A HISTORICAL ANALYSIS INTO THE CODIFICATION OF LAW (BASED ON THE LEGAL SYSTEM IN BRITISH INDIA IN THE 19TH AND THE 20TH CENTURIES)
By Joseph James Nedumpara, B.A. LLB. (Hons.), National University of Advanced Legal Studies. Email: josephjamesnedumpara2027@nuals.ac.in.
ABSTRACT
This paper aims to give a clear and concise account of the processes regarding codification. It aims to use the model of codification implemented in British India across the 19th and the 20th centuries. The paper is based on the principle of codification emerging from the legal maxim ‘ignorantia juris non-excusat’ which states that ignorance of the law is no excuse. The objective of the paper is to reiterate the importance of codification of law with regard to the evolution of law and the need for uniformity in law. The paper also provides an outlook with regard to the impact that the process of codification had in India over the years. Subsequently, it also provides a comprehensive review of the disadvantages of the codification and whether it outweighs the advantages provided by the same. Ultimately, the paper aims to establish the basic principle of codification and how it acted as a force of change in the field of law. The paper has been divided into five sections with Section I covering the introduction of the paper. Section II delves into the historical context of codification and the contributions of Jeremy Bentham in the subject. While Section III gives an overview of the Charter Acts implemented in British India, Section IV provides an observation of the impact and the disadvantages of the system of codification. Section V and Section VI deal with the conclusion and the bibliography of the paper respectively.
Keywords- Codification, Jeremy Bentham, Charter, South Asia, Executive, Legislature etc.
I. Introduction
Codification of law played a crucial role in attaining legal development. It involved the systematic compilation of legal principles to prepare comprehensive codes for a modern legal system. This aimed to introduce uniformity in the legal system as well as enhance accountability and transparency. Codification emerged as a by-product of social, political and economic reforms in the nineteenth and twentieth centuries in tune with the standards and norms of society.[1]
Prior to the codification of law, Indian law consisted of complex sets of Parliamentary Charters and Acts, Indian legislations, East India Company regulations, English common law, Hindu law, Muslim law and so on. Prominent legal scholars such as Macaulay and James Mill (1843) stated that the combination of a variety of different legal systems contributed to total disarray and no standard principle of law. They argued that only a codified system of law could usher in a stable and homogenous arbitration of law. In their words, the English legal system was considered to be apt, for it worked on the basis of a higher standard of morality, the existence of a rich legal history as well as the presence of a democratically elected Parliament.[2]
Over the years, it has been observed that codification facilitates legal reforms by providing a structured framework for reviewing existing laws and framing new laws. It helps lawmakers identify outdated and ineffective laws, repeal or amend them, in addition to incorporating new laws systematically and organically. In addition, it also helps streamline legal processes to provide precise and accurate sources of law for legal practitioners, judges and lawmakers. In the long run, this helps achieve increased efficiency and faster resolution of cases, thus meeting its aim of providing a uniform and coherent legal framework for establishing the principles of justice, equity and good conscience.[3]
II. Historical context of codification
In historical times, codification was carried out in the Ancient Greek and Roman civilizations. The Twelve Tables, promulgated around 450 BCE, is considered to be the first attempt to codify Roman law. Roman Emperors Caligula and Julius Caesar attempted to codify law but it failed to a large extent. During the Byzantine era, Emperor Justinian I established the Code of Justinian in his work Corpus Juris Civilis (Body of Civil Laws) in 534 A.D. It revised imperial laws, abolished obsolete laws and provided an array of legal articles and essays, thus serving as a basis of civil law systems. It consisted of four parts: institutes which provided a systematic analysis of Roman law; digest which was a compilation of excerpts of several legal writings, serving as a primary source of Roman law; codex which provided a comprehensive view of imperial enactments and laws issued by previous Roman emperors in addition to conforming existing legislation; and novels which revised imperial laws, abolished obsolete laws and introduced new laws.[4] Additionally, jurists such as Gaius and Ulpian codified and expounded upon a large collection of legal concepts. Thus, the codified Roman law was able to address across the spectrum of Roman society in the field of property rights, contracts, tort law and criminal offenses; laying a foundation for further legal development. The Corpus Juris Civilis sets the path for establishing civil law institutions across the world, including continental Europe, South America, Asia and Africa. Roman law continues to play a vital role in influencing contemporary legal thinking, legal education and practice, being one of the earliest legal systems.[5]
The French Revolution of 1789 ushered in an era of radical change marked by the overthrow of the monarchy, the establishment of republicanism and the subsequent pursuit of legal reform. The Code Civil des Français (Napoleonic Code) was drafted by a team of legal scholars led by Jean-Jacques Régis de Cambacérès and came into force in 1804 and laid emphasis on the ideals of liberty, equality, and justice, in addition to international law, human rights and civil law. Some historic anecdotes include the principle of legal equality, affirming the rights of individuals, regardless of social status or birth, along with property rights and family law reforms.[6]
Jeremy Bentham and the Codification of Law
The eminent British philosopher and legal scholar Jeremy Bentham (1748- 1832) played a key role in propagating the movement of codification of law through his works on legal reform, utilitarianism, and the principles of legislation.
Bentham argued that law should work for the common good and attain maximum happiness for the society as a whole. To achieve this, there is a need for law to be clear, consistent, rational, effective and legitimate. Only by carrying out such changes, could a just legal system be established.
Bentham vehemently criticized the use of vague, ambiguous and legal jargon in law papers arguing that it led to uncertainty, incoherence and long term decline of the subject. Rather, it should be brief, concise and to the point for the ease of the general public, lest it hinders the smooth and speedy enactment of justice. He called for law to be fair and impartial to ensure the equality of all citizens. In order to attain this, it would require the abrogation of arbitrary laws and the provision of unjust privileges.[7]
Bentham believed that the legal system existing during his time was a “patchwork of statutes, precedents, and customary laws” and hence insufficient to enact justice. Codification was a necessity to simplify law and to enhance accountability and transparency. His work, “Pannomial Fragments” emphasizing utilitarian principles, stood as a testament for carrying out codifications processes across various parts of the world including France, Germany and the United States. His utilitarian principles and principles of legislation continue to play a major role in determining and studying legal reform, legislative drafting and administration of justice.[8]
Conditions required for Codification of Law
The eminent legal scholar and Harvard Law School Dean Roscoe Pound (who also founded the Sociological School of Jurisprudence) laid down the following conditions with regards to codification.
1. Inability of pursuing juristic development with respect to existing legal materials, or the absence of legal material.
2. Unwieldy, uncertain and archaic character of the existing law.
3. The need for developing an efficient organ of legislation to establish a single, uniform law.[9]
III. Charter Acts
The Charter Acts were legislative enactments introduced and passed by the British Parliament, dealing with matters of administration and governance in British India. They played a major role in defining the terms and condition of the alliance existing between the British Crown and the East India Company and thus laid the groundwork for the legal and administrative structure for British rule.
The Charter of 1600 empowered the East India Company to issue and develop laws for the purpose of governance. By the 18th century, the Company established parallel law courts in the Presidencies and mofussils. The King’s courts came under the jurisdiction of English law and were headed by English judges and barristers. On the other hand, in the mofussil courts, Hindu and Muslim law were practised until the establishment of the High Courts in the respective provinces.[10]
Through the Charter of 1726, Mayor’s Courts were established in the Presidency towns of Madras, Bombay and Calcutta. It was the first instance of introduction of English law (both common law and statute law) in India. The Charter of 1753 established that the concept applicability of English law on Indians was dependent on whether the parties consented to be tried under the same.[11]
Under the watch of Governor-General Warren Hastings, the Plan of 1772 was formulated. It directed that “suits regarding inheritance, marriage and caste and other religious usages and institutions” Hindus and Muslims would come under the ambit of their respective laws. This was based on the principle of Roman law which “allowed their foreign subjects the free exercise of their own religion and personal laws”.[12]
The Regulating Act of 1773 established a Supreme Court in each Presidency with the Crown appointing judges to the same. Only judges possessing requisite experience of at least five years in the English bar could adjudicate and administer law. In 1781, the Act of Settlement came into force establishing the mofussil system which was to be independent of the Supreme Courts. This led to the emergence of the ‘dual system’ of law in India. The Regulation of 1781 drafted by Sir Elijah Impey laid down the principle of justice, equity and good conscience in all cases coming under the writ of company courts.[13]
In cases not coming under the jurisdiction of Hindu or Muslim Law (in matters such as succession), the courts tried to apply the law of the country of the parties before them. However, when it was found that it was not feasible to determine such cases on native law due to it being vague and arbitrary, it was decided to form Law Commissions to deliberate and discuss on the need for establishing substantive civil law (in accordance with English law principles) across British India. It would also attempt to avoid enacting Hindu or Muslim law as far as possible in the new system.[14]
The Charter Act of 1833 served as the stepping stone for establishing a uniform legal system in the then-British India. It led to the foundation of the first Law Commission under the chairmanship of Lord Macaulay. It was responsible for drafting important codes such as the Indian Penal Code, the Civil Procedure Code and the Indian Limitation Act. It also established the office of the Law Member in the Council of the Governor-General, who oversaw the process of codification of laws in India.[15]
The Charter Act of 1853 laid down a separate Legislative Department under the control of the Law Member, which was responsible for drafting and enacting laws. This led to the formation of the second Law Commission under which the Indian Penal Code and the Criminal Procedure Code were enacted. Subsequent Law Commissions were instituted in 1861 and 1879 under which the Indian Contract Act (1872), the Indian Evidence Act (1872), the Indian Divorce Act (1869) and the Transfer of Property Act (1882) came into force.
The Indian High Courts Act of 1861 established High Courts in the Presidency towns of Madras, Bombay and Calcutta and in the process abolished the King’s court, Mayor’s court and Mofussil court. Through this, the British government intended to integrate and consolidate English law in India and avoid any discrepancies or conflict of law with regard to different interpretation or application of law.[16]
Some of the other major changes which took place at the time include the creation of the pan-India Legislative Council. This act ended the dominance and sway which the provincial governments (in the Bengal, Bombay and Madras Presidencies) had enjoyed in matters of establishing, determining and interpreting law. It also laid the base for establishing administrative and government machinery in India. The office of the Governor-General of India was established with powers in matters of legislation, administration and execution of law; thus facilitating long term implementation of legal reforms in India.[17]
In 1937, the Federal Court of India was established in accordance with the Government of India Act 1935 (with its seat in Delhi). It was granted the powers of original, appellate and advisory jurisdiction. The right to appeal was entrusted with the Judicial Committee of the Privy Council in London. The Federal Court had exclusive original jurisdiction in any dispute between the Central Government and the Provinces. It remained in existence until the Supreme Court was established in 1950 with the enforcement of the Constitution.[18]
Some of the prominent practices implemented during codification were inspired by Jeremy Bentham’s works. They include-
The use of separate charters for classifying various types of offences.
Numbered paragraphs, with new paragraphs for different propositions.
Precise definition and consistent usage of legal terms.[19]
IV. Impact of codification
Codification of law had a significant impact in not only establishing law and order but also promoting uniformity, stability and consistency with the enactment of a uniform legal framework. By providing clarity, lucidity and transparency with regard to the interpretation, application and practice of law, a standard precedent has been established, thus reducing the chances of arbitrary judgement and application of law in a flawed manner. It has also helped avoid conflicts and disputes from arising by establishing a single, unified and uniform system of law across the country, irrespective of religion, caste, region, social strata and so forth. It can create rights and duties for people which may be perceived to be unjust or contrary to the rights and duties established previously, in addition to inducing complications.
Codification has played an important role in eliminating the excesses of judicial interpretation of law and power, lest it would lead to the establishment of wrong legal principles. Macaulay (1862) had established it strongly on the ground that “judge-made laws in a country having an absolute government and lax morality are of no use”. Sir James Stephen stated that only through legislation, can the fallacies not come into prevalence. Law solely to be interpreted on the discretion of the judge is similar to “putting out the fire by pouring oil upon it.”[20]
Eric Stokes stated that Lord Macaulay inculcated the principles of Bentham and Mill such as utilitarianism with regard to codification especially in the field of criminal law. Codifying the law would ensure efficient, swift and intelligible application of justice.
It had a profound impact on the emerging class of Indian legal professionals. Lawyers were trained in English law and familiarised with the new legal codes. These lawyers would go onto play a defining role in enacting justice and ensuring the progress and development of the Indian legal system.[21]
Codified laws (legislation) and case laws (precedents) go hand in hand with each other; with codification forming an essential component of the legislative system and case laws acting as a supplement to the enacted laws during dispute resolution.
The drafting of the Constitution of India is the prominent example of codification in India. The members of the Constituent Assembly of India were entrusted with the responsibility of drafting Constitution. B.R. Ambedkar, Rajendra Prasad and Pandit Jawaharlal Nehru played a crucial role in establishing the federal structure of the Constitution. On 26th November 1949, the Constitution was passed by the Constituent Assembly. It was subsequently adopted on 26th January 1950. The Indian Constitution continues to remain one of the most comprehensive legal documents not just in India but across the world, with it being the longest and most detailed Constitution in the world. The Constitution has played a significant role in establishing India as a torchbearer of democratic principles.[22]
Following independence, the Government of India continued to appoint Law Commissions to make “voluminous recommendations on various aspects of law in India”. The first Law Commission in independent India was established in 1955.
Drawbacks of codification
The process of codification can introduce rigidity in the legal system. Scholars have stated that codification “cramps and impedes the free and natural growth of law” as all scopes of interpretation get hindered afterwards. The only major changes that occur afterwards include amendments. This goes against the very strand of law which should be flexible and dynamic in nature, taking into account the nuances of contemporary society. Roscoe Pound determined that “law must be stable, yet it cannot stand still.” Cockburn propounds that while uncodified law may possess numerous demerits, it stands strong due to its elasticity enabling it to adapt to the changing times. Jurists like Pallock, Paton and Savigny have opposed codification of laws on the ground that it prevents natural growth and evolution of law. It also restricts the power and authority of the judiciary in determining the verdict of cases as law is already defined and interpreted by legislative authorities.[23]
Another major concern lies in the fact that it fails to understand the challenges faced by various strata of society. In the long term, it can create discord, strife and hostility among various sections of society, if the codified law fails to address and appreciate their convictions, aspirations and sentiments. This can directly act as a hindrance on individuality and liberty. Critics have argued that codification has fallen short of expectation in France and Germany. There have already emerged criticisms on the ground that codification has been largely carried out on the basis of western legal principles, thus side-lining traditional legal traditions and customs.[24]
Codification can also, inadvertently, expose the lacunae and shortcomings present in law. This could be taken advantage of by perpetrators of crime to evade the law through the means of loopholes. Savigny describes this phenomenon as “a code makes the defects of law obvious and thereby encourages the knaves to take advantage of them”. If not implemented carefully, it could usher in the concentration of legislative powers at the discretion of a few lawmakers or bureaucrats; thus leading to the imposition of unjust laws and large scale misrule.[25]
Some of the theories advocated by Jeremy Bentham were criticized as those failed to establish the need for ensuring justice and fairness, in addition to the need to protect and respect individual rights. It also failed to foresee the feasibility of establishing a comprehensive and systematic legal code, given the complexities and nuances in different nations with different cultural and social backgrounds. Additionally, it would be practically impossible to carry out large scale changes with regard to codification on the grounds of oversimplifying practical legal questions. Hence, it was considered to be too rigid and arbitrary in nature to be implemented in its full spirit.[26]
Some scholars have argued that Bentham's emphasis on utility and efficiency overlooks important considerations such as justice, fairness, and individual rights. Others have questioned the feasibility of achieving Bentham's vision of a comprehensive and systematic legal code, given the complexities and nuances of legal systems.
V. Conclusion
Codification helps bridge the gap between the arbitrary and rigid nature by bringing a pragmatic solution to the differing radical schools of thought. It helps acquaint the common man with the laws he/she is governed by, thus providing basic legal understanding and awareness to laymen.
The foundation of developing democratic legal institutions manifested itself in the form of debates revolving around the Code of Criminal Procedure. Codification was described as a process to create a science of legislations.
In recent years, greater emphasis has been laid on the codification of personal laws to address issues regarding marriage, divorce, inheritance, and succession. With regard to the same, acts including the Hindu Marriage Act, the Muslim Personal Law (Shariat) Application Act and the Special Marriage Act have been enacted; thus, reiterating the need for codifying laws on the principles of equality and justice. However, challenges remain due to the complex, diverse and heterogenous culture prevailing in India; with the presence of different personal laws adding to the difficulty of attaining a complete integration of the legal system.[27]
The process of codification is a perpetual, never-ending, dynamic process, shaped by historical, cultural and legal anecdotes. Time has shown that codification has helped achieve progress in protecting civil rights and legal liberties. Codification of law will continue to play a vital role in maintaining and advancing equality, justice and the rule of law.
It can be aptly concluded in the words of Salmond (1911): “The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process known since Bentham as codification.”[28]
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[1] Cole, S.D., (1926) ‘Codification of International Law.’ Transactions of the Grotius Society, 12(1), pp. 49–62.
[2] Prashad, G. (1964). ‘Law and Colonialism’. The Indian Journal of Political Science, 25(3/4), pp. 76–84.
[3] Ibid.
[4] Stein, P., (1993). ‘Justinian’s Compilation: Classical Legacy and Legal Source’. Tul. Eur. & Civ. LF, 8, pp. 1-15.
[5] Kessler, R.A. (1959), ‘On the Value of Roman Law for Twentieth Century American Law Students’, Journal of Legal Education, 12(3), pp. 377-395.
[6] Morandieré, L.F.J. (1948). ‘The Reform of the French Civil Code’. U. Pa. L. Rev., 97(1), pp. 1-21
[7] Judson, F.N., (1910) ‘A Modern View of the Law Reforms of Jeremy Bentham.’ Columbia Law Review, 10(1), pp. 41–54.
[8] Alfange Jr, D., (1969). ‘Jeremy Bentham and the Codification of Law’. Cornell L. Rev., 55(1), pp. 58-77.
[9] Patterson, E.W., (1960). ‘Roscoe Pound on Jurisprudence’. Columbia Law Review, 60(8), pp. 1124-1132.
[10] Minattur, J., (1973) ‘Legal Systems in British Indian Settlements.’ Journal of the Indian Law Institute, 15(4), pp. 582–593.
[11] Allott, A.N. (1957) ‘The authority of English decisions in colonial courts’, Journal of African Law, 1(1), pp. 23–39.
[12] Patra, A.C., (1963) ‘Landmarks in the Constitutional History of India.’ Journal of the Indian Law Institute, 5(1), pp. 81–131.
[13] Supra note 11.
[14] Kolsky, E. (2015) ‘The colonial rule of law and the legal regime of exception: Frontier “Fanaticism” and State Violence in British India’, The American Historical Review, 120(4), pp. 1218–1246.
[15] Kolsky, E. (2005) ‘Codification and the rule of colonial difference: Criminal procedure in British India’, Law and History Review, 23(3), pp. 631–683.
[16] Rao, T.S.R. (1958) ‘Conflict of laws in India’, Zeitschrift Für Ausländisches Und Internationales Privatrecht, 23(2), pp. 259-279.
[17] Supra note 15.
[18] Gadbois, G.H., (1963). ‘Evolution of the Federal Court of India: An Historical Footnote’. Journal of the Indian Law Institute, 5(1), pp. 19-46.
[19] Supra note 7.
[20] Skuy, D. (1998) ‘Macaulay and the Indian Penal Code of 1862: The myth of the inherent superiority and modernity of the English legal system compared to India’s legal system in the nineteenth century’, Modern Asian Studies, 32(3), pp. 513–557.
[21] Arnot, R.H., (1907) ‘The Judicial System of the British Colonies.’ The Yale Law Journal, 16(7), pp. 504–513.
[22] Raju, K.H.C., (1991) ‘Dr. B. R. Ambedkar and Making of the Constitution: A Case Study of Indian Federalism.’ The Indian Journal of Political Science, 52(2), pp. 153–164.
[23] North, P.M., (1982) ‘Problems of Codification in a Common Law System.’ The Rabel Journal of Comparative and International Private Law, 46(3), pp. 490–508.
[24] Supra note 5.
[25] Supra note 23.
[26] Supra note 6.
[27] Newbigin, E. (2009). ‘The codification of personal law and secular citizenship: Revisiting the history of law reform in late colonial India’. The Indian Economic & Social History Review, 46(1), pp. 83-104.
[28] DiFilippo, T., (1972). ‘Jeremy Bentham's Codification Proposals and Some Remarks on Their Place in History’. Buff. L. Rev., 22, pp.239–251.