Codification of Law in India

code of Law in IndiaDouglas C. North in his book Institutions, Institutional Change, and Economic Performance negotiation close the importance of constitutions, and how these de thats influence economic performance. Institutions include both intimate rules1 ex compoundable code of conducts, traditions and systems and orb rules like constitution, legal philosophys and quality rights2. pack gener exclusively(a) toldy pay attention moreover to the form-only(prenominal) rules that embody in the conjunction and the light rules dont get the attention and importance that they should get. The British in India did the same thing. But, North argues that these informal rules atomic number 18 overly of the essence(p) and they systema skeletale the future of the economy. Institutions as defined by North be humanly devised constraints that construction economic, social and political interaction.3Entry of British in IndiaWhen the British came to India in 1600s they saw a society which was non governed by each formal equitys like the Bible (which was considered to be a divine pedigree of index, rightfulness and rules for them) which governed the side of meat exactly a heterogeneous society where every(prenominal) individual pay off outed his or her own custom and tradition which were varied. thither was no uniformity in the utilisations that were followed by the people. The concept of formal fairness like cosmos governed by a uniform system of rectitude or a constitution was an alien concept to the Indians. Kautilya in Arthashastra recognizes innovation of quatern offsets of fair play which are dharma (scriptures), vyavahara (mutual agreement), charitra (local custom) and rajashasana (state decree).4Kautilya says that these were in asc demolitioning station and that the state order prevailed above all the scriptures and customary practices, when a conflict would arise. Similarly level(p) Ashoka and Akbar developed rightfulnesss which were to be followed by the subjects except they never mandated the people to follow these constabularys unless their usage were such so as to lead to communal disharmony. Thus, we watch that the Indians had complete freedom to practice whatever norm, practice, custom etc. that they cheerful as long as harmony was maintained.When the British stayed here as traders they did non interfere into these local customs and practices and were least concerned about it. When they came to the sub-continent the political power was weak as the power of the Mughal Empire in the center was crippling, thus making it easier for the British to promote political maintain and make a strong foothold in India. The side of meat did gain the central control further their control would only be recognize by the people if they would resolve disputes, which encouraged the British to develop judicial system in India. The law provided the British nonhing less than a comprehensive ideology through w hich to rule.5The ideology which was used by the British was as Edward Said talks about in his raceway geological fault book Orientalism.6They do the Indians believe that they were barbaric, uncivilized, in darkness and backward and it was their (British) responsibility to make the Indians civilized, modern, and progressive and lead them enlightenment. at that place was cultural hegemony which existed and the British believed that they could repair the Indian situation. The image of the cruel and superstitious natives who needed Christian repurchase was deally constructed by the Evangelists.7Informal Institutions in early India and fashion dependencyInitially the British tried administering the practices, norms, culture and traditions that were prevalent in the Indian society, but as on that meridian was lack of uniformity as every unmatched followed various customs and traditions the British found the administration to be difficult. James mill around and Thomas Babing ton Macaulay precious to codify the laws in India and wanted to conduct an audition and see how systematize laws worked. They wanted to make the laws base on the capitulum of utilitarianism and wanted a code which was symmetric in all separate8and which would bring in uniformity. Thus, began Indias shift from an informal institution where interactions between parties were establish on social norms and customs to formal institutions like systematize laws.The natives in India for centuries had been following their own local customs and usages.9The Indians had been travelling on a row where they were not mandated to follow a particular law or textual matterbook edition and were free to acquire the norm or custom that they wanted to follow. Since thither were no restrictions on them the Indians had complete freedom. The Indians had been on this path for a long meter and thus in that location was path dependency.10This means that since the Indians had been traversing this pa th for a long time taking an alternative path would be difficult and there would be a high price for ever-ever-changing the path. An separate definition of path dependency is that which states that history matters and this affects the possible outcomes in future.11The shift in path in future pop offs difficult because of the swop magnitude returns or positive feedback12that is received because it has been cosmos followed for a long menses of time by large number of people.With the idea of the British to bring in formal rules and to codify laws there was a shift in the institution from informal to formal. Shift in the criminal sphere was not difficult as criminal law was universal and was to be utilise universally on everyone. Warren battle of Hastings agreed with this code, but objected to the codification of the in-person laws of the Indians as he knew it was dangerous and wanted to stay remote from it.13Since the British could not impose their ideology14Hastings decided that there would be Indian formals like pandits and maulvis who would help the English judge rejoinder decision. Since, the English judges were unaware of the Indian jurisprudence, this help by the officials was congenital for them to decide upon cases.Reasons leading to shift in institution from informal to formalThe court wanted specific solutions to complex issues. The colonizers did not pay both importance to the existing diversity and would ask questions of general rule and the pandits would service keeping dharma in mind.15The answers which the British got were never in tandem with the questions asked, as the pandits and maulvis had never faced such a situation before and the answers differed from one pandit to the other and these answers were and accordingly accepted as general rule of law and were imposed upon the people. Different pandits came to opposite conclusions even when the circumstances were same because they would worry to different texts or scriptures as there was complete freedom to choose the custom that people wanted to. For example if an Englishman would ask how to turn into a Hindoo, the method or the procedure told by different pandits would be different as there was no one particular way of doing it. Thus, there was no uniformity.The pandits in India were not an organization like the Pope of the perform. The pandits did not interfere in the political sphere at all contrasted the church where the Pope would coronate the King and then only could he rule. There were varied customs prevailing and every pandit would interpret the text in a different way as there was no single exposition like there was of the Bible. A wellspring expert pandit would be in a position to cite numerous versus on particular topics or only those that made a particular point useful to a specific scenario or indeed he power express his own opinion on the matter16but these differed greatly from each other. The customs would change from place to plac e and the British were unconnected at this dissimilar existence of customs. Thus, there was no uniformity and consequence in the decisions given by the pandits and the maulvis. This led to a mistrust of them by the British and hence they decided to codify the law. Another reason for codification of the laws were that they believed that there was popular demand for such changes and the popular demand fit in to them consisted of assembly of elite Hindis who were a part of the British administrative structure itself.17Organizations acting as change agentsNorth in his book in addition talks about the existence of organizations which are group of individuals bound unitedly for purpose to achieve accusatives18and are created to take advantage of the opportunities19that the existing institution provides them and then either work within the existing institutions or change and alter the existing institutions, depending on the objective to be achieved and hence the organizations which are created out of the existing choice set act as major(ip) agents of institutional change.20When the British established that administration in India was difficult because of the non-existence of any certain law they finally took the bold step of codifying the personal laws as well. Hastings had wanted to stay away from personal laws as he realized that marriage in India was tied to religion and they had decided on staying neutral towards the native religious affairs and secondly because they thinking that there interference might lead to communal violence.21But the assistance of the pandits and maulvis was today looked at with mistrust and thus, Hastings selected 11 pandits to codify laws which would then be followed by everyone.The pandits came up with Vivadarnavasetu which literally means a bridge on the ocean of disputes was the original Sanskrit version. Later on these were translated in English (with which also there were problems which will be dealt ahead) under the lif t of A recruit of Gentoo Laws. The meaning was totally transformed and scripts like code and law which were never a part of the original text were now decriminalized.22 and so again William Jones appointed Jagannath Tarkapanchanan, the legendary scholar on all branches of the Dharmasastras to compile Vivadabhangarnava which literally means a break wave on the oceans of disputes and it was later translated into English under the title A centralise of Hindi Law. Again the importation of British concepts of digest and law were used to legitimize the transformation of the prescriptive guidelines in the Sastras as legal rules to be administered by the court.23Initially the British gave regard to the customs that were ubiquitous while codifying the laws,24but even then they realized that there were uncertainties and they could not trust the Indian officials as there was a possibility of them defrauding the company for their own benefits.25Thus, legion(predicate) English jurists like William Jones, Colebrooke decided to translate the texts into English so that the judges could use it. But the translations were done by European scholars. When translations were done the innate meanings got lost and the entire meaning and its essence could not be mute and translated, as there are certain treatments the exact word for which might not exist in the other language. For example the word dharma which means the all en-compassing duty to do the right thing at the right time, at any point of ones life, was simply translated as law.26The English jurists who translated the texts into English were the organization which objected to the existing informal institution. This organization had the common objective (having political control over India) was the ease of administering laws. The goal which the organization seek to achieve of uniformity and stability could not be achieved with the existing institution of informal norms, code of conduct and behavior they had to get in middling aboutthing more(prenominal) concrete like formal laws so that there could be inference and uniformity. This organization emerged because of the existing choice set which was available to them because of the informal rules in place and they took advantage of the position that they had attained and acted as change agents or as North would call them entrepreneurs in economic terms and gave India codified laws.Importance of informal normsNorth in his book also states that operate from informal to formal institutions is a dull process.27Although formal rules may change overnight due to political or judicial decisions, informal constraints corporeal in customs are much more impervious to deliberate policies. These cultural constraints not only connect the past with the present and the future, but provide us with a key to explaining the path of historical change.28In India if we see the move from informal non-codified laws to formal codified laws was a slow process as the British initially tried to administer the informal rules only, but when the ending was not to their satisfaction they decided to move towards codified formal rules. But, if seen from another perspective then we see that the change was all of a sudden as the British imposed these codified laws on the Indians when for a long time they had been following a different path altogether. This imposition of the laws on the Indians could not percolate into the society and could not become a part of the society easily as these were imposed from external and were not from within the society itself and sometimes were not in amity with the existing norms.Change from informal to formal institution has a woo Transaction CostNow this institutional change from informal to formal could not be without any represent. There was a cost which the society had to bear, but this cost was not taken into consideration when the organization was taking the decision of altering the institutions according to its own benefit. The cost borne was the change of more customs that were existing, loss of many customs as they were not codified, halt of identities, creeping in of foreign ideologies and biasness and remnant of plurality of customs, traditions and indigenous practices. This cost is known as transaction cost as it is the cost of changing the path upon which one has been travelling for a long period of time (non-codified laws) to a new path (codified laws). Transaction cost is a result of the institutional change, but this transaction cost also could submit brought in Indians a feeling of maven which had not existed before within a group and also led to the abolishment of many evil practices that were being near by the people.Codification of Hindu law was a thumping task because there was no existence of anything called the Hindu law (its existence was presumed by the British keeping in mind the bible which was their source of law) prior to the colonial era, and secondly beca use what the British mistook to be the source of Hindu law was so vast that they were unable to codify everything as there were various norms being followed in the society which did not come from some ancient scriptures or religious texts. In England there existed a solid society with everyone following what the church told them and as already mentioned above the church was an organization and hence their interpretations of the bible (which was the divine source of their law) were also same. So when the English came to India they came with a framework in their mind that, there would be a homogenous society and that this homogenous society would have a divine source of law. But, the British were in for a surprise when they came to India. They realized that a heterogeneous society with various different practices existed in India and they failed to find a divine source of law but were adamant on finding a source of law something which was akin to the cannon law and hence in their des perate attempt to find a source, William Jones who was to then translate the sources of law in to English considered Manusmriti which were the Memories of Manu to be the source of law and the translation came to be known as the Institutes of Hindu Law.29India does not have a cannon law which legitimizes a uniform code for all the diverse groups of the familiarity but, because of this arbitrariness the British started patronizing education and interpretation of the shastras for their own.30The British eyeshot that they would derive the law from the texts and scriptures but this task was cumbersome and impractical. They were influenced a lot by the legal theory especially that of Jeremy Bentham.31Bentham believed in the principle of utilitarianism. Utilitarianism means greatest good for the maximum number of people. In such a scenario it is the minority that is left hand out and their needs are not taken into consideration but while codifying these laws the opposite happened. Codi fication of these laws was done by few pandits who had their own interpretation of the texts and it was done on the demand of a few people with whom the British interacted. Thus, what got codified were just a few traditions and customs and a large number of them were left out and hence got lost.There was strong impact when colonial law encountered the personal law. It led to customs like belongings rights which are important for the development of any society being securely altered in Bengal and rights of women to hold property was also substantially changed.32There were 2 schools of intellection that existed in India Mitakshara and Dayabhag with regards to property rights. Mitakshara was followed everywhere except in Bengal where Dayabhag school of thought was followed. When codification was done by William Jones he was influenced by the Dayabhag schooling and hence, to the highest degree of their beliefs got codified and beliefs of the other school were left out leading to t he termination of many customs. The loss of customs was not only because they were not codified, but also because the judges refused to recognize the existing norms if they did not have any spiritual authority. Customs that the people followed were something which had been developed by the community on their own and had no spiritual backing and hence they were considered invalid by the courts. When there was a conflict between customary law and the official law, then the customary law had to be established and then only would the customary law prevail. But the standard set for proving customary law was so high that hardly any law could meet the requirements and belatedly all of them withered away.33The judges also had the power to strike checkmate the law on the basis that they considered it to be against public policy. There was no definition given as to what was against public policy and this gave unfettered power in the hands of the judge to decide which laws were valid and wh ich were against public policy.34There was freezing of identities as Hindus were now considered to be a larger group of people and were considered to be a community while on the other hand the Muslims were considered outsiders.35This also happened because in courts the judges had to apply Hindu law to the Hindus and the Muslim laws to the Muslims so now the people had to decide which religious community they belonged to, whereas initially there was no such pressure on them to account themselves with a particular religion and were free to choose any custom of any religion they wanted to follow. The translation of the code was done by English jurists who were trained in English laws and customs. So when they translated the law they could not keep by their biasness and facets of English law crept in. Thus, the new law which came into being comprised of first, the interpretation of the laws by the judges, in the form of case laws acting as precedents and secondly, through codification of the scriptures. They also used the principles of justice, equity and good moral sense while deciding the cases. This led to the emergence of Anglo Hindu law.36As Anderson in Islamic Law says37the construction of Hindu law in India by the British colonial governing and the British effort to find Hindu lawassumed that the Hindu law would be found thoughdeduction from precedent and a focus on cases. Hindu law gradually came to be based on previous judges decisions, not on Hindu sacred texts. These texts themselves were mistranslated and selected according to the conceptions of English civil law, so that Hindu law was ultimately defined in terms of European conceptions of Hindu law.But the transaction cost borne also helped as this death of plurality led to removal of many practices that were evil and were rampantly practiced in the society. Various acts were passed which made the social condition offend, like the Sati commandment of 1829, the Caste Disabilities Removal Act 1850, the Hindu Women Remarriage Act 1856, and Child trades union Restraint Act of 1929. Removal of Sati was an important step as this practice was highly followed in Bengal. Sati was so prevalent in Bengal because they followed the Dayabhag School of thought which gave property rights even to women. These acts helped improve the social conditions in the society at least on paper if not reality, as there is distinguish to show that sati was more widely practiced after the regulation that came into being. There were retentionists as well who were unhappy with such codes, and in many areas the customs were not changed in accordance to the code and they still continued as a stroke of pen cannot completely do away with or abolish customs that had been being followed for centuries. This could have brought in more unity as now the Indians had something to identify themselves with, which were common to all the people.North says in his book that the resultant path of institutional change is sh aped by38The lock in that comes from the symbiotic relationship between institutions and the organizations that have evolved as a consequence of the incentive structure provided by those institutions the new path of codified laws that India started walking on after codification was traversed on for a long time and the path became locked in history and thus, gave India codified laws which exist even today. This codification could only take place because the existing institutions did not provide for the political unity of India which gave British the incentive to codify the laws utilise their political power andThe feedback process by which human being observe and react to change in the opportunity set keeping aside the costs borne because of codification, from British point of view this process of institutional change was beneficial as it helped in smoother governance of the country and better control over the people.Bengal as an illustrationNow lets look at the existence of thi s framework through example of Bengal. During this time Bengal comprised of Bihar as well and was named Bengal presidency. The populace of Bihar consisted of Muslims as well and not only Hindus. As already mentioned above there were two schools of thoughts that existed. star was called the Mitakshara which was followed in all move of India and the second being Dayabhaga which was followed in Bengal only. There was difference in the two Schools because they had different rules which governed them. for example in Mitakshara the son had an interest in the property as soon as he was born, while in Dayabhaga School the son got the property after the death of the father.According to the Dayabhag School the women had substantial property rights. In some cases they managed the property on behalf of the male members and on other occasions they would hold property in their own name after the death of the husband. During the British era in the 19th atomic number 6 the amount of property tha t would be held by the women substantially reduced than what is was earlier. Their property was vulnerable to competing claims of the local powerful men. This change also happened because in England the British women did not have property rights and when the British saw this new sentiment in India while codifying the laws they brought this change and the right of women to hold property was substantially taken away.Warren Hastings had been the governor general of Bengal but towards the end due to financial instability he was replaced by Lord Cornwallis. One central aim of this project was to restore the landlord and property rights that existed a propagation before.39Lord Cornwallis planned to give a constitution which would protect the personal property of the individual and thus help in the prosperity of the state.40Thus, he created new offices and courts to collect more revenue which was the aim of the British. When the British came to India they came with their English imprint s of how property was related to politics. So when they came to India lord Cornwallis could not disassociate this notion and believed that there would be the existence of same relation even in Bengal.41Using their pre-colonial notion of the existing offices and without bothering to understand the existing social institutions they aloof(p) Indian officials from important posts and made them mere informants or agents. During Warren Hastings stay he gave importance to the customs and usage of the local area, but when Lord Cornwallis came he thought that the information about the customs could be gained from the inhabitants of the place and thus abolished the office qanungu42who was the district officer and would be a ready source of information regarding the existing customs. But Lord Cornwallis removed the office thinking that the post had deep rooted immersion in the historical continuities of a particular society made them easily calumniate and there were chances of them defraudi ng the Company with the landlords.43This essentially happened because the British wanted to maintain their supremacy and did not want to lose their political power in India, but while being insecure about the hold of power politically they forgot to give due importance to the existing social institutions which would have made their rule easy. The constitution given by Lord Cornwallis had a paradox.44It was based on the Burkean philosophies of trust and customary practice, but sadly, when it came to Bengal both were nonexistent as there was severance and a distance existed between the world of government and the relations it governed.45The judges in the court had officials that would assist them, but then the British started mistrusting these officials who were either pandits or maulvis. Thus William Jones wanted a text which could help the judges decide cases and their dependence on these officials reduced. The book was a translation of Sanskrit commentaries on contracts, property a nd inheritance laws written by steamroller Tarkapanchanam who was the most respected jurist in India in the 18th century. This Digest was not to codify the laws but to compile all the usage so that administration would be easy and not an attempt to codify laws. The text was meant to supplement the decision taken by th