CLASSICAL SCHOOLS OF JURISPRUDENCE

This article is written by Mugdha Adhikary of 9^th Semester of Banaras Hindu University, Faculty of Law, an intern under Legal Vidhiya

Abstract

A person can better understand the deeper meaning of the law with the aid of jurisprudence. An essential component of law that is founded on ideas and numerous analyses is jurisprudence. Jurisprudence discusses how law interacts with society, other social sciences, man, and nature. The true meaning of law is found in its essential link with religion, but these two are distinct entities with distinct roles to play in society. Even in countries that are often common, liberal, and just, the state was unable to exclude certain aspects of religion from the law despite several centuries of deliberate secularization. It becomes very necessary to discuss the role of religion in our prevailing laws. Taking that into consideration this article deals with the various sources and schools of Jurisprudence in India.

Keywords-Classical School, Hindu and Islamic Schools, Mitakshara, Daya Bhaga, Quran, Sunni, and Shia.

Introduction

The term Jurisprudence is derived from the Latin word Jurisprudentia, where ‘Juris’ means ‘Law’ and ‘Prudentia’ means ‘Skill/Knowledge’ The philosophical study of law, or jurisprudence, entails an investigation of the core ideas, precepts, and theories of the legal system. It aims to comprehend the origins, nature, and function of law as well as how it functions in society. The study of law digs into esoteric issues like the origin of legal authority, the connection between morality and the law, and how to understand legal documents. It is more interested in the bigger picture of law as a social institution and particular circumstances.

This area of study encompasses several historical and modern schools of thought, including natural law, legal positivism, legal realism, and critical legal studies, each of which offers a unique viewpoint on the fundamentals of law.

Because it shapes our understanding, jurisprudence is an important field of study. Jurisprudence is the philosophical study of law, which includes an investigation of the core ideas, precepts, and theories. It aims to comprehend the nature, function, history, and social significance of law. Jurisprudence explores ethereal issues including the origin of legal authority, the connection between morality and the law, and the interpretation of legal writings. It is more interested in the bigger picture of law as a social institution rather than how laws are specifically applied to particular circumstances.

This area of study encompasses several historical and modern schools of thought, including as natural law, legal positivism, legal realism, and critical legal studies, each of which offers a unique viewpoint on the fundamentals of law. Because it shapes our understanding, jurisprudence is an important field of study.

Classical Schools

Scholars, legal professionals, and history students have examined strict starting points and conventions in law in many different countries. This has led to a wide range of nearly legal writing, illuminating legal theories, and providing some significant insights into the foundations of existing legal frameworks. Trump Davis Jr. When examining the role of Dharma in Hindu lawful and rigorous practices, The Spirit of Hindu Law comes in second to works of art on Indian studies. He has adopted a way between discipline and similar strategy that is both energizing and exposing. Davis believes that “law is the religious philosophy of common life” and that the European conception of law—as a set of regulations enforced by the state—is an unnatural idea developed at a particular historical turning point to fulfill certain provincial goals. One of the advantages he sees in the concept is that it acknowledges and clarifies the gap between “rule” and “conduct” in everyday life and includes the higher reason involved whenever law is invoked.

Although the two are different components and have different responsibilities in the public eye, the real meaning of law can be found in its essential link with religion. Even in basically common, liberal, and just societies, the state was unable to completely eradicate religious elements from the law despite several centuries of deliberate secularisation. The strategy, he has given is to look at a few essential concepts supported by authoritative Sanskrit writings that ties them to the entire Hindu legal tradition, and then highlight their significance for modern equitable framework in analogous situations. Hindu law, which dates back over 6000 years, is thought to be the world’s oldest legal code. Hindu law is built on timeless custom and what is known as Dharma, a secular code of law. Indian law was fundamentally shaped by dharma.

Hindu Law

Hindu law evolved as the civilization, absorbing people from all over the world, including South East Asia, the Himalayan areas, pre-colonial India’s North East, and the deep south. Newer practices were introduced by these recently admitted communities. The judicial system changed to reflect changes in history, politics, the economy, and society. To adapt to contemporary situations, medieval interpreters revised legal statutes. Regional customs had an impact on the revision of legal laws. The Manu Sanhita itself exhibits a great deal of modifications, recastings, and interpolations. Hindu law is a complicated, flexible rule that can adapt to new demands and requirements.

However, its logical theoretical foundations integrate changing conditions with fundamental legal concepts. Hindu law is a product of a community, not of a state system. As a result, certain social groupings started to have more influence on the drafting and application of laws. The main societal groups, monarchies, and Brahmins were the factions that represented Hindu law in practice. Kingships were in charge of administering punishment and the worldly Hindu system; Brahmins were in charge of ritual, penance, and the upkeep of a spiritual Hindu system. Corporate groupings were in charge of legislating law through the creation of social norms.

The Classical Schools of Jurisprudence can be divided into two categories:

Sources

1. Ancient Sources-

a. Shruti

It is thought to be the basic source of Hindu law since it is derived from the word ‘Shru’, which means ‘to hear’. It denotes what is heard. The Shrutis are made up of four Vedas and Upanishads that deal with religion and have to do with obtaining genuine knowledge and moksha. There are four specific Vedas: Sama Veda, which contains passages to be recited by diviners, Rig Veda, which contains Sanskrit psalms to be discussed by the chief cleric, Yajurva Veda, which contains recipes to be presented by the directing minister, and Atharva Veda, which contains a variety of spells and chants, tales, predictions, apotropaic charms, and some theoretical songs.

Every Veda is divided into three sections:

• Sanhita – Containing the majority of the songs;
• Brahmin – Explaining our duties and how to fulfil them; &
• Upanishad – Containing the substance of our duties.

Along with their components, the Shrutis incorporate the Vedas.

b. Smriti:

The word “Smriti” is derived from the word “Smri,” which means “to remember.” They are the words and commandments of the Almighty that the rishis have heard and kept in mind throughout the ages. The number of smrities is not known, although Manusmriti is the earliest. The smrities are classified into Dharma sutra (prose) and Dharmashatras. The rules outlined in the Smritis can be broken down into three categories: Prayaschit (signifying the criminal provision for commission of a wrong), Vyavahar (signifying procedural and substantive rules that the King or the State applied for settling disputes in the adjudication of justice), and Achar (relating to morality).

c. Digest and Commentaries:

The quantity of commentaries and digests based on smritis was the next development in Hindu law after the smritis. The purpose of the commentary is to explain the law as set forth in the smritis. Therefore, writing on a certain smriti is known as a commentary, while writing on various smrities is known as a digest.

There are several commentaries, but the two most important ones are Mitakshara by Vijanamshwara and Daya Bhaga by Jimutavahana.

d. Customs:

Hindu law is said to draw thirdly on custom. Custom (‘achara’) has been regarded as the most important form of ‘dharma’ since the earliest times. According to the Judicial Committee, a custom is a norm that has accrued legal authority over time in a particular family, class, or region.

Custom is a source of rules, and although it is comparable to the Shrutis and the Smritis, its application outperforms the Smritis. It is superior to written law. For announcing custom to be genuine, it must meet a number of requirements.

They include:

• The custom must be anticipated.
• The custom needs to be certain and free of such doubt. It should also be devoid of specifics.
• The practice must be reasonable and not in violation of any existing laws.  
• The custom has probably been continuously and persistently practiced for quite a while. It must not be dishonest or opposed to any accepted strategy.

Indian courts distinguish between three different types of customs:

• Local customs: These are those that courts believe were widespread in a particular region or district.
• Class customs: These are traditions that members of a particular class adhere to. For instance, among a certain group of Vaishyas, it is customary for the wife to be permitted to marry again while the husband is still alive if the husband leaves or deserts his spouse.
• Family customs: These are practices that members of a family are expected to follow. For instance, it is customary in tribes of ancient India for the oldest male family member to inherit the bequests.

2. Modern Sources-

a. Justice, Equity – Equity and Good Conscience:

Sometimes a case may come before the court that cannot be resolved by applying any existing law found in any of the available sources. Even if such a situation is unlikely, it is nonetheless possible because only a small percentage of the strange types of certainty situations that arise can have a corresponding law governing them.

The Courts are obligated to select such a case and are unable to refuse to settle the dispute outside of the legal system. The Courts rely on the fundamental characteristics, norms, and principles of fair play and respectability in order to decide such matters.

This is recognized as standards of equity, value, and tremendous heart in other words. They could also be referred to as natural law. Since the British organization said in the eighteenth century that the above rule would be followed in the absence of a standard, this rule has had the status of a source of law in our country.

b. Legislations:

Acts of Parliament known as enactments have played a crucial role in the evolution of Hindu law. Some important components of Hindu law were organized after India attained freedom. The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, and so forth are a few examples of noteworthy statutes.

Any matter dealt with by the arranged law is decisive when it has been codified. Except in cases where an express sparing is provided for in the order itself, the institution revokes all prior law, regardless of whether it was based on custom or another circumstance. The old printed law contains an application in situations when the classified law does not expressly provide protection.

c. Precedents:

Following the establishment of British principles, the hierarchy of court importance was developed. It was established that the standard of paying similar cases the same would serve as the point of comparison. The Privy Council’s decisions are currently binding on all lower courts in India, with the exception of those where the Supreme Court has modified or altered them. The Supreme Court’s decisions are binding on all courts, with the exception of its own.

Major Schools:

The comments and digests of the smritis are thought to be the schools of Hindu law. These institutions specifically contributed to the advancement of Hindu law while broadening its application.

Hindu law has two primary schools, which are:

• Mitakshara
• Daya Bhaga

1. Mitakshara

The Mitakshara school of jurisprudence is a prominent legal tradition within Hindu law that primarily deals with matters related to property and inheritance. It is one of the two main schools of thought in Hindu law.

Key features of the Mitakshara school of jurisprudence include:

• Joint Family System: The Mitakshara school places significant emphasis on the joint family system, where property is held jointly by the members of a family, typically under the control of the eldest male member (the “karta”).
• Coparcenary Rights: Under Mitakshara law, sons and other male descendants have coparcenary rights in the ancestral property. This means they have a share in the property by birthright, and this share can be inherited and partitioned among them.
• Succession Rules: Mitakshara school provides detailed rules for the succession of property, especially ancestral property. The principles of devolution of property vary based on factors such as gender, marital status, and birthright.
• Concept of Stridhan: Stridhan refers to the property owned by a woman, typically acquired through gifts, inheritance, or earnings. The Mitakshara school recognizes the concept of stridhan and provides rules for its disposal.
• No Right to Will: Traditionally, the Mitakshara school does not recognize the right of an individual to dispose of ancestral property through a will. The property is expected to pass through the rules of intestate succession.
• Regional Variations: It’s important to note that Hindu law, including the Mitakshara school, has regional variations and can be influenced by local customs and practices.

The Mitakshara school’s principles have had a significant influence on property and inheritance laws in India, particularly in the context of Hindu Succession Act, 1956, which brought about significant legal reforms related to property and succession rights for Hindus.

It’s worth mentioning that while the Mitakshara school has been historically important, in modern India, many legal reforms and amendments have been made to bring gender equality and address issues related to property rights and succession in Hindu families. As a result, the traditional Mitakshara principles have been modified to align with contemporary legal standards.

Mitakshara School is further divided into five sub-schools:

• Benaras Law School- This law school serves Northern India, including Orissa, and is governed by the Mitakshara law school. Some of its most influential commentaries are Viramitrodaya Nirnyasindhu vivada.
• Mithila Law School- This legal school has jurisdiction over the provinces of Tirhoot and North Bihar. In the north, legal school concepts are in place. The three main commentaries of this school are the Smritsara, Vivadaratnakar, and Vivadachintamani.
• Maharashtra Law School- The Gujarat Karana and regions where Marathi is fluently spoken are among the territorial areas over which the Maharashtra Law School has the ability to exercise its jurisdiction. These schools’ primary leaders are Vyavhara Mayukha, Virmitrodaya, etc.
• Madras Law School- This graduate program will generally cover all of southern India. Additionally, it employs its professionals through Mitakshara graduate school. Smriti Chandrika, Vaijayanti, and other members of this school’s core faculty are among its basic experts.
• Punjab Law School- East Punjab was primarily where this law school was founded. It had developed its own traditions and customs. This school’s primary remarks are viramitrodaya and the established customs.

2. Daya Bhaga –

The Dayabhaga school of jurisprudence is one of the two main schools of thought within Hindu law, the other being the Mitakshara school. The Dayabhaga school primarily deals with matters related to property, inheritance, and succession in Hindu families. It is associated with the Bengal region of India and is historically important in the context of Hindu legal traditions.

Key features and characteristics of the Dayabhaga school of jurisprudence include:

• Individual Ownership: Unlike the Mitakshara school, which emphasizes joint family ownership and coparcenary rights, the Dayabhaga school emphasizes individual ownership of property. According to Dayabhaga, property can be acquired and held by an individual, and it does not require joint ownership with other family members.
• Testamentary Succession: The Dayabhaga school allows individuals to make wills and dispose of their property as they wish. This is in contrast to the Mitakshara school, which traditionally does not recognize the right to will ancestral property.
• Equal Inheritance for Sons and Daughters: In matters of inheritance, the Dayabhaga school advocates for equal inheritance rights for sons and daughters. This is in contrast to the Mitakshara school, where sons have preferential rights over daughters in the inheritance of ancestral property.
• Regional Variation: Like the Mitakshara school, the Dayabhaga school also has regional variations, and its principles and interpretations may vary in different parts of India.
• Historical Significance: The Dayabhaga school of jurisprudence has been particularly influential in Bengal and some other parts of eastern India. It has had a significant impact on property and inheritance laws in these regions.

It’s important to note that while the Dayabhaga school and the Mitakshara school represent two distinct approaches to Hindu law, there have been legal reforms in India that have brought about changes in inheritance and property laws. These reforms have aimed to promote gender equality and address issues related to property rights in Hindu families. As a result, the traditional principles of both schools have been modified to align with contemporary legal standards.

Various other commentaries followed in Dayabhaga School were:

• Dayataty
• Dayakram-sangrah
• Virmitrodaya
• Dattaka chandrika

Islamic Law:

Islam is unquestionably the most populist, democratic, and republican faith. Though there is a lot of room for individual expression, it is important to remember that in Islam all institutions—political, legal, social, etc.—are governed by divine law, and their freedom is limited by Allah’s Commands.

All schools of Islamic jurisprudence evolved their teachings on the same theoretical foundation; they only diverge from one another in issues of a minor character. The primary sources of Islamic law—the Holy Quran and the Sunna—are interpreted differently according to each group, which is the cause of these discrepancies. All Schools recognized these essential sources as being superior and built their systems around them, each with their own unique knowledge and interpretation. Thus, they are a stream flowing into the ocean of Sharia, and their purpose is to lead people to a knowledge of Islam, help them choose the right path, and help them fulfil Allah’s commands, which are based on the welfare of both the individual and the society at large.

The sources of Islamic Law can be divided into two categories:

• Sources:

1. Primary Sources-

Islamic law, also known as Sharia or Muslim law, is primarily derived from several key primary sources that hold authoritative status within the Islamic legal tradition. These primary sources are considered divine or semi-divine and form the basis for Islamic jurisprudence (fiqh).

The primary sources of Muslim law are as follows:

• Quran (The Holy Quran): The Quran is the central and most fundamental source of Islamic law. Muslims believe it to be the literal word of God (Allah) as revealed to the Prophet Muhammad. It contains both general principles of morality and detailed legal prescriptions covering various aspects of life, including religious rituals, personal conduct, family law, and more. Quranic verses related to legal matters are known as “ayahs” and serve as the ultimate authority in Islamic jurisprudence.
• Hadith (Prophetic Traditions): Hadiths are the recorded sayings, actions, approvals, and disapprovals of the Prophet Muhammad. These traditions provide practical guidance on how to interpret and apply the Quranic principles in everyday life. Hadith collections by trusted narrators are an essential source for Islamic jurisprudence. The most well-known collections are Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawood, Sunan at-Tirmidhi, Sunan an-Nasa’i, and Sunan Ibn Majah, among others.
• Ijma (Consensus): Ijma refers to the consensus of Islamic scholars or jurists on a particular legal issue. It is considered a source of authority because it reflects the collective wisdom and agreement of the scholarly community. Ijma is often invoked when there is no clear guidance in the Quran or Hadith.
• Qiyas (Analogy): Qiyas involves the process of analogical reasoning to derive legal rulings for new or complex issues by analogy to existing rulings in the Quran and Hadith. It is used when no specific guidance can be found in the primary sources, and scholars use their knowledge of established principles to make reasoned judgments.
• Istiḥsān (Juristic Preference): Istihsan allows jurists to exercise discretion and prefer one legal opinion over another based on the principle of public interest or equity. It involves setting aside a strict interpretation in favor of a more beneficial or just solution.
• Istihsal (Custom): Istihsal takes into account established customs and practices of a society when determining legal rulings, especially when those customs do not contradict the Quran and Hadith.
• Urf (Local Custom): Urf refers to local customs and practices that can influence legal decisions, especially in personal matters and customary law.

It’s important to note that different Islamic legal schools (madhabs) may place varying degrees of emphasis on these sources and may have different methodologies for interpreting and applying them. Additionally, contemporary Islamic jurisprudence often incorporates the principles of maslahah (public interest) and istislah (public welfare) to address modern legal and social issues.

2. Secondary Sources-

The secondary source is similar to the modern sources of Hindu Law, which are:

a) Good Consciousness

b) Legislations

c) Precedents

• Schools:

1. Sunni Schools of Jurisprudence-

• Hanafi School: The Hanafi school is one of the oldest and largest Sunni schools of jurisprudence. It is named after its founder, Imam Abu Hanifa (699–767 CE). The Hanafi school is known for its flexibility and emphasis on rational reasoning (qiyas) and Istihsan. It is prevalent in many parts of the Muslim world, including Turkey, the Indian subcontinent, and parts of Central Asia.

• Maliki School: Founded by Imam Malik ibn Anas (711–795 CE), the Maliki school is primarily followed in North and West Africa, as well as some parts of the Arabian Peninsula. It places a strong emphasis on local customs and practices (urf) and the traditions of the people of Medina.

• Shafi’i School: The Shafi’i school was founded by Imam al-Shafi’i (767–820 CE). It is known for its reliance on hadith and the use of qiyas (analogy). The Shafi’i school is followed in many parts of the Arabian Peninsula, Southeast Asia, and East Africa.

• Hanbali School: Founded by Imam Ahmad ibn Hanbal (780–855 CE), the Hanbali school is considered the most conservative among Sunni schools. It relies heavily on hadith and does not generally permit the use of qiyas (analogy) to the same extent as other schools. The Hanbali school is followed primarily in Saudi Arabia and some parts of the Arabian Peninsula.

2. Shia Schools of Jurisprudence-

• Ja’fari (Twelver) School: The Ja’fari school is the primary school of jurisprudence among Twelver Shia Muslims, who make up the majority of the Shia population. It is named after Imam Ja’far al-Sadiq (702–765 CE) and emphasizes the authority of the Twelve Imams, including the Mahdi, as sources of guidance and interpretation of Islamic law.

• Ismaili School: Ismaili jurisprudence is followed by the Ismaili Shia community. It is based on the teachings of the Ismaili Imams, with the current Aga Khan serving as their spiritual leader. The Ismaili school has its own legal traditions and interpretations.

It’s important to note that within each of these schools of jurisprudence, there can be further subdivisions and differences in interpretation, particularly in areas where specific legal rulings are not explicitly mentioned in the primary sources. Additionally, there are other smaller and less widely followed Islamic jurisprudential schools, such as the Zahiri school and the Ibadi school, among others. Each of these schools plays a significant role in shaping Islamic law and its application in various regions and communities around the world.

Conclusion

Modern legal systems have essentially superseded the conventional Hindu legal system in contemporary India, particularly in areas of criminal and civil law. Hindu law, however, continues to be important in areas like moral counselling, personal law, and family law. It continues to have a significant impact on Indian society’s moral and ethical standards and is an essential component of India’s cultural and philosophical heritage. Islamic legal schools have also played a significant role in maintaining and interpreting Islamic law. Even though their legal judgments may vary, they all add to the breadth and depth of Islamic legal thinking. These institutions demonstrate the lasting heritage of Islamic jurisprudence and are crucial for comprehending how Muslims negotiate the complicated convergence of faith, morality, and the law in their daily lives.

References

1. Darshan Sattawan; Hindu and Islamic Schools of Jurisprudence; Studocu; (October 4^th, 2023; 3:40 PM); https://www.studocu.com/in/document/guru-gobind-singh-indraprastha-university/jurisprudence/hindu-and-islamic-school-of-jurisprudence/35879930.
2. Law Articles; https://www.legalservicesindia.com/law/article/2505/30/Meaning-Nature-Content-Classical-School-Of-Jurisprudence-; (October 4^th, 2023; 7 PM)
3. Lexpeeps; https://lexpeeps.in/classical-schools-of-jurisprudence-hindu-and-islamic/ ; (October 5^th, 2:15 AM)
4. https://old.amu.ac.in/emp/studym/99997015.pdf; (October 5^th, 7 AM)

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.