Sources of Ancient Indian Law Ane Medieval Law

7/23/2019 Sources of Ancient Indian Law Ane Medieval Law

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SOURCES OF ANCIENTSOURCES OF ANCIENT

INDIAN LAW ANDINDIAN LAW ANDMEDIEVAL INDIAN LAWMEDIEVAL INDIAN LAW


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IN THE VEDIC PERIOD WHEN THE STATEIN THE VEDIC PERIOD WHEN THE STATEFORMATION WAS YET TO COMPLETEDFORMATION WAS YET TO COMPLETED,DHARMA WHICH EMANATED FROM THE,DHARMA WHICH EMANATED FROM THE

VEDAS WAS THE MAIN SOURCE OF LAW.THEVEDAS WAS THE MAIN SOURCE OF LAW.THEVEDIC CONCEPTIONS OF RITA AND SATYAVEDIC CONCEPTIONS OF RITA AND SATYAARE THE PRECURSORS OF THE CONCEPTARE THE PRECURSORS OF THE CONCEPTOF JUSTICE.OF JUSTICE.

RITA---- IS THE MORAL LAWRITA---- IS THE MORAL LAWSATYA----STANDS FOR PERFECT SOCIALSATYA----STANDS FOR PERFECT SOCIALORDER WHERE EVERYTHING IS IN THEORDER WHERE EVERYTHING IS IN THEHARMONY AND PLACE .HARMONY AND PLACE .


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THE DHARMASUTRAS CONSIDERED THE VEDA ASTHE DHARMASUTRAS CONSIDERED THE VEDA ASTHE FIRST AND THE FOREMOST SOURCE OFTHE FIRST AND THE FOREMOST SOURCE OFHINDU LAW.THIS IS SUPPORTED BYHINDU LAW.THIS IS SUPPORTED BYGAUTAMA,VASISTHA AND BAUDHAYANA.GAUTAMA,VASISTHA AND BAUDHAYANA.

BUT WITH THE GROWING COMPLEXITIES OF TIMEBUT WITH THE GROWING COMPLEXITIES OF TIMETHE VEDIC HYMS BECAME DIFFICULT TOTHE VEDIC HYMS BECAME DIFFICULT TOCOMPREHEND.CONSEQUENTLYTHECOMPREHEND.CONSEQUENTLYTHEDHARMASHASTRA WERE ABSORBED IN THEDHARMASHASTRA WERE ABSORBED IN THETRADITION AND BOTH VADAS ANDTRADITION AND BOTH VADAS AND

DHARMASHASTRAS BECAME THE ROOTS OFDHARMASHASTRAS BECAME THE ROOTS OFDHARMA----THE SOURCE OF HINDU LAW.DHARMA----THE SOURCE OF HINDU LAW.


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MANU WAS THE MOST OUTSTANDINGMANU WAS THE MOST OUTSTANDINGEXPONENT OF DHARMASHASTRAEXPONENT OF DHARMASHASTRASCHOOL.HE SPEAKS OF FOUR LEGS----SCHOOL.HE SPEAKS OF FOUR LEGS----

SRUTI(VADAS),SMRITI,CUSTOMS OFSRUTI(VADAS),SMRITI,CUSTOMS OFHOLY MEN(SADACARA) AND ONESHOLY MEN(SADACARA) AND ONESOWN INCLINATION.OWN INCLINATION.

ACCORDING TO MANU SRUTI PEVAILSACCORDING TO MANU SRUTI PEVAILSOVER SMRITI AND THESE HAVEOVER SMRITI AND THESE HAVEPRECEDENCE OVER OTHER TWO.PRECEDENCE OVER OTHER TWO.


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YAJNAVALKYA SPEAKS OF THE FIVE-YAJNAVALKYA SPEAKS OF THE FIVE-FOLD SOURCES OF LAW.HE ADDSFOLD SOURCES OF LAW.HE ADDSEQITY AND CUSTOM TO MANS FOUREQITY AND CUSTOM TO MANS FOUR

!FOLD SOURCES.!FOLD SOURCES.BY SADACARA HE MEANS THOSEBY SADACARA HE MEANS THOSERELIGIOUS AND SPIRITUAL ACTS THATRELIGIOUS AND SPIRITUAL ACTS THAT

ARE PERFORMED BY MEN FREEARE PERFORMED BY MEN FREEFROM SELFISHNESS,HYPOCRACYFROM SELFISHNESS,HYPOCRACYAND OTHER DEFECTS.AND OTHER DEFECTS.


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KAUTILA SAYA THAT THERE ARE FOUR SOURCES OF LAW-------KAUTILA SAYA THAT THERE ARE FOUR SOURCES OF LAW-------

") DHARMA!ABIDING IN THE NATURE OF THINGS.") DHARMA!ABIDING IN THE NATURE OF THINGS.

#) VYAVAHARA(CONTRACT)----TO BE ESTABLISHED BY WITNESS.#) VYAVAHARA(CONTRACT)----TO BE ESTABLISHED BY WITNESS.

$)CARITA(LOCAL CUSTOM)----AS UNDERSTOOD BY THE PEOPLE.$)CARITA(LOCAL CUSTOM)----AS UNDERSTOOD BY THE PEOPLE.

RAJASASANA----THE KING%S ORDER.RAJASASANA----THE KING%S ORDER.

HE SAID WHENEVER THERE IS DIFFERENCE BETWEEN THEHE SAID WHENEVER THERE IS DIFFERENCE BETWEEN THEHISTORY(CARITA) AND THE SACRED LAW OR THE EVIDENCE AND THEHISTORY(CARITA) AND THE SACRED LAW OR THE EVIDENCE AND THESACRED LAW THEN THE SACRED LAW WILL PREVAIL.SACRED LAW THEN THE SACRED LAW WILL PREVAIL.

HE SAYS THAT WHENEVER SACRED LAW(SHATRA) IS IN CONFLICT WITH THEHE SAYS THAT WHENEVER SACRED LAW(SHATRA) IS IN CONFLICT WITH THERATIONAL LAW(KING%S LAW) THE THE LATTER WILL PREVAIL.RATIONAL LAW(KING%S LAW) THE THE LATTER WILL PREVAIL.

HENCE IN THIS WAY DHARMA IS BROUGHT MORE DIRECTLY WITHIN THEHENCE IN THIS WAY DHARMA IS BROUGHT MORE DIRECTLY WITHIN THEPROVINCE OF THE KING.PROVINCE OF THE KING.

KAUTILA EXALTS ROYAL POWER PARTICULARLY THE POWER OFKAUTILA EXALTS ROYAL POWER PARTICULARLY THE POWER OFLEGISLATION BY EDICTS AND DECREES TO A HEIGHT UNKNOWN BEFORE INLEGISLATION BY EDICTS AND DECREES TO A HEIGHT UNKNOWN BEFORE ININDIA.INDIA.


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THE RULES AND REGULATIONS OFTHE RULES AND REGULATIONS OF

SRENIS,NIGAMS,GANASAND SOSRENIS,NIGAMS,GANASAND SO

FORTH,MIMANSA,NYAYA(LOGIC),PURANAS,IFORTH,MIMANSA,NYAYA(LOGIC),PURANAS,I

TITHASA CAME TO BE CONSIDERED ASTITHASA CAME TO BE CONSIDERED ASAUXILLARY SOURCES OF LAW.AUXILLARY SOURCES OF LAW.

IT THUS APPEARS THAT THE ESSENCE OFIT THUS APPEARS THAT THE ESSENCE OF

LAW REMAINED UNCHANGED ,ITSLAW REMAINED UNCHANGED ,ITS

APPLICATION AND AND INTERPRETATIONAPPLICATION AND AND INTERPRETATION

HAD TO ADJUST WITH THE CYCLE OF TIMEHAD TO ADJUST WITH THE CYCLE OF TIME

AND CHANGED SOCIAL ENVIRONS.AND CHANGED SOCIAL ENVIRONS.


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MEDIEVAL LAWMEDIEVAL LAW

THE ISLAMIC GOVERNMENT ANDTHE ISLAMIC GOVERNMENT ANDSOCIETY WAS BASED ON THE SHARSOCIETY WAS BASED ON THE SHAROR ISLAMIC LAW.OR ISLAMIC LAW.

SHAR WAS THE LEGAL SOVEREIGNSHAR WAS THE LEGAL SOVEREIGNAND EVERYONE,THE RULERS ANDAND EVERYONE,THE RULERS ANDTHE RULEDWERE NOT ABOVE THETHE RULEDWERE NOT ABOVE THE

LAW BUT SUBSERVIENT TO IT..LAW BUT SUBSERVIENT TO IT..MUSLIMS CONSIDERED SHAR ASMUSLIMS CONSIDERED SHAR ASDIVINE ,ETERNAL AND IMMUTABLE.DIVINE ,ETERNAL AND IMMUTABLE.


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".THE SHAR".THE SHAR

THE SHAR HAS THREE BASICTHE SHAR HAS THREE BASIC

COMPONENTS THE QURAN ,HAHISCOMPONENTS THE QURAN ,HAHIS

AMD IJMA.AMD IJMA.


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THE QURANTHE QURAN

IT IS THE MOST IMPORTANT SOURCE OFIT IS THE MOST IMPORTANT SOURCE OF

LAW AND THE QURANIC INJUNCTION HASLAW AND THE QURANIC INJUNCTION HAS

AN OVERRIDIG AUTHORITY OVER ALL THEAN OVERRIDIG AUTHORITY OVER ALL THE

OTHER FACTORS.OTHER FACTORS.THE QURAN WAS REVEALED TOTHE QURAN WAS REVEALED TO

HUMANKIND THROUGH THE AGENCY OFHUMANKIND THROUGH THE AGENCY OF

MUHAMMED AND HE WAS CONSIDERED ASMUHAMMED AND HE WAS CONSIDERED AS

THE BEST INTERPRETOR OF QURANICTHE BEST INTERPRETOR OF QURANIC

REVELATIONSREVELATIONS


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THE SUNNAH OR HADISTHE SUNNAH OR HADIS

THE HOLY QURAN DOES NOT ENUNCIATETHE HOLY QURAN DOES NOT ENUNCIATEPRINCIPLES OF LAW IN VERY EXACT AND PRECISEPRINCIPLES OF LAW IN VERY EXACT AND PRECISETERMS.TERMS.

AS THE TIME PASSED BY AND THE SOCIALAS THE TIME PASSED BY AND THE SOCIAL

PROBLEMS GREW MORE INTRICATE ANDPROBLEMS GREW MORE INTRICATE ANDCOMPLEXAND THE GOVERNANCE BECAMECOMPLEXAND THE GOVERNANCE BECAMEDIFFICULT BASED ON THE REVEALED BOOK WHICHDIFFICULT BASED ON THE REVEALED BOOK WHICHLAID DOWN ONLY THE BROADER PRINCIPLES OFLAID DOWN ONLY THE BROADER PRINCIPLES OFSOCIAL LIFE.SOCIAL LIFE.

THIS DIFFICULTY WAS OVERCOME BYTHIS DIFFICULTY WAS OVERCOME BYINCORPORATING SUNNAH OR HADIS AS THEINCORPORATING SUNNAH OR HADIS AS THESOURCE OF LAW ONLY NEXT TO QURAN.SOURCE OF LAW ONLY NEXT TO QURAN.


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IJMA OR QIYASIJMA OR QIYAS

IN THE COURSE OF LATER DEVELOPMENT THEIN THE COURSE OF LATER DEVELOPMENT THEMUSLIM SOCIETY WAS CONFRONTED WITH THEMUSLIM SOCIETY WAS CONFRONTED WITH THENEW PROBLEMS WHICH THE EXISTING LAW WASNEW PROBLEMS WHICH THE EXISTING LAW WASINADEQUATE TO SOLVE THEM.HENCE THE NEEDINADEQUATE TO SOLVE THEM.HENCE THE NEED

ARISE FOR IJMA OR QIYAS.ARISE FOR IJMA OR QIYAS.IJMA IS THE CONSENSUS OF THE MOST EMINETIJMA IS THE CONSENSUS OF THE MOST EMINETTHEOLOGIANS OF IF ISLAM AND WAS ACCEPTEDTHEOLOGIANS OF IF ISLAM AND WAS ACCEPTED

AS THE RIGHT SOLUTION.AS THE RIGHT SOLUTION.

THE QIYAS ARE THE ANALOGOUS INFERENCESTHE QIYAS ARE THE ANALOGOUS INFERENCESBASED ON THE QURAN AND THE HADIS.BASED ON THE QURAN AND THE HADIS.


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CONCLUSIONCONCLUSION

IT FOLLOWS FROM THE ABOVEIT FOLLOWS FROM THE ABOVESTATEMENTS THAT THESTATEMENTS THAT THEINTERPRETATION PLAYS ANINTERPRETATION PLAYS AN

IMPORTANT PART IN THEIMPORTANT PART IN THEDEVELOPMENT OF THE SHAR LAW.DEVELOPMENT OF THE SHAR LAW.

MATTERS REGARDING THEMATTERS REGARDING THE

MARRIAGE,INHERITANCE,SUCCESSIOMARRIAGE,INHERITANCE,SUCCESSION AND SO FORTHCAME UNDER THEN AND SO FORTHCAME UNDER THEPURVIEW OF SHAR LAW.PURVIEW OF SHAR LAW.


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#.THE URFI LAW#.THE URFI LAW

THESE ARE THE RULES AND REGULATIONS ISSUEDTHESE ARE THE RULES AND REGULATIONS ISSUEDFROM TIME TO TIME BY VARIOUS MUSLIM RULERSFROM TIME TO TIME BY VARIOUS MUSLIM RULERSFROM DIFFERENT STATES.FROM DIFFERENT STATES.

THESE REGULATIONS WERE BASED ON JUSTICETHESE REGULATIONS WERE BASED ON JUSTICE

AND FAIR PLAY AND MOSTLY RELATED TO THEAND FAIR PLAY AND MOSTLY RELATED TO THETRADE,PROPERTY,TAXATION,WAR AND THE LIKE.TRADE,PROPERTY,TAXATION,WAR AND THE LIKE.

A JUDGE WAS ALLOWED CONSIDERABLEA JUDGE WAS ALLOWED CONSIDERABLEDISCRETION AND APPLICATION OF THE URFI LAWDISCRETION AND APPLICATION OF THE URFI LAWBUT HE CANNOT INTERFERE IN THEBUT HE CANNOT INTERFERE IN THEINTERPRETATION OF SHAR LAW AND HAS TOINTERPRETATION OF SHAR LAW AND HAS TOSTRICTLY BY THE VIEWS OF THE APPROVEDSTRICTLY BY THE VIEWS OF THE APPROVEDLEARNED JURISTS.LEARNED JURISTS.


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STILL, LATER CONSIDERABLE COMPLEXITY AROSE DUE TOSTILL, LATER CONSIDERABLE COMPLEXITY AROSE DUE TOTHE CONFLICTING INTERPRETATIONS BY NUMEROUSTHE CONFLICTING INTERPRETATIONS BY NUMEROUSLEARNED JURISTS(MUJTAHIDS) WHO HELD DIVERGENTLEARNED JURISTS(MUJTAHIDS) WHO HELD DIVERGENTVIEWS WITH REGARDS TO THE LEGAL POINTS AND OTHERVIEWS WITH REGARDS TO THE LEGAL POINTS AND OTHERMATTERS WHICH WERE NOT COVERED BY QURAN AND THEMATTERS WHICH WERE NOT COVERED BY QURAN AND THEHADISHADIS

DUE TO ALL THIS THERE GREW MANY SCHOOLS OF LAWDUE TO ALL THIS THERE GREW MANY SCHOOLS OF LAWWHOSE COMMENTARIES ON MUSLIM LAW WAS BASED ONWHOSE COMMENTARIES ON MUSLIM LAW WAS BASED ONTHE EXHAUSTIVE STUDY OF QURAN, HADIS,IJMA AND QIYAS.THE EXHAUSTIVE STUDY OF QURAN, HADIS,IJMA AND QIYAS.

OF THE IMPORTANT SCHOOLS OF LAW ,LEAVING ASIDE THEOF THE IMPORTANT SCHOOLS OF LAW ,LEAVING ASIDE THESHIA AND THE KHARIJI SECT ,WHICH WERE FOUNDED AS ASHIA AND THE KHARIJI SECT ,WHICH WERE FOUNDED AS ARESULT OF THE POLITICAL CLEAVAGE,MENTION MUST BERESULT OF THE POLITICAL CLEAVAGE,MENTION MUST BEMADE OF THE FOUR MAIN SCHOOLS OF LAW.MADE OF THE FOUR MAIN SCHOOLS OF LAW.THESE SCHOOLS WERE BASED ON ORTHODOXTHESE SCHOOLS WERE BASED ON ORTHODOXISLAM,CALLED GENERALLY SUNNISM.ISLAM,CALLED GENERALLY SUNNISM.


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VARIOUS SCHOOLS&&&VARIOUS SCHOOLS&&&

") THE HANAFI SCHOOL FOUNDED BY") THE HANAFI SCHOOL FOUNDED BYABU HANIFAHABU HANIFAH

#)THE MALIKI SCHOOL FOUNDED BY#)THE MALIKI SCHOOL FOUNDED BY

MALIK IBN ANASMALIK IBN ANAS

$)THE HANBALI SCHOOL BASED ON$)THE HANBALI SCHOOL BASED ONTHE TEACHING OF AHMED IBNTHE TEACHING OF AHMED IBN

HANBAL.HANBAL.')THE SHAFI SCHOOL FOUNDED BY')THE SHAFI SCHOOL FOUNDED BYMUHAMMED IBN IDRIS-ASH-SHAFI.MUHAMMED IBN IDRIS-ASH-SHAFI.


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OF THESE SCHOOLS ONLY THE HANFIOF THESE SCHOOLS ONLY THE HANFI

AND SHAFI SCHOOL SCHOOL WEREAND SHAFI SCHOOL SCHOOL WERE

POPULAR IN INDIA .THE HANAFIPOPULAR IN INDIA .THE HANAFI

SCHOOL WAS THE MOST LIBERAL OFSCHOOL WAS THE MOST LIBERAL OF

THEM.THEM.


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CONCLUSIONCONCLUSION

THE MUSLIM LAW IS PRIMARILY RELIGIOUSTHE MUSLIM LAW IS PRIMARILY RELIGIOUSBECOMES EVIDENT FROM THE FACT OF ITSBECOMES EVIDENT FROM THE FACT OF ITSORIGIN AND THEREFORE THE SECULARORIGIN AND THEREFORE THE SECULARLAWS BACAME SUBSERVIENTTO THELAWS BACAME SUBSERVIENTTO THECANONICALLAW.CANONICALLAW.

THE BASIS OF ISLAMIC LEGISLATION WASTHE BASIS OF ISLAMIC LEGISLATION WASETHICAL AND NOT LEGAL .ETHICAL AND NOT LEGAL .

IN THE DEVELOPMENT OF ISLAMIC LAWIN THE DEVELOPMENT OF ISLAMIC LAWCONSTANT INTERPRETATION AND RE-CONSTANT INTERPRETATION AND RE-INTERPRETATION PLAYED AN IMPORTANTINTERPRETATION PLAYED AN IMPORTANTPART.PART.

Sources of Ancient Indian Law Ane Medieval Law

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