The Hindu and Islamic jurisprudence reflect distinct philosophical, religious, and cultural perspectives, each with its own principles, practices, and objectives. Hindu and Islamic jurisprudence each offer unique insights into legal theory, social organization, and moral philosophy within their respective religious and cultural contexts. While they share common principles of justice, morality, and social order, they also reflect the diversity of human experience and the complexities of interpreting religious texts in the context of evolving societies. Understanding and appreciating the similarities and differences between these legal traditions can enrich our understanding of law, religion, and society in the broader historical and global context.

Indian Jurisprudence under Hindu Kings:

Indian jurisprudence under Hindu kings was deeply influenced by Dharmashastra, which provided guidelines for governance, justice, and societal order based on Hindu religious principles. Here are some key features of Indian jurisprudence during this period:

• Dharmashastra: Dharmashastra texts, such as Manusmriti, Yajnavalkya Smriti, and Narada Smriti, formed the basis of Hindu law. These texts provided detailed guidelines on personal conduct, social responsibilities, administration of justice, and punishment for offenses. They covered various aspects of life, including family law, inheritance, contracts, and crimes. In ancient Hindu law, laws were discussed under 18 heads covering both modern civil and criminal branches of law which fell under heads such as gifts, sales, partition, bailment, non-payment of debt, breaches of contract, disputes between partners, assault, defamation, trespass of cattle, damage to goods and bodily injury in general.
• King as Dharmic Ruler: The king was considered the upholder of dharma (righteousness) and was responsible for ensuring justice and welfare in society. The king’s duty (dharma) was to rule justly, protect his subjects, uphold the law, and maintain social order. The concept of “Rajdharma” emphasized the king’s duty to govern in accordance with dharma.
• Administration of Justice: Kings established courts and appointed judges to administer justice based on Dharmashastra principles. Brahmins often served as judges or legal advisors due to their knowledge of scriptures. Disputes were resolved through legal proceedings, where judges interpreted Dharmashastra texts, considered precedents, and applied customary laws.
• Legal Pluralism: Hindu jurisprudence exhibited legal pluralism, as it incorporated various sources of law, including religious texts, customary practices, royal edicts, and local customs. While Dharmashastra provided overarching principles, regional variations and local customs influenced legal practices and norms.
• Penal System: Hindu legal texts prescribed punishments for offenses, categorized based on the severity of the crime and the social status of the offender. Punishments included fines, corporal punishment, banishment, and death penalty. The aim was not only to punish offenders but also to deter future crimes and maintain social harmony.
• Legal Disputes Resolution: Disputes were resolved through legal proceedings in courts or through alternative dispute resolution mechanisms, such as arbitration and mediation. Legal disputes often involved issues related to property, inheritance, marriage, and contractual matters, which were adjudicated based on Dharmashastra principles and local customs.
• Influence of Local Customs: Local customs and traditions played a significant role in legal practices and dispute resolution. While Dharmashastra provided general principles, local customs and practices were often accommodated and respected in legal proceedings, reflecting the diversity of Indian society.

Indian jurisprudence under Hindu kings was characterized by a complex legal system guided by religious principles, royal decrees, and customary practices, aimed at maintaining social order, dispensing justice, and upholding dharma.

Unequal And Discriminatory Punishment System in Ancient India During the ancient Indian period there was a clear distinction made between the people of higher and lower castes while imposing punishments. Kautilya’s Arthashastra prescribed lower punishment to higher caste offenders and more severe punishment to lower caste offenders. According to him, a brahmin is not to be tortured like other people even though he may have committed an offence; they were also exempted from death penalty. During that time the powers of the judge were also very limited and kept in check. According to Kautilya a judge or a magistrate, who imposes an unjust fine shall be fined either double the amount or 8 times over the prescribed fine. If he imposes corporal punishment wrongly, he shall himself suffer the same.

Drawbacks of Ancient Hindu Jurisprudence:

Criticism of ancient Hindu jurisprudence, particularly as outlined in Dharmashastra texts and practiced under Hindu kings, has been voiced by scholars and commentators for various reasons. Some of the criticisms include:

• Social Hierarchy and Discrimination: Ancient Hindu jurisprudence upheld and reinforced social hierarchy and discrimination based on caste, gender, and class. Dharmashastra texts prescribed different rights, duties, and punishments for individuals belonging to different social strata, with Brahmins enjoying privileged status and lower castes facing discrimination. For example: A Kshatriya who commits adultery with a woman would be punished with the highest punishment, while a Vaishya doing the same thing would be deprived of his entire property and a Shudra would be burnt alive.
• Rigidity and Inflexibility: Ancient Hindu jurisprudence, as outlined in Dharmashastra texts, was rigid and inflexible, with little room for adaptation or reform. The strict adherence to traditional norms and customs limited the ability to address changing societal needs and injustices, leading to stagnation and inequality.
• Gender Bias: Ancient Hindu jurisprudence was patriarchal and discriminatory towards women, relegating them to subordinate roles within family and society. Dharmashastra texts prescribed unequal rights and restrictions for women in areas such as inheritance, property ownership, marriage, and divorce, perpetuating gender inequality and oppression.
• Lack of Universalism: Ancient Hindu jurisprudence lacked universalism and inclusivity, as it primarily catered to the interests and privileges of the dominant social groups, particularly Brahmins and Kshatriyas. The legal system favoured those belonging to higher castes while marginalizing or excluding lower castes, women, and marginalized communities.
• Harsh Punishments: Ancient Hindu jurisprudence prescribed harsh and disproportionate punishments for certain offenses, reflecting a punitive approach to justice. Punishments such as corporal punishment, mutilation, and death penalty were prescribed for various crimes, raising questions about their effectiveness, fairness, and humaneness.
• Religious Orthodoxy: The intertwining of religion and law in ancient Hindu jurisprudence, which lead to the imposition of religious orthodoxy and intolerance towards dissenting views or alternative practices. The dominance of Brahminical norms and interpretations in legal matters could marginalize non-Brahminical traditions and undermine religious pluralism.
• Resistance to Change: The conservative nature of ancient Hindu jurisprudence inhibited social progress and reform, as it discouraged questioning of traditional norms and practices. Attempts to challenge or reform discriminatory laws and practices were often met with resistance from conservative elements within society.

While ancient Hindu jurisprudence has been subject to criticism for various shortcomings and inequalities, it is also acknowledged for its historical significance, cultural relevance, and contributions to legal and moral philosophy. Critics advocate for a critical re-evaluation of ancient legal traditions, along with efforts to address historical injustices and promote principles of equality, justice, and human rights in contemporary legal systems.

Gentoo Code:

A Hindu code was compiled by the Pandits of Banaras at the instance of Warren Hastings when he was governor general of India. It was known as the Gentoo code which was printed by the East India company in 1776 in London. It provided that the penalty for theft be divided into open theft and concealed theft and different punishments were prescribed for them according to Roman Law. The former was punished by fine and the latter by the cruellest form of punishment of cutting off the hand or foot, at the discretion of the judge. Death punishment was also given for crimes like housebreaking and highways robbery.

Forms of Punishments under Hindu Code of Law:

The Hindu legal texts, known as Dharmashastra, prescribed various forms of punishment for offenses based on the severity of the crime and the social status of the offender. Some of the common forms of punishment under Hindu law included:

• Fines (Danda): Monetary fines were a common form of punishment for minor offenses or breaches of social norms. Offenders were required to pay a specified amount of money as a penalty for their actions. It also included the payment of compensation to the victims of the crime and also the payment of the costs of prosecution.
• Corporal Punishment (Kara): Corporal punishment, such as whipping or caning, mutilating, branding was prescribed for more serious offenses. Offenders could be subjected to physical punishment as a means of retribution or deterrence.
• Banishment (Haddapar): Banishment or exile was a punishment reserved for serious offenses, particularly those that threatened social order or harmony. Offenders were expelled from their community or kingdom and required to live in isolation for a specified period.
• Death Penalty (Mrityu): In cases of grave crimes or offenses deemed irredeemable, the death penalty could be imposed. Methods of execution varied and could include hanging, beheading, drowning, or burning at the stake, depending on the nature of the offense and prevailing customs.
• Restitution (Prayaschitta): Restitution involved offenders compensating their victims or making amends for their actions. This could include returning stolen property, providing financial compensation, or performing acts of penance to seek forgiveness.
• Public Shaming (Ninda): Public shaming or humiliation was sometimes used as a form of punishment, particularly for offenses that were considered dishonourable or disgraceful. Offenders could be publicly scorned, ostracized, or subjected to ridicule as a means of social punishment.
• Forfeiture of Property (Dhana): In cases where offenders were unable to pay fines or restitution, their property could be confiscated as a form of punishment. This served as a deterrent and also provided compensation to victims for their losses.
• Excommunication or Social Boycott (Nirvasan): In extreme cases, offenders could be excommunicated or expelled from their community or social group. This severe form of punishment severed ties with the offender and deprived them of social support and acceptance.

These forms of punishment under Hindu law were administered by kings, judges, or councils in accordance with Dharmashastra texts and prevailing customs. The aim of punishment was not only to deter crime and maintain social order but also to uphold principles of justice, righteousness, and dharma.

Islamic Jurisprudence:

Ancient Mohammedan jurisprudence, also known as Islamic jurisprudence or Sharia law, refers to the legal principles and systems that governed Muslim societies during the early Islamic period. Here are some key aspects of ancient Mohammedan jurisprudence:

• Quran and Sunnah: The primary sources of Islamic law are the Quran, believed to be the word of God as revealed to the Prophet Muhammad, and the Sunnah, which consists of the teachings, practices, and sayings of the Prophet. These texts form the basis of Islamic jurisprudence and provide guidance on matters of faith, morality, and law.
• Hadith: In addition to the Quran and Sunnah, Islamic jurisprudence relies on Hadith, which are collections of reports about the words and actions of the Prophet Muhammad. Hadith literature serves as a supplement to the Quran and Sunnah, providing further insight into the interpretation and application of Islamic law.
• Schools of Jurisprudence (Madhhab): Islamic jurisprudence is characterized by the existence of multiple schools of thought, each with its own interpretation of Islamic law. The four main Sunni schools of jurisprudence are Hanafi, Maliki, Shafi’i, and Hanbali, while the Shia tradition follows the Ja’fari school. These schools differ in their methodologies, interpretations, and legal rulings on various issues.
• Principles of Islamic Law: Islamic jurisprudence is guided by several key principles, including the preservation of life, religion, intellect, lineage, and property. Islamic law seeks to promote justice, equity, and social welfare, while upholding moral and ethical values derived from Islamic teachings.
• Fiqh: Fiqh refers to the human interpretation and application of Islamic law based on the Quran, Sunnah, and other sources. Islamic scholars, known as jurists or fuqaha, use principles of legal reasoning (usul al-fiqh) to derive legal rulings (ahkam) on various matters, including worship, transactions, family law, criminal law, and governance.
• Categories of Law: Islamic law is typically divided into several categories, including ibadat (ritual acts of worship), mu’amalat (transactions and contracts), jinayat (criminal law), and siyasah (public administration). Each category governs different aspects of individual and communal life, providing guidelines for behaviour and interaction within Muslim societies.
• Legal Courts and Judges: In early Islamic societies, legal disputes were adjudicated by qadis (judges) appointed by the ruler or community leaders. Qadis applied Islamic law based on the teachings of their respective school of jurisprudence, seeking to resolve disputes in accordance with principles of justice and fairness.
• Continued Influence: While ancient Mohammedan jurisprudence evolved over time and varied across different regions, its principles continue to influence legal systems in many Muslim-majority countries today. Sharia law remains an important source of legislation and jurisprudence in areas such as family law, inheritance, and personal status matters.

Ancient Mohammedan jurisprudence played a significant role in shaping the legal, social, and cultural norms of early Islamic societies, reflecting the values and principles of the Islamic faith. Its legacy continues to endure in contemporary discussions on law, governance, and ethics within the Muslim world.

Criticism of Ancient Mohammedan Jurisprudence:

Criticism of ancient Mohammedan jurisprudence, also known as Islamic jurisprudence or Sharia law, has been voiced by various individuals, scholars, and human rights advocates. Some of the criticisms include:

• Lack of Gender Equality: Critics argue that ancient Mohammedan jurisprudence is inherently patriarchal and discriminates against women in matters such as marriage, divorce, inheritance, and testimony. Sharia law, as interpreted and applied in many Muslim-majority countries, often gives men preferential treatment over women, reinforcing gender inequality and restricting women’s rights and autonomy.
• Harsh Penal Code: Critics point to the harshness of certain punishments prescribed by Sharia law for offenses such as theft, adultery, apostasy, and blasphemy. Punishments such as stoning, amputation, and flogging are considered by many to be cruel, inhumane, and incompatible with modern principles of justice and human rights.
• Lack of Religious Freedom: Critics argue that Sharia law restricts religious freedom by imposing Islamic religious norms and practices on individuals of other faiths or non-believers. Non-Muslims living under Sharia law may face discrimination, persecution, or legal restrictions on their religious practices and freedoms.
• Limited Personal Freedoms: Sharia law is often criticized for imposing restrictions on personal freedoms and individual rights, particularly in areas such as freedom of expression, freedom of conscience, and freedom of association. Certain behaviours or beliefs considered contrary to Islamic teachings may be penalized or prohibited under Sharia law, limiting personal autonomy and diversity of thought.
• Arbitrary Interpretation and Application: Critics contend that Sharia law’s reliance on human interpretation and application can lead to arbitrary or inconsistent rulings, depending on the biases and preferences of individual judges or legal scholars. Lack of uniformity and standardization in legal interpretations may undermine the predictability and fairness of the legal system.
• Social and Cultural Stagnation: Some critics argue that adherence to strict interpretations of Sharia law can impede social progress, scientific inquiry, and cultural development by discouraging critical thinking, innovation, and dissent. The rigid enforcement of traditional norms and practices may inhibit societal evolution and adaptation to changing circumstances.
• Political Instrumentalization: Critics raise concerns about the instrumentalization of Sharia law for political purposes, whereby rulers or governments use religious authority to legitimize their power, suppress dissent, or justify authoritarian policies. Political leaders may exploit religious rhetoric and symbols to maintain control and suppress opposition, undermining the principles of justice and rule of law.

While ancient Mohammedan jurisprudence has its critics, it also has defenders who argue for its relevance, moral guidance, and compatibility with Islamic principles. The debate surrounding Sharia law remains complex and multifaceted, reflecting diverse perspectives on the role of religion, law, and human rights in contemporary societies.

Forms of Punishments under Islamic Jurisprudence:

Islamic jurisprudence, also known as Sharia law, prescribes various forms of punishments for offenses classified under different categories. These punishments are derived from the Quran, Sunnah (teachings of the Prophet Muhammad), Hadith (sayings and actions of the Prophet), and interpretations by Islamic scholars. The severity of the punishment often depends on the nature and severity of the offense, as well as the circumstances surrounding it. Some of the common forms of punishments under Islamic jurisprudence include:

Hudud (Fixed Punishments):

• Stoning (Rajm): This punishment is prescribed for married individuals who commit adultery (zina) and is based on the Hadith. The method involves stoning the convicted individual(s) to death.
• Whipping/Lashing (Sariqah): This punishment is prescribed for theft (sariqah) and is based on the Quran. The number of lashes varies depending on the value of the stolen property and other factors.
• Amputation (Qat’ al-Yad): This punishment is prescribed for theft (sariqah) involving significant amounts and is based on the Hadith. It involves amputating the hand of the convicted thief.
• Death Penalty: It is given for crimes such as sodomy, rape and incest. Death penalty is considered as the most cruel and sadistic form of punishment given in those times. There are still many Islamic countries which encourage the practice of death penalties.

Tazir (Discretionary Punishments):

• Fines (Diyya): Tazir punishments may include imposing fines as a form of restitution or penalty for various offenses, such as property damage, defamation, or minor infractions.
• Imprisonment (Sijn): In cases where imprisonment is deemed appropriate by the judge or authorities, offenders may be sentenced to a term of incarceration as a form of punishment or rehabilitation.
• Public Rebuke/Shaming: Offenders may be subjected to public rebuke, shaming, or community service as a form of punishment for offenses that do not warrant fixed punishments.

Qisas (Retributive Justice):

• Eye for an Eye (Qisas): In cases of intentional bodily harm or injury (qisas), the victim or their family may seek retribution by inflicting an equivalent harm on the perpetrator, subject to certain legal requirements and limitations.
• Life Qisas: If the intentional injurious act of the criminal causes the death of the victim, the heirs of the victim may take revenge and ask the judge for Life Qisa (death penalty).
• Limb Qisas: When the intentional injurious act does not cause the death of the victim, but rather the loss of a limb or its proper function, the victim, herself/himself, may take revenge or ask for Diyya.

Diyya (Blood Money):

• Compensation (Diyya): In cases of unintentional harm or manslaughter (qatl khata’), the perpetrator may be required to pay compensation (diyya) to the victim’s family as a form of restitution and to avoid retaliation. The amount of Diyya received for a murdered person and injury of different parts of the body is determined in Fiqh books; the Islamic jurisprudence compiled in books by different Islamic jurists. The punishment of Qisas in all cases of willful homicide was exchangeable with that of Diyut, if the person having the right of retaliation wished so. He was given an alternate remedy either to take Diyut or Qisas as a form of compensation.

Ta’zir (Discretionary Punishments):

• Rebuke/Reprimand (Ta’zir): Offenders may be subject to verbal admonishment, reprimand, or other non-corporal forms of punishment deemed appropriate by the judge or authorities.

It’s important to note that the application of Islamic punishments varies among different Muslim-majority countries and communities, with some jurisdictions adopting a more traditional approach while others have modified or abolished certain punishments in accordance with modern legal principles and human rights standards. Additionally, Islamic jurisprudence emphasizes principles of mercy, forgiveness, and rehabilitation alongside the administration of justice.

Conclusion:

Hindu and Islamic jurisprudence each offer unique insights into legal theory, social organization, and moral philosophy within their respective religious and cultural contexts. While they share common principles of justice, morality, and social order, they also reflect the diversity of human experience and the complexities of interpreting religious texts in the context of evolving societies. Understanding and appreciating the similarities and differences between these legal traditions can enrich our understanding of law, religion, and society in the broader historical and global context.