Historical Back Ground of Legislative Drafting:: Potu - Rahul Choudari

POTU.
RAHUL CHOUDARI
Research Scholar in Faculty of Law,
Jodhpur National University,
Jodhpur, Rajasthan.
Email: [email protected]
HISTORICAL BACK GROUND OF LEGISLATIVE DRAFTING:

ethical and legal norms by which human conduct is sometimes evaluated and
governed. Natural law is often contrasted with positive law, which consists of
the written rules and regulations enacted by government. The term natural
law is derived from The unwritten body of universal moral principles
that underlie the the Roman term jus natural. Adherents to natural law
philosophy are known as naturalists.
Naturalists believe that natural law principles are an inherent part of nature
and exist regardless of whether government recognizes or enforces them.
Naturalists further believe that governments must incorporate natural law
principles into their legal systems before justice can be achieved. There are
three schools of natural law theory; divine natural law, secular natural law and
historical natural law.
Divine natural law represents the system of principles believed to had been
revealed or inspired by God or some other supreme and supernatural being.
These divine principles are typically reflected by authoritative religious writings
such as Scripture. Secular natural law represents the system of principles
derived from the physical, biological and behavioral laws of nature as perceived
by the human intellect and elaborated through reason
Historical natural law represents the system of principles that has evolved over
time through the slow accretion of custom, tradition, and experience.
In olden days, there is no legislation, but the administration of justice was

going on according to customs, conventions, usages and practices. Although
proper legislation was not there, justice was available to the public according to
the system of natural justice and which they use to call it ‘Devine law’. When
the times pass on, law which originally may be regarded as the common
property of collective people, it was felt that there should be a write up which
guides the law givers while adjudicating the matters right from village level.
The source of Dharma is in the Vedas. It is believed that like the Vedas,
dharma is not a human origin and therefore its existence is intangible. At the
same time, dharma operates in practical ways beyond mere meaning. Some
dharmas are based in the customs of different regions, jatidharma, dharma of
different social groups, and kuladharma, dharma of different families. The
sources of these dharmas are not found in the vedic texts. This leads to
incongruity between theology and nature of dharma and the reality of rules as
mentioned in the dharmasutras. The sources of dharma according to Gautama
are smrti, the tradition, acara, the practice and those who know the veda.
These three sources are commonly referred to in literature. Written after the
dharmasutras, these exists use a metered verse and are much elaborate in
their scope. Scholars have postulated that these texts are actually
compilations of common gnomic verses of the times, known by the sistas.
Such verses were regularly cited as legitimation for legal judgments and advice.
Apastamba made an attempt to resolve this issue of dissonance. He placed the

importance of Veda second and that of accepted customs of practice first. He
also had realistic views about the difficulty of right judgment in dharma due to
its indefinable nature. He further gives the theory of the ‘lost veda’ and says
that originally all the rules of dharma were contained in the vedas,but not that
contents of vedas are lost.
Customary law refers to the laws, practices and customs of indigenous and
local communities which are an intrinsic and central part of the way of life of
these communities. Customary laws are embedded in the culture and values
of a community or society; they govern acceptable standards of behavior and
are actively enforced by members of the community. As these laws are peculiar
to the specific cultures in which they have evolved, the global landscape of
customary laws and practices is rich and highly diverse. While there are
similarities from which common principles may be drawn, customary laws are
often quite distinctive and as such do not lend themselves easily to a ‘one-size-
fits-all’ approach. While the need to give due consideration to customary laws
in the protection of Traditional knowledge and TCEs is increasingly recognized,
it is not yet clear what this means in practice.
Ultimately, it will fall to national governments to decide on the extent to which

their respective legal system evolve to incorporate customary laws.
The modern codification of civil law developed from the tradition of medieval
customaries, collections of customary law that developed in particular
communities, slowly gathered, and later written down by local jurisits.
Customaries acquired the force of law when they became the undisputed rule
by which certain rights, entitlements, and obligations were regulated between
members of a community.
Another important feature of law is psychologically people because they were

religious minded in those days. Each religion started following law in
accordance with the postulations inscribed in their respective religious guides.
While all communities are governed by different laws, there are similarities
between them that can be extrapolated to establish common principles around
which legal practice might be developed. There are clearly many challenges
ahead, and the debate continues to roar, but there is at least widespread
recognition of the need to work towards effective solutions that protect the
interest of indigenous communities and safeguard them against the misuse
and misappropriation of their traditional knowledge.
In the same manner as far as Hindu religion is concerned Manu wrote a

smruti, which is named after him, wherein different aspects required for
running the kingdom and the things that are to be followed by the people
incorporating all those systems which were in vague at that time. It was every
enlarged smruti which is considered to be the first legal scriptum thereby
manu was considered to be a first law giver.
YAGNAVALKYA:
In the same manner as far as Hindu religion is concerned Manu wrote a
smruti, which is named after him, wherein different aspects required for
running the kingdom and the things that are to be followed by the people
incorporating all those systems which were in vague at that time. It was every
enlarged smruti which is considered to be the first legal scriptum thereby gave
early Hindus a smriti or a system of law which was concise, systematic and
more logically arranged than its forerunners, the Dharmasutras. The
Dharmasutras were mostly in prose or in prose mixed with verse, while the
Dharmasastras came to be written entirely in verse in metre familiar with
masses and in a style close to classical Sanskrit. Of all the smrithies,
Yagnavalkya is assuredly the best compiled and appears to be most
homogenious.
“We are struck, by the Sober Tone, the concise style, the strictness with which
the topics are arranged. We find none of those lyrical flights which are after
all, the literary beauty of manu… We come across no repetitions, no
contradictions, none of those second thoughts which make the meaning of
Manu at times somewhat less than definite. The author has obviously sought
to make his formulas as brief as is consistent with clarity. There are cases
where he appears to compress two slokas of manu in to one.
Mahamahopadhyaya Kane has this to say of Yagnavalkya : In the same manner
as far as Hindu religion is concerned Manu wrote a smruti, which is named
after him, wherein different aspects required for running the kingdom and the
things that are to be followed by the people incorporating all those systems
which were in vague at that time. It was every enlarged smruti which is
considered to be the first legal scriptum thereby work is more systematic than
that of manu. He divides his work into three sections and relegates all topics
to their proper positions and avoids regulations. He treats of almost all
subjects that we find in Manu, but his treatment is always concise and makes
great and successful efforts at brevity.
And again though the author’s great aim has been to be concise, his verses are
hardly ever obscure. The style is flowing and direct. There are not many
unpaninian expressions.
Tirukkural:
Tirukkural which is considered as Tamil Veda consists of 1330 aphorism

grouped into 133 chapters of 10 couplets each. This Veda is authorized 2000
years ago by Saint Tiruvalluvar. It emphasizes on universality of god,
universality of vertus, the need for non-violance and vigitarism. Tiruvalluvar
devoted 10 couplets from this veda exclusively with an intention that an
individual should submit to God but not revealed even remotely his own
religious effliation.
EARLY CODES:
Another oldest codes of law is that of Hammurabi and is described as the
‘completes and most monument of Babylonian Law”. The ten commandments
is another code which has survived through ages for the reason that it is a
significant piece of legislation on legislative drafting which is ancient line age.
ROMAN LAW:
Roman law is a complete system of perfect law, which is still the
basis of the civil law system around the world.
CODE NEPOLEAN:
Another code owning its origin to Nepolean (1804) is remarkable for the
measure of residity it possesses. It is almost fee from the non juristic
elements.
ISLAMIC LAW:
In Islamic Law, no commandments, 12 tables, digests or codes were originally
drawn up. The concept affair rounded and complete system which will meet
any case and to which all cases must be existed by legal fiction or equity.
EVALUATION OF STATUTE LAW:
In 1100 Henry I, issued a charter of liberties and from that time onwards the
charter becomes frequent form of legislation. According to Plucknett, it is in
the reign of Henry II there is a great of legislation. The forms which it took
were various. The ancient and solemn charter is replaced by the assize. In the
middle of Henry III’s reign a revolutionary body of balance established a special
missionary for the purpose of legislation.
In the reign of Edward I, some extremely important legislation emanated from

the King’s counsel alone or almost from a counsel of parliament. In the 14 th
century Parliamentary legislation in England become more and more general.
During the Henry III’s reign a volume of statutes was produced equal to the
combined output of the previous 2nd half centuries.

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POTU.

HISTORICAL BACK GROUND OF LEGISLATIVE DRAFTING:

In olden days, there is no legislation, but the administration of justice was

Apastamba made an attempt to resolve this issue of dissonance. He placed the

Ultimately, it will fall to national governments to decide on the extent to which

Another important feature of law is psychologically people because they were

In the same manner as far as Hindu religion is concerned Manu wrote a

Tirukkural which is considered as Tamil Veda consists of 1330 aphorism

In the reign of Edward I, some extremely important legislation emanated from

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