Hindu Administrative Institutions c10.s1.11

c10.s1.11

In later days scientific commentaries on these codes of law such as *Mitākṣara* on *Yājñavalkya* came also to be considered as legal authorities to be consulted upon in adjudication of causes. It was the privilege of the great authors of the *Dharmasūtras* and *Dharmaśāstras* to interpret the tangled Vedic texts. Even Apastamba remarks of the great difficulty in discriminating law from the Vedas.² While Apastamba and Baudhāyana recognize the *śruti*, *smṛti*, and *siṣṭāchāra* (the *sadāchāra* of *smṛtis*) as the primary sources of law, Manu adds ‘आत्मतुष्टिः’ on which Garga thus comments.³ Yājñavalkya mentions these and adds other subsidiary sources—adjudication, judicial decision, *nyāya*, *mīmāṃsa*, royal edicts and local usages.⁴ In conformity with the law-givers the *Kauṭalīya* speaks of four heads of law—*dharma*, *vyavahāra*, *chāritra* and *rājaśāsana*. *Dharma* is to speak the truth, *vyavahāra* is to rest on evidence, custom is the decision of the community or a corporate body, and *rājaśāsana* is the royal edict, or command.¹ While accepting *dharma* as the basic source, Kauṭalya, practical statesman as he is, gives a preponderating position to equity in those cases where *dharma* or the sacred law is in direct contravention of all equity. This is also the ruling of Nārada² which is not unacceptable to Yājñavalkya who speaks of the superiority of the *Dharmaśāstras* to the *Arthaśāstra*.³ It is to be inferred from this that the recommendation of equity as a source of law did not mean the breaking of the traditional law which was considered a sin against God and religion. What is equity after all? Sir Henry Maine says: ‘Any body of rules existing by the side of the original civil law founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.’ This means that though the letter of the law is violated, the spirit of the law is always kept alive in adjudicating causes.