Anglo-Hindu Law - History and Development - Phase 1: Rise of Court Pandits in India - Colebrooke's Two Schools of Law

Colebrooke's Two Schools of Law

Colebrooke was appointed to the East India Company in 1782. He was very skilled at Sanskrit and developed his own conception of the nature and function of Hindu law. Colebrooke led the English in fixing an interpretation of variation in legal texts and this eventually became standard in the British courts in India. He suggested that regional variations or differences existed in India, leading to various interpretations of the same text.

The term "school of law" as it applies to legal opinions of India was first used by Colebrooke. Colebrooke established only two schools that were marked by a vital difference of opinion: those who follow the Mitakshara and those who follow the Daya Bhaga. The Daya Bhaga and the Mitakshara differ in the most vital points because each applied different principles. First, the Daya Bhaga treated religious efficacy as the ruling canon in determining the order of succession, rejecting the preference of agnates to cognates. Secondly, the Daya Bhaga denies the doctrine that property is by birth, the cornerstone of the joint family system. Thirdly, the brothers of the joint family system in the Daya Bhaga recognize their right to dispose of their shares at their pleasure. Fourthly, the Daya Bhaga recognizes the right of a widow to succeed her husband's share.

Colebrooke's conception was erroneous. He thought that the commentaries on Hindu legal texts were the works of "lawyers, juriscouncils and lawgivers" and that they reflected the actual law of the land. Moreover, the British made a false analogy between Hindu law and Muslim law. The British were familiar with the latter for its distinct beliefs. As a result, Colebrooke yielded a symmetrical set for Hindu law to match what were thought of as the schools of Muslim law. Under this set, the Daya Bhaga and the Mitakshara were analogous to Sunni and Shia.

In Colebrooke's view each school had fixed "doctrines" and English judges therefore needed access to the reasons and arguments by which each school supported their doctrine. When Indian scholars could not provide the texts that demonstrated this, European methods were used. Colebrooke's solution was to supply a chronology to establish the authenticity that the texts appeared to lack. The oldest text would deem the most authoritative and authentic statement. The variation that existed amongst commentators could be controlled if one could establish as sequence of texts and trace them to an original source. Information on the history and age of authors was very imperfect in Indian texts and as such, an agreed on authoritative, fixed chronology was never established. After Jones announced that he intended to provide Hindus with their own laws through the mediation of English judges assisted by court appointed pandits, a kind of case law came into being over the next forty years. It was the chain of interpretations of precedents by the English judges that in a way preserved Hindu law, as was the case in Thomas Strange's "Elements of Hindu Law".