"Separation of Powers" in global legal history: evidence from Indian Knowledge Systems seen alongside 'The Crown and the Courts' and 'The First Constitution' (original) (raw)
Related papers
This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text—the “Torah”—that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history. Keywords: Constitutional theory; rule of law; separation of powers; Deut 16:18-18:22; Laws of public officials; Law of the king; independence of the judiciary; Deut 17:14-20; Ämtergesetze; Verfassungstheorie; Torah monarchy; Sophocles Antigone law; Herodotus Demaratus; Greek kingship; Mishnah King; mishnah Aboth 1:1; American constitution; Josephus πολιτεία [politeia]; origin of judicial system; Hammurabi; founding myth; independent judiciary.
Handbook on Comparative Constitutional Law, 2024
The purpose of this review article is to provide an overview of the unique constitutional frameworks and significant judicial developments in India and Australia, with a view to assist readers in gaining a better understanding of the constitutional concept of Separation of Powers in both Countries. It then proceeds to analyse the similarities and differences that have been seen, which ought to improve our understanding of the notion of separation of powers in general. This is done after looking at how this essential principle expresses and operates in a variety of legal systems. Among the many aspects that are brought to light by the study is the malleable nature of the separation of powers, which serves to protect essential institutional activities from interference while also adjusting particulars of the local context and the structure of the Constitution. It is possible that the division of powers, which helps to maintain the uniqueness of individual responsibilities, will result in an administration that is both competent and effective. This is because the separation of powers encourages specialization and competence. When the state exerts its power, each part of government must be subject to the checks and balances that are offered by the other branches in the form of controls that have been created. In the first part of this article, we investigate the origins of the notion of separation of powers in political theory and investigate the ways in which it played an important role in the constitution-making processes throughout India and Australia. In the second part of the article, we go into the Indian system of separation of powers, and in the third part, we examine the Australian system. In this part, we examine how the constitution divides up state authority, and then we examine significant court judgments that have enlarged upon the notion of separation of powers. In the next section, Part IV, a comparison is made between the concepts of the separation of powers in Australia and India, with an emphasis placed on showing both the similarities and differences between the two countries. In the last part, we take a look at the consequences of the comparison for a more comprehensive understanding of the separation of powers and how it manifests itself in different legal systems.
Perceiving law without colonialism: Revisiting courts and constitutionalism in South Asia
International Journal of Law in Context
This article argues that the colonial government in India was shaped by changes in property law, race relations and other institutional interests that accompanied the political and economic restructuring of the colonial state. Therefore, the development of constitutionalism was the outcome of an interplay between institutional and professional interests and larger socio-economic and political forces. Against the backdrop of empire, constitutionalism in British India was defined by a specific form of allocation of powers between the executive (which also exercised legislative powers) and the high courts. The structure that developed as a result was a strong executive government, particularly in its exercise of power in local districts with formal judicial scrutiny introduced after 1861. The relationship between the executive and the judiciary in localities generated a series of conflicts and tensions, which were exacerbated by the expansion of the bureaucracy, the legal profession an...
Duve, Thomas (ed.), Entanglements in Legal History: Conceptual Approaches to Legal History, Global Perspectives on Legal History vol. 1, Max Planck Institute for European Legal History Open Access Publication, 2014., 2014
Current approaches within legal history do not allow for for conceptual clarity in cross cultural and global contexts. Legal functionalism has been identified as one of the problems that impede the production of knowledge from a comparative legal perspective. However current scholarship in comparative law, legal history and legal theory appear to be unable to address this challenge. This article proposes an alternative route through the realm of cultural studies and the framework of “Orientalism” developed by Edward Said which identifies a particular way of speaking about the East which is characteristic of Western discourse. It inquires into how the history of law in India can be studied through the illustration of the British colonial encounter with “Hindu law”. It rejects the characterisation of legal history as a movement from custom to codification or the secularisation of religious law .It demonstrates how such a characterisation can be formulated only within the background of Western social theory using Max Weber’s sociology of religion as an illustration. It shows the inconsistencies in Weber’s account and the logic behind these inconsistencies which are related to the European experience of “religion” in India. The pattern of these inconsistencies is used to frame certain questions for the study of Hindu law as a historical category. In doing so, it sets an agenda for the study of Hindu law and provides for a new approach by which legal history can borrow from comparative law and not by merely understanding borrowings as legal transplantation.
Legal Unification and Nation Building in the Post-colonial World: A Comparison of Israel and India
The Journal of Comparative Asian Development, 2009
How do states consolidate their legal systems? Do all states follow the same trajectory of state-building and legal unification? And, particularly how do post-colonial states respond to legally pluralistic regimes that they Inherit at the time of independence? These are some of the questions that this article will attempt to shed light upon by closely analyzing the Israeli and Indian states' responses to polycentric legal systems that they inherited at the time of their independence. Offering an alternative theory of state-building and legal unification, the present study will not only explain how leaders of these two countries responded to the challenges posed by polycentric jurisdictions but also contribute to our understanding of state, nation-building and legal consolidation in the post-colonial world by re-examining some of the theories and approaches that have long come to dominate the literature.
2024
This article discusses works on jurisprudence produced by authors from three British-ruled territories (India, Egypt, and Palestine) in the early decades of the twentieth century. It argues that these works were part of a non-Western jurisprudential wave that appeared in different parts of the British Empire at the time. Legal scholars working in these territories were not passive recipients of legal ideas imported from the metropole: their works were more cosmopolitan than those produced in the United Kingdom, using ideas drawn from English thinkers but also referring to Continental and American historical and sociological theories of law. The use of such theories was combined with an interest in the ideas and values of local religious legal systems (Hindu law, Islamic law, and Jewish law, respectively). These systems were depicted as superior to Western law-not only because local legal scholars saw them as the historical source of Western jurisprudential conceptions but also because they were viewed as a possible source of collectivist values that would replace the individualist values of transplanted Western law. While there were many similarities between the works written in the three territories, the article also highlights certain differences in the way religious legal systems were viewed in the places examined.
Assembling India’s Constitution: Towards a New History
Past & Present
The framing of India’s constitution was a critical event in the global history of both constitution-making and democracy. Conventionally it has been analysed as a founding moment. Its success against multiple odds has been explained as resulting from a vision and consensus among the elite over what would become a pedagogical text for an ‘ignorant’ and undemocratic public. This focus among academics on political elites, and an underlying assumption that constitutional details were beyond the public’s imagination, limited the scope of investigations largely to the Constituent Assembly debates. By directing the inquiry away from these debates towards hitherto unstudied documents, this article offers a paradigm shift in the method of research and understanding of India’s constitution-making. It explores the constitution as it emerged from beyond the Constituent Assembly through engagement with its making among diverse publics. In doing so, it shows that the Indian constitution was not ...