SOURCES OF ANCIENT

INDIAN LAW AND

MEDIEVAL INDIAN LAW

IN THE VEDIC PERIOD WHEN THE STATE

FORMATION WAS YET TO COMPLETED
,DHARMA WHICH EMANATED FROM THE
VEDAS WAS THE MAIN SOURCE OF LAW.THE
VEDIC CONCEPTIONS OF RITA AND SATYA
ARE THE PRECURSORS OF THE CONCEPT
OF JUSTICE.
RITA---- IS THE MORAL LAW
SATYA----STANDS FOR PERFECT SOCIAL
ORDER WHERE EVERYTHING IS IN THE
HARMONY AND PLACE .

THE DHARMASUTRAS CONSIDERED THE VEDA AS

THE FIRST AND THE FOREMOST SOURCE OF
HINDU LAW.THIS IS SUPPORTED BY
GAUTAMA,VASISTHA AND BAUDHAYANA.
BUT WITH THE GROWING COMPLEXITIES OF TIME
THE VEDIC HYMS BECAME DIFFICULT TO
COMPREHEND.CONSEQUENTLYTHE
DHARMASHASTRA WERE ABSORBED IN THE
TRADITION AND BOTH VADAS AND
DHARMASHASTRAS BECAME THE ROOTS OF
DHARMA----THE SOURCE OF HINDU LAW.

MANU WAS THE MOST OUTSTANDING

EXPONENT OF DHARMASHASTRA
SCHOOL.HE SPEAKS OF FOUR LEGS---SRUTI(VADAS),SMRITI,CUSTOMS OF
HOLY MEN(SADACARA) AND ONES
OWN INCLINATION.
ACCORDING TO MANU SRUTI PEVAILS
OVER SMRITI AND THESE HAVE
PRECEDENCE OVER OTHER TWO.

YAJNAVALKYA SPEAKS OF THE FIVEFOLD SOURCES OF LAW.HE ADDS

EQITY AND CUSTOM TO MANS FOUR
FOLD SOURCES.
BY SADACARA HE MEANS THOSE
RELIGIOUS AND SPIRITUAL ACTS THAT
ARE PERFORMED BY MEN FREE
FROM SELFISHNESS,HYPOCRACY
AND OTHER DEFECTS.

KAUTILA SAYA THAT THERE ARE FOUR SOURCES OF LAW------1) DHARMAABIDING IN THE NATURE OF THINGS.
2) VYAVAHARA(CONTRACT)----TO BE ESTABLISHED BY WITNESS.
3)CARITA(LOCAL CUSTOM)----AS UNDERSTOOD BY THE PEOPLE.
RAJASASANA----THE KINGS ORDER.
HE SAID WHENEVER THERE IS DIFFERENCE BETWEEN THE
HISTORY(CARITA) AND THE SACRED LAW OR THE EVIDENCE AND THE
SACRED LAW THEN THE SACRED LAW WILL PREVAIL.
HE SAYS THAT WHENEVER SACRED LAW(SHATRA) IS IN CONFLICT WITH THE
RATIONAL LAW(KINGS LAW) THE THE LATTER WILL PREVAIL.
HENCE IN THIS WAY DHARMA IS BROUGHT MORE DIRECTLY WITHIN THE
PROVINCE OF THE KING.
KAUTILA EXALTS ROYAL POWER PARTICULARLY THE POWER OF
LEGISLATION BY EDICTS AND DECREES TO A HEIGHT UNKNOWN BEFORE IN
INDIA.

THE RULES AND REGULATIONS OF

SRENIS,NIGAMS,GANASAND SO
FORTH,MIMANSA,NYAYA(LOGIC),PURANAS,I
TITHASA CAME TO BE CONSIDERED AS
AUXILLARY SOURCES OF LAW.
IT THUS APPEARS THAT THE ESSENCE OF
LAW REMAINED UNCHANGED ,ITS
APPLICATION AND AND INTERPRETATION
HAD TO ADJUST WITH THE CYCLE OF TIME
AND CHANGED SOCIAL ENVIRONS.

MEDIEVAL LAW
THE ISLAMIC GOVERNMENT AND
SOCIETY WAS BASED ON THE SHAR
OR ISLAMIC LAW.
SHAR WAS THE LEGAL SOVEREIGN
AND EVERYONE,THE RULERS AND
THE RULEDWERE NOT ABOVE THE
LAW BUT SUBSERVIENT TO IT..
MUSLIMS CONSIDERED SHAR AS
DIVINE ,ETERNAL AND IMMUTABLE.

1.THE SHAR
THE SHAR HAS THREE BASIC
COMPONENTS THE QURAN ,HAHIS
AMD IJMA.

THE QURAN
IT IS THE MOST IMPORTANT SOURCE OF
LAW AND THE QURANIC INJUNCTION HAS
AN OVERRIDIG AUTHORITY OVER ALL THE
OTHER FACTORS.
THE QURAN WAS REVEALED TO
HUMANKIND THROUGH THE AGENCY OF
MUHAMMED AND HE WAS CONSIDERED AS
THE BEST INTERPRETOR OF QURANIC
REVELATIONS

THE SUNNAH OR HADIS

THE HOLY QURAN DOES NOT ENUNCIATE
PRINCIPLES OF LAW IN VERY EXACT AND PRECISE
TERMS.
AS THE TIME PASSED BY AND THE SOCIAL
PROBLEMS GREW MORE INTRICATE AND
COMPLEXAND THE GOVERNANCE BECAME
DIFFICULT BASED ON THE REVEALED BOOK WHICH
LAID DOWN ONLY THE BROADER PRINCIPLES OF
SOCIAL LIFE.
THIS DIFFICULTY WAS OVERCOME BY
INCORPORATING SUNNAH OR HADIS AS THE
SOURCE OF LAW ONLY NEXT TO QURAN.

IJMA OR QIYAS
IN THE COURSE OF LATER DEVELOPMENT THE
MUSLIM SOCIETY WAS CONFRONTED WITH THE
NEW PROBLEMS WHICH THE EXISTING LAW WAS
INADEQUATE TO SOLVE THEM.HENCE THE NEED
ARISE FOR IJMA OR QIYAS.
IJMA IS THE CONSENSUS OF THE MOST EMINET
THEOLOGIANS OF IF ISLAM AND WAS ACCEPTED
AS THE RIGHT SOLUTION.
THE QIYAS ARE THE ANALOGOUS INFERENCES
BASED ON THE QURAN AND THE HADIS.

CONCLUSION
IT FOLLOWS FROM THE ABOVE
STATEMENTS THAT THE
INTERPRETATION PLAYS AN
IMPORTANT PART IN THE
DEVELOPMENT OF THE SHAR LAW.
MATTERS REGARDING THE
MARRIAGE,INHERITANCE,SUCCESSIO
N AND SO FORTHCAME UNDER THE
PURVIEW OF SHAR LAW.

2.THE URFI LAW

THESE ARE THE RULES AND REGULATIONS ISSUED
FROM TIME TO TIME BY VARIOUS MUSLIM RULERS
FROM DIFFERENT STATES.
THESE REGULATIONS WERE BASED ON JUSTICE
AND FAIR PLAY AND MOSTLY RELATED TO THE
TRADE,PROPERTY,TAXATION,WAR AND THE LIKE.
A JUDGE WAS ALLOWED CONSIDERABLE
DISCRETION AND APPLICATION OF THE URFI LAW
BUT HE CANNOT INTERFERE IN THE
INTERPRETATION OF SHAR LAW AND HAS TO
STRICTLY BY THE VIEWS OF THE APPROVED
LEARNED JURISTS.

STILL, LATER CONSIDERABLE COMPLEXITY AROSE DUE TO

THE CONFLICTING INTERPRETATIONS BY NUMEROUS
LEARNED JURISTS(MUJTAHIDS) WHO HELD DIVERGENT
VIEWS WITH REGARDS TO THE LEGAL POINTS AND OTHER
MATTERS WHICH WERE NOT COVERED BY QURAN AND THE
HADIS
DUE TO ALL THIS THERE GREW MANY SCHOOLS OF LAW
WHOSE COMMENTARIES ON MUSLIM LAW WAS BASED ON
THE EXHAUSTIVE STUDY OF QURAN, HADIS,IJMA AND QIYAS.
OF THE IMPORTANT SCHOOLS OF LAW ,LEAVING ASIDE THE
SHIA AND THE KHARIJI SECT ,WHICH WERE FOUNDED AS A
RESULT OF THE POLITICAL CLEAVAGE,MENTION MUST BE
MADE OF THE FOUR MAIN SCHOOLS OF LAW.
THESE SCHOOLS WERE BASED ON ORTHODOX
ISLAM,CALLED GENERALLY SUNNISM.

VARIOUS SCHOOLS
1) THE HANAFI SCHOOL FOUNDED BY
ABU HANIFAH
2)THE MALIKI SCHOOL FOUNDED BY
MALIK IBN ANAS
3)THE HANBALI SCHOOL BASED ON
THE TEACHING OF AHMED IBN
HANBAL.
4)THE SHAFI SCHOOL FOUNDED BY
MUHAMMED IBN IDRIS-ASH-SHAFI.

OF THESE SCHOOLS ONLY THE HANFI

AND SHAFI SCHOOL SCHOOL WERE
POPULAR IN INDIA .THE HANAFI
SCHOOL WAS THE MOST LIBERAL OF
THEM.

CONCLUSION
THE MUSLIM LAW IS PRIMARILY RELIGIOUS
BECOMES EVIDENT FROM THE FACT OF ITS
ORIGIN AND THEREFORE THE SECULAR
LAWS BACAME SUBSERVIENTTO THE
CANONICALLAW.
THE BASIS OF ISLAMIC LEGISLATION WAS
ETHICAL AND NOT LEGAL .
IN THE DEVELOPMENT OF ISLAMIC LAW
CONSTANT INTERPRETATION AND REINTERPRETATION PLAYED AN IMPORTANT
PART.