Lex Scripta: The Source of Legal and Political Authority
Gesetzgebungstechnik or the â€?technique of instituting law', as many nineteenthÂcentury German jurists understood codification, needs to be apprehended within particular epistemologies of what is meant by law.
As already examined above, there were distinct and codifiable elements of lex scripta identified in India. This required the genealogy of â€?native' jurisprudence to be mapped onto the politics of the sub-continent and given a sense of heritage that long preÂceded the time of British rule. Exemplary of this imagination was the convoÂluted historical demonstration of Archibald Galloway - one of the directors of the East India Company who had translated the Islamic legal manual, Mukhtasar al-quduri - to locate the constitutional basis of the preceding Mughal government. Since the legal precepts of the Hanafi school were supÂposedly applied by the Mughals, he established that Al-fatdwd al-'dlamkiriyya, commissioned by the last of the great Mughal sovereigns, was the authoritative work for public as well as private law. Moreover, it was a â€?native' compilation of Islamic law rather than a text produced in Central Asia or the Middle East. This authentic work therefore represented the very â€?Law and Constitution of India’.[1141] [1142] Given this kind of historical philology, early British thinkers worked with a post-Renaissance civil law conception of â€?custom’. As shown earlier with Jones’s borrowing of Pothier’s usage, custom is not an unwritten law that had to be located in the observation of social praxis. Custom was itself a product of localised legal practices collected, authenticated, and permitted by juristic law.Moreover, codification of law in this context has to be explained within the peculiarities of how the East India Company imagined its sovereignty over the subject-population of Bengal.
Though various kinds of codes exist in European historical experience of law since Roman times, each are tied to different iteraÂtions of sovereignty and political authority needed to enforce them.33 What motivated Company administrators was the proximity they perceived between legal authority and political authority as illustrated in Galloway’s opinion. Which law books were valid, that is, were based on accuracy and sound judgeÂment but also had actually been ever applied in India by earlier sovereigns like the Mughals became the primary question. Since the Company was granted revenue collection rights in Bengal by the Mughals, Company administrators deemed that â€?Mughal laws’ continued to possess validity. After the Battle of Plassey in 1757 and the conquest of Bengal, the Company sought to maintain the hitherto existing legal regime bequeathed to it from the Mughals, who were the â€?real’ sovereigns.The idea of locating written law was equally strong in the case of adminisÂtrative and fiscal policies pursued by the East India Company in the settlement of the revenue system in Bengal. This reality was mirrored not only in civil laws that I have explained above, but also the revenue regulations, which were of an immediate priority for the tenability of Company rule, that the British were keen to establish based on the conventions followed by the Mughals, the soverÂeigns who preceded them. John Herbert Harington (1765-1828), orientalist like most of his colleagues, was a Persian translator and held several posts in the revenue department during his career in Calcutta. He translated two Jarmans or â€?imperial orders’ that the Mughal emperor, Aurangzeb â€?Alamgir (r. 1658-1707) issued, texts that were reproduced several times in late-eighteenth-century manuscript copies to familiarise officials with Mughal revenue decisions.[1143] [1144] [1145] Here too, philology was devised as history rather than recognise the exact conÂtours of the historicity of land revenue regulations that existed in actual pracÂtices.
Indeed, the positivism of philology led to debates on the meaning of terms employed but also their disuse that had set in, anachronism and erroneÂous application, incompatibility or not to the â€?tenets' of Islamic law, and, above all, the anxiety of being unable to wholly comprehend them (unlikeJones's enthusiasm and arrogance of reason) and, even the appropriateness of their implementation if any for the goals of British administration. Harington comÂposed an extended essay where he argued himself as much.3≡ Such divergencÂes in trends could be prevalent even in the early phase despite commonality simply given the scope and nature of laws to be applied. For, the very underÂstanding of terms such as kharaj (land-tax), â€?ushr (tithe) in the â€?imperial orders' of Aurangzeb Alamgir was itself subtended by several layers of philology: findÂing the doctrinal texts that explained their meaning and guided the normative conditions of implementation, and, only later, implemented, if considered practical and meaningful, at all. The discovery of these â€?ancient laws' of India was also a manner of conceiving the Company's sovereignty as derived from Mughal authority rather than the Royal charter, which only granted trading rights. It is worthwhile to note here that the early period of colonial rule also saw the construction of historical knowledge about India through the study of chronicles, treatises, records, and inscriptions, not in the exhaustive manner (which would be the case in the late nineteenth century) but through the exÂamination of select legal and political orders. This historical reconstruction of India's past went hand in hand with the study of its laws as it was an intellecÂtual question charged with political relevance for construction of an imperial rule.36 As in all empires, a however improper translatability between different legal systems was necessary.Moreover, company officials were actively engaged in acquiring manuÂscripts from the imperial library of the Mughals in Delhi or the collections beÂlonging to the Nawabs of Oudh (1722-1859) in Northern India.
William Jones's copy of the Mughal compilation, Al-fatdwd al-â€?dlamktriyya, now housed in the British Library, supposedly belonged to the Mughal imperial library during FarÂrukh Siyar's reign (r. 1713-1719).[1146] Colonel John Baillie (1772-1833), a director of the East India Company was Professor of Arabic and Persian and of MohamÂmedan law at the College of Fort William in Calcutta. While resident in the Lucknow, the capital of the Nawabs of Oudh, he collected and translated sevÂeral works of Islamic law. Francis Gladwin (d. ca. 1813) who served in the Bengal Army, was professor of Persian at the College of Fort William and, alongside Jones, one of the founding members of the Asiatic Society of Bengal. A prolific translator of Persian sources, in An Epitome of Mohammedan Law, he presents an English version of Mir’dt al-masd’il or â€?Mirror of Queries' made for the Mughal emperor, Muhammad Shah (r. 1719-1748).3[1147] Moreover, when in 1799, the British defeated the southern Indian ruler, Tipu Sultan (r. 1782-1799), the Governor-General Marquis Wellesley (1760-1842) ordered Tipu's rich library collections containing Persian and Arabic manuscripts to be sent to Calcutta. They remained there for a while and formed part of the early library of the ColÂlege of Fort William meant for oriental learning, whose foundation in 1800 marked the first anniversary of the victory over Tipu Sultan[1148]Very often, native scholars, whose opinions were derided for their lack of cohesion, were consulted on matters of textual authenticity, intellectual tradiÂtions, and doctrinal differences to arrive at a hierarchy between legal works. We know little about them, except through intra-company correspondence or cursory references in colonial administrators' manuscripts. All these philologiÂcal efforts where the intense participation and teaching of â€?native' scholars is often masked, were driven through the anxiety that the same would be ill- equipped to render justice in the courts as judges.
Indeed, Vans Kennedy (1784-1846), a Scottish Major-General of the British Army and Persian scholar, anticipated a proto-idea of Max Weber's KadiJustiz in his analysis of Islamic law.[1149] Weber applied the term, KadiJustiz to mean individualistic proceduralist legal regimes, which were irrational in nature; one of the prototypes in his usÂage of the term was the Muslim judge, qazi (or Kadi). Kennedy's idea was still vague, but it was based on the belief that a single qazi’s decision could neither do justice nor generate any substantive laws unlike binding norms of preceÂdent or courts of appeal current in common law practice. Kennedy's anxiety was palpable when he quipped â€?...what were the means by which any ineffiÂciency in the Muhammedan laws was rectified' and, he found none at all[1150] This inefficiency could be redressed, he contended, by the application of sound European principles of legal procedure through the establishment of different tiers of courts, the appointment of European judges, the recourse to appeal, etc., without altering, so most colonial officials thought, the substantive conÂtent of â€?native' laws.Though multiple similar cases can be located in early colonial rule, the foundation of these concerns lay in the fact that the East India Company deÂrived its sovereignty from the Mughals, whose laws it had to rediscover since they were assumed to be the only â€?law of the land'! Erskine Perry (1806-1882), a Member of the British Parliament, while serving as Chief Justice of the SuÂpreme Court of Bombay, argued vigorously in a moralistic tone that English legal principles like habeas corpus did not apply to the â€?natives' as they had never been governed by any such similar provisions. Since equivalents to haÂbeas corpus could not be found in Hindu or Islamic laws, a regime that had succeeded to sovereign authority through conquest could only apply the laws as they had existed prior to the conquest.
In India, where only despotic reÂgimes had ever ruled, the only applicable norm was the Roman maxim: quod principi placet legis vigorem habet (what pleases the prince has the strength of law)[1151] Erskine, moreover, contended that given the nature of the state and public law in India in 1840s, the only salvation could emanate from changes made by the â€?will of the sovereign' (here, the East India Company) echoing Leibniz's view I have cited in the epigraph. If the Company embarked on changing the very legal foundations of its sovereignty, though Erskine knew there was no such project in sight, perhaps, a constitutional reform, only then could English law be applied to Indians in full measure. Elsewhere, in his writÂings suggesting legal reforms, Erskine maintained that English law could be declared the law of land but would be inefficient in application. Citing a PerÂsian proverb meaning, â€?short injustice is better than tardy justice!', he summaÂrised the futility: English law would lead to extensive and protracted litigation since it would offer possibilities for legal recourse that were barely available in â€?native' juridical systems that were procedural in nature. The latter though may cause some injustice was yet swift and less tedious and efficient for that reason.[1152]3