History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.412

v7.c93.412

Though this is the theoretical rule, supported by Dharmaśāstra works such as Vas. I. 5, Mit. on Yāj. I. 7 and II. 117, Kullūka on Manu II. 10, one finds that usages opposed to smṛtis have been in vogue from ancient times (such as the usage of marrying one's maternal uncle's daughter that is condemned by Manu and authoritative smṛtis). The Vyavahāramayūkha (p. 98 of the text in B. G. S.) was constrained to observe that in the Purāṇas one often finds usages opposed to smṛtis. The courts have held that 'immemorial usage is transcendental law' and that this is the translation by Sir William Jones of 'ācāraḥ paramo dharmaḥ' in Manu I. 108. Vide H. of Dh. Vol. III. pp 874-876 for two interpretations of this verse of Manu I. 108 in modern times. Manu in (II. 10) asserts that Veda and smṛti are in all matters not to be subjected to (hostile) reasoning, since Dharma shone forth from these two. Manu further provided that as regards matters not specifically provided for, whatever brāhmaṇas that have studied the Veda together with the supporting lores (viz. the six aṅgas, mīmāṁsā, Purāṇas &c.) and that make others realize what Śruti says are śiṣṭas and whatever they declare to be the Dharma in such unprovided cases is undoubtedly the Dharma.