DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.39769#0256
230
THE FOURTH LECTURE.
Correspond-
ence of Ihe
seven rules
with modern
legal ideas.
Answer :
“ But a duty must be general and the following of
that characteristic (of being general), is fit for the rule
of law (to be formulated'.”1
The other Sutras bearing on the topic will be
discussed hereafter.
Having given you a rough indication1 of the Sutras
in which the seven rules affecting the interpretation of
Smritis and Usages are contained, I should in a similar
rough manner show you how these rules correspond
with our modern legal ideas.
The Smriti-pramanya maxim corresponds to the
idea that a rule of common law is taken to be authori-
tative on tin?, presumption that it must have been
recognized by those who had legislative authority.
The Sutra-prabatya maxim corresponds to the
principle that if a decision or dictum is contrary to the
express law of a statutory nature, the latter overrides
the former. The Dushtamulaka-Smriti-apramanya-
adhikarana corresponds to the rule that an usage or
custom must be reasonable in order to be accepted as law.
The Padartha-prabalya-adhikarana tallies with the
maxim “usage is the text interpreter”. The Shastra-
prasiddha-padartha-adhikarana and the Mlechha-
prasiddha-adhikarana are no doubt of a special
character. But they are reasonable and proper. The
Snnbti-samanya-adjnkarana virtually corresponds to the
principle that an usage is valid in so far as it is clear
and certain.
i ^rfk wt uAw: , Jaimini I. iii. 16.
THE FOURTH LECTURE.
Correspond-
ence of Ihe
seven rules
with modern
legal ideas.
Answer :
“ But a duty must be general and the following of
that characteristic (of being general), is fit for the rule
of law (to be formulated'.”1
The other Sutras bearing on the topic will be
discussed hereafter.
Having given you a rough indication1 of the Sutras
in which the seven rules affecting the interpretation of
Smritis and Usages are contained, I should in a similar
rough manner show you how these rules correspond
with our modern legal ideas.
The Smriti-pramanya maxim corresponds to the
idea that a rule of common law is taken to be authori-
tative on tin?, presumption that it must have been
recognized by those who had legislative authority.
The Sutra-prabatya maxim corresponds to the
principle that if a decision or dictum is contrary to the
express law of a statutory nature, the latter overrides
the former. The Dushtamulaka-Smriti-apramanya-
adhikarana corresponds to the rule that an usage or
custom must be reasonable in order to be accepted as law.
The Padartha-prabalya-adhikarana tallies with the
maxim “usage is the text interpreter”. The Shastra-
prasiddha-padartha-adhikarana and the Mlechha-
prasiddha-adhikarana are no doubt of a special
character. But they are reasonable and proper. The
Snnbti-samanya-adjnkarana virtually corresponds to the
principle that an usage is valid in so far as it is clear
and certain.
i ^rfk wt uAw: , Jaimini I. iii. 16.