ORIENTALIST PERSPECTIVE

12/04/2015

HOW WAS INDIA DIFFERENT FROM OTHER COLONIES?

Indigenous population was subjugated or massacred and replaced by
immigrants. So, establishing a British state system was relatively easy.
India seemsed to have a diverse population with pre-exiting
customs, rules and traditions that seemed to be binding and have the
force of law.
Also seemed to have certain legal texts on which they relied.

IDEOLOGICAL BASIS FOR DEVELOPMENT OF LEGAL STRUCTURE

Oriental Understanding
Nair Reading
Sought to disprove the western notion of India being a land of despots
with lack of rules etc.
View Orientalists sought to disprove: The despotic system of the
Mughals- system of arbitrary and unchecked power- notion of irrational
authority and not legality. Failed to realize the internal system of law
that existed.
Ideological justification for introduction of alien rule
Warren Hastings: encouraged a group of younger servants of the
company to devote themselves to the study of classical Indian
languages, such as Sanskrit, Persian and Arabic.
Current historical knowledge based on interpretations developed over
the last 200 years. Reconstructed history.
Reliance on scriptural texts- not acknowledging the customs that
existed in the fringes of the Indian society that were not encoded in
the texts or sometimes even when against it-non textual customs etc
Reliance on scriptural texts produced an understanding of Indian
society as overwhelmingly religious.
In this process, scripts were given a position of importance not enjoyed
before.
Patrons of the sastras
Dependence on natives to translate the scriptures. Intellectual
Brahmins whose monopoly of learning in a highly segmented society
had ensured that they were the sole authority conversant with the
textual traditions of India.
With the implementation of the court system, the relative autonomy of
the village assembly, caste tribunal, the serni that had long developed
before the advent of British rule was seriously undermined by the very
structure of the court system

The search for the earliest authoritative text and the most reliable
indigenous system of jurisprudence led the orientalists to the
dharamsastra which they were told by the Brahmin interpreters held
high prestige among the peoples of India and provided actual rules for
a wide variety of contexts. However as a teaching of righteousness it
certainly included law but was not co-extensive with it. Consisted of
precepts rather than legally binding statutes.
Sought to create a digest of legal code- for which 11 learned in the
shastras people chosen.
To provide a precise idea of the customs and manners which to their
great injury have long been misrepresented in the western world
Brahmanisation of Hindu law
MUSLIM LAW: traced to clarify administrative laws- Islamisization of
Muslim law
Post of kazis- performed judicial and non-judicial functions abolished in
1864; re-instated in 1880- confined to non judicial private functions.
Similar to the divided muslim schools of thought, an attempt was made
to divide the hindu schools of thought in to dyabhaga and mitakshara
Joe E Wilson Reading
Intellectual history presupposes the idea of a continuously evolving
intellectual tradition
British rule- domination of strangers
The british presupposed that there was no pre-exiting form of
administrative rule in India.
Sense of there being no precedents and the start of an absolutely new
rule of law
New form of authoritarian liberalism with new concepts of state and
society emerging
British officials began to see the colonial state as an actor with the
capacity to intervene upon the actions of Indians whose conduct was
determined by the autonomous economic, cultural or religious
regularities of social life.
Attempt to define the law that governed social conduct in textual rules:
one of the characteristics of early colonial India.
Attempt to govern property law- stems out of a desire to ensure stable
revenue collection
Pre-british- women substantial property holders post the death of their
husband; also possessed and managed property on the behalf of male
relatives.
There existed a concern to govern in accordance with the existing
customs and with what British officials perceived were the local
historical continuities of Indian society.

The digest was not an attempt to codify Hindu law btu its British
publishers meant it to be a compilation of existing usage, intending to
represent existing practice rather than define law. Purpose to ensure
that Indians were governed with those laws which the parties
themselves had never considered as the rules of their conduct and
engagements in civil lice. Rules had been sanctioned by the customary
interaction between individual and courts, not the authority of a
sovereign that established a textual law.

Debate regarding Muslim identity in South Asia