History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.659.1

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.