HEREIN the original thesis has been thoroughly revised and consider-ably abridged. The thesis was examined by a Board of which Dr. R. B. Pal, M.A., D.L., of the Tokyo-Trial fame was the chairman. It is divided into four Books containing fifteen chapters in all.
Book I comprise three chapters dealing with the introductory matters, such as, the importance of studying Legal History with special reference to Hindu law, Hindu law in relation to Dharma and Vyavahara, the ancient methods of studying Hindu law and its sources.
Book II deals with the Hindu period and comprises five chapters beginning with the Dharmasutras and ending with the earlier commentaries and Nibandhas. A separate chapter has been devoted to Kautilya's Arthasastra in view of its important place in the Hindu Legal History.
Book III deals with the Muslim period and comprises four chapters.
The first chapter of this Book is a continuation of the last chapter of Book II, as all the later commentaries and Nibandhas have been examined herein. The second chapter of this Book deals with the administration of Hindu law during the Muslim period. The administration of justice by the Mughal emperors and the general principles and procedures of Islamic jurisprudence have been discussed with special reference to their attitude towards the Hindus and the Hindu system of law. In the third chapter of this Book, the history of village panchayat, as an integral part of the ancient village republic, has been discussed bearing in mind the important part played by it, in ancient and mediaeval India. Its importance also has been recognised, nay, more emphasised, even in the context of the present developments in the country. The last chapter of this Book has been devoted to those aspects of Hindu law as had been included in the judicial systems of the Maratha rulers and Maharaja Ranjit Singh, with special reference to some judgments of the 17th and the 18th centuries.
The last Book, namely, Book IV, comprises three chapters and deals with the British period and after. The first chapter of this Book has been devoted to the examination of the different instalments in which the British system of administering justice was introduced into India. The second chapter of this Book has been devoted to the examination of the extent of the influence, exercised upon the Hindu Legal History by the acceptance and application of many foreign notions and principles, not always in keeping with the orthodox views of the Hindus. Adjudication and legislation undoubtedly played the most important role in this sphere. The last chapter of the thesis has been devoted to the chequered career of the Hindu Code Bill and its fragments.
Some difficulties were felt in demarcating the boundaries of the different periods in the historical development of Hindu law. In absence of any other surer, guide on this point, 1100 A.D. and 1772 A.D. have been taken as the working limits when the Muslim period and the British period might be supposed to have commenced for our purpose of the Hindu Legal History. Thus, though the Mughal emperor continued to be the theoretical ruler of India up to 1858, the East India Company had already begun to effect and introduce many important judicial reforms from 1772 A.D.-shortly after the assumption of the Diwani of Bengal, Bihar and Orissa in 1765 A.D. Hence, I was inclined to fix 1772 A.D. as the time whence British influence virtually began to be felt. The boundary line between the Hindu period and the Muslim period has been fixed at 1100 A.D. almost on similar consideration. As a matter of fact, the Muslim rule was consolidated in India from the 12th century. For three or centuries preceding this period, there was a sort of slackening in the four processes of the development of the Hindu Legal History.
The present thesis is an attempt to examine the leading epochs and the concomitant institutions and the juristic concepts and theories under-lying them in the development of Hindu Law. It, by no means, promises a detailed account with precise and accurate chronology of the history of Hindu Law. Such an undertaking is not quite possible on account of the paucity of reliable data. Very few writers have hitherto attempted a Hindu Legal History in its entirety.
The discussion has all along been with reference to the original Sanskrit texts, as compared and contrasted with modern juristic conceptions of the East and the West. Though conscious of his shortcomings and limitations, as well as the difficulties, subject to which he had to work, the author thinks that the contents of his thesis are, in some respects, an original contribution to the advancement of the study of Hindu Legal History.
The author was inspired to take up this line of work by the illuminating writings of Pollock, Maitland and Holdsworth regarding the history of English law and Buckland, Sherman and Jhering regarding the historical treatment of Roman Law. Another unfailing source of inspiration has been the writings of Roscoe Pound. Needless to say, herein the author has tried to follow their methods of treatment wherever it has been possible.
The thesis has been broadly divided into three periods, corresponding to the usual divisions of the general history of India, to wit, the Hindu period, the Muslim period and the British period. Further subdivisions have, of course, been resorted to in discussing particular epochs or institutions, with their origin, growth, influence and the ultimate effect. In the first period, Hindu Law developed quite independently, without any extraneous influence, in view of the peculiar constitution of the Hindu society, which was mainly based on Varna and Asrama dharma. In the second period, the growth of Hindu Law was arrested, though at the same time, there was hardly any influence of Muslim Law upon it. This may particularly be explained by the presence of the fundamental points of similarity between the basic doctrines of the two systems. In the third period, Hindu Law was greatly influenced by the principles and notions of Western Jurisprudence, not always in strict consonance with its true genius.
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