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Rajan Khatiwoda, Simon Cubelic and Axel Michaels (eds), The Mulukī Ain of 1854: Nepal’s First Legal Code

Martin Gaenszle
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Rajan Khatiwoda, Simon Cubelic and Axel Michaels (eds), The Mulukī Ain of 1854: Nepal’s First Legal Code introduced, translated and annotated, with Forewords by Patrick Olivelle and Saubhagya Pradhananga. Heidelberg: Heidelberg University Publishing, 2021. xix, 882 pp.

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1For decades social scientists have made reference to the Mulukī Ain as a key text for the understanding of Nepali society in the nineteenth century and beyond. And indeed, the Ain can be seen as an early form of constitution-cum-law-code of the Hindu monarchy, providing the legal framework for a premodern state on the verge of embracing modernity and reform. At the same time it may be said that it is the self-definition of traditional caste society portraying itself as assertive in the context of colonial rule in South Asia. However, most authors have only made selective use of the law book, and it has always remained the reserve of Nepali experts to view the code in its entirety. The publication under review is bound to change this situation.

2Ever since András Höfer’s book dating back to 1979, which made the Mulukī Ain known to a wider international audience, this legal code has seemed to deal mainly with the caste system. And it is true that caste is an overarching category, omnipresent in the provisions of the Ain. The detailed regulations concerning intercaste relationships set out in the family law section is ideally suited to an interactional analysis of caste status. However, of even more interest to ethnologists, the law book depicts a comprehensive image of the diversity of ethnic groups and presents a conceptual integration of diverging caste practices into a unitary system. It was this aspect in particular that made the Ain (and Höfer’s study) a perfect entry point – and compulsory reading – for an understanding of Nepal’s traditional society as well as modern ethnic politics. But the text covers many more legal domains, providing insights into judicial conflicts in nineteenth-century Nepal. It provides a glimpse of everyday problems (such as brawling, or fighting over property) and the attempts of the state to deal with crime and immorality. Some of the Ain’s articles had already been translated and studied, such as the ones dealing with witchcraft, widow burning, the killing of a cow or forced labour (and this is conveniently summed up in Table 1 of the introduction to the volume), but there is so much more to discover.

3It is therefore a milestone achievement that the whole law book is now available in English translation. This makes it possible for the international scholarly community to gain a comprehensive view of the Ain which stands out as a unique text, not only in Nepal but throughout South Asia. The fact that one can draw on a wealth of new source materials previously only accessible in the Nepali language in a (somewhat difficult) judicial register opens a new field for historical research and studies in comparative law. Readers, especially if they are not Nepal experts, will also value the comprehensive glossary. And as the publication is also available online in open access for downloading (https://heiup.uni-heidelberg.de/​catalog/​book/​769), it is easy to do keyword searches – which compensates for the lack of an index.

4Most of this voluminous book containing more than 800 pages consists of the translation of all 165 articles. The translators have added footnotes, when necessary, for the sake of comprehension but on the whole this comprehensive and often meticulously detailed law book speaks for itself. The translation is preceded by an elaborate and valuable – almost book-length – chapter that contains the introduction (p1–81) which places the Ain in its historical, legal and anthropological context. This is the part that also includes the translators’/editors’ major scholarly reflection and interpretations, and so this review will mainly focus on this.

5The Introduction first outlines the historical significance of the Mulukī Ain as a text at an important juncture in Nepal’s history. Promulgated in 1854, shortly after Jang Bahadur’s journey to London and Paris, it can be seen as a deliberate measure to strengthen the kingdom’s statehood vis-à-vis colonial British India by codifying Hindu customary law in a modernising world. Building on earlier laws by way of a royal decree, the Ain, drafted by a council of 219 members, was an attempt at unifying and homogenising existing legal texts; and it became one of the first printed books in Nepal. However, the Ain was constantly amended and modified, and so there exist several different manuscript versions and editions of the original text. It is one of the merits of the introduction that this textual history of the law book is outlined in clear terms.

6The authors further discuss the sources of the Ain, which are quite varied: though the Dharmaśāstra texts are not directly referred to, their influence is strongly felt in many rules and principles, especially in the context of caste. However, the authors also point out a certain ‘openness to Western forms of polity’ (p19), which emerges for example in attempts to introduce some ‘legal checks and balances’ demarcating the powers of the king, the prime minister and the judiciary. Most significantly, however, the law draws on customary practice and previous legislation, and though some parts seem to drift off into scholastic systematisation, in many articles the legislator’s experience of actual litigation is clearly noticeable (see below).

7Above all, the Introduction gives a detailed overview of the structure and content of the extensive law book. As shown in Table 2, the 165 articles can be divided into seven types of law, though these do not reflect the actual, somewhat jumbled sequence of the Ain. The first type is state law, which includes the Preamble to the code (specifying the law-giving body) and sections dealing with the throne and royal affairs. The Ain thus does indeed appear like a constitution, defining the structure of statehood (especially the role of king and prime minster), as well as the territorial sovereignty of the kingdom. While these ‘constitutional’ laws are not yet very developed, the largest part, described in the next section of the Introduction, deals with civil law, ie laws relating to caste, family, kinship and ritual purity. In fact, this makes up about one third of the Ain. As already indicated, this is the part that is best known to scholars through earlier work. These laws serve to rigorously govern the relationship between castes in terms of rules for intermarriage and commensality and to establish a clear hierarchy, especially by distinguishing four main (varṇa-like) caste groups. This caste hierarchy, it clearly emerges, is a fundamental feature of the whole Ain. It also crucially affects the third category, criminal law, which determines punishment for offences (ranging from flatulence to homicide) on the basis of caste membership. And caste is also important in labour law, which mainly deals with slavery (concerning so-called ‘enslavable castes’) and compulsory labour. Caste is less significant in the fifth category, land and property rights, but here also some forms of tenure are restricted by caste (eg kuśa birtā) or ethnicity (kipaṭa). The last two categories of law deal with the judicial system (public, administrative and fiscal law) and finally procedural law and punishment. As may be expected, the forms of punishment are largely based on caste status (eg caste degradation), and here it becomes evident that the line between religious law and secular law is often difficult to draw. After all, the Ain as a whole is Hindu law.

8Towards the end of the Introduction, the authors take up the all-important question of whether the text was in fact the basis of legal practice. The answer to this question is assuredly in the affirmative because there is documentary evidence of court proceedings that refer to specific articles in the Ain when justifying decisions. Moreover, there is evidence that the Ain was not only used in the Kathmandu Valley, but also in more remote areas of the kingdom. There is no doubt that the Ain was ‘not simply a theoretical and scholarly work’ (p79) of Brahmans, but an important legal framework used in actual jurisdiction. This seems to be particularly the case in the context of criminal law and land and property rights. However, the situation is less clear in the vast field of civil law. It remains an open question as to what extent the strict rules of intercaste relationships were really enforced through these laws. Hypergamous intercourse between low-caste men and high-caste women may have been an indictable offence, especially in Hindu-dominated areas, but what about such relationships among the ‘impure’ castes, which equally infringe the law but are less strictly sanctioned? Many of these laws may have resulted from actual court cases initiated by victims from high castes; but laws concerning low-caste victims were probably less often enforced (cf Höfer 1979: 40) and may have been largely the result of an inclination to systematise the law as a whole.

9Yet many parts of the Ain give vivid insight into matters apparently dealt with at the local court level. In fact, this is what often gives the text a down-to-earth perspective, a sometimes graphic and even amusing quality, which raises many questions about everyday life at the time. For example, one learns much about forms of quarrelling and harassment in nineteenth-century Nepal. Among other things, article 58 ‘On Brawling’ governs cases in which people ‘scratch each other and blood is drawn’ (4), or in which a person attacks another ‘with nettles’ (9). An entire article (61) governs cases of ‘farting in the face’ of someone else, and another (62) deals with the issue of spitting ‘on the mouth’ of another person, all particularly severe cases of pollution. Article 67 (‘On Chilli’) specifies sanctions for smearing ‘chilli in the face, in the eyes’, or ‘on the victim’s penis’, or throwing chilli ‘on the victim’s vagina’ etc; apparently a way of harassment that had to be dealt with by the courts.

10Interestingly, there is an almost modern tinge to some regulations. For example, under article 59 ‘On Beating between Father and Son’, it is said: ‘No father or mother shall beat their sons or daughters’ (2). However, the legislators continue, if punishment is necessary, ‘they shall be locked in a dark room or shall be verbally threatened’. And as far as domestic violence is concerned, women are seen as especially vulnerable. Article 58.20 specifies: ‘…if a man beats a woman, that man shall be fined twice as much and imprisoned twice as long as he would have been for beating another man’.

11Not surprisingly, a great deal of civil law concerns gender relations, such as in the event of partitioning family property, which requires determining the shares of an inheritance. Also, marital relations (including those not ritually sanctioned) and rupture of these relations are dealt with in detail: divorce is a common option, requiring management of the woman’s subsequent financial support. A woman’s right to her dowry is protected against her husband’s greed, at least to a certain degree. For historians and anthropologists interested in kinship and gender studies, all this provides valuable material for comparative enquiries.

12Also of socio-cultural interest are the various articles dealing with the maintenance of public order. The legislator was concerned with everyday problems such as the cleaning of alleys in the city (‘No one shall throw water out of the window on the main alley’, article 79.3), or the building of a new house – as well as the collapse of a house in ruins (article 76). A recurrent issue is the use (or misuse) of alcoholic drinks (see the lengthy article 87). For example, entering the house of somebody of a higher caste in a ‘heavily drunken state’ can be a punishable offence (article 87.1). Likewise, ‘if someone forcibly brings liquor’ into a higher-caste household, this can be sanctioned. Pollution was an omnipresent danger.

13All these examples illustrate the fundamental tension that characterises the Ain. On the one hand, it is clearly a law book that is meant to ‘cement traditional society’ (p81), which is basically a religious – Hindu – social order protected by a monarchical state. There is no doubt that it reflects a pervasive Brahmanical perspective. On the other hand, the Ain is also an attempt at establishing a legal framework which is up to date, meets the challenges of that time period and is on a par with the colonial power to the South, and yet different. As mentioned above, a limited separation of powers was introduced, which was meant to check the potential abuse of power. Even the king and the prime minister were bound by law. And the detailed regulations of civil law enforceable through a well-defined court system provided for a certain degree of legal security. At the same time, it is evident that the law was thoroughly caste-based and thus eminently hierarchical. It was built on group rights, not individual rights, and above all benefited the high castes and powerful elites.

14The authors call this a strategy of ‘traditionalising modernity’ rather than ‘modernising tradition’, which implies that the outcome is a different kind of modernity. The way the Ain has contributed to ‘modernisation’ in Nepal remains a matter of debate. What becomes clear from a closer study of this monumental text is that to regard Jang Bahadur’s vision of statehood and governance as merely reactionary and self-serving is too simplistic. Though the Rana State no doubt evolved as an autocracy and exploitative system, the Mulukī Ain project also significantly contributed to the strengthening of an emerging nation-state which managed to resist colonisation by a foreign power. Such transnational aspects of the legislative project have been stressed in recent historical works (eg Sanjog Rupakheti 2017) which put the Ranas’ reformist endeavours in a more global perspective. A major merit of this English edition of the Ain is that it opens up and facilitates critical discussion of such developments for international scholarship.

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Bibliographie

Höfer, A. 1979. The Caste Hierarchy and the State in Nepal. A study of the Muluki Ain of 1854. Innsbruck: Universitätsverlag Wagner (Khumbu Himal, Band 13/2).

Rupakheti, S. 2017. ‘Beyond dharmashastras and Weberian modernity: law and state making in nineteenth-century Nepal’. In Law Addressing Diversity: Premodern Europe and India in comparison (13th–18th centuries), edited by Gijs Kruijtzer and Thomas Ertl, pp169196. Munich, Vienna: De Gruyter Oldenbourg.

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Martin Gaenszle, « Rajan Khatiwoda, Simon Cubelic and Axel Michaels (eds), The Mulukī Ain of 1854: Nepal’s First Legal Code »European Bulletin of Himalayan Research [En ligne], 63 | 2024, mis en ligne le 20 décembre 2024, consulté le 12 janvier 2026. URL : http://journals.openedition.org/ebhr/2682 ; DOI : https://doi.org/10.4000/13mzy

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Auteur

Martin Gaenszle

Martin Gaenszle is Professor of Cultural and Intellectual History of Modern South Asia at the University of Vienna, Austria, and Director of the Center for Interdisciplinary Research and Documentation of Inner and South Asian Cultural History (CIRDIS). His scholarly interests include religious pluralism, ethnicity, local history and oral traditions in South Asia, in particular the Himalayan region. He has done field research in eastern Nepal and North India and has published books on Rai oral traditions, ritual speech and concepts of space in Banaras. He has recently been working on ethno-religious reform movements in Nepal.

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