History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.371
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.371
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Very intricate questions arise with regard to the relative force of śruti (Veda), smṛti and sadācāra (usages observed by śiṣṭas as defined above and in Manu XII. 109). The Mit. on Yāj. I. 7 (laying down five sources of Dharma viz. śruti, smṛti, sadācāra, and two more) states the general rule that in case of conflict each preceding one is more powerful than each succeeding one. Manu (I. 12) states that, for those who desire to know Dharma, Śruti (Veda) is the highest authority. Therefore, in case of conflict between śruti and smṛti the former prevails. There are a few exceptions even to this clear rule which may be illustrated later on But where two smṛtis are in conflict, the ordinary rule, following the Ṣoḍaśi-nyāya and the words of Gautama I. 5 (Tulyabalavirodhe vikalpaḥ), should be an option. Many works on Dharmaśāstra must have been composed long before 500 B. C., since Gautama mentions Manu (in 21. 7) and 'ācāryāḥ' (in 3. 35, 4. 18) and Āp. Dh. S. (I. 6. 19. 2-12) mentions no less than nine individual authors' opinions on the single question as to whose food may be eaten. Manu (in III. 16) mentions three views held by four sages on the position of a brāhmaṇa who marries a śūdra wife or has a son or child from her. A striking example of a conflict between smṛtis is the rule of Manu (III. 13), Baud. Dh. S. I. 8. 2, Viṣṇu Dh. S. 24. 1-4, Vas. I. 25, Pār. Gr. I.
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4 allowing anuloma marriages and permitting a brāhmaṇa to have a śūdra woman as a wife and the emphatic statement of Yāj. I. 56-57 that it does not agree with those that declare that persons of the three higher classes can take a śūdra woman as wife. Later writers of smṛtis and nibandhas should have said that on account of this conflict there is an option. But they do not say so. They struck upon various devices to wriggle out of such apparent contradictions. The first device was declared by Bṛhaspati (about 500 A. D.) that the Manusmṛti occupies a pre-eminent position as it correctly represents the sense (the real view) of the Vedas and that a smṛti which is opposed to the teaching of Manu is not held in esteem.²⁰⁵⁹ But this was not satisfactory and some other devices were resorted to. One was to insert passages in Manusmṛti itself and in other works opposing what had already been declared as the law Two examples may be cited. As against Manu III. 13 (referred to immediately above) we find in the extant text (III. 14-19) verses very strongly condemning persons of the three higher *varṇas* taking a śūdra woman as wife. Manu allowed the practice of *niyoga* (in IX. 59-62), but the extant Manusmṛti (IX. 64-68) condemns it in no measured terms. These contradictory statements were known to Bṛhaspati who expressly says that Manu permits *niyoga* and himself forbids²⁰⁶⁰ it and assigns a reason viz.
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that in former ages (Kṛta and Tretā) people practised *tapas* and were endowed with knowledge while in the Dvāpara and Kali ages men have lost the powers possessed by men of the past ages and therefore *niyoga* is forbidden. Yājñavalkya himself proposes (II. 21) that when two smṛtis are in conflict 'reasoning based on the practices of elders was of greater force'. Nārada has a similar rule.²⁰⁶¹ Another device was to declare that the nature of Dharma differed in each of the four yugas and that in the kṛta, tretā, dvāpara and kali ages the Dharmas respectively promulgated by Manu, Gautama, Śaṅkha-Likhita and Parāśara were to prevail.²⁰⁶² This also could not solve all difficulties, since medieval commentators and digests found that even what was allowed by Parāśara (such as permitting a brāhmaṇa to eat food at the²⁰⁶³ house of such sūdras as his dāsa, cowherd, barber, family friend and a cultivator of his land for a half share of the crops, permission for a married woman to re-marry in certain circumstances), came to be disapproved of or condemned by people. Another expedient in cases of conflict among smṛtis was provided by Gobhila viz. where there is a conflict of (smṛti) passages, the opinion of the majority should prevail.²⁰⁶⁴