Legal History

INTRODUCTION:

The subject of legal history aims to discuss about the development of legal systems that have prevailed across India in various eras. It also aims at discussing laws of particular country and its transition from early ages to present. In order to know that whether the law/judicial system in early ages was efficient or not, two pillars of judicial system are to be observed which are “courts or hierarchy of courts” and “codified or well defined system of laws”. Thus the subject of legal history studies the transition and development of laws and judicial system from historical perspective to the present scenario.

Law is a body of rules which is not rigid in its very nature, it is flexible as it changes from time to time with the changing needs of society; as it is said that “change is the rule of nature” with the amelioration of human knowledge and civilization laws must also change, but if a law does not develop with a developing society it will be nugatory. The present laws and judicial system is a result of years of planning and experimentation. Therefore in order to know the efficacy of the present laws and judicial system it is important to conduct studies upon the past evolution of laws and courts in India.

Whenever we study the amelioration of laws we start the study from the advent of British east India Company 1600 A.D. but the point of consideration is whether a law or judicial administration system existed before the British era? The answer to this very question is “no” because traces of laws and judicial administration can be observed in ancient as well as medieval period. Like Dharma Shastra contains laws for human conduct, law was considered to be linked with the religion that is to be followed punctiliously. Sanctions were imposed for the non-observance of these laws.

King Ashok, Chandra Gupta Maurya, Harshwardhan, kanishka during the period of these rulers judicial administration consisted of “civil, criminal and revenue justice”.

CONCEPT OF DHARMA:

the meaning of term dharma is that which “sustains or upholds”. This term is used since ancient ages in the documents relating to religions and laws, and in accordance with such documents dharma is considered to be a term which cannot have a rigid definition or meaning.

According to ancient Hindu texts dharma is the compilation of “religious rights”, “rules of conduct”, and religious duties”.

Yajnavalkya smriti gives out an interpretation of Indian legal theory which was based on dharma for its functioning.

Dharma is a concept which is based upon religious perspectives and as such dharma should be followed by each and every person and also by the king who was considered as the agent of god whose duty was to follow the rules based on dharma and deliver justice to people living in his kingdom as and when required.

Jaimini’s interpretation of dharma: dharma is founded on revelation which is conducive to the welfare of the society. According to Jaimini dharma is that which is ordained by the Vedas.[1]

Manusmriti: conduct is the basis of dharma and “it is not what you think but what you do constitutes your dharma”. Nonviolence is the essence of dharma.[2]  

Dharma is taken to be a part of religion but it has a much wider scope than that, dharma is a concept which cannot be confined within the ambit of “religion”. “Religion” and “law” are the two faces of the same coin which is dharma. In simple words dharma is a set of rules and principles that governs all universe. Dharma cannot be confined within the walls of limitation as it has wider and broader variations like dharma packs within itself a number of rights, duties and legal orders.

For a common man dharma includes duty, legal orders, rights, duties, code of conduct and religion.

DHARMA AND ITS VARIATIONS:

1. Dharma as religion: religion is considered as rules that are laid down by the almighty God and these rules are responsible for governing the universe.
2. Dharma as kartavya or duty: a king follows the principles of “Raj dharma”, a family man follows the principles in “grhasta dharma”, and women follows the principles in “nari dharma”. All these principles signifies within them the duties that are to be followed by different people living in the society. Hindu dharma aims at discussing the duties that are to be followed by the ruler in order to protect his kingdom from any sort of dangers, the ruler who is unable to protect is kingdom is considered to be unworthy and should be dethroned as he is not able to do justice with his kingdom and his subjects.
3. Dharma defining objects: dharma works as a defining force behind objects/things that exists in the society more importantly dharma defines the characteristics of these objects for example “Agni which gives warmth and burns everything in its path without any discrimination”, “the dharma of air is to flow in the territories and provide oxygen to everyone”, the dharma of water is to quench ever bodies thirst without any discrimination and it is also used to extinguish fire”

Manu: according to Manu “dharma is that which is followed by those learned in the Vedas and what is approved by conscience of the virtuous men who are free from hatred and inordinate affection”.[3] Manu has defined dharma in four categories that is “sruti, smriti, sadachar and that which is pleasing to one’s conscience”.

THE ORIGIN OF DHARMA:

There’s no doubt so as to the origin of dharma it can be clearly observed from ancient texts that dharma originates from Vedas, Vedas is considered to be the only stream that is responsible for adding to the human knowledge. Dharma basically originated from Vedas and from knowledge and writings of Rishis. Namely Manu, Yajnavalkya, Brihaspati and Narda all of these rishis proffered the ancient Vedic texts but these rishis are not creators of Vedic texts but are only considered as interpreters of Vedic texts, the work done by them of interpreting the vedic texts is known as “smriti” therefore these rishis are also considered as “smritikars”.

After “smriti”, “puranas” came into existence which are eighteen in number these puranas are the compilation of details about the gods, rishis, kings, kingdoms and advent/end of ‘yugas”(satyug, tretayug, dwaparyug, kalyug).  

Where there is conflict between sruti, smriti and puranas, the text of sruti must prevail, but in case of conflict of later two smriti must prevail.[4]

[1] Jaimini: Purva Mimansa.

[2] Manu smriti, chapter. 1, verse 108.

[3] Manu Samhita, Ch. II, verse I.

[4] Vyas Samhita, chapter I, verse IV.