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 ), 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.
RULES IN INDIC LAW
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...