AMITY UNIVERSITY ,NOIDA

(AISS)
ASSIGNMENT FOR HISTORY
(HIST134)
TOPIC:
RELATION BETWEEN HISTORY AND LAW.
WHAT ARE THE MAJOR SOURCES OF
JURISPRUDENCE IN ANCIENT AND MEDIEVAL
INDIA?

SUBMITTED TO: SUBMITTED BY:

Ms.Shrutika Lakshmi Y.Karnajit Meetei
(AISS) A6257418178 ,Sec: C
B.A.(H)POLITICAL SCIENCE

2018-2021
RELATION BETWEEN HISTORY AND LAW:

History is the present of the past. Today’s present will be the history
in the future. Current life, trends and views cause change in laws, and
laws cause changes in everyday life. Life and law are reflections of
each other. Law is the mirror of life and life is the mirror of law. One
cannot separate law and life. Each affects and influences the other. It
is impossible to understand law and legal trends of any period,
without learning and understanding the real life and trends during the
period, not only in a definite geographical location but also the
international trends and political pressures. Likewise it is impossible
to understand and follow social and political trends, without being
acquainted and understanding the law of that time. One method of
legal research to analyse and interpret any law from itself, by reading
it, compare the various versions of the amendments legislated, analyse
the differences and changes, compare it to other laws, either in the
same country or elsewhere. Another method, which should be added
to the first, is study and research into the reasons that caused the
legislation and its amendments; to learn what and how political,
cultural, economic, moral and social interests and trends influenced
and affected the legislation, and, on the other side to learn how the
laws influenced them. This is needed not only in order to understand
and interpret the law correctly, as binding documents, but also to draw
conclusions regarding the need for changing the existing legislation,
planning future legislation taking in to consideration the possible
effects of any legislation on the lifestyle, culture, financial,
philosophical, moral and social behaviour of the people and the
international relations of the country.
MAJOR SOURCES OF JURISPRUDENCE IN
ANCIENT AND MEDIEVAL INDIA :

The study of ancient Indian Jurisprudence really belongs to the

school of Jurisprudence called historical Jurisprudence, whose father
is regarded as the German Jurist Savigny (1799-1861), whose
follower was the British Jurist Sir Henry Maine (see Maine’s `Ancient
Law’). According to Savigny, law is not a consciously created
phenomenon but was the gradual distillation of the volksgeist (the
spirit of the people). Law was found, not made. Thus, Savigny was a
strong advocate of customary law and was opposed to legislation. As
law develops from a few simple principles in primitive societies to
complexity in later society custom has to be supplemented with
writings of legal scholars, but the writer should only bring into
detailed shape what he finds as raw material i.e. the customary rules
in society.

In ancient India not only was there tremendous development of

mathematics, astronomy, medicine, grammar, philosophy, literature,
etc. but there was also tremendous development of law. This is
evident from the large number of legal treatises written in ancient
India (all in Sanskrit). Only a very small fraction of this total legal
literature survived the ravages of time, but even what has survived is
very large.
MEDIEVAL JURISPRUDENCE:

The first attempt to create a scientific theory in jurisprudence was

the positivist theory of the English jurists Bentham and Austin. We
may, therefore, discuss this theory at some length. Science studies
objective phenomena as it is, and not how we would like it to be.
This was precisely the approach adopted by the positivist jurists in
law. There are two kinds of sciences (1) natural science and (2) social
science. The natural sciences study inanimate matter (e.g. physics,
chemistry, etc.) or living organisms like plants and animals (botany
and zoology) and also the physical body of human beings (medical
science, including anatomy, physiology etc.). The social sciences, on
the other hand, study the social behaviour of human beings, e.g.
economics, political science, sociology etc. Jurisprudence is also one
of the social sciences. The French thinker Auguste Comte is known as
the father of positivism. What he did was to introduce the method of
the natural 17 sciences into the social sciences. This method was
careful observation, logical analysis, experimentation, logical
inferences etc.

Law in India has evolved from religious prescription to the

current constitutional and legal system we have today, traversing
through secular legal systems and the common law.

India has a recorded legal history starting from the Vedic ages and
some sort of civil law system may have been in place during the
Bronze Age and the Indus Valley civilization. Law as a matter of
religious prescriptions and philosophical discourse has an illustrious
history in India. Emanating from the Vedas, the Upanishads and
other religious texts, it was a fertile field enriched by practitioners
from different Hindu philosophical schools and later by Jains and
Buddhists.

Secular law in India varied widely from region to region and from
ruler to ruler. Court systems for civil and criminal matters were
essential features of many ruling dynasties of ancient India. Excellent
secular court systems existed under the Mauryas (321-185 BCE) and
the Mughals (16th – 19th centuries) with the latter giving way to the
current common law system. India has an organic law as
consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for
Indian conditions. The Indian legal system’s move towards a social
justice paradigm, though undertook independently, can be seen to
mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has
evolved as an essential ingredient of the world’s largest democracy
and a crucial front in the battle to secure constitutional rights for
every citizen.