History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.628

v4.c63.t2.628

The conflict of smṛtis among themselves presents much greater difficulties. From very ancient times authors of smṛtis differed greatly among themselves. A few striking examples may be cited. Āp. Dh. S. (I. 6. 19. 2-12) cites the views of ten predecessors on the question of the persons whose food may be partaken of by a brāhmaṇa (*ka aśyānnaḥ*). The difference between Gautama and Baudhāyana on the one hand and Āp. on the other on the question of the validity of certain usages in certain localities has already been referred to (p. 858). In III. 16 Manu mentions three views (and four sages) on the question of the position of a brāhmaṇa who marries a śūdra wife or has a son or a child from her. Baud. Dh. S. I. 8. 2, Manu III. 13, Viṣṇu Dh. S. 24. 1-4, Pār. Gṛ. I. 4, Vas. I. 25 show that brāhmaṇas were allowed to have śūdra women as wives. But Yāj. I. 56 emphatically dissents from this by stating 'this is not my view'. In this state of affairs the medieval digests and commentators were hard put to it to evolve rules of interpretation. One rule early evolved was that when two smṛti texts were in conflict, 'reasoning based on the practices of elders (śiṣṭas) was of greater force' (Yāj. II. 21)¹⁶⁸². The Mit. explains that ratiocination may take the form of holding that one text lays down a general rule and the other lays down a special rule (which prevails over a general rule), or the text may be held to relate to different sets of circumstances or in the last resort it may be held that there is an option, but in arriving at these conclusions the practice of the old or of śiṣṭas who follow the rule in one text and discard or avoid the rule in the other text is the guide¹⁶⁸³. Bṛ.¹⁶⁸⁴ gives the following warning to those who do not take reasoning into consideration: ‘The decision (in a cause) should not be given by merely relying on śāstras, for in the case of a decision devoid of reasoning loss of dharma results’. Nār. (I. 40) provides in a strain similar to the Mit., ‘when there is conflict between two texts of dharmaśāstra, it is declared that the method to adopt is to resort to reasoning, for the practices (of śiṣṭas) are of great force and the strict letter of the law is overruled by them (or properly understood through them)’. These provisions remind us of the working of the principle of *æquitas* applied by the prætors in Rome to the rigid older legislation or the influence of Equity in English Law. When old rules become too narrow or are deemed to be not in harmony with the views of a changing or progressive society, it was thought to be the privilege of the king or the judge to adopt his practice to the existing state of society and not to decide a case by a too strict adherence to ancient dicta.