Translation of Laws
Updated: Jan 13
In the long work of cultural and military resistance in anti-colonial movements around the world, colonial law was rarely questioned. Very few rejected colonial law, and as a result when colonies became independent, in almost all cases, the legal system continued unchanged.
William Jones, an English philologist, orientalist, and jurist while serving as a judge of the high court at Calcutta became a student of ancient India and founded the Asiatic Society of Bengal. Jones is considered to be a central figure in India’s Colonial Legal History and when it comes to establishing English Law in India. He directly worked in the fields of law and literature, which in modern-day and age may seem unrelatable. He was both a poet and a lawyer, a translator, judge and jurist. His work in the fields was generally comparative, even before the comparative schools of these fields had been invented. He is, however, most popularly credited to the suggestion of the relations between Gothic, Celtic and Old Perisan, Latin, Greek and Sanskrit which were genealogically derived from a common root - which in 1813 was named Indo-European,
At the end of his life, his remarkable talent for languages had taught him Latin, Greek, French, Arabic, Hebrew, Turkish, Persian, and Sanskrit. Yet his understanding of these languages, as he describes it, was for ‘practical utility’ and that it had nothing to do with literary curiosities. He did not regard knowledge of languages as learning in its own right; rather the means of learning.
To give a brief history of British Justice in India, The East India company started to exercise certain judicial functions in India in the early 17th century. But it was not until the British EIC received the Mughul Diwani posts of Bengal, Orissa and Bihar in 1765 that they officially became responsible for administration justice in those territories. When Warren Hastings became the Governor of Bengal followed by the Governor General of India, he instituted a series of reforms designed to ‘rationalise’ the legal system that the EIC had taken over. Separate civil and criminal courts were created while the British administered the civil courts and the Mughals the criminal courts. The civil courts were organised to administer Hindu Laws to Hindus and Muslim laws to Mulims. While the Mughals administered criminal courts, they pronounced sentences on Muslim law only. Something that one can observe is the absence of enforcement of British laws in these courts. The English unanimously agreed on the ethical principle that the British common law should not be enforced on the Indian population. A reason could have been the fact that the English did not want to meddle in the affairs of justice among the Indians, and that they wanted to derive their authority and its legitimacy on these lands through these ancient laws, more importantly by retaining them. While at the same time they wanted to remain in control of the administration of justice in the land. The British did not hold a lot of trust on the local pundits. They felt that they were manipulative and they disliked being caught in the power of the natives ‘sly civility’.
Hence, Hastings commissioned translation of local Hindu and Muslim legal writings as well as compilations of digests of local laws. The first product of this initiative was Nathaniel Halhed’s ‘A Code of Gentoo Laws’ or ‘Ordinations of the Pundits’. This was translated from Perisan which was initially translated from Sanskrit. This code of law was drawn up by 11 Bengali pundits from 20 different sources in Sanskrit and then translated via Bengali into Persian, and later translated into English. Halhed was mocked for the inaccuracies that occurred in this triple translation of the codes, but however inaccurate, this was a very practical attempt as the code was used well into the 19th century. When Jones arrived in India in 1783 to be a judge in the Supreme Court, he had tall ambitions - he wished to affect the complete Justinian I ‘Corpus Juris Civilis’ (Body of Civil Law) or ‘Collection of Fundamental Works in Indian Jurisprudence’. His two translations - ‘The Mohammedan Law of Inheritance’ (1792) and the ‘Laws of Manu’ (1796) were published in his lifetime and were succeeded by his unfinished work completed by Judge H.T. Colebrooke, posthumously.
Jones believed that laws similar to languages shared some common primordial revelatory sources as he drew affiliation of the Laws of Manu to that of the Roman law. Jones asserted that if the native population believed that the laws and rules of the establishment had derived from divine powers, then the British Parliament which was in compliance with similar maxim should not interfere in the matters of the native’s laws and leave them on their own, at least on titles of contract and inheritance.
Jones put in effort to translate the Laws of Manu, which he believed was so comprehensive and exact, that it may be considered as the institute of Hindu law. He nevertheless continued to insist that the laws must be further systematised in manners suitable for the commercial age! In the opening remarks of the preface to his book Jones writes that the Laws are not transferable and translatable as they have to be in accordance with the culture and manners of the people who it is being prescribed to. This was however a very heated topic among the Imperial rulers. The conventional argument was that the law can be transferred by the right of conquest, (example of North America, which used the British law). However, others argued that this would not hold true to trade and administration colonies, like India, where there was an already established country, law and administration, and rather only to settler colonies like North America and Australia. This was unlike the French Colonies which transferred French Civil code oblivious of its indigenious system, whereas the British tried to use local laws as much as possible and tried to adopt them to British practices and to the structure of English Common Law. But one may ask why was Jones so insistent on cultural relativism at a time when the English rule of Irish was hardly respectful of local customs and religions? One reason might be that it was pragmatic- the British in India did not want to disturb the Indian population in order to maintain power ( also a reason why they did not allow Christian missionaries in India).
Law was foundational to the ideology and the practice of colonial rule. For the British in particular, it became the justification for colonial rule. Unlike the French who claimed to bring civilization to colonies, the English justified themselves by introducing the Rule of Law. The law, history, language, and texts of the Roman empire made the bulk of the education of the colonial administrators, conquered new territories and generally did not interfere with religion or laws of local inhabitants, and often incorporated those in their own system.
In the long work of cultural and military resistance in anti-colonial movements around the world, colonial law was rarely questioned. While writers rejected the coloniser's language and wrote in their own indigenous languages, politicians would reject colonial rule and offer nationalist alternatives. Very few rejected colonial law, with exception of Gandhi, who himself was a lawyer (Hind Swaraj) and as a result when colonies became independent, in almost all cases, the legal system continued unchanged.
In that sense, ironically, the British justification of colonial rule was de facto accepted and never questioned by post-colonial sovereign states. As a product of globalized imperialism, most countries of the world follow one of the two legal systems ( themselves interrelated) Roman Civil Law or British Common Law.