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Law and Society

Law and Society explores the relationship between judicial institutions and social relations, focusing mainly on the law of property. In Bengal as elsewhere, judicial authority has always been a fundamental aspect of political power. By submitting to the authority of a judge, petitioners are acknowledging the sovereign power of a higher authority and subordinating himself to his idioms of political and judicial authority. Yet only rarely have Bengal's rulers possessed the absolute material resources and cultural authority to validate their claim to judicial power. As a result, Bengal has always been a land in which a variety of overlapping judicial bodies claimed jurisdiction over the same territory or population.

The institutional form in which this legal pluralism occurred has varied widely over the last two millennia. Early medieval Bengal possessed a range of institutions which could be used to negotiate and arbitrate disputes over resources, and to define and punish criminal behaviour. During the Gupta period (4th-6th century) the most important institution was perhaps the adhikarana, a body consisting of an imperial officer and representatives of various guilds. Certainly the role which merchants played in the adhikarana suggests the importance of commerce in maintaining the authority of the Gupta state. Copper inscriptions detailing land transactions indicate that the purchase and transfer of land was also recorded in the adhikarana. The adhikarana represented a number of different corporate and sectional interests. The corporate structure of the body suggests that its function was to arbitrate rather than to impose a settlement on opposing claimants.

Rural magnates rose in power and wealth as the Gupta Empire fragmented in the early medieval period. These magnates constructed their own political realms, which sometimes co-opted and sometimes resisted the authority of the united, imperial realm. The contest between the centre and regional rulers occurred as a conflict over judicial power and authority as much as anything else. Rulers incorporated independent landed magnates into Bengal's various post-Gupta regimes by making grants of land, and devolving administrative functions and formal judicial powers. In each case, central authorities attempted to co-opt the cultural, military and political authority of other smaller rulers. In the pre-Mughal period these rulers were often warlords who migrated from Northern India to Bengal.

A similar process continued in Sultanate (13th-16th century) and Mughal (16th-18th century) Bengal. In theory Bengal's sultanate and Mughal rulers possessed absolute authority. The authority of the ruler was to be used to cultivate the virtue and welfare of their subjects. A political theorist of the sultanate period Fakhr al-Din Razi (d. 1209) put it, 'the world is a garden, whose gardener is the state; the state is the sultan whose guardian is the law'. Statements such as these do not allow much room for the negotiation of power with other repositories of political authority such as local chieftains in Bengal. In practice however, negotiation was essential for Bengal's new Muslim monarchs to establish their own political authority.

Throughout the late medieval and early modern period two central sources of judicial authority co-existed, the (often Hindu) local or regional raja and the Muslim sultanate or Mughal ruler in the provincial capital. The play of power between the two often occurred within the contestation and negotiation of judicial authority. For the raja, the adjudication of disputes was an essential component of his attempt to maintain the stability and hierarchy of the local social order, the samaja under his authority. Many officials and landholders from beyond the Sultanate or Mughal court, including many non-Muslims, were incorporated into the Islamic polity. As a result, during the late fourteenth century sufis such as Maulana Muzaffar Shams Balkhi complained that 'unbelievers' were able to 'exercise their power and authority' over Muslims, including the authority to arbitrate disputes. Yet it was practically impossible for Bengal's sultanate and Mughal rulers to secure their position without acknowledging the existing authority of a diverse variety of local rulers.

Early modern Bengal possessed a patchwork quilt of overlapping judicial and political authorities, each of which enunciated and defined law with its own distinctive voice. The fluid contested social fabric of Bengal allowed the development of a rich variety of jurisprudential schools. Theoretically, qazi (Muslim judge) was agent in the sultanate and the Mughal regime. But in each town Islamic judicial elite possessed an authority independent of the state. Unlike the actual power which the Sultan or diwan wielded, the qazi's position depended on an authority which was extra-territorial; it was rooted in his ability to interpret the precepts of Islamic law. The qazi's expertise in Islamic law gave him a local legitimacy that was quite separate from the sultanate or Mughal ruler's chain of command. In practice therefore qazis represented an alternative site of judicial authority to adjudicate and arbitrate disputes, register land transactions, and punish criminal offences. Occasionally local and regional Muslim judges provided an effective, independent check on the decisions of the sovereign.

From the twelfth century onwards, Bengal developed its own distinctive style of Hindu inheritance law, centred on Jimutavahana's commentary, the Dayabhaga. In the following centuries, this tradition developed in tols at seats of learning such as Vikramapura and Chandradvipa (now Barisal district), along with the more famous seat of learning at Nadia (now in West Bengal). Hindu jurisprudence was more closely connected to local centres of political authority. Bengal's centres of Hindu scholarship were dependent on the patronage of local Hindu princes. Muslim qazis' perceptions of themselves as members of a global Muslim community allowed them to root their legal discourse within the search for universal juridical values. In contrast, Hindu lawyers attempted to balance the need to preserve the structure of an idealised dharmik social order with actual social practice. 'Custom' (charitra or byabahara) had a place within early modern Hindu jurisprudence which does not seem to have found in Islamic law.

In the multi-centred judicial environment of early modern Bengal, rulers often attempted to encourage the arbitration of disputes and disagreements between parties rather than enforce a settlement. Instead of imposing his will on reluctant disputants, the sovereign frequently encouraged the writing of a document detailing an agreed settlement or razinama. The terms of the agreement would be agreed upon by both the parties once they appointed one or more prominent individuals to negotiate between them. In a similar way, trade disputes were often adjudicated by mercantile corporations, which usually had the political clout to arbitrate independently on the structures of local and regional kingship. In each case, if the agreement was broken the wronged party could appeal for redress to the ruler or corporation. But such agreements also relied on the very public nature of the arbitrative process. Despite incurring the wrath of the sovereign, early modern Bangali arbitration was based on the belief that the breaker of a settlement would also suffer a loss of prestige in the eyes of the local community. Conflict after the breakdown of an agreement could escalate rapidly, and sometimes result in violence. A culture which insisted on arbitration and the resolution of a dispute by mutual consent was a consequence of the very high social and political costs of disagreement.

The mid-eighteenth century saw a transfer of authority from the Mughal nizamat to the English east india company. During the last three decades of the eighteenth century, the Company attempted to impose a very different set of judicial institutions on Bengal. Like the Mughals, the British possessed an absolutist ideological conception of their authority. The British believed that they alone possessed the ability to dispense justice. But unlike the Mughals, the Company's civil servants were rarely willing to acknowledge that absolute authority had to be tempered by a policy of incorporating and negotiating with rival landholders and petty kings. For example, Mughal and nizamat rulers have enabled zamindars to negotiate the rate at which they paid revenue to the government, and so allowed them to negotiate the terms of their incorporation into the state. The Company suspended this negotiation by fixing the land revenue permanently in 1793. The British attempted to remove the judicial and magisterial prerogatives of landholders. In their place, the Company established its own series of judicial institutions which were intended to try all forms of property and personal disputes. With initiatives such as these, Bengal's complex quilt of political institutions was made subordinate to the absolute authority of the East India Company. Before the establishment of British rule, landholders possessed political power in their localities. In the eyes of the British, however, Bengal's political potentates were seen as mere proprietors.

British juridical absolutism, which one scholar describes as 'a despotism of law', can be seen as a consequence of two developments. Firstly, the late eighteenth century saw the development of a new conception of the absolute sovereignty of the British parliament. As Professor PJ Marshall suggests, British political figures increasingly saw the property rights of people throughout the British Empire 'from an imperial perspective' and attempted to regulate property across the globe. Secondly, eighteenth-century Britons tended to stereotype the subcontinent as an oriental despotism with all power and authority resting in one absolute ruler. During the late eighteenth century, Company officials felt that they had inherited the supposedly 'despotic' authority of the Mughal empire. These two sets of ideas converged to produce a conception of the East India Company's sole, undivided and absolute authority in Bengal.

During the late eighteenth century, the absolute authority of the Company regime was intended to protect and secure the diverse property rights of Bengal's landholders. But the Acts of a British legislature or Company council were unable to turn local political potentates into mere proprietors. In attempting to adjudicate local property disputes British judicial officials were forced to take sides in a variety of local political disputes. The Company servants involved themselves in the continual negotiation of power between each square of Bengal's patchwork quilt of political and economic institutions. So, British courts were utilised by different communities in order to establish control over religious institutions. They were used by different branches of a ruling dynasty in order to acquire control of a landed estate. The courts were also used as an instrument in the struggle between zamindars and subordinate lease-holders. During the 1790s and 1800s, taluqdars, haoladars and other tenure-holders were relatively successful at using the local British judge to enforce their 'rights' against a superior landholder, often to the dismay of the local revenue collector, whose only concern was with the regular payment of land revenue by the supposed 'proprietor of the soil'. As a result of these developments by 1801, civil cases filed before the judge, 'native judicial commissioners' in Rangpur district, for example, exceeded 27,000. The backlog of litigation became enormous. A decade later, in January 1812, original and appeal cases numbering 1,39,271 were pending throughout the whole of Bengal.

By the first decade of the nineteenth century, a clear contradiction existed between the Company's absolute, centralist conception of its own juridical power and the countless local disputes which the British were forced to adjudicate. The contradiction between central authority and local mediation was resolved in two ways. First of all, the British partially conceded a portion of their authority to local landed magnates. With the infamous panjam and haftam regulations (Regulation VII of 1799 and V of 1807), landholders were given the power to distrain the crops of subordinate tenants almost at will. As a consequence, zamindars were given a powerful weapon in their struggle with subordinate tenure-holders which allowed them to increase rent and consolidate their position in the locality. Landholders were also given increasing power to arbitrate local property disputes. Enactments such as these effectively created spheres of autonomy into which the British 'rule of law' could not intervene.

Secondly, the British attempted to centralize the rules used to decide civil litigation in Bengal. During the late eighteenth century, officials decided disputes by attempting to discover what they believed to be 'the custom of the country'. Courts rarely used the scriptural authorities of Muslim and Hindu jurisprudence as religious texts played very little role in local judicial decision-making. The Company's regulations themselves merely established the institutional mechanism to decide disputes. Without any strict rules to define it, 'custom' was always a malleable concept. Discovering the 'custom of the country' required detailed, expensive local investigation, and was open to interpretation by litigants in countless different ways.

Instead of using custom British officials began to establish centralised, written rules to decide cases during the first three decades of the nineteenth century. One aspect of this was the 'codification' and textualisation of law in Bengal. 'Digests' of law, consisting of a distillation of case law and a summary of opinions from various textual authorities began to be produced from the mid 1790s. Sir William Jones and HT Colebrooke's Digest of Hindu Law, completed in 1794 and published in 1795, had rarely been used in court. But works produced between 1805 and 1830, such as JH Harington's Elementary Analysis of the Laws and Regulations, which offered an outline of Muslim criminal law, and WH Macnaghten's the Principles and Precedents (of both Hindu and Muslim law) were used extensively by judicial officials. From the 1830s onwards, the British tried to introduce codes of law in a more formal sense, replacing the complex mix of custom, equity and statute which ruled juridical practice beforehand with a single set of rules. The Law Commission submitted a draft penal code to the government in 1837, with two more Law Commissions (1861 and 1879) appointed to consider the framing of uniform, codified civil laws based on English law. Codes of law were enacted covering evidence, civil procedure, criminal law and contract, amongst other things, between 1853 and 1882. Alongside these developments, the administration of justice itself became far more centralised with the establishment of the Calcutta High Court in 1862.

The process of textualisation and codification tended to centralize judicial interpretation in the hands of British officials and their elite Indian informants in Calcutta. The rise of the legal profession in Bengal accompanied this process of centralisation. Previously vakils or pleaders had been employed as permanent retainers of a particular landed estate, and represented their employer to the full range of judicial and political authorities. During the first half of the nineteenth century, litigation began to be carried out by Indian lawyers and legal officials whose primary allegiance was to the legal profession and to a specific court, not to one individual. Education was a key component in the production of the colonial legal elite of the legal profession, as the Company insisted that legal officials needed to be proficient in the English language and to produce a certificate from a government college before gaining employment in the courts.

A number of Britons and Indians opposed this transformation in the substance of law in Bengal. In 1822 Raja rammohun roy complained that the new attempt to found inheritance law, in particular the inheritance rights of women, on codified texts was 'a violation of the charter of justice, by which the administration of the existing law of the people in such matters was secured to the inhabitants of this country'. Two years later Courtney Smith, a British judge, condemned the 'crude pedants and unlicked bear-whelps' which the Company's schools produced, arguing that Indian judicial officials needed to acquaint themselves with usages, not abstract, theoretical juridical doctrines found in books. But the centralisation of judicial administration was a crucial element within the consolidation of British imperial authority in Bengal. Complaints of this kind went unheeded.

The relationship between law and society transformed in Bengal during the first half of the nineteenth century. As the means of judicial decision-making was centralised into the hands of European officials and a professional cadre of Indian judicial officials at the centre, an enormous gap opened up between legal practice and the social dynamics of Bengal, a gap which remains in Bangladesh today. Bengal before the British was a society in which a variety of competing juridical institutions vied for authority, each immersed within local idioms of political power and economic well-being. In the century after 1765, Bengal witnessed the emergence of a centralised judicial establishment which was utterly incapable of living up to its own image of absolute power. The consequence was the emergence of a conception of law as something 'outside' the day-to-day lives of Bengal's rural inhabitants. Going to court was merely the last throw of the dice once alternative, non-official strategies of dispute resolution failed.

The combination of centralisation, and the concession of greater autonomy to elite social groups such as zamindars also had the effect of consolidating the more 'traditional' elements within Bangali society. Bengal's legal system was one factor which contributed to the emergence of a rentier class of landholders, able to maintain their wealth without substantial capital investment in agriculture. By the 1860s and 1870s, the role of these zamindars began to decline. But in many areas of Bengal they were replaced by an equally conservative strata of privileged raiyat, often termed jotdars.

These processes had a similarly 'traditionalising' impact on the relationship between women and the legal system. Before 1800 the heterogeneity of South Asian jurisprudence had allowed elite women to develop fairly effective strategies to hold and inherit property. These strategies became less successful once the British and their allies began to produce uniform, definitive accounts of 'traditional' Hindu and Muslim law. The rapid decline in the number of female landholders during the nineteenth century can partially be attributed to this cause.

To a large extent, the legal institutions of Bangladesh remain those which were put in place during the latter half of the nineteenth century, in the era of the 1861 High Courts Act and the codification of law. Certainly there have been important transformations in Bengal jurisprudence over the last 140 years. But, with the power of the colonial state weakening as a consequence of political opposition and economic depression, the early twentieth century was certainly not a period of legal reform. The Pakistan period saw a number of legal milestones. Most notable were the 1961 muslim family law ordinance which modified 'traditional' Muslim marriage law, and the abolition of zamindari system replacing the large landholder by jotdars and other wealthy raiyats. Since 1971, a number of important instances of social legislation and judicial reinterpretation have occurred, most notably the 1980 Dowry Prohibition Act, the judicial outlawing of polygamy, and the Suppression of Violence Against Women and Children Act.

What is far more important, however, has been the continual discrepancy between judge-made law and local 'legal' practice in villages and elsewhere. Just like colonial and Pakistani institutions before them, the state in Bangladesh has failed to 'live up to [its] projected image of centralised power'. In the sphere of inheritance law, for example, one finds that women actually control and possess far less land than they are entitled to as per law of the courts. In a number of villages studied by Md. Mahbubar Rahman and Willem van Schendel during the 1990s, in practice women were largely debarred from possessing land but merely had an inheritable right to maintenance. This local law was administered by an informal village hierarchy. According to the rules of inheritance used by Bangladesh's civil courts, daughters and other women are entitled to inherit a portion of the estate. To use the vocabulary adopted by Rahman and van Schendel 'lawyer's law' differed considerably from 'living law'. The judicial system is unable to impose its own authority on the actuality of local practice.

Over the last two centuries, various forms of states have attempted to realise their pretension to possess absolute judicial power, and to extripate other forms of juridical organisation. Yet in the main they have been unsuccessful, and have only widened the gap between state-made law, and the regulation of persons and property by local social hierarchies. [Jon E Wilson]