Codifying personal laws

Jurisprudence I Priytosh 1832

Table of Contents 1. Table of Cases.3 2. Objective and Methodology.3 3. What jurists think are the advantages/disadvantages of codification4 4. The Uniform Civil Code Debate9 5. Conclusion10 6. Bibliography11

Table of Cases 1. John Vallamattom v. Union of India AIR 2003 SC 2902 2. M.A. Khan v. Shah Bano Begum AIR 1985 SC 945 3. Ms. Jordan Diengdeh v. S. S. Chopra AIR 1985 SC 935 4. Sarla Mudgal v. Union of India AIR 1995 SC 1531 5. Valsamma Paul v. Cochin University AIR 1996 SC 1011

Objective and methodology

This research paper looks at codification of religious laws. Firstly, what jurists such as Bentham, Savigny, Maine and Austin think are the advantages/disadvantages of codification have been looked into. Then the said theorization has been applied in the context of the Uniform Civil Code (hereinafter referred to as UCC) debate. The methodology used is both analytical and descriptive. The scope of the paper is restricted to looking at codification in the context of religious laws and in particular UCC debate only. NLS Guide to Uniform Legal Citation is followed.

What jurists think are the advantages/disadvantages of codification Bentham He invented the term codification.1He believed in codification of law. He thought that by codification, advantage would be that it would give an opportunity to lay down a school for legislation.2 The question that arose was that which principles would govern the development of codes. The reason for this question was that the central theme of liberalism had been the extent of states interference in an individuals liberty. How would the legislature be guided if there would not be any natural rights? What if natural law itself was just a superstition? Bentham replied that it could be found out by combination of pleasure and pain which would make wrong and right depend on the result of an act.
3

He explicitly made most of the broader political

4

assumptions that eventually guided the Criminal law Commission in England at that time.

He

attempted to introduce codification into English law and proposed new pharmacopeias of agreements and deeds.5 He said that human ingeniousness could provide a clear meaning to lots of technical expressions which could apply to any possible circumstances or case. He wanted everyone to understand the exact nature of codification. He made an attempt to try and convince the judiciary of the various advantages that would come with the change to codification.6 He held that there were advantages to a moral philosophy which would be based on principles of codification and utility. He believed that codification had to be done because of its contribution towards general happiness and advantage of the society.7 He had no patience in his writings with the idea that judicial decisions were a proper source of law. He had his hope on the type of codification that Savigny scorned. He wrote that all the laws should be purposively, deliberately and rationally created by the legislature. As much as possible, the law must be expressed in

H.L.A. Hart Bentham on Legal Rights in Oxford Essays in Jurisprudence (second series), pp. 171, (A.W.B. Simpson ed.(Oxford: The Clarendon Press, 1973) 2 Juan Pablo Couyoumdjian, An Expert at Work: Revisiting Jeremy Benthams Proposals on Codification, Kykos, Vol. 61, Issue 4, Novemeber 2008, pp. 503 3 Mulford Q Sibley, Political ideas and ideologies-a history of political thought, (Delhi: Surjeet Publications, 1981), pp. 432 4 Lindsay Farmer, "Reconstructing the English Codification Debate," Law and History Review 18 (2000), pp. 403 5 Michael Lobban, How Benthamic Was the Criminal Law Commission? Law and History Review , Vol. 18, No. 2 (Summer, 2000), pp. 427 6 Henry Bellenden Ker, "English Conveyance," Edinburgh Review 35 (1821), pp. 195 7 David Lyons Rights, Claimants and Beneficiaries, American Philosophical Quarterly, Vol. 6 (1969), pp. 173

rational and systematically organized codes.8 According to him, there could not be human rights either before or independent of legal codification.9 He believed that codification would bring a theory of justice that would not let disadvantage to some be justified by advantage to others.10 He advocated universality as a way of codification. It would be an open mode according to him.11 What in cases where there was a question as to whether the rule had to be kept in statute state or common state? It had to be done to determine the utility of codification. Then the only question that had to be kept in mind was that between the two types of law, which one, considering their respective sources, generally speaking, provided the most reasonable promise of being most contributory towards the universal interest.12 In case of codification, a field of law little less extensive than the whole field of human action, covered with law all the time, was to receive total new covers altogether.13 The schooled codification would replace the unschooled codification present in establishment, sooner or later.14 While giving suggestions for codification, he said that it should be distinct by its greater clarity, accuracy and plainness of phraseology because it was meant to suit everyone, especially those who did not have much education.15 Bentham did not want to look upon codifications immediate advantage or disadvantage. He was more concerned with how codification will affect laws development in the long run. Bentham reflected on establishing such code. He did not believe that it could be fine-tuned immediately. He thought that it would be perfected gradually. He also thought that it would be done by a complete series of additions. The courts would have the power of filling up open places. The code would be completed by amendments in the statutes.16 Bentham argued that codification would propel law with so much clarity and simplicity that while an average judge would be unable not to understand it, an average citizen would be able to understand it. An advantage of codification would be implementation of a constitutional principle which would ensure that no

8 9

Roger Cotterrell, THE POLITICS OF JURISPRUDENCE, 1989, pp. 54 Mack, Mary Peter Jeremy Bentham: An Odyssey of Ideas 1748-179, London: Heinemann, 1962, pp. 134 10 Macquarie Rawls: The Original Position , Modern Political Theory, pp. 93 11 Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: No. VII 12 Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: No. VIII 13 Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: No. XII 14 Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: No. XIII 15 Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: No. XIV 16 State Statute and Common Law, Munroe Smith, Political Science Quarterly , Vol. 2, No. 1 (Mar 1887), pp. 105

person could be convicted for a crime until and unless it had been particularly mentioned in the statute. He argued that codification would be in the interest of administration of justice.17 He openly expressed his feelings that codification in colonies could have an effect on legal change back home.18 Maine He was clearly not against codification, at least not in simplification of existing laws. 19 He inclined towards codification because of the fear that if not done so, the law would favor only those social classes from which judges were recruited. His fundamental idea was that it was very much possible to build, on rational ground, a feasible code that would be able to see in advance and provide solutions to all the possible legal problems that may arise later.20 While codification was usually used in the sense of nation-building, according to Maine, it was also an international and imperial effort in which lawmakers situated in different geographical places could routinely cite each other's work.21 According to him, democracy commenced after the rule of despot sovereign ended and it led to codification.22He believed that codification would meet least resistance in colonies.23 He also believed that codification was something that divided the world into progressive and stationary societies.24 He said that it should not be supposed, even for a moment, that the refined considerations that were urged then in favor of what was called as codification, had any place or part in the changes that he had described.25 According to him, everywhere laws on tablets were

17

Here Lies the Common Law: Rest in Peace, H. R. Hahlo and L. C. B. Gower, The Modern Law Review , Vol. 30, No. 3 (May, 1967), pp. 241 18 Jeremy Bentham, "Essay on the Influence of Time and Place in Matters of Legislation" vol. 1 (1843), pp. 262 19 The Victorian achievement of Sir Henry Maine: a centennial reappraisal, Alan Diamond, pp. 22 20 The Codification of Law, Sigmund Samuel, The University of Toronto Law Journal , Vol. 5, No. 1 (1943), pp. 148-160 21 Codification and the Rule of Colonial Difference: Criminal Procedure in British India, Elizabeth Kolsky, Law and History Review , Vol. 23, No. 3 (Fall, 2005), pp. 631 22 Lectures on the early history of institutions, Henry Summer Maine, pp. 395 23 Jorg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law (Wiesbaden: Franz Steiner Verlag, 1983) and Singha, A Despotism of Law, pp.123 24 Alibis of empire: Henry Maine and the ends of liberal imperialism, Karuna Mantena, pp. 104 25 Ancient law, Henry Summer Maine, pp. 8

given preference over laws made by oligarchy. It was not because of its superiority but because of the fact that written words were better than memories of individuals.26 Austin His interest in codification was highly influenced by his mentor Bentham. He complained about the shenanigan done towards codification by exaggerating the degree of simple mindedness which could be given to law.27

He also supported codification and wrote a lot in his lectures about its merits and the absurdness of most of the objections made by Savigny to it. But, he also showed a cool realism about the various possibilities. He preferred to call judge made law as judiciary law. He recognized that laws made by judges were an important feature of any contemporary legal system. Even though it had many drawbacks, it had some advantages and most of the times; it was the only pragmatic method of legal development in a certain field and at a certain time. Codification looked good theoretically, but practically, it needed a lot of legislative skills, juristic knowledge and most importantly, political vision. What was thus needed was a view of law which could realistically accommodate all these aspects while presenting them inside the framework of a rational and centralized government structure of a modern state.28 Savigny In the early years of 19th century, Savigny wrote about disadvantages of codification.29 His treatises were founded based upon the idea that there would be a science of civil law and it would not be hampered by any national boundary.30 He held that codification not only obstructed natural growth of law but also gave birth to various problems like rigidity. He also pointed

26

Ancient law : Its connection with the early history of society and its relation to modern ideas, Henry Summer Maine, pp. xvi 27 Brougham MSS, University College, London, MS 18176 (undated) 28 Jurisprudence, Brougham MSS, 1911, vol. ii, pp. 654
29 30

The Codification of Law, Sigmund Samuel The University of Toronto Law Journal , Vol. 5, No. 1 (1943), pp. 148 Science Of Legal Method, Ernest Bruncken, The Boston Book Company, 1917, pp. 16

towards the fact that even historically absence of codification was not any issue. It was because laws were not codified in earlier societies.31 For him, codification was something that would take place in a legal system whose creative period was over and which had entered a process of decline. He admired common law, which gave judges the discretion to decide on legal principles, rather than worry about interpretation of codes.32 According to him, Romans were the best jurists, and modern laws job was to retrieve the glorious principles laid down by these thinkers.33 He focused on the inner logic of law, rather than its conformity with society.34 His discussions were primarily centered on advantages and disadvantages of codication of law.35 The logic to arranging the chapter in this order is to first show the open supporters, then cautious supporters and then the opponents of codification.

31

The Codification of Law, Aude Fiorini The International and Comparative Law Quarterly , Vol. 54, No. 2 (Apr 2005), pp. 499 32 Here Lies the Common Law: Rest in Peace, H. R. Hahlo and L. C. B. Gower The Modern Law Review , Vol. 30, No. 3 (May, 1967), pp. 253 33 Friedrich Nietzsche, Uses and Disadvantages of History for Life, R.J. Hollingdale, 1983, pp. 57 34 Richard A. Posner Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship U. Chi. L. Rev. (Summer 2000), pp. 573 35 Kenneth R. Simmonds The British Islands, appendix to United Kingdom International Encyclopedia of Comparative Law, Volume 1 (January 1975), pp. 40

The Uniform Civil Code Debate

It provides a wide overview of the laws on marriage, adoption, guardianship, maintenance etc. Introduction of UCC is a directive principle of State policy. 36 Pandit Nehru, while defending his decision of introducing uniform Hindu code instead of UCC had said that the country was not mature enough for it. Even after 41 years, the lawmakers were still not taking it out from that cold storage.37 There is no activity to suggest that any step has been taking for making a UCC.38While implementation of UCC was a matter of utmost emergence, its implementation may lead to communal discord, which would lead to more disadvantages, rather than advantages.39 One view supporting UCC is that if more than 80% of Indians (Hindus, Sikhs, Jains, and Buddhists etc) are already governed by codified laws, then what is the problem in bringing others too.40 The contested issue of minority rights under UCC has kept its importance due to the various Supreme Court judgements over last two decades. The Court had urged the Government to implement UCC for all its citizens.41 Even though the Court's remarks were of obiter dicta in nature, they helped in reviving the UCC debate and thus ended up further dividing the issue on communal lines.42 . The notion that our personal laws favor a particular religion further complicates the UCC debate.43

36 37 38 39 40

Article 44, Constitution of India Kuldip Singh, J in Sarla Mudgal v. Union of India (1995) 3 SCC 635 Chandrachud, CJ in Mohd Ahmed Khan v. Shah Bano Begum And Ors AIR 1985 SC 945

R.M. Sahai, J in Sarla Mudgal v. Union of India (1995) 3 SCC 635 Flavia Agnes, Family Law Volume 1, pp 148 (UCC: Contesting Claims and Communal Hues) OUP (2011) 41 Valsamma Paul v. Cochin University, AIR 1996 SC 1011 42 John Vallamattom v. Union of India, AIR 2003 SC 2902 43 Narayan, Uma (2009) "Basic Indian Legal Literature for Foreign Legal Professionals," International Journal of Legal Information: Vol. 37: Issue. 3, Article 8, pp. 683

Conclusion Codification of laws has always been a contentious issue. The case has especially been so in case of touchy issues like personal laws. Since a long time, a debate has been ongoing over whether codification should be there or not. However, of late, there seems to be a tilt in favor of codification. England seems to be one of the few major countries that do not have a written constitution. The English brought codification of laws in our country. It was based on the belief that written and compiled things were better than traditional customs and practices. So, as a result, traditional Indian customs were replaced by codified laws. However, areas such as personal laws were left without touching. It was because of their sensitivity. Also because British thought that interfering in religious practices was one of the causes of 1857 revolt. However, criminal law was codified with introduction of Indian Penal Code in 1860. Jurists such as Bentham, Maine, Savigny, Austin etc had differing views on codification. While some such as Bentham and Maine openly supported it; Austin advocated a cautious approach. Savigny however was totally against codification. The said theorization is very important in the context of UCC debate. The

advantages/disadvantages associated with codification are still relevant. If codification is not done, laws can be bent. So, a Hindu man will convert to Islam if he wants to marry someone else.44 On the other hand, if it is done, voices of minorities such as Muslims may be suppressed. Formulating UCC is a slippery slope argument. If today the government interferes in religious rights of its citizens, while calling itself a secular state, God only knows what all it may do tomorrow.

44

O. Chinnappa Reddy, J speaking for the Court in Ms. Jordan Diengdeh v. S. S. Chopra AIR 1985 SC 935

Bibliography 1. Hart, H.L.A. Bentham on Legal Rights, in Oxford Essays in Jurisprudence (second series), ed. A.W.B. Simpson (Oxford: The Clarendon Press, 1973) 2. Couyoumdjian, Juan Pablo, An Expert at Work: Revisiting Jeremy Benthams Proposals on Codification, Kykos, Vol. 61, Issue 4, Novemeber 2008, 3. Mulford Q Sibley, Political ideas and ideologies-a history of political thought, (Delhi: Surjeet Publications, 1981) 4. Lindsay Farmer, "Reconstructing the English Codification Debate," Law and History Review 18 (2000) 5. How Benthamic Was the Criminal Law Commission? Michael Lobban, Law and History Review , Vol. 18, No. 2 (Summer, 2000) 6. Henry Bellenden Ker, "English Conveyance," Edinburgh Review 35 (1821) 7. Lyons, David. Rights, Claimants and Beneficiaries, in American Philosophical Quarterly, Vol. 6 8. Roger Cotterrell, THE POLITICS OF JURISPRUDENCE, 1989 9. Mack, Mary Peter Jeremy Bentham: An Odyssey of Ideas 1748-179, London: Heinemann, 1962 10. Macquarie Rawls: The Original Position , Modern Political Theory 11. Jeremy Bentham, The Works of Jeremy Bentham, Vol. 4. Chapter: Nos. VII,VIII, XII, XIII, XIV 12. State Statute and Common Law, Munroe Smith, Political Science Quarterly , Vol. 2, No. 1 (Mar 1887) 13. Here Lies the Common Law: Rest in Peace, H. R. Hahlo and L. C. B. Gower, The Modern Law Review , Vol. 30, No. 3 (May, 1967) 14. Jeremy Bentham, "Essay on the Influence of Time and Place in Matters of Legislation" vol. 1 (1843) 15. The Codification of Law, Sigmund Samuel The University of Toronto Law Journal , Vol. 5, No. 1 (1943) 16. Science Of Legal Method, Ernest Bruncken, The Boston Book Company, 1917 17. The Codification of Law, Aude Fiorini The International and Comparative Law Quarterly , Vol. 54, No. 2 (Apr 2005)

18. Friedrich Nietzsche, Uses and Disadvantages of History for Life, R.J. Hollingdale, 1983 19. Richard A. Posner Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship U. Chi. L. Rev. (Summer 2000) 20. Kenneth R. Simmonds The British Islands, appendix to United Kingdom International Encyclopedia of Comparative Law, Volume 1 (January 1975) 21. The Victorian achievement of Sir Henry Maine: a centennial reappraisal, Alan Diamond 22. The Codification of Law, Sigmund Samuel, The University of Toronto Law Journal , Vol. 5, No. 1(1943) 23. Codification and the Rule of Colonial Difference: Criminal Procedure in British India, Elizabeth Kolsky, Law and History Review , Vol. 23, No. 3 (Fall, 2005) 24. Lectures on the early history of institutions, Henry Summer Maine 25. Jorg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law (Wiesbaden: Franz Steiner Verlag, 1983) and Singha, A Despotism of Law 26. Alibis of empire: Henry Maine and the ends of liberal imperialism, Karuna Mantena 27. Ancient law : Its connection with the early history of society and its relation to modern ideas, Henry Summer Maine 28. Jurisprudence, Brougham MSS, Vol. ii, University College, London, 1911 29. The Constitution of India) 30. www.manupatra.co.in 31. Flavia Agnes, Family Law Volume 1, (UCC: Contesting Claims and Communal Hues) OUP (2011) 32. Narayan, Uma (2009) "Basic Indian Legal Literature for Foreign Legal Professionals," International Journal of Legal Information: Vol. 37: Issue. 3, Article 8