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Law, Culture and the Humanities
0(0) 1 26
The Author(s) 2012
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DOI: 10.1177/1743872112443762
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LAW, CULTURE
AND
THE HUMANITIES
Legal Consciousness in Medieval Indian Narratives
Donald R. Davis, Jr.University of Wisconsin-Madison
John NemecUniversity of Virginia
AbstractIn this essay, we make a case for reading narratives
from the great story collections of medieval
India as evidence of legal consciousness. We attempt to redirect
the largely empirical approach
of legal consciousness studies toward the literary and
historical analysis of Sanskrit texts. In so
doing, we move beyond a legal history of India that focuses too
narrowly on the texts of Sanskrit
jurisprudence. We conclude that such analysis provides insight
into both the literarily constructed
image of law as the hegemonic domain of elite Brahmins and kings
and the assumptions and
awareness of law and legal procedure among ordinary people in
this historical context.
KeywordsHistory, India, legal consciousness, legality,
literature, medieval, narrative
Legal history in medieval India poses a challenge because
direct, datable evidence for legal practice is only found in
scattered fragments.1 Very little legislation survives, most
Corresponding author:
Donald Davis, Department of Languages & Cultures of Asia,
University of Wisconsin-Madison, Madison, WI, USA.
Email: [email protected]
443762 LCH0010.1177/1743872112443762Davis and NemecLaw, Culture
and the Humanities2012
Article
1. Axel Michaels, The Practice of Classical Hindu Law, in T.
Lubin, D.R. Davis, Jr. and J. Krishnan, eds., Hinduism and Law: An
Introduction (Cambridge: Cambridge University Press, 2010), pp.
5877, provides a convenient summary of what is currently known
about law in practice in premodern India.
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2 Law, Culture and the Humanities 0(0)
likely because it was not a significant way to make law. Records
of trials, disputes, or judicial activities are sometimes
preserved, but mostly from a relatively recent date, after 1500 or
so. As a result, not enough is known about the ways law functioned
in India prior to the colonial period, about how it was understood
by those who engaged it, or about how law developed during major
political, social, economic, and religious transforma-tions. The
purpose of this essay is to approach this problem in a different
way by examin-ing law in literary works, mostly datable, written in
Sanskrit.2 Specifically, new conclusions about the practice of law
in medieval India may be drawn from the literary sources when they
are read as evidence of legal consciousness.
The study of legal consciousness traces the ways in which law is
experienced and interpreted by specific individuals as they engage,
avoid, or resist the law and legal meanings.3 Legal consciousness,
then, refers in a general sense to a basic awareness of the
substance and procedures of law in some group, whether one of
ordinary people or legal specialists.4 More specifically, legal
consciousness can refer to an awareness, or lack of awareness, of
the inequitable and power-reinforcing gap between the rules of law
and the practice of law, and by extension it indicates the
unconscious toleration of that gap due to ideological or structural
factors in society. The study of legal consciousness in this more
specific sense carries with it a program of analyzing and
potentially unmasking hegemonic ideologies or structures that
prevents a liberating consciousness of laws effects to emerge. In
other words, legal consciousness in its specific meaning serves as
a diagnostic concept that may be employed in the investigation of
both the circumstances in which people come to possess a thorough
grasp of the law and legal processes and
2. While we are not the first to explore the theme of law in
Sanskrit narrative literature or even in the particular works in
question, very little scholarship exists. See, recently, Phyllis
Granoff, Justice and Anxiety: False Accusations in Indian
Literature, Rivista degli Studi Orientali (forthcoming), in
addition to the few studies cited below.
3. Susan S. Silbey, Legal Culture and Legal Consciousness, in
International Encyclopedia of Social and Behavioral Sciences (New
York: Elsevier, Pergamon Press, 2001), p. 8626, which contains an
excellent overview of the literature on legal consciousness and
theoretical reflections on both its limitations and usefulness. See
also Carol J. Greenhouse, Praying for Justice: Faith, Order and
Community in an American Town (Ithaca, NY: Cornell University
Press, 1986); Sally Merry Engle, Getting Justice and Getting Even:
Legal Consciousness Among Working-class Americans (Chicago, IL:
University of Chicago Press, 1990); Barbara Yngvesson, Virtuous
Citizens, Disruptive Subjects: Order and Compliance in a New
England Court (New York: Routledge, 1993); Patricia Ewick and Susan
S. Silbey, The Common Place of Law: Stories from Everyday Life.
Chicago, IL: University of Chicago Press, 1998); and Susan S.
Silbey, After Legal Consciousness, Annual Review of Law and Social
Science 1 (2005), pp. 32368.
4. We note that, in the context of the study of legal
consciousness in contemporary American society, the term is most
often understood to refer to the non-specialists awareness of the
law, and in particular to the ways in which such an awareness
informs citizens decisions to pursue legal relief in the
courts.
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Davis and Nemec 3
those in which people are unaware of, resistant to, or even
resigned to, the dynamics and indeed the hegemony of the law as it
affects them.
To date, legal consciousness has been a scholarly category used
primarily in modern, empirical contexts in which social scientific
data can be marshaled to reveal patterns about attitudinal and
experiential aspects of the law that lie beyond both traditional
anal-yses of law in books and more recent emphases on law in action
as determined through observation and sociological data. In this
essay, we extend the concept of legal con-sciousness into two areas
where it has yet found little purchase: history and literature.
From a comparative perspective, William Ewald has argued: The
social-context approach gives us external factors about the way
people behave; but what we need to understand is the ideas and the
reasons for the behavior. In other words, it seems that what we
need to understand is neither law in books nor law in action, but
law in minds.5 Ewalds main point is to emphasize context as a
critical factor in all comparative legal studies. External evidence
of law from law-books, legal documents, or observation only goes so
far in providing insight into the contextual, i.e. internal
vis--vis external, under-standing of legal rules and processes.
Citing Ewald and Franz Wieacker, James Gordley suggests further
that legal history similarly requires attention to context and the
erstwhile consciousness of context in order to avoid what he calls
the common mistake shared by legal historians and comparative
lawyers:
The mistake for legal historians is to assume that the law of a
given time and place develops in its own way which can be studied
without regard to how the law developed elsewhere. The
corresponding mistake for comparative lawyers is to assume that the
law of each modern jurisdiction forms a coherent system rather than
an amalgam of solutions developed over time.6
Gordleys warning against the highly systematized view of law by
both historians and comparatists encourages a reading of history
that puts articulations of coherent legal systems second behind
nuanced descriptions of contextually significant evidence of
diverse legal consciousness, of laws messiness in practice and
awareness.
When we think then about literature in relation to legal
history, literary and other fictional descriptions illuminate the
diverse awareness of and engagement with the law in given contexts
through their depiction of what medievalists often call the
mentality of a certain time and place. Whether it is depositions in
early modern England or pardon tales in sixteenth-century France,
fictional accounts and literary representations are prized as
unusual for the extent to which they reflect the thoughts, beliefs,
attitudes and emotions of mostly uneducated people, expressed in
their own word.7 Narratives of
5. William Ewald, Comparative Jurisprudence (I): What was it
Like to Try a Rat? University of Pennsylvania Law Review 143(6)
(1995), p. 2111.
6. James Gordley, Comparative Law and Legal History, in M.
Reimann and R. Zimmermann, eds., The Oxford Handbook of Comparative
Law (New York: Oxford University Press, 2006), p. 763.
7. Malcolm Gaskill, Reporting Murder: Fiction in the Archives in
Early Modern England, Social History 23(1) (1998), p. 2; Natalie
Zemon Davis, Fiction in the Archives: Pardon Tales and Their
Tellers in Sixteenth-Century France (Stanford, CA: Stanford
University Press, 1990).
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4 Law, Culture and the Humanities 0(0)
all sorts, in fact, have become important sources of what Robert
Cover famously called law as meaning, as opposed to law as power.8
Literature, therefore, contains under-utilized resources for
understanding legal consciousness in historical contexts that in
turn deepens our contextual knowledge of law in practice.
In this study, we employ the notion of legal consciousness to
investigate some examples of narrative literature from medieval
India that reveal, in our view, both a general awareness of
substantive law and legal procedures and the power-inflected
representations of a consciousness of the law that sometimes
tolerates and sometimes challenges discrepancies between rule and
practice. Our primary evidence consists of stories that were
composed in the Kashmir Valley in the eleventh and twelfth
centuries, but that circulated widely in India and beyond.9 The
texts reveal first a legal conscious-ness that selectively
recognizes inequity in a manner that reinforces the caste norms and
gender biases often found in Sanskrit texts. They also
strategically ignore the negative consequences suffered by various
marginal agents in the stories, all in the name of exemplifying the
innate virtue of the law and of the kings whose authority enforces
it.
The evidence of legal consciousness examined here challenges
extreme views, of currency today among some scholars of Indian law,
either that India had no law in the proper sense or that law in
India was radically culture-specific. Both views tend to prohibit
comparison of any sort.10 Quite the contrary, the works we examine
offer clear evidence of a robust and widespread awareness of law
and legalism in medieval India, even if that system of law is
portrayed as dependent on the authority of the judge or the king
himself as the final arbiters of legal disputes. In other words, we
argue, contra Robert Lingat, author of the classic study on Indias
legal history,11 that the stories in question reveal the existence
of a legal consciousness that recognized both the authority of
those who administered the law (most notably the king), and the
strong sense of legality that those who administered and appealed
to the law employed, resisted, or manipulated in complex ways.
8. Robert Cover, Foreword: Nomos and Narrative, Harvard Law
Review 97 (1983), pp. 468. 9. We acknowledge that some elements of
the stories analyzed contain folkloric tropes that
may be found in stories in widely divergent places and times.
Our reading of this literature, however, suggests that the creative
element of bringing such tropes together with new plots,
character(-type)s, and morals dominates mere syntheses of stock
elements. To this extent, the stories witness the contemporary
legal consciousness of medieval Kashmir.
10. Lloyd Fallers, Law without Precedent (Chicago, IL:
University of Chicago Press, 1969), pp. 5ff., provides a
straightforward description of comparison in legal studies. His
claim that all conceptual rubrics are culture-bound is a model of
how to avoid the extreme views of rela-tivism or ethnocentric
privilege.
11. Robert Lingat, The Classical Law of India, trans. J.D.M.
Derrett (Berkeley, CA: University of California Press, 1973).
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Davis and Nemec 5
I. A Note on Method
The examples provided herein are by no means exhaustive. They
illustrate what we deem to be a pattern, but we make no grand claim
to represent any tradition entirely, nor do we pretend to have
unearthed previously unknown material. We do believe, however, that
the approach employed here will prove to be sufficiently
illuminating to be repli-cated with other sources. In this way, a
more comprehensive picture may emerge of law as it was represented
in different texts and as it was understood in various regions of
South Asia.
The pioneer of our approach was Ludwik Sternbach, whose many
studies of Sanskrit narrative literature connected both directly
and indirectly with his studies of classical Indian law.12
Sternbachs careful textual analyses of the well-known collection of
politi-cal animal fables called the Pacatantra aimed to demonstrate
the consonance of liter-ary depictions of legal matters in the
narratives with the rules of the normative jurisprudential texts in
Sanskrit called Dharmastras or smtis. While convincing as to the
intertextual connection of these two genres, Sternbachs general
conclusion is not persuasive:
If we compare the juridical rules contained in the Smti-s with
those contained in various versions of the Paca[tantra], we must
come to the conclusion that all these juridical problems were
pictured in the Paca[tantra] in accordance with the legal rules
contained in the Smti-s. This proves (1) that these rules were
really applied in daily life, and (2) generally known so well that
they were even reproduced by lay-men.13
On both counts, we think Sternbach has conflated the Brahminical
representations of the law in two textual genres with de facto,
contemporaneous practice of the law. Most unconvincingly, he
assumes that the Pacatantra may be read as direct evidence of the
daily life of lay-men. Both of Sternbachs conclusions presuppose
the general under-standing of legal consciousness as congruence
between awareness, rule, and practice while eliding any awareness
of a power-driven dissonance between textualized rules and
historical practice.
Essentially, Sternbach avoids a critical approach to the nature
of the texts he analyzes. He takes into account neither the fact
that the works were likely authored by Brahmins nor that their
intended audiences likely included fellow Brahmins and privileged
mem-bers of society those associated with the king, the royal
court, and the various institu-tions used to exercise temporal
authority. Both of Sternbachs conclusions are better explained by
the narrative strategies of the Brahmins who authored the texts,
which were intended precisely to evince the kind of legal harmony
reinforcing Brahminical privilege and dominance that Sternbach
claims to have discovered. For, neither the Pacatantra nor the
Dharmastra represents an undistorted historical reality of daily
life; and the depictions of ordinary lay-men in the Pacatantra
should not be read as true and
12. Ludwik Sternbach, Juridical Studies in Ancient Indian Law, 2
vols. (Delhi: Motilal Banarsidass, 19651967), especially the second
volume.
13. Sternbach, Juridical Studies, Vol. 2, p. 90.
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6 Law, Culture and the Humanities 0(0)
straightforwardly accurate portrayals of either legal practice
or contemporary legal knowledge of Dharmastra.14
Our approach differs from Sternbachs in two ways. First, we are
acutely aware that the legal consciousness depicted in the selected
Sanskrit narratives belongs first to the class of literate Brahmin
authors that dominate Sanskrit writing from beginning to end. The
works we analyze reassert Brahminical privilege, royal authority,
and the other social institutions invested in the self-preservation
and reproduction of such privilege and authority. We therefore
limit our conclusions accordingly by speaking of the imag-ined
reality possible in the depictions of legal consciousness made by
this group. While we are interested in congruences of legal
consciousness and practice, we are vigilantly attentive to the
authorial lens through which those congruences must be discerned,
as we are fully aware of the audience for which the given works
were probably intended.
Second, while we reject any transregional or transhistorical
homogenization of Brahmins,15 we nevertheless find it important to
identify the broad class to which these authors belonged and argue
that one must take into account the interests served by their
narrative depictions of legal matters. In so doing, we respond to
Silbeys urging that scholars redirect studies of legal
consciousness to recapture the critical sociological project of
explaining the durability and ideological power of law.16 We thus
explore the hegemonic functions of legal consciousness in the
narratives, but we also wish to uncover evidence of legal practice
from the evidence of legal consciousness in the story literature,
gaining insight into the durability of such practices thereby.
These differences have led us to ask different questions of the
narratives than the ones posed by Sternbach. Rather than querying
the degree to which the narratives echo the legal rules of the
Dharmastra, we are interested in identifying the nature of the
legal consciousness that would be required of the intended
audiences of the stories in order for the stories themselves to
have any resonance. We want to identify the explicit and implicit
ideals, beliefs, and biases expressed in and through these stories.
We ask what one would have to believe, implicitly or
self-consciously, for the stories in question to make sense
14. On the Pacatantra, see Patrick Olivelle, Pacatantra: The
Book of Indias Folk Wisdom (New York: Oxford University Press,
1997) and McComas Taylor, The Fall of the Indigo Jackal: The
Discourse of Division and puradras Pacatantra (Albany, NY: SUNY
Press, 2007). For Dharmastra and social history, see Ludo Rocher,
Law Books in an Oral Culture: The Indian dharmastras, Proceedings
of the American Philosophical Society 137(2) (1993), pp. 25467;
Richard W. Lariviere, Dharmastra, Custom, Real Law, and Apocryphal
Smtis, Journal of Indian Philosophy 32(56) (2004), pp. 61127;
Patrick Olivelle, Manus Code of Law: A Critical Edition and
Translation of the Mnava-Dharmastra (New York: Oxford University
Press, 2005); Donald R. Davis, Jr., The Spirit of Hindu Law
(Cambridge: Cambridge University Press, 2010).
15. Indeed, we note that not all Brahmins saw even their own
caste privileges in the same light. See John Nemec, The Ubiquitous
iva: Somnandas ivadi and His Tantric Interlocutors (New York:
Oxford University Press, 2011), p. 31, for an example of a
Brahminical author who denies the normative nature of caste.
16. Silbey, After Legal Consciousness, p. 358.
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Davis and Nemec 7
to their intended audiences. These assumptions, in turn, point
to the nature of legal prac-tice in premodern South Asia, at least
as it is depicted in the story literature here examined.
II. Two stories from Kalhaas The River of KingsWe turn first to
the Rjataragi (RT), or The River of Kings [of Kashmir], by Kalhaa,
a court poet of the Kashmiri king Jayasiha (r. 11281149). The RT is
regularly counted as the first explicitly and self-consciously
historical work of Sanskrit literature, one writ-ten in the Kashmir
Valley in the twelfth century. The work makes use of a hybrid array
of sources, including local folk tales, and scholars generally
agree that the work is not entirely historically accurate in all of
its details.17 On the one hand, scholars have gener-ally accepted
that Kalhaas account of the historical events closest to his own
time are faithfully recounted, in their broad outlines if not in
every detail. On the other hand, the narrative of the RT draws in
its particulars from a canon of story literature that predates
Kalhaa, and there are clearly a number of places where the text
records stories that are unlikely to have simply reproduced
historical events.18
It bears reiterating that our analysis seeks to identify the
legal consciousness reflected in the narratives selected, and we
will not here concern ourselves with the historical accuracy of the
stories we examine. Rather, we are interested in how they might
have been received by their intended audience and what they can
tell us of the conscious and unintended representations of legal
consciousness when they were written. Two stories in particular
merit attention for the insight they give into the legal procedures
practiced in the courts and the legal consciousness evinced by the
narratives. Both extoll the vir-tues of a thoughtful and just king,
Yaaskara (r. 939948).
The first exemplifies what can be described as an appeal, with
the king serving as the final legal authority in a matter that was
apparently adjudicated repeatedly and unsuccessfully for
17. Marc Aurel Stein, Kalhaas Rajataragii: A Chronicle of the
Kings of Kamir, 3 vols. (Delhi: Motilal Banarsidass, 1989 [1900]),
Vol. 1, pp. 2732.
18. For example, and as Winternitz has already noted, the story
of the passion of King Durlabhakaratpditya II (Rjataragi 4.16ff.)
has precedent in the Kathsaritsgara, spe-cifically the seventeenth
of the cycle of 25 Vetla stories. See Maurice Winternitz, A History
of Indian Literature, rev. ed., 3 vols., trans. V. Srinivasa Sarma
(Delhi: Motilal Banarsidass, 19811985), Vol. 3, p. 361, fn.5.
(citing Vetla 16, whereas the story is found in Vetla 17 of the
Tawney translation). With minor differences, both texts narrate the
story of a monarch whose ministers attempt to divert his attention
from a beautiful woman by deceitfully sug-gesting she is in fact
unattractive. In both instances, the fear is that the king will
fall in love with the woman in question and will then neglect his
duties, leading the kingdom into decline. In both instances, the
woman is betrothed to another when the king, misinformed as to her
virtues, declines her hand in marriage. And in both stories the
king subsequently meets the maiden in question and is then offered
her hand in marriage by the one to whom she was promised subsequent
to the kings initial rejection of her.
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8 Law, Culture and the Humanities 0(0)
the plaintiff. In order to win the attention of the king in this
instance, the aggrieved man undertakes a fast-unto-death
(pryopavea).
6.14. The officers watching cases of voluntary starvation,
reported a certain person engaged in fast-unto-death. When the king
had him brought before himself, he spoke:
6.15. I was once a wealthy citizen here. In the course of time I
became a pauper, through the will of fate.
6.16. When my indebtedness had become great, and I was pressed
by the creditors, I resolved to throw off my debts and to travel
about abroad.
6.17. Thereupon, I disposed of all I owed to clear my debts, and
sold my own mansion to a rich merchant.
6.18. From the sale of this great building I excepted only a
well fitted with stairs, having in view the maintenance of my
wife.
6.19. I thought that she would live by the rent given by the
gardeners, who at summer-time place flowers, betel-leaves, etc., in
that very cool well.
6.20. After wandering about for twenty years, I have come back
from abroad to this my native land with a small fortune.
6.21. Searching for my wife, I saw that good woman with a wan
body living as a servant in other [peoples] houses.
6.22. When I asked her, distressed, why she had, though provided
with a sustenance, taken such a life, she told her story.
6.23. When, after your departure abroad, I went to the well,
that merchant drove me away, beating me with cudgels.
6.24. Then how could I otherwise maintain myself? After saying
this, she stopped. Hearing this, I fell into the depths of grief
and anger.
6.25. I then began a fast-unto-death, but somehow the different
judges decided against me, giving on each occasion judgement in
favour of the defendant.
6.26. In my simplicity I do not know the law, but my life I
stake19 for this: I have not sold the well with the stairs.
19. The word paa signifies both the ordinary word for a stake in
gambling and what is called the judicial wager, a monetary sum or
token of wealth staked in a legal procedure as confir-mation or
guaranty of the truth of a litigants claim. See Richard W.
Lariviere, The Judicial Wager in Hindu Law, Annals of the
Bhandarkar Oriental Research Institute 62 (1981), pp. 13545. In
this context, the latter, legal meaning seems more reasonable,
though the paa is normally an additional monetary stake. The
penniless claimant here can only stake his life.
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Davis and Nemec 9
6.27. Deprived of my property, I die for certain here at your
door. Decide the matter in person, if otherwise you have fear of
committing a sin.
6.28. The king, on being thus addressed by him, proceeded to
hold court himself, and after assembling all the judges, inquired
into the real facts.
6.29. The judges spoke to him: This man has been repeatedly
dismissed [with his claim] after due consideration. Full of deceit,
he does not respect the law, and should be punished as a forger of
a written document.
6.30. Thereupon the king read himself the words as they stood in
the deed of sale: The house is sold together (sahita) with the well
[fitted] with the stairs.
6.31. While the councillors cried: From this it is clear, an
inner voice of the king, as it were, declared that the claimant was
in the right.
6.32. After apparently reflecting for a moment, the king
diverted for a long time the assembled councillors by other very
curious stories.
6.33. In the course of the conversation he took from all their
jewels to look at, and with a laugh drew the ring from the
defendants hand.
6.34. After with a smile asking all to stay thus only for a
moment, he retired [into another apartment] under the pretence of
cleaning his feet.
6.35. From there he despatched an attendant with an oral message
to the merchants house, handing him the ring, so that he might be
recognized.
6.36. Showing the ring, this attendant asked the merchants
accountant for the account-book of the year in which the deed had
been executed.
6.37. When the accountant was told that the merchant required
that [book] that day in court, he gave it, keeping the ring.
6.38. In this [book] the king read among the items of
expenditure [an entry of] ten hundred dnnras which had been given
to the official recorder (adhikaraa-lekhaka).6.39. From the fact
that a high fee had been paid to that person, who was entitled only
to a small sum, the king knew for certain that the merchant had got
him to write a sa for a ra.20
6.40. He then showed this in the assembly, questioned the
recorder whom he had brought up under a promise of impunity, and
convinced the councillors.
20. The crucial issue is that the merchant bribed the legal
recorder of deeds to write sahita, together with, instead of
rahita, except for, in the clause concerning the well, a fact which
the king discerns through his investigation and insight.
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10 Law, Culture and the Humanities 0(0)
6.41. At the request of the councillors, the king granted to the
claimant the house of the merchant, together with his property, and
exiled the defendant from the land.21
While the present story is replete with vocabulary found also in
the Dharmastras, it is by no means congruent in all respects with
legal procedures described in Dharmastra such that we might say, as
Sternbach did, that the story depicts the application of
Dharmastra. On the one hand, the RT confirms that the legal
vocabulary and jurispru-dence of the Dharmastras were the usual and
normal points of reference in other tex-tual genres for describing
and discussing matters of law.22 On the other, Dharmastra is never
mentioned explicitly and there is no hint that its rules were
applied as a kind of black-letter law in this or any of the
stories. For the purposes of our argument, the point here is that
Dharmastra formed one, but only one, part of the legal
consciousness of authors who wrote stories about the law. However,
it is precisely because the story eschews explicit connection with
Sanskrit jurisprudence that it becomes important as another source
for the history of legal consciousness.23
At the heart of the story are common legal concerns such as
forgery, bribery, and judicial appeal, as well as legal concepts
specific to law in medieval India, including the judicial wager and
the fast-unto-death. The author weaves several distinguishable
legal concerns together to emphasize the complexity of the legal
problem facing the king and, therefore, the greatness of his
achievement in seeing through the tangle of corruption perpetrated
by the merchant, the erroneous rulings of the various judges who
heard the plaintiffs appeals, and the legal recorder who doctored
the deed of sale. In this episode, it is the wise king himself who
rectifies the twenty-year miscarriage of justice, and it is the
Brahmin judges who are portrayed as duped by a manipulation of the
trial process. The story therefore amounts to a sort of panegyric
that praises the insight of the self-reflective king whose
inner-self (antartman), we are told (verse 6.31), was acutely aware
of the fraud that had beguiled the judges that preceded him in
hearing the complaint.
The force of the narrative thus relies on the notion that King
Yaaskara was excep-tional for exhibiting unusual concern for the
interests of an otherwise uninfluential sub-ject. Implied but
unstated is the notion that the legal system could be expected
regularly to function without regard for the little man who might
be hurt by those who were savvy enough and sufficiently capable to
falsify documents and game the system. Notably, there is no
question that the law itself is correct, in particular that a man
may
21. Stein, Rjataragi, 6.1441, in Steins translation.22. Donald
R. Davis, Jr., Hinduism as a Legal Tradition, Journal of the
American Academy of
Religion 75(2) (2007), pp. 24167.23. We must acknowledge either,
pace Sternbach, that Sanskrit story literature borrowed legal
frames and terms from Dharmastra or that both textual genres
borrowed from a common store of legal expression, presumably
reflective to some extent of known legal practice since no other
textual source can be identified. The truth is that both processes
probably occurred. For more on the complex historical relationship
of Dharmastra to legal practice and to other textual genres, see
the references in note 14 above.
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Davis and Nemec 11
forsake his wife if he first pays his debts and provides for her
maintenance and that, less controversially, documents of sale are
binding. Central to the narrative, then, is a legal consciousness
that implicitly accepts the strictures of dharma, whatever
injustices they might permit, while simultaneously recognizing that
the law in practice is manipulable, often to the harm of those
regular subjects who could not work the system to their own
advantage.
We reiterate that in the end the real victim, the mans wife, is
ignored in the kings ver-dict. Though the man does feel grief and
anger for his wifes plight, he seems more con-cerned with the fact
that his legal wishes were deceitfully left unfulfilled. The
silence of the narrative speaks more forcefully about the legal
consciousness represented in the text, and presumably shared, in
some measure at least, by its audience than does the major theme
recounted in the episode. For, the purpose of the story to praise
Yaaskara would be undermined if any real concern for the plight of
the merchants wife were felt by the audi-ence. Similarly, the story
witnesses a criminal accomplice of the story, the legal recorder,
seemingly to arrange the medieval equivalent of a plea bargain
(dattvbhayam) we here refer to the promised impunity mentioned in
the story (verse 6.40) in exchange for testifying against the
merchant. The story entirely glosses over the mixed feelings one
would normally expect in such a compromise, again in favor of
emphasizing the wisdom of the king and the storys proper
resolution.
Though the text does not criticize the possible complicity or at
least the negligence of the Brahmin judges, they seem at minimum to
be unwitting accomplices. But they, too, go scot-free. Perhaps this
is to be expected: no sound legal system could regularly condemn
the integrity of a lower-court judge for reaching a wrong decision.
This would call into question the legitimacy of the lower courts,
instead of positively recognizing the importance and justice of a
right to appeal. Regardless, the Brahmin judges are depicted as
being bound by the letter of the contract that is presented to
them, despite the fact that the proof-of-sale was doctored. This
fidelity to the letter of the law, despite the injustice it
perpetuated, is of course precisely the legal conundrum the heroic
and wise king is said to overcome. The audience who heard this
story must have understood that the law in practice served the
interests of those with know-how and with power, and that the
system, perpetuated by legal officers such as the Brahmin judges in
the story, was impeded by legal procedures from rectifying apparent
injustices. Even the king uses his guile to seek hard evidence,
according to the story, before overturning the rul-ing that was
held up repeatedly in the courts. The fact that he had to convince
the councillors (6.40) to justify the reversal suggests that the
king with all his authority nevertheless had to adjudicate the
legality (however corrupted) of the transaction in order to rectify
the injustice.
Immediately following this episode in the River of Kings is
another story meant to praise the same king for his wisdom in
interpreting dharma. In this instance, the king surprises the court
by overturning the letter of a verbal contract in favor of a
Brahmin who was clearly wronged by a conniving underling. The
Brahmin had earned a hundred gold coins while abroad and was
returning home, when the coins accidentally dropped into a deep
well from where he had them tied in his lower garment.
An unidentified man then offered to help the Brahmin retrieve
the coins, asking what he might get in return. The Brahmin
mistakenly replied, Whatever seems right to you,
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12 Law, Culture and the Humanities 0(0)
let that be given to me from it.24 Retrieving the coins, the man
gave the Brahmin just two out of the hundred. The Brahmin
protested, but the people gathered there insisted that under King
Yaaskara, transactions (vyavahr) depend upon the letter of the
contract.25 The next day the king confirmed the Brahmins story
directly with the man who retrieved the coins and then at court
reversed the distribution, giving the Brahmin ninety-eight. He does
so, we are told, following a clich digression on the subtlety of
dharma, because the king senses that the Brahmin had simply
misspoken: Instead of saying: Kindly give me the coins, he let fall
the words: Whatever seems right, etc.26 The story ends with praise
of the kings ability to discern what is dharma and what is
adharma.
The obvious first point of interest for us is the legal
consciousness expressed by the people (lokai) and taken advantage
of by the selfish man in asserting that contracts are enforced to
the letter in their kingdom. In this case, we encounter the use of
the term vyavahra in one of its legal meanings, here a contract,
legally binding transaction. The story is thus premised on the
validity of what is taken by all to be an oral contract. The man
who retrieved the coins is so confident of this validity that
[w]hen he was questioned by the king he related everything exactly
as the Brahmin had stated it, and pointed out that the contract was
based on the Brahmins words.27 Unlike the people, however, the king
possesses the ability to discern the difference between relying on
oth-ers to make good on their word and actual facts of the case.28
From this statement, we learn that the legal principle of
fulfilling contracts to the letter remains in force, but it must be
tempered by a consideration of the relevant facts in a given case.
(Perhaps this may be counted as a legal equivalent of a modern-day
covenant of good faith and fair dealing in medieval Kashmir.) The
kings resolution exemplifies the approach of legal realism by
privileging the unintentional quality of the Brahmins misstatement
over the desire to enforce contracts to the letter. In this sense,
the point of the story is to rectify the misguided legal
consciousness of the people by teaching them to qualify their
applica-tion of the letter of the law according to
circumstance.
The manner in which both of these cases from the RT come before
the king also tells us something about the legal consciousness of
the author of the text and the characters he describes. Neither
victim finds any redress through the normal legal channels. The man
defrauded of his well is rebuffed by the Brahmin judges who, like
the people in the second story, focus only on the visible letter of
the deed of sale. The man swindled out of most of his gold coins
appeals to the people who witnessed the event, only to be told that
his clumsy statement now bound him legally. In order to pursue
their claims further, both victims have to resort to the threat of
suicide by fasting. The classical Sanskrit
24. Stein, Rjataragi, 6.51cd.25. Stein, Rjataragi, 6.53ab.26.
Stein, Rjataragi, 6.65.27. Stein, Rjataragi, 6.58.28. Stein,
Rjataragi, 6.59: Those who could see no difference between the
actual facts and
the observance of the given word, looked down on the ground with
their minds wavering in doubt.
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Davis and Nemec 13
expression for this fast-unto-death (pryopavea) is mirrored in a
number of regional languages, even in the present day, e.g. dharn
in Hindi, paini in Malayalam and Tamil,29 and the practice is also
narrated in other, roughly contemporaneous Kashmiri works.30 How
should we interpret these mentions of fasts-unto-death in terms of
legal consciousness?
On the one hand, this dramatic act simply sets a good stage for
the rest of the story. It signals literarily the desperation of the
two victims and the emotional burden of their plight. On the other
hand, it appears also to suggest, if not state explicitly, the
potential or real difficulties of finding justice through normal
legal processes. We are tempted, there-fore, to see in the framing
of these stories a general sense that ordinary legal procedures are
rife with injustice, that things are stacked in favor of the
powerful manipulators of legal rules. As a result, only an
extraordinarily wise and caring king can check the other-wise
rampant and expected corruptions of justice done in the name of the
law. At this point, we may have in the RT at least some criticism
of the ideologies and power struc-tures of the law that form part
of the more specific legal consciousness of law in its constitutive
relation to other social forces.
Similar to one powerful view of law in modern America, the
victims of legally sanc-tioned injustice in the River of Kings feel
virtually incapacitated and have to resort to subterfuges and
evasions and minor forms of resistance [that] typically leave the
law unchallenged and unchanged.31 A fast-unto-death may not seem
minor, but the point is that it is not a collective or systemic
act. The inclusion of the fast-unto-death in both stories indicates
an awareness of the obstacles to appeal and access to justice that
limits individu-als legal responses to idiosyncratic acts. If so,
we are beginning to see a more complicated picture of legal
consciousness as it is articulated in these medieval
narratives.
III. A Story from Somadevas The Ocean of Rivers of
Stories
If the River of Kings purportedly conveys historical events as
they occurred, the nearly contemporaneous Kathsaritsgara (KSS), or
The Ocean of Rivers of Stories, is explic-itly a work of fiction.
Said to have been written by a Kashmiri court poet named Somadeva
for the pleasure of Queen Sryamat, the wife of a king named
Anantadeva (r. 10281063), this enormous collection draws
self-consciously upon an extensive series of stories found in the
Bhatkath (The Great Romance), an old compendium that boasts of a
wide-ranging influence on story literature in medieval South Asia
and
29. E.W. Hopkins, On the Hindu Custom of Dying to Redress a
Grievance, Journal of the American Oriental Society 21 (1900), pp.
14659 is a classic study on the topic of the publicly threatened
fast-unto-death and is still a useful survey of references to the
practice in Sanskrit texts.
30. For example, Kathsaritsgara 9.5.1ff., esp. 9.5.6.31. Silbey,
Legal Culture, p. 8628. See also Ewick and Silbey, Common Place,
pp. 165220, for
a full account of feeling helpless against the law.
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14 Law, Culture and the Humanities 0(0)
that is said to have been composed by one Guhya in Paic, a
little-known Prakrit.32 As is so often the case with premodern
materials written in Sanskrit, little more of the text and its
author is known than the bare facts here recounted, which are
conveyed to us by none other than the author in the narrative of
the KSS itself. The degree to which the KSS faithfully records the
narratives of the BBhatkath is also in question, because the latter
work is now lost. Despite the fact that Somadeva likely borrowed
regularly from the Bhatkath in composing the KSS, we maintain that
the latter text should be understood largely to be the product of
its historical moment and as such can speak to the legal
consciousness of Somadevas day. This is so because, while it is
true that many of the many motifs of the KSS surely appeared in the
Bhatkath, there is a great deal of disparity in the ways the
various subsequent renderings of the Paic compendium present these
stories;33 and Somadevas rendering of the various stories is
clearly his own. This is to say that the text as we have received
it reflects the Zeitgeist and, like the RT, can inform us of
contemporaneous attitudes toward the law and legal matters in
medieval Kashmir.
We turn then to a story of deception and financial fraud
perpetrated on an unsuspect-ing but arrogant Brahmin courtier. The
KSS recounts the tale of two con-men, iva and Mdhava, who defraud
this Brahmin of his wealth and who devise their plan explicitly
with the inevitable trial before the king in mind. They conceive of
a plot by which their actions will inevitably be judged to be
beyond reproach by the courts, and, knowing they cannot be found
guilty for their actions short of the fraud being discovered,
disguise themselves in ways that conform to their plot.
At one level, the story is a tale of loveable knaves that is
told both to warn people against believing the deceitful lies of
con-men and to expose the perils and blindness of greed.34
32. On the relationship between the Bhatkath and the various
retellings and novel renderings thereof, see Donald Nelson, The
Bhatkath: A Reconstruction from the Bhatkathloka-sagraha, Perukatai
and Vasudevahidi, unpublished PhD dissertation, University of
Chicago. 1974. See also Nelson, Bhatkath Studies: The Problem of an
Ur-text, The Journal of Asian Studies 37(4) (1978), pp. 66376, for
a concise account of the difficulty of reconstructing the Bhatkath
from the same texts based on it. On the date of the Bhatkath see
Jacob Samuel Speyer, Studies About the Kathsaritsgara (Amsterdam:
Johannes Mller, 1908) and A. Berriedale Keith, The Date of the
Bhatkath and the Mudrrkasa, Journal of the Royal Asiatic Society of
Great Britain and Ireland 2:2, n.s. (1909), pp. 1459.
33. Even were this not the case, the stories of the KSS were
sufficiently popular in Kashmir in the period in question to merit
even a second rendering of the tales of the Bhatkath in the
eleventh century by one Kemendra. This suggests that the stories
resonated with their (admittedly elite, courtly) audiences.
34. C.H. Tawney, The Ocean of Story, Being C.H. Tawneys
Translation of Somadevas Kathasaritsagara; or, Ocean of Streams of
Story, 10 vols., ed. with additional notes by N.M. Penzer (Delhi:
Motilal Banarsidass, 1968 [1924]), 5.1.79, suggests that the
episode is narrated by a kings daughter, Kanakarekh, in order to
caution her father against giving too much credence to the words of
others: Do you not know what rogues say to honest people? See also
Kathsaritsgara, 5.1.198cd, which sums up the moral of the episode:
For, of what calamities is not the blinding of the mind with
excessive greed the cause? (trans. Tawney).
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Davis and Nemec 15
The rogues actions are implicitly decried, but the Brahmin
victim is also portrayed as bringing the crime upon himself as a
consequence of his avaricious character. At another level, however,
the story is a positively cinematic tale of complicated legal
deception transpiring over a long period of time. The extensive
planning and the sheer commitment required by the two anti-heroess
actions draw the reader into an intricately woven plot of
deception. iva and Mdhavas charming personalities also compel the
reader to root for their success, in spite of the harsh fraud that
they eventually commit against the Brahmin courtier.
The story opens with just such a charming depiction: By now we
have robbed this town blind, so lets move now to Ujjain where we
hear theres a minister of the king named akarasvmin who is
super-rich. With the money we steal from him we can finally come to
appreciate the charms of the women here in Mlava.35 After hatching
their plan, they set out for Ujjain, where Mdhava will, accompanied
by a host of paid accomplices, impersonate a noble Rajput
(rjaputra), while iva will take the disguise of a religious
ascetic. iva enters the town first and begins to practice the
severe aus-terities characteristic of a holy world-renouncer:
prolonged meditation and prayer, fasting, and purposeful
mortifications of the body. After a long time, ivas extreme
austerities earn him a reputation as a great ascetic, and the
people of the town become devoted to him.36
Mdhava, for his part, then enters the city with his entourage.
Settling in, he pays homage to the holy ascetic, iva, and then
sends his attendants to the Brahmin min-ister akarasvmin with a
gift and the explanation that he has come because his family has
oppressed him, and that he therefore wishes to settle away from
them in the town. With repeated gifts, Mdhava is offered an
audience first with akarasvmin and through him with the king
himself. The greedy akarasvmin then invites Mdhava (with the kings
permission) to stay in his home, where he hopes the nobleman will
continue to shower him with offerings. Installed in akarasvmins
house, Mdhava strategically places a huge vault in his new
residence to entice akarasvmin with glimpses of a hoard of false
gems and jewels contained inside. After several days, Mdhava
pretends to become ill and, fearing his death, asks akarasvmin to
bring him a worthy Brahmin on whom he can bestow his fortune.37
35. Tawney, Kathsaritsgara, 5.1.84cd86.36. Tawney,
Kathsaritsgara, 5.1.105: And the opinion that he is a remarkably
peaceful
ascetic spread everywhere there among all the people, who were
reverential in their devotion to him.
37. The practice of religious gifting has a long history in
India and a huge textual corpus is devoted to it both in Dharmastra
and in other textual traditions. A properly given gift to a worthy
recipient is held to generate great merit for and remove great sin
from the donor. See Maria Heim, Theories of the Gift in South Asia:
Hindu, Buddhist, and Jain Reflections on Dna (London: Routledge,
2004).
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16 Law, Culture and the Humanities 0(0)
First rejecting a series of akarasvmins candidates (all
apparently householder Brahmins), Mdhava eventually accepts the
advice of a conspiring attendant to invite the now-famous and
supposedly accomplished Brahmin renunciant, iva, to receive the
for-tune. akarasvmin consents to the plan and meets iva at Mdhavas
request in order to convince him to accept the dying mans gift.
iva, however, initially declines to accept it, stating that he is a
mere ascetic who lives on alms and has surrendered all interest in
material possessions. But akarasvmin coaxes him by raising a matter
of dharma, sug-gesting that one cannot become an ascetic without
traversing the ramas, stages of life, in their appropriate order,
with the householder stage preceding that of renunciation.38 iva
protests further: he is a devout Brahmin and cannot marry just
anyone, but only a Brahmin lady. Seeing occasion to profit on the
impending death of the wealthy Rajput, akarasvmin offers iva his
own daughters hand in marriage on the spot. And in the midst of
protests that he knows nothing of either women or money, iva of
course con-sents to the plan.
Mdhava, in turn, deems this soon-to-be married ascetic worthy of
receiving his dying gift, and iva is married and subsequently takes
control of the fake fortune, immediately entrusting it to
akarasvmin for safekeeping. The group lives together for some time,
and Mdhava progressively recovers from his feigned illness,
crediting ivas auspiciousness as the cause of his rejuvenation. One
day, iva suggests to akarasvmin that since he has been a
tremendously generous host, iva should now begin to pay his own
way. Of course, however, he is a man of no means (other than the
fortune granted him by Mdhava), and so he suggests that akarasvmin
purchase his fortune of gems and jewels in return for a fair price.
(It is implied in the narrative that iva will spend the cash he is
given to maintain himself from that point forward.39) Thinking the
hoard to be valuable beyond measure, akarasvmin purchases the
jew-els from iva with all his current wealth, as he intended to
pocket a profit University Presson reselling the jewels to another.
And he insists that iva sign a receipt acknowl-edging the terms of
the transaction.40
When the cash-strapped minister eventually tries to sell one of
the jewels in town, however, he is told that it is a fake made of
glass, rock, and brass, as are all the other jewels in the vault.
akarasvmin confronts iva about the fraud, but iva claims that
38. The implication seems to be that akarasvmin convinces iva of
the inappropriateness of renunciation in the absence of a prior
entrance of the candidate into the householder rama.
39. Tawney, Kathsaritsgara, 5.1.171172: iva, for his part, after
some days said to the chap-lain: How long am I to feast in your
house in this style? Why do you not take from me those jewels for
some fixed sum of money? If they are valuable, give me a fair price
for them.
40. Tawney, Kathsaritsgara, 5.1.174175: And he made iva sign a
receipt for the sum with his own hand, and he himself too signed a
receipt for the jewels, thinking that that treasure far exceeded
his own wealth in value. And they separated, taking one anothers
receipts, and the chaplin living in one place, while iva kept house
in another.
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Davis and Nemec 17
the money he was paid for the jewels was already spent on his
own maintenance. So, as a kings minister, akarasvmin takes the
matter to the court, where both iva and Mdhava present their
carefully contrived defenses. iva first:
King, from my childhood I have been an ascetic, and I was
persuaded by that mans earnest petition to accept a gift, and when
I took it, though inexperienced in the ways of the world, I said to
him, I am ignorant about jewels and things of that kind, and I rely
upon you, and he consented saying, I will be your warrant in this
matter. And I accepted the entire gift and deposited it into his
custody. Then he purchased the whole from me at his own price, and
we hold from one another mutual receipts; and now it is in the
kings power to grant me help in my deep need.41
Then Mdhava:
Do not claim this. Youre a respectable man, but what fault have
I committed in this matter? I never received anything either from
you or from iva; I had some wealth inherited from my father, which
I had long deposited elsewhere; then I brought that wealth and
presented it to a Brahmin. If the gold is not real gold, and the
jewels are not real jewels, then let us suppose that I have reaped
the reward from giving away brass, quartz, and glass. But the fact
that I was persuaded with sincere heart that I was giving
something, is clear from this, that I recovered from a very
dangerous illness.42
Key apparently to the legal efficacy of these defenses is the
fact that they were delivered with a straight face.43 The king
immediately chuckles and smiles and then declares that neither iva
nor Mdhava has done anything illegal (anyyata). (Crucially, none of
iva or Mdhavas pivotal actions gifting ones possession to a
Brahmin, renouncing austerities to marry, selling ones possessions
for an agreed-upon price is of itself illegal.) Then the whole
court king, ministers, and judges all laugh to themselves
(sntarhsam) as the defeated Brahmin minister skulks out of the
court. iva and Mdhava meanwhile happily stay on having obtained the
favor of the delighted king.44
The frame of the story, as mentioned, emphasizes that the
narrative is meant to warn people against gullibility in the
presence of convincing charmers, just as it warns of the potential
pitfalls of excessive greed. The end of the story itself, however,
declares that the king and his court remained delighted and smiling
in the face of the legally impeccable but morally misleading
defenses of iva and Mdhava. We may speculate that the laughter of
the court is a tacit applause of the cunning legal maneuvers
executed by the defendants, and perhaps of a dislike of the
minister. Whether the court saw through those maneuvers to the
underlying fraud is unaddressed. In this case, the narrative at
least suggests that the court is bound by the letter of the law in
a way that seemed undesirable in the pair of stories narrated in
the RT. We can speculate that the laughter of the court
41. Tawney, Kathsaritsgara, 5.1.187191ab. (translation
adapted)42. Tawney, Kathsaritsgara, 5.1.192195. (translation
adapted)43. Tawney, Kathsaritsgara, 5.1.196ab.44. Tawney,
Kathsaritsgara, 5.1.199.
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18 Law, Culture and the Humanities 0(0)
might even derive from that very inability to do anything in the
face of such a perfectly masterminded and strictly legal plan.45
And, this is where we can see a new aspect of legal consciousness
in medieval India.
The sheer scope of the plan to defraud akarasvmin is impressive.
A score of people are involved; a huge investment of capital was
required to present Mdhava with his entourage; iva engaged real and
longlasting austerities to gain a local reputation; Mdhava earned
akarasvmins trust, as well as that of the king, only gradually, and
he cultivated akarasvmins greed carefully and slowly; and, finally,
iva went through with a real marriage to perpetuate the final,
deceptive transaction. All of this was done in explicit
anticipation of the inevitable trial before the king; and every
element is meticu-lously put into place to guarantee the legally
unassailable defenses offered at the end of the story. Though
clearly the product of a creative storyteller, such an elaborate
ruse could make no sense to the audience unless there existed an
available and plausible legal consciousness about the sometimes
inescapable nature of the legal process. The story-teller deftly
creates the complex plot, but he does so with the certain end of
the unim-peachable legal defenses in mind. Like the two rogues, the
storyteller also counts on the existence of a rigid legal process
and the inevitable necessity for the enforcement of the letter of
the law to spin his tale.
The awareness, even hyper-awareness, of the inner workings of
the law further shows that the legal consciousness of this medieval
author was such that he could imagine a complex plot driven wholly
by two laymens knowledge of the rules of evidence, the nature of
contracts, and the circumstances that would be examined by the
court. In our examples from the RT, we saw portrayals of ordinary
peoples knowledge of the law and legal processes constituted by
both a reverence for the law based in fear of its power and a
disdain for the capriciousness of law in practice, based on the
possibility that clever people could manipulate the legal process.
In this case, by contrast, everyone involved in the final court
scene, with the exception of akarasvmin, is immersed in the laws
vision of justice and the apparent limitations imposed by the
mechanical constraints of the law. In fact, iva and Mdhava count on
those constraints from the beginning. It is precisely in the
anticipatory legal consciousness of the two rogues and their
self-assurance of the predictable verdict of the court that we see
represented this acute form of awareness of the law among ordinary
people, at least in their literary depiction.
45. We hesitate to draw strong conclusions regarding the kings
authority here, as another story from the KSS suggests the king
could exercise a greater degree of discretion than is appar-ent in
the iva and Mdhava episode. In the story in question, a woman named
Devasmit learns of the plans of four rogue merchants to seduce her
in her husbands absence. Through trickery, she brands them on the
forehead, later using that mark fallaciously to identify the four
rogues as her own escaped slaves. The king, informed of all the
events as they transpired, upholds the slave identity of the rogues
in a plain effort to support dharma, lawful conduct. Here, then,
contra the iva and Mdhava story, the king could apparently exercise
discretion in administering the effects of a particular legal
procedure. Regardless, both stories rely on a legal consciousness
of a clearly defined legal system that exists apart from the kings
power of discretion. See KSS 2.5.54ff.
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Davis and Nemec 19
We close our discussion of the KSS by noting that we again see
here a certain blind-ness to the limitations and indeed the
inherent inequity of the law, be it in its strictly legal features
or in the exercise of the kings authority. akarasvmin, for one,
fecklessly employs his daughter as an instrument for acquiring
wealth, offering her hand in mar-riage to a stranger for the
promise of jewels and the like, without a single mention in the
story of the inequity and indeed injustice of the arrangement.
While the reader is left with something of a sense of satisfaction
in knowing the greedy Brahmin is not rewarded for his intrepid
avariciousness, there is no sense of regret for the unfortunate
circumstances it begets his daughter. In fact, we are not even told
what becomes of her after iva and Mdhava beat the rap for their
clever con. Whatever ones sense of the relationship of authority to
legality in medieval India, then, the storys unspoken narrative
implicitly reinforces the privilege of male, upper-caste, and
influential characters who are placed advantageously in society,
without any sense of the inherent inequality in such an
arrangement.
IV. An Early Example: The Little Clay Cart of drakaWhile the
stories from the RT and KSS undoubtedly shed light on the legal
conscious-ness that existed in the Kashmir valley of the eleventh
and twelfth centuries, we hesitate too quickly to draw far-reaching
conclusions from them. All the works are after all prod-ucts of a
Brahminical elite that had its own interests, particular habits and
customs, and indeed its own norms to uphold, follow, and reinforce
through such writings. And these Brahminical mores are shared
across regions and over time in South Asia, even if neither
Brahminical culture nor Brahmins are by any means uniform or
homogenized entities. Enough of a shared culture and purpose
existed in Brahminical circles to require us to examine these
documents in relation to other similar, datable works should we
wish to isolate particular elements of legal consciousness and
locate them in particular regions or periods of time. Though such a
full chronological and comparative study lies beyond the scope of
the present essay, a brief examination of what is often counted as
the earliest narrative depiction of a court scene in Sanskrit
literature may serve as a useful point of reference from which to
measure the contributions of the Kashmiri sources.
We refer to the ninth act of the famous Sanskrit play of draka,
the Mcchakaika, or Little Clay Cart, dating from as early as the
fourth or fifth century to the seventh century AD, according to
different scholars.46 The villainous Sasthnaka, son-in-law to
the
46. Susan Oleksiw, Law and Government in the Mcchakaika,
unpublished PhD dissertation, University of Pennsylvania, 1977, is
still the most thorough examination of the legal aspects of the
Mcchakaika. She carefully examines the vocabulary of the play and
compares it to the terminology of Dharmastra. Though we are
skeptical about the guiding approach of her study, namely to
discern whether or not Dharmastra controlled the portrayals of the
law in the play, and of her assumption that deviations from
Dharmastric norms can be taken as indicating the law on the ground,
we nevertheless derived great benefit from her philological
analysis of the text. For the later date, see Diwakar Acharya, The
Little Clay Cart (New York: NYU Press, 2009).
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20 Law, Culture and the Humanities 0(0)
king, desires the courtesan Vasantasen, who is in love with the
generous Brahmin Crudatta. Fleeing Sasthnaka, Vasantasen takes
refuge in Crudattas home and entrusts her ornaments to him. A
burglary, a lie, and a gift put the ornaments in, out of, and again
into Crudattas home. Intending to meet Crudatta for a tryst in the
park, Vasantasen is instead accosted and strangled by Sasthnaka (to
death, he thinks), who then takes advantage of political unrest and
a prisoner escape to frame Crudatta for the crime. Sasthnaka then
goes to the court to report the murder.
The ninth act begins with a court attendant literally setting
the judicial stage in the courtroom as a matter of daily routine.
The judge and other officials enter to the judges telling
declaration:
In judiciary matters, gentleman, a judge must rely on others,
and that makes it difficult for him to penetrate the minds of those
others. Theyll bring up a mysterious matter that has already been
thrown out of court, they are so fired with litigious passions that
they gloss over their own weaknesses, and if there is a judicial
error, which both parties are quick to inflate, the king himself
becomes involved. Indeed to sum up, it is easier to blame a judge
than to find virtue in a witness. For a judge must not only know
the law,47 but also be expert in detecting deceptions. He should be
eloquent without anger, impartial to friend, foe, and kind, and
pronounce judgment only when he has considered the facts. He must
protect the shy and bully the clever, and he himself must be a just
man and incorruptible If there is a way, he must direct his mind to
the deeper truth and at the same time avoid angering the
king.48
In this speech, the judge is aware of two factors that
complicate and compromise the pristine quality of the law. First, a
case may be manipulated by deceptive or aggressive litigants and
witnesses. Second, perceptions of judicial error can cause a king
to inter-vene. Still, the judge insists that a judge must focus on
the facts first and approach the case with realism in the legal
sense, that is a concern for truth over blind adherence to legal
rules.49 Already, we see the plays author relying on a
consciousness of two poten-tial pitfalls in the legal process as
foreshadowing the events about to unfold.
When Sasthnaka enters demanding to have his case heard, first
the attendant and then the judge suspiciously curse the fact that
the kings brother-in-law has presented himself to the court. Though
initially rebuffed by the judge, Sasthnaka threatens exactly the
biased intervention of the king feared by the judge in his speech.
As a result,
47. The text uses the term straja, which van Buitenen and others
render as knowing the law itself, i.e. the substantive laws. The
description could also mean rather knowledge-able of jurisprudence.
The question or difference is whether the legal rules to be applied
are imagined as coming from the Dharmastra itself or if the
judicial reasoning and training in Dharmastra is what one needs to
apply correctly the prevailing legal norms from outside the
texts.
48. J.A.B. van Buitenen, Two Plays of Ancient India (New York,
Columbia University Press, 1968), p. 152.
49. On legal realism in relation to Hindu law, see Donald R.
Davis, Jr., A Realist View of Hindu Law, Ratio Juris: An
International Journal of Jurisprudence and Philosophy of Law 19(3)
(2006), pp. 287313.
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Davis and Nemec 21
his case is allowed to be heard, and this convinces Sasthnaka
that he can intimidate and deceive the judge: First they say it
wont be heard, and now it will be heard. Obviously the judge is
terribly afraid of me! I can make him believe anything I want.50
The forethought and malice of Sasthnaka requires an awareness that
manipulation and corruption of the law is possible.
In laying out his false account of Vasantasens murder (who did
not in fact die), Sasthnaka mistakenly attributes the crime to some
vile person who strangled her just for money, clumsily blurting out
then, I didnt do it. The judge notices this immediately and asks
the court reporter to note Sasthnakas denial for the record.
Through an unnecessary denial that plants a mental seed of
suspicion that he could have done it, Sasthnaka is forced to
account for how he knows that she was strangled for money. This he
does to the courts satisfaction, but the exchange is remarkable
nonethe-less, because it deepens the psychological insight into how
a witness can manipulate a court case by controlling the
information that is rendered for judicial consideration. There is a
cognizance here of both restrictions on what the judge may consider
and strat-egies for steering judicially recognized facts toward
specific conclusions in law.
The most intriguing evidence of legal consciousness in the play,
however, comes when Vasantasens mother is summoned to the court. As
an older woman, the judge is careful to instruct the court
officials to treat her gently. Nevertheless, she is nervous: I feel
like fainting! My heart is beating fast.51 As the judge begins his
questioning by ask-ing to what friends home Vasantasen went, the
mother replies:
Old Woman (to herself): Terrible! This is really too
embarrassing! (Aloud.) This is a question for the vulgar, not for a
judge.
Judge: No coyness now! The case poses the question.Provost and
Scrivener: Yes, the case poses the question. Theres no harm in
it.
Answer the question.Old Woman: What, the case? Well, if thats
so, listen, gentlemen
Master Crudatta Sasthnaka: Youve heard it gentlemen. Let the
words be recorded. My
quarrel is with Crudatta.Provost and Scrivener: Theres nothing
wrong with Crudattas being her friend.Judge: But the case now
involves Crudatta. Why, now we
must also summon Master Crudatta, that is to say, the cases
requires his presence.52
Aside from another reference to writing and recordkeeping in the
court, this passage contains the intriguing statement vyavahras tv
pcchati: it is the legal procedure thats asking you these
questions. When the old woman gets nervous at having to divulge
before the court the whereabouts of Vasantasen, the judge
depersonalizes the witnesss statements by personifying the trial
process itself. The old woman is not to feel
50. van Buitenen, Two Plays, p. 153.51. van Buitenen, Two Plays,
p. 155.52. van Buitenen, Two Plays, p. 155.
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22 Law, Culture and the Humanities 0(0)
as if she were speaking to the judge or before other notables,
but rather only to the neutral procedure of the court. To personify
the trial procedure in this way is to play off an avail-able
imagination of the law as a quasi-living entity, a thing that has
an objective life of its own. In this separate world of the trial,
normal rules of social decorum do not apply and candid statements
that may be awkward or indelicate become acceptable.
The word vyavahra, as all the translators recognize, is used
here in its technical Dharmastric sense of legal procedure, trial.
draka builds to the climax of the play in Act Ten through the
contrast between the old womans honesty and forthrightness prompted
by respect for the trial process and the Sasthnakas deception of
court moti-vated by disrespect for its officers and the legal
process itself. In this contrast, the play attests to two attitudes
toward the law and legal procedure: one right and one wrong, but
both known in practice. There is nothing mysterious here. The right
approach to the law is to obey it, to tell the whole truth when
necessary, and to root out fraud and lies. The wrong approach is to
flout the law through selfish, criminal acts, to deceive legal
profes-sionals, to thwart the revelation of the truth at every
turn. That the latter approach is found regularly in Brahminical
texts at least acknowledges a gap between the letter of the law and
its imperfect application.
The personification of the legal process in the Little Clay Cart
provides insight into the general level of legal consciousness
available to the poet draka and his audience, and by extension to
those Brahminical authors such as Kalhaa and Somadeva who fol-lowed
him in history. The author depicts the legal process as having a
life and, therefore, an integrity of its own. Without a doubt, an
uncorrupted legal process yields truth and justice, in this view.
The point of the plays climax and the goal of social institutions
devoted to the law is to avoid or to unmask such corruption before
it is too late. To protect the person of the laws process,
corruption must be vigilantly exposed and punished. In the end, the
dramatic force of the plot is incomprehensible without reference to
legal categories such as the qualification of witnesses and the
scope of jurisdiction.53
What is not found in the Little Clay Cart, however, is a
consciousness of the law or legal process in which the law itself
is ever to blame. One can point to corruption and deceit within the
human observance and administration of the law, but the law itself
remains always beyond reproach. Even in the extensive satirical
literature of Brahminical Sanskrit, the issue is pretending to live
up to a noble ideal, while in fact corrupting it.54 The satirist,
writes Lee Siegel, is more concerned with the fake than with the
devil Injustice is condemned not for being what it is, but for
wearing the mask of justice.55 As a result, Brahminical traditions
rarely address the specific level of legal consciousness in which
law may be seen as an ideology and praxis (its rules, processes,
and structures) for
53. Drawn from Silbeys comment on Dirk Hartogs study of the
diary of Abigail Bailey: Hartog demonstrates that this narrative of
personal tragedy and change is incomprehensible with-out reference
to legal categories such as the prevailing law of coverture (After
Legal Consciousness, p. 346).
54. A wealth of literary references to corrupt kings, Brahmin
judges, and kyasthas may be found in Lee Siegel, Laughing Matters:
Comic Tradition in India (Chicago, IL: University of Chicago Press,
1987), pp. 14863.
55. Siegel, Laughing Matters, p. 160.
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Davis and Nemec 23
the self-protection of the powerful. Manipulations of the law by
the king, his relatives, or his officers for their own
self-interest and aggrandizement are frequently portrayed, but no
suggestion arises therefrom that a problem and possibly a solution
may exist within the law itself. For instance, the idea that a king
and people connected to him can more or less freely interfere in
legal cases is lamented in the play, but never questioned.
Turning back to a consideration of our Kashmiri sources in light
of drakas play, we reiterate that we have in the Little Clay Cart a
presentation of the law as neutral, objective, and impersonal (even
if personified) a judges dream , but we also have the law as a game
of strategy and promotion of self-interest. Both views are found
also in the stories from the RT. Broadly, then, both RT stories
agree with the dichotomous contrast of respect-ful, trusting
observance of the law and its disrespectful, selfish manipulation
found also in the Mcchakaika. Whos corrupt and whos not varies, but
the central issue remains the same: how to ensure that a naturally
truth-producing legal procedure is protected against corruption and
manipulation. And the very limitations of the law are never
identified or questioned in the RT stories. There is, in addition,
a third, less prominent view in the RT stories that suggests that
the law can be arbitrary and protective of those in power.56 The
narrative intent of the pair of RT stories, moreover, is the
opposite of the Little Clay Cart in that both praise a wise king
who is not fooled by attempted manipulations of the course of
justice, specifically the failures of Brahmin judges to discern the
real truth behind a case.
Our example from the KSS also presupposes the innate virtue of
dharma, but it also points in a very real sense to a degree of
rigidity of the law that is both predictable, manipulable, and very
possibly constricting of royal authority. Like the Little Clay
Cart, the iva and Mdhava story also sees law as a game of strategy
and a promotion of self-interest. But unlike the RT stories, there
is no clear intimation that the law protects only those in power,
even if the stories can be read to confirm the biases of the court
in grant-ing audience to powerful men while marginalizing women
and, one feels, those without the resources to make themselves
heard.57
In sum, a reading of the Little Clay Cart suggests that the most
striking feature of the stories we have here examined is the tacit
recognition, particularly in the RT stories, of the degree to which
the law serves the privileged over and against the common subject.
Whether this feature is the product of the genre of the RT or
otherwise it is, after all, almost unique in Sanskrit literature
for being self-consciously constructed as a work of history is open
to question. It is similarly impossible to argue that Kashmir in
the period in question is unique for knowing such a dimension of
legal consciousness, only that the RT goes further than other
works, to our knowledge, in acknowledging the
56. We put matters in these terms in order to show that the
legal consciousness expressed in medieval Indian narratives matches
the range of views expressed in Ewick and Silbeys study (1998) of
legal consciousness in the everyday life of modern Americans.
Obviously, it is an argumentative contrivance to juxtapose these
two unrelated traditions, but we think it sig-nificant that we can
describe the legal consciousness of the stories discussed so far in
terms similar to a classic study without resort to interpretive
contortions.
57. The marginal status of women is reiterated elsewhere in the
KSS in the Devasmit story (summarized in footnote 40), as the
heroine of that story obtains an audience with the king by
disguising herself as a male plaintiff.
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24 Law, Culture and the Humanities 0(0)
dynamic in question. There is, in short, only so much the story
literature can reveal of the history of legal consciousness in
premodern India, given the nature of the works exam-ined and the
authors who composed them.
V. Conclusions
Studies of the relationship between law and literature in
premodern India have to date been largely limited to the question
of whether the literary sources conform to or deviate from the
religio-legal texts of Dharmastra. Though we have noted in several
places parallel terms, phrases, and ideas between medieval stories
and dharma texts, we also think it a mistake to focus on such
parallels, because the Dharmastra was not itself the law but rather
a meta-discourse with which to think about the law.58 We suspect
that stories like the ones presented here relied heavily on the
jurisprudence and legal termi-nology found in Dharmastra,59 but by
putting these ideas to work in narrative contexts they changed both
the effect of the ideas and what we may today learn from them.
Dharmastra, like all stra, is notoriously non-narrative, and
records of court cases in premodern India are exceedingly rare.
Literary sources often contain views of the law that are
unavailable in normative, systematized legal texts. To gain access
into the narra-tive perspective on law, into how law was expressed
as story in medieval India, we have turned to these illustrative
narrative examples.60 Medieval historians have long seen the value
of comparing legal and literary sources, and many have now directed
their work to the subfield of law and literature.61 Stories have
didactic, psychological, and emotional effects that are difficult,
if not impossible, to achieve in systematic jurisprudence. The
study of those effects yields insight into Ewalds law in minds, the
legal consciousness of the author and the audience. The examples
given here are only a small fraction of the narratives dealing with
legal matters to be found in the classical Indian sources. We
hope
58. Olivelle, Manus Code of Law, pp. 626.59. We suggest again
that the relationship is both intertextual and resultant from a
common
source in practice outside the texts.60. Peter Brooks and Paul
Gewirtz, eds., Laws Stories: Narrative and Rhetoric in the Law
(New
Haven, CT: Yale University Press, 1998) contains an excellent
collection of essays on the role of story in the law.
61. The classic starting point in law and literature is James
Boyd White, The Legal Imagination: Studies in the Nature of Legal
Thought and Expression (Boston, MA: Little, Brown, 1973), which
incorporates a host of premodern sources in its pages. For more
specific studies, see John Alford, Literature and Law in Medieval
England, PMLA 92(5) (1977), pp. 94151; Richard Firth Green,
Medieval Literature and Law, in D. Wallace, ed., The Cambridge
History of Medieval English Literature (Cambridge: Cambridge
University Press, 1999); Ruth Macrides, The Law Outside the
Lawbooks: Law and Literature, Fontes Minores, Vol XI. ed. L.
Burgmann. Forschungen zur Byzantinischen Rechtsgeschichte.
(Lwenklau, Gesellschaft E.V. Frankfurt, 2005); and Whitney Cox,
Law, Literature, and Politics in Medieval India, in T. Lubin, D.R.
Davis, Jr., and J. Krishnan, eds., Hinduism and Law: An
Introduction (Cambridge: Cambridge University Press, 2010),
pp.16782.
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Davis and Nemec 25
future studies will add to the storehouse of information and
interpretive insights avail-able through reading these stories with
the law in mind.
We have focused first on the psychological or attitudinal
aspects of legal conscious-ness that are found in narrative but not
in jurisprudence. Insights into the everyday awareness of the law
in medieval India are so rare that we felt compelled to present
what the stories say about peoples attitudes toward the law. At the
same time, we have tried to comment upon what Silbey, following
White, calls the constitutive aspects of legal con-sciousness, that
is the role of consciousness and cultural practice as communicating
factors between individual agency and social structure rather than
expressions of one or the other.62 For example, we have drawn
attention to the way in which assumptions or predictions about how
the court will behave structure all the stories at some level.
Sasthnakas interactions with the court amount essentially to
bullying and are pre-mised on his assumption that as the kings
brother-in-law he can use his position to legal advantage. iva and
Mdhavas entire plan rests on a drawn-out sequence of actions
designed specifically with the courts predictable verdict in mind.
The cultural practice of the fast-unto-death similarly exceeds the
realm of individual agency while making claims upon, without
controlling, existing social institutions, namely the royal court.
In every story, therefore, we find evidence of the mediating role
that legal consciousness played not only in guiding the actions of
the individual characters portrayed but also in influencing
procedures and outcomes at the institutional level of the
court.
One notable common feature of these stories is their setting in
the court. Dharmastra texts also portray a kings court, staffed by
Brahmin judges, as the normal institutional location for legal
matters, but other historical evidence both within and outside the
texts suggests that many legal matters were dealt with in communal
groups and associations beyond the state.63 The ready availability
of these and similar stories appears, however, to confirm the
historical practice of trial and judgment in royal courts. Given
the frequent reference to writing in the stories, we still have to
wonder why we have so few surviving examples of court records or
legal documents from premodern India. On the basis of these
stories, however, we may at the least say the kings court was one
important social location of the law in this period.
Aside from the smaller details of legal consciousness found in
the stories, a general lesson to be learned from the study of
law-related narratives in medieval India is the prevalence of a
notion of legality. In his justly enduring study of law in
classical India, Robert Lingat famously wrote, The classical legal
system of India substitutes the notion of authority for that of
legality.64 As others have noted, Lingat has surely overdrawn the
line of demarcation between authority in the East and legality in
the West.65 Nevertheless, the clear evidence of quite familiar,
that is Western in Lingats terms, notions of legal-ity in the
stories examined here is worthy of further comment.
62. Silbey, Legal Culture, p. 8627.63. Donald R. Davis, Jr.,
Intermediate Realms of Law: Corporate Groups and Rulers in
Medieval
India, Journal of the Economic and Social History of the Orient
48(1) (2005), pp. 92117.64. Lingat, Classical Law, p. 258.65.
Timothy Lubin, Indic Conceptions of Authority, in T. Lubin, D.R.
Davis, Jr. and J. Krishnan,
Hinduism and Law: An Introduction (Cambridge: Cambridge
University Press), p. 142; and Lariviere Dharmastra, pp. 61315.
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26 Law, Culture and the Humanities 0(0)
In the Rjataragi, the question of legality, here a strict
adherence to the letter of the law and to stare decisis, is at the
center of both stories. The wise king may see through the
corruptions of the law and legal process, but he does so in a way
that leaves the legal-ity of the applicable rules intact, just not
applicable in these cases. Contracts still bind people generally,
but the documents and the individuals attesting to them must be
both upright and forthright. The legal test has two prongs: the
contracts themselves must be valid and the circumstances of their
production must also be legal.
In a technical sense, even our example from the Kathsaritsgara
confirms the same idea of legality, even though it is also a story
about the moral manipulation of legality. iva and Mdhava
intentionally deceive the courtier, but every one of their actions
is in and of itself legal. As a result, both the receipts attesting
to the sale of the jewels and the circumstances under which that
sale occurred were legal. That an underlying motive to defraud the
courtier also existed prior to all these legal actions is crucial
for the context of the story in the overall text, but irrelevant
for the embedded consciousness of legality that moves the story
forward.
To conclude, the consciousness of the law in the stories
discussed here reminds us of that found in some Indian folklore
examples.66 Consciousness of legality begins from an awareness that
courts defend the rich and the system of justice serves those who
can manipulate it to their advantage67 but also gives people a
powerful ability to speak against authority for its failure in its
responsibility of representing dharma.68 Within this range, law is
centered institutionally on the figure of the judge.69 Rules of
positive law are held to have binding effects, even as they are
also subject to scrutiny and modifica-tion by the court and/or to
manipulation by the litigants. Legal actors fear the injustice that
the legal process can sanction and turn to moral appeals for
remedy. In all of this, we are in the face of a literarily
developed notion of legal consciousness and of legality. However,
we argue for the likelihood that this literary construction
congrued consider-ably with the contemporary consciousness of legal
practice. From the abundant reference to and the reliance on a
notion of legality in medieval Indian narratives, therefore, we
hope that Lingats powerfully framed denial of legality in the
classical law of India may finally be put to rest. We can and
should learn much more about the history of law in India from
literature, not only in Sanskrit but in other Indian languages. We
hope this essay is just a first step toward a more nuanced history
of legal consciousness and prac-tice in classical and medieval
India.
Acknowledgements
We acknowledge with thanks the helpful input of Mitra Sharafi,
Kirin Narayan, and the two anony-mous reviewers of the journal
whose critical remarks improved the essay greatly.
66. Velcheru Narayana Rao, Courts and Lawyers in India: Images
from Literature and Folklore, in Y.K. Malik and D.K. Vajpeyi,
Boeings and Bullock-carts: Studies in Change and Continuity in
Indian Civilization, Vol. 3 (Delhi: Chanakya Publications, 1990),
196214.
67. Narayana Rao, Courts, p. 202.68. Narayana Rao, Courts, p.
200.69. Narayana Rao, Courts, p. 209, confirms that judges are
viewed with respect even when
[they] fail to deliver justice.