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

35 Pages Posted: 26 Aug 2011 Last revised: 10 Sep 2015

See all articles by Timothy Lubin

Timothy Lubin

Washington and Lee University; Washington and Lee University - School of Law

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Date Written: June 15, 2015


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." This article addresses the implications of writing for customary or regional law in South and Southeast Asia. The textual tradition of Dharmaśāstra ("Hindu law"), which canonizes a particular model of Brahmin customary norms, can certainly be called a "scholarly" exercise, and it was also intended as propaganda for the Brahmanical cosmopolitan world order. But it also formulated a procedural principle to recognize the general validity of other, even divergent, customary norms, though for the most part such rules remained lex non scripta. On the other hand, inscriptions provide evidence that writing was used for diverse legal purposes and offers glimpses of actual legal practice. In these records, customary laws are sometimes laid down as statutes by decree of a ruler or community body, or are simply invoked as long-established customary rules. But even when Dharmaśāstra texts are not directly cited, their influence over the longue durée is discernable in the persistence of śāstric legal categories and terms of art. This influence is even more evident in Java, where legal codes on the Dharmaśāstra model were composed in Javanese, and where the inscriptions came to exhibit a closer connection with śāstric discourse than is found in India.

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

JEL Classification: K10, K40

Suggested Citation

Lubin, Timothy, Writing and the Recognition of Customary Law in Premodern India and Java (June 15, 2015). Washington & Lee Legal Studies Paper No. 2011-18. Available at SSRN: https://ssrn.com/abstract=1916355 or http://dx.doi.org/10.2139/ssrn.1916355

Timothy Lubin (Contact Author)

Washington and Lee University ( email )

204 W Washington St
Lexington, VA 24450
United States
540-458-8146 (Phone)
540-458-8498 (Fax)

HOME PAGE: http://lubin.academic.wlu.edu/

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States
540-458-8146 (Phone)
540-458-8498 (Fax)

HOME PAGE: http://law.wlu.edu/faculty/wandl-affiliated-faculty/timothy-lubin

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