Codifying the Common Law of Property in India: Crystallization and Standardization as Strategies of Constraint

• Autores: Shyamkrishna Balganesh
• Localización: American journal of comparative law, ISSN 0002-919X, Nº. 1, 2015, págs. 33-76
• Idioma: inglés
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• Resumen

  • The nineteenth-century codification of the common law in India by the British colonial government was much more than an attempt to clarify the law and render it more certain. It was in addition a deeply strategic exercise, wherein substantive legal rules provided the colonial government with a convenient, unnoticed, and indirect means by which to introduce far-reaching institutional and political reforms. Principal among these reforms was curtailing the fecundity of Indian customary law and judicial lawmaking. The codification of property law—in the Indian Transfer of Property Act of 1882—proved to be a perfect vehicle for true reforms. This Article reveals how two central features of property law allowed these changes to be realized with ease. The first of these is property law's presumptive affinity for crystalline (or bright-line) rules, a feature that the codifiers used to curtail the further development of the law by Indian judges. The second is the notion that property forms and institutions need to be standardized, which is the core idea behind the numerus clausus principle. The codifiers used this feature in turn to constrict Indian customary practices that related to property. The Article refers to the codifiers' use of these features as the “crystallization” and “standardization” strategies, respectively, and argues that their effects continue to be felt to this day in the everyday working of the Act of 1882.