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A14 Legal Flows

Transcultural Legal Flows in 18th and 19th Century South Asia: Changing Ideas and Practices of Law and Legitimation in Hindu Legal Cultures

Coordination: Axel Michaels

Abstract

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 aims 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 has 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 will be 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 serves 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 will analyze 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 is 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 will investigate 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 will be 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 will critically edit, translate and analyze 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 will be studied – a dramatically neglected field. Thereby, the subproject will not only shed light on the questions to what extent the Mulukī Ain had been implemented, but also on the intricate interplay between normative legal texts and legal practice in Nepal of the Rāṇa period.

 

Publications

Cubelic, Simon (2013): “The Theology of Debt in an Early Colonial dharmaśāstra Text: The Case of Sarvoru Śarman’s Vivādasārārṇava.” In: Hieron. Studies in Comparative Religion (Indian Religions Across Time and Space), edited by Dušan Deák, Vol. 2 (XI.), pp. 79-105.

Michaels, Axel (2014): “Heilige Ehefrauen und gefährliche Witwen – Der Status von Frauen im vormodernen Hindu-Recht.” In: Kokott, Juliane/Mager, Ute (eds.): Religionsfreiheit und Gleichberechtigung der Geschlechter. Spannungen und Konflikte. Tübingen: Mohr Siebeck, pp. 91-102.

– (2014a): “Untouchability and Tactility in Hindu Death Rituals.” In: Michaels, Axel/Wulf, Christoph (eds.): Exploring the Senses. London, New York & New Delhi: Routledge (South Asian and European Perspectives on Rituals and Performances; 3), pp. 206-220.

– (2013): “Von Offenbarung zum Ritual: Der Veda in der Überlieferung.” In: Kablitz, Andreas/Markschies, Christoph (eds.): Heilige Texte. Religion und Rationalität. 1. Geisteswissenschaftliches Colloquium 10-13. Dezember 2009 auf Schloss Genshagen. Berlin: de Gruyter, pp. 25-42.

 

Joint Conference Presentations

International Academy Conference “Studying Documents in Pre-modern South Asia: Problems and Perspectives”, Panel II: Legal Practice 1, 4-6 October 2015, Heidelberg Academy of Sciences and Humanities

– Axel Michaels: “Are Hindu Women/Widows Allowed to Establish a Śiva Temple? A Question Asked in a Letter to Jaṅga Bahādura Rāṇā dated 1863 CE”

– Rajan Khatiwoda: “Documented Evidence on the Implementation of the (Mulukī) Ain in mid-19th Century”

– Simon Cubelic: “The Legal Status of Gambling in Early 20th Century Nepal: The Case of the Annapūrṇā Temple in Asan, Kathmandu”

Annual Conference 2013, "Managing Empires. Cooperation, Competition, Conflict", 9-11 October, Cluster “Asia and Europe”, University of Heidelberg; Panel II a “Guilt, Empire and Law: Shifting Notions of Justice from the 18th to 20th century)”

– Axel Michaels/ Rajan Khatiwoda: "The Nepalese Muluki Ain of 1854 as a Transcultural Law Text"

– Simon Cubelic: "The Theology of Debt in an Early Colonial dharmaśāstra Text: The Case of Sarvoru Śarman’s Vivādasārārṇava"

 

Organized Workshops and Lectures

Lecture-cum-Workshop with Prof. Dr. Patrick Olivelle (University of Austin), “The Vedic Foundation of dharma: Epistemological Debates”, May 05-06 2014.

Lecture by Dr. Anagha Joshi, “Vyavahāra: An Ancient Indian Source of Legal History”, July 01 2014.

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Coordination

Axel Michaels

Group members

Simon Cubelic
Rajan Khatiwoda

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