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The Positive Background of Hindu Sociology c12.s3: Dharmaśāstras (Smritis)

The Positive Background of Hindu Sociology c12.s3

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Dharmaśāstras (Smritis)

c12.s3.1

The compilers of the leading *Dharma sūtras (śāstras)*⁹ during the epoch from Kauṭalya to Varāhamihira were as follows :
1. Viṣṇu (c 250 A.C.)
2. Śankha (c 300 A.C.)
3. Yājnavalkya (c 350 A.C.)
4. Nārada (c 500 A.C.)
5. Brihaspati (c 550 A.C.)
6. Kātyāyana (c 550 A.C.)

c12.s3.2

⁹ P. V. Kane : *History of Dharmasastras* Vol. I. (Poona 1930) pp. 59, 69, 79, 148, 187, 205, 210, 218, Winternitz : *Geschichte* III, 482, 498, 500. See the Chapter on "the concept of law" in A. K. Sen : *Studies in Hindu Political Thought* (Calcutta 1925) pp. 85-134.

c12.s3.3

The political (*Artha*) tradition was kept up by the *Dharmaśāstras* during this period as before.

c12.s3.4

It is to be recalled, as observed above (p. 203), that the *Dharma* or *Smriti* treatises are mainly books on "private" law (i.e. the law of family and property) while the *Artha* and *Nīti* treatises are books on "public" law (i.e. constitution or polity).

c12.s3.5

Let us see a bit of the private law as expounded by Nārada, a leading jurist of the Gupta Empire.

c12.s3.6

Nārada's exposition of private law commanded authority as well as a considerable degree of popularity in mediaeval India. A large part of his doctrines was incorporated sometimes without acknowledgment, in the works of subsequent writers on both civil and criminal law, while commentators ascribed to him all sorts of important texts bearing on legal institutions. Definitely secular and legalistic in his approach, Nārada emphasized the rule of reason as a source of law and maintained that where the sacred precept was at variance with custom, the latter should prevail.

c12.s3.7

Nārada’s code of law deals in the introductory chapter with legal procedure, complaints and courts of justice. Then the law is classified under eighteen titles similar to those of Manu, except the minor differences and the fact that Nārada eschews entirely the social and religious items contained in the former's encyclopaedic treatise. Nārada's classification includes debt, deposits, partnership, breach of labour contracts, boundary disputes, marital relations, inheritance and heinous offences. Like Manu and Yājnavalkya he is liberal and sympathetic in his treatment of the rights of illegitimates, permitting an illegitimate son to inherit his maternal grandfather’s property (xiii : 18). But he differs substantially from these authorities in that he holds that even the youngest son, “if able,” may govern the family and manage its property (xiii : 5) and allows a father to distribute the property among his sons in whatever proportion he desires (xiii : 4, 15). In his system the widow may inherit part of her husband’s property, while unmarried daughters may share in their father’s estate (xiii : 3, 12, 13). The right to divorce and remarriage is allowed to women on many grounds (xii : 96-101). Books xii and xiii of the *Nārada-smriti* are the embodiments of modernism in ancient Hindu conceptions of property and marriage. As the exponent of a secular and realistic view of the law Nārada appears to be as prominent a figure in comparative jurisprudence as is Śukra in comparative politics.

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