Manusmriti

The Dharmasya Yonih (Sources of the Law) has twenty-four verses and one transition verse.[21] These verses state what the text considers as the proper and just sources of law:

वेदोऽखिलो धर्ममूलं स्मृतिशीले च तद्विदाम् । आचारश्चैव साधूनामात्मनस्तुष्टिरेव च ॥

Translation 1: The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction (Atmana santushti).[22]
Translation 2: The root of the dharma is the entire Veda, and (then) the tradition and customs of those who know (the Veda), and the conduct of virtuous people, and what is satisfactory to oneself.[23]

— Manusmriti 2.6

वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः । एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥

Translation 1: The Veda, the sacred tradition, the customs of virtuous men, and one's own pleasure, they declare to be the fourfold means of defining the sacred law.[22]
Translation 2: The Veda, tradition, the conduct of good people, and what is pleasing to oneself – they say that is four-fold mark of dharma.[23]

— Manusmriti 2.12

This section of Manusmriti, like other Hindu law texts, includes fourfold sources of Dharma, states Levinson, which include Atmana santushti (satisfaction of one's conscience), Sadachara (local norms of virtuous individuals), Smriti and Sruti.[24][25][26]

• 3.1 Rules Relating to Law (2.25 – 10.131)
  • 3.1.1 Rules of Action in Normal Times (2.26 – 9.336)
    • 3.1.1.1 Fourfold Dharma of a Brahmin (2.26 – 6.96) (contains the longest section of Manusmriti, 3.1, called dharmavidhi)[19]
    • 3.1.1.2 Rules of Action for a King (7.1 – 9.324) (contains 960 verses, includes description of institutions and officials of state, how officials are to be appointed, tax laws, rules of war, the role and limits on the power of the king, and long sections on eighteen grounds for litigation, including those related to non-delivery under contract, breach of contract, non-payment of wages, property disputes, inheritance disputes, humiliation and defamation, physical assault, theft, violence of any form, injury, sexual crimes against women, public safety, and others; the section also includes rules of evidence, rules on interrogation of witnesses, and the organisation of court system)[27]
    • 3.1.1.3 Rules of Action for Vaiśyas and Śūdras (9.326 – 9.335) (shortest section, eight rules for Vaishyas, two for Shudras, but some applicable laws to these two classes are discussed generically in verses 2.26 – 9.324)[28]
  • 3.1.2 Rules of Action in Times of Adversity (10.1 – 11.129) (contains revised rules on the state machinery and four varnas in the times of war, famine or other emergencies)[29]
• 3.2 Rules Relating to Penance (11.1 – 11.265) (includes rules of proportionate punishment; instead of fines, incarceration or death, discusses penance or social isolation as a form of punishment for certain crimes)[29]

The verses 6.97, 9.325, 9.336 and 10.131 are transitional verses.[21] Olivelle notes instances of likely interpolation and insertions in the notes to this section, in both the presumed vulgate version and the critical edition.[30]

The verses 12.1, 12.2 and 12.82 are transitional verses.[21] This section is in a different style than the rest of the text, raising questions whether this entire chapter was added later. While there is evidence that this chapter was extensively redacted over time, however it is unclear whether the entire chapter is of a later era.[31]

• 4.1 Fruits of Action (12.3–81) (section on actions and consequences, personal responsibility, action as a means of moksha – the highest personal bliss)[31]
• 4.2 Rules of Action for Supreme Good (12.83–115) (section on karma, duties and responsibilities as a means of supreme good)[31]

The closing verses of Manusmriti declares,

एवं यः सर्वभूतेषु पश्यत्यात्मानमात्मना । स सर्वसमतामेत्य ब्रह्माभ्येति परं पदम् ॥
He who thus recognizes in his individual soul (Self, Atman), the universal soul that exists in all beings,
becomes equal-minded towards all, and enters the highest state, Brahman.

— Manusmriti 12.125, Calcutta manuscript with Kulluka Bhatta commentary[32][22]

Manusmriti lists and recommends virtues in many verses. For example, verse 6.75 recommends non-violence towards everyone and temperance as key virtues,[22][35] while verse 10.63 preaches that all four varnas must abstain from injuring any creature, abstain from falsehood and abstain from appropriating the property of others.[22][36]

Similarly, in verse 4.204, states Olivelle, some manuscripts of Manusmriti list the recommended virtues to be, "compassion, forbearance, truthfulness, non-injury, self-control, not desiring, meditation, serenity, sweetness and honesty" as primary, and "purification, sacrifices, ascetic toil, gift giving, Vedic recitation, restraining the sexual organs, observances, fasts, silence and bathing" as secondary.[37] A few manuscripts of the text contain a different verse 4.204, according to Olivelle, and list the recommended virtues to be, "not injuring anyone, speaking the truth, chastity, honesty and not stealing" as central and primary, while "not being angry, obedience to the teacher, purification, eating moderately and vigilance" to desirable and secondary.[37]

In other discovered manuscripts of Manusmriti, including the most translated Calcutta manuscript, the text declares in verse 4.204 that the ethical precepts under Yamas such as Ahimsa (non-violence) are paramount while Niyamas such as Ishvarapranidhana (contemplation of personal god) are minor, and those who do not practice the Yamas but obey the Niyamas alone become outcasts.[22][38]

Manusmriti has various verses on duties a person has towards himself and to others, thus including moral codes as well as legal codes.[39] Olivelle states that this is similar to the modern contrast between informal moral concerns to birth out of wedlock in the developed nations, along with simultaneous legal protection for children who are born out of wedlock.[39]

Personal behaviours covered by the text are extensive. For example, verses 2.51–2.56 recommend that a monk must go on his begging round, collect alms food and present it to his teacher first, then eat. One should revere whatever food one gets and eat it without disdain, states Manusmriti, but never overeat, as eating too much harms health.[40] In verse 5.47, the text states that work becomes without effort when a man contemplates, undertakes and does what he loves to do and when he does so without harming any creature.[41]

Numerous verses relate to the practice of meat eating, how it causes injury to living beings, why it is evil, and the morality of vegetarianism.[39] Yet, the text balances its moral tone as an appeal to one's conscience, states Olivelle. For example, verse 5.56 as translated by Olivelle states, "there is no fault in eating meat, in drinking liquor, or in having sex; that is the natural activity of creatures. Abstaining from such activity, however, brings greatest rewards."[42]

Manusmriti offers an inconsistent and internally conflicting perspective on women's rights.[43] The text, for example, declares that a marriage cannot be dissolved by a woman or a man, in verse 8.101–8.102.[44] Yet, the text, in other sections, allows either to dissolve the marriage. For example, verses 9.72–9.81 allow the man or the woman to get out of a fraudulent marriage or an abusive marriage, and remarry; the text also provides legal means for a woman to remarry when her husband has been missing or has abandoned her.[45]

It preaches chastity to widows such as in verses 5.158–5.160, and opposes a woman marrying someone outside her own social class as in verses 3.13–3.14.[46] In other verses, such as 2.67–2.69 and 5.148–5.155, Manusmriti preaches that as a girl, she should obey and seek protection of her father, as a young woman her husband, and as a widow her son; and that a woman should always worship her husband as a god and a man should consider his wife an embodiment of goddess.[47] In verses 3.55–3.56, Manusmriti also declares that "women must be honored and adorned", and "where women are revered, there the gods rejoice; but where they are not, no sacred rite bears any fruit".[48][22] Elsewhere, in verses 5.147–5.148, states Olivelle, the text declares, "a woman must never seek to live independently".[49]

Simultaneously, states Olivelle, the text enumerates numerous practices such as marriages outside one's varna (see anuloma and pratiloma), such as between a Brahmin man and a Shudra woman in verses 9.149–9.157, a widow becoming pregnant by a man she is not married to in verses 9.57–9.62, marriage where a woman elopes with her lover, and then grants legal rights in these cases such as property inheritance rights in verses 9.143–9.157, and the legal rights of the children so born.[50] The text also provides for a situation when a married woman may become pregnant by a man other than her husband, and dedicates verses 8.31–8.56 to conclude that the child's custody belongs to the woman and her legal husband, and not to the biological father.[51][52]

Manusmriti provides a woman with property rights to six types of property in verses 9.192–9.200. These include those she received at her marriage, or as gift when she eloped or when she was taken away, or as token of love before marriage, or as gifts from her biological family, or as received from her husband subsequent to marriage, and also from inheritance from deceased relatives.[53]

Flavia Agnes states that Manusmriti is a complex commentary from women's rights perspective, and the British colonial era codification of women's rights based on it for Hindus, and from Islamic texts for Muslims, picked and emphasised certain aspects while it ignored other sections.[43] This construction of personal law during the colonial era created a legal fiction around Manusmriti's historic role as a scripture in matters relating to women in South Asia.[43][54]

Chapter 7 of the Manusmriti discusses the duties of a king, what virtues he must have, what vices he must avoid.[55] In verses 7.54–7.76, the text identifies precepts to be followed in selecting ministers, ambassadors and officials, as well as the characteristics of well fortified capital. Manusmriti then lays out the laws of just war, stating that first and foremost, war should be avoided by negotiations and reconciliations.[55][56] If war becomes necessary, states Manusmriti, a soldier must never harm civilians, non-combatants or someone who has surrendered, that use of force should be proportionate, and other rules.[55] Fair taxation guidelines are described in verses 7.127–7.137.[55][56]

Scholars doubt Manusmriti was ever administered as law text in ancient or medieval Hindu society. David Buxbaum states, "in the opinion of the best contemporary orientalists, it [Manusmriti] does not, as a whole, represent a set of rules ever actually administered in Hindustan. It is in great part an ideal picture of that which, in the view of a Brahmin, ought to be law".[69]

Donald Davis writes, "there is no historical evidence for either an active propagation or implementation of Dharmasastra [Manusmriti] by a ruler or any state – as distinct from other forms of recognizing, respecting and using the text. Thinking of Dharmasastra as a legal code and of its authors as lawgivers is thus a serious misunderstanding of its history".[70] Other scholars have expressed the same view, based on epigraphical, archaeological and textual evidence from medieval Hindu kingdoms in Gujarat, Kerala and Tamil Nadu, while acknowledging that Manusmriti was influential to the South Asian history of law and was a theoretical resource.[71][72]

The Dharma-sastras, particularly Manusmriti, states Anthony Reid,[73] were "greatly honored in Burma's (Myanmar) – Wareru Dhammathat,[74] Siam (Thailand), Cambodia and Java-Bali (Indonesia) as the defining documents of the natural order, which kings were obliged to uphold. They were copied, translated and incorporated into local law code, with strict adherence to the original text in Burma and Siam, and a stronger tendency to adapt to local needs in Java (Indonesia)".[73][75][76] The medieval era derived texts and Manusmriti manuscripts in Southeast Asia are, however, quite different than the "vulgate" version that has been in use since its first use in British India. The role of then extant Manusmriti as a historic foundation of law texts for the people of Southeast Asia has been very important, states Hooker.[77]

Prior to the British colonial rule, Sharia (Islamic law) for Muslims in South Asia had been codified as Fatawa-e-Alamgiri, but laws for non-Muslims – such as Hindus, Buddhists, Sikhs, Jains, Parsis – were not codified - both in regions of the subcontinent that witnessed anything upto 600 years of Islamic rule - as well as others.[78] With the arrival of the British colonial officials, Manusmriti played a historic role in constructing a legal system for non-Muslims in South Asia and early Western perceptions about the ancient and medieval Indian society.[11]

In the 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions.[79] The East India Company, and later the British Crown, sought profits for its British shareholders through trade as well as sought to maintain effective political control with minimal military engagement.[80] The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states.[80] The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries.[81] The existing legal texts for Muslims, and resurrected Manusmriti manuscript thus helped the colonial state sustain the pre-colonial religious and political law and conflicts, well into the late nineteenth century.[79][80][82] The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,

That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans [Muslims], and those of the Shaster with respect to Gentoos [Hindus] shall be invariably be adhered to.

— Warren Hastings, August 15, 1772[83]

For Muslims of India, the British accepted sharia as the legal code for Muslims, based on texts such the al-Sirjjiyah and Fatawa-i Alamgiri written under sponsorship. of Aurangzeb.[84][85][86][87] For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[79] The substance of Hindu law, was derived by the British colonial officials from Manusmriti, and it became the first Dharmasastra that was translated in 1794.[88][11] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration.[89][90]

The British colonial officials, however, mistook the Manusmriti as codes of law, failing to recognise that it was a commentary on morals and law and not a statement of positive law.[82][84] The colonial officials of the early 19th century also failed to recognise that Manusmriti was one of many competing Dharmasastra texts, it was not in use for centuries during the Islamic rule period of India.[82][84] The officials resurrected Manusmriti, constructed statements of positive law from the text for non-Muslims, in order to remain faithful to its policy of using sharia for the South Asian Muslim population.[11][82][84] Manusmriti thus played a role in constructing the Anglo-Hindu law, as well as Western perceptions about ancient and medieval era Hindu culture from the colonial times.[91] Abdullahi Ahmed An-Na'im states the significance and role of Manusmriti in governing India during the colonial era as follows (abridged),[86]

The [British] colonial administration began the codification of Hindu and Muslim laws in 1772 and continued through the next century, with emphasis on certain texts as the authentic "sources" of the law and custom of Hindus and Muslims, which in fact devalued and retarded those dynamic social systems. The codification of complex and interdependent traditional systems froze certain aspects of the status of women, for instance, outside the context of constantly evolving social and economic relations, which in effect limited or restricted women's rights. The selectivity of the process, whereby colonial authorities sought the assistance of Hindu and Muslim religious elites in understanding the law, resulted in the Brahminization and Islamization of customary laws [in British India]. For example, the British orientalist scholar William Jones translated the key texts Al Sirjjiyah in 1792 as the Mohammedan Law of Inheritance, and Manusmriti in 1794 as the Institutes of Hindu Law or the Ordinances of Manu. In short, British colonial administrators reduced centuries of vigorous development of total ethical, religious and social systems to fit their own preconceived European notions of what Muslim and Hindu "law" should be.

— Abdullahi Ahmed An-Na'im, Islam and the Secular State: Negotiating the Future of Sharia[86]