The South Asian legal systems are still bearing colonial heritage of the British Indian empire inside its important laws. Basic laws in the field of evidence law, civil procedure, criminal procedure, penal law, contract law, personal law and so many other fields. Larger portion of these legislations are based on either the principles of Roman Law, Common law.
Most of these outdated and socially irrelevant laws are causing severe damage to the judicial systems and the societies. Complex laws are creating case-backlogs, laws with socially irrelevant remedy and lack of deterrance in punishments are creating social disorder.
Moreover, from a jurisprudential perspective, we can not expect a portion of victorian age legal system to be applied into some modern heterogenous societies having high opportunity of socio-economic prosperity.
I think that changing them would lead to a national consensus since they have been in force for a long time. However, it is necessary to update the legal system to new social situations
The answer, to me, is not far-fetched. It is because of neo-colonialism. Most of the law makers, as in some parts of English speaking countries in Africa, have not been able to rise above their 'colonial' training. They are either afraid to change the law, or they care little about what the law should be. Some of the law makers are also not in tandem with the realities of the day. These laws are just there, not functional.
The law making is perhaps not a huge problem but the question is what do you propose and mean by the new national laws?
Maroof Mittha I prefer, laws having no colonial trace that are socially relatable and of course having genuine historical background. This "election" of laws in every particular situation requires utter excellence of sociological, historical, philosophical and jurisprudential knowledge regarding oriental legal systems.
South Asian society and politics is showing profoundly implied inclination towards religious sentiment in these days. I accept it as a positive factor for my purpose of eradicating colonial traces inside our legal systems. It is not a big problem for nearly homogenous countries like Pakistan and Bangladesh to pick up precedents from religious sources and introduce them in criminal, commercial and civil laws. Obviously, renovation is required..
I would like to propose bringing back laws from ancient sources, like for my country, Bangladesh, I would like to bring back laws of our prosperous medieval society. Where our legal systems were running good in pre-European era with religious laws having profound social and historical contextuality, it is not impossible to bring that back in a similar fashion, that Glossators, Lombardic jurists and Italian Universities brought Roman Law back on the face of European soil during the old days. But I would like to have some more and new perceptions on this field. Thanks for asking the important question.
I think the subject is too broad to be summarised in one paragraph. The pre-industrial laws may not be relevant or useful in this age of globalisation.
Chukwunye AUGUSTA Ojeih Here in South Asia, the law makers and jurists are of same opinion...
The changes should depend more on the fact that the laws are not adequate to reality, than on whether they come from a colonial government. Changing them just because they belong to a colonial era would be unwise.
If the colonial era laws are totally to be abandoned first question is that what we have to replace them. The modern understanding of State, with any form of government, are still dependent on a certain edifice to uphold its supremacy. So the laws relating to sedition (for example) has become a tool in successive governments hand to suppress dissent.
Even if we imagine making wholesale change in the existing inherited laws it shall not be anything short than a revolution (even if we call it a legal revolution). The difficulty is that, if we learn from history, it is also a fact that wholesale changes are not brought instantaneously. The only instant change that is brought after independence from colonial occupation are political laws; like form of government and empowering the people with liberty to choose their political leaders but non-political laws like rules of procedure, private laws and calling some acts as an offence are not changed instantaneously as they may leave a vacuum which is an impossibility in continuous legal system.
If you want a good example you may read Texas v. White adjudicated by USA Supreme Court where the Court upheld some of the non-political laws made by confederate government during the civil war for the southern States as valid laws. Thus the USA Supreme Court even after end of the civil war and defeat of the confederate army did not strike down the non-political laws (made by the rebel government) that affected the individual private lives of the citizens, as that would bring the relevant society into chaos.
State does act at a high level of generality but principles of justice may not permit injustice in a specific circumstances where an individual chose to behave according to a particular law and later on that act is regarded as illegal retrospectively.
The changes, if any, are always going to be gradual according to the needs of the society. Any attempt that creates a legal vacuum is going to either be an impossibility or be a catalyst in descending the society into chaos.
I'll round up my answer with a question: "How many autochthonous Constitution are there in post-colonial South Asian Countries?" We borrowed heavily because the long time of occupation had changed our society in a manner that could only be held together by the post-industrialisation western system of laws that were successful in creating a powerful State.
Altough my opinion can not be but an external point of view, because I am not immersed in the culture of the South Asian countries, nor have I had experienced their history, I agree what Montserrat Gas-Aixendri wrote: «The changes should depend more on the fact that the laws are not adequate to reality, than on whether they come from a colonial government».
In Latin America, where I live and work, even when some figures (still on force) descends clearely from Roman Law, our legal systems were not precisely inherited from those ruling in the times of european empire's domination, but imported from codes, institutions and political arrangements conceived under the strong influence of liberal ideals, also brought from Europe in the times of French Revolution and intensfied with the example given by the United States' Independence. Probably, we could regard them as colonial inheritance, but they have been well assimilated in our political culture and our legal thinking.
Nowadays, after two centuries, the same basic constructs support our normative frame and, even in the recognizion of the several ammendements operated time by time, globalization is impelling us to equate legal figures and procedures to those existent in developed countries, in order to attract business and investments. So, I think, there is a worldwide phenomenon concerning legislation: its tendency to be homologated.
Thank you for your precious comments. I agree that they should not be repealed/ replaced just because they are of colonial identity. (Montserrat Gas-Aixendri , Ricardo Anguiano)I actually, tried to raise a qustion regarding their inadequecy to fulfill the sociological needs of these days. Besides, I agree with their importance from a historical perspective of law, but having a look at the situation of law and order, socio-political enviornment, and the morbid cindition of the judiciary, I think that these laws are behind the misery of people of this region. I believe that everything upsetting regarding these situations are happening here because neither we could adopt what we have completely from colonial past nor could we rebuild what we had in the pre-colonial past. And reading about the Glossators, scholars like Irnereous, I feel what happened in the 16th century Europe, should heppen here as well (to some extent)- bringing a renaissance here.
Therefore, my emphasis was on the sociological perspective. But yes, I agree with rest of all of your points (Ranjan Kumar), and affirm that there are a huge number of challenges in turning this "should" into can. Thanks for letting me have a bigger prespective again.
Isfar Tehami, thank you for a good question and the enlightening answers that have ensued.
Thank you, Isfar Tehami for creating the appropriate environment to discuss such an intetesting topic. You are surely right when you say that “these laws are behind the misery of people of this region”. I should ask myself if that statement is also valid for my region. I'm afraid so. And it seems that we do not have to dig deep in the past to find signs that strengthen such suspicions.
Most of the ancient laws that were applied in a long time. The French were derived from the laws of the Ottoman Empire.
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Omar Musaa BTW, can you suggest any literature discussing Ottoman Law as a source of French law? It would be very helpful for me as I have never read about it...
I agree with Maroof Mittha It cannot be summarized in one paragraph.
Toda lei caminha em íntima ligação com a cultura, religião, e tantos outros aspectos que conceber uma mudança assim, como que num passe de mágica, seria algo impossível, ainda que aparentemente viável sob certos aspectos.
O processo migratório é lento, paulatino, e trás em seu escopo as próprias necessidades da sociedade em questão.
Assim, a velocidade desse processo depende mais da evolução pessoal e do senso coletivo em relação a si mesmos e suas leis, do que de influências externas propriamente.
Political parties in all these countries aren't committed to do political reforms. Political parties of all these countries are main stake holders who need to address this problem to come out of colonial era to tell the world now they are free and can do everything according to their laws.
Wazir Ali Agreed. But a dire lack of popular urge is also a matter of fact, I think.
Formulating New national ones demands a purely non political , non globalised & healthier views on realities of children, men & women of the country ~ involvement of SME with perspectives and virtues
Dramatic changes of these laws now would distract the current mechanism of justice. Also it’s tough to change the whole structure of a legal system at once. South Asian Countries might go for gradual change.
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