History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.659
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.659
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v4.c63.t2.659.1
The case of conflict between smṛti and customs has now to be considered. The general rule deduced from Vas. I. 5, Yāj. I. 7 and supported by the Mit. (on Yāj. I. 7 and II. 117), the Sm. C. (II. p. 266), Kullūka (on Manu. II. 10) and several others is that smṛti is of superior authority to the usages of the śiṣṭas. But from early times there have been dissenting voices. Viśvarūpa on Yāj. III. 250 states that that purport of the smṛtis is to be followed which is in accordance with the settled practice of the śiṣṭas resident in Āryāvarta¹⁷⁰⁵. On Manu IV. 176 Medhātithi points out that *niyoga* is permitted by such smṛtis¹⁷⁰⁶ as Gaut. 18. 4-14, Yāj. I. 68-69, Vas. 17. 56-65, but being condemned by the people it is not practised. Therefore the principle that may be deduced from these is that the prescriptions of smṛtis (and even of śruti) need not be observed and should not be observed when they are vehemently condemned by the people. The chapter on Kalivarjya will make this clear. Commentators like Medhātithi (on Manu II. 10) went so far as to say that Dharmaśāstra is that which prescribes what is to be done for attaining dharma, that is smṛti from which dharma which one performs as a duty is understood and therefore śiṣṭācāra¹⁷⁰⁷ also is smṛti. The smṛtis themselves embodied the practices of the people current in their days, as Manu I.
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107 declares, 'in this work dharma has been fully stated as well as the good and evil qualities of (human) actions and the ancient customs and usages of the four varṇas.'¹⁷⁰⁸ Manu adds (I. 108), 'ācāra (customs and usages) are transcendental law, and so are the practices declared in the Veda and the smṛti; therefore a twice-born person desirous of his own welfare should always make efforts to follow it'.¹⁷⁰⁹ This has been the basic text in modern decisions that recognize the binding nature of customs. It is therefore necessary to understand the exact meaning of this verse. Two constructions are possible; (1) that the word ācāra is qualified by the words 'śrutyukta' and 'smārta' and that the first half declares that usages declared in the Veda or smṛti are transcendental law (this is the meaning given by most commentators of Manu); (2) that ācāra by itself and other rules of conduct declared in the śruti or smṛti are transcendental (i. e. here in the first half of the verse there is a reference to three kinds of ācāras, as Govindarāja and Nandana explain). If we look to the preceding verse and the following verses (that eulogise ācāra) the 2nd construction looks more natural and has been accepted by the decided cases when¹⁷¹⁰ they lay down that 'immemorial usage is transcendental law' (Sir William Jones' translation of Manu I. 108) and that "under the Hindu system of law clear proof of usage will outweigh the written text of the law". The Anuśāsana (141. 65) and Śānti 354.
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6 expressly state that dharma is threefold viz. that declared in the Veda, that declared in the smṛtis and the third is what is practised by śiṣṭas. Sumantu¹⁷¹¹ emphatically declares that family usage should be preferred to the prescriptions of śāstra. The Kūrmapurāṇa¹⁷¹² (Uttarārdha 15. 19) appears to support the 2nd interpretation when it says, 'one should observe that ācāra which is declared by the śruti and smṛti and which is rightly followed by the good'. The exact import of the word ācāra (or sadācāra) has been shifting from age to age and among commentators. In the earliest days, as shown by the Tai. Up., Gaut. (28. 48, 51), Baud. Dh. S. I. 1. 4-9, Manu XII. 108-109, Vas. I. 6, the ācāra to be followed was that observed or declared by learned brāhmaṇas who were highly moral and selfless (the śiṣṭas). Medhātithi on Mann II. 6 states that binding ācāra is that of śiṣṭas learned in the Vedas. Gradually every usage that had no visible secular purpose came to be looked upon as binding and lastly the usages of śūdras, of *pratiloma* castes and even of heterodox sects became, as will be shown in the sequel, enforceable by the king. As observed in 39 Mad. 298, 301 the commentaries indicate an attempt to reconcile the text law with the actual usages of the people.