History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.602
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.602
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The general rule about the binding character of customs is set out as follows. Gaut. (XI. 20) observes,¹⁶⁶² 'the dharmas (customs) of countries, castes and families, which are not opposed to the Vedic scriptures, are authoritative and binding'. Gaut. provides in the next two sūtras that cultivators, traders, herdsmen, money-lenders and artisans can lay down conventions or usages that would be binding on the respective classes, that when a dispute arises as to these usages the king should learn affairs from those who wield authority over those classes and decide the dispute accordingly. Vas. I. 17 states, 'Manu has declared that the (peculiar) customs of countries, castes and families may be followed in the absence of rules propounded by the Veda', and in XIX. 7 prescribes that the king should enforce these among the four varṇas. Āp. Dh. S. II. 6. 15. 1 appears to lay down that the customs of countries and families (if not opposed to Veda) are authoritative and are to be followed in the respective countries or families. But this view seems to be unacceptable to Baudh. Dh. S. (I. 1. 19-26) which says,¹⁶⁶³ 'there is difference of opinion regarding five (practices) in the South as well as in the North. We shall explain those peculiar to the south. They are: to eat in the company of (in the same plate with) one whose upanayana is not performed, to eat in the company of one's wife, to partake of stale food, to marry the daughter of a maternal uncle or of a paternal aunt.
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Now (the customs peculiar) to the north are: to sell wool, to drink rum, to deal in the sale of animals with an upper and a lower row of teeth, to follow the profession of arms and to travel by sea. He who follows (these practices) in any other country than where they are generally in vogue commits sin. For, in respect of these customs the authoritativeness must be restricted to the respective countries. Gautama declares that this is false. And one should not approve of (accept) either (of the two sets of practices), because they are opposed to the tradition of śiṣṭas (or opposed to the smṛtis and the views of śiṣṭas)'. The Tantravārtika¹⁶⁶⁴ (p. 211) mentions the argument of some concerning these passages of Āp. and Baud. viz. that Āpastamba's very general statement that practices of countries and families are authoritative in the respective countries cannot be accepted as valid, as it is opposed to the views of Gaut. (XI. 20), as Baud. expressly states that certain practices though prevalent in certain localities cannot be accepted as valid and binding even in those localities because they are opposed to the express words of such authoritative and highly venerated smṛtis (as those of Manu). Manu in several places provides for the enforceability of customs and usages. In Manu VII. 203 it is said, 'the conqueror should hold as authoritative and binding the lawful customs of the conquered country, just as they are stated to be' and in Manu VIII.
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41 and 46¹⁶⁶⁵ it is provided, 'A king who knows dharma (sacred law) should carefully inquire into the customs of castes, of countries, of guilds and of families and settle (or enforce) the customs peculiar to each. Whatever may have been practised by the good and by twice-born men devoted to dharma, that shall be established (by the king) as the law, provided it be not opposed to the (customs of) countries, families and castes'. Medhātithi adds that the king has to see whether the customs of countries, families, castes and guilds are directly in conflict with the Veda or are harmful to others or utterly immoral (such as marrying one's mother) and only those that are found not to be so are to be enforced by the king and he¹⁶⁶⁶ adds on Manu II. 6 that the practices of śiṣṭas (persons who are well conducted, free from greed and learned in the Veda) on matters on which the Veda and smṛti are silent and which they observe with the consciousness that they (practices) are right (dharma) should be deemed to be based on Veda. He offers certain illustrations of such practices and also relies¹⁶⁶⁷ upon the words of the Mahābhārata (Vanaparva 313. 117), 'what is true dharma is concealed as in a dark cave; the (only) path is to follow great men'. In I. 118 Manu declares that the ancient (or long enduring) laws (or customs) of countries, castes, families and the rules among heretics and companies (of traders and the like) have been dealt with by him in the śāstra (Institutes). Yāj. I.
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343 provides that when a conqueror reduces a country to subjection he should preserve intact whatever customs, laws and judicial procedure, and family usages are handed down from generation to generation therein (provided they are not opposed to śāstras and, as the Mit. says, he should not cause confusion by imposing the usages of his own country on the conquered country). Yāj. II. 192 (like Manu and Gaut.) provides that the varying usages and conventions of śreṇis (guilds of artisans), naigamas (traders), heretics and associations (of soldiers and the like) should be respected by the king in the same way as he honours the usages of learned brāhmaṇas. About the latter Yāj. II. 186 says that the king should sedulously enforce the conventions of learned brāhmaṇas which are not opposed to the dictates of the Veda and smṛti (such as about pastures, water-courses and wells and the preservation of temples) and he should also enforce his edicts that are not opposed to Veda and smṛti (such as making provision for travellers and prohibiting the sale of horses to an enemy &c.). Kauṭilya prescribes¹⁶⁶⁸ that the king should follow as regards inheritance and partition the customs that are in vogue in a country, a caste, a *saṅgha* (company or guild) or a village. Devala¹⁶⁶⁹ and Bṛhatparāśara (X. p. 281) have a verse very similar to Yāj. I. 343. The Mahābhārata remarks that there is no custom or practice that can be said to be beneficial to all alike¹⁶⁷⁰.
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From this it follows that variations in practices were to be tolerated by the king. Bṛhaspati¹⁶⁷¹ advises the king to keep intact the customs of countries, castes and families that have been long in vogue in them and states that otherwise the subjects become irritated and disaffected and there is loss of wealth and army. He gives certain striking illustrations of peculiar practices: 'members of the twice-born classes in the southern countries take in marriage their maternal uncle's daughter; in the middle country (the country between the Himālaya and the Vindhya lying to the west of Prayāga and to the east of Vinaśana where the Sarasvatī disappears, as said by Manu II. 21) artisans and menial workers eat the flesh of a cow; in the eastern countries people (all including brāhmaṇas) eat fish and women are given to adultery; in the north women drink liquor and contact with them even in their monthly illness is allowed; the people of the *Khaśa* country take as wives the widows of their own brothers; these several people are not liable to undergo punishment or penance because of their doing these things in the respective countries'. Medieval writers differed about the meaning of the last half verse. The Madanaratna said (acc. to V. P. p. 22) that there is neither punishment nor prāyaścitta when the above practices which are opposed to smṛti texts are indulged in by the inhabitants of the countries specified, while the V. P. p.
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22 holds that there is only absence of punishment at the king's hands for these people in those countries, but they are still liable to undergo prāyaścitta and that if these practices are followed in other countries both punishment and prāyaścitta have to be undergone.