Historical Approach in Indian Law

In ancient India there was tremendous development of law. That is evident from the large no of legal treatises written in ancient India (only a very small fraction of a legal literature surmised the savages of time but even what has survived is very large. It is said that all Hindu law originated from the Vedas. However, in fact this a fiction and in fact the Hindu Law really emenated from books called the Smriti, Manusmriti, Yajnavalkya, Smiritis of Vishnu, Narad Parashar Apastamba, Vashista, Gowthama etc..These Smritis were not laws made by Parliament or same leglislature. They were books written by certain Sanskrit Scholars in ancient times. Who had specialized in law, later, commentaries, called Nibandhans were written on those smritis. Later, commentaries were written on these smritis commentaries of Vijnaneshwar who wrote commentary on ‘mitakshara’ on the yajnavalkya. The commentary of Jimutvahana who wrote a book called the Dayabhaga, It is not a commentary on any particular Smriti but is a digest of several smritis. Nanda Pandit Dattak mimamsa deals specifically with the law of adoption. Commentaries were then written on these “Viramitrodaya” which is a commentary on the “Mitakshara” it is not necessary to go into further details about this law was originally customary law. 

And there was no statutory law in Ancient India, for the simple reason that there was no Parliament or legislature in those times. The problem with custom, however was that it was often Vague and uncertain and did not go in to details. Customary Rules could of course when a man dies, his property goes to his son, but what would happen if there was no Son and the diseased only leaves behind him several relations who are distantly related to him. Second cousin, grand nephew, aunts etc who will then inherit his property?. This could obviously not be answered by custom. Hence, the Smritis and Commentaries in Ancient India were the sources of law. In Europe, the commentaries of eminent Jurists are cited in the law course unlike the common law system in which court decisions are cited as precedents. The Hindu Law got divided in to Two Branches, (1) The Mitakshara (2) Dayabhaga.

The Mitakshara prevailed over the whole of India except Bengal and Assam, while, the Dayabha prevailed in Bengal and Assam. The difference arose between two different interpretations were given by the commentators to one word ‘Pinda’. To understand this it is first necessary to know that according to the traditional Ancient Hindu Law approach. The person who suffered heard the right to give ‘Shragdha’ to the deceased had the right to inherit the Property of the deceased. The “Shragdha” is a religious ceremony to satisfy the needs of the Spirit of the deceased. According to the Ancient Hindu belief when a man dies his spirit had still some needs. There is a Sloka of Manu stating that when a man dies his inheritance go to his nearest “Sapinda” that will depend on the meaning of the Pinda. According to ‘Jimutration’ if a person dies, his entire property will be inherited by his son. And will be Shared equally by all the sons it there are more than one son. It is only if a deceased dies leaving behind no son, that one can go lower in the list. In that case if the deceased left behind him his son’s son then the property will go to the grandson. There is no concept of co-partioner property in the Dayabhaya School. It was a complete revolutionary approach adopted by Vijnaneswar as it was a complete break through a traditional Hindu Law View, that the person who has the right to do Shragdha has the right to inherit the property of the deceased and it is a good example. The Dayabhaga has followed the traditional Ancient Hindu Law approach that the person who had right to give Shragdha to a deceased has a right inherit his property. Then another thought was completely a revolutionary approach adopted Vijnaneswar as it was a complete break from the Traditional Hindu Law View. 

Mitakshara is much more secular law has compared to Dayabhaga. Since, according to Mitakshara the right to inherit has nothing to do with the right to give “Shragdha”. Vijnaneswar wrote his commentary on the Yajnavalkya Smriti and not on the Manu Smriti. The Manu Smriti is not a systematic work; we will find one Sloka dealing with Religion, the next dealing with Law and the third dealing with Morality. Everything was jumbled up. The Yajnavalka Smriti was devided into Three Chapters, They are (1) Acharya, which deals with Religion and Morality. (2) Vyavahara, which deals with Law. (3) Prayachit, which deals with Penance. According to Yajnavalka Smriti, Law was clearly separated from Religion and Morality. Then Yajnavalkya Smriti was a great advantage over the Manusmriti, because, there was a clear separation of law from Religion and Morality. Similarly, made by Positivist Bentham and Austin who separated law from Religion and Morality. Yajnavalkya Smriti was more conscience and systematic. It was more liberal than Manu Smriti particularly more towards woman. Yajnavalkya adopted a secular approach towards inheritance. Seperation of Law from Religion and Morality was carried by Narada and Brihaspathi, who in their Smritis confined themselves entirely to law, that is civil law. It may be mentioned that the illustrated rule of Interpretation is a departure from the literal role which normally has to be adopted while constructing a Text. 

However, sometimes departures from the literal rule are permissible and one of the departures is the Illustrative rule. To take up one example in the U.S. Constitution Article 1 Section 8 states that, Congress can raise Armys & Navys. There is no mention of an Air Force, because there was no Air Force in 1791 when the U.S Congress was promulgated. The 1st Aircraft was invented by Wright Brothers in 1903. Any legal vacuum was overcome by Ancient Jurists by using one of the Mimamsa Principles of Interpretation. It may be mentioned here in that Mimamsa Principles of Interpretation were principles regularly used by our great Jurists, when even they faced any difficulty in interpreting a Legal Text. One of the Mimamsa Principles is called the “Atidesh” Principle this much used by our Ancient Jurists to solve the problems of the rights & duties of the ‘Dattak putra’. The Mimamsa Principles were created for resolving the particular difficulties in performing the ‘Yagna’. The Atidesh Principle which was created for religious purpose began to be used in the field of law.

The basic structure of the Ancient Hindu Law was that laid down in the Smritis, Which was supplemented as varied by custom. Subsequently, it was made remarkable progress during the post Smriti period. When a number of commentaries and digest were written on it, these commentaries and digest were necessary not only because smritis were written in Slokas. Which were very tense and concise later, Jurists attempted to make the law in consonance with Social Developments. Hindu Law is the law of ‘Smritis’ as expanded in the Sanskrit commentaries and digests, which as modified under Supplemented by custom is administered by the courts. Thus, in the guise of commenting on the Smritis, the commentators utilised their creativity and expounded the Smriti Text. In greater detail and differentiated between the Smriti rules which continued to be in force, and those which have become absolute. Smritis and Commentaries repeatedly stated that custom would override the written text. 

The Principle mode in Hindu Law, dynamic because of customs would override the written text. This principle made be Hindu Law as dynamic. The study of Ancient Indian Jurisprudence really belongs to the school of Jurisprudence! Called Historical Jurisprudence. Whole further is rewarded as the German Jurists Savigny, whose follower was the British Jurists. Sir Henry Main, according to Savigny the law was not consciously created phenomenon but was the gradual distillate of the volkageist law was bound not made savigny was a strong advocate of Customary Law and was opposed to legislation. As law develops from a few simple principles of primitive societies to complexity in later society custom has to be supplementary with writings of Legal Scholars.

No doubt the Historical School made an important contribution to our understanding by suggesting that the law is not a merely a set of artificial rules imposed on society but is an outcome of the social system as it has evolved in history. However, the Historical School was essentially reactionary in character in as much as it made fetish out of custom. As Justice Holmes it is revolting to have no better reason for a rule than that is was so laid in the time of Henry IV. Historical Jurisprudence presented a determined reaction to the rationalizing of the 18th Century. Savigny was inspired by his profound study of Roman law whose development was to him. The model of wise Juristic guidance moulding the law through gradual adaptation for centuries before the Corpus Juris gave the final form of Codification. 

This explains Savigny’s performance for the Jurist rather the legislator as the medium of legal process. The Historical School was entirely unsuited to the Scientific Era. In the age of rapid technical growth, people are not prepared to wait for the slow growth of custom. Legislation is the dominant source of law today.  As it enables rapid change in the law, and this rapid change is necessary in modern industrial society, which is fast changing in view of new scientific discoveries and new inventories. Savigny’s views were coloured by his hostility to the French Revolution, which destroyed the Federal Order and spread the revolutionary ideas of Liberty, Equality and Fraternity proclaimed by the French National Assembly and the National Convention. Savigny was of the view that law comes from the people, not from the state, this may be true of Feudal or Pre-Feudal Law. But, it certainly is untrue of the modern Industrial Era, where almost all the law comes from the state. 


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