Sir William Jones and the translation of law in India
What happens when you translate a legal system from the metropolitan imperial centre to a colony? The case of Sir William Jones provides one instructive answer.
Sir William Jones (1746–94) is an unusual figure in that he worked directly within the fields of literature and law: he was both poet and lawyer (he is credited with the invention of the concept of ‘the reasonable man’ in his Essay on Bailments (1781) (Oldham 1995)), translator (notably in his own day of the Persian poet Hafiz), judge and jurist, and a central figure in the development of English law in India. Jones’ interdisciplinary talent and professional energies are one reason why his work has remained hard to assess within any of the individual fields in which he worked. Even within the two fields of literature and law individually considered, his work was generally comparative – before the subjects of comparative literature or the historical and comparative school of legal philosophy had been invented. He was also a historian, and of course a linguist, or more properly a philologist – indeed he is customarily credited with the invention of historical or comparative philology as a discipline in Britain, and it is in this context that in the twentieth and twenty-first centuries he has been most regularly cited (Momma 1997). He was not the first to recognize the affinities between Latin, Greek and Sanskrit, but it was Jones who suggested that, together with Gothic, Celtic, and Old Persian, they were related languages genealogically derived from a common root – a language that in 1813 Thomas Young would name Indo-European (albeit in a different and more eccentric genealogical configuration).
Jones’ own remarkable talent for languages, and relatively unusually for his time and for ours, non-European languages – meant that by the end of his life he knew English, Latin, Greek, French, Arabic, Hebrew, Turkish, Persian, Sanskrit. His famous writings on the comparative historical relations between those languages notwithstanding, as a good utilitarian, his view of language was always instrumental: as he put it in the Introduction to his translation of Al Sira-jiyyah: or, the Mohammedan Law of Inheritance ‘practical utility being my ultimate object in this work – it has nothing to do with literary curiosities’ (Jones 1792: iv). He did not regard knowledge of languages as learning in its own right; rather it formed the means to learning. And the learning that each language contained he considered always translatable into another language. His work is founded on a deep principle of translatability, of equivalence between languages. While he believed in linguistic translatability, paradoxically the whole rationale of his legal work was at the same time founded on a principle of cultural untranslat-ability. This, however, did not prevent a profound cultural translation from taking place.
The British began to exercise certain judicial functions in India as early as the seventeenth century, but it was not until the East India Company took on the official Mughal post of Diwani for Bengal, Bihar and Orissa in 1765 that its officers became generally responsible for the administration of justice in those territories. In 1772 Warren Hastings became governor of Bengal (the following year he became the first Governor-General of India) and instituted a series of reforms designed to rationalize the legal system that the East India Company had taken over. Hastings created separate civil and criminal courts, the British presiding over the first, and Mughals the second. Following his belief that good governance in Bengal could be achieved through the continued use of Indian customary law, an arrangement that was both practical as well as ideological, the civil courts were organized to administer Hindu law to Hindus, and Muslim law to Muslims, while the criminal court applied Muslim law only (Benton 2002: 133–4). Throughout these arrangements, the ethical principle of Hastings and his followers (James Forbes, Nathaniel Halhed, William Jones), or even enemies, such as Edmund Burke (though Burke was a friend of Jones), was that British common law should not be forced on a subject Indian population (Haldar 2007: 114). Wishing to found the authority of the East India Company on the ancient laws of Bengal, while at the same time being responsible for their administration, put the British in a position of dependency on the local pundits who had access to the secret sources of the law and its interpretation (Cohn 1996: 25). With the paranoia characteristic of the uncertain colonizer, the British distrusted the pundits, felt that they were manipulated by them and disliked being effectively caught in the power of the native’s ‘sly civility’ (Bhabha 1994: 93). Hastings therefore commissioned translations of local Hindu and Muslim legal writings, as well as compilations of digests of local laws (Cohn 1966). The first product of his initiative was Nathaniel Halhed’s A Code of Gentoo [i.e. Hindu] Laws, or, Ordinations of the Pundits, from a Persian translation, made from the original, written in the Shanscrit language (Halhed 1776). Halhed, who had published the first Bengali grammar, introduced the rudiments of the Sanskrit language at the beginning of the Code, but it was a language that he never fully learnt. His code of laws was drawn up by eleven Bengali pundits from twenty different sources in Sanskrit, and then translated via Bengali into Persian. Halhed then translated this into English. Halhed was ridiculed by Jones and many others since for the inaccuracies that this triple translation produced (though in fact Jones himself in his translations first translated the Sanskrit texts into Latin and then from Latin into English). However inaccurate, it was nevertheless a very practical digest and for that reason continued to be used well into the nineteenth century, illustrating the first paradoxical law of translation, that a bad translation does not prevent it from being a good translation, in the sense of one that people choose to continue to use or even prefer to ‘good’ or accurate translations. Jones, who arrived in India in 1783 to be a judge in the Supreme Court of Calcutta, had ambitions that were altogether greater – he wished to effect a complete Justinian Corpus Juris Civilis (‘Body of Civil Law’) or collection of fundamental works in Indian jurisprudence. Justinian’s corpus had included both complete texts and digests, and this provided Jones with a model whereby he would incorporate both. His two translations, Al Sira-jiyyah: or, The Mohammedan Law of Inheritance (Jones 1792) and The Laws of Menu (Jones 1796) were published in his lifetime, while A Digest of Hindu Law was completed by his successor judge H.T. Colebrooke and published in 1801 (Colebrooke 1801). Following his genealogical linking of Indian and European languages, Jones maintained his preference for local law while at the same time claiming that it formed part of a wider universal law – an affiliation which he achieved by linking Menu to Roman law, with the suggestion that like European and Indian languages, they all shared some common primordial revelatory source (Haldar 2007: 118–19).
Jones begins the Preface to The Laws of Menu with two sentences that take up a page apiece. In the first, he writes:
It is a maxim in the science of legislation and government, that Laws are of no avail without manners, or, to explain the sentence more fully, that the best intended legislative provisions would have no beneficial effect even at first, and none at all in a short course of time, unless they were congenial to the disposition and habits, to the religious prejudices, and approved immemorial usages, of the people, for whom they were enacted; especially if that people universally and sincerely believed, that all their ancient usages and established rules of conduct had the sanction of an actual revelation from heaven: the legislature of Britain having shown, in compliance with this maxim, an intention to leave the natives of these Indian provinces in possession of their own Laws, at least on the titles of contracts and inheritances, we may humbly presume, that all future provisions, for the administration of justice and government in India, will be conformable, as far as the natives are affected by them, to the manners and opinions of the natives themselves; an object, which cannot possibly be obtained, until those manners and opinions can be fully and accurately known.
These are the main considerations, Jones writes, which have led him to translate the Laws of Menu, ‘a system so comprehensive and so minutely exact, that it may be considered as the Institutes of Hindu Law’ – a remark that transforms the identity of Menu at a stroke into the systematic form of a European legal text (Brine 2010). Even though Jones considers Menu to consist of the ‘institutes’ of Hindu law, he nevertheless expresses the wish for the law to be systematized further, beyond Halhed’s Digest, it being, he suggests:
introductory perhaps to a Code, which may supply the many natural defects in the old jurisprudence of this country, and, without any deviation from its principles, accommodate it justly to the improvements of a commercial age.
(Jones 1796: 75–6)