Writing and the Recognition of Customary Law

Writing and the Recognition of Customary Law in Premodern India and Java

by Timothy Lubin – Washington & Lee Legal Studies Paper No. 2011-18

Abstract:

Explaining what made ancient Greek law unusual, Michael Gagarin observes that most 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.” Dharmaśāstra certainly can be called a “scholarly” exercise, and it was also intended as propaganda for the Brahmanical cosmopolitan world order. However, this written, scholastic tradition came to provide a model for articulating law “in principle” and “on the ground” in diverse settings even beyond India. This lecture addresses the implications of writing for customary or regional law in South and Southeast Asia. Dharmaśāstra (“Hindu law”) canonizes a particular model of Brahmin ācāra, and as a procedural principle recognizes the general validity of other, even divergent, customary norms, but does not actually promulgate them as justiciable statutes. From the point of view of Śāstra, such rules remain lex non scripta. However, there are a couple of modes in which writing came to play a role in the “recognition” (in Hart’s terms) of customary norms as legal rules: (1) in documents and inscriptions (lekha, pattra, vyavasthā); and (2) in regional adaptations of the Dharmaśāstra genre. The functions of these two broad modes differed but also overlapped, especially in Southeast Asia. I argue that the interplay between them fostered the emergence of formal legal institutions tied simultaneously to the administrative and judicial apparatus of a state and an overarching, transregional conception of legitimate authority.

Keywords: writing, recognition, custom, customary law, comparative, ancient law, India, Java, Hindu, Indic

 

The full paper is available on SSRN

 


 


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