EVOLUTION OF LAW - Notes Milenge



EVOLUTION OF LAW

In the primitive stage of any society, rules exist in the form of customs and usages. These evolve and develop with the growth of the society. As the society progresses, the impact of predominance of the State authority and positivist approach to law denounces the supremacy of religion. The State then codifies these rules and ensures their obedience by way of sanctions. After the society is politically organized and the said rules are recognized by the State, it goes on to make new rules which are termed as “statutes” or “legislations”. For their enforcement, judicial system is established by the State. Its function is to interpret these statutes and also, to determine and decide disputes accordingly. In subsequent cases based on similar facts, these decisions are considered as authoritative and are called “precedents”. Therefore, the law of a State is the amalgamation of custom, legislation and precedent.

GROWTH AND DEVELOPMENT OF LAW IN INDIA

The Indian history of law and religion reveals that in ancient times law was a part of religion. It was based on traditions, culture, ethical values, morals and human conscience. The ancient Hindu view was that, law is the command of God and not of any political superior or sovereign. Thus, the ruler was not only bound to obey it but also under a duty to enforce it. Law was considered to be conceived of a legal order based on what was termed as “Dharma”. There are two interconnected ideas in the term “Dharma” namely, foundation in revelation and conduciveness to welfare. Codification took place in the form of “Dharmashastras”. The “Dharmashastras” contained elaborate principles of moral and righteous conduct, which the people in general were supposed to follow in their day to day life and the violation of which was attended with religious sanctions rather than the judicial punishments. The Hindu view was given at a time when there was no clear cut distinction between law, morals and religion. It may therefore be said that, moral and religious injunctions were mingled up with legal precepts during the ancient period.

With the establishment of British rule in India, the country was introduced to the legal philosophy and law existing in Britain, with necessary modifications to suit the local Indian conditions. The enforcement and administration of law was mainly placed in two categories namely, civil and criminal justice. Retribution was considered to be justified for correcting the wrongdoer and deterrent and preventive punishments were deemed necessary for the maintenance of law and order in the society.

The Indian independence in its wake brought about a radical change in the Indian social order as well as the laws of governance of the country. The Indian Constitution which came into force with effect from 26th January 1950 envisaged a just social order securing to all citizens of India the following:

• Justice: social, economic and political

• Liberty of thought, expression, belief, faith and worship

• Equality of status and of opportunity

• Fraternity assuring dignity of the individual

India being a developing country inhabited by people belonging to different casts, creed, religions and speaking different languages, preferred a democratic form of political set up as a welfare state.

It may be concluded by saying that in modern times, law, in most parts, has been secularized. It has grown into an independent branch of social science.

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