Philology as History: Locating the Reason of Law in the Law of Reason

The first Governor-General of India, Warren Hastings’s mooted the idea of pre­senting laws on �[q]uestions concerning Inheritance, Marriage, Caste, to be invariably settled agreeably to the dictates of the Koran or Shaster’.^[1120] When, in his private letter to the Directors of the East India Company, Hastings addition­ally made the argument for �compiling from the books of their law a code’, he wrote with a spirit of taxonomical optimism that was just becoming vogue in his time.^[1121] For nearly two centuries, the earliest attempts at conceiving law (before the mid-nineteenth century) had been marked by an attempt to present a historical philology of law, that is, to see jurisprudence as the primary organon of deriving the understanding of precolonial juridical systems as well as their conversion and application in the courts.

Sir William Jones (1746-1794), the British orientalist andjurist, studied at Oxford and was admitted to the Temple Inn to read law in 1770. In 1783, he was appointed to the India Bench of the Supreme Court at Calcutta. His intellec­tual pursuits in India not only led him to comparative Indo-European philolo­gy but also the study of Hindu and Islamic legal traditions. His interest in In­dian laws was primarily oriented towards the collection and analysis of premodern legal treatises, which was based on a stark distinction between texts as lex scripta that were superior and more certain than laws as under­stood by the �native'jurists.

Perpetual references to native lawyers must always be inconvenient and precarious; since the solidity of their answers must depend on their in­tegrity, as well as their learning; and at best, if they be neither influenced nor ignorant, the court will not in truth hear and determine the cause, but merely pronounce judgement on the report of other men.ⁿ

In this assessment, the implicit assumption is the epistemic superiority of �written law' against a corrupted form of knowledge based on orality or �un­written law', even if the latter were that of jurists as a collective body knowing the laws.12 Jones convictions are firmly entrenched in law as it is generated from jurisprudence. However, the reliance on written law itself was under­mined by the fact that Europeans encountered a plurality of texts, treatises, and commentaries in India. Here, in a manner similar to his philological think­ing, the answer lay in accessing the origin - the archaic form in which law presents itself. Jones had to find texts that were the precursor of a whole Is­lamic tradition, �classical’ authorities from which all laws and juridical opin­ions were derived. Therefore, he set up the task of textual archaeology. Exca­vating the traces of this genealogical development of jurisprudential doctrine was a preliminary to its transformation it into digested codes legible in Euro­pean legal vocabulary.

Jones’s editions and translations of legal treatises is comparable to his work on comparative philology. His translation, �The Mahomedan Law of Succes­sion to the Property of Intestates’, published in 1782, was the first attempt at offering a concise Arabic text with Roman transliteration and English transla­tion. Moreover, he collected parts of various Islamic jurisprudential material to compile legal propositions for contract and inheritance laws during his stay in India.

The traces of this thought process can be exposed through Jones’s philologi­cal notes and manuscript collections, which are now housed at the British

13 Jones, �Correspondence with the Government of Fort William: To Earl Cornwallis, Gover­nor General, etc., dated 19th March 1788, Calcutta’, in Jones, Works Vol. iii, 60 ff.

Library in London.^[1123] Jones had begun organising different treatises along sec­tions pertaining to legal topics.

Jones's translation of the Islamic law of inheritance is neatly separated along two leaves of the manuscript. On the left, the translation is accompanied by notes and terminology on the shares in inheritance, while the more sparsely annotated right side provides his analyses of terms and arguments. Jones is particularly concerned with the relation between state, property, and individ­ual rights. In the margins, he very often notes the primacy of raison d’etat to guarantee property rights in Islamic law. In his conceptual framework, Jones's central focus is the Roman legal term of dominium: the control of property and estate in so far as the individual had the right to possession, use, and transfer. Jones's marginal notes reveal the intriguing elements of dominium that were suspended in Islamic law during emergencies (^l[d]uring usurpation, interreg­num, universal anarchy, revolt, etc'.) when inheritance could not be secured?^[1125] This point he clarifies in another note: �...that it reverts to her [the right heir], only, on failure of a (regular) Government - but the first is the one authorized by the fatwa'.1^[1126] State patronage is something Jones sees as an essential condi­tion for guaranteeing dominium.^{[1127] [1128] And its reach was all encompassing, since �no Muselman prince, in any age or country, would have harboured a thought of controverting these authorities'?9 The fatwas - which he analogised to responsa - he considered one among many forms of binding decisions in}

Islamic law concerning inheritance and other matters.^{[1129] [1130] [1131] Jones's interests here are conceptual: Islamic laws of inheritance treat property as dominion ac­quired through different means such as contracts, inheritance, etc., akin to the definition of property in European legal systems.}

The attempt at making a �code' rests on the idea of reproducing a digest, which would not codify any extant positive law (that only emerges in the In­dian sub-continent from the 1860s onwards) but systematically provide a de­tailed selection of jurisprudential opinions from precolonial legal texts and commentaries. He explicitly drew inspiration from Justinian's Corpus Iuris Civilis. The form of the Institutes concerned him less as it was a pedagogical text. The Digest provided the better model, as a source text for jurisprudential opinions of past jurists, an exhaustive compilation that Jones was eager to em­ulate for both Hindu and �Mohammedan' laws.22

Jones treated �Hindu' and �Mohammedan' law in two distinct manners. Whereas, he drew entirely on the Manusmrti for the former, for the latter, he found various possible texts. The question to be resolved for us is whether Jones understood them to be codices proper, which had the force of positive law, or merely jurisprudential opinions of diverse jurisconsults, in which case they had to be systematically analysed to produce a logical system of �Moham­medan' law without forgoing internal coherence. It seems Jones's position re­lated only to reorganization and compilation without interference into the content of substantive law. Jones's researches went beyond understanding Is­lamic legal treatises in the Indian context. Indeed, his succinct and yet conde­scending remark on Ottoman jurisprudence of the time is striking. In his read­ings, Jones recognised the existence of collections offatwas or �responsa' issued by �the great law-officer of the Othman [sic.] court'. The answer rejecting hypo­thetical queries in the responsa were �solemn decrees’.^{[1132] [1133] In these, he could see nothing else but kinds of �responsa' similar to opinio iuris prevalent in classical Roman law.}

Laws of obligation and contract captivated Jones. Borrowing from the Ro­man classification of locatio, inspired in particular by conceptions of locatio conductio rei, locatio operis faciendi and locatio mercium vehendarum, Jones developed a particular form of reasoning to search for Islamic equivalents to Roman legal principles. For instance, under Islamic law, there was a contro­versy as to whether goods that could be used as capital assets could be given for safe keeping, and, if the bailer could reasonably claim the return of the goods without any alteration in quality upon his return. If a bailer left a horse as locatio custodiae to a bailee, and if it had been unduly burdened during the bailer's absence, could then a legitimate claim for compensation be made? Un­der Roman law, the case does not constitute a legal problem since only those goods which are quantifiable and divisible, say, x bushels of corn or y jars of wine could constitute things of locatio custodiae. Jones rather felt that an an­swer to the dilemma might be found in the civil law of the ancien regime and looked to the writings of Robert-Joseph Pothier (1669-1772). Pothier had ar­gued that locatio custodiae of capital assets was part of French coutume. They could reasonably constitute juridical cases despite their absence within the reasoning limited to Roman law. In matters pertaining to �duty of care' and �negligence liability', Jones reasoned that the same principles of Roman law were valid in Islamic law. That is to say, the universal ratio of law overrode dif­ferences in classification and argumentation that existed between various le­gal systems. French legal thinkers, being good civilians who were careful, at times, to allow for the observance of customs, could be helpful allies in this pursuit.

The historical philology of law, undertaken by scholars like William Jones, so often overlapped (at times, indistinguishably) with scholarship on the emerg­ing discipline of historical linguistics. David Ibbetson has noted this cursory relation though he does not find a structural similarity between Jones's com­parative Indo-European philology and his legal writings?⁴ In part, this owes to Ibbetson's position that Jones's conception of law had been already formed in England before he moved to India, and this did not alter despite his study of other legal cultures. A careful reading of Jones's writings in the frame of both Hindu and Islamic jurisprudential systems, however, suggests a more height­ened degree of dynamism than this interpretation permits. To understand this, it is necessary to identify the method at work in Jones's deduction of the pure reason of law by a historical approach. One first had to deduce the basis of law in its historical origins, and then had to extract the appropriate principles out of this historical approach, before finally applying them according to the norms and principles available within European legal thought generally, but more specifically, Roman law. No doubt, Jones was not much interested in compara­tive legal scholarship (which is reflected by a curious absence in comparing the Hindu and Islamic laws in any of his writings) but he examined the historical context of laws to finally subsume them under a universal meaning of law in general.

In an ambiguous manner, Jones believed in the universal ratio enshrined in the principles of jurisprudential thinking in general (and whose particular his­torical manifestation was Roman law) and considered it equally propitious to bring into accord �Asiatick and European systems' by producing texts of law of contracts from Persian and Arabic treatises for �those whose fate it is to be un­der our dominion'.^[1134] However, the desired project of producing a systematic Digest of Islamic or Hindu law was never realised. Instead, his role in India, from 1783 when he was appointed to the Bench of the Supreme Court of Bengal was focused entirely on resolving the intricacies of comparative jurisprudence and mapping out the historical genealogy of legal texts. The nature of Jones's jurisprudential work in Calcutta was primarily philological rather than con­tinuous with his English legal interests that called upon practical reforms. His comparative approach to legal systems conformed to models of Indo-European linguistics he was developing at the Asiatic Society of Bengal. Nevertheless, his jurisprudential philology did not produce any comparative scholarship, per­haps, for two reasons. First, he continued to hold on to the belief that ratio was the basis of law. Second, customs and practices of the �natives' had to be re­spected in matters pertaining to their civil life, which limited possibilities of legal reform.

Charles Hamilton (1753-1792) who served as lieutenant in the East India Company's army, translated a Persian rendering of the Transoxanian jurist, Burhan al-Din �Ali ibn Bakr al-Marghinani's (d. 1197) Al-hidaya sharh bidayat al-mubtadl fl al-fiqh or the �Guidance’. Al-hidaya into English in 1791.^{[1135] [1136] [1137] Hamil­ton’s conception of law, though, was quite distinct from that of Jones; it was less philosophical in nature and hardly romanticised Roman law as the positive manifestation of a potentially universal legal regime. Indeed, Hamilton was concerned only with the proper application of existing positive laws in terms of their practicality. First, he searched for a text that was concise in nature with various legal rules. This was to avoid the whole commentarial tradition weigh­ing upon any legal treatise and thus hampering actual application through end­less jurisprudential argument. Second, this concern was attached to the practi­cal purposes of training �native’ jurists to quickly interpret the law and European judges to be in a position to apply it according to the precepts of law. Third, the pedagogical element of legal digests was not lost on Hamilton for whom the training of a new generation of scholars was an utmost priority. Hence, he fo­cused on Al-hidaya, which despite its popularity in premodern Islamic jurispru­dence, had rarely been a text comparable to a legal code.27 It mostly had peda­gogical purpose in the madrasas or �schools’ and hardly ever used for actual resolution of legal cases.}

In his writings, Hamilton considered Al-hidaya to be more valuable than Al-fatawa al-'alamklrlyya for Islamic jurisprudence. For him, the latter was â€?a simple detail of cases and decisions, [which] would do little or nothing to­wards developing the principles of the Mussulman laws, and of course could afford but a very limited portion of instruction with respect to them’?⁸ He therefore created the dichotomy that Al-hidaya was appropriate to prepare a â€?judicial code’ as it was â€?digested into the form of a regular treatise’, whereas Al-fatawa al-'alamklrlyya was merely a â€?recital of decisions upon cases’. Over and above this judgement, Hamilton tended to undervalue the precise juridi­cal meaning of the term fatwa. Fatwa (plural, fatawa) had, in its original for­mulation, meant a responsa issued by a competent mufti or â€?jurisconsult’ against a juridical question that an individual asked. However, the term had undergone a significant shift within the history of premodern Islamic jurispru­dence from the classical period (c. 700s-1200s) to the post-classical period (c. 1200s-1800s). In post-classical Islamic law, the plural, fatawa had come to rep­resent a distinct genre of legal writing rather than a set of responsa issued by a jurisconsult. Rather than containing writs on ethico-legal solutions for correct behaviours and norms for the practicing Muslim individual, legal writing associated with the fatawa actually entailed the compilation of legal precepts derived from juridical treatises, their condensation, and, at times, their elabo­ration and clarification, which produced substantive rather than merely proce­dural law.^[1138] Hamilton could not have made any effort at examining this history since he was beholden to â€?doctrinal’ or â€?original’, and hence classical concep­tions within Islamic law. Though the question of the very nature of these texts, whether they should be considered â€?codes’ in their own term is a point I cannot treat here. These â€?compilations’ of legal precepts themselves do translate into substantive law but not necessarily, to use modern European legal vocabulary, positive law. But their digesting would present several difficulties, which in part lay at the tapering of such initiatives and indeed, virulent critiques by those with a purely administrative bent of mind.

Throughout early colonial discourse, the codification of laws was seen in the light of the Roman Digest, principally because forms of legal reasoning de­rived from Roman law were deemed logical rather than the elaborate com- mentarial practices within �native’ legal systems, which yielded few applicable rules. Of course, the Roman legal principle adopted by William Jones was based on the enumeration of all existing cases of real and possible cases ex­cluding purely logical and non-legal cases. This analysis went against classical Islamic law. Since Islamic law was casuistic and not dogmatic in nature, Mus­lim jurists did not suggest all possible legal cases unlike Republican and early- imperial Roman jurists who would have done so (before their opinions were selectively codified in the Corpus Iuris Civilis). Muslim jurists were prohibited from pronouncing opinion on possible cases which did not have any real-world existence as such. So, Islamic jurisprudence implied adjudicating on legal problems that had already occurred in the world. This confusion on the under­lying principles seems to be the reason why the fatawa texts, often considered case law in colonial and modern thinking may have neither been the enumera­tion of mere cases nor were they dogmatic principles of definition. Usul al- fiqh or the �principles of jurisprudence' contained the jurisprudential reason­ing necessary for deciding cases.^{[1139] [1140] Muslim jurists thus did not enumerate all possible but only real legal problems and solutions to them, which appeared as enumeration. However, these were not decided court-cases (since precedence did not have any enforceability) but agreed upon legal analysis based on legal events that had occurred in the past. The mode of temporality within such reasoning does not find echo in the strict classification scheme understood and devised by William Jones and Charles Hamilton for whom the dichotomy between Roman law and English common law, the former based on definite abstract definitions alongside propositions of real and possible legal events, and the latter based on the value of a past-decision as involving jurisprudential reasoning and hence entailing the creation of an argument in lieu of an ab­stract principle were the only available methods for establishing legal princi­ples. Opposed to this, Islamic law had a temporality of citation for casuistry and that of sharh or �commentary' and hashiya or �super-commentary' to re­member and memorize whose epistemology had been incomprehensible to colonial scholars. This hermeneutic practice is the reason for the proliferation of fatawa texts throughout Islamicate rule in the sub-continent, which have been often underestimated for their �repetitive' character.}

These forms of reasoning were not peculiar to colonial jurisprudence per­taining to Islamic law alone. Al-hidaya was interpreted as â€?code law'. Al-fatawa al-'alamklrlyya was supposed to be â€?case law' whereas Al-sirajcyya was used to establish â€?inheritance laws'. By contrast, for Hindus, Manusmrti represented â€?code law', whereas MitaksaraAⁱ- (especially, the second adhyaya or â€?chapter' on vyavahara or â€?commerce') was an equivalent to â€?case law', and Jimutavahana's Ddyabhdga equated, more or less, to â€?inheritance law'. Even from a superficial comparative perspective, there are clear similarities to see here in the colonial classification of Islamic and Hindu legal texts, without even addressing the question as to why these particular areas of law were most pressing to analo- gise and understand across cultures and religions.

Colonial jurists often understood Roman law to contain the principles of ius naturale in the Leibnizian sense of the term, as an interpretation of law follow­ing from principles in agreement. Even though Roman law was one particular kind of historical law, it was seen to have integrated the principles of natural law within the formal expression it found in the Institutes and the Digest. For Jones, applying ius gentium or the �law of the peoples' (Hindu or Muslim) cor­responded to the rational principle of ius naturale. The renewal of jurispruden­tial debates in the late nineteenth century was a recognition that Roman juris­prudence, understood as ordinary civil law, but founded on the nomothetic principles of natural law, could be more helpful in adjudicating cases, espe­cially given that Islamic law did not allow for precedent to constitute grounds for judgment. However, British jurists did not fear that their formulations in terms of Roman jurisprudential principles would override the explicit substan­tive law applicable to various religious subject-communities. Roman princi­ples were only expected to furnish �native laws' with a logical form.

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