Concept of law - Classical Indian and Islamic schools

Abstract
A person can better understand the deeper meaning of the law with the aid of jurisprudence. An
essential component of law that is founded on ideas and numerous analyses is jurisprudence.
Jurisprudence discusses how law interacts with society, other social sciences, man, and nature. The
true meaning of law is found in its essential link with religion, but these two are distinct entities with
distinct roles to play in society. Even in countries that are often common, liberal, and just, the state
was unable to exclude certain aspects of religion from the law despite several centuries of deliberate
secularization. It becomes very necessary to discuss the role of religion in our prevailing laws. Taking
that into consideration this article deals with the various sources and schools of Jurisprudence in
India.
Introduction
The term Jurisprudence is derived from the Latin word Jurisprudentia, where ‘Juris’ means ‘Law’ and
‘Prudentia’ means ‘Skill/Knowledge’ The philosophical study of law, or jurisprudence, entails an
investigation of the core ideas, precepts, and theories of the legal system. It aims to comprehend the
origins, nature, and function of law as well as how it functions in society. The study of law digs into
esoteric issues like the origin of legal authority, the connection between morality and the law, and how
to understand legal documents. It is more interested in the bigger picture of law as a social institution
and particular circumstances.
This area of study encompasses several historical and modern schools of thought, including natural la
w, legal positivism, legal realism, and critical legal studies, each of which offers a unique viewpoint o
n the fundamentals of law.
Because it shapes our understanding, jurisprudence is an important field of study. Jurisprudence is the
philosophical study of law, which includes an investigation of the core ideas, precepts, and theories. It
aims to comprehend the nature, function, history, and social significance of law. Jurisprudence
explores ethereal issues including the origin of legal authority, the connection between morality and
the law, and the interpretation of legal writings. It is more interested in the bigger picture of law as a
social institution rather than how laws are specifically applied to particular circumstances.
This area of study encompasses several historical and modern schools of thought, including as natural
law, legal positivism, legal realism, and critical legal studies, each of which offers a unique viewpoint
on the fundamentals of law. Because it shapes our understanding, jurisprudence is an important field
of study.
Classical Schools
Scholars, legal professionals, and history students have examined strict starting points and
conventions in law in many different countries. This has led to a wide range of nearly legal writing,
illuminating legal theories, and providing some significant insights into the foundations of existing
legal frameworks. Trump Davis Jr. When examining the role of Dharma in Hindu lawful and rigorous
practices, The Spirit of Hindu Law comes in second to works of art on Indian studies. He has adopted
a way between discipline and similar strategy that is both energizing and exposing. Davis believes that
“law is the religious philosophy of common life” and that the European conception of law—as a set of
regulations enforced by the state—is an unnatural idea developed at a particular historical turning
point to fulfill certain provincial goals. One of the advantages he sees in the concept is that it
acknowledges and clarifies the gap between “rule” and “conduct” in everyday life and includes the
higher reason involved whenever law is invoked.
Although the two are different components and have different responsibilities in the public eye, the
real meaning of law can be found in its essential link with religion. Even in basically common, liberal,
and just societies, the state was unable to completely eradicate religious elements from the law despite
several centuries of deliberate secularisation. The strategy, he has given is to look at a few essential
concepts supported by authoritative Sanskrit writings that ties them to the entire Hindu legal tradition,
and then highlight their significance for modern equitable framework in analogous situations. Hindu
law, which dates back over 6000 years, is thought to be the world’s oldest legal code. Hindu law is
built on timeless custom and what is known as Dharma, a secular code of law. Indian law was
fundamentally shaped by dharma.
Hindu Law
Hindu law evolved as the civilization, absorbing people from all over the world, including South East
Asia, the Himalayan areas, pre-colonial India’s North East, and the deep south. Newer practices were
introduced by these recently admitted communities. The judicial system changed to reflect changes in
history, politics, the economy, and society. To adapt to contemporary situations, medieval interpreters
revised legal statutes. Regional customs had an impact on the revision of legal laws. The Manu
Sanhita itself exhibits a great deal of modifications, recastings, and interpolations. Hindu law is a
complicated, flexible rule that can adapt to new demands and requirements.
However, its logical theoretical foundations integrate changing conditions with fundamental legal
concepts. Hindu law is a product of a community, not of a state system. As a result, certain social
groupings started to have more influence on the drafting and application of laws. The main societal
groups, monarchies, and Brahmins were the factions that represented Hindu law in practice.
Kingships were in charge of administering punishment and the worldly Hindu system; Brahmins were
in charge of ritual, penance, and the upkeep of a spiritual Hindu system. Corporate groupings were in
charge of legislating law through the creation of social norms.
The Classical Schools of Jurisprudence can be divided into two categories:
Sources
1. Ancient Sources-
a. Shruti
It is thought to be the basic source of Hindu law since it is derived from the word ‘Shru’, which means
‘to hear’. It denotes what is heard. The Shrutis are made up of four Vedas and Upanishads that deal
with religion and have to do with obtaining genuine knowledge and moksha. There are four specific
Vedas: Sama Veda, which contains passages to be recited by diviners, Rig Veda, which contains
Sanskrit psalms to be discussed by the chief cleric, Yajurva Veda, which contains recipes to be
presented by the directing minister, and Atharva Veda, which contains a variety of spells and chants,
tales, predictions, apotropaic charms, and some theoretical songs.
Every Veda is divided into three sections:
• Sanhita – Containing the majority of the songs;
• Brahmin – Explaining our duties and how to fulfil them; &
• Upanishad – Containing the substance of our duties.
Along with their components, the Shrutis incorporate the Vedas.
b. Smriti:
The word “Smriti” is derived from the word “Smri,” which means “to remember.” They are the words
and commandments of the Almighty that the rishis have heard and kept in mind throughout the ages.
The number of smrities is not known, although Manusmriti is the earliest. The smrities are classified
into Dharma sutra (prose) and Dharmashatras. The rules outlined in the Smritis can be broken down
into three categories: Prayaschit (signifying the criminal provision for commission of a wrong),
Vyavahar (signifying procedural and substantive rules that the King or the State applied for settling
disputes in the adjudication of justice), and Achar (relating to morality).
c. Digest and Commentaries:
The quantity of commentaries and digests based on smritis was the next development in Hindu law
after the smritis. The purpose of the commentary is to explain the law as set forth in the smritis.
Therefore, writing on a certain smriti is known as a commentary, while writing on various smrities is
known as a digest.
There are several commentaries, but the two most important ones are Mitakshara by Vijanamshwara
and Daya Bhaga by Jimutavahana.
d. Customs:
Hindu law is said to draw thirdly on custom. Custom (‘achara’) has been regarded as the most
important form of ‘dharma’ since the earliest times. According to the Judicial Committee, a custom is
a norm that has accrued legal authority over time in a particular family, class, or region.
Custom is a source of rules, and although it is comparable to the Shrutis and the Smritis, its
application outperforms the Smritis. It is superior to written law. For announcing custom to be
genuine, it must meet a number of requirements.
They include:
• The custom must be anticipated.
• The custom needs to be certain and free of such doubt. It should also be devoid of specifics.
• The practice must be reasonable and not in violation of any existing laws.
• The custom has probably been continuously and persistently practiced for quite a while. It
must not be dishonest or opposed to any accepted strategy.
Indian courts distinguish between three different types of customs:
• Local customs: These are those that courts believe were widespread in a particular region or
district.
• Class customs: These are traditions that members of a particular class adhere to. For
instance, among a certain group of Vaishyas, it is customary for the wife to be permitted to
marry again while the husband is still alive if the husband leaves or deserts his spouse.
• Family customs: These are practices that members of a family are expected to follow. For
instance, it is customary in tribes of ancient India for the oldest male family member to inherit
the bequests.
2. Modern Sources-
a. Justice, Equity – Equity and Good Conscience:
Sometimes a case may come before the court that cannot be resolved by applying any existing law
found in any of the available sources. Even if such a situation is unlikely, it is nonetheless possible
because only a small percentage of the strange types of certainty situations that arise can have a
corresponding law governing them.
The Courts are obligated to select such a case and are unable to refuse to settle the dispute outside of
the legal system. The Courts rely on the fundamental characteristics, norms, and principles of fair play
and respectability in order to decide such matters.
This is recognized as standards of equity, value, and tremendous heart in other words. They could also
be referred to as natural law. Since the British organization said in the eighteenth century that the
above rule would be followed in the absence of a standard, this rule has had the status of a source of
law in our country.
b. Legislations:
Acts of Parliament known as enactments have played a crucial role in the evolution of Hindu law.
Some important components of Hindu law were organized after India attained freedom. The Hindu
Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act,
1956, and so forth are a few examples of noteworthy statutes.
Any matter dealt with by the arranged law is decisive when it has been codified. Except in cases
where an express sparing is provided for in the order itself, the institution revokes all prior law,
regardless of whether it was based on custom or another circumstance. The old printed law contains
an application in situations when the classified law does not expressly provide protection.
c. Precedents:
Following the establishment of British principles, the hierarchy of court importance was developed. It
was established that the standard of paying similar cases the same would serve as the point of
comparison. The Privy Council’s decisions are currently binding on all lower courts in India, with the
exception of those where the Supreme Court has modified or altered them. The Supreme Court’s
decisions are binding on all courts, with the exception of its own.
Major Schools:
The comments and digests of the smritis are thought to be the schools of Hindu law. These institutions
specifically contributed to the advancement of Hindu law while broadening its application.
Hindu law has two primary schools, which are:
• Mitakshara
• Daya Bhaga
1. Mitakshara
The Mitakshara school of jurisprudence is a prominent legal tradition within Hindu law that primarily
deals with matters related to property and inheritance. It is one of the two main schools of thought in
Hindu law.
Key features of the Mitakshara school of jurisprudence include:
• Joint Family System: The Mitakshara school places significant emphasis on the joint family
system, where property is held jointly by the members of a family, typically under the control
of the eldest male member (the “karta”).
• Coparcenary Rights: Under Mitakshara law, sons and other male descendants have
coparcenary rights in the ancestral property. This means they have a share in the property by
birthright, and this share can be inherited and partitioned among them.
 • Succession Rules: Mitakshara school provides detailed rules for the succession of property,
especially ancestral property. The principles of devolution of property vary based on factors
such as gender, marital status, and birthright.
• Concept of Stridhan: Stridhan refers to the property owned by a woman, typically acquired
through gifts, inheritance, or earnings. The Mitakshara school recognizes the concept of
stridhan and provides rules for its disposal.
• No Right to Will: Traditionally, the Mitakshara school does not recognize the right of an
individual to dispose of ancestral property through a will. The property is expected to pass
through the rules of intestate succession.
• Regional Variations: It’s important to note that Hindu law, including the Mitakshara school,
has regional variations and can be influenced by local customs and practices.
The Mitakshara school’s principles have had a significant influence on property and inheritance laws
in India, particularly in the context of Hindu Succession Act, 1956, which brought about significant
legal reforms related to property and succession rights for Hindus.
It’s worth mentioning that while the Mitakshara school has been historically important, in modern
India, many legal reforms and amendments have been made to bring gender equality and address
issues related to property rights and succession in Hindu families. As a result, the traditional
Mitakshara principles have been modified to align with contemporary legal standards.
Mitakshara School is further divided into five sub-schools:
• Benaras Law School- This law school serves Northern India, including Orissa, and is
governed by the Mitakshara law school. Some of its most influential commentaries are
Viramitrodaya Nirnyasindhu vivada.
• Mithila Law School- This legal school has jurisdiction over the provinces of Tirhoot and
North Bihar. In the north, legal school concepts are in place. The three main commentaries of
this school are the Smritsara, Vivadaratnakar, and Vivadachintamani.
• Maharashtra Law School- The Gujarat Karana and regions where Marathi is fluently
spoken are among the territorial areas over which the Maharashtra Law School has the ability
to exercise its jurisdiction. These schools’ primary leaders are Vyavhara Mayukha,
Virmitrodaya, etc.
• Madras Law School- This graduate program will generally cover all of southern India.
Additionally, it employs its professionals through Mitakshara graduate school. Smriti
Chandrika, Vaijayanti, and other members of this school’s core faculty are among its basic
experts.
• Punjab Law School- East Punjab was primarily where this law school was founded. It had
developed its own traditions and customs. This school’s primary remarks are viramitrodaya
and the established customs.
2. Daya Bhaga –
The Dayabhaga school of jurisprudence is one of the two main schools of thought within Hindu law,
the other being the Mitakshara school. The Dayabhaga school primarily deals with matters related to
property, inheritance, and succession in Hindu families. It is associated with the Bengal region of
India and is historically important in the context of Hindu legal traditions.
Key features and characteristics of the Dayabhaga school of jurisprudence include:
 • Individual Ownership: Unlike the Mitakshara school, which emphasizes joint family
ownership and coparcenary rights, the Dayabhaga school emphasizes individual ownership of
property. According to Dayabhaga, property can be acquired and held by an individual, and it
does not require joint ownership with other family members.
• Testamentary Succession: The Dayabhaga school allows individuals to make wills and
dispose of their property as they wish. This is in contrast to the Mitakshara school, which
traditionally does not recognize the right to will ancestral property.
• Equal Inheritance for Sons and Daughters: In matters of inheritance, the Dayabhaga
school advocates for equal inheritance rights for sons and daughters. This is in contrast to the
Mitakshara school, where sons have preferential rights over daughters in the inheritance of
ancestral property.
• Regional Variation: Like the Mitakshara school, the Dayabhaga school also has regional
variations, and its principles and interpretations may vary in different parts of India.
• Historical Significance: The Dayabhaga school of jurisprudence has been particularly
influential in Bengal and some other parts of eastern India. It has had a significant impact on
property and inheritance laws in these regions.
It’s important to note that while the Dayabhaga school and the Mitakshara school represent two
distinct approaches to Hindu law, there have been legal reforms in India that have brought about
changes in inheritance and property laws. These reforms have aimed to promote gender equality and
address issues related to property rights in Hindu families. As a result, the traditional principles of
both schools have been modified to align with contemporary legal standards.
Various other commentaries followed in Dayabhaga School were:
• Dayataty
• Dayakram-sangrah
• Virmitrodaya
• Dattaka chandrika
Islamic Law:
Islam is unquestionably the most populist, democratic, and republican faith. Though there is a lot of
room for individual expression, it is important to remember that in Islam all institutions—political,
legal, social, etc.—are governed by divine law, and their freedom is limited by Allah’s Commands.
All schools of Islamic jurisprudence evolved their teachings on the same theoretical foundation; they
only diverge from one another in issues of a minor character. The primary sources of Islamic law—the
Holy Quran and the Sunna—are interpreted differently according to each group, which is the cause of
these discrepancies. All Schools recognized these essential sources as being superior and built their
systems around them, each with their own unique knowledge and interpretation. Thus, they are a
stream flowing into the ocean of Sharia, and their purpose is to lead people to a knowledge of Islam,
help them choose the right path, and help them fulfil Allah’s commands, which are based on the
welfare of both the individual and the society at large.
The sources of Islamic Law can be divided into two categories:
• Sources:
1. Primary Sources-
Islamic law, also known as Sharia or Muslim law, is primarily derived from several key primary
sources that hold authoritative status within the Islamic legal tradition. These primary sources are
considered divine or semi-divine and form the basis for Islamic jurisprudence (fiqh).
The primary sources of Muslim law are as follows:
• Quran (The Holy Quran): The Quran is the central and most fundamental source of Islamic
law. Muslims believe it to be the literal word of God (Allah) as revealed to the Prophet
Muhammad. It contains both general principles of morality and detailed legal prescriptions
covering various aspects of life, including religious rituals, personal conduct, family law, and
more. Quranic verses related to legal matters are known as “ayahs” and serve as the ultimate
authority in Islamic jurisprudence.
• Hadith (Prophetic Traditions): Hadiths are the recorded sayings, actions, approvals, and
disapprovals of the Prophet Muhammad. These traditions provide practical guidance on how
to interpret and apply the Quranic principles in everyday life. Hadith collections by trusted
narrators are an essential source for Islamic jurisprudence. The most well-known collections
are Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawood, Sunan at-Tirmidhi, Sunan an-
Nasa’i, and Sunan Ibn Majah, among others.
• Ijma (Consensus): Ijma refers to the consensus of Islamic scholars or jurists on a particular
legal issue. It is considered a source of authority because it reflects the collective wisdom and
agreement of the scholarly community. Ijma is often invoked when there is no clear guidance
in the Quran or Hadith.
• Qiyas (Analogy): Qiyas involves the process of analogical reasoning to derive legal rulings
for new or complex issues by analogy to existing rulings in the Quran and Hadith. It is used
when no specific guidance can be found in the primary sources, and scholars use their
knowledge of established principles to make reasoned judgments.
• Istiḥsān (Juristic Preference): Istihsan allows jurists to exercise discretion and prefer one
legal opinion over another based on the principle of public interest or equity. It involves
setting aside a strict interpretation in favor of a more beneficial or just solution.
• Istihsal (Custom): Istihsal takes into account established customs and practices of a society
when determining legal rulings, especially when those customs do not contradict the Quran
and Hadith.
• Urf (Local Custom): Urf refers to local customs and practices that can influence legal
decisions, especially in personal matters and customary law.
It’s important to note that different Islamic legal schools (madhabs) may place varying degrees of
emphasis on these sources and may have different methodologies for interpreting and applying them.
Additionally, contemporary Islamic jurisprudence often incorporates the principles of maslahah
(public interest) and istislah (public welfare) to address modern legal and social issues.
2. Secondary Sources-
The secondary source is similar to the modern sources of Hindu Law, which are:
a) Good Consciousness
b) Legislations
c) Precedents
• Schools:
 1. Sunni Schools of Jurisprudence-
• Hanafi School: The Hanafi school is one of the oldest and largest Sunni schools of
jurisprudence. It is named after its founder, Imam Abu Hanifa (699–767 CE). The Hanafi
school is known for its flexibility and emphasis on rational reasoning (qiyas) and Istihsan. It
is prevalent in many parts of the Muslim world, including Turkey, the Indian subcontinent,
and parts of Central Asia.
• Maliki School: Founded by Imam Malik ibn Anas (711–795 CE), the Maliki school is
primarily followed in North and West Africa, as well as some parts of the Arabian Peninsula.
It places a strong emphasis on local customs and practices (urf) and the traditions of the
people of Medina.
• Shafi’i School: The Shafi’i school was founded by Imam al-Shafi’i (767–820 CE). It is
known for its reliance on hadith and the use of qiyas (analogy). The Shafi’i school is followed
in many parts of the Arabian Peninsula, Southeast Asia, and East Africa.
• Hanbali School: Founded by Imam Ahmad ibn Hanbal (780–855 CE), the Hanbali school is
considered the most conservative among Sunni schools. It relies heavily on hadith and does
not generally permit the use of qiyas (analogy) to the same extent as other schools. The
Hanbali school is followed primarily in Saudi Arabia and some parts of the Arabian
Peninsula.
2. Shia Schools of Jurisprudence-
• Ja’fari (Twelver) School: The Ja’fari school is the primary school of jurisprudence among
Twelver Shia Muslims, who make up the majority of the Shia population. It is named after
Imam Ja’far al-Sadiq (702–765 CE) and emphasizes the authority of the Twelve Imams,
including the Mahdi, as sources of guidance and interpretation of Islamic law.
• Ismaili School: Ismaili jurisprudence is followed by the Ismaili Shia community. It is based
on the teachings of the Ismaili Imams, with the current Aga Khan serving as their spiritual
leader. The Ismaili school has its own legal traditions and interpretations.
It’s important to note that within each of these schools of jurisprudence, there can be further
subdivisions and differences in interpretation, particularly in areas where specific legal rulings are not
explicitly mentioned in the primary sources. Additionally, there are other smaller and less widely
followed Islamic jurisprudential schools, such as the Zahiri school and the Ibadi school, among others.
Each of these schools plays a significant role in shaping Islamic law and its application in various
regions and communities around the world.
Conclusion
Modern legal systems have essentially superseded the conventional Hindu legal system in
contemporary India, particularly in areas of criminal and civil law. Hindu law, however, continues to
be important in areas like moral counselling, personal law, and family law. It continues to have a
significant impact on Indian society’s moral and ethical standards and is an essential component of
India’s cultural and philosophical heritage. Islamic legal schools have also played a significant role in
maintaining and interpreting Islamic law. Even though their legal judgments may vary, they all add to
the breadth and depth of Islamic legal thinking. These institutions demonstrate the lasting heritage of
Islamic jurisprudence and are crucial for comprehending how Muslims negotiate the complicated
convergence of faith, morality, and the law in their daily lives.