[.] the interpretation must derive from the principles which are in agreement either with [the legislator’s] affects or with his objective or with his grounds (status rationis), or else from those principles which are in agreement with the state of the republic at that moment.
[.] The inÂterpretation of the law’s meaning derives from the legislator’s reasons, be they true or apparent.
G.w. Leibniz, �On the Interpretation, Foundations, Application and System of Laws’ (1679)[1114]
Codification and legislation were often conceived with a view to unifying and homogenising populations within particular territories and issued on the premise that norms and values were somehow shared.
Empires, in the modÂern sense, were not usually envisioned with the same view in mind, perceived, as they were, as political formations exercising hegemony over subjectÂpopulations through power and exploitation. British India, the subject of this chapter, is often represented in historiography as an imperial realm with an almost ungovernable diversity of ethnic, linguistic, and religious groups, as aKoninklijke brill nv, leiden, 2020 | Doi:io.ii63/978900443i249_oi7
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place unsuitable for uniform legal institutions.[1115] A vague conception of the â€?rule of law' is expected to have prevailed as far as public law is concerned, which worked, among other things, to conceal this diversity. Personal laws deÂtermining the private affairs of subject-populations, on the other hand, were ideologically understood by the late nineteenth century to have derived from premodern â€?customary’ practices. If, therefore, â€?legal universalism' became the overarching ambition of positivist nation-states during the nineteenth centuÂry, then â€?legal pluralism’ more certainly reflected the reality of empire over the same period. This paradox, which is to be detected in many strains of cosmoÂpolitan legal thought, is certainly encountered in a consideration of the forÂmation of early British colonial jurisprudence in the Indian sub-continent.
Tensions between metropolitan and colonial imaginations, very often reflectÂing the split between legal universalism and legal pluralism, played out in BritÂish India, as it became a key site for the transplantation of a diverse set of positive laws from European legal reasoning onto existing premodern systems of jurisprudence. The period from the 1770s to the 1820s was marked by an intense effort at resolving this tension in India, not so much for pragmatic purposes, but instead in the need for instituting various legal frameworks for â€?native’ subjects of diverse religious beliefs. While early colonial administraÂtors and jurists conceived of law as a realm of reason that had universal validÂity, existing systems of â€?native’ jurisprudence provided with often unclear and inchoate doctrines, commentaries, and opinions. For early British jurists and scholars, the aim was to derive a legal rule out of these diverse treatises, to find a coherent applicable position for courts, to offer principles and norms for the validation of their reason, and to articulate them within an economy of language that law alone knows. Recognising the plurality of existing laws was a self-evident gesture given the empirical variety of â€?native’ political, soÂcial and religious practices. Transplanting them onto European norms was difÂferent. This objective was conceived as an attempt to identify and apply reaÂson through the universal clarity and economy that European legal doctrine alone possessed.The life of colonial empires is entangled with law in ways quite different from modern state formation. The very condition of empire as the rule of a subject-population by an external constituted state invariably leads to the creaÂtion of hybrid legal regimes. In their early formations, property rights, civil and criminal laws, and public and private law in empires are sustained through the maintenance of pre-existing legal arrangements.[1116] In India, an alien â€?legal gramÂmar' was used to interpret and translate existing jurisprudences into positive laws.
Here, I analyze how legal transplantation occurs in exercising imperial power. The examination of law and Empire offers a window into the co-optation of social, economic, and political aspects of subjects' lives into hybrid legal procedures. Law and Empire is unlike explorations of violence and conquest that foreground the brute power of acquiring empire or the study of liberalism and utilitarianism that formed the bedrock of British imperial ideology.[1117] Law creeps in gradually at the interstices of the legal socialization of subjects and their legal consciousness in participating in the public sphere. Until the early nineteenth century, jurisprudence and legal doctrine remained at the core of law-making and codification. I explain how these forms of legal discourse were at the core of creating positive laws. They were the first order of constructing an imperial legal regime. This matrix of law-making within the nexus of power structures was the double-engine of the East India Company's sovereignty in Bengal.The long phase of British colonial production of law can be divided in three broad historical periods depending on the kind of legal thought deployed in thinking about the nature, function, and meaning of law. The first phase, broadly coinciding with early British colonial rule in Bengal (1770s-1820s), witÂnessed the formation of a juridical discourse through the confrontation with pre-colonial legal systems prevalent in India, both Hindu and Muslim. British officers and jurists employed by the East India Company were primarily conÂcerned with epistemological questions of producing various forms of codificaÂtion based on existing juridical texts in India. The second phase parallels with the emergence of stable administrative structures within the three PresidenÂcies of Bengal, Bombay, and Madras that were heavily focused on administraÂtive legislation and the creation of a quasi-state structure from the 1820s to the 1870s. This period saw the accumulation of cases at courts concerning matters of property, inheritance, marriage, etc., whether for Hindu or Muslim subjects.
By the 1870s, the elaboration of a wide range of statutory law through the Council of the Governor-General of India (known as the Imperial Legislative Council from 1861 onwards) began a third phase dominated by questions conÂcerning custom and the application of personal laws, especially as British InÂdian subjects pressed for greater say in the safe-guarding of their interests. With the enactment of a series of legislations in the 1870s, the epistemological role of pre-colonial discourses was weakened. By the end of the nineteenth century, a wide range of discussions that can be classified under the idea of â€?personal law' began to crystallise.The legal framework of colonial India has been subject to wide-ranging studies on regulations, enactments, and court proceedings. Substantial focus on kinds of â€?positive law’[1118] and their implementation has been deployed to unÂderstand policies and attitudes that gave rise to the governance of personal laws and customs of diverse religious communities that inhabited the region. Yet, the methods of jurisprudential reasoning that were forged by colonial thinkers in the late eighteenth and early nineteenth centuries in the wake of the East India Company’s rule in Bengal are usually marginalised, excepting their occasional appearance as a cursory appendage to the imposition of adÂministrative institutions and regulations.[1119] This silence is all the more striking in view of the seriousness with which company administrators themselves considered questions of this type. Indeed, by the 1830s, when many insiders within the East India Company reserved harsh and unsympathetic judgements for their predecessors, they were especially prone to criticising the incoherent nature of the â€?evolution of legal institutions’ in the region and the overemphaÂsis on drawing codifications from precolonial jurisprudence.
In the late eighteenth and the early nineteenth centuries, British orientalÂists, colonial officials, and jurists were engaged in philological efforts to exÂamine and test the propositions of premodern legal authorities.
This process was intended as a preliminary act in finding means for â€?digesting’ texts into applicable â€?codes’ of law. Equally, these premodern laws were expected to be the only valid laws since they had been applied by the previous sovereign power, Mughal rulers (1526-1857) from whom the Company acquired diwdnι or revenue collection rights in Bengal. Sir William Jones (1746-1794), Charles Hamilton (1753-1792), Henry Thomas Colebrooke (1765-1837),John Herbert Harington (1765-1828) are only the few notable scholars who were involved in enterprises of legal philology. Critically analysing activities of edition, translaÂtion, and intellectual disputes on Islamic law among British orientalists and administrators, this chapter will illustrate the fraught nature of deriving legal principles and broadening their applicability for the purpose of reorganising precolonial jurisprudential texts and practices into the technical vocabulary of European legal systems with which British administrators were likeliest to be familiar: the (Roman) civil law and the (English) common law. Before â€?custom’ became the fulcrum of understanding â€?native’ social and political culture by the late nineteenth century, the dominant loci of European understanding of â€?Hindu’ and â€?Muslim’ laws were textual in nature. Using unpublished manuÂscript sources allows us to navigate through philological techniques, offering a field of vision into the production of law. I argue that a distinct idiom of law as lex scripta or â€?written law’ dominated early colonial discourse and was disÂplaced by ideas of â€?custom’ and â€?customary law’ only in the mid-nineteenth century.1