Legal Consciousness in Medieval Indian Narratives

I. A Note on Method

The examples provided herein are by no means exhaustive. They illustrate what we deem to be a pattern, but we make no grand claim to represent any tradition entirely, nor do we pretend to have unearthed previously unknown material. We do believe, however, that the approach employed here will prove to be sufficiently illuminating to be replicated with other sources. In this way, a more comprehensive picture may emerge of law as it was represented in different texts and as it was understood in various regions of South Asia.

The pioneer of our approach was Ludwik Sternbach, whose many studies of Sanskrit narrative literature connected both directly and indirectly with his studies of classical Indian law. ¹² Sternbach’s careful textual analyses of the well-known collection of political animal fables called the Pañcatantra aimed to demonstrate the consonance of literary depictions of legal matters in the narratives with the rules of the normative jurisprudential texts in Sanskrit called Dharmaśāstras or smṛtis. While convincing as to the intertextual connection of these two genres, Sternbach’s general conclusion is not persuasive:

If we compare the juridical rules contained in the Smṛti-s with those contained in various versions of the Pañca[tantra], we must come to the conclusion that all these juridical problems … were pictured in the Pañca[tantra] in accordance with the legal rules contained in the Smṛti-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 Pañcatantra may be read as direct evidence of the “daily life” of “lay-men.” Both of Sternbach’s conclusions presuppose the general understanding of legal consciousness as congruence between awareness, rule, and practice while eliding any awareness of a power-driven dissonance between textualized rules and historical practice.

Essentially, Sternbach avoids a critical approach to the nature of the texts he analyzes. He takes into account neither the fact that the works were authored by Brahmins nor that their intended audiences included fellow Brahmins and privileged members of society – those associated with the king, the royal court, and the various institutions used to exercise temporal authority. Both of Sternbach’s conclusions are better explained by the narrative strategies of those 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 Pañcatantra nor the Dharmaśāstra represents an undistorted historical reality of daily life; and the depictions of ordinary “lay-men” in the Pañcatantra should not be read as true and straightforwardly accurate portrayals of either legal practice or contemporary legal knowledge of Dharmaśāstra. ¹⁴

Our approach differs from Sternbach’s in two ways. First, we are acutely aware that the legal consciousness depicted in the selected Sanskrit narratives belongs first to the class of literate Brahmin authors that dominate Sanskrit writing from beginning to end. The works we analyze reassert Brahminical privilege, royal authority, and the other social institutions invested in the self-preservation and reproduction of such privilege and authority. We therefore limit our conclusions accordingly by speaking of the imagined reality possible in the depictions of legal consciousness made by this group. While we are interested in congruences of legal consciousness and practice, we are 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 Silbey’s 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 Dharmaśāstra, 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 to their intended audiences. These assumptions, in turn, point to the nature of legal practice in premodern South Asia, at least as it is depicted in the story literature here examined.

II. Two stories from Kalhaṇa’s The River of Kings

We turn first to the Rājataran.giṇī (RT), or The River of Kings [of Kashmir], by Kalhaṇa, a court poet of the Kashmiri king Jayasiṃha (r. 1128–1149). The RT is regularly counted as the first explicitly and self-consciously historical work of Sanskrit literature, one written in the Kashmir Valley in the twelfth century. The work makes use of a hybrid array of sources, including local folk tales, and scholars generally agree that the work is not entirely historically accurate in all of its details. ¹⁷ On the one hand, scholars have generally accepted that Kalhaṇa’s 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 Kalhaṇa, and there are clearly a number of places where the text records stories that are unlikely to have simply reproduced historical events. ¹⁸

It bears reiterating that our analysis seeks to identify the legal consciousness reflected in the narratives selected, and we will not here concern ourselves with the historical accuracy of the stories we examine. Rather, we are interested in how they might have been received by their intended audience and what they can tell us of the conscious and unintended representations of legal consciousness when they were written. Two stories in particular merit attention for the insight they give into the legal procedures practiced in the courts and the legal consciousness evinced by the narratives. Both extoll the virtues of a thoughtful and just king, Yaśaskara (r. 939–948).

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 the plaintiff. In order to win the attention of the king in this instance, the aggrieved man undertakes a fast-unto-death (prāyopaveśa).

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 [people’s] 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 stake ¹⁹ for this: I have not sold the well with the stairs.

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 defendant’s 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 merchant’s house, handing him the ring, so that he might be recognized.

6.36. Showing the ring, this attendant asked the merchant’s 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 dīnnāras which had been given to the official recorder (adhikaraṇa-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.

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 Dharmaśāstras, it is by no means congruent in all respects with legal procedures described in Dharmaśāstra such that we might say, as Sternbach did, that the story depicts the “application” of Dharmaśāstra. On the one hand, the RT confirms that the legal vocabulary and jurisprudence of the Dharmaśāstras were the usual and normal points of reference in other textual genres for describing and discussing matters of law. ²² On the other, Dharmaśāstra 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 Dharmaśāstra 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 plaintiff’s 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” (antarātman), 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 Yaśaskara was exceptional for exhibiting unusual concern for the interests of an otherwise uninfluential subject. Implied but unstated is the notion that the legal system could be expected regularly to function without regard for the “little man” who might be hurt by those who were savvy enough and sufficiently capable to falsify documents and game the system. Notably, there is no question that the law itself is correct, in particular that a man may 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 man’s wife, is ignored in the king’s verdict. Though the man does feel grief and anger for his wife’s plight, he seems more concerned with the fact that his legal wishes were deceitfully left unfulfilled. The silence of the narrative speaks more forcefully about the legal consciousness represented in the text, and presumably shared, in some measure at least, by its audience than does the major theme recounted in the episode. For, the purpose of the story – to praise Yaśaskara – would be undermined if any real concern for the plight of the merchant’s wife were felt by the audience. Similarly, the story witnesses a criminal accomplice of the story, the legal recorder, seemingly to arrange the medieval equivalent of a plea bargain (dattvābhayam) – 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 story’s proper resolution.

Though the text does not criticize the possible complicity or at least the negligence of the Brahmin judges, they seem at minimum to be unwitting accomplices. But they, too, go scot-free. Perhaps this is to be expected: no sound legal system could regularly condemn the integrity of a lower-court judge for reaching a wrong decision. This would call into question the legitimacy of the lower courts, instead of positively recognizing the importance and justice of a right to appeal. Regardless, the Brahmin judges are depicted as being bound by the letter of the contract that is presented to them, despite the fact that the proof-of-sale was doctored. This fidelity to the letter of the law, despite the injustice it perpetuated, is of course precisely the legal conundrum the heroic and wise king is said to overcome. The audience who heard this story must have understood that the law in practice served the interests of those with know-how and with power, and that the system, perpetuated by legal officers such as the Brahmin judges in the story, was impeded by legal procedures from rectifying apparent injustices. Even the king uses his guile to seek hard evidence, according to the story, before overturning the ruling that was held up repeatedly in the courts. The fact that he had to “convince the councillors” (6.40) to justify the reversal suggests that the king with all his authority nevertheless had to adjudicate the legality (however corrupted) of the transaction in order to rectify the injustice.

Immediately following this episode in the River of Kings is another story meant to praise the same king for his wisdom in interpreting dharma. In this instance, the king surprises the court by overturning the letter of a verbal contract in favor of a Brahmin who was clearly wronged by a conniving underling. The Brahmin had earned a hundred gold coins while abroad and was returning home, when the coins accidentally dropped into a deep well from where he had them tied in his lower garment.

An unidentified man then offered to help the Brahmin retrieve the coins, asking what he might get in return. The Brahmin mistakenly replied, “Whatever seems right to you, 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 Yaśaskara, transactions (vyavahārāḥ) depend upon the letter of the contract.” ²⁵ The next day the king confirmed the Brahmin’s 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 cliché 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 king’s 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 (lokaiḥ) 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 vyavahāra 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 Brahmin’s words.” ²⁷ Unlike the people, however, the king possesses the ability to discern the difference between relying on others to make good on their word and actual facts of the case. ²⁸ From this statement, we learn that the legal principle of fulfilling contracts to the letter remains in force, but it must be tempered by a consideration of the relevant facts in a given case. (Perhaps this may be counted as a legal equivalent of a modern-day covenant of good faith and fair dealing in medieval Kashmir.) The king’s resolution exemplifies the approach of legal realism by privileging the unintentional quality of the Brahmin’s misstatement over the desire to enforce contracts to the letter. In this sense, the point of the story is to rectify the misguided legal consciousness of the people by teaching them to qualify their application of the letter of the law according to circumstance.

The manner in which both of these cases from the RT come before the king also tells us something about the legal consciousness of the author of the text and the characters he describes. Neither victim finds any redress through the normal legal channels. The man defrauded of his well is rebuffed by the Brahmin judges who, like the people in the second story, focus only on the visible letter of the deed of sale. The man swindled out of most of his gold coins appeals to the people who witnessed the event, only to be told that his clumsy statement now bound him legally. In order to pursue their claims further, both victims have to resort to the threat of suicide by fasting. The classical Sanskrit expression for this fast-unto-death (prāyopaveśa) is mirrored in a number of regional languages, even in the present day, e.g. dharnā in Hindi, paṭṭini in Malayalam and Tamil, ²⁹ and the practice is also narrated in other, roughly contemporaneous Kashmiri works. ³⁰ How should we interpret these mentions of fasts-unto-death in terms of legal consciousness?

On the one hand, this dramatic act simply sets a good stage for the rest of the story. It signals literarily the desperation of the two victims and the emotional burden of their plight. On the other hand, it appears also to suggest, if not state explicitly, the potential or real difficulties of finding justice through normal legal processes. We are tempted, therefore, to see in the framing of these stories a general sense that ordinary legal procedures are rife with injustice, that things are stacked in favor of the powerful manipulators of legal rules. As a result, only an extraordinarily wise and caring king can check the otherwise rampant and expected corruptions of justice done in the name of the law. At this point, we may have in the RT at least some criticism of the ideologies and power structures of the law that form part of the more specific legal consciousness of law in its constitutive relation to other social forces.

Similar to one powerful view of law in modern America, the victims of legally sanctioned injustice in the River of Kings “feel virtually incapacitated” and have to resort to “subterfuges and evasions” and “minor forms of resistance [that] typically leave the law unchallenged and unchanged.” ³¹ A fast-unto-death may not seem minor, but the point is that it is not a collective or systemic act. The inclusion of the fast-unto-death in both stories indicates an awareness of the obstacles to appeal and access to justice that limits individuals’ legal responses to idiosyncratic acts. If so, we are beginning to see a more complicated picture of legal consciousness as it is articulated in these medieval narratives.

III. A Story from Somadeva’s The Ocean of Rivers of Stories

If the River of Kings purportedly conveys historical events as they occurred, the nearly contemporaneous Kathāsaritsāgara (KSS), or The Ocean of Rivers of Stories, is explicitly a work of fiction. Said to have been written by a Kashmiri court poet named Somadeva for the pleasure of Queen Sūryamatī, the wife of a king named Anantadeva (r. 1028–1063), this enormous collection draws self-consciously upon an extensive series of stories found in the Bṛhatkathā (“The Great Romance”), an old compendium that boasts of a wide-ranging influence on story literature in medieval South Asia and that is said to have been composed by one Guṇāḍhya in Paiśācī, 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 Brhatkathā is also in question, because the latter work is now lost. Despite the fact that Somadeva likely borrowed regularly from the Bṛhatkathā 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 Somadeva’s day. This is so because, while it is true that many of the many motifs of the KSS surely appeared in the Bṛhatkathā, there is a great deal of disparity in the ways the various subsequent renderings of the Paiśācī compendium present these stories; ³³ and Somadeva’s rendering of the various stories is clearly his own. This is to say that the text as we have received it reflects the Zeitgeist and, like the RT, can inform us of contemporaneous attitudes toward the law and legal matters in medieval Kashmir.

We turn then to a story of deception and financial fraud perpetrated on an unsuspecting but arrogant Brahmin courtier. The KSS recounts the tale of two con-men, Śiva and Mādhava, 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 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-heroes’s actions draw the reader into an intricately woven plot of deception. Śiva and Mādhava’s 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 let’s move now to Ujjain where we hear there’s a minister of the king named Śaṅkarasvāmin who is super-rich. With the money we steal from him we can finally come to appreciate the charms of the women here in Mālava.” ³⁵ After hatching their plan, they set out for Ujjain, where Mādhava will, accompanied by a host of paid accomplices, impersonate a noble Rajput (rājaputra), while Śiva will take the disguise of a religious ascetic. Śiva enters the town first and begins to practice the severe austerities characteristic of a holy world-renouncer: prolonged meditation and prayer, fasting, and purposeful mortifications of the body. After a long time, Śiva’s extreme austerities earn him a reputation as a great ascetic, and the people of the town become devoted to him. ³⁶

Mādhava, for his part, then enters the city with his entourage. Settling in, he pays homage to the holy ascetic, Śiva, and then sends his attendants to the Brahmin minister Śaṅkarasvāmin 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, Mādhava is offered an audience first with Śaṅkarasvāmin and through him with the king himself. The greedy Śaṅkarasvāmin then invites Mādhava (with the king’s permission) to stay in his home, where he hopes the nobleman will continue to shower him with offerings. Installed in Śaṅkarasvāmin’s house, Mādhava strategically places a huge vault in his new residence to entice Śaṅkarasvāmin with glimpses of a hoard of false gems and jewels contained inside. After several days, Mādhava pretends to become ill and, fearing his death, asks Śaṅkarasvāmin to bring him a worthy Brahmin on whom he can bestow his fortune. ³⁷

First rejecting a series of Śaṅkarasvāmin’s candidates (all apparently householder Brahmins), Mādhava eventually accepts the advice of a conspiring attendant to invite the now-famous and supposedly accomplished Brahmin renunciant, Śiva, to receive the fortune. Śaṅkarasvāmin consents to the plan and meets Śiva at Mādhava’s request in order to convince him to accept the dying man’s gift. Śiva, 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 Śaṅkarasvāmin coaxes him by raising a matter of dharma, suggesting that one cannot become an ascetic without traversing the āśramas, stages of life, in their appropriate order, with the householder stage preceding that of renunciation. ³⁸ Śiva 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, Śaṅkarasvāmin offers Śiva his own daughter’s hand in marriage on the spot. And in the midst of protests that he knows nothing of either women or money, Śiva of course consents to the plan.

Mādhava, in turn, deems this soon-to-be married ascetic worthy of receiving his dying gift, and Śiva is married and subsequently takes control of the fake fortune, immediately entrusting it to Śaṅkarasvāmin for safekeeping. The group lives together for some time, and Mādhava progressively recovers from his feigned illness, crediting Śiva’s auspiciousness as the cause of his rejuvenation. One day, Śiva suggests to Śaṅkarasvāmin that since he has been a tremendously generous host, Śiva 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 Mādhava), and so he suggests that Śaṅkarasvāmin purchase his fortune of gems and jewels in return for a fair price. (It is implied in the narrative that Śiva will spend the cash he is given to maintain himself from that point forward. ³⁹ ) Thinking the hoard to be valuable beyond measure, Śaṅkarasvāmin purchases the jewels from Śiva with all his current wealth, as he intended to pocket a profit on reselling the jewels to another. And he insists that Śiva sign a receipt acknowledging the terms of the transaction. ⁴⁰

When the cash-strapped minister eventually tries to sell one of the jewels in town, however, he is told that it is a fake made of glass, rock, and brass, as are all the other jewels in the vault. Śaṅkarasvāmin confronts Śiva about the fraud, but Śiva claims that the money he was paid for the jewels was already spent on his own maintenance. So, as a king’s minister, Śaṅkarasvāmin takes the matter to the court, where both Śiva and Mādhava present their carefully contrived defenses. Śiva first:

King, from my childhood I have been an ascetic, and I was persuaded by that man’s 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 king’s power to grant me help in my deep need. ⁴¹

Then Mādhava:

Do not claim this. You’re a respectable man, but what fault have I committed in this matter? I never received anything either from you or from Śiva; 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 Śiva nor Mādhava has done anything illegal (anyāyataḥ). (Crucially, none of Śiva or Mādhava’s pivotal actions – gifting one’s possession to a Brahmin, renouncing austerities to marry, selling one’s possessions for an agreed-upon price – is of itself illegal.) Then the whole court – king, ministers, and judges – all laugh to themselves (sāntarhāsam) as the defeated Brahmin minister skulks out of the court. Śiva and Mādhava 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 Śiva and Mādhava. 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 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 Śaṅkarasvāmin is impressive. A score of people are involved; a huge investment of capital was required to present Mādhava with his entourage; Śiva engaged real and longlasting austerities to gain a local reputation; Mādhava earned Śaṅkarasvāmin’s trust, as well as that of the king, only gradually, and he cultivated Śaṅkarasvāmin’s greed carefully and slowly; and, finally, Śiva went through with a real marriage to perpetuate the final, deceptive transaction. All of this was done in explicit anticipation of the inevitable trial before the king; and every element is meticulously put into place to guarantee the legally unassailable defenses offered at the end of the story. Though clearly the product of a creative storyteller, such an elaborate ruse could make no sense to the audience unless there existed an available and plausible legal consciousness about the sometimes inescapable nature of the legal process. The storyteller deftly creates the complex plot, but he does so with the certain end of the unimpeachable legal defenses in mind. Like the two rogues, the storyteller also counts on the existence of a rigid legal process and the inevitable necessity for the enforcement of the letter of the law to spin his tale.

The awareness, even hyper-awareness, of the inner workings of the law further shows that the legal consciousness of this medieval author was such that he could imagine a complex plot driven wholly by two laymen’s 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 people’s 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 Śaṅkarasvāmin, is immersed in the law’s vision of justice and the apparent limitations imposed by the mechanical constraints of the law. In fact, Śiva and Mādhava 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.

We close our discussion of the KSS by noting that we again see here a certain blindness to the limitations and indeed the inherent inequity of the law, be it in its strictly legal features or in the exercise of the king’s authority. Śaṅkarasvāmin, for one, fecklessly employs his daughter as an instrument for acquiring wealth, offering her hand in marriage to a stranger for the promise of jewels and the like, without a single mention in the story of the inequity and indeed injustice of the arrangement. While the reader is left with something of a sense of satisfaction in knowing the greedy Brahmin is not rewarded for his intrepid avariciousness, there is no sense of regret for the unfortunate circumstances it begets his daughter. In fact, we are not even told what becomes of her after Śiva and Mādhava beat the rap for their clever con. Whatever one’s sense of the relationship of authority to legality in medieval India, then, the story’s 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 Śūdraka

While the stories from the RT and KSS undoubtedly shed light on the legal consciousness that existed in the Kashmir valley of the eleventh and twelfth centuries, we hesitate too quickly to draw far-reaching conclusions from them. All the works are after all products of a Brahminical elite that had its own interests, particular habits and customs, and indeed its own norms to uphold, follow, and reinforce through such writings. And these Brahminical mores are shared across regions and over time in South Asia, even if neither Brahminical culture nor Brahmins are by any means uniform or homogenized entities. Enough of a shared culture and purpose existed in Brahminical circles to require us to examine these documents in relation to other similar, datable works should we wish to isolate particular elements of legal consciousness and locate them in particular regions or periods of time. Though such a full chronological and comparative study lies beyond the scope of the present essay, a brief examination of what is often counted as the earliest narrative depiction of a court scene in Sanskrit literature may serve as a useful point of reference from which to measure the contributions of the Kashmiri sources.

We refer to the ninth act of the famous Sanskrit play of Śūdraka, the Mṛcchakaṭika, 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 Saṃsthānaka, son-in-law to the king, desires the courtesan Vasantasenā, who is in love with the generous Brahmin Cārudatta. Fleeing Saṃsthānaka, Vasantasenā takes refuge in Cārudatta’s home and entrusts her ornaments to him. A burglary, a lie, and a gift put the ornaments in, out of, and again into Cārudatta’s home. Intending to meet Cārudatta for a tryst in the park, Vasantasenā is instead accosted and strangled by Saṃsthānaka (to death, he thinks), who then takes advantage of political unrest and a prisoner escape to frame Cārudatta for the crime. Saṃsthānaka 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 judge’s 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. They’ll bring up a mysterious matter that has already been thrown out of court, they are so fired with litigious passions that they gloss over their own weaknesses, and if there is a judicial error, which both parties are quick to inflate, the king himself becomes involved. Indeed – to sum up, it is easier to blame a judge than to find virtue in a witness. For a judge must not only know the law, ⁴⁷ but also be expert in detecting deceptions. He should be eloquent without anger, impartial to friend, foe, and kind, and pronounce judgment only when he has considered the facts. He must protect the shy and bully the clever, and he himself must be a just man and incorruptible … If there is a way, he must direct his mind to the deeper truth and at the same time avoid angering the king. ⁴⁸

In this speech, the judge is aware of two factors that complicate and compromise the pristine quality of the law. First, a case may be manipulated by deceptive or aggressive litigants and witnesses. Second, perceptions of judicial error can cause a king to intervene. Still, the judge insists that a judge must focus on the facts first and approach the case with realism in the legal sense, that is a concern for truth over blind adherence to legal rules. ⁴⁹ Already, we see the play’s author relying on a consciousness of two potential pitfalls in the legal process as foreshadowing the events about to unfold.

When Saṃsthānaka enters demanding to have his case heard, first the attendant and then the judge suspiciously curse the fact that the king’s brother-in-law has presented himself to the court. Though initially rebuffed by the judge, Saṃsthānaka threatens exactly the biased intervention of the king feared by the judge in his speech. As a result, his case is allowed to be heard, and this convinces Saṃsthānaka that he can intimidate and deceive the judge: “First they say it won’t 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 Saṃsthānaka requires an awareness that manipulation and corruption of the law is possible.

In laying out his false account of Vasantasenā’s murder (who did not in fact die), Saṃsthānaka mistakenly attributes the crime to “some vile person” who strangled her “just for money,” clumsily blurting out then, “I didn’t do it.” The judge notices this immediately and asks the court reporter to note Saṃsthānaka’s denial for the record. Through an unnecessary denial that plants a mental seed of suspicion that he could have done it, Saṃsthānaka is forced to account for how he knows that she was strangled for money. This he does to the court’s satisfaction, but the exchange is remarkable nonetheless, because it deepens the psychological insight into how a witness can manipulate a court case by controlling the information that is rendered for judicial consideration. There is a cognizance here of both restrictions on what the judge may consider and strategies for steering judicially recognized facts toward specific conclusions in law.

The most intriguing evidence of legal consciousness in the play, however, comes when Vasantasenā’s mother is summoned to the court. As an older woman, the judge is careful to instruct the court officials to treat her gently. Nevertheless, she is nervous: “I feel like fainting! My heart is beating fast.” ⁵¹ As the judge begins his questioning by asking to what friend’s home Vasantasenā went, the mother replies:

Aside from another reference to writing and recordkeeping in the court, this passage contains the intriguing statement vyavahāras tvāṃ pṛcchati: “it is the legal procedure that’s asking you these questions.” When the old woman gets nervous at having to divulge before the court the whereabouts of Vasantasenā, the judge depersonalizes the witness’s statements by personifying the trial process itself. The old woman is not to feel as if she were speaking to the judge or before other notables, but rather only to the neutral procedure of the court. To personify the trial procedure in this way is to play off an available imagination of the law as a quasi-living entity, a thing that has an objective life of its own. In this separate world of the trial, normal rules of social decorum do not apply and candid statements that may be awkward or indelicate become acceptable.

The word vyavahāra, as all the translators recognize, is used here in its technical Dharmaśāstric sense of “legal procedure, trial.” Śūdraka builds to the climax of the play in Act Ten through the contrast between the old woman’s honesty and forthrightness prompted by respect for the trial process and the Saṃsthānaka’s deception of court motivated by disrespect for its officers and the legal process itself. In this contrast, the play attests to two attitudes toward the law and legal procedure: one right and one wrong, but both known in practice. There is nothing mysterious here. The right approach to the law is to obey it, to tell the whole truth when necessary, and to root out fraud and lies. The wrong approach is to flout the law through selfish, criminal acts, to deceive legal professionals, to thwart the revelation of the truth at every turn. That the latter approach is found regularly in Brahminical texts at least acknowledges a gap between the letter of the law and its imperfect application.

The personification of the legal process in the Little Clay Cart provides insight into the general level of legal consciousness available to the poet Śūdraka and his audience, and by extension to those Brahminical authors such as Kalhaṇa and Somadeva who followed him in history. The author depicts the legal process as having a life and, therefore, an integrity of its own. Without a doubt, an uncorrupted legal process yields truth and justice, in this view. The point of the play’s 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 law’s 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 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 Śūdraka’s 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 judge’s dream –, but we also have the law as a game of strategy and promotion of self-interest. Both views are found also in the stories from the RT. Broadly, then, both RT stories agree with the dichotomous contrast of respectful, trusting observance of the law and its disrespectful, selfish manipulation found also in the Mṛcchakaṭika. Who’s corrupt and who’s 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 possibly constricting of royal authority. Like the Little Clay Cart, the Śiva and Mādhava 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 granting audience to powerful men while marginalizing women and, one feels, those without the resources to make themselves heard. ⁵⁷

In sum, a reading of the Little Clay Cart suggests that the most striking feature of the stories we have here examined is the tacit recognition, particularly in the RT stories, of the degree to which the law serves the privileged over and against the common subject. Whether this feature is the product of the genre of the RT or otherwise – it is, after all, almost unique in Sanskrit literature for being self-consciously constructed as a work of history – is open to question. It is similarly impossible to argue that Kashmir in the period in question is unique for knowing such a dimension of legal consciousness, only that the RT goes further than other works, to our knowledge, in acknowledging the dynamic in question. There is, in short, only so much the story literature can reveal of the history of legal consciousness in premodern India, given the nature of the works examined and the authors who composed them.

V. Conclusions

Studies of the relationship between law and literature in premodern India have to date been largely limited to the question of whether the literary sources conform to or deviate from the religio-legal texts of Dharmaśāstra. 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 Dharmaśāstra was not itself the law but rather a “meta-discourse” with which to think about the law. ⁵⁸ We suspect that stories like the ones presented here relied heavily on the jurisprudence and legal terminology found in Dharmaśāstra, 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.

Dharmaśāstra, like all śāstra, is notoriously non-narrative, and records of court cases in premodern India are exceedingly rare. Literary sources often contain views of the law that are unavailable in normative, systematized legal texts. To gain access into the narrative perspective on law, into how law was expressed as story in medieval India, we have turned to these illustrative narrative examples. ⁶⁰ Medieval historians have long seen the value of comparing legal and literary sources, and many have now directed their work to the subfield of law and literature. ⁶¹ Stories have didactic, psychological, and emotional effects that are difficult, if not impossible, to achieve in systematic jurisprudence. The study of those effects yields insight into Ewald’s “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 future studies will further open the storehouse of information and interpretive insights available through reading these stories with the law in mind.

We have focused first on the psychological or attitudinal aspects of legal consciousness that are found in narrative but not in jurisprudence. Insights into the everyday awareness of the law in medieval India are so rare that we felt compelled to present what the stories say about people’s attitudes toward the law. At the same time, we have tried to comment upon what Silbey, following White, calls the constitutive aspects of legal consciousness, that is “the role of consciousness and cultural practice as communicating factors between individual agency and social structure rather than expressions of one or the other.” ⁶² For example, we have drawn attention to the way in which assumptions or predictions about how the court will behave structure all the stories at some level. Saṃsthānaka’s interactions with the court amount essentially to bullying and are premised on his assumption that as the king’s brother-in-law he can use his position to legal advantage. Śiva and Mādhava’s entire plan rests on a drawn-out sequence of actions designed specifically with the court’s 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 a royal court. Dharmaśāstra texts also portray a king’s 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 king’s 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 Lingat’s terms, notions of legality in the stories examined here is worthy of further comment.

In the Rājataraṅgiṇī, the question of legality, here a strict adherence to the letter of the law and to stare decisis, is at the center of both stories. The wise king may see through the corruptions of the law and legal process, but he does so in a way that leaves the legality of the applicable rules intact, just not applicable in these cases. Contracts still bind people generally, but the documents and the individuals attesting to them must be both upright and forthright. The legal test has two prongs: the contracts themselves must be valid and the circumstances of their production must also be legal.

In a technical sense, even our example from the Kathāsaritsāgara confirms the same idea of legality, even though it is also a story about the moral manipulation of legality. Śiva and Mādhava 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 advantage” ⁶⁷ but also gives people “a powerful ability to speak against authority for its failure in its responsibility of representing dharma.” ⁶⁸ Within this range, law is centered institutionally on the figure of the judge. ⁶⁹ Rules of positive law are held to have binding effects, even as they are also subject to scrutiny and modification by the court and/or to manipulation by the litigants. Legal actors fear the injustice that the legal process can sanction and turn to moral appeals for remedy. In all of this, we see a literarily developed notion of legal consciousness and of legality. However, we argue for the likelihood that this literary construction congrued considerably with the contemporary consciousness of legal practice. From the abundant reference to and the reliance on a notion of legality in medieval Indian narratives, therefore, we hope that Lingat’s powerfully framed denial of legality in the classical law of India may finally be put to rest. We can and should learn much more about the history of law in India from literature, not only in Sanskrit but in other Indian languages. We hope this essay is just a first step toward a more nuanced history of legal consciousness and practice in classical and medieval India.