Hindu Law and Custom (Recht und Sitte) c7.160

c7.160

§ 6. *Yājñavalkya*. While the Dharmasūtras in general represent an older stage of development than our M. this Smṛti is the foremost among the metrical works. In the passage of Kumārila, often referred to, mention is made of Gaut., Vas. and other Sutra-works, and he also frequently cites our M. whom he considers to be the highest authority in the sphere of Dharma. The great Mīmāṃsaka seems to have known no other metrical Smṛti than M. and an examination of the contents of these works shows that they are less archaic than M. and expressly or tacitly, assume him to be their predecessor. First of all Yājñavalkya comes into consideration, about whom Stenzler¹, the editor and translator of Yājñavalkya, is of opinion that in antiquity he is posterior to M. but precedes all other authors and therefore represents the next phase after M. In fact the advance on M. is unmistakable, it is evident even from the more concise form of its contents which enabled Y. to discuss almost all the topics handled by M. in 1009 Śl. instead of M.'s 2684 ; they are roughly divided into three sections, approximately of equal length, on custom, law and penance. The section on law does not expressly refer to M.'s classification of the law under 18 heads ; the commentators however divide it in a similar manner but add to the above 18 two more : conditions of service and miscellany (cf. §7). The order is indeed slightly different in Y. for, the law of inheritance, disputes about boundaries and the transgressions of the shepherd here occupy the 3., 4. and the 5. places, gambling and betting the 12. place, etc. In the of law inheritance the widow's claim to property and that of the daughter in the absence of male issue are fully recognised (2, 135), while M. still like the Dharmasūtras, takes a very unfavourable view of women's claim to property. In the law of debt Y. (2, 37-67) deals with mortgages and the foreclosure of the same, various kinds of securities and with the liability for debts, much more exhaustively than M. Generally Y. lays particular stress upon private law, specially upon the law of trade—the criminal law being of less importance to him. Y.'s treatment of the hearing of witnesses and, on the whole, that of the judicial procedure are on a decidedly advanced footing. While in M. the evidence is essentially based on deposition and along with it only the water and fire-ordeals are mentioned, Y. 2, 22 mentions the written document as the chief testimony and (2, 84-94) gives elaborate rules of drawing up and testing documents. He describes at length (2, 95-113) five different kinds of ordeals which should be resorted to in default of other means of evidence. He (2, 24-29) also lays down systematic principles about the law of possession and usucaption barely alluded to in M.; the same about appeal (2, 30). The penances likewise are more diverse in character in Y. 3, 310-328 than in M. In connection with social customs I mention only his polemic against the marriage of a Brahman with a Śūdra woman (1, 56). According to the Mit. this polemic is directed against M. 3, 13 and it is quite credible. The fact that M. here is not expressly mentioned by Y. testifies to the high esteem which he must have been already enjoying at the time of Y.