Legal Education in Ancient and Medieval India

The consequence for this syllabus. The objectives of legal education discussed at chapters 20 to 40 presuppose a profession to be staffed. Where there is no such profession, the purpose of legal learning is different: it is the maintenance and transmission of a body of religious and social law.

Medieval India: Islamic legal learning

The subject. Islamic jurisprudence, with the Quran, the Sunnah, ijma and qiyas as its sources, and the classical works of the schools of law.

Where it was learned. In maktabs and madrasas, again as part of a religious education, with the study of fiqh among the subjects.

Who used it. The qazi as judge, and the mufti, whose function was to give a considered opinion on a question of law. Both were learned in the sources.

And the continuity of the older system. The Hindu law of the earlier period continued to govern many disputes among Hindus, and the learned men of that tradition continued to advise, so the two systems of legal learning existed alongside each other.

Again, no licensed profession. A person did not become a qazi or a mufti by passing an examination set by a regulator.

The discontinuity, and why it matters

The change is not that people began to learn law. They had been learning it.

The change is that a profession appeared whose members were admitted on a qualification and could be excluded, and that the qualification came to be a university degree.

That happened through the British courts, chapter 60: the Supreme Courts at the Presidency towns admitting barristers and attorneys trained in England, the Company's courts with pleaders trained by practice, and then the universities of 1857 taking law in as a subject.

So the honest periodisation is: legal learning without a legal profession; then a legal profession trained abroad or by apprenticeship; then a university qualification; then a regulated qualification under the Advocates Act 1961 and the Rules of Legal Education 2008, chapters 50 and 130.

And the point worth making in an answer. Each stage answers a different question. The ancient system asked how the law is preserved and transmitted; the modern system asks who may be allowed to practise. Legal education changed because the question changed.

What survived, and what did not

What did not survive. The institutions, the curricula and the languages of both earlier systems, so far as legal education is concerned.

What survived in the law itself. Personal law, which continues to govern matters such as marriage and succession according to the religion of the parties, so the substance of both traditions is still taught in an Indian law course.

And what survived as an idea. The conception of the learned adviser whose authority rests on knowledge rather than on a licence, which is what an academic jurist is, chapter 935.

A worked example

One question, two periods, and the same facts.

A dispute over inheritance in a village.

In the ancient period. It is resolved by the village assembly or by the king's court, advised where the question is doubtful by learned men whose authority rests on their study of the Dharmashastra. Nobody involved holds a qualification, and the learning that decides the case was acquired as part of a general education.

In the medieval period, among Muslims. The qazi decides, applying fiqh, and on a doubtful point a mufti's opinion is sought. Again, learning rather than licence.

Today. The parties instruct advocates, each of whom holds a degree from a university recognised by the Bar Council of India under section 7(1)(i) of the Advocates Act 1961, has been enrolled under section 24 and has passed the All India Bar Examination, chapter 420; and the personal law applied may still be derived from the same traditions.

Notice what changed and what did not. The law being applied has a continuous descent; the way the people who apply it are produced has changed completely. That contrast is the answer to a question about development from the ancient period to the modern.

Quick revision

The structural point: in neither the ancient nor the medieval period was there a licensed profession admitted on a course of study, so there was no professional legal education in the modern sense.

Ancient India: legal learning within the Dharmashastra tradition and the Arthashastra, taught as part of general scholarly education; the king adjudicated with the advice of learned men and of the parishad; village and guild bodies resolved disputes.

Medieval India: Islamic legal learning in maktabs and madrasas as part of religious education; the qazi as judge and the mufti as giver of opinions; the earlier tradition continuing alongside for Hindus.

The discontinuity came with the British courts, the barristers and pleaders, and the universities of 1857, chapter 60.

The periodisation: learning without a profession; a profession trained abroad or by apprenticeship; a university qualification; and a regulated qualification under the Advocates Act 1961.

State what is disputed. The character of the learning and the absence of a licensed profession can be asserted; the detail of curricula and institutions cannot.

Test yourself

1. What is the structural point on which an answer about ancient and medieval legal education should rest? That in neither period was there a licensed profession of law admitted on a course of study and subject to a regulator, so there was nothing for a professional legal education to qualify a person for; legal learning existed, but as part of a wider religious and scholarly training.

2. Describe how legal learning was acquired and used in each period. In the ancient period it was the study of the Dharmashastra within general education, and it was used by the king adjudicating with the advice of learned men and by village and guild bodies. In the medieval period Islamic legal learning was imparted in maktabs and madrasas as part of religious education and was used by the qazi as judge and the mufti in giving opinions, while the earlier tradition continued for Hindus.

3. What exactly changed with the arrival of the British courts? Not that people began to learn law, which they had been doing, but that a profession appeared whose members were admitted on a qualification and could be excluded, and that the qualification came in time to be a university degree, culminating in the regulated qualification under the Advocates Act 1961.

4. What caution should a candidate observe in answering this question? That the sources for these periods are weak, so the character of the learning and the absence of a licensed profession may be asserted while the detail of curricula, institutions and numbers is contested. A confident narrative of ancient law colleges asserts more than can be shown.