1. BRAHMINIZATION AND ANGLICIZATION OF THE LAW DURING THE INITIAL PERIOD OF COLONIAL ADMINISTRATION

During the initial period of administration, dual systems of courts were established with jurisdiction over all matters, civil, criminal and commercial. The Presidency town courts included royally established Supreme Courts, with English judges and lawyers; the mofussil (back-country) courts included sudder (chief) courts, manned by judges drawn from the civil service and with Indian pleaders.

“In suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws, those of the Shashter with regard to Gentoos, will be invariably adhered to; and on all such occasions, Maulvis or Brahmins shall respectively attend the Courts to expound the law and they shall sign the report and assist in passing the decree.”

Regulation IV of 1793 concretized the Hastings Plan by specifically allocating to the governance by Hindu and Moslem law matters pertaining to “succession, inheritance, marriage, caste and all religion usages and institution”. These regulations applied to lower or mofussil courts, but it was the Act of Settlement, 1781, which extended the principles underlying Hastings Plan to the Supreme Court of Bengal. All matters “arising out of succession to lands, rents, and all matters of contract and dealing between party and party” were to be determined by reference to not just the “laws” of Moslems and Hindus, but by reference to “usages” also. This recognition of custom was extended in Punjab, Madras, Central Province and other parts of British India (Kane, 1950: 42–43; Mahmood, 1977: 10–18).

But how, practically speaking, was this to be done? There were, in Sir Henry Maine's memorable words, “vast gaps and interspaces in the Substantive Law of India”.

In this phase, which Marc Galanter following Max Weber, calls the “expropriation of the law”, a most distinctive result, although probably unintended, was achieved. This was the creation of what Derrett calls the Anglo-Hindu law or the Rudolphs call the cosmopolitan, high-culture law. The textual law, through revival of śāstric scholarship and through the association of pandits with courts, was elevated above the customary law. No measures were taken by, or since, Hastings to ascertain custom; it was assumed that the indigenous Hindu law was to be found in the śāstric texts. Even in cases involving topics not listed in 1793, direction, justice, equity and good conscience, rather than indigenous custom, were to be applied. (Derrett, 1968: 289–306). The choice was perhaps ineluctable: if the government had “backed the customary law instead of śāstric law, literally hundreds of different systems of customary law would have emerged” (id.: 317). The result was “the śāstra under the British made advances over custom, despite the explicit protection of the latter; and custom has been forced to struggle against what might be called Anglo-śāstric law” (id.: 293). The “explicit protection” of custom, to which Derrett refers here, is perhaps the possibility, still left open, of situations when custom may derogate from the personal law or the too-ready reliance in certain cases (particularly in relation to the substantive autonomy of caste-panchayats), on local, community customs.

The customary rules were subjected, more or less, to the requirement of the common-law burden of proof: custom to be a source of law must be proved to be “immemorial or ancient, uniform, invariable, continuous, certain, notorious, reasonable (or not unreasonable), peaceable, obligatory and it must not be immoral nor opposed to an express enactment... or to public policy” (Kane, 1950: 44). Although not involved in every case, these requirements made (whenever involved) proof of custom difficult. Whenever custom was judicially cognized, it was also transformed:

“From a body of orally-transmitted precepts and precedents, subject to variable interpretation and quasi-legislative innovation at the discretion of village notables or elders, it becomes a body of fixed law to be construed by a professional court. Judicial enforcement of custom rigidifies it and strips it of quasi-legislative character: official courts are reluctant to permit the creation of new binding custom (Galanter, 1964; also see Kane, 1950: 44–45).”

The elevation of the high-culture, Brahminic, śāstric law has led to elaboration of the claim that “for some time in a variety of ways, indigenous high-culture law aided in establishing a national legal framework” (Rudolph & Rudolph, 1967). By “high-culture law” the Rudolphs mean the “literary law inscribed in classic texts” (the śāstra for Hindus, the Koran for Moslems) as expounded to the English judges by maulvis and pandits. This “high-culture law” flourished and developed during 1772–1864, at the expense of the “popular law of the peasant society” (id.: 269). The “popular” or “customary” law was difficult to ascertain and it was “parochial”, whereas the high-culture Brahminic law was “cosmopolitan” and “uniform”, based on readily ascertainable written texts, and developed through interpretation by legal notables.

But the modernity of the high-culture law did not lie in its substantive norms. Both parochial custom and cosmopolitan high-culture law reflected and embodied “for most part” values that were “antithetical to those in Western law”. The Rudolphs bring out the salient value contrasts perceptively.

First, they note that whereas English law valued the individual over “artificial” groups, the traditional Indian law valued the natural associations (family, caste) over the individual. Thus, “traditional” law regulated legal relations among individuals by reference to their group or corporate identity. British law sought to liberate the individual from constrictive group affiliations. Mobility of property increased under British law, for example, by the effective, though by no means simple, device of wills, the legal application of which varied somewhat unevenly from 1792 to 1878 when the Hindu Wills Act 1870 established a general set of rights and requirements (Rudolph & Rudolph, 1967: 289). Changes in the personal law (such as entitling creditors to bring to sale debtors’ interest in personal property), and revenue law (making land saleable collateral for defaulting farms and estates) provide other examples.

Whereas high-culture law was “particularistic”, English law was universalistic “in principle treating all men as equal before it” (id.: 280; italics mine). The qualification is important for, though seldom noted, Englishmen in India enjoyed certain privileges and immunities in the civil justice sector from 1793 to 1843 and in the sphere of criminal law, it was not until 1923 that Englishmen (as well as Europeans and Americans) could be tried by Indian magistrates and judges in the mofussil. As an eminent Indian legal historian has pointed out: “It was unjust to give to the Englishmen a right of free resort to the interior, and then to exempt them from the jurisdiction of the local authorities, which were always open to them against the Indian people” (Jain, 1966: 364).

Be that as it may, this principle did, as it related to the indigenous peoples themselves, bring a revolutionary change in the modes of dispute-settlement. Both the traditional Indian and the English law value impartiality, but concern for impartiality finds expression in the latter through elaboration and maintenance of rules of procedure and evidence. Thus, for example, English law exhibited a strict concern for the relevance of facts brought before the courts as evidence in support of rival contentions. But the indigenous system saw no objection if a tribunal, “met to settle one dispute, finds itself adjudicating another that lies behind it” (Rudolph & Rudolph, 1967: 257). To be sure, village tribunals have to distinguish between authentic and adulterated testimony. But judgement concerning the credibility of evidence arises from the intimate and direct knowledge the adjudicators have of the dispute before them rather than through an elaborate system of rules of evidence, procedure and pleading.

Finally, Western legal systems are distinguished by adversary proceedings where one party loses and the other wins. Traditional Indian tribunals, according to the limited ethnographical evidence we have, manifest a concern for dispute-settlement through consensus. They do not isolate the dispute from its overall social context. Rather, in and through that context the indigenous tribunals seek a solution which maximizes social harmony or abates group conflict or tension. Reconciliation of parties through compromise and consensus characterizes decisions of those tribunals, whereas (to borrow a striking phrase) the adversary system manifests a “winner-take-all” attitude (Coons, 1964: 787).

The importation of adversary processes for doing justice had important consequences, both enduring and transitional (the latter illustrated by a prevalence of false witnesses and the rise in litigiousness, the extent of which still continues to be debated).

It is clear that the modernity of Brahminic high-culture law did not arise from its substantive norms, nor in its procedures for dispute-settlement. Both in norms of substance and procedure the Brahminic law in operation had more in common with the parochial customary law rather than universalistic English law. How then can it be said that the Brahminic law became a “vehicle of modernization?”

The Rudolphs nowhere squarely confront this question. But a handful of very general observations suggest their approach to it. Compared to customary law, the high-culture law was more “uniform” and “cosmopolitan”. Unlike customary law, high-culture law was written and its “relative ascertainability, certainty, and consistency” commended it to all, “Indian and British alike, concerned about order and regularity” (Rudolph & Rudolph, 1967: 274). These features of “form and structure”, the Rudolphs maintain, made the high-culture law “an amenable if somewhat delusive instrument for Britain's wishing to find and apply a uniform law to Indians” (id.: 279).

No less an authority on Anglo-Hindu law than Derrett has maintained that the law, during the above period, “for all its many anomalies became much more certain and much more uniform” (Derrett, 1968: 316). And to the extent then that “certainty” and “uniformity” are attributes of a modern legal system, the Rudolphs’ observations that the high-culture law served as a “vehicle of modernization” must be accepted. But this acceptance must be limited in view of the fact that for any legal system in which the decisional law of courts plays a major role, overall judgements about certainty, consistency and uniformity, even when most circumspectly made, are impossible to verify. This is so not just because these attributes are hard to define and measure both over a time-scale and over rather heterogeneous case-materials, but also because “ certainty-consistency-uniformity” are matters of degree, matters of more-or-less, rather than of all-or-nothing. Pockets or sectors within a legal order are more amenable to such judgements than a legal order considered as a whole.

Nor are the above-mentioned the sole or most salient attributes of modern legal orders generally. In fact it might be more correct to say that a quest for (rather than an attainment of) certainty, consistency and uniformity, and accessibility, characterize modern legal systems. Legal growth and legal change are very often accompanied by, and require, departures from certainty, consistency and uniformity. The high-culture law served as an agent of modernization just as much (if not more) because the śāstric texts were open to divergent and conflicting interpretations, because the integrity of its authoritative exponents (the pandits) was often in doubt, because many śāstric norms were impracticable to follow or were obsolete, and because the courts did not (as indeed they could not always) adhere self-defeatingly to the canon that previous decisions ought to be followed (Derrett, 1968: 294–315). Indeed, when we thus look at the system of case law microscopically, the acute contrast drawn between custom and the superior high-culture law, in terms of consistency, accessibility, uniformity and certainty, assuredly becomes faint.

Another glimpse into the Rudolphs’ reasons for regarding the Brahminic law as a modernizing agent is provided by the reiteration of the view that the high-culture law flourished at the expense of local custom. Legal processes were coloured by Sanscritist perspectives not just by the adoption of Brahminic law on the part of the British, and this reinforced its original authority. Not to be overlooked was the fact that the “lower level judges and early incumbents of the modern legal profession were drawn from the upper castes” (Rudolph & Rudolph, 1967: 274). Thus, the Rudolphs suggest, though not quite explicitly, that the Brahminization of law generally helped the processes of Sanscritization in the area of social mobility.

If indeed Brahminization of the law affected processes of social mobility (“lower caste assimilation to higher-caste norms”), then this remains to be demonstrated. True, as the Rudolphs point out, the courts determined legal relations among groups by reference to the higher-culture śāstric texts, providing the four-varna model or even the simple twice-born model, whereas in reality there was “a multitude of caste groups”. But did what the courts say in cases coming before them affect this reality in any significant way? This question is too important to be ignored, but to answer it will require the compilation of social profiles of parties who brought their disputes before the courts during the era of high-culture law. In considering the question whether the introduction of the English system increased litigiousness and whether this contributed to mobility, the Rudolphs favour an affirmative answer on the ground that increase in litigation “may also mean that the litigants are searching for a means to escape the disabilities and coercions of traditional village society” and that such increase “reflects... an effort to unravel themselves from the traditional moral and social order” (id.: 267). But the evidence is too slender and varied to transform this statement from a hypothesis into a historical conclusion. If in a few cases Anglo-Hindu law did in fact provide leverage for social mobility, in other cases it also thwarted it, as demonstrated by the refusal of the courts, including the Privy Council, to permit temple entry to the Shanans, which the Rudolphs elaborately note and criticize (id.: 42–44).

Certainly, more than the social biographies of disputants in typical and strategic dispute-situations will be necessary to sustain the above hypothesis. It will also be necessary to describe, analyse and evaluate the impact of the judgements of courts upon the “multitude of caste groups”. For fidelity to prescriptions of high-culture law in court decisions is one thing: adherence, in belief and behaviour, by persons and groups affected by these prescriptions through the courts is another. Perhaps pioneering legal sociologist Eugen Ehrlich's distinction between “legal norms” which are constitutive of a social group and “norms for decision” which are norms employed by judicial agencies is most relevant here (1962: 38–60, 120–136).