The Fountainhead

A review of Orientalist Jones: Sir William Jones, Poet, Lawyer and Linguist, 1746-1794 by Michael J. Franklin, by Keerthik Sasidharan at The India Site:

In the 1830s, the first drafts of the pan-Indian criminal law codes were instituted by Thomas Macaulay. He remains a reference point for many, including the first Prime Minister Jawaharlal Nehru and his ideological opponents, the Hindu Rightist parties who protest the influence of Marx, Mullah aur Macaulay in Indian public life. The Indian Penal Code emerged from an inspired potpourri of the Napoleonic Code, English Common Law and the Louisiana Civil Code (which in turn was based on Spanish and Roman legal frameworks). Despite many drafts, between 1830-1860, the new Indian Penal Code left the civil code – relating to personal and family matters – untouched. Each community would govern itself as it had done over millennia. This was not a tactical retreat or a new approach to the law. As distant as Macaulay seems to us today, he too was a relatively recent entrant into the question of what legal framework ought to govern India. Nearly half a century before him, the issue found its way into the hands of Edmund Burke. If Hobbes was the Noah of modern political Conservatism, then Burke was the Abraham (the historian Edward Gibbon called Burke “the most eloquent and rational madman I ever knew”). To assist him in the matter of the Bengal Judiciary Bill, Burke turned to a young William Jones, a judge, translator of Persian, writer of maudlin verses, and future founder of the Asiatick Society in Calcutta, and now the subject of Michael Franklin’s excellent new biography, Orientalist Jones.

 It is with Jones’ shadow, his tactical retreats, opinions, compromises, expedient interpretations and the monumental translation of the Manava Dharma Shastra (the Manusmriti), which was called the “Institutes of Hindu Law”, that much of colonial and modern India wrestles with to this day. Early on in that influential translation Jones writes: “the legislature of Britain having shown… an intention to leave the natives of these Indian provinces in possession of their own Law, 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”. It is unlikely Jones could have foreseen the influence and the impress of his words on the debates of independent India. When Mayawati rails against the hegemony of the Manuvadis (the proponents of the Manusmriti), she is unknowingly pointing fingers at Jones’ willingness to grant primacy to a Brahminnical text of laws and give it a legalistic blessing in the 1780-90s; when the upper caste Hindu Rightists evoke the uniqueness and essence of Hindu civilization, they are relying on the essentialist arguments that made up the intellectual scaffolding of the Orientalist projects, which began in an organized manner thanks to Jones’ Asiatick Society; when the Congress party abandons its moral claims to appease obscurantist and fundamentalist mullahs in hopes of avoiding a law and order situation, they are simply following in the footsteps of Jones and Warren Hastings, who preferred an iniquitous calm that facilitated commerce and trade than any efforts to redress injustice. More:

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