Sources of Law in Hindu and Muslim Law, Study notes of Sociology of Law

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Sources of Law

Module 1

Sources of Law

• Sources of Law
  • Sources of Hindu Law
  • Sources of Muslim Law

Sources of Hindu Law

• Source: Meaning
  • a place, person, or thing from which something originates or can be obtained.
  • Source of Hindu Law means- Origin of rules of Hindu Law.
  • Law as understood by Hindus is a branch of ‘Dharma’
  • Shrutis, Smritis and Sadachara- Sources of Dharma and therefore sources of Law.
  • Dharma an expression of wide import- its an aggregate of duties- religious, social, moral and legal.
  • ‘Dharma’ – “What is followed by those learned in Vedas and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affection.”

Ancient Hindu Law

• “Where not modified or abrogated by legislation, Hindu law may be described as the ancient law of Hindus rooted in Vedas and enounced in Smritis as explained and enlarged in recognised commentaries and digests and as supplemented or varied by approved usages.”

Ancient Sources of Hindu Law

Shrutis

• Shrutis – “Shru” means ‘to hear’. It means “which was heard.”
• Shrutis refers to Vedas - in theory original roots of dharma.
• Four Vedas – Rigveda, Yajurveda, Samveda and Atarvaveda
• The Vedas are the works which was heard by the great sages during their tranceand was revealed to them by God.
• Although Vedas does not positive law in connected form but there are incidental references to various topics like marriage, forms of marriage, adoption, inheritance etc.

Smritis

• Smriti means ‘to remember’. It means ‘which was remembered.’
• Smritis are said to be the precepts of great sages who had the divine revelation present in their memory and recorded them.
• In case of any conflict between Vedas and Smritis, Vedas prevailed over smritis.
• (^) For all practical purposes, Smritis are accepted as the effective source of Hindu law.
• (^) Hindu jurisprudence regard Smritis (Dhramshastras) as constituting foundations and important source of Hindu law.

• Yajnavalakya Smriti:
  • Code of Yajnavalakya is the main work founded on Manusmriti-but – more logical and synthesied.
  • More liberal in matters of status of Shudras, women’s rights of inheritance and to hold property, criminal penalty than Manu.
  • Less severe punishments.
  • Deals with procedural law in detail.
  • Commentaries on Yajnavalakya Smriti: Mitakshara by Vijnaneshwara
  • Narad Smriti: deals with rules of inheritance, ownership, property, gifts, shares of widows, recognise separation and remarriage by women in certain circumstances.
  • Commentaries: Ashaya, Parashara

Commentaries

• Commentaries are the interpretations of Smritis by the commentators. Such interpretations are made to bring the law laid down in smritis to bring it in harmony with the usages followed by people.
• Modified and supplemented the rules in smritis in part by means of their own reasoning and in part in the light of the usages that had grown up.
• Most celebrated commentary is Mitakshara- a commentary written by Vijnaneshwara on Yajanavalakya Smriti.
• Written in 11th^ Century.
• The authority of Mitakshara is supreme throughout India except Bengal. In Bengal, the commentary ‘Dayabhaga’ by Jimutvahana is applicable.

Modern Sources

• Legislations
  • Concrete, easily accessible, ascertainable and authoritative source of law.
    • The Caste Disabilities Removal Act 1850
    • (^) The Hindu Widows’ Remarriage Act, 1856
    • The Indian Succession Act, 1925
    • The Special Marriage Act, 1954
    • The Hindu Marriage Act, 1955
    • The Hindu Adoption and Maintenance Act, 1956
    • The Hindu Minority and Guardianship Act, 1956
    • The Hindu Succession Act, 1956

• Judicial Precedents
  • Principle of stare decisis – to stand by things decided.
  • Decision of Higher courts are binding on the lower courts.
  • Objective: to bring uniformity and consistency in law on any particular point.
  • Hindu law has developed manifold through judicial decisions and interpretations.
  • Authoritative precedents are important source of law.
  • Decisions of Supreme Court are binding on the lower courts.
  • Decisions of the high courts have only persuasive authority on the parallel high courts but are binding on the subordinate courts with that high court’s jurisdiction.

Sources of Muslim Law

• Primary Sources
  • Quran
  • Sunnat
  • Ijma
  • Qiyas
• Secondary Sources
• Custom
• Judicial Decisions/precedent
• Legislations

Primary/Ancient Sources

• The Quran – dereived from word Quarra which means ‘to read’
  • Divine in nature/supreme authority of for Muslims
  • Divine revelations/communications of God to the Prophet through Angel Gabriel. (Not revealed in one go but spread over 23 years).
  • Original book contains 114 chapters (Sura) and 6666 verses (Ayat).
  • Not a book of law but is related to conduct of one’s life.
  • (^) Around 200 verses relate to legal principles- like marriage, matrimonial remedies, wills, maintenance, inheritance, transfer of property etc.
  • 80 verses deals with marriage, divorce, dower and inheritance.

• (^) Around 6 chapters deals with rules of Islamic law.
  • Matters covered – marriage, position of women, divorce, succession, chastity of men and women.
  • Criminal laws relating to punishment for crimes.
  • Directions relating to treatment of enemy.
  • Directions relating to treatment relating to non- muslims and protection of their rights.

Sunnat

• Sunnats are the traditions of Prophet.
• Second in authority after Quran.
• Sunnat means model behaviour of Prophet.
• Narrations of what prophet said, did or tacitly allowed are called Hadis/traditions.
• Quran supplemented by Sunnat frames the whole body of Mohemmedan law.
• Sunnat are of three kinds:
  • Sunnat- al- Fail (what the prophet did himself)
  • Sunnat – al – Qaul (all what he enjoined by words)
  • Sunnat – al – Taqrir (all what prophet allowed to be done with his approval without objecting to it). Later on the sunnats were compiled and were called Musnads.