By Janaki Devi, student of Kerala Law Academy, Campus Journalist at Lawctopus
4th March was one of the most memorable days in the history of Kerala Law Academy Law College. On this day, Justice Markandey Katju addressed the budding lawyers of our college during the second Kuttikrishna Memorial Lecture on Ancient Indian Jurisprudence and Modern Jurisprudence.
“Law came into existence when private property came into existence,” said Katju, adding that the institution of marriage also came into existence with the coming of private property.
“Man wanted to retain his property even in death and that was done by passing it on to his child, a part of him,” he said.
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The session enlightened the students and teachers with an inspiring speech delivered by the legend.
After delivering a detailed and conclusive lecture on the topic- Ancient Indian and Modern Jurisprudence– he pointed out that ancient Indian jurisprudence resonates the historical school of jurisprudence and modern jurisprudence is supplemented by positivism, sociological school of jurisprudence and naturalism.
“Modern jurisprudence is undergoing a crisis as it had exhausted the possibility of further development despite creating a host of schools and theories”, Justice Katju said.
Through various illustrations, the eminent jurist drew a clear-cut picture of development of law in various sectors like adoption, marriage, partition, inheritance etc.
“The popular view that Hindu Law originated from the Vedas is a fiction”, said Justice Katju. It really emanated from books called ‘Smritis’, such as Manusmriti and Yajnavalkya Smriti, he added.
“Law came into existence when private property came into existence,” said Katju, adding that the institution of marriage also came into existence with the coming of private property. “Man wanted to retain his property even in death and that was done by passing it on to his child, a part of him,” he said.
“By seeking to establish the exclusiveness of sex relations through marriage, a person could ensure retention of private property even after one’s death.”
Speaking on ancient Indian jurisprudence, Justice Katju elaborated on the different approaches on inheritance laws taken by the two branches of Hindu Law – the ‘Mitakshara’ and ‘Dayabhaga’ – and also illustrated how the Hindu law of adoption, partition etc. progressed through different interpretations by different commentators.
“For example, a text of Vashishta which says “a woman should not give or take a son in adoption except with the assent of her husband” has been interpreted in four different ways by commentators,” said Katju.
The study of ancient Indian jurisprudence, according to Katju, belongs to the historical school which suggests that law is not a mere set of artificial rules but “an outcome of the social system as it has evolved in history”.
The former SC judge also traced the evolution of Modern Jurisprudence and how it came to be a combination of Positivism (which regards laws as rules enforced by legislature), Sociological jurisprudence (which studies legal system in the social context) and natural law.
“Since each major technical advance in modern industrial society brings about a change in social relations, it calls for new legal norms, which is not possible by slow customary growth. Hence legislation has become the most important source of law in modern society,” he said.
Sociological jurisprudence, that became an important trend in the 20th century by seeking to study the legal system not in isolation, but as part of the social reality, considerably broadened the scope of jurisprudence.
The basic feature of modern society was its remarkable instability due to the revolutionary nature of modern industry.
“By continuously changing techniques of production with new scientific inventions and discoveries, modern industry is constantly causing major changes in social relations and law,” Katju said.
Though legislation is the source of law in modern society, there were often gaps in the statutory law, which always did not keep pace with social development, and advancement in technology. “This required judge-made laws to fill in these gaps in certain circumstances,” he added.
While ancient Indian jurisprudence could be said to belong to the historical school of jurisprudence, modern jurisprudence is a combination of positivism, sociological jurisprudence and natural law, Katju said.