Research Area A Legal Flows (A14)

Project Leader: Axel Michaels
Project Members: Simon Cubelic, Rajan Khatiwoda

Taking early colonial Bengal (1772-c.1798 CE) and the onset of the Rāṇā rule (1846-1870 CE) in Nepal as case studies, the project aimed at figuring out patterns of transformation in Hindu legal cultures in the light of the plural legal orders in early modern and early colonial South Asia. The project had three main objectives: First, to trace the potential influence of European legal concepts and forms of legitimation in different types of Hindu legal texts; second, to analyze the textual strategies employed by indigenous juridical intellectuals of the existing pre-colonial traditions of Hindu jurisprudence to cope with these new concepts and the changing legal constellations; third, to investigate the flows of legal concepts and practices from eastern India to Nepal. The project’s two main sources were Sarvoru Śarman’s Vivādasārārṇava (1789), a scholastic ethico-juridical treatises (dharmaśāstra) from eastern India as an example for a text composed in the trans-local idiom of Sanskrit, and the Nepalese Mulukī Ain, which served as an example for a vernacular project of codification.

Subproject 1 (Simon Cubelic):

The Resilience of the Sanskrit Legal Discourse (dharmaśāstra) in Early Colonial Bengal: The case of Sarvoru Śarman’s Vivādasārārṇava

Although British legal policies altered the administration of justice in eastern India fundamentally, the government’s need for Brahmanical informants and advisors for the daily legal practice and the larger projects of legal codification gave the Sanskrit dharmaśāstra discourse new stimuli and led to a renaissance in dharmaśāstra literature. On the basis of the Vivādasārāṇava (“Sea of the essence of litigation”), a work by the Maithila pandit Sarvoru Śarman from 1789, Subproject 1 analyzed the reconfigurations in the Sanskrit discourse on dharmaśāstra that resulted from the British presence in late 18th century Bengal. 

The Vivādasārārṇava is one of several Sanskrit legal treatises composed on request of the Bengal government in an endeavor to codify the norms of traditional Hindu jurisprudence and thus to create a code of Hindu law. It was commissioned by the Orientalist and judge at the Supreme Court in Calcutta, Sir William Jones (1746-1794), who envisaged it as a law code for Bihar. Since the Vivādasārārṇava remains unpublished and untranslated to this day, one of the main goals of the subproject was the preparation of an editio princeps and annotated translation of those chapters of the Vivādasārārṇava that deal with the law of obligations (esp. law of debt, pledges, sureties deposits and the law of sales). These chapters have been chosen not only due to the fact that debt is a corner stone of the Brahmanical legal ideology. Equally, the law of obligations has special importance for the construction of the colonial commercial order. Textual analysis has shown that besides minor deviations in content and style, the Vivādasārārṇava follows in structure and argumentation other texts of the same text type (the dharmanibandha genre); many parts are even compilations of existing commentaries and encyclopedias. Therefore, in its last phase the subproject investigated why the dharmaśāstric discourse remained resilient in early colonial Bengal and no reception of British legal concepts had taken place in the Vivādasārārṇava. To tackle this question, the Vivādasārārṇava was contextualized in larger debates on the ossification of Sanskrit knowledge systems in early modern South Asia, the formation of colonial knowledge and the ideological space in early colonial Bengal. 

Subproject 2 (Axel Michaels, Rajan Khatiwoda):

The Mulukī Ain of 1854: Legal Codification, Identity-Formation and State-Building in 19th century Nepal

Except for some edicts, inscriptions and paper documents all legal texts in Nepal until the mid-19th century were predominantly based on Hindu Law scriptures, particularly the dharmaśāstra. The Mulukī Ain of 1854, however, which was composed at the beginning of Rāṇa rule (when Jaṅga Bahādur Rāṇā became Prime Minister and de-facto ruler of the country), is a unique combination of customary and Hindu law with influences from British and Islamic law.

The Mulukī Ain of 1854 must be seen as a kind of constitution, a code of civil and penal regulations dealing with landownership, revenue administration, economic transactions, hereditary matters, marriage regulations and purity rules (particularly as regards commensality), caste restrictions, murder and killing (not only of humans but also of cows), thievery, witchcraft, slavery, etc. It was Jaṅga Bahādur Rāṇā’s objective to establish a national caste hierarchy in response to the diversity of Nepal’s ethno-cultural units, and to bring about a homogeneous legislation as well as uniform system of administration. Through such legal control over remote geographical areas and different ethnic groups, Rāṇā’s rule was sought to be strengthened and the state to be established. The Mulukī Ain of 1854 was also meant to reinforce Hindu law as opposed to British influence in India and to highlight and underline that Nepal was the only Hindu kingdom in the world.

The subproject critically edited, translated and analyzed the homicide chapter of the Mulukī Ain of 1854 and its amended version of 1870. Furthermore, relevant legal documents on the same subject from this period were studied – a dramatically neglected field. Thereby, the subproject not only shed light on the questions to what extent the Mulukī Ain had been implemented, but also shed light on the intricate interplay between normative legal texts and legal practice in Nepal of the Rāṇa period.