in reality the courts made even the Sanskrit commentaries subordinate to the
British Common Law concept of legal precedent. The Manusmr.tiand other
dharmas ́a ̄stras were referred to in every judgment, but via the commentaries, and
the commentaries were quoted indirectly via earlier decisions. Even when a
member of the Court or the attorney for a party convincingly demonstrated that
a text from a dharmas ́a ̄stra or commentary had been wrongly interpreted in
earlier cases, the Court invoked Latin maxims such as stare decisis orcommunis
error facit ius to overrule the proper meaning of the Sanskrit text. Finally, there
were aspects of the dharmas ́a ̄stras, such as their inferior treatment of women and
members of lower castes, which the British rulers considered objectionable.
Their decisions, based on the principles of justice, equity, and good conscience,
as well as a number of Acts, starting with the Caste Disabilities Removal Act
(1850) and the Women’s Right to Property Act (1856), slowly but gradually
restricted the range of the issues on which Hindus continued to be governed by
the law of the “shaster.”
The legal system as elaborated in the colonial period was applied unchanged
in the courts of law of Independent India. That is, until 1955–6, when the
Indian Parliament passed four modern Acts (on marriage, inheritance, minor-
ity and guardianship, and adoptions and maintenance), and thereby, in Derrett’s
words, wrote “the epitaph for the Rishis” (subtitle ofThe Death of a Marriage Law,
Delhi, 1978). Yet, even today, in all matters that are not covered by the four Acts,
thedharmas ́a ̄stras and the commentaries and nibandhascontinue to be quoted
and debated in the courts of law throughout India.
Epilogue
I have saved ’till the end a question that has been raised primarily for the dhar-
masu ̄tras anddharmas ́a ̄stra as law books, but that equally applies to any other
aspect ofdharma dealt with in these texts. The question is whether the composers
of the dharmasu ̄tras anddharmas ́a ̄stras actually laid down rules that were and
that they expected to be applied in daily life, or whether the texts merely present
a picture of how their Brahman composers envisaged dharma in an ideal world.
Answers to this question by modern scholars, both Indian and non-Indian, vary
widely, from absolute trust in to total denial of the applicability of the texts in
real life. Hastings and the early British translators of the dharmas ́a ̄stras were con-
fident enough to build an entire modern legal system on the ancient texts. In F.
Max Müller’s opinion, even for those not involved in Indian administration “they
are of great importance for forming a correct view of the old state of society
in India” (1859: 134). P. V. Kane’s multi-volume work on the History of
Dharmas ́a ̄stra, Jolly’s, Lingat’s, and Derrett’s general surveys ofdharmas ́a ̄stra
literature, and numerous volumes and articles on specific aspects ofsmr.ti, are
all based on the tacit assumption that the texts provide a true picture of life
in ancient India. Yet, others were less convinced, to the point of calling the
114 ludo rocher