legal consciouness in medieval indian narratives

Law, Culture and the Humanities

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LAW, CULTURE

AND

THE HUMANITIES

Legal Consciousness in Medieval Indian Narratives

Donald R. Davis, Jr.University of Wisconsin-Madison

John NemecUniversity of Virginia

AbstractIn this essay, we make a case for reading narratives from the great story collections of medieval

India as evidence of legal consciousness. We attempt to redirect the largely empirical approach

of legal consciousness studies toward the literary and historical analysis of Sanskrit texts. In so

doing, we move beyond a legal history of India that focuses too narrowly on the texts of Sanskrit

jurisprudence. We conclude that such analysis provides insight into both the literarily constructed

image of law as the hegemonic domain of elite Brahmins and kings and the assumptions and

awareness of law and legal procedure among ordinary people in this historical context.

KeywordsHistory, India, legal consciousness, legality, literature, medieval, narrative

Legal history in medieval India poses a challenge because direct, datable evidence for legal practice is only found in scattered fragments.1 Very little legislation survives, most

Corresponding author:

Donald Davis, Department of Languages & Cultures of Asia, University of Wisconsin-Madison, Madison, WI, USA.

Email: [email protected]

443762 LCH0010.1177/1743872112443762Davis and NemecLaw, Culture and the Humanities2012

Article

1. Axel Michaels, The Practice of Classical Hindu Law, in T. Lubin, D.R. Davis, Jr. and J. Krishnan, eds., Hinduism and Law: An Introduction (Cambridge: Cambridge University Press, 2010), pp. 5877, provides a convenient summary of what is currently known about law in practice in premodern India.

2 Law, Culture and the Humanities 0(0)

likely because it was not a significant way to make law. Records of trials, disputes, or judicial activities are sometimes preserved, but mostly from a relatively recent date, after 1500 or so. As a result, not enough is known about the ways law functioned in India prior to the colonial period, about how it was understood by those who engaged it, or about how law developed during major political, social, economic, and religious transforma-tions. The purpose of this essay is to approach this problem in a different way by examin-ing law in literary works, mostly datable, written in Sanskrit.2 Specifically, new conclusions about the practice of law in medieval India may be drawn from the literary sources when they are read as evidence of legal consciousness.

The study of legal consciousness traces the ways in which law is experienced and interpreted by specific individuals as they engage, avoid, or resist the law and legal meanings.3 Legal consciousness, then, refers in a general sense to a basic awareness of the substance and procedures of law in some group, whether one of ordinary people or legal specialists.4 More specifically, legal consciousness can refer to an awareness, or lack of awareness, of the inequitable and power-reinforcing gap between the rules of law and the practice of law, and by extension it indicates the unconscious toleration of that gap due to ideological or structural factors in society. The study of legal consciousness in this more specific sense carries with it a program of analyzing and potentially unmasking hegemonic ideologies or structures that prevents a liberating consciousness of laws effects to emerge. In other words, legal consciousness in its specific meaning serves as a diagnostic concept that may be employed in the investigation of both the circumstances in which people come to possess a thorough grasp of the law and legal processes and

2. While we are not the first to explore the theme of law in Sanskrit narrative literature or even in the particular works in question, very little scholarship exists. See, recently, Phyllis Granoff, Justice and Anxiety: False Accusations in Indian Literature, Rivista degli Studi Orientali (forthcoming), in addition to the few studies cited below.

3. Susan S. Silbey, Legal Culture and Legal Consciousness, in International Encyclopedia of Social and Behavioral Sciences (New York: Elsevier, Pergamon Press, 2001), p. 8626, which contains an excellent overview of the literature on legal consciousness and theoretical reflections on both its limitations and usefulness. See also Carol J. Greenhouse, Praying for Justice: Faith, Order and Community in an American Town (Ithaca, NY: Cornell University Press, 1986); Sally Merry Engle, Getting Justice and Getting Even: Legal Consciousness Among Working-class Americans (Chicago, IL: University of Chicago Press, 1990); Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects: Order and Compliance in a New England Court (New York: Routledge, 1993); Patricia Ewick and Susan S. Silbey, The Common Place of Law: Stories from Everyday Life. Chicago, IL: University of Chicago Press, 1998); and Susan S. Silbey, After Legal Consciousness, Annual Review of Law and Social Science 1 (2005), pp. 32368.

4. We note that, in the context of the study of legal consciousness in contemporary American society, the term is most often understood to refer to the non-specialists awareness of the law, and in particular to the ways in which such an awareness informs citizens decisions to pursue legal relief in the courts.

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those in which people are unaware of, resistant to, or even resigned to, the dynamics and indeed the hegemony of the law as it affects them.

To date, legal consciousness has been a scholarly category used primarily in modern, empirical contexts in which social scientific data can be marshaled to reveal patterns about attitudinal and experiential aspects of the law that lie beyond both traditional anal-yses of law in books and more recent emphases on law in action as determined through observation and sociological data. In this essay, we extend the concept of legal con-sciousness into two areas where it has yet found little purchase: history and literature. From a comparative perspective, William Ewald has argued: The social-context approach gives us external factors about the way people behave; but what we need to understand is the ideas and the reasons for the behavior. In other words, it seems that what we need to understand is neither law in books nor law in action, but law in minds.5 Ewalds main point is to emphasize context as a critical factor in all comparative legal studies. External evidence of law from law-books, legal documents, or observation only goes so far in providing insight into the contextual, i.e. internal vis--vis external, under-standing of legal rules and processes. Citing Ewald and Franz Wieacker, James Gordley suggests further that legal history similarly requires attention to context and the erstwhile consciousness of context in order to avoid what he calls the common mistake shared by legal historians and comparative lawyers:

The mistake for legal historians is to assume that the law of a given time and place develops in its own way which can be studied without regard to how the law developed elsewhere. The corresponding mistake for comparative lawyers is to assume that the law of each modern jurisdiction forms a coherent system rather than an amalgam of solutions developed over time.6

Gordleys warning against the highly systematized view of law by both historians and comparatists encourages a reading of history that puts articulations of coherent legal systems second behind nuanced descriptions of contextually significant evidence of diverse legal consciousness, of laws messiness in practice and awareness.

When we think then about literature in relation to legal history, literary and other fictional descriptions illuminate the diverse awareness of and engagement with the law in given contexts through their depiction of what medievalists often call the mentality of a certain time and place. Whether it is depositions in early modern England or pardon tales in sixteenth-century France, fictional accounts and literary representations are prized as unusual for the extent to which they reflect the thoughts, beliefs, attitudes and emotions of mostly uneducated people, expressed in their own word.7 Narratives of

5. William Ewald, Comparative Jurisprudence (I): What was it Like to Try a Rat? University of Pennsylvania Law Review 143(6) (1995), p. 2111.

6. James Gordley, Comparative Law and Legal History, in M. Reimann and R. Zimmermann, eds., The Oxford Handbook of Comparative Law (New York: Oxford University Press, 2006), p. 763.

7. Malcolm Gaskill, Reporting Murder: Fiction in the Archives in Early Modern England, Social History 23(1) (1998), p. 2; Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France (Stanford, CA: Stanford University Press, 1990).


all sorts, in fact, have become important sources of what Robert Cover famously called law as meaning, as opposed to law as power.8 Literature, therefore, contains under-utilized resources for understanding legal consciousness in historical contexts that in turn deepens our contextual knowledge of law in practice.

In this study, we employ the notion of legal consciousness to investigate some examples of narrative literature from medieval India that reveal, in our view, both a general awareness of substantive law and legal procedures and the power-inflected representations of a consciousness of the law that sometimes tolerates and sometimes challenges discrepancies between rule and practice. Our primary evidence consists of stories that were composed in the Kashmir Valley in the eleventh and twelfth centuries, but that circulated widely in India and beyond.9 The texts reveal first a legal conscious-ness that selectively recognizes inequity in a manner that reinforces the caste norms and gender biases often found in Sanskrit texts. They also strategically ignore the negative consequences suffered by various marginal agents in the stories, all in the name of exemplifying the innate virtue of the law and of the kings whose authority enforces it.

The evidence of legal consciousness examined here challenges extreme views, of currency today among some scholars of Indian law, either that India had no law in the proper sense or that law in India was radically culture-specific. Both views tend to prohibit comparison of any sort.10 Quite the contrary, the works we examine offer clear evidence of a robust and widespread awareness of law and legalism in medieval India, even if that system of law is portrayed as dependent on the authority of the judge or the king himself as the final arbiters of legal disputes. In other words, we argue, contra Robert Lingat, author of the classic study on Indias legal history,11 that the stories in question reveal the existence of a legal consciousness that recognized both the authority of those who administered the law (most notably the king), and the strong sense of legality that those who administered and appealed to the law employed, resisted, or manipulated in complex ways.

8. Robert Cover, Foreword: Nomos and Narrative, Harvard Law Review 97 (1983), pp. 468. 9. We acknowledge that some elements of the stories analyzed contain folkloric tropes that

may be found in stories in widely divergent places and times. Our reading of this literature, however, suggests that the creative element of bringing such tropes together with new plots, character(-type)s, and morals dominates mere syntheses of stock elements. To this extent, the stories witness the contemporary legal consciousness of medieval Kashmir.

10. Lloyd Fallers, Law without Precedent (Chicago, IL: University of Chicago Press, 1969), pp. 5ff., provides a straightforward description of comparison in legal studies. His claim that all conceptual rubrics are culture-bound is a model of how to avoid the extreme views of rela-tivism or ethnocentric privilege.

11. Robert Lingat, The Classical Law of India, trans. J.D.M. Derrett (Berkeley, CA: University of California Press, 1973).

Davis and Nemec 5

I. A Note on Method

The examples provided herein are by no means exhaustive. They illustrate what we deem to be a pattern, but we make no grand claim to represent any tradition entirely, nor do we pretend to have unearthed previously unknown material. We do believe, however, that the approach employed here will prove to be sufficiently illuminating to be repli-cated with other sources. In this way, a more comprehensive picture may emerge of law as it was represented in different texts and as it was understood in various regions of South Asia.

The pioneer of our approach was Ludwik Sternbach, whose many studies of Sanskrit narrative literature connected both directly and indirectly with his studies of classical Indian law.12 Sternbachs careful textual analyses of the well-known collection of politi-cal animal fables called the Pacatantra aimed to demonstrate the consonance of liter-ary depictions of legal matters in the narratives with the rules of the normative jurisprudential texts in Sanskrit called Dharmastras or smtis. While convincing as to the intertextual connection of these two genres, Sternbachs general conclusion is not persuasive:

If we compare the juridical rules contained in the Smti-s with those contained in various versions of the Paca[tantra], we must come to the conclusion that all these juridical problems were pictured in the Paca[tantra] in accordance with the legal rules contained in the Smti-s. This proves (1) that these rules were really applied in daily life, and (2) generally known so well that they were even reproduced by lay-men.13

On both counts, we think Sternbach has conflated the Brahminical representations of the law in two textual genres with de facto, contemporaneous practice of the law. Most unconvincingly, he assumes that the Pacatantra may be read as direct evidence of the daily life of lay-men. Both of Sternbachs conclusions presuppose the general under-standing of legal consciousness as congruence between awareness, rule, and practice while eliding any awareness of a power-driven dissonance between textualized rules and historical practice.

Essentially, Sternbach avoids a critical approach to the nature of the texts he analyzes. He takes into account neither the fact that the works were likely authored by Brahmins nor that their intended audiences likely included fellow Brahmins and privileged mem-bers of society those associated with the king, the royal court, and the various institu-tions used to exercise temporal authority. Both of Sternbachs conclusions are better explained by the narrative strategies of the Brahmins who authored the texts, which were intended precisely to evince the kind of legal harmony reinforcing Brahminical privilege and dominance that Sternbach claims to have discovered. For, neither the Pacatantra nor the Dharmastra represents an undistorted historical reality of daily life; and the depictions of ordinary lay-men in the Pacatantra should not be read as true and

12. Ludwik Sternbach, Juridical Studies in Ancient Indian Law, 2 vols. (Delhi: Motilal Banarsidass, 19651967), especially the second volume.

13. Sternbach, Juridical Studies, Vol. 2, p. 90.


straightforwardly accurate portrayals of either legal practice or contemporary legal knowledge of Dharmastra.14

Our approach differs from Sternbachs in two ways. First, we are acutely aware that the legal consciousness depicted in the selected Sanskrit narratives belongs first to the class of literate Brahmin authors that dominate Sanskrit writing from beginning to end. The works we analyze reassert Brahminical privilege, royal authority, and the other social institutions invested in the self-preservation and reproduction of such privilege and authority. We therefore limit our conclusions accordingly by speaking of the imag-ined reality possible in the depictions of legal consciousness made by this group. While we are interested in congruences of legal consciousness and practice, we are vigilantly attentive to the authorial lens through which those congruences must be discerned, as we are fully aware of the audience for which the given works were probably intended.

Second, while we reject any transregional or transhistorical homogenization of Brahmins,15 we nevertheless find it important to identify the broad class to which these authors belonged and argue that one must take into account the interests served by their narrative depictions of legal matters. In so doing, we respond to Silbeys urging that scholars redirect studies of legal consciousness to recapture the critical sociological project of explaining the durability and ideological power of law.16 We thus explore the hegemonic functions of legal consciousness in the narratives, but we also wish to uncover evidence of legal practice from the evidence of legal consciousness in the story literature, gaining insight into the durability of such practices thereby.

These differences have led us to ask different questions of the narratives than the ones posed by Sternbach. Rather than querying the degree to which the narratives echo the legal rules of the Dharmastra, we are interested in identifying the nature of the legal consciousness that would be required of the intended audiences of the stories in order for the stories themselves to have any resonance. We want to identify the explicit and implicit ideals, beliefs, and biases expressed in and through these stories. We ask what one would have to believe, implicitly or self-consciously, for the stories in question to make sense

14. On the Pacatantra, see Patrick Olivelle, Pacatantra: The Book of Indias Folk Wisdom (New York: Oxford University Press, 1997) and McComas Taylor, The Fall of the Indigo Jackal: The Discourse of Division and puradras Pacatantra (Albany, NY: SUNY Press, 2007). For Dharmastra and social history, see Ludo Rocher, Law Books in an Oral Culture: The Indian dharmastras, Proceedings of the American Philosophical Society 137(2) (1993), pp. 25467; Richard W. Lariviere, Dharmastra, Custom, Real Law, and Apocryphal Smtis, Journal of Indian Philosophy 32(56) (2004), pp. 61127; Patrick Olivelle, Manus Code of Law: A Critical Edition and Translation of the Mnava-Dharmastra (New York: Oxford University Press, 2005); Donald R. Davis, Jr., The Spirit of Hindu Law (Cambridge: Cambridge University Press, 2010).

15. Indeed, we note that not all Brahmins saw even their own caste privileges in the same light. See John Nemec, The Ubiquitous iva: Somnandas ivadi and His Tantric Interlocutors (New York: Oxford University Press, 2011), p. 31, for an example of a Brahminical author who denies the normative nature of caste.

16. Silbey, After Legal Consciousness, p. 358.

Davis and Nemec 7

to their intended audiences. These assumptions, in turn, point to the nature of legal prac-tice in premodern South Asia, at least as it is depicted in the story literature here examined.

II. Two stories from Kalhaas The River of KingsWe turn first to the Rjataragi (RT), or The River of Kings [of Kashmir], by Kalhaa, a court poet of the Kashmiri king Jayasiha (r. 11281149). The RT is regularly counted as the first explicitly and self-consciously historical work of Sanskrit literature, one writ-ten in the Kashmir Valley in the twelfth century. The work makes use of a hybrid array of sources, including local folk tales, and scholars generally agree that the work is not entirely historically accurate in all of its details.17 On the one hand, scholars have gener-ally accepted that Kalhaas account of the historical events closest to his own time are faithfully recounted, in their broad outlines if not in every detail. On the other hand, the narrative of the RT draws in its particulars from a canon of story literature that predates Kalhaa, and there are clearly a number of places where the text records stories that are unlikely to have simply reproduced historical events.18

It bears reiterating that our analysis seeks to identify the legal consciousness reflected in the narratives selected, and we will not here concern ourselves with the historical accuracy of the stories we examine. Rather, we are interested in how they might have been received by their intended audience and what they can tell us of the conscious and unintended representations of legal consciousness when they were written. Two stories in particular merit attention for the insight they give into the legal procedures practiced in the courts and the legal consciousness evinced by the narratives. Both extoll the vir-tues of a thoughtful and just king, Yaaskara (r. 939948).

The first exemplifies what can be described as an appeal, with the king serving as the final legal authority in a matter that was apparently adjudicated repeatedly and unsuccessfully for

17. Marc Aurel Stein, Kalhaas Rajataragii: A Chronicle of the Kings of Kamir, 3 vols. (Delhi: Motilal Banarsidass, 1989 [1900]), Vol. 1, pp. 2732.

18. For example, and as Winternitz has already noted, the story of the passion of King Durlabhakaratpditya II (Rjataragi 4.16ff.) has precedent in the Kathsaritsgara, spe-cifically the seventeenth of the cycle of 25 Vetla stories. See Maurice Winternitz, A History of Indian Literature, rev. ed., 3 vols., trans. V. Srinivasa Sarma (Delhi: Motilal Banarsidass, 19811985), Vol. 3, p. 361, fn.5. (citing Vetla 16, whereas the story is found in Vetla 17 of the Tawney translation). With minor differences, both texts narrate the story of a monarch whose ministers attempt to divert his attention from a beautiful woman by deceitfully sug-gesting she is in fact unattractive. In both instances, the fear is that the king will fall in love with the woman in question and will then neglect his duties, leading the kingdom into decline. In both instances, the woman is betrothed to another when the king, misinformed as to her virtues, declines her hand in marriage. And in both stories the king subsequently meets the maiden in question and is then offered her hand in marriage by the one to whom she was promised subsequent to the kings initial rejection of her.


the plaintiff. In order to win the attention of the king in this instance, the aggrieved man undertakes a fast-unto-death (pryopavea).

6.14. The officers watching cases of voluntary starvation, reported a certain person engaged in fast-unto-death. When the king had him brought before himself, he spoke:

6.15. I was once a wealthy citizen here. In the course of time I became a pauper, through the will of fate.

6.16. When my indebtedness had become great, and I was pressed by the creditors, I resolved to throw off my debts and to travel about abroad.

6.17. Thereupon, I disposed of all I owed to clear my debts, and sold my own mansion to a rich merchant.

6.18. From the sale of this great building I excepted only a well fitted with stairs, having in view the maintenance of my wife.

6.19. I thought that she would live by the rent given by the gardeners, who at summer-time place flowers, betel-leaves, etc., in that very cool well.

6.20. After wandering about for twenty years, I have come back from abroad to this my native land with a small fortune.

6.21. Searching for my wife, I saw that good woman with a wan body living as a servant in other [peoples] houses.

6.22. When I asked her, distressed, why she had, though provided with a sustenance, taken such a life, she told her story.

6.23. When, after your departure abroad, I went to the well, that merchant drove me away, beating me with cudgels.

6.24. Then how could I otherwise maintain myself? After saying this, she stopped. Hearing this, I fell into the depths of grief and anger.

6.25. I then began a fast-unto-death, but somehow the different judges decided against me, giving on each occasion judgement in favour of the defendant.

6.26. In my simplicity I do not know the law, but my life I stake19 for this: I have not sold the well with the stairs.

19. The word paa signifies both the ordinary word for a stake in gambling and what is called the judicial wager, a monetary sum or token of wealth staked in a legal procedure as confir-mation or guaranty of the truth of a litigants claim. See Richard W. Lariviere, The Judicial Wager in Hindu Law, Annals of the Bhandarkar Oriental Research Institute 62 (1981), pp. 13545. In this context, the latter, legal meaning seems more reasonable, though the paa is normally an additional monetary stake. The penniless claimant here can only stake his life.

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6.27. Deprived of my property, I die for certain here at your door. Decide the matter in person, if otherwise you have fear of committing a sin.

6.28. The king, on being thus addressed by him, proceeded to hold court himself, and after assembling all the judges, inquired into the real facts.

6.29. The judges spoke to him: This man has been repeatedly dismissed [with his claim] after due consideration. Full of deceit, he does not respect the law, and should be punished as a forger of a written document.

6.30. Thereupon the king read himself the words as they stood in the deed of sale: The house is sold together (sahita) with the well [fitted] with the stairs.

6.31. While the councillors cried: From this it is clear, an inner voice of the king, as it were, declared that the claimant was in the right.

6.32. After apparently reflecting for a moment, the king diverted for a long time the assembled councillors by other very curious stories.

6.33. In the course of the conversation he took from all their jewels to look at, and with a laugh drew the ring from the defendants hand.

6.34. After with a smile asking all to stay thus only for a moment, he retired [into another apartment] under the pretence of cleaning his feet.

6.35. From there he despatched an attendant with an oral message to the merchants house, handing him the ring, so that he might be recognized.

6.36. Showing the ring, this attendant asked the merchants accountant for the account-book of the year in which the deed had been executed.

6.37. When the accountant was told that the merchant required that [book] that day in court, he gave it, keeping the ring.

6.38. In this [book] the king read among the items of expenditure [an entry of] ten hundred dnnras which had been given to the official recorder (adhikaraa-lekhaka).6.39. From the fact that a high fee had been paid to that person, who was entitled only to a small sum, the king knew for certain that the merchant had got him to write a sa for a ra.20

6.40. He then showed this in the assembly, questioned the recorder whom he had brought up under a promise of impunity, and convinced the councillors.

20. The crucial issue is that the merchant bribed the legal recorder of deeds to write sahita, together with, instead of rahita, except for, in the clause concerning the well, a fact which the king discerns through his investigation and insight.


6.41. At the request of the councillors, the king granted to the claimant the house of the merchant, together with his property, and exiled the defendant from the land.21

While the present story is replete with vocabulary found also in the Dharmastras, it is by no means congruent in all respects with legal procedures described in Dharmastra such that we might say, as Sternbach did, that the story depicts the application of Dharmastra. On the one hand, the RT confirms that the legal vocabulary and jurispru-dence of the Dharmastras were the usual and normal points of reference in other tex-tual genres for describing and discussing matters of law.22 On the other, Dharmastra is never mentioned explicitly and there is no hint that its rules were applied as a kind of black-letter law in this or any of the stories. For the purposes of our argument, the point here is that Dharmastra formed one, but only one, part of the legal consciousness of authors who wrote stories about the law. However, it is precisely because the story eschews explicit connection with Sanskrit jurisprudence that it becomes important as another source for the history of legal consciousness.23

At the heart of the story are common legal concerns such as forgery, bribery, and judicial appeal, as well as legal concepts specific to law in medieval India, including the judicial wager and the fast-unto-death. The author weaves several distinguishable legal concerns together to emphasize the complexity of the legal problem facing the king and, therefore, the greatness of his achievement in seeing through the tangle of corruption perpetrated by the merchant, the erroneous rulings of the various judges who heard the plaintiffs appeals, and the legal recorder who doctored the deed of sale. In this episode, it is the wise king himself who rectifies the twenty-year miscarriage of justice, and it is the Brahmin judges who are portrayed as duped by a manipulation of the trial process. The story therefore amounts to a sort of panegyric that praises the insight of the self-reflective king whose inner-self (antartman), we are told (verse 6.31), was acutely aware of the fraud that had beguiled the judges that preceded him in hearing the complaint.

The force of the narrative thus relies on the notion that King Yaaskara was excep-tional for exhibiting unusual concern for the interests of an otherwise uninfluential sub-ject. Implied but unstated is the notion that the legal system could be expected regularly to function without regard for the little man who might be hurt by those who were savvy enough and sufficiently capable to falsify documents and game the system. Notably, there is no question that the law itself is correct, in particular that a man may

21. Stein, Rjataragi, 6.1441, in Steins translation.22. Donald R. Davis, Jr., Hinduism as a Legal Tradition, Journal of the American Academy of

Religion 75(2) (2007), pp. 24167.23. We must acknowledge either, pace Sternbach, that Sanskrit story literature borrowed legal

frames and terms from Dharmastra or that both textual genres borrowed from a common store of legal expression, presumably reflective to some extent of known legal practice since no other textual source can be identified. The truth is that both processes probably occurred. For more on the complex historical relationship of Dharmastra to legal practice and to other textual genres, see the references in note 14 above.

Davis and Nemec 11

forsake his wife if he first pays his debts and provides for her maintenance and that, less controversially, documents of sale are binding. Central to the narrative, then, is a legal consciousness that implicitly accepts the strictures of dharma, whatever injustices they might permit, while simultaneously recognizing that the law in practice is manipulable, often to the harm of those regular subjects who could not work the system to their own advantage.

We reiterate that in the end the real victim, the mans wife, is ignored in the kings ver-dict. Though the man does feel grief and anger for his wifes plight, he seems more con-cerned with the fact that his legal wishes were deceitfully left unfulfilled. The silence of the narrative speaks more forcefully about the legal consciousness represented in the text, and presumably shared, in some measure at least, by its audience than does the major theme recounted in the episode. For, the purpose of the story to praise Yaaskara would be undermined if any real concern for the plight of the merchants wife were felt by the audi-ence. Similarly, the story witnesses a criminal accomplice of the story, the legal recorder, seemingly to arrange the medieval equivalent of a plea bargain (dattvbhayam) we here refer to the promised impunity mentioned in the story (verse 6.40) in exchange for testifying against the merchant. The story entirely glosses over the mixed feelings one would normally expect in such a compromise, again in favor of emphasizing the wisdom of the king and the storys proper resolution.

Though the text does not criticize the possible complicity or at least the negligence of the Brahmin judges, they seem at minimum to be unwitting accomplices. But they, too, go scot-free. Perhaps this is to be expected: no sound legal system could regularly condemn the integrity of a lower-court judge for reaching a wrong decision. This would call into question the legitimacy of the lower courts, instead of positively recognizing the importance and justice of a right to appeal. Regardless, the Brahmin judges are depicted as being bound by the letter of the contract that is presented to them, despite the fact that the proof-of-sale was doctored. This fidelity to the letter of the law, despite the injustice it perpetuated, is of course precisely the legal conundrum the heroic and wise king is said to overcome. The audience who heard this story must have understood that the law in practice served the interests of those with know-how and with power, and that the system, perpetuated by legal officers such as the Brahmin judges in the story, was impeded by legal procedures from rectifying apparent injustices. Even the king uses his guile to seek hard evidence, according to the story, before overturning the rul-ing that was held up repeatedly in the courts. The fact that he had to convince the councillors (6.40) to justify the reversal suggests that the king with all his authority nevertheless had to adjudicate the legality (however corrupted) of the transaction in order to rectify the injustice.

Immediately following this episode in the River of Kings is another story meant to praise the same king for his wisdom in interpreting dharma. In this instance, the king surprises the court by overturning the letter of a verbal contract in favor of a Brahmin who was clearly wronged by a conniving underling. The Brahmin had earned a hundred gold coins while abroad and was returning home, when the coins accidentally dropped into a deep well from where he had them tied in his lower garment.

An unidentified man then offered to help the Brahmin retrieve the coins, asking what he might get in return. The Brahmin mistakenly replied, Whatever seems right to you,


let that be given to me from it.24 Retrieving the coins, the man gave the Brahmin just two out of the hundred. The Brahmin protested, but the people gathered there insisted that under King Yaaskara, transactions (vyavahr) depend upon the letter of the contract.25 The next day the king confirmed the Brahmins story directly with the man who retrieved the coins and then at court reversed the distribution, giving the Brahmin ninety-eight. He does so, we are told, following a clich digression on the subtlety of dharma, because the king senses that the Brahmin had simply misspoken: Instead of saying: Kindly give me the coins, he let fall the words: Whatever seems right, etc.26 The story ends with praise of the kings ability to discern what is dharma and what is adharma.

The obvious first point of interest for us is the legal consciousness expressed by the people (lokai) and taken advantage of by the selfish man in asserting that contracts are enforced to the letter in their kingdom. In this case, we encounter the use of the term vyavahra in one of its legal meanings, here a contract, legally binding transaction. The story is thus premised on the validity of what is taken by all to be an oral contract. The man who retrieved the coins is so confident of this validity that [w]hen he was questioned by the king he related everything exactly as the Brahmin had stated it, and pointed out that the contract was based on the Brahmins words.27 Unlike the people, however, the king possesses the ability to discern the difference between relying on oth-ers to make good on their word and actual facts of the case.28 From this statement, we learn that the legal principle of fulfilling contracts to the letter remains in force, but it must be tempered by a consideration of the relevant facts in a given case. (Perhaps this may be counted as a legal equivalent of a modern-day covenant of good faith and fair dealing in medieval Kashmir.) The kings resolution exemplifies the approach of legal realism by privileging the unintentional quality of the Brahmins misstatement over the desire to enforce contracts to the letter. In this sense, the point of the story is to rectify the misguided legal consciousness of the people by teaching them to qualify their applica-tion of the letter of the law according to circumstance.

The manner in which both of these cases from the RT come before the king also tells us something about the legal consciousness of the author of the text and the characters he describes. Neither victim finds any redress through the normal legal channels. The man defrauded of his well is rebuffed by the Brahmin judges who, like the people in the second story, focus only on the visible letter of the deed of sale. The man swindled out of most of his gold coins appeals to the people who witnessed the event, only to be told that his clumsy statement now bound him legally. In order to pursue their claims further, both victims have to resort to the threat of suicide by fasting. The classical Sanskrit

24. Stein, Rjataragi, 6.51cd.25. Stein, Rjataragi, 6.53ab.26. Stein, Rjataragi, 6.65.27. Stein, Rjataragi, 6.58.28. Stein, Rjataragi, 6.59: Those who could see no difference between the actual facts and

the observance of the given word, looked down on the ground with their minds wavering in doubt.

Davis and Nemec 13

expression for this fast-unto-death (pryopavea) is mirrored in a number of regional languages, even in the present day, e.g. dharn in Hindi, paini in Malayalam and Tamil,29 and the practice is also narrated in other, roughly contemporaneous Kashmiri works.30 How should we interpret these mentions of fasts-unto-death in terms of legal consciousness?

On the one hand, this dramatic act simply sets a good stage for the rest of the story. It signals literarily the desperation of the two victims and the emotional burden of their plight. On the other hand, it appears also to suggest, if not state explicitly, the potential or real difficulties of finding justice through normal legal processes. We are tempted, there-fore, to see in the framing of these stories a general sense that ordinary legal procedures are rife with injustice, that things are stacked in favor of the powerful manipulators of legal rules. As a result, only an extraordinarily wise and caring king can check the other-wise rampant and expected corruptions of justice done in the name of the law. At this point, we may have in the RT at least some criticism of the ideologies and power struc-tures of the law that form part of the more specific legal consciousness of law in its constitutive relation to other social forces.

Similar to one powerful view of law in modern America, the victims of legally sanc-tioned injustice in the River of Kings feel virtually incapacitated and have to resort to subterfuges and evasions and minor forms of resistance [that] typically leave the law unchallenged and unchanged.31 A fast-unto-death may not seem minor, but the point is that it is not a collective or systemic act. The inclusion of the fast-unto-death in both stories indicates an awareness of the obstacles to appeal and access to justice that limits individu-als legal responses to idiosyncratic acts. If so, we are beginning to see a more complicated picture of legal consciousness as it is articulated in these medieval narratives.

III. A Story from Somadevas The Ocean of Rivers of

Stories

If the River of Kings purportedly conveys historical events as they occurred, the nearly contemporaneous Kathsaritsgara (KSS), or The Ocean of Rivers of Stories, is explic-itly a work of fiction. Said to have been written by a Kashmiri court poet named Somadeva for the pleasure of Queen Sryamat, the wife of a king named Anantadeva (r. 10281063), this enormous collection draws self-consciously upon an extensive series of stories found in the Bhatkath (The Great Romance), an old compendium that boasts of a wide-ranging influence on story literature in medieval South Asia and

29. E.W. Hopkins, On the Hindu Custom of Dying to Redress a Grievance, Journal of the American Oriental Society 21 (1900), pp. 14659 is a classic study on the topic of the publicly threatened fast-unto-death and is still a useful survey of references to the practice in Sanskrit texts.

30. For example, Kathsaritsgara 9.5.1ff., esp. 9.5.6.31. Silbey, Legal Culture, p. 8628. See also Ewick and Silbey, Common Place, pp. 165220, for

a full account of feeling helpless against the law.


that is said to have been composed by one Guhya in Paic, a little-known Prakrit.32 As is so often the case with premodern materials written in Sanskrit, little more of the text and its author is known than the bare facts here recounted, which are conveyed to us by none other than the author in the narrative of the KSS itself. The degree to which the KSS faithfully records the narratives of the BBhatkath is also in question, because the latter work is now lost. Despite the fact that Somadeva likely borrowed regularly from the Bhatkath in composing the KSS, we maintain that the latter text should be understood largely to be the product of its historical moment and as such can speak to the legal consciousness of Somadevas day. This is so because, while it is true that many of the many motifs of the KSS surely appeared in the Bhatkath, there is a great deal of disparity in the ways the various subsequent renderings of the Paic compendium present these stories;33 and Somadevas rendering of the various stories is clearly his own. This is to say that the text as we have received it reflects the Zeitgeist and, like the RT, can inform us of contemporaneous attitudes toward the law and legal matters in medieval Kashmir.

We turn then to a story of deception and financial fraud perpetrated on an unsuspect-ing but arrogant Brahmin courtier. The KSS recounts the tale of two con-men, iva and Mdhava, who defraud this Brahmin of his wealth and who devise their plan explicitly with the inevitable trial before the king in mind. They conceive of a plot by which their actions will inevitably be judged to be beyond reproach by the courts, and, knowing they cannot be found guilty for their actions short of the fraud being discovered, disguise themselves in ways that conform to their plot.

At one level, the story is a tale of loveable knaves that is told both to warn people against believing the deceitful lies of con-men and to expose the perils and blindness of greed.34

32. On the relationship between the Bhatkath and the various retellings and novel renderings thereof, see Donald Nelson, The Bhatkath: A Reconstruction from the Bhatkathloka-sagraha, Perukatai and Vasudevahidi, unpublished PhD dissertation, University of Chicago. 1974. See also Nelson, Bhatkath Studies: The Problem of an Ur-text, The Journal of Asian Studies 37(4) (1978), pp. 66376, for a concise account of the difficulty of reconstructing the Bhatkath from the same texts based on it. On the date of the Bhatkath see Jacob Samuel Speyer, Studies About the Kathsaritsgara (Amsterdam: Johannes Mller, 1908) and A. Berriedale Keith, The Date of the Bhatkath and the Mudrrkasa, Journal of the Royal Asiatic Society of Great Britain and Ireland 2:2, n.s. (1909), pp. 1459.

33. Even were this not the case, the stories of the KSS were sufficiently popular in Kashmir in the period in question to merit even a second rendering of the tales of the Bhatkath in the eleventh century by one Kemendra. This suggests that the stories resonated with their (admittedly elite, courtly) audiences.

34. C.H. Tawney, The Ocean of Story, Being C.H. Tawneys Translation of Somadevas Kathasaritsagara; or, Ocean of Streams of Story, 10 vols., ed. with additional notes by N.M. Penzer (Delhi: Motilal Banarsidass, 1968 [1924]), 5.1.79, suggests that the episode is narrated by a kings daughter, Kanakarekh, in order to caution her father against giving too much credence to the words of others: Do you not know what rogues say to honest people? See also Kathsaritsgara, 5.1.198cd, which sums up the moral of the episode: For, of what calamities is not the blinding of the mind with excessive greed the cause? (trans. Tawney).

Davis and Nemec 15

The rogues actions are implicitly decried, but the Brahmin victim is also portrayed as bringing the crime upon himself as a consequence of his avaricious character. At another level, however, the story is a positively cinematic tale of complicated legal deception transpiring over a long period of time. The extensive planning and the sheer commitment required by the two anti-heroess actions draw the reader into an intricately woven plot of deception. iva and Mdhavas charming personalities also compel the reader to root for their success, in spite of the harsh fraud that they eventually commit against the Brahmin courtier.

The story opens with just such a charming depiction: By now we have robbed this town blind, so lets move now to Ujjain where we hear theres a minister of the king named akarasvmin who is super-rich. With the money we steal from him we can finally come to appreciate the charms of the women here in Mlava.35 After hatching their plan, they set out for Ujjain, where Mdhava will, accompanied by a host of paid accomplices, impersonate a noble Rajput (rjaputra), while iva will take the disguise of a religious ascetic. iva enters the town first and begins to practice the severe aus-terities characteristic of a holy world-renouncer: prolonged meditation and prayer, fasting, and purposeful mortifications of the body. After a long time, ivas extreme austerities earn him a reputation as a great ascetic, and the people of the town become devoted to him.36

Mdhava, for his part, then enters the city with his entourage. Settling in, he pays homage to the holy ascetic, iva, and then sends his attendants to the Brahmin min-ister akarasvmin with a gift and the explanation that he has come because his family has oppressed him, and that he therefore wishes to settle away from them in the town. With repeated gifts, Mdhava is offered an audience first with akarasvmin and through him with the king himself. The greedy akarasvmin then invites Mdhava (with the kings permission) to stay in his home, where he hopes the nobleman will continue to shower him with offerings. Installed in akarasvmins house, Mdhava strategically places a huge vault in his new residence to entice akarasvmin with glimpses of a hoard of false gems and jewels contained inside. After several days, Mdhava pretends to become ill and, fearing his death, asks akarasvmin to bring him a worthy Brahmin on whom he can bestow his fortune.37

35. Tawney, Kathsaritsgara, 5.1.84cd86.36. Tawney, Kathsaritsgara, 5.1.105: And the opinion that he is a remarkably peaceful

ascetic spread everywhere there among all the people, who were reverential in their devotion to him.

37. The practice of religious gifting has a long history in India and a huge textual corpus is devoted to it both in Dharmastra and in other textual traditions. A properly given gift to a worthy recipient is held to generate great merit for and remove great sin from the donor. See Maria Heim, Theories of the Gift in South Asia: Hindu, Buddhist, and Jain Reflections on Dna (London: Routledge, 2004).


First rejecting a series of akarasvmins candidates (all apparently householder Brahmins), Mdhava eventually accepts the advice of a conspiring attendant to invite the now-famous and supposedly accomplished Brahmin renunciant, iva, to receive the for-tune. akarasvmin consents to the plan and meets iva at Mdhavas request in order to convince him to accept the dying mans gift. iva, however, initially declines to accept it, stating that he is a mere ascetic who lives on alms and has surrendered all interest in material possessions. But akarasvmin coaxes him by raising a matter of dharma, sug-gesting that one cannot become an ascetic without traversing the ramas, stages of life, in their appropriate order, with the householder stage preceding that of renunciation.38 iva protests further: he is a devout Brahmin and cannot marry just anyone, but only a Brahmin lady. Seeing occasion to profit on the impending death of the wealthy Rajput, akarasvmin offers iva his own daughters hand in marriage on the spot. And in the midst of protests that he knows nothing of either women or money, iva of course con-sents to the plan.

Mdhava, in turn, deems this soon-to-be married ascetic worthy of receiving his dying gift, and iva is married and subsequently takes control of the fake fortune, immediately entrusting it to akarasvmin for safekeeping. The group lives together for some time, and Mdhava progressively recovers from his feigned illness, crediting ivas auspiciousness as the cause of his rejuvenation. One day, iva suggests to akarasvmin that since he has been a tremendously generous host, iva should now begin to pay his own way. Of course, however, he is a man of no means (other than the fortune granted him by Mdhava), and so he suggests that akarasvmin purchase his fortune of gems and jewels in return for a fair price. (It is implied in the narrative that iva will spend the cash he is given to maintain himself from that point forward.39) Thinking the hoard to be valuable beyond measure, akarasvmin purchases the jew-els from iva with all his current wealth, as he intended to pocket a profit University Presson reselling the jewels to another. And he insists that iva sign a receipt acknowl-edging the terms of the transaction.40

When the cash-strapped minister eventually tries to sell one of the jewels in town, however, he is told that it is a fake made of glass, rock, and brass, as are all the other jewels in the vault. akarasvmin confronts iva about the fraud, but iva claims that

38. The implication seems to be that akarasvmin convinces iva of the inappropriateness of renunciation in the absence of a prior entrance of the candidate into the householder rama.

39. Tawney, Kathsaritsgara, 5.1.171172: iva, for his part, after some days said to the chap-lain: How long am I to feast in your house in this style? Why do you not take from me those jewels for some fixed sum of money? If they are valuable, give me a fair price for them.

40. Tawney, Kathsaritsgara, 5.1.174175: And he made iva sign a receipt for the sum with his own hand, and he himself too signed a receipt for the jewels, thinking that that treasure far exceeded his own wealth in value. And they separated, taking one anothers receipts, and the chaplin living in one place, while iva kept house in another.

Davis and Nemec 17

the money he was paid for the jewels was already spent on his own maintenance. So, as a kings minister, akarasvmin takes the matter to the court, where both iva and Mdhava present their carefully contrived defenses. iva first:

King, from my childhood I have been an ascetic, and I was persuaded by that mans earnest petition to accept a gift, and when I took it, though inexperienced in the ways of the world, I said to him, I am ignorant about jewels and things of that kind, and I rely upon you, and he consented saying, I will be your warrant in this matter. And I accepted the entire gift and deposited it into his custody. Then he purchased the whole from me at his own price, and we hold from one another mutual receipts; and now it is in the kings power to grant me help in my deep need.41

Then Mdhava:

Do not claim this. Youre a respectable man, but what fault have I committed in this matter? I never received anything either from you or from iva; I had some wealth inherited from my father, which I had long deposited elsewhere; then I brought that wealth and presented it to a Brahmin. If the gold is not real gold, and the jewels are not real jewels, then let us suppose that I have reaped the reward from giving away brass, quartz, and glass. But the fact that I was persuaded with sincere heart that I was giving something, is clear from this, that I recovered from a very dangerous illness.42

Key apparently to the legal efficacy of these defenses is the fact that they were delivered with a straight face.43 The king immediately chuckles and smiles and then declares that neither iva nor Mdhava has done anything illegal (anyyata). (Crucially, none of iva or Mdhavas pivotal actions gifting ones possession to a Brahmin, renouncing austerities to marry, selling ones possessions for an agreed-upon price is of itself illegal.) Then the whole court king, ministers, and judges all laugh to themselves (sntarhsam) as the defeated Brahmin minister skulks out of the court. iva and Mdhava meanwhile happily stay on having obtained the favor of the delighted king.44

The frame of the story, as mentioned, emphasizes that the narrative is meant to warn people against gullibility in the presence of convincing charmers, just as it warns of the potential pitfalls of excessive greed. The end of the story itself, however, declares that the king and his court remained delighted and smiling in the face of the legally impeccable but morally misleading defenses of iva and Mdhava. We may speculate that the laughter of the court is a tacit applause of the cunning legal maneuvers executed by the defendants, and perhaps of a dislike of the minister. Whether the court saw through those maneuvers to the underlying fraud is unaddressed. In this case, the narrative at least suggests that the court is bound by the letter of the law in a way that seemed undesirable in the pair of stories narrated in the RT. We can speculate that the laughter of the court

41. Tawney, Kathsaritsgara, 5.1.187191ab. (translation adapted)42. Tawney, Kathsaritsgara, 5.1.192195. (translation adapted)43. Tawney, Kathsaritsgara, 5.1.196ab.44. Tawney, Kathsaritsgara, 5.1.199.


might even derive from that very inability to do anything in the face of such a perfectly masterminded and strictly legal plan.45 And, this is where we can see a new aspect of legal consciousness in medieval India.

The sheer scope of the plan to defraud akarasvmin is impressive. A score of people are involved; a huge investment of capital was required to present Mdhava with his entourage; iva engaged real and longlasting austerities to gain a local reputation; Mdhava earned akarasvmins trust, as well as that of the king, only gradually, and he cultivated akarasvmins greed carefully and slowly; and, finally, iva went through with a real marriage to perpetuate the final, deceptive transaction. All of this was done in explicit anticipation of the inevitable trial before the king; and every element is meticu-lously put into place to guarantee the legally unassailable defenses offered at the end of the story. Though clearly the product of a creative storyteller, such an elaborate ruse could make no sense to the audience unless there existed an available and plausible legal consciousness about the sometimes inescapable nature of the legal process. The story-teller deftly creates the complex plot, but he does so with the certain end of the unim-peachable legal defenses in mind. Like the two rogues, the storyteller also counts on the existence of a rigid legal process and the inevitable necessity for the enforcement of the letter of the law to spin his tale.

The awareness, even hyper-awareness, of the inner workings of the law further shows that the legal consciousness of this medieval author was such that he could imagine a complex plot driven wholly by two laymens knowledge of the rules of evidence, the nature of contracts, and the circumstances that would be examined by the court. In our examples from the RT, we saw portrayals of ordinary peoples knowledge of the law and legal processes constituted by both a reverence for the law based in fear of its power and a disdain for the capriciousness of law in practice, based on the possibility that clever people could manipulate the legal process. In this case, by contrast, everyone involved in the final court scene, with the exception of akarasvmin, is immersed in the laws vision of justice and the apparent limitations imposed by the mechanical constraints of the law. In fact, iva and Mdhava count on those constraints from the beginning. It is precisely in the anticipatory legal consciousness of the two rogues and their self-assurance of the predictable verdict of the court that we see represented this acute form of awareness of the law among ordinary people, at least in their literary depiction.

45. We hesitate to draw strong conclusions regarding the kings authority here, as another story from the KSS suggests the king could exercise a greater degree of discretion than is appar-ent in the iva and Mdhava episode. In the story in question, a woman named Devasmit learns of the plans of four rogue merchants to seduce her in her husbands absence. Through trickery, she brands them on the forehead, later using that mark fallaciously to identify the four rogues as her own escaped slaves. The king, informed of all the events as they transpired, upholds the slave identity of the rogues in a plain effort to support dharma, lawful conduct. Here, then, contra the iva and Mdhava story, the king could apparently exercise discretion in administering the effects of a particular legal procedure. Regardless, both stories rely on a legal consciousness of a clearly defined legal system that exists apart from the kings power of discretion. See KSS 2.5.54ff.

Davis and Nemec 19

We close our discussion of the KSS by noting that we again see here a certain blind-ness to the limitations and indeed the inherent inequity of the law, be it in its strictly legal features or in the exercise of the kings authority. akarasvmin, for one, fecklessly employs his daughter as an instrument for acquiring wealth, offering her hand in mar-riage to a stranger for the promise of jewels and the like, without a single mention in the story of the inequity and indeed injustice of the arrangement. While the reader is left with something of a sense of satisfaction in knowing the greedy Brahmin is not rewarded for his intrepid avariciousness, there is no sense of regret for the unfortunate circumstances it begets his daughter. In fact, we are not even told what becomes of her after iva and Mdhava beat the rap for their clever con. Whatever ones sense of the relationship of authority to legality in medieval India, then, the storys unspoken narrative implicitly reinforces the privilege of male, upper-caste, and influential characters who are placed advantageously in society, without any sense of the inherent inequality in such an arrangement.

IV. An Early Example: The Little Clay Cart of drakaWhile the stories from the RT and KSS undoubtedly shed light on the legal conscious-ness that existed in the Kashmir valley of the eleventh and twelfth centuries, we hesitate too quickly to draw far-reaching conclusions from them. All the works are after all prod-ucts of a Brahminical elite that had its own interests, particular habits and customs, and indeed its own norms to uphold, follow, and reinforce through such writings. And these Brahminical mores are shared across regions and over time in South Asia, even if neither Brahminical culture nor Brahmins are by any means uniform or homogenized entities. Enough of a shared culture and purpose existed in Brahminical circles to require us to examine these documents in relation to other similar, datable works should we wish to isolate particular elements of legal consciousness and locate them in particular regions or periods of time. Though such a full chronological and comparative study lies beyond the scope of the present essay, a brief examination of what is often counted as the earliest narrative depiction of a court scene in Sanskrit literature may serve as a useful point of reference from which to measure the contributions of the Kashmiri sources.

We refer to the ninth act of the famous Sanskrit play of draka, the Mcchakaika, or Little Clay Cart, dating from as early as the fourth or fifth century to the seventh century AD, according to different scholars.46 The villainous Sasthnaka, son-in-law to the

46. Susan Oleksiw, Law and Government in the Mcchakaika, unpublished PhD dissertation, University of Pennsylvania, 1977, is still the most thorough examination of the legal aspects of the Mcchakaika. She carefully examines the vocabulary of the play and compares it to the terminology of Dharmastra. Though we are skeptical about the guiding approach of her study, namely to discern whether or not Dharmastra controlled the portrayals of the law in the play, and of her assumption that deviations from Dharmastric norms can be taken as indicating the law on the ground, we nevertheless derived great benefit from her philological analysis of the text. For the later date, see Diwakar Acharya, The Little Clay Cart (New York: NYU Press, 2009).


king, desires the courtesan Vasantasen, who is in love with the generous Brahmin Crudatta. Fleeing Sasthnaka, Vasantasen takes refuge in Crudattas home and entrusts her ornaments to him. A burglary, a lie, and a gift put the ornaments in, out of, and again into Crudattas home. Intending to meet Crudatta for a tryst in the park, Vasantasen is instead accosted and strangled by Sasthnaka (to death, he thinks), who then takes advantage of political unrest and a prisoner escape to frame Crudatta for the crime. Sasthnaka then goes to the court to report the murder.

The ninth act begins with a court attendant literally setting the judicial stage in the courtroom as a matter of daily routine. The judge and other officials enter to the judges telling declaration:

In judiciary matters, gentleman, a judge must rely on others, and that makes it difficult for him to penetrate the minds of those others. Theyll bring up a mysterious matter that has already been thrown out of court, they are so fired with litigious passions that they gloss over their own weaknesses, and if there is a judicial error, which both parties are quick to inflate, the king himself becomes involved. Indeed to sum up, it is easier to blame a judge than to find virtue in a witness. For a judge must not only know the law,47 but also be expert in detecting deceptions. He should be eloquent without anger, impartial to friend, foe, and kind, and pronounce judgment only when he has considered the facts. He must protect the shy and bully the clever, and he himself must be a just man and incorruptible If there is a way, he must direct his mind to the deeper truth and at the same time avoid angering the king.48

In this speech, the judge is aware of two factors that complicate and compromise the pristine quality of the law. First, a case may be manipulated by deceptive or aggressive litigants and witnesses. Second, perceptions of judicial error can cause a king to inter-vene. Still, the judge insists that a judge must focus on the facts first and approach the case with realism in the legal sense, that is a concern for truth over blind adherence to legal rules.49 Already, we see the plays author relying on a consciousness of two poten-tial pitfalls in the legal process as foreshadowing the events about to unfold.

When Sasthnaka enters demanding to have his case heard, first the attendant and then the judge suspiciously curse the fact that the kings brother-in-law has presented himself to the court. Though initially rebuffed by the judge, Sasthnaka threatens exactly the biased intervention of the king feared by the judge in his speech. As a result,

47. The text uses the term straja, which van Buitenen and others render as knowing the law itself, i.e. the substantive laws. The description could also mean rather knowledge-able of jurisprudence. The question or difference is whether the legal rules to be applied are imagined as coming from the Dharmastra itself or if the judicial reasoning and training in Dharmastra is what one needs to apply correctly the prevailing legal norms from outside the texts.

48. J.A.B. van Buitenen, Two Plays of Ancient India (New York, Columbia University Press, 1968), p. 152.

49. On legal realism in relation to Hindu law, see Donald R. Davis, Jr., A Realist View of Hindu Law, Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 19(3) (2006), pp. 287313.

Davis and Nemec 21

his case is allowed to be heard, and this convinces Sasthnaka that he can intimidate and deceive the judge: First they say it wont be heard, and now it will be heard. Obviously the judge is terribly afraid of me! I can make him believe anything I want.50 The forethought and malice of Sasthnaka requires an awareness that manipulation and corruption of the law is possible.

In laying out his false account of Vasantasens murder (who did not in fact die), Sasthnaka mistakenly attributes the crime to some vile person who strangled her just for money, clumsily blurting out then, I didnt do it. The judge notices this immediately and asks the court reporter to note Sasthnakas denial for the record. Through an unnecessary denial that plants a mental seed of suspicion that he could have done it, Sasthnaka is forced to account for how he knows that she was strangled for money. This he does to the courts satisfaction, but the exchange is remarkable nonethe-less, because it deepens the psychological insight into how a witness can manipulate a court case by controlling the information that is rendered for judicial consideration. There is a cognizance here of both restrictions on what the judge may consider and strat-egies for steering judicially recognized facts toward specific conclusions in law.

The most intriguing evidence of legal consciousness in the play, however, comes when Vasantasens mother is summoned to the court. As an older woman, the judge is careful to instruct the court officials to treat her gently. Nevertheless, she is nervous: I feel like fainting! My heart is beating fast.51 As the judge begins his questioning by ask-ing to what friends home Vasantasen went, the mother replies:

Old Woman (to herself): Terrible! This is really too embarrassing! (Aloud.) This is a question for the vulgar, not for a judge.

Judge: No coyness now! The case poses the question.Provost and Scrivener: Yes, the case poses the question. Theres no harm in it.

Answer the question.Old Woman: What, the case? Well, if thats so, listen, gentlemen

Master Crudatta Sasthnaka: Youve heard it gentlemen. Let the words be recorded. My

quarrel is with Crudatta.Provost and Scrivener: Theres nothing wrong with Crudattas being her friend.Judge: But the case now involves Crudatta. Why, now we

must also summon Master Crudatta, that is to say, the cases requires his presence.52

Aside from another reference to writing and recordkeeping in the court, this passage contains the intriguing statement vyavahras tv pcchati: it is the legal procedure thats asking you these questions. When the old woman gets nervous at having to divulge before the court the whereabouts of Vasantasen, the judge depersonalizes the witnesss statements by personifying the trial process itself. The old woman is not to feel

50. van Buitenen, Two Plays, p. 153.51. van Buitenen, Two Plays, p. 155.52. van Buitenen, Two Plays, p. 155.


as if she were speaking to the judge or before other notables, but rather only to the neutral procedure of the court. To personify the trial procedure in this way is to play off an avail-able imagination of the law as a quasi-living entity, a thing that has an objective life of its own. In this separate world of the trial, normal rules of social decorum do not apply and candid statements that may be awkward or indelicate become acceptable.

The word vyavahra, as all the translators recognize, is used here in its technical Dharmastric sense of legal procedure, trial. draka builds to the climax of the play in Act Ten through the contrast between the old womans honesty and forthrightness prompted by respect for the trial process and the Sasthnakas deception of court moti-vated by disrespect for its officers and the legal process itself. In this contrast, the play attests to two attitudes toward the law and legal procedure: one right and one wrong, but both known in practice. There is nothing mysterious here. The right approach to the law is to obey it, to tell the whole truth when necessary, and to root out fraud and lies. The wrong approach is to flout the law through selfish, criminal acts, to deceive legal profes-sionals, to thwart the revelation of the truth at every turn. That the latter approach is found regularly in Brahminical texts at least acknowledges a gap between the letter of the law and its imperfect application.

The personification of the legal process in the Little Clay Cart provides insight into the general level of legal consciousness available to the poet draka and his audience, and by extension to those Brahminical authors such as Kalhaa and Somadeva who fol-lowed him in history. The author depicts the legal process as having a life and, therefore, an integrity of its own. Without a doubt, an uncorrupted legal process yields truth and justice, in this view. The point of the plays climax and the goal of social institutions devoted to the law is to avoid or to unmask such corruption before it is too late. To protect the person of the laws process, corruption must be vigilantly exposed and punished. In the end, the dramatic force of the plot is incomprehensible without reference to legal categories such as the qualification of witnesses and the scope of jurisdiction.53

What is not found in the Little Clay Cart, however, is a consciousness of the law or legal process in which the law itself is ever to blame. One can point to corruption and deceit within the human observance and administration of the law, but the law itself remains always beyond reproach. Even in the extensive satirical literature of Brahminical Sanskrit, the issue is pretending to live up to a noble ideal, while in fact corrupting it.54 The satirist, writes Lee Siegel, is more concerned with the fake than with the devil Injustice is condemned not for being what it is, but for wearing the mask of justice.55 As a result, Brahminical traditions rarely address the specific level of legal consciousness in which law may be seen as an ideology and praxis (its rules, processes, and structures) for

53. Drawn from Silbeys comment on Dirk Hartogs study of the diary of Abigail Bailey: Hartog demonstrates that this narrative of personal tragedy and change is incomprehensible with-out reference to legal categories such as the prevailing law of coverture (After Legal Consciousness, p. 346).

54. A wealth of literary references to corrupt kings, Brahmin judges, and kyasthas may be found in Lee Siegel, Laughing Matters: Comic Tradition in India (Chicago, IL: University of Chicago Press, 1987), pp. 14863.

55. Siegel, Laughing Matters, p. 160.

Davis and Nemec 23

the self-protection of the powerful. Manipulations of the law by the king, his relatives, or his officers for their own self-interest and aggrandizement are frequently portrayed, but no suggestion arises therefrom that a problem and possibly a solution may exist within the law itself. For instance, the idea that a king and people connected to him can more or less freely interfere in legal cases is lamented in the play, but never questioned.

Turning back to a consideration of our Kashmiri sources in light of drakas play, we reiterate that we have in the Little Clay Cart a presentation of the law as neutral, objective, and impersonal (even if personified) a judges dream , but we also have the law as a game of strategy and promotion of self-interest. Both views are found also in the stories from the RT. Broadly, then, both RT stories agree with the dichotomous contrast of respect-ful, trusting observance of the law and its disrespectful, selfish manipulation found also in the Mcchakaika. Whos corrupt and whos not varies, but the central issue remains the same: how to ensure that a naturally truth-producing legal procedure is protected against corruption and manipulation. And the very limitations of the law are never identified or questioned in the RT stories. There is, in addition, a third, less prominent view in the RT stories that suggests that the law can be arbitrary and protective of those in power.56 The narrative intent of the pair of RT stories, moreover, is the opposite of the Little Clay Cart in that both praise a wise king who is not fooled by attempted manipulations of the course of justice, specifically the failures of Brahmin judges to discern the real truth behind a case.

Our example from the KSS also presupposes the innate virtue of dharma, but it also points in a very real sense to a degree of rigidity of the law that is both predictable, manipulable, and very possibly constricting of royal authority. Like the Little Clay Cart, the iva and Mdhava story also sees law as a game of strategy and a promotion of self-interest. But unlike the RT stories, there is no clear intimation that the law protects only those in power, even if the stories can be read to confirm the biases of the court in grant-ing audience to powerful men while marginalizing women and, one feels, those without the resources to make themselves heard.57

In sum, a reading of the Little Clay Cart suggests that the most striking feature of the stories we have here examined is the tacit recognition, particularly in the RT stories, of the degree to which the law serves the privileged over and against the common subject. Whether this feature is the product of the genre of the RT or otherwise it is, after all, almost unique in Sanskrit literature for being self-consciously constructed as a work of history is open to question. It is similarly impossible to argue that Kashmir in the period in question is unique for knowing such a dimension of legal consciousness, only that the RT goes further than other works, to our knowledge, in acknowledging the

56. We put matters in these terms in order to show that the legal consciousness expressed in medieval Indian narratives matches the range of views expressed in Ewick and Silbeys study (1998) of legal consciousness in the everyday life of modern Americans. Obviously, it is an argumentative contrivance to juxtapose these two unrelated traditions, but we think it sig-nificant that we can describe the legal consciousness of the stories discussed so far in terms similar to a classic study without resort to interpretive contortions.

57. The marginal status of women is reiterated elsewhere in the KSS in the Devasmit story (summarized in footnote 40), as the heroine of that story obtains an audience with the king by disguising herself as a male plaintiff.


dynamic in question. There is, in short, only so much the story literature can reveal of the history of legal consciousness in premodern India, given the nature of the works exam-ined and the authors who composed them.

V. Conclusions

Studies of the relationship between law and literature in premodern India have to date been largely limited to the question of whether the literary sources conform to or deviate from the religio-legal texts of Dharmastra. Though we have noted in several places parallel terms, phrases, and ideas between medieval stories and dharma texts, we also think it a mistake to focus on such parallels, because the Dharmastra was not itself the law but rather a meta-discourse with which to think about the law.58 We suspect that stories like the ones presented here relied heavily on the jurisprudence and legal termi-nology found in Dharmastra,59 but by putting these ideas to work in narrative contexts they changed both the effect of the ideas and what we may today learn from them.

Dharmastra, like all stra, is notoriously non-narrative, and records of court cases in premodern India are exceedingly rare. Literary sources often contain views of the law that are unavailable in normative, systematized legal texts. To gain access into the narra-tive perspective on law, into how law was expressed as story in medieval India, we have turned to these illustrative narrative examples.60 Medieval historians have long seen the value of comparing legal and literary sources, and many have now directed their work to the subfield of law and literature.61 Stories have didactic, psychological, and emotional effects that are difficult, if not impossible, to achieve in systematic jurisprudence. The study of those effects yields insight into Ewalds law in minds, the legal consciousness of the author and the audience. The examples given here are only a small fraction of the narratives dealing with legal matters to be found in the classical Indian sources. We hope

58. Olivelle, Manus Code of Law, pp. 626.59. We suggest again that the relationship is both intertextual and resultant from a common

source in practice outside the texts.60. Peter Brooks and Paul Gewirtz, eds., Laws Stories: Narrative and Rhetoric in the Law (New

Haven, CT: Yale University Press, 1998) contains an excellent collection of essays on the role of story in the law.

61. The classic starting point in law and literature is James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston, MA: Little, Brown, 1973), which incorporates a host of premodern sources in its pages. For more specific studies, see John Alford, Literature and Law in Medieval England, PMLA 92(5) (1977), pp. 94151; Richard Firth Green, Medieval Literature and Law, in D. Wallace, ed., The Cambridge History of Medieval English Literature (Cambridge: Cambridge University Press, 1999); Ruth Macrides, The Law Outside the Lawbooks: Law and Literature, Fontes Minores, Vol XI. ed. L. Burgmann. Forschungen zur Byzantinischen Rechtsgeschichte. (Lwenklau, Gesellschaft E.V. Frankfurt, 2005); and Whitney Cox, Law, Literature, and Politics in Medieval India, in T. Lubin, D.R. Davis, Jr., and J. Krishnan, eds., Hinduism and Law: An Introduction (Cambridge: Cambridge University Press, 2010), pp.16782.

Davis and Nemec 25

future studies will add to the storehouse of information and interpretive insights avail-able through reading these stories with the law in mind.

We have focused first on the psychological or attitudinal aspects of legal conscious-ness that are found in narrative but not in jurisprudence. Insights into the everyday awareness of the law in medieval India are so rare that we felt compelled to present what the stories say about peoples attitudes toward the law. At the same time, we have tried to comment upon what Silbey, following White, calls the constitutive aspects of legal con-sciousness, that is the role of consciousness and cultural practice as communicating factors between individual agency and social structure rather than expressions of one or the other.62 For example, we have drawn attention to the way in which assumptions or predictions about how the court will behave structure all the stories at some level. Sasthnakas interactions with the court amount essentially to bullying and are pre-mised on his assumption that as the kings brother-in-law he can use his position to legal advantage. iva and Mdhavas entire plan rests on a drawn-out sequence of actions designed specifically with the courts predictable verdict in mind. The cultural practice of the fast-unto-death similarly exceeds the realm of individual agency while making claims upon, without controlling, existing social institutions, namely the royal court. In every story, therefore, we find evidence of the mediating role that legal consciousness played not only in guiding the actions of the individual characters portrayed but also in influencing procedures and outcomes at the institutional level of the court.

One notable common feature of these stories is their setting in the court. Dharmastra texts also portray a kings court, staffed by Brahmin judges, as the normal institutional location for legal matters, but other historical evidence both within and outside the texts suggests that many legal matters were dealt with in communal groups and associations beyond the state.63 The ready availability of these and similar stories appears, however, to confirm the historical practice of trial and judgment in royal courts. Given the frequent reference to writing in the stories, we still have to wonder why we have so few surviving examples of court records or legal documents from premodern India. On the basis of these stories, however, we may at the least say the kings court was one important social location of the law in this period.

Aside from the smaller details of legal consciousness found in the stories, a general lesson to be learned from the study of law-related narratives in medieval India is the prevalence of a notion of legality. In his justly enduring study of law in classical India, Robert Lingat famously wrote, The classical legal system of India substitutes the notion of authority for that of legality.64 As others have noted, Lingat has surely overdrawn the line of demarcation between authority in the East and legality in the West.65 Nevertheless, the clear evidence of quite familiar, that is Western in Lingats terms, notions of legal-ity in the stories examined here is worthy of further comment.

62. Silbey, Legal Culture, p. 8627.63. Donald R. Davis, Jr., Intermediate Realms of Law: Corporate Groups and Rulers in Medieval

India, Journal of the Economic and Social History of the Orient 48(1) (2005), pp. 92117.64. Lingat, Classical Law, p. 258.65. Timothy Lubin, Indic Conceptions of Authority, in T. Lubin, D.R. Davis, Jr. and J. Krishnan,

Hinduism and Law: An Introduction (Cambridge: Cambridge University Press), p. 142; and Lariviere Dharmastra, pp. 61315.


In the Rjataragi, the question of legality, here a strict adherence to the letter of the law and to stare decisis, is at the center of both stories. The wise king may see through the corruptions of the law and legal process, but he does so in a way that leaves the legal-ity of the applicable rules intact, just not applicable in these cases. Contracts still bind people generally, but the documents and the individuals attesting to them must be both upright and forthright. The legal test has two prongs: the contracts themselves must be valid and the circumstances of their production must also be legal.

In a technical sense, even our example from the Kathsaritsgara confirms the same idea of legality, even though it is also a story about the moral manipulation of legality. iva and Mdhava intentionally deceive the courtier, but every one of their actions is in and of itself legal. As a result, both the receipts attesting to the sale of the jewels and the circumstances under which that sale occurred were legal. That an underlying motive to defraud the courtier also existed prior to all these legal actions is crucial for the context of the story in the overall text, but irrelevant for the embedded consciousness of legality that moves the story forward.

To conclude, the consciousness of the law in the stories discussed here reminds us of that found in some Indian folklore examples.66 Consciousness of legality begins from an awareness that courts defend the rich and the system of justice serves those who can manipulate it to their advantage67 but also gives people a powerful ability to speak against authority for its failure in its responsibility of representing dharma.68 Within this range, law is centered institutionally on the figure of the judge.69 Rules of positive law are held to have binding effects, even as they are also subject to scrutiny and modifica-tion by the court and/or to manipulation by the litigants. Legal actors fear the injustice that the legal process can sanction and turn to moral appeals for remedy. In all of this, we are in the face of a literarily developed notion of legal consciousness and of legality. However, we argue for the likelihood that this literary construction congrued consider-ably with the contemporary consciousness of legal practice. From the abundant reference to and the reliance on a notion of legality in medieval Indian narratives, therefore, we hope that Lingats powerfully framed denial of legality in the classical law of India may finally be put to rest. We can and should learn much more about the history of law in India from literature, not only in Sanskrit but in other Indian languages. We hope this essay is just a first step toward a more nuanced history of legal consciousness and prac-tice in classical and medieval India.

Acknowledgements

We acknowledge with thanks the helpful input of Mitra Sharafi, Kirin Narayan, and the two anony-mous reviewers of the journal whose critical remarks improved the essay greatly.

66. Velcheru Narayana Rao, Courts and Lawyers in India: Images from Literature and Folklore, in Y.K. Malik and D.K. Vajpeyi, Boeings and Bullock-carts: Studies in Change and Continuity in Indian Civilization, Vol. 3 (Delhi: Chanakya Publications, 1990), 196214.

67. Narayana Rao, Courts, p. 202.68. Narayana Rao, Courts, p. 200.69. Narayana Rao, Courts, p. 209, confirms that judges are viewed with respect even when

[they] fail to deliver justice.

legal consciouness in medieval indian narratives

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