LEGAL CULTURE AND LEGAL TRANSPLANTS
THE EVOLUTION OF THE INDIAN LEGAL SYSTEM
(WITH REFERENCE TO PRIVATE LAW)
J. CYRIL MATHIAS VINCENT
I. Introduction. II. Nature and Perspective of law in Ancient India. III. Judicial System in Medieval India. IV. British Period. V. Application of French Law: Pondicherry. VI. Portuguese Code: Goa. VII. Conclusion.
Legal culture and legal transplants
Legal transplants, as a concept, were designed by Alan Watson in the context of comparative law. Comparative law helps to gain insight into the question of legal transplants, i.e. the transplanting of law and legal institutions from one system to another. It would be pertinent to open with Montesquieu on comparative law, legal transplants and legal culture as follows: The political and civil laws of each nation should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.
They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.1
Advocate & Notary, 331, Mission Street, Pondicherry – 605 001 India, Lecturer (PartTime), LL.M., P.G.D.F.L., P.G.D.M.L.E – Dr. Ambedkar Government Law College, Pondicherry
1 Baron de Montesquieu, De l'esprit des lois (The Spirit of Laws), Translated by Thomas Nugent, J. V. Prichard (ed.), London, G. Bell & Sons, Ltd., 1914.
J. CYRIL MATHIAS VINCENT
Now let us proceed to understand the legal culture and legal transplants in the Indian legal history and system in the background of Montesquieu’s assessment.
The Republic of India, the land of the Mahatma, as we see it today, with a recorded history of over 5000 years of Hindu, Muslim and British periods with distinct legal systems,2 is a country with over 1.2 billion people and counting, with a majority Hindu population and a minority comprising of Muslims and Christians as well as others, each governed by their personal laws, based on religion, in matters relating to marriage, divorce, succession and other issues essentially within the domain of private law. India is a multicultural and multilingual predominantly agrarian society, with a hierarchical social structure and in an urban-rural manifestation with a strong inclination towards industrialisation. India is a puzzle and a paradox3 besides having the distinction of proving John Stuart Mills’s proposition that democracy is next to impossible in multi-ethnic societies and completely impossible in linguistically divided countries. It is a country with the world’s largest and most heterogeneous democracy and is the best example for ‘unity in diversity’.
It is a land of complex society because of its fabled capacity to absorb all manner of diversities in a setting with no parallel in history and a civilisation marked by complexity and diversity setting it apart from other major civilisations.
The legal culture and legal transplantation in India encompassing its laws, legal institutions and the legal system can be best...