage, inheritance, son-ship and administration of justice are also dealt within them. Different types of marriages, various kinds of sons and their right to inheritance are prescribed in the second book of Apastamba. Kandikas 25 — 29 of the same book deal with several topics like protection of subjects, appointment of security officers, crime and punishment and judicial process.
The GDS also covers rules on various matters like marriage, inheritance, partition and Stridhana. The third Khanda of second Prasna of BDS deals with partitioning of the paternal estate, types of sons, inheritance of different sons and inheritance of women. The topics like duties, taxes, crime and punishment and witnesses discussed in this treatise also are noteworthy. Apart from the above mentioned topics, VDS prescribes rules and regulations on adoption, which have been accepted later as the supreme authority in almost all the schools of Hindu law. Quotations from the Dharmasutras of Harita, Vishnu, Sakha and Likhita are available in later Smriti texts. Such quotations prove that those texts also contain prescriptions related to civil and administrative law. It is true that the topics mentioned above contain certain bare references to different aspects of Vyavahara. They do not deal with detailed laws and rules as in later Smriti texts. Still they can be considered as the base for the development of the Vyavahara law in the later Smrti texts.
Development of Legal System in Smriti Texts
The legal texts composed in Slokas are commonly called as Smritis. In these texts all the legal principles, scattered here and there in Vedic texts and Dharmasutras and the customs and practices accepted by the society, are collected together and arranged in a systematic manner. The earliest representation of such codification is Manusmriti (MS) in which all kinds of religious, social and legal rules are seen described. A more scientific and systematic treatment of these topics is found in YS. The broad division of the text into three parts, Acara Vyavahara and Prayascitta, itself is significant. The Vyavahara dhyaya, which contains twenty five Prakaranas, is devoted to the discussion of the eighteen points of dispute. Here Yajnavalkya does not confine to the eighteen titles of law prescribed by Manu. He states that a Vyavahara arises if any right of any person is infringed or any injury is caused. It can be said that Yajnavalkya inaugurated a new phase in the development of ancient Indian legal system.
As far as Narada Smriti is concerned, the entire text is dedicated for Vyavahara portion only. A detailed discussion of the eighteen titles of law, with great clarity, is given there. By omitting Acara and Prayascitta portions, it makes a departure from the earlier works. It also presents some advanced and progressive views regarding juristic principles. Other two important texts related to law are: Brihaspati Smriti and Katyayana Smriti. Both these texts are not traced fully. As regards the Brihaspati Smriti, only a reconstructed text by Prof. K.V. Rangaswami Aiyangar is available now. In the printed text the Vyavahara section covers 228 pages. It is Brhaspati, who for the first time made a clear distinction between civil and criminal justice. The basic concept of law of partnership, laid down in this Smrti, corresponds to the modem concept of the law of partnership. The verses attributed to Katyayana in the commentaries and digests have been collected and published under the title Katyayana Smrti saroddhara by P.V.Kane. These collected verses will convince one that Katyayana’s treatment of Vyavahara is far more developed and scientific than those of Manu and Yajnavalkya. P.V.Kane points out that the rules of law laid down by Katyayana, have notable similarity with the modem advanced legal system.
Commentaries and Digests
The age of metrical Smritis ended probably at about the end of the first millennium of A.D. The next stage of the development of ancient Indian legal system is the ages of commentaries and Nibandhas. Due to several reasons, the society was confronted with problems in connection with application of the rules and laws as contained in the Smritis. Sometimes these texts contained certain conflicting provisions. In certain contexts, statements in them were more or less ambiguous. Still in some other matters the Smrtis were silent. So in order to understand the exact meaning of such passages and to ensure their proper application, the interpretation of the passages became indispensable. For this, the jurists and commentators composed commentaries on earlier Dharmasutras and Smritis. Thus from about ninth century A.D. onwards several commentaries on earlier Dharmasutras and Smritis were composed. Besides these commentaries, another type of treatises called ‘Nibandhas‘, which are in the form of digests, were also written profusely. These commentaries and digests revised and modernized the Vyavahara law according to the need of the time. Several such works have been accepted as authoritative texts and were enforced by the courts till the recent time. A list of such works referred to by M. Rama Jois is given below:
|1||Mitak-Sara of Vijnanesvara|
|2||Dayabhaga by Jimutavahana|
|3||Smriti Chandrika by Devannabhatta|
|4||Vivada Ratnakara by Chandesvara|
|5||Parasara Madhaviya by Madhavacarya|
|6||Vivada cintamani by Vacaspatimisra|
|7||Vivada candra by Laksmidevi|
|8||Sarasvati Vilasa by Prataparudradeva|
|9||Daya Tattva by Raghunandana|
|10||Vyavahara Nirnaya by Varadaraja|
|11||Vyavahara Mayukha by Nilakanthabhatta|
|12||Viramitrodaya by Mitramisra|
|13||Nirnaya Sindhu by Kamalakara|
|14||Yajnavalkya Dharmasastra by Apararka|
|15||Dattaka Mimamsa by Nandapandita|
|16||Dattaka Candrika by Kubera|
|17||Daya krama Sangraha by Srikrsnatarkalankar|
Like the Dharmasastra texts, the two epics, Ramayana and Mahabharata, Kautalya’s Arthasastra and Sukraniti Sara are some important sources as far as ancient Indian legal system is concerned. While narrating different kinds of stories, both the epics incorporate several principles of law which were prevailing in the society. M. Rama Jois points out that the Rajanitiratnakara of Candesvara quotes Ramayana as an authority in the right of the eldest son to succeed to his father’s kingdom. As regards Mahabharata, it is accepted as a Dharmasastra text itself. Especially Santiparva and Anusasanaparva, which contain a lot of information on the topics of law, are noteworthy. Kautalya’s Arthasastra, which is a masterly treatise on statecraft, occupies an important place in the legal history of India. Book No. Ill entitled Dharma Sathiya deals with law and its administration. Rules regarding inheritance and partition of ancestral property are discussed elaborately there. Sukranitisara, a work which is a compilation of rules on Rajadharma, also deals with Vyavahara law like administration of justice including judicial procedure. Several Smrti writers quote verses from the above mentioned texts as authority in Law.
Customs outweigh the law
It is to be specially mentioned here that even though there are large number of authoritative Dharmasastra texts, the customs followed traditionally were recognised as supreme authority in Hindu Law. Manu declares: Achara Paramo Dharma (Accept custom to be transcendent law). Yajnavalkya goes one more step ahead saying that a person should not practise even when what is ordained by the Smritis, if it is opposed to the custom. Local customs, caste customs and family customs are encountered as authority in the law. Under the British rule, Privy Council also has accepted the authority of the customary practice. Several cases were settled in courts on the basis of these customary laws. Thus the ancient Indian jurisprudence has a continuous development from the ages of the Sutras up to the Viramitrodaya, a monumental work of Mitramisra written in 17 century. In several aspects this legal system has influenced the modem Hindu law also.