Eternal India Encyclopedia

Eternal India encyclopedia

Ancient Concepts, Sciences & Systems

Yagnavalkya states that the 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 or 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 or 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 2. Yajnavalkya Smriti 3. Narada Smriti 4. Parashara Smriti 5. Brihaspathi Smriti 6. 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. Shrutis and

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 i) 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.

CODIFICATION The codification of the Smriti and the development of Mimamsa gave scope to jurists to contribute to the further development of law