Dr.

Sreemoyee Sarkar
03.01.2020

Relevance of History to Law:

This course offers an excellent platform to the Law Students conforming to New
Education Policy, reflecting on the multidisciplinary teaching-learning process in the
HEIs involved. This 'Law and History' course caters for a collaborative platform to
share multidisciplinary experiences and raise the issues related to research and
planning, that legal scholars face and overcome, while dealing with their subject. The
umbrella term 'law and history' is not a new domain. It has been hitherto developed
by historians, political scientists and social scientists who are not lawyers, and also by
the lawyers and judges who have studied history as a compulsory discipline, but at the
school level. Hence, there is always a gap that is yet to be bridged; here a separate
exclusive practice and method of teaching are still evolving. The methodology is yet to
get its final shape.

History is a discipline that allows critical discussion and observation of the past events
of human history. Historians are engaged in laborious research on political, social,
cultural and economic aspects of the human past. Law is a body of commandments
that allows the rule of life, collective sanction of actions, and enforcement of penalties
to maintain order in society. Lawyers try to achieve equality and justice through
positive reinforcement, affecting human civilisation, civic well-being and politico-
economic and socio-cultural wellbeing. Both are relentless in their efforts to infer,
corroborate, cross-refer and interpret old facts from several angles as well as on new
lights to guide human conduct and acts of will. In that process history and law present
facts, analysis of events, debates and observation to the readers or the stakeholders,
allowing them to get some food for thought, study human behaviour, identify
challenges, execute a body of principles, channelise policy implementations and finally
maintaining the socio-political equilibrium.

Victorian historiography saw history as past politics and politics as present history.
Though this narrow definition regarding history is redundant today, we cannot deny
the fact that formulation of legal rule and formation of legal regime is indebted in the
political history of human civilisation. Following Seeley that “history without political
science has no fruit; political science without history has no root”, law and legal
institutions cannot evolve in isolation. Politico-legal evolution of human civilisation
needs to appreciate the nature of polity, development of modern democratic ideas like
 Dr. Sreemoyee Sarkar
03.01.2020
equality, liberty, secularism, human rights etc., patterns of administration of justice
and the nature of legal and judicial institutions. The lawyers do not have the time to
scout for historical facts, relevance and interpretations of every rule and structure in
the legal system. A rooted understanding of the historical essentials implicit in value
addition and cultural imperatives of the law learning would not only make the legal
education more nuanced but also cater to the development of national identity.

In independent India, legal education is determined by the character and policy of a

modern democratic state. However, Indian Personal Laws that govern marriage,
inheritance, adoption, faith, caste hierarchy, rituals etc. are governed by ancient or
medieval scriptures. Even the social reform legislation and activism are rooted in
colonial state formation, ‘white man’s burden’ and imperial benevolence. The Indian
Penal Code (IPC) is our direct link to our colonial past. The admissibility of pieces of
evidence in Indian courts retains the Indian Evidence Act, which was passed by
Imperial Legislative Council in 1872, under the British Raj. The Common Law System
has remained a canvas for Indian colonial hangover. Customary Laws are ingrained in
historical ethnic legacy and tribal community identity. – Henceforth, United Grants
Commission (UGC) and National Education Policy 2020 (NEP) reckon history as an
important subject for study in the training of a lawyer, in the law curriculum. The
existing Legal history curriculum offered by the Bar Council of India (BCI) dates back
to antiquity and offers the phases of Indian civilization, empires, dynasties,
socioeconomic movements and politico-legal paradigm shifts. Therefore, it is evident
that integrated legal education is multidisciplinary and history is catered as one of the
most important social science subjects. The idea is to use law for a harmonious
development of mankind, the history of law and legal institutions is to be linked.

In tune with that, the present Law and History course briefly refers to the
chronological evolution of polity and judicial systems in ancient and medieval India
and presents constitutional developments in India since the British period. It
articulates the politico-legal evolutionary process by which we, the citizens of India
reached unity, integrated under a uniform rule of law with our constitution as our
guiding force. It also set up the background of all the political activism, social
movements, economic plans etc. allowing us to have a system of parliamentary
democracy and a legislative, judicial and executive system with separation of power
and non-interference. Moreover, the course also covers watershed events of world
 Dr. Sreemoyee Sarkar
03.01.2020
history in a clear and concise style. Such an approach is consistent with the
development of the modern state, democracy, international relations, international
charters and covenants etc. underlining conflicts, the role of major international and
regional players, rise and fall of alternative forms of states, decolonisation in Asia and
Africa, North-South divide, pollution, population and poverty issues. Furthermore, an
acumen in history helps law to appreciate the avant l'heure socio-political theories like
postmodernism and feminism and incorporating them into legal theories. It is to be
mentioned that the Postmodern Jurisprudence and Feminist Jurisprudence have
already been accepted as the new direction to law-making and judicial decisions in the
Global North countries. L'avant garde administrative mechanisms post Information
and Communication Technology (ICT) make the job of practising lawyers and legal
academicians more thorough. Very recently, in India, various recent Social Reform
Legislation and Judicial decisions, addressing LGBTQ, coparcenary and social justice
issues have made more holistic and direct reference to history, traditions and customs
and relevant inspirations are drawn from cutting edge social theories embedded in
historical events of political and socio-economic importance. History helps law
students to realise the true nature of the past for a better understanding of the present-
day situations and functioning of the existing institutions. Students in this
interdisciplinary approach would find the system of cross-referencing easy to follow.
This also offers a problem-solving approach where controversial issues can be
highlighted and discussed with refreshing clarity and fairness, admitting the fallibility
of human judgement. It makes the study of law lively and comprehensible, with major
terms, themes and concepts carefully explained and developed in greater depth. There
is no denying the fact that the present legal systems, regimes and their development
stand on the past events, hence cannot be read and appreciated in isolation from the
past. Understanding of history is, thus, necessary to understand the law and to
appreciate the Constitution of India, unification and integration of India as a nation
and functioning of the national, regional and international organisation.

Some issues to be concerned with:

Law Students casually follow the general historical chronology, the basic Ancient-
Medieval-Modern loop of periodisation of World and Indian History sans its political,
social, economic and cultural details. It has been that majority of Law Students have
 Dr. Sreemoyee Sarkar
03.01.2020
no clear idea of chronological divisions of different dynasties, political phases or
authoritative discourses. E.g.

Example one:

Law Students link democracy and its evolution to ancient Greece, and Greek
illuminates like Socrates, Plato, Aristotle etc. But the question is, in which
Greece democracy flourished? Which Greeks contributed to the development of
the idea of Democracy? The Minoan? Mycenae? Macedonian? – Homer’s
Greece was hardly democratic! And so was Alexanders! It was Athens, one of
many Greek Polis, that enjoyed a brief phase of democracy, though women and
slaves were not considered citizens there; whereas contemporary other Greek
Polis, like Sparta, Corinth, Argos, Ionia, etc. were adhering to a different kind
of polity, altogether.

Example two:

Law Students know Kautilya wrote Arthashastra and help Chandragupta

Maurya to establish Mauryan Empire. They know Samudragupta is the
mightiest ruler of the Gupta Empire, which was founded by Chandragupta I.
However, the point missed is that there is a gap of almost 400 years in between
– enough to have a paradigm shift in the society, polity, economy, legal regime
and culture. Then how to connect Kautilya’s work with that of
Manavadharmashastra or Yagnavalka Smriti? It is to be noted that the latter
two works are authoritative legal texts since the Gupta period, and are still
relevant to study our Personal Laws.

~ The point to be noted is that the Legal History syllabus tends to focus on the legal
paradigm shifts, the political regimes are often missed and hide under general
assumptions. Such assumptions are the result of “Grand Narratives” which fails to
address historical foundation law.

While dealing with Hindu Personal Laws, studying the legal foundation of marriage,
inheritance, the position of women, slavery, caste hierarchy etc., all embedded in
'Ancient Indian History', only authoritative Brahmanical forms are generally
acknowledged. The Buddhist and Jain forms and sources of such legal aspects are
 Dr. Sreemoyee Sarkar
03.01.2020
underrepresentation. The orthodox and heterodox sects lived, exchanged dialogues,
influenced each other for centuries. Kautilya’s work, Manu’s work, Yagnavalka’s work,
was influence by Buddhism, Jainism, Charvaka, Ajivikas etc. – How are the Law
Students going to get a nuanced legal knowledge of India legal development, if they
omit these chunks?

Moreover, Law Students research Indian Personal Laws and link them with the
historical development of schools of law in India. The general assumption is that
Mitakshara and Dayabhaga developed in Ancient India and Hanafi or Ithna Asharia
were introduced since the Medieval period, which is inherently flawed. Mitakshara
and Dayabhaga were compiled in 12th c. AD and Hanafi Law was first introduced in the
Indian subcontinent 8th c. AD and Ithna Asharia in 13th c. AD. – Basically, both the
major schools of law existing and are relevant in today’s India, developed since the
mediaeval period.

In this respect, certain colonial hangover needs to be dismantled. – Social Reform

Movement of the 19th – 20th century is broadly understood in terms of eradication of
religious superstitions, Renaissance and modernization and equated with European
Renaissance and Reformation of 15th – 16th c. AD.

It is to be noted that, Social Reform was the result of the initiatives taken by a few
western educated, forward-looking urban, semi-urban elites or protagonists like
Rammohan Roy, Ishwarchandra Vidyasagar, Dayanand Saraswati, Jyotiba Phule etc.
who worked hand in hand with the British administration to come up with progressive
legislation.

But was it a reform for them? We must not forget, 'Reason' or 'Rationalism' is one of
the crucial yardsticks of Renaissance and Reformation. But Indian Social Reform
Movement of the 19th – 20th c. was hardly following ‘reason’ or ‘rationalism’. If it was
so, then our social reformers need not had to invalidate a social evil or justify
progressive legislation with the help of canonical texts themselves. For both, Banning
of Sati, 1829 and Widow Remarriage Act, 1856, we find Raja Rammohan Roy and
Ishwarchandra Vidyasagar digging out some more ancient scriptures to nullify the less
ancient ones.
 Dr. Sreemoyee Sarkar
03.01.2020
It must be noted that social reformers were apprehensive of the public rage due to
direct legal interference, whereas the British administration did not care for any public
opinion.

- This issue is directly linked with the colonial reading of Indian Legal History
and limits the horizon of law and history curricular objectives.

Hence, one can locate the root of the loggerhead in front of the modern judiciary. To
intervene in the traditional customs, however, vindictive and inequal they may be, the
Indian state tends to return to the "Sacred" 'Ancient Scriptures'! Sabarimala or Triple
Talaq issues are the most recent examples. Even after the decolonisation of seven
decades, we are unable to vindicate or oppose malpractices only with "Reason" and
"Rationalism".