Introduction
Dharma is a crucial idea with different implications in Indian religions. The most common explanation of Dharma is ‘Duty’. Among the Hindus the word ‘Dharma’ is used for giving justice in ancient times and according to them Dharma includes a person’s moral and social obligations as an individual as well as a member of the society. In modern times Dharma has been replaced by the Common Law System. In ancient time, the word ‘Dharma’ was used in place of Law among the Hindus. According to Buddhists, Dharma is a cosmic law and on the other hand, Jains and Sikhs define Dharma as religious paths. The main motive of Dharma is to conduct human behavior in its cosmic and human context. Dharma is the main source of Indian Jurisprudence. It has a big role in forming various Indian Laws. To know the whole concept of Dharma, first, we should know the sources.
Sources
Dharma has been derived from the Vedic concepts of Rita which means the straight line which refers to the Law of Nature. According to Hinduism, salvation or Moksha is the eternal Dharma for human beings. In Vedic texts like Rig Veda, Dharma has been defined to mean the foundation of the universe.
Later on, Hindu texts like the Upanishads defined Dharma in a more moralistic way. In a nutshell, Shrutis or Vedas depict the life of our early ancestors, a thin way of life, way of thinking, customs, thought, but does not deal with rules of law in a systematic manner. The existing rules of law have been deducted from the vast source of the four Vedas.
With the changing pattern of society, after the Vedic Period, the need to understand the Veda in a new light arose. The Hindu legal codes like Manusmriti used Dharma to mean both religious and legal duties of men in their various relations. Most of the Dharmasutras mingled religious and moral perspectives with secular law.
Manusmriti, also known as Manava-dharmashastra is a code of laws given by Manu. It focuses on cosmogony, the sacraments (Samskaras), study of Vedas, initiation (upanayana), marriage, hospitality, the conduct of women and wives, means of purification, and the laws of the Kings. Manusmriti does not create any distinction between religious law and practices, and it can be said that it is some sort of secular law created in the ancient period.
Naradasmriti is a kind of Dharmashastra that is juridical in nature. It does not deal with righteous conduct and penances. In fact, it covers the area of legal procedure of the original text of Manu. Naradasmriti is also known as the ‘juridical text par excellence’ as it is focused only on procedural and substantive law.
Arthashastra was written by the Great Mauryan Empire Kautilya which deals with the qualities and disciplines needed for a king to rule his subjects more expeditiously as it refers to the pursuit of worldly goods, personal success, stability, and social status. It is one of the most important treatises in the Indian Vedic Civilization which led ancient India to a more well-organized society.
Later, Hindu Epics like the Ramayana and Mahabharata has also defined Dharma as the aim of an individual is to perform all his responsibilities towards others. These Epics often represent authentic figures as ‘Dharmaraja’. The scope of Dharma has expanded from time to time with the changes of the society and this interpretation of Dharma is being continued till now[1].
Nature of Dharma
In the Vedic era in Rig Veda Dharma was meant as the foundation of the universe which means that God created life by using the principles of Dharma. The Hindu Jurisprudence has always given more importance to an individual’s duty rather than rights.
On the other hand, Hindu Legal code like Manusmriti gives it a legalistic meaning and specifically delas with religion, administration, economics, social justice, civil and criminal laws, marriage and succession etc., Apart from all these factors, divinity is the main source of all social, legal, political and spiritual rights. Thus, we can say that Dharma is a multi-layered concept.
Dharmashastras
The Hindu legal system is one the most ancient systems and it is wholly dependent on the idea of Dharma. It can be found as Dharmashastras among the Hindus. Most of the Dharmashastras is divided into three parts: 1. Achara, 2. Vyavahara, 3. Prayaschitta.
Achara deals with rules of religious observance. Prayaschitta deals with penance and expiation (penalties, amendments). Vyavahara deals with Civil law. The Smritikars in this part have dealt with the law under 18 titles and 132 subtitles. Many rules and principles propounded by the Smritikars at that time have found a place even in modern laws.
Some important Smritis are Manu Smriti which deals with the systematic collection of rules of Dharmashastras which consists of all the branches of law. Narada Smriti contains substantive as well as procedural law and also deals with judicature that is judicial procedure and judicial assembly. Yajnavalkya Smriti deals with rules of procedural law and some other Smritis are Katyayana Smriti, Prasara, and Brihaspati Smriti.
Definition of Jurisprudence
Jurisprudence is a Latin word. Etymologically it means knowledge of law or skill in law. There is no such definition that can satisfy all of it. Following are some famous definitions:
Ulpian defines, “Jurisprudence is the knowledge of things divine and human, the science of the just and unjust”
Paulus defines, “The Jurisprudence is the law and the law is not to be deducted from the rule, but the rule from the law.”
According to Austin, jurisprudence is a positive law. Every law is a command, that obtains its force from its sovereign. Austin confined the term ‘jurisprudence’ to the study of law as it is and not what it ‘ought to be’ which was left to the theorist of legislation. He says, “Law is the command of the sovereign, and not of divine.”
For Austin, there is no distinction between good law and bad law. He divided jurisprudence into two categories- 1. General Jurisprudence, 2. Particular Jurisprudence.
Importance of Jurisprudence
Some jurisprudents opine that the subject ‘Jurisprudence’ is of no value but irrespective of these criticisms, we should know its importance and values.
- Analysis: The jurisprudence analyses of legal concepts. Sometimes the legal rules are overlapped. It is the duty of the jurisprudents to analyze them and separate them from being overlapped.
- Reflection of rules: Sometimes, the legal rules and concepts give us a narrow concept about a specific topic. But jurisprudence is the philosopher in legal concepts and provides the scientific and correct concept.
- Clarification: Jurisprudence clarifies legal concepts and if there is any kind of ambiguity about a legal concept, Jurisprudence analyses and clarifies it.
- Rational: Sawer in his ‘Law in Society’ explains the importance of jurisprudence. He states, “Jurisprudence is to construct and elucidate organizing concept serving to render the complexities of law more manageable and more rational, and in this way theory can help to improve practice.”
Purpose of Law
The most important purpose of law is to maintain ‘law and order’ in the country and to prevail peace throughout the country.
According to Plato, “Mankind must either give themselves a law and regulate their lives by it or live no better than the wildest of the wild beasts.”
Jeremy Tylor enumerates the purpose of law in a metaphor, “A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them.” This metaphor gives the meaning that man is a fighting animal. Fighting behavior of animal is instinct in every man till today.
Rouscoe Pound gives four main importance of law:
- Law and order;
- By using law, ‘status quo’ can be maintained in the society;
- It gives freedom to the individuals;
- It is the function of law, which can satisfy the needs of people in the society.
Concept of Justice
Generally, justice means something which is just and fair. We can see various interpretation of justice. According to the natural law school of jurisprudence, justice means the implementation of religious laws. Whereas, according to the modern jurisprudence justice only means the implementation and application of equity and liberty by the legal bodies to be practiced among the citizens of a developing state.
Hobbes says, “Law and justice has been brought into the world for nothing else but to limit natural liberty of particular men in such a manner as they might hurt, but assist one another and join together against a common enemy.’
Salmond states that laws are the bodies of principles that judiciary considers and applies while administering justice. Apart from all of that we can clearly say that from the very beginning of mankind that is the ancient time, laws were made of religious concepts and justice was given in a moralistic manner.
Relation Between Jurisprudence and Dharma
For attaining social justice as well as justice under law, government should make laws which people are willing to accept. In ancient times, Dharma was recognized as law in the society and people accepted to follow those Shastras and Smritis. Dharma leads to the foundation of multiple affairs of the society; thus, we can say it constitutes rules for working of the society[2].
The rule of law as mentioned in the Dharmashastras and Dharmasutras is the very most important base of Indian Jurisprudence and as society evolves, the rule of law should also evolve along with it.
Conclusion
Thus, we can say the whole concept of Dharma is based on what a person should do or should not do. Basically, it is the morality, harmony, and duties of an individual and it includes every aspect of the life of a human being. It contains many concepts such as legal, political, social, and moral. We can definitely state that Dharma and law are correlated with each other.
Therefore, it can be stated that to form laws and develop the Indian jurisprudence Dharma is needed.
References:
[1] https://www.toppr.com/guides/legal-aptitude/jurisprudence/schools-of-jurisprudence-concept-of-dharma/
[2] https://www.legisscriptor.com/post/dharma-and-indian-jurisprudence
0 Comments