English and French Approaches to Personal Laws in South India, 1700-1850 by Anselmo Francisco Trinidad Reyes, PhD Law Thesis, University of Cambridge, 1986
Introduction
The purpose of this thesis is to examine
the extent to which different legal traditions, common and civil, influence the
articulation of personal laws.
It contributes towards the study of
development of personal or minority law institutions by common or civil law
courts today.
This thesis finds that difference in
legal traditions did not play any major role in the articulation of personal
laws. They developed roughly in identical fashion aside from a few
discrepancies. For instance, both the English and the French applied the
prohibition of usury in India, but under different motives. The English because
of sensibilities of the Hindu, and the French because of their inspiration by
the canon law prohibition of usury.
Theoretical
Framework: Autonomy v Functionality of law
In The
Evolution of Law, Professor Watson argued that economic, social and
political conditions have no direct effect on the direction of legal change.
Lawyers in civil and common law tradition are by nature conservative. Hence, this
is the logic of legal tradition which ultimately determines the nature and
extent of legal change.
Dr Washbrook’s model of Anglo-Hindu law, articulated
in his famous article, ‘Law, State and
Agrarian Society in Colonial India’, is diametrically opposed to this view.
He argues that the needs of the East India Company had direct bearing on the
way the law was interpreted and developed in India.
Conclusion
English and French laws reached to the
same conclusion, though through different methods. Factors external to legal
traditions played a part in reducing discrepancies between the two legal
systems. The French relied upon English legal literature because of their
meagre financial resources. The English, on the other hand, relied upon Roman
law.
Selected
Excerpts
‘The plurality of legal sources implies a
degree of uncertainty within the legal system. That uncertainty gives the
judges room to manoeuvre in the articulation of legal principle.’ pp384-5
‘Textbook writers are less constrained
than judges in that they pick and choose themselves, from varied laws
available, the principles they wish to articulate. Judges must react to what is
offered them in argument by the parties to a dispute…’ p386
‘Finally, one cannot discount the
influence of similar economic, political and social pre-occupations in adjacent
settlements, leading to similar perceptions and solutions.’ p392
