Dharma- Judicial Process

Dharma- Judicial Process

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  JUDICIAL PROCESS DHARMA
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  DHARMA • In Indiathe development of jurisprudence— Hindu law,-- western jurists and legal philosophers. • Indian jurists—narmada, jaimini, Yagnavalkya, Manu , kane, Kautilya were there. • These thinkers developed their own system of law • In the 20th contury indain Jurists, Dr BR Ambedkar, PV Gajendragadkar, PN Bhagvati, chagla, Krishna Iyer— developed legal system and principles of reasoning and human being.
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  DHARMA OR LAWHINDU • legal works, the word for law is Dharma • Dharma means—sustains or holds • English Writers ---Dharma—includes religious, moral, social and legal duties and can only be defined by its contents. • Hindu scriptures—Dharma stands religious rights, fixed principles of rules of conduct and the whole body of religious duties.
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  HINDU LEGAL THEORYIS HINDU DHARMASASTRA • Hindu jurisprudence is rooted in Hindu religion and custom • Personal law of Mahomedans • Truths of Hinduism are Brahma(God)— Dharma(conformity with a man’s inner and true nature) Karma(act accruing merits and demerits according to Dharma) • Man has to do Karma • Go along the path of Dharma & attain Brahma— called Moksha. when he attains Brahma or Moksha he is governed by the Dharmasastras, or law. • Muslim too have accepted the Koran or God’s words---source of their Law 100
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  Jamini’s view-conducive tothe welfare of the society.--- According to him—Dharmaordained by the Vedas.--- Dharma includes 3things, relation, duty and inseparable quality of a thing or order. 1.1 st, religion—to the law of God. 2.2 nd, Dharma stands for duty or Kartavya 3.3 rd,Dharma connotes essential characteristic features of a thing or object.
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  SOURCES OF DHARMA Lawis discoverable by reason because the will of god & human reason coincide. • Smritikar(those person who were learned in the Vedas) laid down 4 sources of law-Veda, Smriti, Sadachar & self-satisfaction.—they interprete it but not create it(Vedas). • Law givers Dharmasutras BC 600 to 200- Vedas were studied by the Brahmins who were divided into various branches. • The sutras were Dharma sutras. • The srautasutras and the Grihyasutras were the sutras dealing with ceremonial and domestic rituals. Most ancient legal literature includes the Dharmasutras of Gautam Baudhayana, Apastamba and Vaisistha • The Dharmasastras existed even before BC 600 to 300.102
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  • Gautam andHis Dharmasutra—28 chapters,---included source of Dharma, raja dharma, certain Punishment, etc,. On his Dharmasutra, Haradatta wrote a commentary called the Mitakshara. • Baudhayana’s– mentioned 12 kind of sons belonging to both the families and inheriting. • A) the class in which the sons can inherit their shares in the property. B) the sons—entitled to the benefits of membership of the family, & nothing by way of inheritance. • Apastamba-- composed in the 4th & 5th century BC---recognized 6 marriage ties as the only proper marriage ties.—didn’t recognized (secondary and adopted sons, & prohibited the gifting or sale of children) even the daughter must be regarded as an heir.
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  • Vasistha andhis Dharmasutra– round about BC 300, -- authoritative character of custom and recognised 6 forms of marriage rites & permitted re-marriages of widows.---recognized 12 types of sons---6 of them being heirs—remaining 6 are not entitled to any succession but only rights of member of the family. • Manu and Manusmriti (about 5th Century BC or about BC 200)– manu gave 18 titles of rights and remedies—gifts, sale, deposits, relation—etc,. • Yajnavalkya– great jurist –foundation of the law of inheritance— 1st recognised ―cognates‖ as heirNarada –he gave a legal code, distinction betn law and ethics, --doctrine of civil law, allowed remarriage of widows—gave adopted son the 9 th rank. 105
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  • Brihaspati –the rules of civil law, --gave father and son had equal rights in ancestral property. Mother , daughter &widow of the deceased Hindu should be regarded as his heirs.—fair treatment of women—clear distinction betn civil and cr,laws & justice. • Katyayana– several types of stridhan( women power of disposal)– About 600 BC • Reconciliation between stability and change Legal order should appear fixed and stable— exigencies of changing human needs.
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