HINDU LAW LECTURE – VII (UNCODIFIED HINDU LAW)

HINDU LAW
LECTURE – VII (UNCODIFIED HINDU LAW)

Dharmasutras

Introduction

Dharmasutras are ancient manuals of human conduct that serve as the earliest source of Hindu law.
Dharmasutras are ancient Sanskrit texts from the Indian subcontinent that serve as a codification of the
principles of dharma, or righteous conduct. They form part of the Kalpa Vedanga texts and are
classified as Sutragranthas due to their concise and aphoristic style of writing, with most of the content
presented in short sutras or aphorisms. While these texts emphasize the importance of dharma, wealth
(artha), and desire (kama), they typically do not extensively discuss liberation (moksha).

Dharmasutras are ancient Indian texts that form a part of the broader genre of Dharmashastra literature.
Composed in Sanskrit, these texts outline codes of conduct, ethical principles, and legal guidelines that
governed ancient Indian society. Dharmasutras are considered to be some of the earliest systematic
treatises on dharma (duty, righteousness, law) and provide insights into the social, religious, and legal
norms prevalent in ancient India.

These texts offer valuable insights into the way of life and societal norms of ancient India, providing
a glimpse into the ethical and moral framework that guided people’s behaviour and the social cohesion
of the society.

The Dharmasutras, ancient texts focusing on matters of dharma, provide guidance on domestic, social,
and moral aspects relevant to people in society. While they touch upon various subjects, they do not
extensively elaborate on the duties of royal persons, known as Rajadharma. Dharmasutras are distinct
from Smriti texts and are considered the source of later legal texts. They share common ground with
Grhyasutras, particularly in topics concerning domestic rituals, although Dharmasutras cover a wider
range of subjects, including social, economic, political, religious, and philosophical aspects of human
life.

Emphasizing the trivarga of Purusharthas, namely dharma (righteousness), artha (wealth), and kama
(desire), Dharmasutras delve into philosophical aspects related to ashramas (stages of life) and varnas
(social classes). They address various rituals such as Upanayana (sacred thread ceremony),
Anadhyayana (study), Shraddha (ancestor rites), Panchamahayajnas (five great sacrifices), and vivaha
samskara (marriage ceremony), which are also common in Grhyasutras.

The performance of these rituals is believed to lead to the fulfillment of desires in both this world and
the afterlife (such as svarga or heaven), ultimately guiding individuals towards Brahman (the ultimate
reality). Dharmasutras outline an indirect path (karmamarga) to Brahmaloka (the abode of Brahman),
while the Upanishads advocate a direct path (jnanamarga) leading to Brahman.

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The authors of Dharmasutras humbly acknowledge themselves as ordinary individuals, claiming to

have compiled dharma based on three primary sources: the Shrutis (revealed scriptures), Smritis
(traditions), and the conduct of virtuous and learned individuals who preceded them.

They are composed of concise rules, or sutras, which outline the fundamental principles of law
governing interpersonal relationships and the interactions between individuals and the state. These
maxims cover a wide range of topics, including caste regulations and guidelines for social, economic,
and religious conduct. Initially written in prose, the sutras were designed to be memorized and orally
transmitted by teachers, essentially serving as condensed versions of classroom lectures.

Over time, the sutras were complemented by stanzaic verses in various poetic meters, which
summarized the preceding rules. Eventually, these verse-based versions of the original Dharma-sutras
became known as Dharma-shastras. In modern usage, the term “Dharma-shastra” typically refers to
the entire body of customary rules and practices governing Hindu religious and social life.

Authors and Commentators

The Dharmasutras, typically considered the third among the Kalpasutras, distinguish themselves from
other texts within the Kalpas. While Shrauta and Grhyasutras primarily focus on ritualistic aspects of
Karmakanda, Dharmasutras extend their scope to encompass moral and ethical norms applicable to
people regardless of ritual practices, making them universally relevant treatises.

Determining the exact number of texts within the Kalpa Sutragranthas remains a challenge, as scholars
debate both the number and timing of their composition. Major Dharmasutras include those attributed
to Gautama, Baudhayana, Apastamba, Vashistha, Vaikhanasa, and Vishnu, according to S. C. Banerji.
Additionally, there are references to law books by several other authors, such as Atri, Ushanas, Kanva,
Kashyapa, and many more, known only through citations in later Smriti digests. These are designated
as minor works by Banerji.

The Dharmasutras derive their names from their authors, with the most prominent being Apastamba,
Baudhayana, Gautama, and Vashistha. However, determining authorship is complicated by the
presence of numerous spurious additions inserted at later times, identified by scholars through
linguistic studies. Among them, the Apastamba Kalpasutra is considered the best preserved, with the
least amount of interpolations. Scholars rely on various factors such as geographical references,
inscriptional evidence, textual references, linguistic analysis, and even the authors’ own statements to
unravel the complexities surrounding authorship and authenticity.

Origins and Development

The Dharmasutras originated during the late Vedic period, roughly between 600 BCE to 200 BCE, and
are believed to be the earliest systematic formulations of dharma. They are part of the Kalpa Sutras,
which constitute one of the six Vedangas, or ancillary disciplines of the Vedas. The Dharmasutras
were composed by various ancient sages and scholars known as rishis, each belonging to a specific

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Vedic school (shakha). These texts were transmitted orally within Brahminical circles before being
compiled in written form.

Content and Themes

The Dharmasutras cover a wide range of subjects, including rituals, social customs, moral conduct,
legal procedures, and governance. They delineate the duties and responsibilities (dharma) of
individuals belonging to different varnas (castes) and ashramas (stages of life) and provide guidelines
for personal conduct, family life, and societal interactions. Moreover, they address various legal
matters such as marriage, inheritance, property rights, and judicial procedures.

Ethical Principles and Social Order

Central to the Dharmasutras is the concept of dharma, which encompasses both religious and social
obligations. Dharma regulates every aspect of human life, prescribing righteous conduct, moral virtues,
and social duties. The Dharmasutras uphold the varna system, which stratifies society into four main
varnas—Brahmins (priests and scholars), Kshatriyas (warriors and rulers), Vaishyas (merchants and
farmers), and Shudras (labourers and service providers)—each with its specific rights, duties, and
privileges.

Legal Provisions and Judicial Practices

The Dharmasutras contain detailed rules and regulations governing various legal matters, including
marriage, adoption, inheritance, contracts, and crimes. They outline procedures for solemnizing
marriages, conducting rituals, resolving disputes, and administering justice. Moreover, they prescribe
penalties and punishments for offenses ranging from theft and adultery to defamation and assault,
reflecting the social and moral norms of ancient Indian society.

Critique and Adaptations

While the Dharmasutras served as authoritative texts for Hindu society for centuries, they have also
faced criticism for perpetuating social inequality, caste discrimination, and patriarchal norms. Critics
argue that the varna system, as prescribed in these texts, institutionalizes caste-based hierarchy and
restricts social mobility, thereby marginalizing certain groups and perpetuating injustice. Moreover,
the Dharmasutras have been accused of endorsing gender-based discrimination and restricting the
rights and freedoms of women.

Enduring Influence and Relevance

Despite these critiques, the Dharmasutras remain significant sources of inspiration and guidance for
Hindu religious and legal traditions. They have inspired numerous commentaries, reinterpretations,
and adaptations by scholars and jurists throughout history, reflecting their adaptability and relevance
to changing social contexts. Moreover, the ethical principles and moral values espoused in the

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Dharmasutras continue to resonate with many Hindus, serving as a source of moral and spiritual
guidance in contemporary times.

Conclusion

In conclusion, the Dharmasutras represent a vital component of ancient Indian literature, providing
valuable insights into the social, religious, and legal norms of classical Indian civilization. Rooted in
the concept of dharma, these texts offer guidelines for individual conduct, social organization, and
governance, reflecting the values and ideals of ancient Indian society. While they have faced criticism
for perpetuating social inequality and discrimination, the Dharmasutras remain sources of inspiration
and guidance for Hindu religious and legal traditions, embodying the enduring legacy of ancient Indian
wisdom and philosophy.

The Dharmashastras

The Dharmashastras, a corpus of ancient Indian texts, hold a profound significance in Hindu religious
and legal traditions. Rooted in the concept of dharma, which encompasses duty, righteousness, and
moral law, these texts provide guidelines for individual conduct, social organization, and governance.

Historical Context and Development

The Dharmashastras find their roots in ancient Dharmasūtra texts, which themselves originated from
the literary tradition of the Vedas. These Vedas, including the Rig, Yajur, Sāma, and Atharva, were
composed between the 2nd millennium BCE and the early centuries of the 1st millennium BCE. Over
time, the Vedic branches diversified into various schools or shakhas, possibly due to factors such as
geographical spread, specialization, and disagreements.

Each Veda is further subdivided into two categories: the Saṃhitā, comprising collections of mantra
verses, and the Brahmanas, which are prose texts elucidating the meanings of the Samhita verses. The
Brahmana layer expanded, giving rise to newer esoteric speculative texts known as Aranyakas, while
the mystical and philosophical sections evolved into the Upanishads. The foundation of Dharma
literature can be traced back to the Brahmana layer of the Vedas.

In later ages, the Smritis or Dharmashastras were predominantly composed in metrical verses and are
known as Dharmasutras. However, they differ from Dharmasutras in that they are not metrical
renditions but rather elaborate discussions on various subjects. These texts are organized into three
main parts: Achara, Vyavahara, and Prayaschitta. The Achara section deals with rules of religious
observances, while the Prayaschitta section focuses on penance or expiation. The Vyavahara part
addresses civil law matters.

Early Smritikaras placed greater emphasis on the subject matter of the Achara and Prayaschitta
sections, while later Smritikaras extensively considered rules of positive law, with some, like Narada,

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focusing solely on civil law. In the Vyavahara section, Smritikaras addressed law under 18 titles and
132 sub-titles, covering both substantive and procedural aspects. Many principles and rules articulated
by them have endured and are reflected in modern law.

The Yajnavalkya Smriti lists twenty sages as law-givers, including Manu, Atri, Vishnu, and others.
However, this list is considered illustrative rather than exhaustive, as other Dharmasutras, such as those
by Baudhayana and Narada, are also recognized. Nevertheless, not all Smritis hold equal authority,
with many being obscure and rarely cited by ancient commentators. Only a handful of Smritis,
including those authored by Manu, Yajnavalkya, and Narada, have received significant attention and
commentary.

Key Texts and Authors

Among the numerous Dharmashastras, the Manusmriti (Laws of Manu) and the Yajnavalkya Smriti
are the most renowned and influential. The Manu Smriti, also known as the Manusmriti, has
historically been regarded as the supreme authority in the entire country. However, the identity of the
person who compiled this work remains unknown.

The Manusmriti, attributed to the legendary sage Manu, is a comprehensive treatise on law, ethics, and
social organization. It delineates the duties and responsibilities of individuals belonging to different
varnas (castes) and ashramas (stages of life), prescribing guidelines for personal conduct, family life,
and governance. Similarly, the Yajnavalkya Smriti, attributed to the sage Yajnavalkya, addresses
similar themes but with some variations and additions.

The Manusmriti attributes its teachings to Manu, often referred to as Vridha Manu, Brihat Manu, or
Adi Manava. However, it is uncertain whether this Manu is a historical figure or purely mythical. Even
in the Vedas, Manu is esteemed, with statements such as “Whatever Manu says is medicine”
highlighting his revered position.

Scholars, including Kane, acknowledge the difficulty in determining the true authorship of the
Manusmriti. The extant text consists of 12 chapters and contains 2694 verses, with the eighth chapter
detailing rules on eighteen titles of law, encompassing both civil and criminal aspects.

The approximate date of the compilation of the Manusmriti is placed around 200 B.C. While earlier
texts like the Dharmasutras addressed various legal topics, they did not serve as comprehensive legal
compendiums. The Manusmriti fulfilled a long-felt need for a systematic and comprehensive legal
treatise. Written in simple and clear language, it serves as a coherent collection of legal rules and
institutions, consolidating traditional laws scattered across ancient scriptures.

The Manusmriti holds significant importance in the legal history of India, serving as a landmark text
that codifies legal concepts, rules, and customs of society. Beyond legal matters, it also provides
insights into the social and religious practices prevalent in ancient Indian society.

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The Manusmriti is revered as the most authoritative reservoir of law, offering a comprehensive
overview of legal principles and societal customs. Despite the uncertainty surrounding its authorship,
its enduring influence and significance in shaping Indian legal traditions cannot be overstated.

Manu, in the Manusmriti, presents various formulations that reflect the Hindu concept of law prevalent
during the time of its compilation. One prominent idea emphasized by Manu is that “law is the king of
kings,” suggesting that even kings are subject to the overarching authority of law. While Manu
acknowledges the king’s role as a law-enforcer, he also attributes divine authority to the king,
supporting the theory of the divine right of kings. This elevation of the king’s status with divine
authority was likely influenced by the revival of Brahmanism during that period, as Brahmins sought
to bolster the king’s authority to advance their own interests.

Manu underscores the importance of danda, or secular punishment, as the instrument in the king’s
hands for enforcing law and order. Danda represents the king’s power to maintain law and order
through punishment for wrongdoing, highlighting the punitive aspect of law enforcement.
Additionally, Manu places significant emphasis on the role of custom and usage in legal matters. He
stresses the importance of observing immemorial customs and directs kings to adjudicate disputes
based on local customs and sacred law.

Custom, according to Manu, holds a pre-eminent position and is defined as traditions handed down
from time immemorial among the four chief castes and mixed races. However, there is debate among
commentators regarding the validity of customs conflicting with sacred law.

Manu’s teachings also reflect orthodox Brahminical doctrines, exhibiting harsh treatment towards
women and Sudras (the lowest caste). He upholds the dominant position of Brahmanas in society and
imposes severe penalties for transgressions against them, such as death for a Sudra marrying a Brahmin
woman.

Several commentaries have been written on the Manusmriti, including Kulluka’s Manvarthamuktavali,
Medhatithi’s Manubhashya, and Govindraja’s Manutika, which further elucidate and interpret Manu’s
formulations.

In analysing Manu’s formulations, it is evident that they were shaped by the socio-political context of
Brahmanical revival and aimed to establish and maintain the authority of Brahmins and kings in
society. However, Manu’s teachings also provide insights into the legal and social norms prevalent
during that period, serving as a significant source of Hindu law and customs.

The Yajnavalkya Smriti, which follows the Manusmriti in terms of date and authority, presents a more
concise and logical synthesis of legal principles. Yajnavalkya, associated with the Sukla Yajurveda
and hailing from Mithila in northern Bihar, divides his work into three sections. Unlike the Manusmriti,
Yajnavalkya’s text avoids repetition, arranges topics systematically, and maintains brevity without
sacrificing clarity.

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While both the Manusmriti and the Yajnavalkya Smriti cover substantive and procedural law,
Yajnavalkya places greater emphasis on procedural rules. However, he ensures that procedural law
remains accessible and free from excessive technicalities. Yajnavalkya’s text is estimated to have been
compiled around the beginning of the Christian era.

In terms of juristic formulations, Yajnavalkya diverges from the concept of the divine right of kings
upheld by Manu. Instead, Yajnavalkya asserts that the king is subordinate to law and should prioritize
justice and service to the people. He acknowledges the king’s power of punishment (danda) but refrains
from attributing divine authority to royal rule. Yajnavalkya also underscores the importance of custom,
suggesting that practices condemned by society, even if ordained by scripture, should not be followed.

Despite some similarities with Manu, Yajnavalkya’s Smriti reflects a more liberal stance on various
matters. He advocates for Sudras and women, acknowledging their rights to property and inheritance.
Moreover, Yajnavalkya prescribes less severe penalties for offenses compared to Manu, possibly
influenced by Buddhist philosophy, although he remains committed to the revival of Brahmanism.

Several commentaries have been written on the Yajnavalkya Smriti, with Vijnaneshwara’s
commentary, the Mitakshara, being particularly influential. While Vijnaneshwara’s commentary has
indirectly elevated the importance of the Yajnavalkya Smriti in Hindu law, the text stands on its own
as one of the three principal codes among the Dharmashastras.

In analysing Yajnavalkya’s Smriti, it is evident that his work represents a significant development in
Hindu legal thought, offering a more concise and systematic approach to legal principles while
reflecting liberal views on various social and legal matters.

The Naradasmriti, attributed to the sage Narada and believed to have originated around 200 A.D., is
the final installment of the three metrical Dharmashastras for which we possess the complete text.
Narada is thought to have hailed from Nepal. Notably, the Naradasmriti stands out for its focus
primarily on Vyavahara (civil law) and its detailed treatment of procedural aspects, rather than delving
into Achara (religious observances) and Prayaschitta (penance) like its predecessors, Manu and
Yajnavalkya.

In terms of juristic formulations, the Naradasmriti displays a systematic and exhaustive approach to
legal principles. Narada demonstrates a willingness to acknowledge and accommodate the changes
occurring during his time, often differing from his predecessors, Manu and Yajnavalkya, on various
matters. Particularly noteworthy is Narada’s recognition of the evolving political landscape, notably
during the reign of Harshavardhana, and the consequent need for kings to wield law-making powers.
Unlike earlier texts, Narada acknowledges the authority of king-made law, which could override both
sacred law and custom to some extent, albeit within certain limitations.

Narada emphasizes the importance of custom in legal matters, asserting that it often takes precedence
over sacred law. This departure from previous views marks Narada as a progressive sage, granting
women rights to hold and inherit property and exhibiting a more lenient stance towards Sudras

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compared to Manu. Additionally, Narada condemns usury and acknowledges circumstances where a
woman may leave her husband and remarry.

The Naradasmriti’s significance is further underscored by its commentary, the Narada Bhaskya by
Ashaya, which provides valuable insights and interpretations.

While the Naradasmriti represents a significant advancement in Hindu legal thought, it is also
important to note other Smritis, such as those attributed to Parasara, Brihaspati, and Katyayana, which,
although not available in their entirety, have left their mark through references in digests and
commentaries. These texts, along with others like Vyasa, Samvarta, and Devala, contribute to the rich
tapestry of Hindu legal tradition, each offering unique perspectives and insights into the legal and
social norms of their respective times.

Principles and Norms

The Dharmashastras expound a hierarchical social order based on the varna system, which categorizes
society into four main varnas: Brahmins (priests and scholars), Kshatriyas (warriors and rulers),
Vaishyas (merchants and farmers), and Shudras (laborers and service providers). Each varna is
assigned specific duties and privileges, with Brahmins occupying the highest status due to their role in
preserving sacred knowledge and performing religious rituals.

Dharma and Social Order

Central to the Dharmashastras is the concept of dharma, which encompasses both religious and social
obligations. Dharma regulates every aspect of human life, from personal hygiene and dietary practices
to marital relations and inheritance laws. It emphasizes the importance of righteous conduct
(sadachara), truthfulness (satya), compassion (daya), and non-violence (ahimsa) as fundamental moral
values.

Legal Provisions

The Dharmashastras provide detailed rules and regulations governing various legal matters, including
marriage, property rights, inheritance, and criminal justice. They prescribe rituals and ceremonies for
solemnizing marriages, determining the validity of contracts, resolving disputes, and administering
punishments for offenses. However, it’s essential to note that the legal provisions outlined in these
texts are not static or immutable but subject to interpretation and adaptation according to changing
social norms and circumstances.

Social Context and Critique

While the Dharmashastras served as authoritative texts for Hindu society for centuries, they have also
faced criticism for perpetuating social inequality and discrimination based on caste and gender. Critics
argue that the varna system, as prescribed in these texts, institutionalizes caste-based hierarchy and
restricts social mobility, thereby marginalizing certain groups and perpetuating injustice. Similarly, the

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Dharmashastras have been accused of endorsing patriarchal norms and practices that subordinate
women and limit their autonomy.

Enduring Influence

Despite these critiques, the Dharmashastras continue to exert a significant influence on Indian society,
culture, and legal systems. While their prescriptive norms may not be strictly followed in contemporary
times, their underlying principles of dharma, ethics, and moral conduct continue to resonate with many
Hindus. Moreover, the Dharmashastras have inspired various commentaries, reinterpretations, and
adaptations by scholars and jurists throughout history, reflecting their adaptability and relevance to
changing social contexts.

Conclusion

In conclusion, the Dharmashastras represent a rich and complex body of literature that has profoundly
shaped Hindu religious and legal traditions. Rooted in the concept of dharma, these texts provide
guidelines for individual conduct, social organization, and governance, reflecting the values and norms
of classical Indian civilization. While they have faced criticism for perpetuating social inequality and
discrimination, the Dharmashastras remain a source of inspiration and guidance for many Hindus,
reflecting the enduring legacy of ancient Indian wisdom and philosophy.

Differences Between Dharmashastras And Dharmasutras

1. Nature and Formulation: Dharmashastras are comprehensive treatises on law, ethics, and
social organization, composed in prose and often attributed to specific sages like Manu and
Yajnavalkya.

Dharmasutras, on the other hand, are concise texts that outline legal and ethical principles in a
succinct, aphoristic style, often presented in the form of sutras or aphorisms.

2. Scope and Coverage: Dharmashastras cover a wide range of subjects, including rituals, social
customs, moral conduct, legal procedures, and governance.

Dharmasutras focus primarily on legal matters, such as marriage, inheritance, property rights,
and judicial procedures, with less emphasis on broader ethical and social issues.

3. Authors and Schools: Dharmashastras are associated with specific authors and schools of
thought, such as Manu for the Manusmriti and Gautama for the Gautama Dharmasutra.

Dharmasutras are attributed to various ancient sages and scholars, each belonging to a specific
Vedic school (shakha), such as Apastamba and Baudhayana.

4. Format and Structure: Dharmashastras are presented in prose format, with elaborate
explanations, commentaries, and digressions on legal and ethical matters.

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Dharmasutras are composed in a more concise and aphoristic style, with short, pithy statements
(sutras) that convey legal principles and injunctions.

5. Language and Composition: Dharmashastras are written in Sanskrit prose, often embellished
with poetic language and rhetorical devices.

Dharmasutras are also composed in Sanskrit but in a more concise and condensed form, with
an emphasis on brevity and clarity.

6. Time Period: Dharmashastras emerged during the late Vedic period, roughly between 600 BCE
to 200 BCE, whereas Dharmasutras are believed to have been composed slightly earlier,
between 600 BCE to 300 BCE.

7. Purpose and Audience: Dharmashastras serve as comprehensive guides to righteous living and
societal organization, addressing a broad audience that includes both laypeople and scholars.

Dharmasutras primarily target students of law and religion, providing concise guidelines for
legal practice and religious observance.

8. Legal Provisions: Dharmashastras contain detailed legal provisions and procedures for various
matters, including marriage, inheritance, property rights, and judicial proceedings.

Dharmasutras focus specifically on legal matters, providing concise rules and injunctions
without extensive commentary.

9. Rituals and Customs: Dharmashastras often include detailed instructions for performing
rituals, ceremonies, and religious observances, along with guidelines for social customs and
etiquette.

Dharmasutras may also touch upon rituals and customs but primarily focus on legal and ethical
principles.

10. Interpretation and Commentary: Dharmashastras have been the subject of extensive
interpretation, commentary, and debate by scholars and jurists throughout history, leading to
multiple schools of thought and interpretations.

Dharmasutras are less subject to interpretation, as they are presented in a more straightforward
and concise manner.

11. Geographical Variations: Dharmashastras exhibit regional and sectarian variations, reflecting
the diversity of Indian society and the influence of different philosophical traditions.

Dharmasutras also display regional variations but to a lesser extent, as they tend to focus more
on legal principles than philosophical speculation.

12. Influence and Legacy: Dharmashastras have had a profound influence on Hindu religious and
legal traditions, shaping moral codes, social norms, and legal systems in India for centuries.

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Dharmasutras have also contributed to the development of Hindu law and legal theory but are
generally less well-known and influential than Dharmashastras.

13. Comprehensiveness: Dharmashastras are comprehensive in their coverage of various aspects

of dharma, including personal conduct, social organization, and legal principles. Dharmasutras
are more narrowly focused on legal matters, providing concise guidelines for legal practice and
ethical conduct.

14. Adaptability and Flexibility: Dharmashastras are more flexible and adaptable to changing
social contexts and historical circumstances, as they contain extensive commentary and
interpretation.

Dharmasutras, being more concise and aphoristic, may be less adaptable but still provide
foundational principles for legal practice and ethical conduct.

15. Accessibility: Dharmashastras are often more accessible to a general audience, as they contain
elaborate explanations and commentaries that aid in understanding complex legal and ethical
concepts.

Dharmasutras, while still accessible to those familiar with Sanskrit and Indian legal traditions,
may require additional study and interpretation due to their concise and aphoristic style.

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