Privy Council Cases -- Not As Boring As You Might Expect

Even an Anglophile with something of an antiquarian bent might think an article titled The Privy Council as the Final Court for the British Empire (abstract here) could be a bit boring. After reading it, I won't fight too hard hard against that suspicion. I had read a number of Privy Council opinions for my article on impossibility in Indian contract law (Clear Rules Still Produce Fuzzy Results: Impossibility in Indian Contract Law, abstract here) and found them to be well-written even if they ultimately contributed to misdirection of the Indian law on the subject.

Nonetheless, I was struck by two points in the Privy Council article. First is an uproariously understated account of an Indian case, Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy, or, as I might term it, "Cremated: Dead or Alive?" Someone should make a film about its facts. In short, a fellow showed up in 1930 claiming to be the Second Kumar of Bhowal, who, his wife (widow?) and many witnesses testified, had been dead and cremated following a long bout with syphilis 21 years earlier. Not so fast, the self-professed Second Kumar claimed, there had been a downpour immediately before the cremation was to have taken place, which awoke me from a catatonic slumber, and I simply walked away. Don't know whose remains they were that were burned but it wasn't me. The surprisingly healthy self-proclaimed Second Kumar lost at all levels including in the Privy Council. Not much of legal significance but sounds like a great fact pattern for a law school exam.

Of more interest but unfortunately underdeveloped is a quote from Viscount Haldane made in 1921: "We sit there to administer Buddhist law, or Hindu law, or Mohammedan law, one after the other." To be sure, these were after-diner remarks and nowhere does the article reflect on them but someone should check to see the extent of their accuracy. I think the question is worth examining because one reason commonly heard in America for opposing the use of Shari'a, even in matters of private law, is that on its own terms only Muslims can adjudicate it. If true, this raises concerns about the enforceability of billions of dollars of "Shari'a-compliant" transactions on the books of large American banks (nice article about the practice from Boston Globe here).

I suspect that, by and large, such loans are merely certified by a third party to comply with Shari'a and, if they don't, it's not the lender's problem. Yet to the extent that references to Shari'a form part of the text of the loan documents there is a possibility that a party will call on an American count to construe them. And it's here that risks from both sides loom.

On the one hand, American courts are constitutionally disabled from considering substantive religious tenets in litigation. On the other hand, some assert anyway, that non-Muslims are incompetent to interpret Islamic texts. And it's the latter point for which Viscount Haldane's after-dinner remarks piqued my interest. Did the most-British Privy Council successfully (at least from its own point of view and that of the litigants) construe and apply "Mohammedan" law? While not a solution to constitutional problem we may have a counter-example to the epistemological one.