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Writing and the recognition of customary law in premodern India and Java.


Modern lawyers sometimes have trouble seeing custom or "folk law" as law at all, at least in a formal sense. The ninteenth-century legal theorist John Austin's classical formula held that law consists of the commands of a sovereign backed by the threat of sanctions. Custom in itself is mere habit until it is gets adopted by judges (and thus tacitly by the sovereign). (1)

More recent positive law theorists have tended to insist that in the absence of a constitution, a legislative apparatus, and a bureaucratic state able to provide for enforcement, there can be no legal rules per se, only maxims or customs. To have law, said the positivists, there must be a "basic norm" (Grundnorm: Kelsen 1949) or a "rule of recognition" (Hart 1994 [1961]), that is, a rule with broad acceptance in accordance with which all other laws derive their validity. (2) Custom, ostensibly based on common acceptance alone, Hart considered insufficient to serve legal functions.

In the last half-century, the legal positivist model has been attacked from various sides, largely by puncturing the grand Austinian notion that everything in law hangs on the rules. Ronald Dworkin, arch-nemesis of the positivists, faulted them for ignoring (or waffling on) the legal uses of principles (i.e., moral propositions invoked to influence legal argument), and more fundamentally for asserting that a value-neutral definition of legal validity is an adequate theory of law. Legal realism directed our attention away from rules altogether and toward the (often informal) ways in which legal work actually gets done. (3) And the anthropology of law has insisted that societies without state-based law, constitution, or written statutes are not on that account devoid of law.

Legal pluralism, one of the chief outgrowths of the anthropology of law, began by emphasizing another situation of recognition: the recognition of customary law by the "centralist" law of the state, especially the colonial state and post-independence successor states. (4) More broadly, legal pluralists seek to show how "the law" can never be a single, hermetic, state-driven machine, but is always a fluid, complex web of interconnected sets of standards--pluralism in the "strong sense." In most nation-states today, the "official" law claims ultimacy, selectively recognizing the rules of other social associations--corporate regulations, professional guidelines, industrial standards, etc. (5) The recognition of law in pluralistic settings is of course just a subset of Hart's recognition, lower links in the chain of validity.

In British India, for example, colonial lawyers developed ways to recognize laws based on indigenous custom. Although they had begun, in the late eighteenth century, to look for "black letter law" in the "Shasters" (Dharmasastras)--by consulting Brahmin pundits, and then by translating the "Laws of Manu" into English--they soon enough came to realize that this was not the basis of the law as most Indians knew it. (6) Rather, as the French priest Bouchet recognized in 1714, it was oral and customary, but not for that reason indeterminate. (7) The British courts thus sought to draw on it through the testimony of native informants; then, importing the principle of precedent, a written version (albeit an often quite distorted one) emerged through accretion in the form of "judge-made law," which in the view of British jurists had the benefit over customary legal practice in that it could be clearly fixed and thus consistently applied.

But was pre-British (and non-Mughal) Indian law wholly unwritten? And did it lack a rule of recognition? We do not need to reconcile or decide between theoretical approaches to admit that even in a largely customary legal culture "rules is rules": written rules may be accorded a special value that makes them notably different from other legal standards, in coercive force, in jurisdiction, or simply in relative weight. Given a system with some sort of means of recognition, many sorts of standards--moral or ritual precepts, maxims, customary norms, and principles--can be formally recognized as law, and so put to uses such as endowing with rights, imposing an obligation, facilitating litigation, or justifying state violence.


We should consider whether premodern Indian society had law in Hart's sense (or in Ronald Dworkin's, which acknowledges the legal applications not only of rules but of principles and policies), (8) and if so, what mechanisms we can discern for the recognition of customary norms and other standards as law. Was there a difference in theory or in practice between different sorts of standards? And what effects did writing have on the process? If one important effect was to formalize a rule, to clarify its jurisdiction, or to spell out its consequences, does it make sense to regard this as a mode of recognition? What can the premodern Indie evidence contribute to comparative discussion of recognition of laws?


Explaining what made ancient Greek law unusual, Michael Gagarin observes that most other premodern legal cultures "wrote extensive sets (or codes) of laws for academic purposes or propaganda but these were not intended to be accessible to most members of the community and had relatively little effect on the actual operation of the legal system" (2008: 1). This characterization applies well to Dharmasastra, generally speaking, but not to all legal uses of writing in India. Dharmasastra certainly can be regarded as a "scholarly" exercise--"Hindu jurisprudence" (9)--and it was intended as propaganda for the Brahmanical cosmopolitan world order.

But writing also served other functions in India. An enormous number of inscriptions on stone and copper plates have survived, and these presuppose and sometimes explicitly attest to the use of palm leaves and other perishable materials for the purpose of framing and transmitting such documents. These documents, commonly called lekha ('writing, writ') or pattra ('leaf'), are used to record decrees (most commonly to confer land rights and other benefices), settlements in a public or private dispute, or charters of customary rules. Donative decrees and settlements doubled as deed or title to property rights and privileges, and there are a number of instances in which the record refers to its own capacity to forestall or resolve future disputes over such rights. The use of inscriptions to promulgate statutes of general application is rare in India, but not unheard of. The durability of the written document is paramount. Records often close with a formula invoking their validity in perpetuity, "as long as the moon and sun endure," and warning future rulers not to violate their terms.

In Southeast Asia, from Burma to Borneo, the importation and appropriation of Indian cultural habits and institutions, including legal ones, took the form both of inscriptions (initially in Sanskrit, but then bilingual and in local languages), and of law-codes superficially modeled on Dharmasastras but mostly local in language and content. (10) This development is particularly instructive in its contrast with the closest analogy in India, where the regional Dharmasastras, few as they were, were composed in Sanskrit (e.g., the Laghudharmaprakasika or Samkarasmrti, from Kerala).

In all these spheres, there are signs that the interplay between Dharma texts and inscriptions fostered the emergence of formal legal institutions that were tied simultaneously to local social bodies and state structures, and to an overarching, transregional conception of legitimate authority. What is most likely to be left out of account are unwritten norms--rules that, to proponents of legal realism and legal pluralism, have legal functions even though they are not part of a formal code. We will see some of these as they show up in inscriptions.

In what follows, we will briefly consider what the early Dharmasastra had to say about regional and parochial norms, before turning to the epigraphy to illustrate the range of legal functions that writing could serve in practice. Our examples come from a wide range of times and places. There is room here for only the barest sketch of the historical context; in any case, for some types of records the numbers are too few to permit a highly nuanced view of local distinctions. At the same time, the basic legal functions of inscriptions (and their palm-leaf or paper analogues) seem to have remained fairly stable over time and space for over a millennium at least. Indeed, it has been shown that in South India, the source of the largest number of inscriptions, even palm-leaf legal documents produced in the mid-nineteenth century "are written in a documentary language which has been in vogue since medieval times"; indeed, "they resemble very closely medieval inscriptions in style, format and contents and so they indirectly help in a better understanding of the inscriptions." (11)


Dharmasastra ("Hindu law") canonizes a particular model of Brahmin customary standards (acara)--those practiced in the "Land of the Aryas" (Aryavarta) (12)--and it does so in a mixture of edifying maxims and substantive apodictic rules on specific points. It is likely that many of these were considered normative within particular Brahmin circles at particular times, though we cannot now know where or when exactly. (13) Futhermore, the sastra-authors took it as part of their task to compile traditional precepts, but not always to reconcile them when they diverge. The result is in some sense a code--a systematic arrangement--but one ill-suited to direct application as a code of statutes in a court of law (as the British would learn).

Dharmasastra also contains numerous procedural rules, including some that could be called rules of recognition, at least within a Brahmin milieu. The most basic of these, found in several forms, seek to establish what counts as dharma. For example, the Apastamba-Dharmasutra (ApDhS) begins:
   athato samayacarikan dharman vyakhyasyamah | dharmajnasamayah
   pramanam | vedas ca | ApDhS 1.1.1-3

   1.1.1. Now we shall explain the laws consisting in agreed-upon
   practice. 2. The consensus of dharma-knowers is the standard. 3.
   And the Vedas.

Elsewhere in that work, a pair of maxims reinforces the predominance of collective human authority over any transcendent source of dharma:
   na dharmadharmau carata avam sva iti | na devagandharva na pitara
   ity acaksate 'yam dharmo 'yam adharma iti | yat tv aryah kriyamanam
   prasamsanti sa dharmo yad garhante so 'dharmah | ApDhS 1.20.6-7

   1.20.6. Dharma and adharma do not go around saying, "Here we are!"
   Nor do gods, Gandharvas [angels], or ancestors declare, "This is
   dharma and that is adharma." 7. An activity that Aryas praise is
   dharma, and what they deplore is adharma. (14)

Although the Apastamba here seems to relegate Veda to secondary status, the general view stipulates that acara is valid only to the extent that it does not contravene scripture. Scripture is even invoked on a few occasions to justify one rule over another, for example, to support the paternity claim of a biological father over his child in an adulterous union (ApDhS 2.13.5-6; cf. BDhS 2.3.34; VDhS 17.9).

On the other hand, the very next sentences warn readers that some of the conduct depicted in scripture is not legitimate in the present day, since the ancients had "extraordinary power" that people lack in later ages (2.13.7-9). The sutra goes on to consider several practices attributed to "some" or to "some regions": the giving away or formal sale of children, primogenitary inheritance, and other unequal divisions of an estate (2.13.10-2.15.1). These practices are declared invalid on the basis of textual authority: "That is forbidden by the sastras" (tac chastrair vipratisiddham). After some further examples of good customary practices, the discussion closes: "By this, the rules followed in regions and families are explained" (etena desakuladharma vyakhyatah).

Gautama-Dharmasutra 11.19-22, after listing the textual sources of Dharma, specifies that "the dharmas of regions, castes, and families are also authoritative if they are not in conflict with the sacred scriptures. Farmers, merchants, herdsmen, moneylenders, and artisans exercise authority over their respective groups. [The king] should dispense Dharma after he has ascertained the facts from authoritative persons of each group." (15) Baudhayana-Dharmasutra (1.2.1-9) goes so far as to recognize specific deviant regional norms, though it admits that Gautama accepts only those practices found in Aryavarta.

Vasistha-Dharmasutra, the latest of the sutras (1st c. B.C.E.), expresses what becomes the consensus view (1.17): "Where Vedic warrant is lacking, Manu has endorsed the dharmas of one's region, caste, or family" (desadharma-jatidharma-kuladharman

srutyabhavad abravin manuh). Compare this with a provision of the South African Constitution of 1998: "[section]211(3). The courts must apply customary law when that law is applicable, subject to the Constitution 14 15 and any legislation that specifically deals with customary law." This section recognizes pertinent customary law so long as such law does not violate the Constitution and other relevant constitutionally valid laws (the proviso in this case being to ensure that no customary law be recognized that violates the constitutional principle of equality before the law). In both of these examples, customary rules are allowed to supplement or extend the centralist law so long as they are not allowed to supersede it.

Hart argued that such norms cannot by definition rise to the status of "laws" until some procedural rule is established to define what counts as law. For the most part, he regards customary rules as too informal to count as laws. Apart from the few examples like those cited above, classical Dharmasastras rarely commited local norms to writing. The passages cited above, though, do provide explicit procedural rules for determining the status of customary norms as valid Dharma: the customary practice (acara) of well-trained Aryas within the boundaries of Aryavarta is deemed a valid supplement to textual sources (and in fact provided the basis of Smrti texts [Sastra] in the first place); local norms (desadharmas, kulacara, etc.) are also valid, at least so long as they do not conflict with Veda or Sastra--and some (e.g., the Baudhayanas) were inclined to allow them even when they did conflict.

In the modern world, norms generally are accorded legal force only when reduced to writing. On the face of it, in India we seem to find the reverse situation. Unwritten rules appear usually to have been the only ones accepted in court hearings. Davis (2010: 13-15) describes Dharmasastra as a form of jurisprudence, designed for establishing legal principles and training legal minds. This characterization suits perfectly the later products of the tradition: the commentaries and topically arranged compendia of the medieval age. The versified codes transmitted under the names of Manu, Yajnavalkya, Narada, Brhaspati, and others, however, though they surely served such purposes as well (Gagarin's "propaganda"), outwardly take the form of rules: part constitution, part procedural law, part substantive laws, often quite detailed, defining crimes and torts, prescribing courtroom process, and proposing penalties and other remedies. They have their roots in older rulebooks, the codes that spell out the standard forms of Vedic ritual practice. The dispute over whether they contain laws or not pivots not so much on how they are framed as on the absence of direct evidence that they were applied in legal practice.

But direct evidence for everyday life in premodern India is patchy in the extreme: plentiful in a few areas of life and sparse in many more, leaving vast swaths in total, cavernous obscurity. In what follows, I will shine the lantern on a few inscriptions, twinkling nuggets of legal practice that lie exposed to view in the bedrock of the epigraphic record. Although the evidence is scattered, it will be sufficient to show that writing in classical and medieval India served a wide range of legal purposes, well beyond those of the Dharmasastra.


Now let us say for the moment that Gagarin is right that the Greeks' peculiarity is that they used writing to legislate and to publicize laws, and let us acknowledge the usual view that Indians (like many other premodern peoples) did not do so, but rather used writing only for propaganda, scholarship, and documentation. How then should we account for the existence of inscriptions that either record or invoke explicit rules that seem to have the character of fixed laws?

The "Charter of Visnusena "

As in many other ancient societies, the royal decree seems to serve as a basic mechanism of formal legislation, at least where its purpose is to institute or endorse a rule or set of rules to govern conduct on a regular basis. Examples of this are rare, especially in the early epigraphy, but they are not altogether absent. The most famous example is known as the "Charter of Visnusena" (592 c.e.), (16) a list of over seventy rules based on the customary rules (acara) of a merchant-community (vanig-grama), by whom a Maitraka-era ruler had been petitioned (vijnapta) to document and publish them in writing in a "charter of statutes" (sthiti-patra). (17) The notion that a king should have a record of his subjects' customary laws in writing is well established in sastra. The Kautiliya Arthasastra (KAS 2.7.2) explicitly prescribes that the Bureau of Official Records (nibandha-pustaka-sthana) should keep a record of the "laws, conventions, customs, and canons with respect to regions, villages, castes, families, and associations" (desa-grama-jati-kula-sanghanam dharma-vyavahara-caritra-samsthanam). (18)

The Maitraka dynasty, founded in Saurashtra in western India by a regional vassal of the imperial Guptas, reigned from Valabhi from the late fifth century through the middle of the eighth. Visnusena, a contemporary of the Maitraka ruler Dharasena II, issued the charter in his authority as mahasamanta, a title which during the sixth century in this region came to be adopted by feudatories; in this charter, it is included along with four other titles, together constituting the 'five titles' (panca-mahasabda), first used by Dhruvasena I (525-45) in deference to the Gupta emperor. (19) By the middle of the century, the Maitrakas had ceased to pay allegiance to the Guptas, (20) and their own governors in turn began to style themselves mahasamanta; such seems to be the case of Visnusena.

Visnusena's charter is an unusual record, and given how little we know from other sources about its social and political context, much of the technical terminology it uses--official titles, legal categories, names of particular taxes and fees--remains rather opaque. Nevertheless, it is possible to recognize that these statutes are broadly intended to set certain limits on how the state and its representatives may impose on its subjects, and on the merchants in particular, but the statutes also regulate civil harms, trade practices, and legal process, and set fees and fines of many sorts. Here I offer the first complete translation of the inscription.21 (Given our lack of knowledge about the context and particular usage of the terms of art employed, the precise force of many of these rules cannot be explained. Where an asterisk precedes a rule, the rendering should be considered particularly tentative and uncertain.)

[lines 1-4] svasti lohatavasakat paramabhattarakasribavapadanudhyato mahakarttakrtikamahadandandyaka-mahapratihara- mahasamanta-maharaja-sri-Visnusenah [ku]sali [sa]rvvan eva svan raja-rajaputra-rajasthaniyayuktaka-viniyuktaka-saulkika-coroddharanika-vailabdhika-cata-bhatadin anyams ca yathasambadhyamanakan adesaviksepakarina[h] dhruvadhikaranam ca samajnapayaty . astu vah samviditam yatha vijnapto ham vanig-gramena yathasmakam lokasamgrahanugrahartham acarasthitipatram atmiyam prasadikurvvantu. tan maya bhutapurvvasya janapadasyabhutapurvvasya ca pariraksanasannivesanayatmiyam sthitipatram prasadikrtam

Prosperity! From the Lohata-residence, the supreme majesty, who meditates on the feet of his father, the great overseer, great bearer of the rod of justice, great chamberlain, great feudatory, great king, his highness Visnusena, being in good health, commands all his kings, princes, palace officials, outpost officials, tax officers, thief-apprehenders, vailabdhikas, and police and military personnel (cata-bhata), and others responsible for executing orders or dispatching agents as far as they

may be concerned in this, (22) and the Central Court of Justice: (23) Let it be known to you that I have been petitioned by the merchant-group thus: for the unity and welfare of our people, may [your highness] (24) graciously issue your own charter of customary statutes. So I have graciously issued my own charter of statutes in order to protect and settle the countryside, both the previously established [areas] and those which are not.

[Basic property rights]

[sthiti 1] aputrakam na grahyam |

The property of a man with no son may not be seized [by escheat]. (25)

[sthiti 2] unmarabhedo na karaniyo rajapurusena |

The king's officer should not 'violate the threshold' [i.e., forcibly enter a home]. (26)

[Protections against wrongful prosecution]

[sthiti 3] udbhavakavyavaharo na grahyah |

A contrived (udbhavaka) suit should not be entertained.

[sthiti 4] sahkayd grahanam nasti |

Arrest on suspicion is not to be made.

[sthiti 5] purusaparadhe stri na grnhya |

A woman should not be arrested for the crime of her husband.

[sthiti 6] ksemagnisamutthane chalo na grahyah |

In the event that a safely laid fire spreads, no frivolous complaint shall be entertained.

[sthiti 7] svayamhrasite karnne chalo na grahyah |

In the event of a "self-shortened ear," no frivolous complaint shall be entertained. (27)

[sthiti 8] artthipratyartthina vina vyavahdro na grahyah |

No suit is to be entertained where a plaintiff or a defendant is absent.

[sthiti 9] apane asanasthasya chalo na grnhyah |

A frivolous complaint shall not be entertained from someone who is seated in the market.

[Fees and other obligations]

[sthiti 10] gosakatam na grahyam |

An oxcart may not be seized.

[sthiti 11] samantamatyadutanam anyesam cabhyupagame sayaniyasanasiddhannam na dapayet |

One may not require anyone to provide bed, seat, or prepared food when royal vassals, ministers, envoys, or others come through.

[sthiti 12] sarvvasreninam ekapanako na deyah |

[The fee for] a single shop is not to be paid to all guilds. (28)

[sthiti 13] sarvvasrenibhih khovadanam na datavyam |

All guilds are exempt from paying the khova-fee.

[sthiti 14] rajakule 'dhikaranasya ca rajargghika deya | anyesam adeya |

The "king's perquisite" is to be presented in the royal court or to the [appropriate] department; it is to be given to no one else.

[sthiti 15] varikasya haste nyasako na sthapaniyah |

A nyasaka ('deposit'?) is not to be placed in the hands of a manager. (29)

[sthiti 16] paravisayat karanabhyagato vanijakah pararese na grahyah |

A merchant come on some business from another district may not be detained in someone else's case.

[sthiti 17] avedanakena vina utkrsti na grahya |

A general outcry should not be accepted in the absence of a formal complaint.

[sthiti 18] vakparusyadandaparusyayoh saksitve sari na grahya |

A sari (30) may not be accepted as witness in a case of verbal or physical assault.

[sthiti 19] dhenkukaddhakaniladumphakas ca vistim na karayitavyah |

Dhenkukaddhakas and indigo-makers may not be compelled to perform corvee.

[Protections against arbitrary or unreasonable detention]

[sthiti 20] prapapu[ra]kagopalah rajagrahena na grahya[h*] |

Water-carriers and herdsmen are not to be detained by the royal agent. (31)

[sthiti 21] grhapanasthitanam mudrapatrakadutakaih sahasavarjjam ahvanam na karaniyam |

While they are at home or in the market, persons should not be summoned to court by messengers with sealed letter except in the case of violent crime.

[sthiti 22] parenarthabhiyuktanam vadapratisamasane yajnasatravivahadisu ahvanam na karayet |

One may not summon those accused by another (32) in a case to refute the charges while [they are involved] in a yajna (Vedic sacrifice), a sattra (longterm Vedic performance), (33) a wedding, or the like.

[sthiti 23] rnadanabhilekhitavyavahare akasthalohabaddhena krtapratibhuvena guptir upasya |

In the case of a written complaint for the nonpayment of a debt, one who has provided a surety may expect [the court's] protection, (34) and not be fettered by wood or iron (i.e., by cangue or joug).

[sthiti 24] varsasu svavisayat bijarttham agatakakarsakah svamina na grahyah |

Cultivators who have come from their own districts during the rainy season for seed may not be detained by a landowner.

[Market regulations]

[sthiti 25] asadhamasi pause ca drastavyam manapautavam adane rupakah sapadah saha dharmmikena |

Weights and measures are to inspected in the months of Asad ha (June-July) and Pausa (December-January); as fee (adane): 1 1/4 rupees including charity tax (dharmika). (35)

[sthiti 26] asamvadya vyavaharatah sulkadikam ca dhanyadi pravesayato niskasayato va sulkam astagunam dapyah |

An eightfold tax [i.e., 10 rupees] is to be paid by one who is doing business and bringing in or disposing of taxable grain or the like without consent [of the authorities],

[sthiti 27] petavikavarikena pamcaratrake pamcaratrake karttavyam argghanivedanam anivedayato vinaye rupakah sad dharmmike padah |

Announcing of prices should be done every fifth night by the petavika-varika (market [?] manager); (36) as fine for him who does not so announce: 6 rupees; 1/4 rupees as charity tax.

[sthiti 28] uttarakulikavarikaih manabhandameyagate bahir nna gantavyam |

Managers of the higher families may not go out [of the market] when measures, vessels, or goods are missing.

[sthiti 29] uttarakulikavarikanam eva karanasamnidhau chatrena trir aghusitana[m*] nirupasthanad vinaye rupakadvayam sapadam saha dharmmikena |

If managers even of the higher families do not present themselves before the court registrar when called up thrice by the chatra (summoner) they are subject to a fine of 2 1/4 rupees including charity tax.

[sthiti 30] vyavaharabhilekhitakakaranasevakasyamadhyahnad urdhvam nirupasthitasya vinayo rupakah sat sapadas saha dharmmikena |

For a clerk responsible for recording cases who is not present from midday onwards, the fine is 6 1/4 rupees including charity tax.

[sthiti 31] amadhyahnad urdhvam uttarakulikavarikanam chalo nasti |

From midday onwards, [if the court clerk is absent?] managers of the higher families may not bring a frivolous complaint (chala). (37)

[Other fines, taxes, and fees]

[sthiti 32] argghavamcane rupakatrayam sapadam saha dharmmikena |

For deceptive pricing, [the fine is] 3 1/4 rupees including charity tax. [See the set pricing in 27.]

[sthiti 33] mudrapacare vinaye rupakah sat sapadah saha dharmmikena I

For misuse of seals, the fine is 6'A rupees including charity tax.

[sthiti 34] sthavara[vya]vahare samantaih avasitasya vinaya rupakasatam astottaram 100 8 |

In a real estate suit, if it is settled by neighboring land-holders (samantas), the fine [for the losing party] is 108 rupees. (38)

[sthiti 35] samvadane rupakah catuspancnsat |

[But] if [the court] is informed, [the fine is] 54 rupees.

[sthiti 36] jayike bhasa phalavane ca rupakatrayam sapadam |

A statement (i.e., certificate?) for the winning party, and for settling the tax-assessment: 3 1/4 rupees. (39)

[sthiti 37] ullambane karnnatrotane ca vinayo rupakah saptavimsat |

For suspending [someone] and for tearing the ear, the fine is 27 rupees. (40)

[sthiti 38] vakparusyadandaparusyayoh vinaye rupakah sat sapadah |

For verbal or physical assault, the fine is 6 1/4 rupees.

[sthiti 39] ksatadarsane rupakah astacatvarimsat |

When the injury is visible, 48 rupees. (41)

[sthiti 40] gavam taundike vi[m*]sopakah pamca |

When cows [damage property] with their mouths, [the fine is] five-twentieths [of a rupee].

[sthiti 41] mahisyas ta[d*]dvigunam |

Twice that if it is done by a water buffalo. (42)

[sthiti 42] madyabhajanasyavalokye rupakah pamca |

For inspection of a wine vessel, 5 rupees.

[sthiti 43] prathamabhajane dharmmi[ke] adhikaranasya rupakadvaya[m] snrdha[m*] ru 2 1/2 |

For a first [use of a] vessel, 2 1/2 rupees as charitable dues [payable directly] to the court.

[sthiti 44] anaprstva sandhayato dvitiye 'hani taddvigunam dapyah |

For one who brews on a second day without asking leave, he should pay twice that amount.

[sthiti 45] surakara[na]syavalokye rupakatrayam dharmmike rupakah sapadah rajargghikaya madyacaturthadvayam 2 |

For inspection of a brewery, [a fee of] 3 rupees, 1 1/4 as charity tax, and 2 quarter-measures of wine as "king's perquisite."

[sthiti 46] kamsyadosyayudhanam a[sa]dhi paurnnamasi bharolakanirodhena grahanakapravistam bhavati | grahanakesu dandako nanusaraniyah |

* [A portion?] of brass [and] dosya weapons/utensils goes into the grahanaka [royal storerooms?] by weighing and restricting (? bharolakanirodhena) at the full moon of Asadha; (43) a penalty [? dandaka] may not be added at the storerooms. (44)

[sthiti 47] rajakiyaganje kalvapalavarikena cuturtthasotlhastena meyam muktva nanyat [ki]mcit karaniyam |

After the kalvapala-officer, with a quarter-soti measure in his hand, has dispatched the measured material to the royal storehouse, he has no other duties.

[sthiti 48] nilakutyadanam [d]umphakena deyam rupakatrayam ru 3 |

A dumphaka must pay 3 rupees as indigo-vat fee.

[sthiti 49] iksuvatadanam rupakah dvatrimsat ru 30 2 dharmike rupakadvayam sapadam ru 2 1/4 |

For a sugar-cane grove, 32 rupees; the charity tax, 2 1/4 rupees.

[sthiti 50] allavatasyato 'rddhadanam |

The fee for an alla (45) plantation is half that

[sthiti 51] yantrakutyadanam rupakatrayam ru 3 dharmmike rupakah sapadah |

For an oil-press the fee is 3 rupees; the charity tax, 1 1/4 rupees.

[sthiti 52] varsaparyyusita vanijah pravesyam sulkatiyatrikam na dapaniyah nairggamikam deyam |

Merchants who have resided [abroad] for a rainy season (or for a year) may not be required to pay entry tax and customs duty, (46) [but] departure tax must be paid.

[sthiti 53] bhandabhrtavahitrasya sulkatiyalrike | rupakah dvadasa | ru 102 dharmmike rupakah sapadah ru 1 1/4 |

As customs duty for a conveyance full of merchandise, 12 rupees; as charity tax, 1 1/4 rupees.

[sthiti 54] mahisostrabharakasya rupakah pamca sapadah 5 1/4 saha dharmmikena |

For a buffalo-load or camel-load of goods, 5 1/4 rupees including charity tax.

[sthiti 55] balivarddadanam rupakadvayam sardham ru 2 1/2 dharmmike padah 1/4 |

The charge for a bull is 2 1/2 rupees, 1/4 rupee for charity tax.

[sthiti 56] garddhabhabharakadane rupakah sapadah ru 1 1/4 saha dharmmikena |

As charge for a donkey-load of goods, 1 1/4 rupees including charity tax.

[sthiti 57] ato 'rddhena pottalikusa[m]kacitakadanam avalambakasya vimsopakah pamca | 1/4 |

Half of that is the charge for packages carried with a yoke; for one dangling [bag], 5/20, i.e., 1/4 [rupee].

[sthiti 58] palasatasya vimsopakadvayam saha darmmikena |

For [a package] weighing a hundred patas,, 2/20 including charity tax.

[sthiti 59] yathoparilikhitabhandadanat dhanyasyarddhadanam |

For grain, the charge is half of the charge for merchandise as written above.

[sthiti 60] ardrakalakatayah sulkatiyatrike rupakah sapadah saha dharmmikena ru 1 1/4 |

As customs duty for a lakata of ginger, 1 1/4 rupees including charity tax.

[sthiti 61] vamsabhrtavahitrasya rupakah sat sapadah saha dharmmikena ru 6[1/4] |

For a conveyance full of bamboo, 6 1/4 rupees including charity tax.

[sthiti 62] [ska]ndhavahyam dhanyam sulkam na pradapayet ]

No tax shall be charged for grain carried on the shoulders.

[sthiti 63] kanikkakustumbarirajikdprabhrtinam varnnikagrahane setika grahya |

A setika [two handfuls] may be taken as sample of cumin seed, black mustard seed, coriander seed, and the like. (47)

[sthiti 64] vivahayajnotsavasimantonnayanesu ca sulkam na pradapayet |

There shall be no tax charged in connection with weddings, Vedic sacrifices, festivals, and prebirth ceremonies.

[sthiti 65] varayatrayam sulkadiya[tri]ke (-atiyatrike) rupakah dvadasa | ru 10 pattakadharmmike rupakadvayam sapadam ru 2 1/4 |

For the customs duty applicable to the procession of the groom in a wedding, 12 rupees, and 1 1/4 as document-charity tax.

[sthiti 66] madyavahanakasyadane rupakah pamca | ru 5 dharmmike rupakah sapadah ru 1 1/4 |

As charge for a conveyance of liquor, 5 rupees, 1 1/4 as charity tax.

[sthiti 67] kha[llabha]raka[sya] rupakah sapadah saha dharmmikena ru 1 1/4 |

For a skin-load [of liquor], 1 1/4 rupees including charity tax.

[sthiti 68] kelayah samkacitakasya ca ato 'rddhadam |

And half of that as charge for a kela [of liquor?] carried with a yoke.

[sthiti 69] padaghatasya vimsopakah pamca | saha dharmmikena |

For a quarter-measure pot [of liquor?], 5/20 including charity tax.

[sthiti 70] katumadye sidhucaturthatrayam 3 |

In the case of bitter liquor [or: vinegar?], (48) a three-quarter measure of sidhu.

[sthiti 71] chimpakakolikapadakaranam yathanurupakarmmanah janapadamulyad rajakule 'rdhadanam |

For dyers, weavers, and cobblers, the charge owed in the palace is half the public rate for comparable work. (49)

[sthiti 72] lohakararathakaranapitakumbhakaraprabhrtinam varikena vistih karaniya |

Blacksmiths, chariot-makers, barbers, potters, and the like shall perform corvee by order of the manager.

[lines 29-31] ye canye [pu]rvvavalamanakacaras te 'pi maya samanujnnatah yato 'nyarajabhir api asmadvamsajair anyair vva samanyam acandrarkarnnavagrahanaksatraksitisthitisamakalinam putrapautranvayam yasahkirttiphalam adhivamchadbhir idam asmat pradattanugrahasthiti patram anumodaniyam pratipalaniyam ceti || dutako 'tra sandhivigrahadhikaranadhikrta-Bhattakah sam 600 40 9 sravanasu 5 | svahastah sri-Visnusenasya ||-

And whatever customary norms may already be current, those too I approve, so that other kings born in our lineage too, or equally others, may approve and observe this gracious charter of laws that has been presented by us desiring a succession of sons and grandsons to endure as long as the moon, sun, sea, planets, stars, earth, and land, with glory and fame as its fruit. The herald here is Bhattaka, Chief Officer in the Office of Pacts and War Decrees. Year 649 Sravana bright 5th. Signed by Sri Visnusena's own hand.
   [lines 32-34] svasti Darpapurat samantavantih kusali [sa]rvvan
   evatmiyan anyams ca yathasambadhyamanakan bodhayaty astu vo viditam
   yatha mayaisam vaniggmmasya Lohatakagrame pra[ti]vasato yeyamm
   uparilikhita sthitivyavastha sri-Visnubhatena daita sa mayapy
   anumata yata esam uparilikhitasthitipatravyavasthaya prativasata[m]
   svapanyena catmanam varttayatam na kenacit paripanthana karyeti sam
   300 50 7 karttikaba 7

   Hail! From Darpapura, the vassal lord Avanti, being in good health,
   informs all his own and others whom it may concern: Let it be known
   to you that, by me, the above-recorded charter of statutes of the
   merchant group residing in Lohata-village, issued by Sri
   Visnubhata, is endorsed by me as well, so that no one may obstruct
   those who are residing here in accordance with the above-recorded
   charter of statutes in writing, and who by their own commerce are
   sustaining themselves. Year 357 Karttika dark 7th.

To Sircar (1958: 169), these "look like prevalent customary laws without much modification." It is true that many of these rules have no close parallels elsewhere, but Sircar and others have allowed the novelties to blind them to signs of textualism. It is has not been noted before how many of these rules use technical terminology distinctive of the Dharmasastra literature, especially to designate basic legal categories and roles. These include terms for legal process: vyavahara ('lawsuit'),

avedana ('formal complaint', no. 17; cf. YUh 2.5); for persons appearing in court: arthin ('plaintiff') and pratyarthin ('defendant'), saksin ('witness', no. 17), abhiyukta ('the accused', no. 22; cf. YDh 2.9ff.); and for the formal grounds of litigation: vakpdrusya and dandaparusya (verbal assault and physical assault, nos. 18 and 38), rnadana ('nonpayment of debt', no. 23). Nos. 27 and 32, dealing with the mechanism for the daily setting of prices at market and the fine for 'price manipulation' (argha-vancana), parallel the precepts in YDh 2.249-51.

Forms of the verb grah- are used in the charter in at least two distinct senses: for the seizure or detention of persons or things by state authorities, and for acceptance of complaints (chala) or a suits (vyavahara) in court. Something quite like the latter usage occurs in Manu:
   svabhavenaiva yad bruyus tad grahyam vyavaharikam | ato yad anyad
   vibruyur dharmartham tad aparthakam || MDh 8.78

   Only what [witnesses] declare candidly should be accepted as valid
   for a suit; anything different that they may deceitfully declare
   has no validity for dharma.

The word chala is not used there, although a similar suggestion of deceit or false pretense is implied by vibruyuh. Chala, (50) both in Dharmasastra and in Nyaya thought, is understood as misrepresentation or misleading disputation (MDh 8.49; YDh 2.19; Nyaya-Sutra 1.2.10-18), but here it appears to have a slightly different if similarly negative sense. In sthitis 6, 7, and 9, chala relating to certain (unclear) circumstances is rejected; the other rules with which these are grouped (sthitis 5 and 8) concern the acceptance of a lawsuit (vyavahara). In this context, chala may mean 'frivolous complaint' or 'unsubstantiated charge'. The one other occurrence of the word is in sthiti 31, which should probably be understood in light of the preceding two sthitis. All three concern uttara-kulika-varikas, a class of market managers apparently of a higher order. Sthiti 30 prescribes a penalty if (what appears to be) the registrar of cases in the lawcourt is absent after midday, while 31 stipulates that there shall be no chala on the part of those market managers during that same time. With no more to go on, I interpret this to mean that the court will not consider complaints even from high market officers that come in late in the day without properly registering a case. The implication may be that such a complaint would be more likely to be frivolous or unsubstantiated.

Arthasastra 3.20.22 does use the word in a comparable way, to denote invalid legal claims: judges should initiate cases for those who are unable to do so for themselves, and "may not dismiss [such cases] on the pretext of place, time, or 'enjoyment' [i.e., another party's claim based on longtime possession and use of the property in question]" (na ca desa-kala-bhogac-chalenatihareyuh). Dismissing a case on the basis of a false pretext or spurious claim is itself a punishable offense (KAS 4.9.15). Indeed, our charter may provide a better understanding of a maxim found here and in Dharmasastra:
   evam karyani dharmasthah kuryur acchala-darsinah |
   samah sarvesu bhavesu visvasya loka-sampriyah || KAS 3.20.24

In this way, Justices should try lawsuits without engaging in deceit, being impartial to all persons, inspiring trust, and being loved by the people. (Olivelle 2013: 222)

I suggest that the first line ought to be understood as: "In this way, justices should try lawsuits without considering false claims...."

Although the Dharmasastras use the word grahya to affirm or deny what statements are "admissible" in a suit, (51) they and the Kautiliya Arthasastra also use forms of grah- to mean 'arrest, detain' (e.g., KAS 2.36.38, 3.11.22-24, 4.8.5, 7.5.22; YDh 2.283). But whereas YDh 2.266-69 offers a number of possible justifications for "arrest on suspicion" (sankaya grahyah) and the Arthasastra allows arrest of a "suspect" (sankitaka) within three days of the crime (4.8.5), this is by contrast explicitly and (it seems) generally prohibited by the fourth statute of our charter. (52)

The fifth rule has a parallel in the Arthasastra. KAS 3.11.22-24 stipulates that a wife may not be arrested (agrahya) for her husband's unpaid debt unless she was a formal party to it (or unless they belong to certain groups; cf. YDh 2.48; NSm 1.15-16), though a husband may be arrested for his wife's debt if it arose from his leaving her without financial support.

There are at least two ways of explaining the obtrusive presence of this legal terminology. Either it reflects the influence of the Brahmanical codes, or else the Brahmanical sastras may be codifying legal conceptions and institutions already current in practice. The fact that the inscription is in Sanskrit rather than Prakrit makes the former scenario of top-down influence a bit more likely; if the legal terms were drawn from common use in the courts, one might have expected more Prakritisms even in a Sanskrit record. On the other hand, the use of the word chala found here might reflect a usage distinct from that of scholastic discourse.

Of course, this need not be an either/or dichotomy. It is likely that Dharmasastra has picked up and formalized elements of an untextualized practical legal system; it should not be astonishing if systems of legal practice have been influenced by some of the technical elements of Sanskritic discourse. But there are other signs that this charter was drafted by someone quite conversant with Dharmasastra. For example, among those excused from peremptory summons to court are "those engaged in yajna, sattra, or wedding rites, and the like" (sthiti 22). One can understand a rule protecting the sanctity of a wedding or funeral ceremony, but the yajna (Vedic sacrifice) at the head of the list stands out as a particularly Brahmin concern, and one certainly wonders why the sattra is mentioned: sattras are Vedic rites that can be performed only by Vedic Brahmin priests, so it should in theory be of no relevance to a guild of merchants. Its inclusion here can only be explained by its being modeled on a sastric rule such as Brhaspati-Smrti 1.1.136-37, which includes "him who is engaged in a sattra ritual or in marriage rites" (sattrodvahodyatah) in the list of persons "who may not be detained" (nasedhyah).

The most important parallel with Dharmasastra, to my eye at least, is the provision tacked on at the end of the list of statutes: "And whatever customary norms may already be current, those too I approve." Sweeping acknowledgments of customary norms occur also in the Sanskrit codes: (53)
   jati-janapadan dharman sreni-dharmams ca dharmavit |
   samiksya kuladharmams ca svadharmam pratipadayet || MDh 8.41

   He who knows the Law should examine the Laws of castes, regions,
   guilds, and families, and only then settle the Law specific to

   sadbhir acaritam yat syad dharmikais ca dvijatibhih |
   tad desa-kula-jatinam aviruddham prakalpayet || MDh 8.46

   He should ratify the acknowledged practices of virtuous men and
   righteous twice-born individuals, if such practices do not conflict
   with those of a particular region, family, or caste.

The Arthasastra invokes the same principle more specifically as applying in the regulating of transactions (vyavahara-sthapana):

sve sve tu varge dese kale ca svakaranakrtah sampurnacarah suddhadesa drstampalaksanapramanagunah sarvavyavaharah sidhyeyuh || KAS 3.1.15

In each respective group, however, all transactions shall be valid when they are executed at the proper place and time, by someone with proof of ownership, observing all the formalities [acaras], with valid documentation, and noting down the appearance, distinctive marks, quantity, and quality, [tr. Olivelle]

But it is striking to see such a ratification ordained in the first person by an actual ruler.

Now it may be that it was Visnusena, or his Brahmin adviser, who was responsible for Sanskritizing a set of customary rules. Virkus supposes something similar with regard to the epigraphical legalese in the charter (2004: 146):
   Although its significance as testimony for the state of affairs in
   general in western and northern India in the sixth century should
   not be overestimated, nevertheless it does provide clues about
   which questions of economic life, legal and tax structure, as well
   as administration were regular and stable at a rather local level.
   This does not exclude the possibility, as has been noted, that
   Visnusena regarded the issuing of the document demanded of him as
   an opportunity to enforce his own aspirations and wishes as well.
   Herein may lie an explanation for the fact that the inscription
   exhibits some external elements that are characteristic of
   land-grant documents (address formula, appointment of a dutaka).

We may even discern his own aspirations in the decree with which Visnusena closes his preamble:
   tan maya bhutapurvvasya janapadasyabhutapurvvasya ca
   pariraksanasannivesanayatmiyam sthitipatram prasadikrtam

   So I have graciously issued my own charter of statutes in order to
   protect and settle the countryside, both the previously established
   [areas] and those which are not.

It may be no coincidence that this parallels the phrasing with which the Arthasastra introduces the king's duties: (55)
   bhutapurvam abhutapurvam va janapadam ... va nivesayet || KAS 2.1.1

   He should settle the countryside, whether it has been settled
   before or not ...

Be that as it may, we can certainly observe that both authors (Visnusena and his successor, Avanti) are quite conscious of the charter as a physical text and an authoritative document, alluding to it directly five times in varying terms as a charter (patra) or settlement (vyavastha) of statutes (sthiti) or customary statutes (acarasthiti). In his endorsement, Avanti twice refers to the "above-written charter." Even certain statutes cross reference others: statute 59 cites "the charge for merchandise as written above (yathoparilikhita-)," probably referring to the various rates detailed in statutes 53-58. So while it is likely that the acaras, of other social groups were crystalized in rules transmitted orally written on perishable materials, we cannot be sure whether or not the rendering of these rules in Sanskrit, as a permanent written document, simultaneously endowed them with a more sastric character.

Other Records of Sthitis

Even if, in presenting an entire code, the Charter of Visnusena remains an outlier among surviving early inscriptions, other Gupta-era records attest to the notion that customary practice could be invoked as law before official decision-making bodies. Thus a copper-plate record of 432-33 from Bengal (56) during the reign of Kumaragupta I seems to record that a brahmin petitioned a court to be granted endowed lands according to local rules:

[1] ------[sa*]mvatsara-s'a[te] trayodas'otta[re*]

[2] [sam100+10+3*]----[asyan dijvasa-puradyam paramadaivata-para-

[3] [ma-bhattaraka-maharajadhiraja-sri-kumaragupte prthivipati*]--kutu[mbi] ... --brahmana-sivasarmma-nagasarmma-maha-

[4] ----vakirtti-kshemadatta-gosthaka-varggapala-pingala-sunkaka-kala

[5] ----visnu-[deva]sarmma-visnubhadra-khasaka-ramaka-gopala

[6] ---- sribhadra-somapala-ramadyaka(?)-gramastakuladhikaranas ca

[7] ----visnuna vijnapita iha khadapara-visaye nuvrtta-maryyadasthi[ti]-

[8] --nividharmm[a]ksayenalabhya[te].[ta]darhathamamadyanenaivakkramena(na) da[tum]

[9] --sametyaja(?)bhihitai[h*]sarvvameva ** kara-prativesi(?)-kutumbibhiravasthapyaka

[10] -- * ri * kana * yadito * * [ta]d avadhrtam iti yatas tatheti +pratipadya

[11] ----[astaka-na*]vaka-nala[bhya]m apavimcya ksetra-kulyavapam ekam dattam. tatah ayuktaka

[12] -- * bhratrkataka-vastavya-chandoga-brahmana-vardhasvamino dattam
   ... In the year one hundred thirteen [Gupta Era] ... on the
   above-mentioned day, during the reign of the most devout, most
   venerable king of kings, King Kumaragupta ... householder ...
   brahmin Sivasarman, Nagasarman, [and others,] and the eight-family
   court of the village (gramastakuladhikarana) (57) ... were
   petitioned by *** visnu: "Here in this district of Khatapara,
   [according to?] the customary rule in practice ... is acquired by
   dissolving the capital endowment ([a]nuvrtta-maryyadd-sthi[tij ...
   nividharmmaksayena labhya[te]). So you should today give to me
   accordingly." ... When the aforenamed individuals had gathered, and
   everything had been settled by the neighboring landholders, ... and
   they had given their assent to the arrangement, saying "that is
   agreed upon," ... a one-kuldvapa field measuring eight by nine
   nalas was detached and given. Then, this land was given by the
   official (ayuktaka) ... to Varahasvamin, a Chandoga brahmin from
   Bhartrkataka. [Imprecatory verses follow.]

A stone inscription from the Chalukya Deccan, around 725, preserves a charter drafted in Sanskritized Kannada: (58)

[1-5] [om] svasti sri-Vikramaditya-yuvarajar Porigereya mahajannakkum nagarakkum padinentum prakrtigalgum kotta acara-vyavasthi(sthe).

[5-10] raja-purusar mmanegalol vidilladadu rajadattam rajasravitam saptra(tpra)me maryyade tambra-sasanam bhuktdnubhdgam [**] aydum dharmmada jivitangalan kavodu.

[10-14] idu mahajanakke nagara-maryyade mane vidilladadu oralke ormme Vaisakha-masadul desadhipatigal apporgge kuduva tere uttamam appa okkal [mi*]

[18-23] puttige ma[*] cora-paka-danda-dasaparadhamgal appav ellam purvvacaram a[pu] tradhanam envodu tdne illi s[e]nig[e] Karttikamasadul koduvadu ...
   Hail! [this is] the charter of customary rules (acdra-vyavasthe)
   which the Heir-Apparent Vikramaditya has granted to the Brahmins,
   the townspeople, and the eighteen social groups (prakrtis) (59) of

   The king's officers are to protect vacant houses, royal gifts,
   royal proclamations, the authority of good men, local laws,
   copper-plate edicts, continued possession of property possessed ...
   the lives of [those who bestow?] the five dharmas....

   This is the municipal law for Brahmins: each occupied house shall
   pay a tax once per year in the month of Vais'akha to the district
   governors; each house individually [shall pay] for festival
   expenses (?), the highest households [paying] ten panas, middling
   households seven panas, the lower, five, and the lowest, three. All
   already established customs such as puttige [...] fines for theft
   and misdemeanors (pakal), for the ten offences, and likewise what
   is known as the property of persons without heir--these are to be
   paid to the guild there in the month of Karttika ...

Obligations to the guild of braziers and the guild of oil-pressers are mentioned further on, though the record becomes increasingly illegible and obscure.

A final example of a decree recognizing customary norms concerns practices associated with marriage. In the late eleventh century, the governor of Vengi, a son of the reigning Eastern Calukya king Kulottunga I, issued an edict (s'asana) confirming the ceremonial privileges claimed by a cluster of families based on a formal recognition of old customary norms:60

[83] ... ma[nne]timahendramadhyavarttino rastrakutapramukhan kutimbinas sa-

[84] rvvan samahuya mamtripurohitasenapatiyuvamjadauvarikapradhanasamaksam ittham ajn[a]paya

[85] ti | yatha . samti madvamsabhupalapadapadmopajivinah . bhrtyah krtyavidhau daksah sauryyadigunasalinah | [v. 37] tanmadhye

[86] paraya bhaktya saktya ca prajnaya sadd . madiyanvayabhupalacittaradhanatatpara . [v. 38] nijair a[r*]tthair nnijaih pranai

[87] r vvikramadyai[r*] ggunair nnijai[h*] . ye calukyaksitisanam prastavapratipalinah . [v. 39] ayo[dhy]adhis'varena

[88] dau daksinasujayaisina . ye sahaiva samayata vijayadityabhu

[89] bhuj[a] . [v. 40] ra[ja]vamsavaramsana[*m] rajadhanya mahibhuj[a]m . puro vijayavateya

[90] ye vastavyakutumbinah I [v. 41] ye ca velumanullu pattipdlu nariyullu kumudallu ma

[91] rrullu povandlu sravakulu undrullu anumagondalu addanullu ityadi[ku]-

[92] [la]sahasramedaprasiddhah teli[ki]kulalabdhajanma[nah*] svadharmmakarmmanisthita mahasa[s te]sam a

[93] misam vijayavatapramukhanikhilapuranagaragmmapattanaprabhr-

[94] tisu sthanesu sarvvesu vivahotsavesu pravarttamanesu midhunasya vi[thi]su turaga

[95] rohanena paryyatanam adha vivahotsavavasane rajasripadamule maharggha-

[96] vasoyugalu[m* [i.e., yugalam]] nithaya [i.e., nidhaya] pranatanam esam kanakapatrena tambulapraddnam ca pu-

[97] rvvamaryyada[sa]magatam adhuna paramabhak[t*]iparitositair asm[a*]bhir acamdrarkka

[98] m sasanokrtya dattam iti viditam astu vah . dharmmo yam asmadvamsajaih pa-

[99] rtthivaih prayatnena palaniyam ....

[108] ... || srivijayarajya[sam]vatsara saptadase dattasyasya sasana[sy][a*]jnaptih katakadhipah kartta

[109] viddaya(bham)bhattah lekhaka[h*] pennacaryyah ||

[While Rajaraja Chodaganga was ruling the whole earth, he] called together all the Rastrakutas and other peasants living between the Manneru (river) and the Mahendra (mountain) and issued the following order (ittham ajndpayati) in the presence of the councillors, the family priest, the commander of the army, the heir-apparent, the door-keepers, and the ministers:

[vv. 38-41] "[Among my family's many servants, those] who have protected the Calukya kings at the beginning with their riches, with their lives, (and) with their courage and other virtues; who have come already at the beginning with king Vijayaditya, the lord of Ayodhya, who was desirous of conquering the southern region; the peasants dwelling in the town Vijayavata, the capital of the kings (who were) ornaments of the race of the Moon (Rajavamsa);

[90] "And who are bom in the Teliki family, whose minds are intent on the performance of their duties, (and) who are known to be divided into a thousand families such as Velumanullu, Pattipalu, Nariyullu, Kumudajlu, Marrullu, Pavandlu, Sravakulu, Undrullu, Anumagondalu, and Addanullu.

[92] "Be it known to you that, being pleased by (their) great devotion, we have now granted to these people by a decree (sasana), as long as the moon and sun shall last, that when marriage festivals are celebrated at all places such as Vijayavata and all other towns, cities, villages, and hamlets (?), the married couple may proceed on the roads on horse-back, and that afterwards when, at the end of the marriage festival, they place a pair of valuable cloths at the feet of the king and prostrate themselves, betel will be given (to them) in a golden vessel, (as) handed down by old custom.

"This dharma must be assiduously protected by the kings descended from our family." [Imprecatory verses follow.]

The executor (ajnapti) of this edict, which was given in the seventeenth year of the prosperous and victorious reign, (was) the commander of the camp (katakadhipa)', the composer, Viddayabhatta; (and) the writer Pennacarya.

The authoritative basis for the decree is that the norm has been "handed down by prior custom" (purva-maryada-samagatam), what in English Common Law is called "immemorial custom." The circumstances in which this custom was contested we do not know, but making it the object of a royal decree--the word sasana denotes the order and the physical document equally--adds an implicit threat of enforcement. The enactment is further called a dharma, a multivalent usage implying both the legal act itself and the principle that underlies it. It bears emphasizing that, as the Dharmasutras quoted above affirm (pace Austin), a customary rule like this is a dharma even before a king ratifies it or throws the force of the state behind it.

Criminal Law Promulgated by a Brahmin Council without Royal Order

We must wait until the twelfth century for an unambiguous example of legislation by caste council that is given public written form: the stone slab found in Lahadapura, Gazipur District (Uttar Pradesh). It records an agreement (a samvid) reached by the local Brahmins (dvijas) in 1173, which by virtue of being inscribed constitutes a sthiti, a fixed statute, prescribing the punishments appropriate to crimes against the village, including cattle-rustling. Separate sanctions are prescribed for the brigand (presumed to come from outside) and any local "accessory" (upastambhadayaka) who may connive with him:

[1] (siddham) svasti I srijayaccamdradevasya rajye samvatsare mite |

[2] khagnyarkkaih 1230 asvine mase pakse [krsne]

[3] dine vudhe | I dvadasyarn 12 lahadayure racitesa s[thit]i-

[4] r dvijaih | vatutumtabhibhutais tai[h*] krta samvit samagataih |

[5] yo smakam pa[r]ivadena kuryad gramasya lumtanam | droha

[6] m anyaprakaram va gomahisyadi[ve]stanam | I tasya caksurvvadhah

[7] karyah sarvvasvaharanam tatha | bhamktva grhaM [ca] niska-

[8] lyas tasyopastambhaddyakah | vimamnta varayams tu-

[9] lyah sa svacamdalagarddabhaih | dvadasarkvas ca bha-

[10] gava[n i]ha saksiti siddhyatam | I

Success! Blessings! In the reign of Sri Jayaccandradeva, in the year equal to the rays [12] of the fire [3] in the sky [0], 1230, on Wednesday, in the dark half of the month of Asvina, on the twelfth (12th), in Lahadapura, this statute (sthiti) is drawn up by the Dvijas, [as] an agreement (samvid) made by those who gathered, having been tormented by brigandry (vatutumta, i.e., batulunta):

"Whoever, spiting us, plunders the village, or does any other sort of treachery, [such as] rustling the cows, buffaloes, or other herds, they should kill him on sight (caksurvadha) and seize all his property. They should drive away his [local] accomplice after destroying his house. Disrespectful, obstructive, he is like a dog, Candida (low-caste man), or donkey. So may it be accomplished, as the Lord of Twelve Lights (the sun) is witness here." (61)

This inscription stands out from the mass of contemporary records in several respects. It makes no reference to royal authority other than to date the decision to the reign of a king. It is quite short, consisting wholly of five anustubh verses in Sanskrit, containing the substance of the law, with no introductory prasasti (royal panegyric) or concluding formulas. The fact that it was inscribed on a stone slab suggests that it was meant to be on public view. But it may not have been associated with any temple, and the only deity mentioned is the Sun, who (as so often in oaths) is invoked as universal witness to the enactment. So a public, civic context is likely.

The text, being in Sanskrit verse, could not be presumed to be understood by all and sundry, but if it were meant to apply only (or mainly) within a Brahmin village it may still be considered as being for public edification.

No formal governing body (viz., sabhn) is explicitly mentioned, although such a body may be implicit in the attribution of the decision to the "twice-born." Given that the record is composed in verse, the choice of terminology may be dictated by metrical or stylistic concerns. In short, we seem to have here a piece of legislation promulgated formally by a local body, and publicized in a polished written form.

From the other end of the subcontinent, less than fifty years later, we find a Tamil temple inscription recording a resolution by a local non-Brahmin assembly (natu) to provide protection to cultivators (kutimakkal) of several villages attached to the temple. (62) As in the Lahadapura sthiti, the rule addresses the problem of "cattle rustling and other mischief":

[3] ... irajarajavalanattu vallanattu - - -

[4] kurapparattalvutevimankalattu nata icainta nattom enkalil icaintu utaiyar ti-

[5] ruvarankulamutaiya nayanar tiruppati tevuntiruvumutaiyan tirumantapa[ttu] natay

[6] kuraivarakkuti iruntu karkatakandyirru munrantiyeti nal icaivutittumittu kalvetti

[7] kututtapparicavatu . innayanar tiruppatiyil nalu varattukkullu irunta kutimakkalai no-

[8] kkuvom akavu[m*] . purattevatanankalaiyun kutimakkalaiyu[m*] no[k*]kuvom akavum . no[k*]kum itatta [ma]ri[ttu] - - -

[9] kali pitittal marruncil citampukal ceytaruntakil nirnilattile irantu mac ceyyun tirurculafkkalve- *]

[10] tti kuttittu pariccina piticina vitivom akavum .

We, the members of the natu [local council] of Kurappattalvu Caturvetimankalam of Vallanatu in Rajarajavalanatu, having met, on the third day of the month of Karkatakam in the sacred pavilion of Lord Tevumtirivum in the holy temple of the Nayanar of Tiruvaranku]am, all members being present, recorded the following resolution, which we unanimously passed, and inscribed it on stone:

"We shall protect the cultivators (kutimakkal) residing within bounds of this place sacred to the Nayanar (saints) ... While they are under our protection, if anyone rustles cattle or commits other such mischief, we shall confiscate two mas of wetland and plant the trident stone on its boundaries as forfeit to the god, and restore whatever is stolen or plundered...."

We note the double remedy stipulated in case the law be violated: a punitive sanction (confiscation of land, which becomes the divine property) and reparations for the aggrieved party.

Regulation of Administrative Procedures

The Uttaramallur inscriptions of Parantaka I (Parakesarivarman, r. from 906) (63) record the king's efforts to reform the administration of a Brahmin settlement (Uttaramerucaturvedimangalam), which had been perverted by "wicked men." In a first attempt, in the twelfth year of his reign (918-19), the king sent a non-Brahmin officer called Tattanur Muvendavelan to promulgate a set of rules to regulate the selection of members of three separate committees in such a way that power could no longer be concentrated in the hands of a small, corrupt group. Two years later, the king had to send a second officer, this time a Brahmin, to refine the regulations, presumably so that they would more effectively exclude the selection of corrupt or corruptible members (including recent past members).

The inscriptions take the form of resolutions issued by the sabha-- "we the members of the assembly of Uttaramerucaturvedimangalam, with [the king's officer] sitting with us by royal order":

[11] ... [i]pparicey ivvantu mutal ca[ntr]a[ditta]vat e[n]mm [ku]tavolai [vari]yamey ituvataka Deventran ca[kra]vatti [sri] Viranarayanan sri Parantakadevar aki[ya] Parakesariva[r] mar srimugam a[ru]luc ceytu va[rakk]atta

[12] sri anaiyinal Tattanur Mu[ve]nta[ve]lanutanirukka nam gramatt[u du]star kottu sistar varddhi[tti]tuvar aka [vyava]sthai cey[to]m [Ut]tarame[ru*]cca[turvv]enimankalat[tu] sabh[ai]yom

... The royal letter--which the lord of gods, the emperor, the glorious Vlranarayana, the glorious Parantakadeva Parakesarivarman was pleased to issue to the effect that committees should from this year forward be invariably chosen in this way (by drawing) ballots from a pot, for as long as the moon and the sun [endure]--having been received and made known to us, we, the members of the assembly of Uttaramerucaturvedimangalam, made (this) settlement, (the king's officer) Tattanur Muvendavelan sitting with us by royal order, in order that the wicked men of our village may perish and the rest prosper, [adapted from Venkayya]

The rules stipulate explicitly the qualifications of candidates and ensure a transparent election process. There should be one candidate from each of twelve streets in thirty wards, whose names should be written on leaves and placed in a pot. To qualify as a candidate, a man must be between the ages of thirty-five and seventy, own a minimum amount of taxable land and reside in a house thereon, have learned his Vedic scriptures--higher studies reduce the minimum land requirement--be conversant with business, virtuous, with honest earnings, not have served on any committee in the past three years and not be related in any of twelve specified ways to any former committee member who has not submitted his accounts, and not be guilty of theft or any of a list of unexpiated moral faults (or even expiated ones, in some cases). Explicit rules were also given for the public selection of names: in the presence of temple priests and the full assembly, ward by ward, the names are shaken in a pot and drawn out by an illiterate boy, then passed to a state-appointed madhyastha (official in charge of issuing documents and certifying legal acts, rather like a notary), who receives the leaf on his open palm and reads the name aloud, and passes it to be read out by all the priests. Note the emphasis placed on Sanskrit learning, not only for the committee members but also in the case of the king's second deputy sent to deal with the problem.

Statutory Reform of Marriage Practices

An inscription from a small polity in Vijayanagara-controlled Tondaimandalam in south India, dated Wednesday, 13 February 1426, records a resolution of a Brahmin council to abrogate a disapproved custom (the payment of brideprice) and to replace it with a Dharmasastric norm (the marriage called 'gift of a virgin', kanyadana). (64) This is ordained henceforth to be the only legitimate marriage practice for all Brahmins in the kingdom of Padaividu: (65)

[1] subham astu

[2] svasti srlmanmaha-irajadirajaparamesvarana sri[vi]rapratapadevamyamaharaja pri

[3] thivirajyam panni arulaninra sakabdam 1347 elin mel cellani[n]ra visvavasu [4] varusam pankuni m. 3 sastiyu[m] budhan kilamaiyum perra anilattu [i.e., anusattu] nal pataivittu irajyattu

[5] asesavidyamahajanankalum arkkapuskarani gopinathasannadhiyi[l]e

[6] dharmmasthapanasamayapatram panni kututtapati irrai nal mutalaka inta-

[7] ppataivittu rajyattu brahmanaril kanna[ti]kar tamilir telunkar ilalar mutala

[8] na asesagotrattu asesasutrattil asesasakh[ai*]yil avakkalum vivaham pan-

[9] numitattu kanyaddnamaka vivaham pannakkatavar akavum . kanyadanam pannamal

[10] pon vankip pen kututtal pon kututtu vivaham panninal irajadandattukkum utpattu

[11] brahmanyattukkum purampakak katavaren[ru] panni[na] dharmmasthapanasamayapatram . ippatikku asesavidyama-

[12] hajanankal eluttu....
   Let there be prosperity! Hail! On the day of (the naksatra)
   Anusham, which corresponds to Wednesday, the sixth lunar day, the
   third (solar day) of the month of PhalgunI of the Vis'vavasu year,
   which was current after the Saka year 1347 (had passed), while the
   illustrious king of kings and supreme lord, the illustrious
   Vlrapratapa-Devaraya-Maharaja, was pleased to rule the earth, the
   Great Men (brahmins of the assembly) of all branches of sacred
   studies of the kingdom of Padaividu drew up, in the presence of
   (the god) Gopinatha (of) Arkapuskarini, a document (which contains)
   an agreement fixing the sacred law. According to (this document),
   if the Brahmanas of this kingdom of Padaividu, viz., Kannadigas,
   Tamils, Telungas, Ilalas, etc., of all gotras, sutras, and sakhas
   conclude a marriage, they shall, from this day forward, do it by
   kanyadana ('gift of a virgin'). Those who do not adopt kanyadana,
   i.e., both those who give a girl away after having received gold,
   and those who conclude a marriage after having given gold, shall be
   liable to punishment by the king and shall be excluded from the
   community of Brahmanas. Thus have written the [undersigned] great
   men of all branches of sacred studies ...

The rule adopted here takes the form of a statute adopted by a competent legislative body, recorded in a 'document of an agreement establishing a law' (dharmmasthapana-samayapatram), signed by 'great men learned in every science' (asesavidyamahajanankal), by which are meant the members of the local Brahmin council. Unlike our oldest examples of inscribed laws, this, like the Lahadapura and Tiruvarankulam stone inscriptions, records a law enacted independently by a Brahmin council but in this case explicitly invoking the king's obligation to enforce it (as well as a social sanction). (66)

Just a few decades earlier, the south Indian Dharmasastrin Madhava, a minister in the Vijayanagara court, in his commentary on the Parasara-Smrti, refined Devannabhatta's earlier defense of the practice of cross-cousin marriage by asserting that Dharmasastra precepts that seem to prohibit it were only applied to marriages that did not follow the kanyadana model. This is because a women duly given in marriage in this fashion thereby adopts the lineage markers (sapindya and gotra) of her husband in place of those of her father--she is "transubstantiated," as Trautmann quips--with the consequence that her brother's daughter is no longer too closely related to become her son's bride by Dharmasastra rules. Hence, it is likely that the decision recorded in the Padaivldu inscription was intended precisely to shore up the legitimacy of south Indian Brahmin marriage customs by assuring their conformity to the view of perhaps the most influential Dharmasastra authority of Vijayanagara-era south India. (67) This would certainly constitute a fairly direct, if still tacit, influence of Dharmasastra on legal practice among Brahmins. The record is explicit, of course, that the decision has no bearing on the marriage practices of non-Brahmins.

Consulting Written Records to Resolve a Dispute

Indian inscriptions (and the epigraphy of Southeast Asia, which early on was largely imitative of Indian practice) exemplify a range of types of legal documents: decrees and orders, deeds of gift or sale, dispute settlements, administrative appointments, etc. The examples discussed here show that at least in a few cases the inscription was used as a means of publishing statutes, usually within a clearly defined jurisdiction.

Besides inscriptions, the existence of formulary compendia such as the Lekhapaddhati (compiled between fourteenth and sixteenth centuries) demonstrates a native awareness of the importance of standardization as a means of ensuring clarity, and as an index of authenticity and official status. (68) In the epigraphy itself we can see signs of the same awareness.

One of these signs is the expression of the sentiment that the creation of a document in itself is meant to resolve the dispute and to prevent its being reopened in the future. A very clear example of this is an extraordinary copper-plate of 1604. It is at once a deed and a vivid first-person account by a non-Brahmin legal agent. In it the would-be title-holder explains in detail the process by which he obtained rights to lands, sought legal documentation of those rights so that his offspring would inherit clear title, and went about making his case. This record is relatively "recent" and unusual in its presentation, but the institution and the legal process that it represents are probably not greatly different from what they were a few centuries earlier. In it the petitioner states: "I told them that, as I am a shepherd, there might be no objection to the right of the sons born to me over the lands that I had acquired, I wanted to execute a copper-plate (document)." He repeats that wish a few lines on:

[38] ... nan yitaiyanyanatal yirukum pillai yalukku nanperra ka

[39] nikkum picakuvarumal cempuppattaiyam ceyyavenum-m-en

[40] ru colla avarkal connatu nalu kiramattarai kuttivaiy e

[41] nru konnarkaf atuku tamarakinattar mutikantam pam

[42] palakar nalukottai nattu ampalakar periyakottai

[43] kkavantamar knruru kallurunikavantamar kannuruppu

[44] ampalakar velkula ampalakar ivarkal yanavoraiyum kutti

[45] alapatti alamaratatiyil kutiyirucurapotu natuyituyenna

[46] vayanantukaka kuttivacetu yenru
   I told them that, as I am a shepherd, in order that there might be
   no objection to the right of the sons born to me over the lands
   that I had acquired, I wanted to execute a copper-plate (document).
   They ordered me to summon the inhabitants of the four villages.
   Accordingly I assembled at the foot of the plpal tree at Alampatti,
   Tamarakkinattar, Mudikandambalakkar of Periyakottai, the Kavandars
   of Karuru and Kalluruni, the Ambalakkars of Kannaruppu and the
   Ambalakkar of Kalkulam. When they asked me why I brought them, I
   said that I wanted to execute a copperplate deed so that there
   might be no dispute about my own lands. (69)

What is remarkable about this case is that we see a relatively humble individual taking recourse to a permanent written record in order to secure his legal land rights for his heirs. Although it is unusual for such documents to be preserved in metal (as opposed to perishable palm leaf), its existence suggests that by this time documentation of this sort was produced not only for elites or groups.

Madras Museum Copper-Plate no. 8 provides an even more detailed snapshot of legal practice in the sixteenth century. This copper-plate inscription of 1535 concerns a land dispute between two individuals with competing claims to hereditary rights. The record notes that litigation had dragged on for five years, at great cost. The contending parties, both of whom bore the honorific title of mutaliyar (which was conferred upon a variety of officials and dignitaries), brought their dispute to be heard by three other mutaliyars, who in turn brought in a fourth. This ad hoc "bench" heard depositions from both sides. Meanwhile, an unnamed local potentate referred to simply as the "Rayar" ("his Highness," in effect) examined a copper-plate grant that had been submitted as evidence. The four mutaliyars found that Muttiyappa had "no good claim," and were prepared to give sole rights to Mannakatamba, but, in consultation with a mutaliyar from a neighboring region, a "settlement" was made according to which Muttiyappa (who had been cultivating the lands in dispute, though apparently without title, and who had gifted one-twelfth as a religious endowment to Brahmins) was granted one-sixth of the total remaining lands, while the rest was restored to Mannakatamba:

[3] ... Ponnakari cimaiyil Cin

[4] nakamanattil irukkum Mannakkatamba Mutaliyar Ka

[5] ncivayal Muttiyappa Mutaliyar yivarkal yirutira

[6] varum kanikassi nimittiyam onnukon

[7] nu vikatappattu Ciravarampettu Akattiyappa Mutaliy

[8] dr Ndray ana Mutaliyar Conattiri Mutaliyar enka

[9] l munu perutaneyum vantu collikkoUukai

[10] yil nankal munu perum Peruvayal Tiruvenkata Mu

[11] taliyaraiyum kuta vaccukkontu nankal nalu pernal]

[12] yirutiravd vakku-mulam kelkkum alavilum Rayar cep

[13] petu parkkum alavilum Kuncivdyal Muttiyappa Mutali

[14] yarukku Cinnakkdvanattile kanikassi muramai

[15] cellatu Rayar ceppetu parkkum alavilum Mannakkata

[16] mba Mutaliyarukku kanikassi muramai Cinnakamana

[17] m mulumaiyum avarukkeyallamal pinnai orutta

[18] rukkuc cellatu anapatiyinale yivarkal rentu

[19] perum ancuvarusame vekupanam celavaliccupatipa

[20] ntal pannikontu cilavalicca patiyinale nankal

[21] nalu perum yocanai panni Ponnakiri cimai Amal-Sankara-Mu

[22] ritti Mutaliyar perukku muri muccalikkai yirutiravar

[23] kayileyum vankikkontu nankal nalu perum

[24] terkatai panniniga vivaram ...
   [On such and such a date,] Mannakkadamba Mudaliyar of Sinnakamanam,
   which is situated in the Ponnagari country, and Muttiyappa
   Mudaliyarof Kanchivfiyal had a dispute among themselves as to their
   hereditary right to certain lands. They came to us
   three--Akattiyappa Mudaliyar, Narayana Mudaliyar, and Sonattiri
   Mudaliyar, of Siravarampettu--and complained about that matter. We
   three--and taking with us Tiruvenkata Mudaliyar of Peruvayal--thus
   we four, took depositions from their own mouths, from both sides.
   While we four were so engaged, and when the Rayar was examining the
   copper-plate, we concluded among ourselves that Muttiyappa
   Mudaliyar of Kanchivayal had no good claims on his side, that, on
   the examination of the copper-plate by the Rayar, it would be
   settled that Mannakkadamba Mudaliyar alone had the sole right to
   the whole of the Sinnakamanam village, and that, excepting himself,
   no other person had any kind of right to the said village. But, as
   both these persons had been spending much money for five years to
   have their disputes settled, we took an agreement from both of them
   to Amal Sankaramurti Mudali of the country of Ponnagari, and
   settled their dispute in the following manner: ... (70)

The document closes with formulas confirming the permanence of the settlement and recording the names of copyist, the engraver, and the four arbitrators. The embedded description comes close to sounding like a modern case brief, but the real purpose of the record was to provide a rationale for the mediated settlement and the relative weight accorded to the earlier copper-plate document and other factors.


The inscriptions considered above illustrate various ways in which customary standards could be officially recognized (or, in one case, officially abolished): by a resolution of an authoritative body resulting in a publicly displayed legal record or by a ruler setting standards by public order. In both cases, the written record appears to be instrumental, both as a form of publication and as a means of casting the law in a formal and transregionally recognizable legal idiom. Although explicit references to Dharmasastra are rare, the appeal to Brahmanical learning or to a royal order to establish the validity of laws is consonant with Dharmasastra principles.

The processes reflected (and often recorded) in these inscriptions are explicitly intended to ensure the recognition and enduring validity of fixed legal rules. Even though there is no explicit reference to a "rule of recognition" for the laws invoked in such records, most of which are not recorded in any surviving charter or code, that does not mean that customary norms necessarily lack "lawness" in the Hartian sense. In fact, Hart himself suggests that in some legal systems custom may constitute law even before it is made the coercive order of a sovereign or is applied in a court, (71) and Frederick Schauer cautions that the rule of recognition need not be "a rule in any sensible understanding of that term. Rather, the ultimate rule of recognition is best understood as a collection of practices (in the Wittgensteinian sense), practices that may not be best understood in rule-like ways." (72) While some of the inscriptions discussed above may be viewed as examples of customary laws being recast (in classic Austinian mode) as the decree of a sovereign, for which an explicit rule of recognition could be found (along with the coercive threat of sanction that Austin considered a sine qua non of law), most of our examples are the product of "a collection of practices" for which a standard of recognition is deducible even if nowhere explicitly articulated. Dharmasastra provides one model of a non-state normative model that seems to offer a rule of recognition for such customary laws, but the inscriptions never draw on that textual resource.


Simultaneously with the development of these legal practices in India, from around the sixth or seventh century, as local elites in coastal areas of present-day Vietnam, Sumatra, Borneo, and Java began to emulate the culture and practices of high classical India, they imported Indie legal concepts and institutions along with prestige goods and other cultural trappings. (73) This emulation--likely motivated by a combination of material and intellectual aspirations--gave rise to royal states that presented themselves according to Indie models and sought to participate in the reciprocal relations with kingdoms in India, with diplomacy (then as now) facilitating both trade and cultural transmission.

From the point of view of local law, Java differs from India in that, besides legal inscriptions, local-language legal codes emerged, codifying Javanese customary norms within a conceptual framework and textual format adapted from India's Sanskrit Dharmasastra. (74) The inscriptions include many transactional records, but also (from the early tenth century) a smaller number of records of successful suits (jayapattra or jayason), which are extremely rare (and late) in India. (75) Records of this type continued to be cited in litigation in Dutch colonial courts up to the eighteenth century. (76) In a recent study of the linguistic practices at work in these records, I have suggested that these inscriptions are composed in a specialized legal idiom characterized by the liberal use of Sanskrit legal terms of art inflected according to Javanese rules, and Javanese calques of Sanskrit phrases, resulting in a situation of "functional diglossia" in relation to the non-legal forms of the language. (77)

The linguistic phenomenon reflects the transformative role of Indie legal models on indigenous customary norms. The most obvious markers of the Indian conceptual structure are the Sanskrit technical expressions sprinkled throughout the Javanese. Thus, the adjudication of a dispute is described as a pariccheda ('decision') in a gunadosa ('a matter of right and wrong'), a clear echo of Manu's expressions, gunadosapariksanam ('investigating what is right and wrong', MDh 1.117d) and gunadosavicaksanam ('distinguishing between right and wrong', MDh 9.169b). (78) Sanskrit loan words designate formal features of Indie juristic process that may have had no parallel in Javanese custom, at least as formal categories: the attestation of witnesses (saksi), the official resolution of the case (suddha-parisuddha), and the written document recording the outcome (likhitapatra), which concludes with a legalistic phrase in Javanese that has striking parallels in Indian inscriptions: "The purpose of this 'victory-document' is so that the matter may never be spoken of again" (kunan sugyan tatan panujara ya muvah dlahanin dlaha ya doniken jayapatra).

In spite of the many borrowings, the Javanese records exhibit some distinctive terminology. Some of these are Indie borrowings that acquire a specialized usage. Whereas it is common in Indian inscriptions for the word dharma to denote a pious endowment and for the boundaries of a parcel of land to be described as the sima, in Javanese, sima (sometimes dharma sima) denotes a distinctive Javanese variant of the South Asian land grant. The term sima is usually translated 'freehold', and Zoetmulder describes it as a property "freed from taxes and other obligations" by decree. (79) Barrett Jones has argued that is it more accurate to say that "the transaction did not interfere with ownership of the land but dealt with the diversion of some of the produce.... It seems rather to have been a diversion of taxes or dues from one beneficiary to another; the villagers paid the same amount, but to a different authority" (1984: 60). (80)

A sima establishment involved an order (usually ajna) by the king whereby income from a certain property--one or more named villages, or rice-fields (savah), or uncultivated parcels (vatek) to be converted into rice-fields--was assigned to a specified beneficiary, usually a temple.

The terminology is a bit different--the word parihara ('exemption' from the obligation to make payments to the king) is notably absent--but the similarity of the legal arrangements enacted in the inscriptions are telling. For example, the copper-plate inscription from East Java from 929 includes among the immunities protection from being entered by any of a roster of persons who otherwise have some share in the king's revenues: (81)

[1.8] ... paknanikanan Imah an sinima, sima panurumbigyana rakryan kabayan, parnnahanya svatantra, tan katamana denin patih vahuta rama, muan saprakara nin manilala dra[1.9]bya haji rim danu [...] ityevamadi tan tama rikanan sima pa[1.14]nurumbigyan lmah varuk ryy alasantan, kevala rakryan san masima atah pramana i sadrabya hajinya kabaih, samankana ikanan sukha duhkha kadyanganin mayam tan (pa)[1.15]vvah [1.16] [...] rakryan san masima paranani drabya hajinya kabaih, kunan ikanan manambul [...] [2.1] rakryan san masima atah paramana i drbya hajinya kabaih, samankana ikanan masambyavahara hanankana hininhinan kvaihanya anun [2.2] tan knana de san manilala drbya haji, patam tuhan in sasambyavahara in sasima, [...] ikanam samankana tan knana de san mani[2.6]lala drbya haji, saparanannya sadesanya, ndan makmitana ya tuliy manke luiranya (82)

[1.8] The purpose of making the land into a sima was so that it would be a sima for the kurumwigi [a kind of artisan?] of the Rakryan Kabayan. Its status is to be autonomous, not to be entered (tan katamana) by the Patih, ministers [and?] Vahuta, officers [and?] Rama, headmen, and every kind of those who formerly were Beneficiaries of the Royal Share (83) [a list of whom follows].

[1.13] All of these (and the like) may not enter into the sima for the kurumbigis [on] the varuk land at Alasantan. Only this honorable one (rakryan san) who has made the sima alone is authority (pramana) over all royal shares of it.

[1.16] [In the case of any of a standard list of crimes, it is] the Rakryan who has founded the sima [who] should be the recipient of all royal shares pertaining to those. And as for those who "paint black" [or work in various crafts and trades listed], [2.1] the Rakryan who has founded the sima alone is the authority over all royal shares of those.... Likewise, of those there who engage in business (ma-sambyavahara), the number is limited. The total of them who may not be touched by the Beneficiaries of the Royal Share is: [2.2] four elders (tuhan) in one trade in the whole sima [etc., listing trades and professions, with specific limits on how many shall be exempt], [2.5] Such as these are not to be touched by the Beneficiaries of the Royal Share, wherever they may go, whatever their place of origin. However, they should keep a written document (tuliy, i.e., tulis) to this effect.

A long list of particular rights and immunities follows. The prohibition on the entry of various persons, although expressed without any Indie loan-words, closely parallels one of the

most common of the protections offered in Indian land-grants, which are "not to be entered by catas or bhatas" (acatabhatapravesya, or a variation thereof). (84) The content of such privileges, as well as of the forms of taxation and revenue collection from which such land-grants are exempt, vary widely by region and period, so it is not surprising that the corresponding details in the Javanese inscriptions have a distinctly local flavor. Yet it may still be argued that the concept of the land-grant conferring privileges and exemptions, as a socio-economic and legal institution and as a written document to be produced as evidence, is a borrowing from India.

Besides such parallels with epigraphic legal records from India, Javanese records from as early as the eighth century refer to "the essence" (peh) of Manu's teaching (Manavasasanadharma, Manava-Kamandaka). (85) Parallels are even more striking in the famous Bendosari jayapattra ("Decree Jaya Song," fourteenth c.), (86) which, like several other Majapahit-era inscriptions, refers to a composite tradition called Kutara-Manava. This inscription (like others from Java) refers to a legal functionary, the 'magistrate' (pragvivaka = Skt. pradvivaka), who is prominent in Dharmasastras but unknown in Indian inscriptions. (87)

We also find the Dharmasastric principle of long-term possession (bhukti) presented as evidence of land rights: "People acknowledge me as owner of 33 lirih on the basis of possession ... that is firm possession since the time of my ancestors" (kabhukti denih amadrvyaken lirih 33 ... punika ta sthiti bhukti sankeh tuha-tuha; plate 5 recto 1), "because it has been in our possession from time immemorial" (makahetu anadi kabhuktyanipun; 5 verso 1). To decide the case:
   [5v5] ... pinametaion sastradrsta, desadrsta, udaharana, gurukaka,
   [6rl] makatangvan rasagama ri san hyan kutaramanavadi, mananukara
   pravrttyacara san pandita vyavaharaviccheda [6r2] ka rih puhun

   ... the norms of the Sastra, the norms of the country, casuistry,
   and ancient teachers were sought out, relying on the essence of
   tradition found in the holy Kutara, Manava, and other books,
   imitating the character and conduct of the scholars who decided
   lawsuits of old.

These parameters are not merely stated using Sanskrit legalisms: they reproduce Dharmasastric rules. Thus, Manavadharmasastra 8.2 prescribes that the king render judgments "taking the norms of the Sastra and the norms of the country as his grounds" (desadrstais ca sastradrstais ca hetubhih), and the Arthasastra's inclusion of udaharana ('illustrative case') as a factor in such deliberations (KAS 1.5.14, 2.10.9). (88)


Even these few examples suggest that Indie dharma literature (especially the code of Manu and the maxims of Kamandaki), along with Indie epigraphical practice, were appealed to in Java (1) to provide institutional patterns and conceptual architecture for formal law, and (2) to validate local Javanese standards of justice as law in the Indie sense of dharma. The Javanese situation differed from the Indian one in that it was not simply a matter of recognizing local customary norms under the authority (direct or indirect) of Sanskrit Dharmasastra. Rather, in Java and Bali, a local replica of Dharmasastra itself was produced in a legal register of the local language. Designed to validate Javanese and Balinese legal rules and procedures, it went so far as to insert local customary standards into the Sastra itself. The result were codes aspiring to be Dharmasastras but reflecting much more directly the "common law." Only a very few, late examples of regional Sastras (e.g., the Laghudharmaprakasika from seventeenth-century Kerala) can be found in India, and then mainly in Sanskrit.

This complex phenomenon may look to modern eyes very different from the production of constitutions and codes of statutes. More obvious analogies can be found in European legal history of around the same period: the Codex Euricianus (or Code of Euric), compiled by a Roman jurist for Euric, the Gothic King of Toulouse, shortly before 480, which recognized the customary norms of the Goths, superficially Romanized; or the Lex Salica, which codified Frankish penal and procedural law under Clovis (early sixth c.). Even more parallel, in that it involved codification in a local language rather than a classical language, is the Kievan code, the Russkaja Pravda, written in East Slavic (Matejka 1977: 195; Feldbrugge 2009: 33-58). (89) In each of these cases, rulers influenced by an imported classical law (Roman law in Toulouse; Byzantine law in Kiev) sought to endow their subjects' customary norms with not just the garb but the institutional formality of codified law.

Part of what makes all of these cases look unfamiliar as law to modern eyes is that the spread of a classical legal framework within the horizons of a cosmopolitan culture (whether Roman, Byzantine, or Indie) was not centralized; it was not the work of a single nation-state. The standards of recognition were a model that was disseminated by a multi-centered elite, and put into code and practice piecemeal at regional and local levels. If there is a modern analogy, it may be international law, which is growing in importance and reach in an ever more globalized world. In fact, the development and spread of Indie law might well be seen as a precursor--an unwieldy but functional system coordinating the legal affairs of individual states and corporations.


ApDhS Apastamba-Dharmasutra: ed. tr. P. Olivelle, Dharmasutras (Oxford, 2000).

BrhSm Brhaspati-Smrti: ed. K. V. Rangaswami Aiyangar (Baroda, 1941).

BDhS Baudhnyana-Dharmasutra: ed. tr. P. Olivelle, Dharmasutras (Oxford, 2000).

GDhS Gautama-Dharmasutra: ed. tr. P. Olivelle, Dharmasutras (Oxford, 2000).

KAS Kautiliya-Arthasastra: ed. tr. R. P. Kangle (Delhi, 1969-1972); tr. P. Olivelle (Oxford, 2013).

MDh Manava-Dharmasastra: ed. tr. P. Olivelle (Oxford, 2005).

NyayaSu Nyaya-Sutra: ed. Taranatha Nyaya-Tarkatirtha (Calcutta, 1936-1944).

SmC Smrticandrika: ed. L. Srinivasacharya (1914).

VDhS Vasistha-Dharmasutra: ed. tr. P. Olivelle, Dharmasutras (Oxford, 2000).

YajnDh Yajnavalkya-Dharmasastra: ed. N. S. Khiste (Benares, 1930).


Annual Report of the Archaeological Survey of India, 1904-1905. Mysore: Archaeological Survey of India.

Austin, John. 1995 (1832). The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble. Cambridge: Cambridge Univ. Press.

Barnett, Lionel D. 1917-18. No. 14--Lakshmeshwar Pillar Inscription of the Yuvaraja Vikramaditya. Epigraphia Indica 14: 188-91.

Barrett Jones, Antoinette M. 1984. Early Tenth Century Java from the Inscriptions: A Study of Economic, Social and Administrative Conditions in the First Quarter of the Century. Verhandelingen van het Koninklijk Instituut voor Taal-, Land- en Volkenkunde, vol. 107. Dordrecht: Foris Publications.

Basak, Radhagovinda. 1923-24. No. 23.--Dhanaidaha Copper-Plate Inscription of the Time of Kumaragupta I: Year 113. Epigraphia Indica 17: 345-48.

Bix, Brian H. 2005. Legal Positivism. In The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. M. P. Golding and W. A. Edmundson. Pp. 29-49. Oxford: Blackwell.

Boechari [Buchari], 1965. Epigraphy and Indonesian Historiography. In An Introduction to Indonesian Historiography, ed. Soedjatmoko, Mohammand Ali, G. J. Resink, and G. M. Kahin. Pp. 47-73. Ithaca: Cornell Univ. Press.

--. 1976. Some Considerations of the Problem of the Shift of Mataram's Center of Government from Central to East Java in the 10th Century A.D. Bulletin of the Research Centre of Archaeology of Indonesia 10: 1-26.

Brandes, J. 1889. Een jayapattra of acte van eene rechterlijke uitspraak van Caka 849. Tijdschrift voor indische taal-, land- en volkenkunde 32: 98-149.

--. 1913. Oud-javaansche oorkonden: Nagelaten transscripties, ed. N. J. Krom. Verhandelingen van het Bataviaasch Genootschap van Kunsten en Wetenschappen, vol. 50. Batavia: Albrecht /'s Hage: Nijhoff.

Brick, David. 2010. The Court of Public Opinion and the Practice of Restorative Ordeals in Pre-Modern India. Journal of Indian Philosophy 38: 25-38.

Burgess, James. 1886. Tamil and Sanskrit Inscriptions with Some Notes on Village Antiquities Collected Chiefly in the South of the Madras Presidency. With S. M. Natesa Sastri, Pandit. Archaeological Survey of Southern India, vol. iv. Madras: Government Press.

Chandrakanta Tarkalankara, ed. 1890. Parasara Smriti (Parasara Madhava) with the Gloss of Mddhavacharyya, vol 1. Bibliotheca Indica. Calcutta: Baptist Mission Press.

Cone, Margaret. 2001. A Dictionary of Pali, pt. I. Oxford: Pali Text Society.

Cowell, E. B., and R. A. Neil. 1886. The Divydvadana, A Collection of Early Buddhist Legends. Cambridge: Cambridge Univ. Press.

Creese, H. 2009a. Old Javanese Legal Traditions in Pre-colonial Bali. Bijdragen tot de Taal-, Land- en Volkenkunde (BKI) 165.2/3: 241-90.

--. 2009b. Judicial Processes and Legal Authority in Pre-colonial Bali. Bijdragen tot de Taal-, Land- en Volkenkunde (BKI) 165.4: 515-50.

Damais L.-C. 1955. Etudes d'epigraphie indonesienne: IV. Discussion de la date des inscriptions. Bulletin de l'Ecole frangaise d'Extreme-Orient 47: 7-290.

Davis, Donald R., Jr. 2005. Intermediate Realms of Law: Corporate Groups and Rulers in Medieval India. Journal of the Economic and Social History of the Orient 48.1: 92-117.

--. 2006. A Realist View of Hindu Law. Ratio Juris 19.3: 287-313.

--. 2010. The Spirit of Hindu Law. New York: Cambridge Univ. Press.

Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge, Mass.: Harvard Univ. Press.

Ellis, Francis W. 1818. Replies to Seventeen Questions, Proposed by the Government of Fort St. George, Relative to Mirasi Right: With Two Appendices Elucidatory of the Subject. Madras: Government Gazette Office.

Ellis, Francis W., William Blackburn, and Thomas Munro. 1852. Three Treatises on Mirasi Right, ed. Charles Philip Brown. Madras: Christian Knowledge Society.

Feldbrugge, Ferdinand. 2009. Law in Medieval Russia. Leiden: Brill / Martinus Nijhoff.

Gagarin, Michael. 2008. Writing Greek Law. Cambridge: Cambridge Univ. Press.

Galanter, Marc. 1981. Justice in Many Rooms: Courts, Private Ordering and Indigenous Law. Journal of Legal Pluralism 19: 1-47.

Gopal, Lallanji. 1963. Samanta--Its Varying Significance in Ancient India. Journal of the Royal Asiatic Society of Great Britain & Ireland 95.1/2: 21-37.

Goris, R. 1954. Prasasti Bali. 2 vols. Bandung, Indonesia: Lembaga Bahasa Budaya Universitas Indonesia.

Griffiths, Arlo, and D. Soutif. 2008-9. Autour des terres de Lon Sri Visnu et de sa famille: Un document administratif du Cambodge angkorien, Finscription K. 1238. Bulletin de l'Ecole frangaise d'Extreme-Orient 95-96: 29-72.

Griffiths, John. 1986. What Is Legal Pluralism? Journal of Legal Pluralism 24: 1-55.

--. 2003. The Social Working of Legal Rules. Journal of Legal Pluralism 48: 1-84.

Hart, H. L. A. 1994. The Concept of Law, 2d ed. Oxford: Clarendon Press.

Hazeu, G. A. J. 1905. Tjeribonsch wetboek (Pepakem Tjerbon) van het jaar 1768. Verhandelingen van het Bataviaasch Genootschap van Kunsten en Wetenschappen, 55. Batavia: Albrecht; 's-Gravenhage: Martinus Nijhoff.

Hoadley, M. C., and M. B. Hooker. 1986. The Law Texts of Java and Bali. In The Laws of South-East Asia, vol. 1: The Pre-modern Texts, ed. M. B. Hooker. Pp. 241-346. Singapore: Butterworth & Co.

Hultzsch, E. 1890. No. 56. Inside the Front Gopura of the Virinchipuram Temple, Second Inscription to the Right. South Indian Inscriptions 1: 82-84.

--. 1900-1. Teki Plates of Rajaraja-Chodaganga; Dated in the Seventeenth Year (of Kulottunga I.). Epigraphia Indica 6: 334-47.

Kannan, R., ed. 1929. Inscriptions (Texts) of the Pudukkottai District Arranged according to Dynasties. Pudukkottai: Sri Brihadamba State Press.

Kelsen, Hans. 1949. General Theory of Law and State, tr. A. Wedberg. Cambridge, Mass.: Harvard Univ. Press.

Kern, H. 1917. Verspreide Geschriften, vol. 7. 's-Gravenhage: Martinus Nijhoff.

Kosambi, D. D. 1959. Indian Feudal Trade Charters. Journal of the Economic and Social History of the Orient 2.3: 281-93.

Lariviere, Richard. 1984. Father Bouchet's Letter on the Administration of Hindu Law. In Studies in Dharmasastra, ed. Richard Lariviere. Pp. 15-48. Calcutta: Firma KLM.

Lubin, Timothy. 2013. Legal Diglossia: Modeling Discursive Practices in Premodern Indie Law. In Bilingual Discourse and Cross-cultural Fertilisation: Sanskrit and Tamil in Mediaeval India, ed. Whitney Cox and Vincenzo Vergiani. Pp. 411-55. Paris: Ecole francaise d'Extreme-Orient.

Matejka, L. 1977. Diglossia in the Oldest Preserved Legal Codex of Novgorod. In Papers in Slavic Philology, 1: In Honor of James Ferrell, ed. B. A. Stolz. Pp. 186-97. Ann Arbor: Department of Slavic Languages and Literatures, University of Michigan.

Molesworth, J. T. 1857. A Dictionary, Marathi and English, 2d ed., rev. and enl. Bombay: Bombay Education Society.

Moore, Sally Falk. 1973. Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study. Law and Society Review 7: 719-46.

van Naerssen, F. H. 1941. Oud-Javaansche oorkonden in Duitsche en Deensche verzamelingen. Amsterdam.

Njammasch, Marlene. 1997. Staatliche Strukturen im Reich der Maitrakas von ValabhI. In Recht, Staat und Verwaltung im klassischen Indien, ed. B. Kolver. Pp. 111-23. Munich: Oldenbourg Verlag.

Olivelle, Patrick. 2000. Dharmasutras: The Law Codes of Apastamba, Gautama, Baudhayana, and Vasistha. Delhi: Motilal Banarsidass.

--. 2013. King, Governance, and Law in Ancient India: Kautilya's Arthasastra. New York: Oxford Univ. Press.

Papers on Mirasi Right Selected from the Records of Government, and Published by Permission. 1862. Madras: Pharoah and Co. Athenaeum Press.

Pollock, Sheldon. 2006. The Language of the Gods in the World of Men: Sanskrit, Culture and Power in Premodern India. Berkeley and Los Angeles: Univ. of California Press.

Pope, G. U. 1905. A Handbook of the Ordinary Dialect of the Tamil Language: Part III. A Compendious Tamil-English Dictionary, 7th ed. Oxford: Clarendon Press.

--. 1906. A Handbook of the Ordinary Dialect of the Tamil Language: Part V. A Tamil Prose Reader Adapted to the Handbook, 7th ed. Oxford: Clarendon Press.

Prasad, Pushpa. 2007. Lekhapaddhati: Documents of State and Everyday Life from Ancient and Medieval Gujarat. Delhi: Oxford Univ. Press.

Ray, Himanshu Prabha. 2004. The Beginnings: The Artisan and the Merchant in Early Gujarat, Sixth-Eleventh Centuries. Ars Orientalis 34: 39-61.

Rocher, Ludo. 1984. Father Bouchet's Letter on the Administration of Hindu Law. In Studies in Dharmasastra, ed. Richard W. Lariviere. Pp. 15-48. Calcutta: Firma KLM.

--. 1993. Law Books in an Oral Culture: The Indian Dharmasastras. Proceedings of the American Philosophical Society 137.2: 254-67.

Rocher, Rosane. 2010. The Creation of Anglo-Hindu Law. In Hinduism and Law: An Introduction, ed. Timothy Lubin, Donald R. Davis, Jr., and Jayanth K. Krishnan. Pp. 78-88. Cambridge: Cambridge Univ. Press.

Sarkar, H. B. 1971-72. Corpus of the Inscriptions of Java (Corpus inscriptionum javanicarum) (up to 928 A.D.). 2 vols. Calcutta: Firma KLM.

Schauer, Frederick. 2013. The Jurisprudence of Custom. Texas International Law Journal 48.3: 523-34.

Shapiro, Scott J. 2009. What is the Rule of Recognition (and Does It Exist)? In The Rule of Recognition and the U.S. Constitution, ed. Matthew Adler and Kenneth Himma. Pp. 235-68. New York: Oxford Univ. Press = Public Law & Legal Theory Research Paper Series, 181, Yale Law School, <http://>.

Silk, Jonathan. 2008. Managing Monks: Administrators and Administrative Roles in Indian Buddhist Monasticism. New York: Oxford Univ. Press.

Sircar, D.C. 1958. No. 30--Charter of Vishnushena, Samvat 649. Epigraphia Indica 30: 163-81.

--. 1959. No. 36--Lahadapura Inscription of the Time of Jayachchandra, V.S. 1230. Epigraphia Indica 32: 305-9.

--. 1966. Indian Epigraphical Glossary. Delhi: Motilal Banarsidass.

--. 1984. Glimpses of Acara and Vyavahara in Early Indian Literary and Epigraphic Records. In Studies in Dharmasastra, ed. Richard W. Lariviere. Pp. 3-14. Calcutta: Firma KLM.

Sohoni, S. V. 1987. Lokasamayakriyanusamdana. Annals of the Bhandarkar Oriental Research Institute 68.1/4: 269-79.

Srinivasa Ayyar, K. R. 1941. Inscriptions in the Pudukkottai State Translated into English. Pudukkottai: Brihadamba State Press.

van Stein Callenfels, P. V. 1926. Epigraphia Balica. Verhandelingen van het Koninklijk Bataviaasch Genootschap van Kunsten en Wetenschappen, vol. 66. [Weltevreden]: Kolff.

Strauch, Ingo. 2002. Die Lekhapaddhati-Lekhapancusika: Briefe und Urkunden im mittelalterlichen Gujarat. Text, Ubersetzung, Kommentar, Glossar. Berlin: Reimer Verlag.

Stutterheim, W. F. 1935. Epigraphia. Tijdschrift voor Indische Taal-, Land- en Volkenkunde 75: 444-56.

Subbarayalu, Y. 1991. Tiruccirappalli mnvatta olai avanankal / Palm-Leaf Records of the Tiruchirapalli District. Thanjavur: Tamilp Palkalaikkalakam.

Tewari, S. P. 1987. Contributions of Sanskrit Inscriptions to Lexicography. Allahabad: Allahabad Museum.

Trautmann, Thomas R. 1981. Dravidian Kinship. New York: Cambridge Univ. Press.

Venkayya, V. 1908. Two Inscriptions at Uttaramallur. In Archaeological Survey of India, Annual Report, 1904-5. Pp. 131-45. Calcutta: Archaeological Survey of India.

Virkus, Fred. 2004. Politische Strukturen im Guptareich (300-550 n.Chr.). Wiesbaden: Harrassowitz Verlag.

Wibowo, A. S. 1979. Prasasti Alasantan Tahun 861 Saka. Majalah Arkeologi (diterbitkan Oleh Lembaga Arkeologi FSUI) 2.3: 3-51.

Zoetmulder, P. J. 1976. Review of Himansu Bhusan Sarkar, Corpus of the Inscriptions of Java (Corpus Incriptionum [sic] Javanicarum) (up to 928 A.D.). Bijdragen tot de Taal-, Land- en Volkenkunde 132: 188-92.

Zoetmulder, P. J., with S. O. Robson. 1982. Old Javanese-English Dictionary. 2 vols. 's-Gravenhage: Martinus Nijhoff.

Timothy Lubin

Washington and Lee University

This article began as a lecture at the University of Virginia, 24 February 2011. The research was largely conducted under the auspices of the Institui francais de Pondichery during 2009-10, with the support of a Fulbright-Hays FRA fellowship. Revisions were made during the following year with a sabbatical fellowship from the American Philosophical Society and from a Lenfest Sabbatical Fellowship (Washington and Lee University). I am grateful to these institutions for their support. I have benefited from comments by Patrick Olivelle, David Brick, Arlo Griffiths, and anonymous readers for the Journal.

(1.) Austin 1995 (1832): 34-36, 141-42, 238-39.

(2.) These two concepts differ mainly in intellectual rationale: Kelsen's "Grundnorm" is a neo-Kantian ideal deduced (without recourse to social facts) from the legalistic treatment of certain norms, while Hart's "rule of recognition" purports to be derived from observation of how legal professionals look to a source or "pedigree" for a law's validity (Bix 2005: 35-36).

(3.) Davis (2006) argues that in spite of a natural-law veneer in the form of Dharmasastra's putative derivation from a transcendent source (the Veda or sruti), Hindu law in practice, and even to some extent in theory, is defined by its "social working."

(4.) This is John Griffiths' (1986: 6 and passim) "pluralism in the weak sense." For a recent example, see South Africa's Recognition of Customary Marriages Act 120 of 1998. He spoke of "legal centralism" as the ideology that only the official law of a nation-state counts as law, an idea which he dismissed as a "myth" and an "illusion" (pp. 4-5). I prefer to use the term "centralism" descriptively to characterize a legal system that claims ultimate authority and may choose to recognize as law select elements of "subordinate" or "secondary" legal or quasi-legal systems. Centralist state law in fact "is often a secondary rather than a primary locus of regulation" (Galanter 1981: 20).

(5.) These are the standards of what Moore (1973) called "semi-autonomous social fields"; see also John Griffiths 2003.

(6.) Rosane Rocher has lately provided a cogent account of the steps in this process (R. Rocher 2010).

(7.) Lariviere 1984 translates and discusses Bouchet's letter.

(8.) Dworkin 1978: 22-45.

(9.) Davis's expression (e.g., 2005 and 2006 passim).

(10.) E.g., the Javanese Adhigama, Purvadhigama, Devagama, and Kutara-Manava, the Burmese dhammasatthas or dhammathats, and the Thai thammasats.

(11.) Subbarayalu (1991: xiii) made this observation in publishing a collection from one family in the Tiruchirapalli District. These records, consisting of inscribed palm leaves bearing the legal fee stamps typical of the colonial legal system, do indeed often mimic the structure and idioms of the inscriptions. Besides Subbarayalu's unique volume, Zoe Headley and S. Ponnarasu, likewise under the auspices of the Institut franqais de Pondichery and with funding from the British Library, are coordinating a project to rescue and digitize 40,000 legal documents of the Tamil region, ca. 1650-1950. This archive will provide a much wider base for a study of indigenous legal writing in the early modern and colonial eras.

(12.) "The region to the east of where the Sarasvati (River) disappears, west of Kalaka forest, south of the Himalayas, and north of Pariyatra mountains is the land of the Aryas. The practices of that land alone are authoritative" (prag adarsat pratyak kalakavanad daksinena himavantam udak pariyatram etad aryavartam I tasmin ya acarah sa pramanam | Baudhayana-Dharmasutra (BDhS) 1.2.9, Olivelle 2000: 198-99).

(13.) Ludo Rocher (1993: 267) suggests that rules in Dharmasastra "were, indeed, at some time and in some place 'governing the life and conduct of people.'"

(14.) Adapting Olivelle's translation (2000: 56-57). A stanza quoted in Vasistha-Dharmasutra (VDhS) 1.16 states directly what is implicit here--the traits that qualify someone to declare what is or is not Dharma: "Whatever men eminent in the three-fold Veda and learned in dharma call dharma, that is dharma, [capable] of purifying oneself and others" (traividyavrddha yam bruyur dharmam dharmavido janah | pavane pavane caiva sa dharmo natra samsayah || id) (my translation).

(15.) desajatikuladharmas camnayair aviruddhah pramanam | karsakavanikpasupalakusidikaravah sve sve varge | tehhyo yathadhikaram arthan pratyavahrtya dharmavyavastha |.

(16.) In interpreting this document, I have considered the discussions of Sircar 1958 and 1984, Kosambi 1959, Gopal 1963, Sohoni 1987, Virkus 2004, and Ray 2004.

(17.) Naturally, the translation of technical terms like patra (= pattra) and sthiti can only be approximate. Pattra (lit., 'leaf') is, however, always a physical document, whether written on a leaf, a sheet of copper, or stone. The term sthiti, which like 'statute' is derived from the verb 'to stand', definitely denotes a rule clearly formulated by an authoritative person or body, as opposed to a customary standard or norm expressed less formally. In India, as elsewhere, these categories have probably never been not altogether distinct.

(18.) Translation after Olivelle 2013: 111. In a personal communication, Olivelle notes an illustrative example described by Devannabhatta in which an Abhlra tribesman admits all the evidence presented that he has committed adultery but claims innocence on the grounds of tribal custom, recorded in the king's books, which overrides other legal considerations (Smrticandrika, vol. 3.1, p. 24).

(19.) On the meaning of samanta and of the title mahasamanta 'subordinate neighboring king': Gopal 1963; on the pancamahasabdas (mahakarttakrtika-mahadandanayaka-mahapratihara-mahasamanta-maharaja): Sircar 1958: 167; 1966: 175, 177.

(20.) Gopal 1963: 26 n. 2, citing the the Wala copperplate grant of 588 as evidence.

(21.) I have benefited much from comments and suggestions from Patrick Olivelle, Oskar von Hiniiber, and Mark McClish. Harald Wiese generously shared with me a draft of the translation and analysis that he and Sadananda Das are in the course of preparing. They have sought to rethink some of the knottiest passages in wholly new ways, based in part on their analysis of the structure of the charter, and when their work is complete it may throw new light on some of these.

(22.) Njammasch 1997 presents a partial treatment of official titles and address formulas in Maitrka records.

(23.) Or "tariff-collection office," if dhruva- here is short for dhruvasthana, explained by Sircar as "a station for the collection of the king's fixed grain share" (1966: 96).

(24.) The royal third person plural is used.

(25.) The numbering of the rules (as in Sircar) and most of the rule-final dandas have been supplied here.

(26.) Kautilya uses a participle derived from verbal root (bhid-) underlying bheda in a more general prohibition against "someone breaking into a sealed house" (samudram grham udbhindatah). For unmara, cf. Pali ummara 'threshold' (Cone 2001: 506).

(27.) This seems to mean a self-inflicted injury for the sake of falsely incriminating another (cf. sthiti 37); this may have been an idiom to designate to all such feigned injuries.

(28.) I understand this to be a rule protecting a shop-keeper from having to pay fees to multiple guilds.

(29.) See Silk (2008, ch. 5) on the meaning of varika as a monastic functionary in Buddhist sources. He observes that this sometimes verged on a rather menial status, as in the case of the upadhivarika, something like a sexton or caretaker in the monastery, responsible in various sources for tending the monastery when the monks were away, cleaning, setting out seats and incense, and announcing the date every evening (110-13). In this respect, it can be reconciled with the explanation of some epigraphical usage proposed by Tewari (1987: 210): "household attendants of the kings whose main duty was to fetch water and attend to the bath of the king," although the association with bathing in particular is based on a dubious connection with the word vari 'water'.

(30.) According to Sohoni (1987: 277), "words spoken by talking birds" (!?). Could syali 'wife's sister' be meant? KAS 3.11.28 puts the syala 'wife's brother' at the head of its list of persons excluded from serving as witness, and although most of those listed are allowed in cases of assault, the syala is one of three explicitly excluded even in that case.

(31.) Cf. BrhSm 1.1.165: gavam pracare gopalah sasyarambhe krsivalah in connection with summons to court (ahvana), and in the list of those who should not be detained (anasedhyah).

(32.) Cf. YDh 2.9c: "One may not countersue someone before [his original] complaint has been resolved, nor may a [new] complaint be brought against him by someone else" (abhiyogam anistirya nainam pratyabhiyojayet, abhiyuktam ca nanyena).

(33.) Brhaspati-Smrti 1.1.136-37: "he who is engaged in a sattra ritual or in marriage rites" (sattrodvahodyatah) is among those "who may not be detained" (nasedhyah).

(34.) Cf. Katyayana-Smrti (KutySm) 117: "But if the plaintiff does not provide a suitable surety for his suit, he should remain under guard, and pay wages to the officer at the end of the day" (atha cet pratibhur nasti karyayogyas tu vadinah | sa raksito dinasyante dadyad bhrtyaya vetanam).

(35.) dharmika used in this sense is not found elsewhere; it appears to be a mandatory surcharge of some sort, perhaps ostensibly intended to support charitable or religious purposes. The word dharma is commonly used in inscriptions to denote a pious act or benefaction.

(36.) The meaning of petavika is unknown. Sircar (1958: 173) suggests a possible connection with Marathi peth ("a trading town or emporium").

(37.) This and the preceding sthiti both appear to concern complaints brought late in the day, when the proper official was apt to be absent. As in sthitis 6, 7, and 9 above, the word chala seems to mean a complaint falling short of a properly registered case. The term is discussed further below.

(38.) My translation follows the suggestions of Gopal (1963: 22), who points out that here and in similar Dharmasastra rules, the term samanta should be understood as 'neighbor'.

(39.) My translation assumes that we have here an early form of the land-assessment term surviving in Gujarati phalavani and Marathi phalani ("Settling the phala [cess upon the ryots]": Molesworth 1857: 553). The phonological disparity might well be due to Sanskritic back-formation from a Prakritic form, or simply inconsistent orthography. Other interpretations of phalavane that have been offered make little sense.

(40.) Suspending and cutting of ears (and nose) are punishments listed in the Arthasastra (4.8.22; 4.10.10, etc.), but here malicious injuries seem to be meant.

(41.) VDh 5.66-67 prescribes a fine of 32 panas if there is no blood, but if there is blood, 64 panas.

(42.) A double fine for harm done by a buffalo is likewise prescribed, e.g., in YDh 2.159 and NDh 11.28.

(43.) Marking the end of the fiscal year, according to Arthasastra 2.7.7.

(44.) Kosambi (1959: 288): "46). The (royal share of) bell-metal utensils is accepted at the (royal) warehouse after mass inspection and weight-checking, on Asadha full-moon. No (other) fee at the (royal) warehouse."

(45.) Kosambi: "wet-ginger"; Sircar notes that alla means 'wet' in Pali and 'ginger' in Prakrit, but also observes that the Sanskrit form ardraka 'ginger' occurs in no. 60.

(46.) Sircar (1958: 176 n. 5) notes that the Divyavadana uses atiyatra in the sense of 'fare for crossing a boundary' (Cowell and Neil, 1886: 92, 11. 27-28). Varsa-paryusita might be expected rather to mean 'who have resided through the rainy season', but the order in which the levies are mentioned suggests that the merchants are arriving from outside first and then departing again.

(47.) Following Sircar's understandings of setika and varnika (Sircar 1984: 10).

(48.) Thus Kosambi.

(49.) Kosambi understands this to mean that these craftsmen are expected to perform their work in the palace at half the normal rate. Sircar proposes that kolika = kaulika, chimpaka = Prakrit chimpaya, Gujarati chipo, and that padakara might be shoemaker or a walking hawker of goods (Hindi paukar). Hemacandra uses the word chimpa to describe calico fabric.

(50.) On the term chala in this record, Sircar writes (1966: 72): "(IE 8-8), meaning uncertain; probably, a pretext. (El 30), probably, a plea, or persecution, prosecution."

(51.) E.g., YDh 2.20, 78; BrhSm 1.1.170-75; 1.2.17; 1.3.2, 27; 1.8.43; KatySm 193, 206.

(52.) Sthiti 4 seems to imply a distinction analogous to the one between avastambhabhiyoga 'accusation based on certainty' and sankabhiyoga 'accusation on suspicion' made by Vijnanesvara in his Mitaksara comments on ordeals in YDh 2.96. Brick (2010: 32-33) understands avastambhabhiyoga to imply an accusation formally registered in a court of law (in which case women and certain other classes of person cannot perform an ordeal), in contrast to "general suspicion of guilt" without formal indictment, which the accused may seek to dispel by undergoing an ordeal at his or her own initiative and expense, even if she be a woman.

(53.) All four Dharmasutras recognize the validity of similar local variations of dharma: pDhS 2.14.7, 2.15.1, 2.17.17; BDhS 1.2.1-8, 1.11.26; GDhS 11.20-22; VDhS 1.17, 19.7.

(54.) "Obwohl ihre Bedeutung als Zeugnis fur die in West- und Nordindien insgesamt im 6. Jh. bestehenden Verhaltnisse nicht zu hoch veranschlagt werden sollte, liefert sie doch Hinweise darauf, welche Fragen des Wirtschaftslebens, des Rechts- und Steuerwesens sowie der Verwaltung eher auf lokaler Ebene geregelt oder entschieden wurden. Dies schliesst, wie bemerkt, nicht aus, dass Visnusena die ihm abverlangte Ausfertigung der Urkunde als Gelegenheit ansah, auch eigenen Bestrebungen und Wiinschen Geltung zu verschaffen. Hierin liegt moglicherweise eine Erklarung dafiir, dass die Inschrift einige aussere Elemente, die fiir Landschenkungsurkunden charakteristisch sind (Adressformel, Einsetzung eines dutaka), aufweist."

(55.) This parallel was pointed out to me by Mark McClish (p.c.).

(56.) Dhanaidaha Copper-Plate, El 17.23 (Basak 1923-24).

(57.) For the institution, see Bhandarkar's remarks in CI13, 2e, 286 n. 7.

(58.) Laksmesvara Kannada stone inscription of the Calukya Yuvaraja Vikramaditya II of about 725 C.E., edited and partially translated in El 14.14 by Barnett (1917-18: 190-91).

(59.) On this term, see Barnett's note (1917-18: 189 n. 1).

(60.) Teki Plates of Rajaraja-Chodaganga of 1086-87 c.E., Et 6.35 (Hultzsch 1900-1); translation and transliteration slightly updated.

(61.) Sircar 1959 (= EI 32.36); my translation.

(62.) Haratirtheavara Temple, Tiruvarangulam, Alangudi Taluk, 1218-19 (Inscriptions in the Pudukkottai District, no. 176): text as in Kannan 1929: 102-3; translation from Srinivasa Ayyar 1945: 161-63.

(63.) Uttaramallur inscriptions of Parantaka I Parakesarivarman, 918-20 (Venkayya 1908).

(64.) Virincipuram temple inscriptions from the reign of VIrapratapadevaraya of Vijayanagara, 1425 (South Indian Inscriptions 1 [no. 56]; Hultzsch 1890: 82-84).

(65.) Discussed also by Davis 2005: 103, and by myself in more detail elsewhere (Lubin 2013: 442-45).

(66.) The notion that a decision by a body of learned Brahmins counts as dharma, the recording of such decision in a document, the two types of penalty, and the prescribed form of marriage can all be supported (i.e., validated) by precepts of Dharmasastra, although (as usual) none is cited directly.

(67.) David Brick, in a personal communication of 24 December 2013, astutely called my attention to the likely connection with Madhava's famous defense of cross-cousin marriage. For Madhava's comments on this subject: Chandrakanta Tarkalankara 1890: 465-73; Trautmann 1981 provides an exhaustive analysis of this marriage custom, including a lengthy discussion of its treatment in Dharmas'astra, including Madhava's views (pp. 304-7); Appendix B (pp. 438-46) contains an English translation of Madhava's comments.

(68.) The definitive study, edition, and German translation of this work is Strauch 2002; Prasad 2007 is an English translation.

(69.) Setupati copper-plate grant of 1604, edited and translated by Natesa Saastri in Burgess 1886: 62-65.

(70.) Natesa aastn translation in Burgess 1886: 155-56.

(71.) Hart 1994: 44-48. He asks, "Why, if statutes made in certain defined ways are law before they are applied by the courts in particular cases, should not customs of certain defined kinds also be so?" (p. 46).

(72.) Schauer 2013: 532 n. 65.

(73.) See the summary by Pollock (2006: 122-34).

(74.) The primary sources for Javanese and Balinese law include more than two hundred Old Javanese legal inscriptions between 800 and 1500 CE; and Old and Middle Javanese codes (agama) inspired by the Sanskrit Manavadharmasastra, Brhaspatismrti, and Kamandaklya but reflecting mainly local norms. Texts of the latter sort survive today only in more recent manuscripts, in language showing some modern features, but references in the epigraphy suggest that they existed in some form earlier.

(75.) E.g., the Guntur copper-plate (Brandes 1889), 22 July 907 (according to Damais 1955: 195-97, who reads the year as saka 829), and the Wurudu Kidul copper-plate of 20 June 922 (Stutterheim 1935). Sometimes unreliable English translations from the Dutch are available in Sarkar 1971-72.

(76.) Hazeu's account (1905: esp. 1-18 and 132-35) of judicial practice in Chirebon in 1768, and Hoadley and Hooker's (1986: 255) discussion thereof.

(77.) Lubin 2013.

(78.) On the term gunadosa in Khmer inscriptions, see Griffiths and Soutif (2008-9: 55-56).

(79.) Zoetmulder 1982: 1770.

(80.) The question is complicated by the fact that, as Barrett Jones puts it, the inscriptions are silent on the "primary effects" of the creation of a sima and specify only the special effects of a particular establishment, such as prohibitions on the entry of the manilala drvya haji and various officials, the property's severance from a vatak, and the diversion of fines and dues to another beneficiary (1984: 59-61).

(81.) Several similar copper-plate records purporting to derive from this period have survived, but all the others are later copies (tinulad), which are not wholly faithful to their originals.

(82.) Text as provisionally re-edited by Arlo Griffiths, omitting indications of initial vowels, paten (virama), and the distinction between different graphs for /n/. The translation given here reflects suggestions made by Griffiths during the Intensive Course in Old Javanese held in Trawas, Mojokerto, East Java, Indonesia, 13-28 June 2014; any errors are my own.

(83.) The lists of people classified under the label manilala drvya haji--often translated as 'collectors of royal dues' (Zoetmulder 1976: 191), or 'taxation officers' (e.g., Boechari 1965: 64)--are quite diverse, and the significance of the status has been a matter of debate. Van Naerssen's discussion (1941: 12-13) is the most comprehensive, and he finds them (in Barrett Jones's words, 1984: 137) to comprise "a group of people on whom the king had a claim, and who in turn could make some claim from others." The elements of the term suggest that such persons had some right to a share of usufruct (kilala), whether in produce or services, of properties belonging to the king, and in the inscriptions it serves metonymically to denote the beneficiaries of such a right (as does, elsewhere, rajavidhi, the royal order conferring such rights; see Zoetmulder 1982: 867, 1487). Barrett Jones surmises: "The establishment of a sima reduced or extinguished their rights over that sima. The mangilala drwya haji clearly were not landowners, nor rice producers, nor producers of other crops. Their names seem to indicate that they were providers of goods and services, or had a claim on such providers; their income then must have come directly or indirectly from these goods and services" (1984: 137).

(84.) Kern (1917: 24 n. 1) also makes this connection. The first couple of pages of Appendix I in Sarkar 1966 give numerous references to Indian inscriptions with such a provision.

(85.) Cangal inscription of 732; Mantring A, of 18 January 1178, and Buwahan D and Cempaga A, both of 22 July 1181; for the texts: van Stein Callenfels 1926: 36-39, 46-48, and Goris 1954: 31-40 (nos. 601, 623, and 631). On such allusions, see Creese 2009a: 244-45.

(86.) Text as in Brandes 1913: 207-10.

(87.) The term pradvivaka is used in Manu and in later verse Dharmasastras, but not in Indian inscriptions. Arlo Griffiths notes its occurrence in Indonesia as early as the Lintakan charter of 841 saka (Sarkar, 1971-72, vol. 2, plate III recto line 13). It would seem that these Javanese inscriptions are thus even more closely shaped by aastra than Indian inscriptions--something that may be true of Javanese legal inscriptions more broadly.

(88.) Creese (2009b: 532-33) discusses these criteria as they appear in Old Javanese codes.

(89.) This is preserved in a codex of 1280 or 1282, but contains elements that probably go back to the time of the eleventh-century ruler of Kiev, Jaroslav the Wise, r. 1019-54 (or at least to that of his sons and successors, according to a sentence after article 18 of the short version of the Pravda) (Feldbrugge 2009: 35).
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Author:Lubin, Timothy
Publication:The Journal of the American Oriental Society
Article Type:Essay
Date:Apr 1, 2015
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