Introduction to Legal History of Bangladesh

Introduction to Legal History of BangladeshSaifuz ZamanLecturer on LawZ. H. Sikder University of Science and TechnologyUse of copyrighted materials:I have prepared this lecture note exclusively for classroom use. Copyrighted materials have been used extensively. Wherever possible I tried to give adequate reference. To my knowledge, no uncredited materials is used. I exert no copyright of my own.History, Stephen in James Joyces Ulyssis said, is a nightmare from which I am trying to awake.

Image from Wikimedia Commons. Used under Creative Commons license.The word History comes from Greek historia which means inquiry, knowledge from inquiry, or judge.

For our purpose, we took the definition of E H Carr: History is an unending dialogue between the past and the present.

Historia (Allegory of History) by Nikolaos Gyzis, 1892.Defining Legal HistoryLegal history is a discipline that examines events of the past that pertain to all facets of the law. It includes analysis of particular laws, legal institutions, individuals who operate in the legal system, and the effect of law on society.- Legal Dictionary, History vs. Legal HistoryHistoryHistory predominantly deals with facts and events.Basically narrativeLegal historyLegal history is the history of ideas, as Maitland said.Basically analyticApproaches to legal historyThere are four major approaches in studying history of law and legal traditions. A. Unitary or Isolationist Approach.The first approach states that the subject of legal history should focus on the past societies themselves, the legal rules, legal principles, legal standards and the changes therein by disregarding factors such as social, political and economic for the sole purpose of understanding those past systems.Approaches to legal history (Cont.)B. Sociological Approach.It refers to the inclusion of economic, religious, social political institutions of past societies. This approach, in addition to the elements that must be studied according to the first approach, should include both internal and external factors to a past legal system as a legal system does not stand in isolation from external factors. Thus, the study of legal history and legal traditions will not be complete unless it includes economic, social, religious and political elements.Approaches to legal history (Cont.)C. Technical ApproachThis approach states that legal history should limit itself to gather the legal problems and understand the legal reasons why these solutions were chosen by past societies. The technical approach to legal history proposes that the present society should use the legal solutions the past society adopted when current societies face similar problems.Approaches to legal history (Cont.)D. Mixed ApproachIt is a combination of the unitary, the holistic and technical approaches. This mixed approach bases itself on the idea that the three approaches have positive elements, which need to be taken into account when studying legal history and legal traditions.

The four approaches to the study of legal history are different in terms of scope, purpose and the legal theory behind them.Why Legal History MattersLaw is rooted in the past. Legal history is the forms of action human beings buried; but those forms buried long time ago still rule human beings. What then is the utility of legal history? Legal history helps us illustrate how legal concepts, rules, principles, conceptions and standards have met concrete situations of fact in organized human society in the past. Legal history enables us to judge how we may deal with such situations with assurance in the present. Legal history is a reflection of the judgment of its time. A child cannot wear the clothes of the full-grown man. Rather such child should have clothes of different size, as he grows mature. Similarly, a young civilization cannot adopt the law of an ancient society. Such young community must, if it desires to be alive, adjust its own law from age to age.-E.P. Bruke, Historical Essay on the Laws of and the Government of Rome, Civil Law, Cambridge University Press, London, 1827.Why Legal History Matters (Cont.)Legal history is everywhere, to a greater or lesser degree- Jim Phillips, (2010) 41 VUWLR.There are four principal reasons why legal history especially matters: that legal history teaches us about the contingency of law, about its fundamental shaping by other historical forces; that legal history shows us that the while law is shaped by other forces, it can be at the same time relatively autonomous, not always the handmaiden of dominant interests; that legal history, perhaps paradoxically, frees us from the past, allows us to make our own decisions by seeing that there is nothing inevitable or preordained in what we currently have; and that legal history exposes the presence of many variants of legal pluralism in both the past and the present. There is some overlap between the fourWhy Legal History Matters (Cont.)1. The Contingency of Law

First, and in some respects most importantly in the context of legal education, legal history teaches us about the contingency of the law, about the fact that law is not a set of abstract ahistorical and universal principles, it does not exist in a vacuum. Rather, it is formed by, and exists within, human societies, and its forms and principles, and changes to them, are rationally connected to those particular societies.Why Legal History Matters (Cont.)2. The Relative Autonomy of LawWhat I have been talking about so far is putting history, in all its richness and complexity, into legal history. But an equally important reason why legal history matters, and a development which flowed from and closely followed the new scholarship emphasizing contingency, was a recognition of the importance of law itself, both as a factor in other historical changes and as at times an autonomous agent, not wholly derivative of other histories. This may sound like a contradiction of my first reason, but I prefer to think of it as a subtle and necessary qualification, one which complicates our understanding of history and the law by making it the more precise. There is a danger in taking the idea of contingency too far. In attributing all legal change to other developments we run the risk of reducing the law to mere superstructure.Why Legal History Matters (Cont.)3. Legal History is LiberatingThirdly, why legal history matters is in substantial measure a derivative of the first. The contingency that I have described is liberating. Appreciating the message of contingency demystifies the law, removes history as authority in itself, and makes it possible for current students and practitioners to envisage other worlds, other ways of doing things. Earlier I described the state of English legal history before the 1970s. In one sense that was an unfair characterization, because this point was understood long ago by the pioneer English legal historian, F W Maitland.Why Legal History Matters (Cont.)Maitland indeed could have been the person who brought the common law world's legal history into the modern period, had he created a set of disciples rather then be effectively ignored for decades. He believed in a legal history which brought out all the political, social, economic and moral aspects of legal developments.The only direct utility of legal history ... lies in the lesson that each generation has an enormous power of shaping its own law. I don't think that the study of legal history would make men fatalists; I doubt that it would make them conservatives. I am sure that it would free them from superstitions and teach them that they have free hands.

Why Legal History Matters (Cont.)4. Legal History, Legal Pluralism and Alternative VisionsThe fourth reason why legal history matters for understanding the complexity of law is that it allows us to see that what we think of as the law today, and then assume to have always been the case, has in fact not always predominated. The jury example I have just used to make a different point is an example of this. Not just the practices of the institution but also the ideas underlying those practices were radically different from what they are today. More generally, like all history, legal history produces winners and losers. Losers are those whose vision of society and belief systems lost out in the struggle with other visions. Legal history enables us to excavate the past for such phenomena, to show that there have been, and thus are, arguably legitimately different ways to think about many things, including legal orders.Applied Legal History?What is applied legal history? It is deeply researched, serious scholarship that is motivated by, engages with, or speaks to contemporary issues.- Alfred L. Brophy, Introducing Applied Legal History Law and History Review, February 2013.