Beyond Rules, Courts and Legislation
We usually begin the study of law with a deceptively simple proposition: law is a system of rules enforced by an authority, usually the state. From there, the modern law curriculum moves towards legislation, courts, constitutions, precedent, legal rights, procedure and enforcement. This is a useful starting point for understanding the modern state, but it becomes problematic when it is treated as the starting point for understanding law itself. After all, human beings lived under binding norms long before the modern state existed. Families regulated marriage and inheritance; communities regulated membership and conduct; religious traditions regulated obligations; occupational groups regulated professional behaviour; assemblies settled disputes; rulers issued commands; judges interpreted inherited principles. So the more fundamental question is not merely “What does the state declare to be law?”, but “What makes a norm legally or socially binding in the first place?”
This question becomes much more interesting when jurisprudence is studied comparatively rather than through a single historical trajectory. The modern law curriculum often presents the European experience as if it were the natural evolution of law—from customary rules to legislation, from arbitrary authority to constitutional government, from personal rule to impersonal institutions. Yet civilizations developed very different ways of answering the questions: Where does law come from? Who has authority to interpret it? What makes a judgement valid? How are custom and written rules related? Is law primarily a command, a moral order, a social practice, a divine obligation, a standard of conduct, or a technique for maintaining political order?
The answer changes considerably depending upon the civilization we examine.
Five Civilizational Jurisprudences, Five Starting Points
| Civilization | Central legal idea | Major sources / institutions | Relationship between law and society |
|---|---|---|---|
| Mesopotamian | Royal justice and divinely sanctioned order | Royal proclamations, customary practice, judges, temples | King protects order and justice |
| Greek | Nomos, justice and civic order | Lawgiver, polis, custom, philosophical reasoning | Law shapes the good political community |
| Roman | Ius, juristic reasoning and institutional law | Twelve Tables, magistrates, jurists, praetor, imperial legislation | Law develops through interpretation and institutional practice |
| Jewish | Halakha—the path of binding conduct | Torah, Oral Torah, Mishnah, Talmud, responsa | Law is lived through interpretation and community |
| Islamic | Sharia–fiqh and juristic reasoning | Qur’an, Sunnah, ijma, qiyas, jurists | Law transcends the state and is interpreted through scholarly traditions |
| Chinese | Li and fa: ritual order and standards | Custom, ritual, administrative norms, imperial codes | Social order combines moral cultivation and formal regulation |
| Indic | Dharma, Vyavahara, Achara, Nyaya, custom and royal order | Veda, Smriti, Achara, local custom, jurists, courts, royal edicts | Law is embedded in a wider social and moral order |
The point of such a comparison is not to declare one system superior. It is to demonstrate something more fundamental: the modern state-centred definition of law is one jurisprudential possibility among several.
1. Mesopotamia: Law as the King’s Justice
The famous Code of Hammurabi is often introduced to students as one of the earliest law codes. But its own prologue tells us something more complicated. Hammurabi presents himself as having been appointed by the gods to “bring about the rule of righteousness in the land” and to ensure that “the strong should not harm the weak.” The king describes himself as the protector of the people and concludes by instructing future rulers to preserve the laws and give just decisions.
Here law is neither merely private morality nor merely legislation. It is connected with divine sanction, kingship, justice and social protection.
But notice something else: the law code does not exhaust the entire legal world. Judges, elders, accusations, evidence, oaths and established practices remain part of the process. Even Hammurabi’s own text punishes a judge who alters a decision improperly, demonstrating that the administration of law is itself subject to norms.
Already, therefore, the simplistic equation law = statute begins to break down.
2. Greece: Law as Nomos and the Question of the Good Society
Greek jurisprudence takes us somewhere different. The central vocabulary of nomos cannot simply be translated as “statute”; it operates within a much larger debate concerning convention, law, justice and political order. With Plato and Aristotle, jurisprudence becomes explicitly philosophical.
Aristotle’s Politics asks whether it is better to be ruled by the best person or by the best laws, and his answer strongly favours government according to law because general laws are formed through deliberation rather than the passions of immediate decision-making. Yet he also recognises the difficulty of applying general rules to exceptional cases, which is why his discussion of epieikeia, often rendered as equity, becomes important.
More importantly, Aristotle does not understand law as an isolated technical instrument. Justice, constitution, citizenship, education and the good life are interconnected. He argues that the city exists not merely for survival or economic exchange but for the good life.
The Greek jurisprudential question is therefore: What kind of law produces a just political community?
That is already different from the modern positivist question: What rule has been validly enacted?
3. Rome: Law as Juristic Reasoning
Roman jurisprudence provides perhaps the most direct ancestor of modern Western legal systems. Its development from the Twelve Tables through praetorian practice and eventually the Corpus Juris Civilis of Justinian represents more than simple codification. Roman law developed through magistrates, jurists, interpretation and the interaction between ius civile and ius gentium.
This is crucial because Roman law demonstrates that a sophisticated legal system does not emerge simply by writing more statutes. Jurists become institutional actors who interpret, classify and develop legal principles.
The Roman experience therefore gives modern jurisprudence one of its strongest inheritances: law as a technical discipline of reasoning.
Yet even Roman law complicates the state-centred story. The law evolved through institutions and professional interpretation long before Justinian attempted his great compilation. The code was the outcome of a long legal culture; it did not create that culture from nothing.
4. Jewish Jurisprudence: Law as an Intergenerational Conversation
Jewish jurisprudence offers perhaps the clearest challenge to the idea that law must be a single authoritative code.
Halakha, literally associated with walking or a path, developed from the Torah through the Oral Torah, Mishnah, Talmud, later responsa and codes. The Talmud is not simply a code containing final answers. It preserves competing opinions, arguments, analogies and unresolved questions, and its legal importance lies substantially in the process of legal reasoning itself.
This is a striking jurisprudential model.
Law is not simply: Rule → Court → Judgement.
It can instead be: Text → Interpretation → Debate → Precedent → Community → Application → Further Interpretation.
The Jewish tradition demonstrates that a legal order can remain authoritative while simultaneously containing disagreement about how authority should be interpreted. The law survives not because every question has one immediately available answer, but because a community possesses an enduring method of legal reasoning.
That should make every law student pause.
Perhaps the strength of a legal tradition lies not only in the rules it possesses, but in its capacity to reason about rules.
5. Islamic Jurisprudence: Law Beyond the State
Islamic jurisprudence provides another distinctive model. Every law by and far comes directly from the Quran. Yet, the classical distinction between Sharia and fiqh is important: Sharia refers to the divine normative path, while fiqh represents human juristic understanding and elaboration of that path. Classical usul al-fiqh developed methodologies involving the Qur’an, Sunnah, ijma and qiyas, with jurists playing a central role in interpreting and applying these sources.
The jurisprudential consequence is profound. Law does not originate simply because a parliament has enacted it. A ruler may possess political authority, but legal authority is also mediated through a scholarly tradition.
This creates a different relationship between state and law. The legal tradition can possess normative authority that is not reducible to governmental legislation.
Again, the point is not to romanticise this arrangement. Islamic legal history contains enormous diversity between schools, regions and periods. The point is simply that the state is not necessarily the sole creator of law, but the religious leaders are.
6. China: Li and Fa
Chinese jurisprudence is particularly useful because it demonstrates that even within one civilization there can be competing conceptions of how order should be maintained.
The Confucian emphasis on Li placed enormous importance on ritual, role, ethical cultivation and socially appropriate conduct. The fa tradition, often misleadingly labelled “Legalism”, emphasised impersonal standards, administrative regulations, predictable rules and institutional mechanisms. The Stanford Encyclopedia of Philosophy rightly cautions that fa means more than “law”; it can mean standards, models, norms, methods and institutional arrangements.
This creates a fascinating jurisprudential tension: Should society be governed primarily through cultivated conduct or through enforceable standards?
The Chinese experience shows that law and morality need not always be conceptualised as completely separate spheres. Social order can emerge through a combination of ethical formation and formal regulation.
7. Bharat: Law as a Layered Social Order
And now we arrive at the most important question for a decolonised Indian law curriculum. What happens if we do not begin by asking, “Who makes the law?”
What happens if we begin by asking: “From where does Dharma arise, how is it interpreted, how is it applied, and how does it become binding within society?”
The answer found across the Dharmashastra tradition is remarkably plural.
Manusmriti 2.12 identifies:
वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः ।
एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥
The Veda, Smriti, Sadachara—established good conduct—and what is agreeable to one’s own conscience are presented as four dimensions of Dharma.
Yajnavalkya expands the formulation further, adding samkalpaja kama in its enumeration of the sources of Dharma. The tradition therefore does not present law as something generated exclusively by a sovereign legislature. Text, memory, custom, ethical conduct, discernment and context participate in determining normative order.
This becomes even more explicit in Vyavahara.
Yajnavalkya’s legal tradition divides its material into Achara, Vyavahara and Prayaschitta—conduct, judicial/legal procedure, and expiation. Vyavahara deals directly with disputes, procedure, evidence and adjudication.
Kautilya’s Arthashastra provides an even more striking formulation. In 3.1, justice is described through Dharma, Sanstha, Nyaya and Vyavahara—a combination that can be understood, with necessary caution, as normative principle, established/customary practice, authoritative rule and evidence/procedure.
This is jurisprudentially extraordinary because it suggests that multiple normative sources can coexist within one legal order. The state does not disappear. The king has courts. Judges exist. Punishment exists. Royal edicts exist. But the royal edict is not necessarily the whole of law.
The Indian Problem of contemporary law is not the absence of the polycentric Jurisprudence
This is perhaps where colonial jurisprudence fundamentally changed the Indian legal landscape.
The British encountered a society with multiple normative orders: Dharmashastra traditions, Islamic jurisprudence, local customs, occupational institutions, village practices, community authorities and royal regulations. Rather than simply discovering a pre-existing unified “Hindu law”, colonial administration increasingly sought to identify, translate, classify, select and administer indigenous norms through the machinery of the colonial state.
The Law Commission of India itself records that the colonial law-reform process under the Charter Act of 1833 sought the consolidation and codification of Indian laws, including investigation into written or customary laws. It also records that the early Law Commissions produced legislation substantially patterned on prevailing English law but adapted to Indian conditions, including the Contract Act, Evidence Act and Civil Procedure Code.
This was not simply a legal transfer. It was a transformation in the ontology of law. A plural legal world increasingly had to become legible to a centralised colonial legal administration. Custom had to be identified. Community practices had to be classified. Texts had to be translated. Personal laws had to be defined. Judicial precedents had to be created.
The result was not that India suddenly acquired law. India’s existing legal plurality was reorganised through a state-centred legal architecture.
Recent scholarship on colonial Muslim personal law similarly notes that British rule reshaped the present form of South Asian personal law through a state-centred system that used texts, local experts, case law and legislation as different legal tools.
This is precisely why the phrase “Hindu law” itself requires historical interrogation. Colonial administration did not simply preserve an unchanged indigenous legal system; it participated in constructing the categories through which Indian legal traditions became administratively intelligible.
The Comparative Lesson
Now the question becomes much more interesting.
- Mesopotamia tells us that law can be connected to divine legitimacy and royal justice.
- Greece tells us that law must be examined through justice, citizenship and the good political community.
- Rome demonstrates the importance of jurists, interpretation and institutional development.
- Jewish jurisprudence demonstrates how law can survive through interpretive communities and intergenerational debate.
- Islamic jurisprudence demonstrates how legal authority can exist beyond the state through scholarly interpretation.
- China demonstrates the interaction between ethical cultivation, custom, ritual and formal standards.
Bharat presents a layered conception in which Dharma, Achara, Vyavahara, custom, evidence, judicial reasoning and royal authority interact. And modern jurisprudence adds another important development: the systematic separation of questions about validity, morality, interpretation, rights and institutional authority. The comparative conclusion is therefore not that one civilization possessed “law” while another did not. It is almost the opposite.
Every civilization had law. But every civilization answered the question “What makes law law?” differently.
That is exactly what a decolonised jurisprudence curriculum should teach.
From “Law = State” to a Larger Jurisprudential Map
The conventional question: Who made this rule? should remain. But it should be joined by:
- Who recognised it?
- Who interpreted it?
- What custom supports it?
- What institution enforces it?
- What makes it legitimate?
- What happens when written law conflicts with established practice?
- Can a community generate binding norms without the state?
- Can morality influence law without becoming law?
- Can law remain authoritative while its interpretation changes?
- And what happens when a state attempts to replace a plural legal order with one uniform legal architecture?
These are not merely historical questions. They are questions about contemporary Bharat.
Because if everything that governs human conduct must first receive a statute number, then enormous portions of social life become invisible to jurisprudence. But if we recognise family norms, community practices, professional standards, customary rules, institutional conventions, religious obligations, local arrangements and state law as different layers of normativity, then the study of law becomes the study of how societies actually govern conduct.
That is the intellectual move required by decolonisation. It is not to abandon legislation. It is not to reject courts. It is not to romanticise custom. It is not to pretend that every inherited institution was just. It is to refuse the assumption that the modern state is the only possible birthplace of law.
Perhaps, then, the question with which jurisprudence should begin is not: “What is the law?”
but something more fundamental: “What makes a norm binding upon a society, who has the authority to interpret it, and how does that norm become part of the social order?”
Once we ask that question, jurisprudence becomes genuinely comparative—and Bharat ceases to appear as a society that merely received law from the West. It becomes what it historically was:
A civilization that developed its own arguments about Dharma, justice, evidence, custom, adjudication, punishment, authority and the relationship between social order and legal order. And that is perhaps the first principle of a genuinely decolonised Indian jurisprudence: do not begin by asking which Western legal category fits Bharat; begin by asking what Bharat’s own legal traditions were trying to solve.
