Hindu Law and its orgins

Hindu law is derived from various sources. It can be divided into two heads; a) Ancient sources (i.e Shruti, smriti, commentaries and digests), b) Modern sources (i.e Precedents, legislations, judicial decisions)

  1. Ancient sources: 
  • Shruti– These are believed to contain the words of god, they are the divine utterances to be found in the four vedas (i.e rig veda, yajur veda, sama veda and atharva veda), the six Vendangas and the eighteen upanishads.  Thus in theory. Shrutis are considered to be the primary and paramount sources of Hndu law.
  • Smriti– these are the Utterances and precepts of the divine that have been heard, remembered and handed down by the rishis from generation to generation. The smritis are divided into primary and secondary smritis. The earliest smriti is the Manu smriti. 
    Manu Smriti – Originated in approximately 200BC and is a landmark in the legal history of India. It has 12 chapters and 18 titles of law. It highlights the supremacy of the law, the compendium on legal principles and also enunciates many other aspects such as Religious, Civil and Criminal Law.
    Yajnavalkya Smriti – It’s level of authority is second to the Manu Smriti. Although it is limited in its application relative to the Manu Smriti, it still has an important role in dictating many principles and ideologies of Hindu Law. These include: The rules of procedural law, Equality before law, and the supremacy of law. It also covers many topics included in that of the Manu smriti but does so in much more brevity and detail.
    Narada Smriti – It is the last of the three smritis. It is one of the only codes that is free from Moral and Religious aspects. It deals with Vyvahara and is based on earlier smritis but does have remarkable differences. It is of immense importance in relation to Rajyashasana and customs of Hindu law.
  • Commentaries and Digests–  Commentaries helped expand, enlarge and modify the traditions recorded therein and brought them into harmony and accord with the prevalent practices of the day to suit the necessities of time. 
  • Customs– When there exists a conflict between a custom and a text of the smriti, the custom will override the text. It is a habitual course of conduct generally observed in a community. Customs are one of the main vehicles of legal development. Customs are generally divided into local, class and family customs
  1. Modern sources: 
  • Precedents– all important principles and rules of Hindu law have been embodied into case laws, thus during dispute, recourse to original sources is not required. Reference to that particular case is sufficient. Precedents are formulated through the process of judicial interpretation, thus being a source of law. 
  • Legislation– several enactments had come into force with the coming of the British rule in India, these legislative enactments which declare, abrogate or modify the ancient rules of Hindu law form a modern source of Hindu law.

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