Swadeshi Jurisprudence And Colonial Afterlife Of Order XXI

In civil matters, the separation of judgment from enforcement is not a colonial peculiarity. The idea is much older and can be traced at least to Roman law. In classical Roman procedure, a judgment, called the iudicatum, did not enforce itself. Instead, it created a new obligation known as the obligatio iudicati, treated as a debt arising from the judgment itself. If the debtor did not pay within thirty days, the successful party had to bring a fresh proceeding known as the actio iudicati, or action upon the judgment. Enforcement was therefore a second proceeding, not an automatic consequence of the decree. In its earliest form it was directed against the person rather than property. Under the Twelve Tables, Rome's oldest code, the unpaid creditor could bring the debtor before the magistrate and lay hands upon him in a formal act called manus iniectio, the laying on of hands. If no one came forward as surety, the creditor could take the debtor away and keep him in bondage, his name and debt proclaimed on three successive market days. Only later did the law turn from the body to property, allowing the creditor to sell the debtor's whole estate in a proceeding called bonorum venditio, the sale of goods, softened afterwards into bonorum distractio, under which only so much property as the debt required was sold.Behind evolution of civil laws across centuries lay a single idea that survived. A civil judgment declared rights between private parties, but the burden of making those rights real remained with the successful party. The State provided courts, officers and legal process, but it did not act on its own initiative. The common law adopted the same structure without altering it in substance, and it was this structure that was carried into India by the colonial codes of 1859, 1877 and 1882 and finally by the Code of Civil Procedure of 1908, whose Order XXI remains the longest Order in the Code. The system examined in this essay therefore rests upon a very old assumption that enforcement is the responsibility of the successful litigant and not the State's own act. That assumption was inherited, expanded into countless procedural rules, and allowed to survive.There is no satisfying jurisprudential account of why civil law should continue to be built this way. Search the codes and the commentaries, and one finds the rule stated everywhere but its foundations examined only rarely. The nearest explanation lies in the old distinction Blackstone drew in his Commentaries on the Laws of England between private wrongs and public wrongs. Private wrongs, or civil injuries, are infringements of the rights that belong to individuals as individuals; public wrongs, or crimes, are breaches of duties owed to the community as a whole. To take his own categories, the detaining from a man of a field to which the law has given him a right is a civil injury and not a crime, for only the right of an individual is concerned. Upon this distinction the design is usually rationalised. A crime offends the community, so the State prosecutes and enforces in its own name. A civil wrong injures an individual, so the law leaves the assertion of the right to that individual. But this does not explain why, after the court has heard the dispute, declared the right and given judgment, the same party must begin again to enforce what he has already won. At that stage what is in question is no longer the private right of the litigant alone, but the authority of the court and the credibility of the State's own adjudication.The State does not, in truth, stand aside. It enforces; but in the criminal law its hand falls upon the convict at once, as part of the same act that condemns him, while in the civil law it falls upon the decree only at the end of a second and separate ordeal, which the winner must institute and pursue afresh. The comparison begins only after the court has finally adjudicated the parties' rights, and is not to be understood as importing into the institution or trial of a civil suit the coercive incidents of the criminal law. The question, then, is not whether the State will act, but why its enforcement, immediate once guilt is found, is made to wait once a right is declared. Nor is the State a stranger to the land in dispute. It records the title and takes its fee for doing so; it taxes the holding; it may acquire the whole of it compulsorily when public purpose demands. When the very deed it has registered is called in question, the State is no outsider to that quarrel but the author of the record in dispute, and might be expected to come forward and say whether its own registration stands, rather than leave two citizens to litigate for years over the worth of a document it has itself issued.And the stake in that question is not small. For the man who has lost his only land, the matter the law calls private is nothing of the sort. It is the loss of his home, his livelihood and his security, a catastrophe which, in a poor country, ...

Swadeshi Jurisprudence And Colonial Afterlife Of Order XXI

Biswajit Mohapatra

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Biswajit Mohapatra

Swadeshi Jurisprudence And Colonial Afterlife Of Order XXI

Biswajit Mohapatra

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Biswajit Mohapatra

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