Classical Schools of

Jurisprudence: Hindu and

Islamic
 INTRODUCTION
Indian jurisprudence is rich in essence because of the various sources of law it

emerges from. It gets validity and recognition from various religious laws, local

customs, and traditions.

Dharma forms the main foundation of Indian jurisprudence. Due to its

importance in Hindu traditions, Dharma played a big role in shaping Indian law. In

order to understand how modern family and succession laws emerged, we need to

know the concept of Dharma first.

 CONCEPT OF DHARMA

In order to understand the concept of Dharma, we need to first know what that word
means. Although there is no literal translation of “Dharma” in English, many people
use it in different contexts. One of the most common meanings of Dharma is “DUTY”.
Depending on other contexts and religious connotations, Dharma often
assumes different meanings. For example, Buddhists refer to Dharma as a cosmic law,
while Jains and Sikhs use it to mean religious paths.
According to Hindu jurisprudence, Dharma means duty in various contexts. This could
mean either religious duties or even social, legal and spiritual duties. Some people also
use the word to mean righteousness, which gives it a moralistic interpretation. In purely
legal terms, some people refer to the concept of justice as Dharma.
 Schools of Hindu law
Schools of Hindu Law came into being when different commentaries appeared to
interpret “Smritis” with reference to different local customs in vogue in different
part of India. These schools have widened the scope of Hindu law and explicitly
contributed to its development. School means rules and principles of Hindu Law
which are divided into opinion. It is not codified.
The two major schools of Hindu law are as follows-
 MITAKSHARA
 DAYA BHAGA
 MITAKSHARA
Mitakshara is one of the most significant schools of Hindu law. Mitakshara is
written on later part of 11th century – comprehensive commentary dealing with all
titles of Hindu Law.
The Mitakshara School exists throughout India except in the State of
Bengal. The Yagnavalkya Smriti was commented on by Vijnaneshwara under the
title Mitakshara which means ‘Measured In Words’.
The followers of Mitakshara are grouped together under the Mitakshara
School. Mitakshara school is based on the code of Yagnavalkya commented by
Vijnaneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.
Sapinda relationship is of blood. The right to Hindu joint family property is by birth.
So, a son immediately after birth gets a right to the property. The system of devolution
of property is by survivorship (But now it has been amended by 2005 Amendment Act).
The co-parcener has no absolute right to transfer his share in the joint family
property, as his share is not definite or ascertainable. The widow of a deceased co-
parcener cannot enforce partition of her husband‟s share against his brothers.
A woman could never become a co-parcener. But, the Hindu Succession
(amendment) Act of 2005 empowered the women to become a co-parcener like a male
in ancestral property. A major change enacted due to western influence.
Mitakshara is additionally separated into five sub-schools to be specific:-

1. The Benaras School – applicable in whole of North India including Orissa and
Madhya Pradesh.
2. The Mithila School - applicable in Tirhoot and North Bihar
3. The Bombay or Maharashtra School - prevails in whole of Bombay and
Maharashtra.
4. The Punjab School - prevails in North-East Punjab.
5. The Dravid or Madras School - tends to cover the whole Southern part of India.
 DAYABHABHA
It exists in Bengal and Assam only. The Yagna Valkya smriti and some other Smrities
are commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. It
differs from Mistakshara School in many respects. Dayabhaga School is based mainly
on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the
principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to
deceased ancestors.
This school is followed in Bengal and some parts of Assam only.
The immediate benefit of this new digest is that it tends to remove all the shortcomings
and limitations of the previously established principles and inclusion of many cognates
in the list of heirs, which was restricted by the Mitakshara school.
The main features of this School are as follows:
1. Sapinda relation is by pinda offerings.
2. The right to Hindu joint family property is not by birth but only on the death of the
father.
3. The system of devolution of property is by inheritance. The legal heirs (sons) have
definite shares after the death of the father.
4. Each brother has ownership over a definite fraction of the joint family property and
so can transfer his share.
5. The widow has a right to succeed to husband‟s share and enforce partition if there are
no male descendants.
6. On the death of the husband the widow becomes a co-parcener with other brothers of
the husband. She can enforce partition of her share.
DIFFERENCE
MITAKSHARA DAYABHAGA
1. As regards Right to property arises by birth; A son is entitled to his ancestral
Joint Property hence the son is a co- owner with property only on the death of
the father in ancestral property. his father. The father is the
absolute owner of his property
in his lifetime.

A son becomes coparcener right A son becomes coparcener by

after his birth. His right is death of his father. This right is
applicable to the property of his not available within the
grandfather and grand-grandfather. property of his father,
grandfather or grand -
grandfather
 MITAKSHARA DAYABHAGA
2. As regards Members of the joint family Any members of joint family may sell
Alienation cannot dispose of their shares or give away his share even when
while undivided. undivided.

3. As regards The Principle of Inheritance is The Principle of Inheritance is

Inheritance: Consanguinity (blood spiritual efficacy(i.e., spiritual
relationship) efficacy)
Some nearer cognates like sister’s son
are preferred to many agnates.

4. As regards Doctrine It is less inclined towards the It is completely inclined towards

of Factum Valet: Doctrine. Doctrine
(Meaning of Factum
Valet:- fact cannot be
altered by Hundred
texts).
5. As regards to Mitakshara is an orthodox Dayabhaga is Reformist School.
Approach School.
 Effect Of Migration
When a Hindu family migrates from one State to another, the law draws a presumption
that it carries with it its personal law, i.e., the laws and customs prevailing in the State
from which it came. The presumption can, however, be rebutted, by showing that such a
family has adopted the law and usages of the new province where it has settled down.
For Example
A Hindu family migrates, from Maharashtra (where the Mitakshara law prevails), to
Bengal (where the Dayabhaga law prevails), the presumption is that the family continues
to be governed by the Mitakshara Law. This presumption may be rebutted by showing
that the family has abandoned the law of the province of its origin (i.e. Maharashtra),
and adopted the law of the province where it has settled (i.e. Bengal).
CONCLUSION

The Mitakshara and Dayabhaga Schools differed on important issues as regards the
rules of inheritance. However, this branch of the law is now codified by the Hindu
Succession Act, 1956, which has dissolved the differences between the two. Now, the
main difference between them is on joint family system..Under the Hindu law the
contrast between the Mitakshara school and the Dayabhaga school isn’t perceived as in
the current situation there exists one uniform law of progression for all the Hindus.
ISLAMIC SCHOOLS
 INTRODUCTION
The Muslim Law is based on the teachings of the Quran and Prophet Mohammad. In
all the circumstances where the explicit command is provided, it is faithfully provided
but there have been many areas which are not covered by these sources and as a result,
the great scholars had themselves devised their interpretation of what should be done
in such a situation.
In Islam, the people have been divided into two sects having different views regarding
certain aspects of Islam. Thus, the schools of Muslim law can be broadly classified into
two categories:
1. SUNNI SCHOOLS
2. SHIA SCHOOLS
 SUNNI SCHOOLS
Sunni Islam also known as Ahl as-Sunnah wa'l-Jamā'h or simply Ahl as-Sunnah, is
the largest denomination of Islam. The word Sunni comes from the word sunnah, which
means the teachings and actions.
The Sunnis believe that Muhammad did not specifically appoint a successor to lead the
Muslim ummah (community) before his death, however they approve of the private
election of the first companion, Abu Bakr.
Sunni Islam is separated into four main schools of jurisprudence, namely;-
1. HANAFI
2. MALIKI
3. SHAFFI
4. HANBALI.
A. HANAFI SCHOOL
Hanafi School is the first and the most popular schools in Muslim law. Before being
named Hanafi, this school was known as Koofa School which was based on the name of
the city of Koofa in Iraq. Later, this school was renamed as Hanafi School based on the
name of its founder Abu Hanafee.
The Prophet had not allowed his words and traditions from being written, the Hanafi
School relied on the customs and decisions of the Muslim community.
B. MALIKI SCHOOL
This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. During
his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam
Abu Haneefa and his disciples flourished with Hanafi Schools. He discovered about
8000 traditions of Prophet but complied only about 2000 of them. When the disciples of
Imam Abu Haneefa codified their law based on Ijma’a and Isthihsan.
C. SHAFFIE SCHOOL
The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie, his period
was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena.
He conclude the idea’s and the theories of Hanafi School and Maliki School in a friendly
manner. The Imam Shaffie was considered as one of the greatest jurist of Islam. He
created the classical theory of the Shaffie Islamic Jurisprudence.
According to this school, they considered Ijma’a as the important source of the Muslim
law and provide validity to the customs of the Islamic people and follows more methods
of Hanafi School.
The followers of Shafie School are spread in Egypt, Southern Arabia, South
East Asia, Indonesia and Malaysia
D. HANBALI SCHOOL
The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali
school in 241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He
strongly opposed the Ijthihad methods. He introduced the theory of tracing the root of
Sunna and Hadis and try to get the answer all his question. His theory was to return to
the Sunna of the Prophet. When the Imam Shafie left for Baghdad, he declared that
the Ahmad bin Hanbal was the only one after him who is the better jurist after him.
The followers of Hanbali school found in Syria, Phalastine and Saudi Arabia.
SHIA SCHOOL

Shia Islam is the second-largest denomination of Islam, comprising 10–20% of the total
Muslim population. Although a minority in the Muslim world, Shia Muslims constitute
the majority of the Muslim populations in Iran, Iraq, Lebanon, Bahrain and Azerbaijan
as well as significant minorities in Syria, Turkey, eastern Africa, South Asia, Yemen,
and Saudi Arabia and other parts of the Persian Gulf.
In addition to believing in the authority of the Quran and teachings of Muhammad, Shia
believe that Muhammad's family, including his descendants known as Imams, have
special spiritual and political authority over the community.
As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in
the Muslim world. They enjoy the political power only in Iran though they don’t have the
majority in that state also.
1. ITHNA-ASHARI
These schools are based on the following of Ithna-Ashari laws. The followers of these
schools are mostly found in Iraq and Iran. In India also there is the majority of the
shia muslim who follows the principles of the Ithna-Asharis School. They are
considered political quietists. This school is considered as the most dominant school
of the shia muslims. the ja’fari fiqh of the shias in most cases indistinguishable from
one or more of the four sunni madhahib, except mutah is considered as the lawful
marriage. The people who follow the Ithna Asharis school believe that the last of the
Imams disappeared and to be returning as Mehdi(Messiah).
2. THE ISMAILIS
According to Ismailis school, in India there are two groups, the Khojas or Western
Ismailis represents the followers of the present Aga Khan, who they considered as the
49th Imam in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided
into Daudis and Sulaymanis.
The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is
considered that the follower of these schools has special knowledge of religious
doctrine.
3. ZAIDY
The followers of this school are not found in India but are maximum in number in
South Arabia. This sect. of the shia school is the most dominant among all in Yemen.
The followers of these schools are considered as political activism. They often reject
the twelver shia school philosophies.
 CONCLUSION
Muslim law is governed by the teachings of the Quran and the Prophet Mohammad.
There have been many different schools which follow their own interpretations of
these teachings on points on which the Quran is silent. While the major schools of
Muslims can be divided under the two sects of Shia schools and Sunni schools, even
the schools under these sects have been further divided into various schools.
Each school has its own beliefs and practices and because is no set rule regarding the
matters on which the Quran is silent, one school cannot be said to be better positioned
than the other schools and thus even though there are many schools in Muslim law,
they all lead to one path. Thus, the teachings of these schools can be compared to
different paths which all lead to the same destination.