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Following Manusmrti we may hold that the roots of the Hindu law lie in (a) the Vedas or the Sruti, (b) the Smrti, (c) the conventional and approved usages and (d) what is sanctioned by our conscience. Yajnavalkya however supplements Nyaya, Mimamsa and Puranas as further sources of law. Though the Vedas do not contain any explicit discussion regarding positive or legal principles – yet, like all other branches of knowledge in the Indian tradition, the source and sanction of all laws are said to be derived from the Sruti texts. Explicit and thorough discussion of the legal principles can be found in the various Smrti texts or the Dharmasastras, as they are generally called. Yet it is noteworthy that Manu clearly points out that where there is a conflict between the Vedas and the Smrti, direction of the Vedas should be followed. This shows that the authority and sanction of the laws do not come from any individual human being (either king or law maker) but the sanction was contained in itself. Like the Vedas, these laws are apauruseya or author-less, suggesting the anonymity of the author. Such anonymity of the author has been further supported by the suggestion that law as enjoined in the Sruti and Smrti texts depend on popular and customary support. This, further shows its difference from the Western concept of law, which is generally sanctioned by the king or a sovereign authority. In the case of Hindu law, the king and the actual lawgivers are not the ultimate creators of law but have the function of administering the laws in the society. They generally enforce not the sarced laws but also the prevailing customary laws of the society.

Besides the Sruti, the Dharmasastrakaras recognize Smrti as the major source of law. The terms smrti literally means recollection and possibly refers to those maxims which persisted in the memory of the Vedic sages and scholars. Subsequently, the treatises which embodied those maxims were called the Smrti. Gradually those Smrti texts become identical with the Dharmasastras and became recognized as the foundation of Hindu jurisprudence and as authoritative as the Sruti itself. In fact, Manusmrti and Yajnavalkya Smrti have so profound and permeating impact on the social life of India that they have in some cases almost outpassed the authority of even the Vedas, which generally considered to be the primary source. Since the Sruti texts are either obsolete or obscure, it is the Smrti texts that rather gained wide popularity. These Smrti texts are also amenable to changes and seek to accommodate newer problems of the evolving social structure by incorporating newer principles and legal doctrines.

Another major source of Hindu law is sadacara or the good conduct of the enlightened ones. We, ordinary common people, have to follow the behaviour of the sistas (good persons). These are also accepted as law – Jus receptum and form part of customary or conventional law. We must bear in mind that law is not opposed to common sense and the administration of law and justice has to be conducted with common sense and common consent. This has been accepted by the ancient Smrtikaras like Vrhaspati and Narada specially and such popular maxims are known as laukika nyayas and as the condensed good sense of the people those maxims support the legal system of a region.

Regarding the role of popular approval and practical aspect, there are some controversies among the sastrakaras. One debatable issue is: how do we conceive of the practice? One of the important Dharmasastrakaras, Gautama confines the practice to preceding views, i.e., that which has been already supported by previous stages of history. Since Gautama was aware of changing times and changing concepts, he could not support the ‘living practice’ of the changing milieu. He would rather confine himself to written law that has the sanction of previous authorities. Another noted sastrakara, Baudhayana, however, limits the practice to the sistas or those who rigidly follow the Vedic vidhis or injunctions. K.P. Jayaswal in his work on Manu and Yajnavalkya has mentioned another interesting suggestion by Vasistha who “introduces a doctrine of the Mimamsa school in the discussion on the sources and applies it in a curious way. The Mimamsa doctrine is that the dharma law cannot be referred to human reasons. This was a description of the dharma law. Vasistha uses it as definition. Hence the authority of the practice of the community is naturally disloged.”² All these divergent opinions reflect the ambivalence of the Dharmasastrakaras regarding the role of orthodox written injunctions as well as their practical relevance in the changing milieu.

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