Legal Consciouness in Medieval Indian Narratives

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LCH0010.1177/1743872112443762Davis and NemecLaw, Culture and the Humanities
2012
LAW, CULTURE
AND
THE HUMANITIES
Article
Legal Consciousness in
Medieval Indian Narratives
Law, Culture and the Humanities

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The Author(s) 2012
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DOI: 10.1177/1743872112443762
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Donald R. Davis, Jr.

University of Wisconsin-Madison
John Nemec
University of Virginia
Abstract
In 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.
Keywords
History, 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
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.
Corresponding author:
Donald Davis, Department of Languages & Cultures of Asia, University of Wisconsin-Madison, Madison,WI, USA.
Email: drdavis@wisc.edu
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 transformations. The purpose of this essay is to approach this problem in a different way by examining 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.
3.
4.
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.
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.
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.
Davis and Nemec
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 analyses 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 consciousness 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, understanding 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.
6.
7.
William Ewald, Comparative Jurisprudence (I): What was it Like to Try a Rat? University
of Pennsylvania Law Review 143(6) (1995), p. 2111.
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.
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 underutilized 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 consciousness 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 relativism 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
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 replicated 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 political animal fables called the Pacatantra aimed to demonstrate the consonance of literary depictions of legal matters in the narratives with the rules of the normative
jurisprudential texts in Sanskrit called Dharmastras or sm tis. 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 Sm ti-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 Sm ti-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 understanding 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 members of society those associated with the king, the royal court, and the various institutions 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 imagined 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
to their intended audiences. These assumptions, in turn, point to the nature of legal practice in premodern South Asia, at least as it is depicted in the story literature here
examined.
II.Two stories from Kalhaas The River of Kings

We 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 written 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 generally 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 virtues 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, specifically 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 suggesting 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 confirmation 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.
Davis and Nemec
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.
10

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 jurisprudence of the Dharmastras were the usual and normal points of reference in other textual 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 selfreflective 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 exceptional for exhibiting unusual concern for the interests of an otherwise uninfluential subject. 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, Rjatara gi, 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 verdict. Though the man does feel grief and anger for his wifes plight, he seems more concerned 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 audience. 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 ruling 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,
12
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 others 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 application 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.
25.
26.
27.
28.
Stein, Rjataragi, 6.51cd.

Stein, Rjataragi, 6.53ab.
Stein, Rjataragi, 6.65.
Stein, Rjataragi, 6.58.
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, therefore, 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 otherwise 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 structures 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 sanctioned 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 individuals 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 explicitly 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.
14
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 unsuspecting 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 B hatkath and the various retellings and novel renderings
thereof, see Donald Nelson, The B hatkath: A Reconstruction from the B hatkathlokasagraha, Peru katai and Vasudevahidi, unpublished PhD dissertation, University of
Chicago. 1974. See also Nelson, B hatkath 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 B hatkath from the same texts based on it. On the date of the B hatkath
see Jacob Samuel Speyer, Studies About the Kathsaritsgara (Amsterdam: Johannes Mller,
1908) and A. Berriedale Keith, The Date of the B hatkath 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 B hatkath 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 austerities 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 minister 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).
16
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 fortune. 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, suggesting 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 consents 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 jewels 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 acknowledging 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 chaplain: 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.
42.
43.
44.
Tawney, Kathsaritsgara, 5.1.187191ab. (translation adapted)

Tawney, Kathsaritsgara, 5.1.192195. (translation adapted)
Tawney, Kathsaritsgara, 5.1.196ab.
Tawney, Kathsaritsgara, 5.1.199.
18
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 meticulously 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 storyteller deftly creates the complex plot, but he does so with the certain end of the unimpeachable 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 selfassurance 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 apparent 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 blindness 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 marriage 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 draka

While the stories from the RT and KSS undoubtedly shed light on the legal consciousness 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 products 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 M cchaka ika, 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 Mcchaka ika. 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).
20
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 intervene. 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 potential 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 knowledgeable 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.
21
Davis and Nemec
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 nonetheless, 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 strategies 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 asking to what friends home Vasantasen went, the mother replies:
Old Woman (to herself):
Judge:
Provost and Scrivener:
Old Woman:
Sasthnaka:
Provost and Scrivener:
Judge:
Terrible! This is really too embarrassing! (Aloud.) This is

a question for the vulgar, not for a judge.
No coyness now! The case poses the question.
Yes, the case poses the question. Theres no harm in it.
Answer the question.
What, the case? Well, if thats so, listen, gentlemen
Master Crudatta
Youve heard it gentlemen. Let the words be recorded. My
quarrel is with Crudatta.
Theres nothing wrong with Crudattas being her friend.
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.
22
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 available 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 motivated 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 professionals, 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 followed 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 without 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 respectful, trusting observance of the law and its disrespectful, selfish manipulation found also in
the Mcchaka ika. 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 selfinterest. 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 granting 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 significant 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.
24
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 examined 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 terminology 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 narrative 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 available through reading these stories with the law in mind.
We have focused first on the psychological or attitudinal aspects of legal consciousness 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 consciousness, 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 premised 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 legality 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.
26
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 legality 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 modification 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 considerably 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 practice in classical and medieval India.
Acknowledgements
We acknowledge with thanks the helpful input of Mitra Sharafi, Kirin Narayan, and the two anonymous 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.

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443762

LCH0010.1177/1743872112443762Davis and NemecLaw, Culture and the Humanities

Law, Culture and the Humanities

Donald R. Davis, Jr.

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On both counts, we think Sternbach has conflated the Brahminical representations of

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straightforwardly accurate portrayals of either legal practice or contemporary legal

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II.Two stories from Kalhaas The River of Kings

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21. Stein, Rjatara gi, 6.1441, in Steins translation.

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Stein, Rjataragi, 6.51cd.

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expression for this fast-unto-death (pryopavea) is mirrored in a number of regional

III. A Story from Somadevas The Ocean of Rivers of

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35. Tawney, Kathsaritsgara, 5.1.84cd86.

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First rejecting a series of akarasvmins candidates (all apparently householder

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Tawney, Kathsaritsgara, 5.1.187191ab. (translation adapted)

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IV. An Early Example: The Little Clay Cart of draka

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Terrible! This is really too embarrassing! (Aloud.) This is

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58. Olivelle, Manus Code of Law, pp. 626.

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