Customary Law and the Eclipse of Lex Scripta
By the late nineteenth century, premodern Hindu and Islamic legal doctrines were all but illegible. In an intellectual milieu of emerging theories on social formations, �custom' was validated by a set of observable practices that had been traditionally practiced by any particular tribe, caste, region, or religious sect.
Such was the anthropology of legal experiences, an approach that allowed for unwritten practices or lex non scripta to be identified in many contexts even when they were not accompanied by legal formulation or juridical discourse. Very often â€?custom' became the dominant doctrine from the mid-nineteenth century to provide exemptions to various subject-populations and functioned either to validate or invalidate their practices. The successive accumulation of litigation and adjudication in courts only lent further credence to this belief. Indeed, a vast set of law manuals for all kind of laws were published. Even a cursory glance at Islamic law gives us the idea that law had been the site of contestation. Legal concerns were furthermore accentuated by anthropologiÂcal works on castes, communities, and races with their specificities. However, against this custom oriented idea developed through anthropological observaÂtion, late-eighteenth-century orientalists operated on custom as itself enÂshrined in the legal tradition.Custom, at least in early nineteenth-century imagination, was founded upon the distinction between â€?written' and â€?unwritten' law, lex scripta and lex non scripta. Custom was â€?unwritten' law, and hence secondary or inferior to â€?written law', jurisprudence. This distinction was universal in the various early modern European traditions of law. For William Jones, as much as continental jurists, custom was indeed a designated set of practices (the French usage) that were commonly found all over in Europe.
They were specific to either a region or a field of law. There were also commercial or maritime laws that had evolved through agreements, conventions, and norms employed by trading networks, sea farers, and other such guilds or groups, or, even mundane matters such as the rules for bread and wine making in different territories. These customs though known through practice, were, very often by the early modern period compiled in the form of treatises. These collections helped harmonise and clarify how the appropriate custom was distinct from civil law.[1153] [1154] [1155] Their compiÂlation made it possible to uphold the validity of customary practices in the courts or provide exemptions from the sovereign’s imposition of law.Colonial ideas of law from the mid-nineteenth century onwards, however, were far removed from this early modern custom enshrined in jurisprudence. Colonial administrators instead attributed the legal and political foundations of Indian society to â€?custom’ from a legal perspective and â€?status’ from the soÂcio-political culture as opposed to a rational social ordering based on â€?contract’ prevalent in European societies. This idea logically implied that Indian society was organised around legal systems based not upon principles but rather upon reasoning that was discretionary and arbitrary in nature. Henry Sumner Maine (1822-1888) pitched a distinction between societies of â€?contract’ and â€?status’, as a general theory of society (going far beyond the confined limits of jurisÂprudence)?5 In the minute from July 17, 1879, on the â€?Indian Codification’, Maine noted in his critique that India was â€?singularly empty of law’ and â€?full of indigenous legal or customary rules’ that desperately necessitated codifica- tion.46 This position went further than merely the distinction between lex scripta and lex non scripta to one based on a theory of societies classified in a hierarchical manner, one of the essential foundations for the emergence of what Duncan Kennedy calls â€?classical legal thought’.[1156]
The period from the 1830s to the 1880s also saw the continuation of a commonÂlaw based jurisprudence at the courts of the various presidencies. British judges themselves frequently cited Roman jurists along with early modern and modÂern continental treatises and civil codes (mainly French and German) whenevÂer they had to validate some judgment that was founded on precedents but still lacked some rational legal principle in support of it[1157] [1158] The more precedents were set, the more applicable old case law became to court procedures, the more lawyers and judges turned to the substantive law of Roman and continenÂtal jurisprudence to refine their court decisions and legal reasoning in the abÂsence of codification. That is to say, jurisprudential reasoning found that case law allowed for decision-making but could not sufficiently resolve the theoretiÂcal and logical aspects. Moreover, the very political and legal foundations of colonialism had been altered after the Mutiny of 1857 with the East India Company’s territories passÂing on to the British Crown in 1858. In this changed historical dynamic, the preparation of statutes, such as the Indian Penal Code (1860), Indian SuccesÂsion Act (1865), Indian Evidence Act (1872), and Indian Contract Act (1872) to regulate and standardise civil and criminal procedures, had little to do with any â€?native’ systems of law?9 By this time, not only was the ideal of codification beginning to be abandoned (especially, in its early iterations as â€?digests’ or equivalents), but a new and substantial body of case law was being accumuÂlated. Firm juridical principles were no longer congruent with any premodern jurisprudence. By this marked disjuncture with the past operated by colonial law, â€?custom’ emerged as a major method for understanding law, especially, personal laws of the subject populations. As late as the early twentieth century, at least one scholar contended that problems with laws pertained to disorderly methods of codification but also the insufficient extent to which the compilation made for the Mughal emperÂor, Aurangzeb Alamgir, Al-fatdwd al-'dlamklriyya had been taken into account in the case of Islamic law,[1159] [1160] though the ideas of Jones, Hamilton, or Harington were of little relevance anymore. Case law, statutes, legislation, codes are each different â€?species’ that belong to the â€?genus’ of law, which produce alternative meanings and purposes to which law is applied. During the colonial period itÂself, Anglo-Mohammedan law was derived from case law rather than being continuous discursive iterations of laws from the 1770s to the nineteenth cenÂtury as was often depicted in colonial-era manuals.51 An epistemic difference is underwritten between law as jurisprudence and law as produced through precedent or statute. 4