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India is a country that comprises of people following different religions. It is obvious that when it comes to governing them, religious beliefs of the people cannot be ignored, but the question is what all things should be considered as law and what not, not only this which all sources should be looked upon while framing laws in order to govern people of different religions. The two major religions in India are Islam and Hinduism. Apart from that, there is a considerable amount of population comprising of Sikhs, Buddhists, Jains, and Christian. Therefore it is necessary to examine all the sources which are looked upon before framing laws affecting the lives of people especially their personal matters like divorce, marriages, inheritances, etc.
Hindu law is nothing but the concept of dharma, the concept of dharma in Hindu law is not defined precisely but it has come to mean the way of life a person lives and enjoys, which includes every aspect of his life. Right from the birth till the death of a person everything is included and governed by dharma. In other words, dharma is sometimes said to be the guiding force for all the Hindus. It contains rules regarding the proper conduct of people, it preaches love for everyone and contains the duties that every individual has towards the society as a whole. Dharma also was the major law which the kings of ancient times, especially the Hindu kings used to govern the people. All the laws which were passed had to be in conformity with the dharma, in simple terms the king was not above dharma and had to rule according to dharma.
Scope of Hindu law
Essentially Hindu law consists of all the activities and the practices that people have been following from time to time and thus becoming customs, however as the society progressed Hindu law was majorly used to establish the brahmin dominance, the concept of caste system is also an example of this under which the Brahmins were placed at the top and the kings who had the real power below them.
Sources of Hindu law
Hindu law is made up of various text and scriptures, the growth of Hindu law was both natural and sometimes helped by the legislation that was enacted during the British period. Sources of Hindu law can be divided into ancient sources and modern sources.
Ancient sources include religious text such as shrutis and the smritis, apart from that there are various Upanishads which also were a part of Hindu law.
Shruti as a source of law
Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are considered to be the major source of Hindu law. Another term for Shruti is Veda. according to Hindu law, there are four Vedas namely, Rigveda, Samveda, Yajurveda, Atharveda. The brahmins used to pronounce what is written in these Vedas to the people. Since brahmins were considered to be knowledgeable people whatever they said was of supreme importance and it was considered to be the law of the land, therefore shrutis contain what is written and pronounced by the brahmins. Brahmins also tell us about the duties that the individual has to follow and how to perform these duties. The Upanishads contain the essence of these duties.
Smriti as a source of law
Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis which the sages forgot to tell in their original form and therefore wrote down in the language which they were familiar with, therefore shrutis are considered to be the basis of smritis. There are 2 kinds of smritis first is Dharmasastras and the other is Dharmasutras. Dharmasastras contains the rules regarding the moral code of conduct for Hindus, whereas Dharmasutras contains the rules regarding government, caste, the relationship between people, economic affairs, eating habits, etc. There are many smritis that one can not count but the two famous smritis are Yajnavalkya smriti and manusmriti. Manusmriti is also considered to the first law book written by Manu.
Digests and Commentaries
The third most important source of law is the digests and the commentaries written by various authors of Hindu law. Commentaries generally comment on the smritis, the area of commentaries is from the 7th century to 1800 AD. Commentaries also laid the foundation of various schools of Hindu law. Digests contain the important aspects of all the smritis and discussed their reconciling and contradictions. Various digests and commentaries have been written by various authors on the two most famous smritis that is manusmriti and yajnavalkya smriti namely.
- Medhatithi has written Manubhasya.
- Govind Raja has written Manuka.
- Vigneshwara has written the famous commentary on Mitakshara.
- Arpaka has written Aparaditya.
Customs are the most important and the oldest form of lawmaking, customs mean the traditions, practices, activities, that people have been following for generations and overtime recognized as law. The essence behind considering customs as a major source of law is that since people follow customs and if some customs are not harmful to society then the state has no problem recognizing it. In order, that a custom becomes law there are some essentials which it may fulfill such as a custom must be valid, it should be in continuity, it should be followed by a large number of people and last it must not be discriminating and should not be opposed to public policy.
Indian law has recognized 3 types of custom namely:
- Local customs- These are the customs that are prevalent in a particular local area.
- Class customs- These are the customs that are prevalent amongst a particular class.
- Family customs- These are the customs that are binding on the members of the family.
Modern sources of Hindu law
After the arrival of British many changes were brought in the personal laws of Hindus and many legislations were also passed, the modern sources of Hindu Law the doctrine of justice equity good consciousness, legislation, and precedents.
Justice Equity and Good Consciousness
In cases where there was no proper law to settle the disputes nor there was an existing law, then the judges used to give judgments according to the concept of Justice Equity and Good Consciousness. This doctrine was based on the concept of fair play, this doctrine did not have a uniform application since thinking of one judge may be different from the other, however, this doctrine played a huge role in transforming the personal laws of the Hindus.
The legislation means the acts of the parliament, various Acts were passed by the legislature such as the Child Marriage Restraint Act, 1929, Hindu Successsion Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956. The legislation passed is binding upon all the other sources of law.legislation is codified this means it has been written in a proper way and it has to accepted and followed by all the people governing it. In modern times legislation is also called as the lawmaking body.
After the establishment of British rule, courts were established and the hierarchy was introduced. Precedent means following the decision of the higher courts by the courts below it, if a particular case has already been decided, it seems reasonable to follow the same decision if the facts of the case are similar to the decided case. In today’s time, the decision of the supreme court is binding on all the made by other courts.
Schools of Hindu Law
There are two schools of Hindu Law namely:
- Mitakshara school
- Dayabhaga school
Mitakshara school derives its name from the commentary of Vijyaneshwara named Mitakshara. Mitakshara school contains rules regarding marriages, division of society into four castes, apart from this it contains rites and rituals that are to be performed during pregnancy, all these rites and rituals are considered sacred. Mitakshara school prohibits the marriage between a shudra and a brahmin, inter-caste marriages are allowed amongst the upper caste only.
Mitakshara school is subdivided into four major schools namely:
It is prevalent in North India expect the rural areas of Punjab, where this school has been modified according to the customary laws.
This school is prevalent in some areas of Northern Bihar.
This school was prevalent in western parts of the country mainly Gujarat and Maharashtra.
The madras or Dravida school
This school covers the whole of southern India including Karnataka, Tamil Nadu, and Andhra Pradesh.
Dayabhaga school is prevalent in Bengal and Assam. Dayabhaga school professes benefit for the governance of the rules of succession.The immediate effect of this school was that there was an inclusion of many new people in the list of hires for succession which was not mentioned in Mitakshara school. Dayabhaga school preaches logic and reason rather than precepts and precedents. This school advocate for more practical and rational doctrines.
Sources of Islamic Law
Islamic law is made up of various sources, Quran the holy text being the main source, after Quran the main source of Islamic law is sunnah, both Quran and Sunnah are considered to be the primary source of law, apart from the primary source the other sources of Islamic law consists of ijma and qiyas.
Quran which is the holy book for Muslims and is the main source of Islamic law. Quran is said to contain the direct sayings of Allah through his messenger Muhammad.Quran contains the rules and regulations regarding the conduct of Muslim people and various socio-economic laws. Quran was compiled soon after the death of Muhammad. Quran is not a legal textbook as it only contains the rules regulating man’s conduct with himself and God.
After the Quran the main source of Islamic law is the Sunnah, Sunnah contains the sayings of Muhammad, his daily activities, his prayer and his way of life. Since Muhammad is considered to be the perfect human being therefore whatever he says, does or advocates to perform becomes law for the other people. Quran is essentially a religious book and therefore it does not contain the legal and practical rules and therefore Muslims refer to sunnah on issues where the Quran is silent or does not have proper regulation.
Ijma is considered to be the third most important source of Islamic law, ijma refers to the consensus among the learned Muslim jurists on a particular legal issue. However, there has been a discussion among various jurists whether to consider Ijma as a primary source of law or a secondary source of law. The Sunni jurists consider Ijma as an important source of law for making legislation, whereas the Shia jurists consider it as a secondary source.
Qiyas is the analogical deduction and is a secondary source of Islamic law. It means deciding cases according to reason, many Islamic jurists point towards the validity of Qiyas as a primary source of law by citing the Quran, as Muhammad in the Quran has said that if he is not able to resolve the dispute through a proper injunction then, in that case, he shall use his reason to solve it. The main principle behind the concept of Qiyas is that since every injunction is based on some benefit of the people, thus if a cause of injunction is taken from a primary source then the analytical deduction can be applied to cases with similar causes.
Schools of Islamic law
There are 4 schools of Islamic law namely:
- The Hanifa School founded by Abu Hanifa.
- The Maliki School founded by Malik ibn Anas.
- The Hanbali School based on the teachings of Ahmed ibn Hanbal.
- The Shafi School founded by Muhammad ibn Idris-ash Shafi.
Hanifa School of Thought
The Hanifa School is the most popular school of thought among the other four schools of thought. It is majorly followed in North India, out of the four schools of thought Hanifa school of thought is much more liberal towards the non muslims, the Hanifa school of thought gives greater importance to the rational deduction.
The Maliki School of Thought
The Maliki school of thought is the second largest school of Islamic jurisprudence when it comes to the percentage of its followers. This school is followed by at least 25% of the Muslim population. This school of thought is predominantly different from other schools of thought when it comes to sources to derive its sayings, however like other schools, the Maliki school of thought also Quran as the major source of Islamic law. The only thing which differs this school from the other school of thoughts is that, it also considers the practises followed the people of Medina as an important source of Islamic law as Muhammad was born in Medina, lived there, formed a government there and died there Another major difference between Malki and other schools is in the way people offer prayer, according to the of Maliki school during prayer the hands should be kept at side but this is not same in the other schools.
The Hanbali School of Thought
The Hanbali school of thought does not have great followership, still, it is an important school of Islamic jurisprudence. It is considered to be the most orthodox schools of Islamic jurisprudence as it wants to the strict implementation of the Quran and the sayings of Muhammad, however it is considered to be one of the most liberal schools when it comes to trade or for commercial purposes. The current set of individuals who believe in Wahabism is influenced by this school.
The Shafi school of Thought
The Shafi school of thought is mostly followed in Yemen, Sri Lanka, Indonesia, and Palestine. It considers the Quran, Ijma, Sunnah, and Qiyas as the major source of Islamic law, however, it relies less on qiyas while trying to construct its sayings. Apart from this it also considers the sayings of Muhammad’s close companionship as a source of Islamic law.
Sources of Christian Law
The four major sources of Christian law are:
- Scriptures i.e the Holy Bible
The Holy Bible is made up of books that were written over a period of 1000 years. It contains letters, history, genres, and poetry. The Bible can be divided into two sections: the first is the old testament and the second is the new testament which contains the life of Jesus and the life of early Christian society. some Christian consider every word of the Bible correct whereas some consider the literature as the major ground for a moral foundation.
Initially, traditions were interpreted as the teachings of Jesus Christ to his followers and then the followers recited the teachings to the Christian people, today it has come to be associated with the approaches that guide the of different Christian groups. Orthodox Christians gave high importance to traditions.
Reasons like tradition have very high importance among the Christians, it is sometimes used to get an understanding of the Bible, there might occur situations when Bible and Traditions might come in conflict with reasons but for that reason would be neglected.
Some people also consider experiences as an important source to understand Christian theology. Experience includes people’s thinking, their thoughts, and their five senses. The reason behind including experience as a source of Christian Theology is that whatever happens with the individual in his life is real, it was felt that Christianity must incorporate these experiences in it as well.
In India, since there are so many religions it is not possible to have a common source for the personal laws of different communities and therefore different sources have to be approached while making laws for people who follow different traditions. Although my personal opinion is a bit different. When you have different laws governing people of the same nation it leads to nonuniformity. For a nation to develop you need uniformity and considering the various laws of different countries we find our law is much suited to the social conditions of India.
One of the major aims of law is to command obedience and there is no better way to demand obedience by making people follow their own traditions which they have been following for centuries.