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Union Academique Unione Accademica Internationale Nazionale UNION ACADEMIQUE UNIONE ACCADEMICA INTERNATIONALE NAZIONALE CORPUS IURIS SANSCRITICUM ET FONTES IURIS ASIAE MERIDIANAE ET CENTRALIS A Series on Social and Religious Law edited by Oscar Botto Volume V The Series is sponsored by Fondazione CRT UNION ACADÉMIQUE UNIONE ACCADEMICA INTERNATIONALE NAZIONALE CORPUS IURIS SANSCRITICUM ET FONTES IURIS ASIAE MERIDIANAE ET CENTRALIS A Series on Social and Religious Law edited by Oscar Botto Scientific Committee President Oscar Botto (Torino) Vice President Siegfried Lienhard (Stockholm) Members Colette Caillat (Paris) Oskar von Hinüber (Freiburg) Patrick Olivelie (Austin, Texas) Irma Piovano (Torino) Akira Yuyama (Tokyo) Editorial Board: Corpus Iuris Sanscriticum et fontes iuris Asiae Meridianae et Centralis, c/o Cesmeo, Via Cavour 17, 10123 Torino (Italy); President: Irma Piovano. THE BOUNDARIES OF HINDU LAW TRADITION, CUSTOM AND POLITICS IN MEDIEVAL KERALA by Donald R. Davis, Jr. Torino 2004 © 2004 Copyright: Comitato “Corpus Iuris Sanscriticum et fontes iuris Asiae Meridianae et Centralis”, Torino (Italy). ISBN: 88-87828-06-7 Finito di stampare nel dicembre 2004 dalla Stamperia Artistica Nazionale, Torino, per conto del Comitato “Corpus Iuris Sanscriticum et fontes iuris Asiae Meridianae et Centralis”, c/o Cesmeo, Via Cavour 17,10123 Torino (Italy). Per rispondere al crescente interesse per l’antico diritto indiano, il Comitato Scientifico ha recentemente deliberato di ampliare l’area geografica di competenza della Collana, che ha dunque acquisito la designazione di Corpus Iuris Sanscriticum et fontes iuris Asiae Meri- dianae et Centralis, e di pubblicare, oltre alle edizioni critiche e traduzioni di testi di diritto, anche studi monografici e riproduzioni in facsimile di manoscritti rilevanti anche sotto il profilo estetico. La presente monografia, la prima pubblicata nella Collana, esamina l’applicazione della legge tradizionale Hindu nello Stato indiano del Kerala nel periodo compreso tra il XIV e il XVIII secolo e costituisce un contributo significativo sia dal punto di vista storiografico, sia da quello metodologico. In considerazione delle esigue informazioni storiche sugli ordinamenti giudiziari nell'india classica o medievale, l’Autore, Donald R. Davis, Jr., ha fatto ricorso non solo ai Dharma- sàstra e al materiale epigrafico, ma anche a importanti documenti inediti conservati negli archivi dei templi del Kerala, che si sono rivelati essenziali per l’esame dello specifico contesto storico. Oscar Botto ACKNOWLEDGEMENTS The original research and writing of this book in its form as a doctoral dissertation were completed with the generous support of a dissertation fellowship from the National Security Education Program, a University Continuing Fellowship (UT-Austin), and the Dolores Zohrab Liebmann Fellowship. This funding made all my research in India and at home possible. The initial revisions were supported by a Summer Stipend from the National Endowment for the Humanities in 2002. Portions of Chapter Six were published in the Journal of Indian Philosophy 32:5-6 (2004) and I thank Kluwer publishers for allowing me to reprint them. The final revisions were completed at the University of Wisconsin-Madison and the final draft was proofread by Chris Haskett, who caught many errors and made an important suggestion for the argument. I would like to thank the Corpus Iuris Sanscriticum for soliciting and publishing this work, especially Prof. Oscar Botto, President, and Prof. Siegfried Lienhard, Vice-President, and the other Members of the Scientific Committee of CIS. Special thanks also go to Irma Piovano, President of the Editorial Board of this series, for her efficient and gracious editing and oversight. During nearly two years in India, I worked closely with M.G.S. Narayanan who introduced me to the materials used, gave generously of his time and resources, and regaled me with stories and theories to last a lifetime. His student, Kesavan Veluthat, also read much of the manuscript and has provided much needed explanations of some of the peculiarities of old Malayalam. I also wish to thank the following colleagues and friends in Kerala, who assisted this research in various ways: Rajan Gurukkal, Scaria Zacharia, V.R. Prabodhachandran Nayar, Puthusseri Ramachandran, Rajasekharan Nair, Raghava Varier, K.K.N. Kurup, and Mani, Rāmacandran, Bharatan, and Mukundan at Sreenivas Lodge. The members of my dissertation committee, Richard Lariviere, Patrick Olivelie, Cynthia Talbot, Martha Selby, and Rodney Moag, all provided valuable suggestions for improving the argument and the organization. Lariviere and Olivelle in particular gave me the tools to critically and creatively analyze historical evidence from another world and put it together in a way that might be interesting to someone else. Lariviere suggested many improvements to the manuscript and to the general theoretical approach of the dissertation. Olivelie, in turn, helped me look at Dharmaśāstra literature in new ways through his own work and his comments on my research related to this project. I am particularly grateful to Olivelle for his continued willingness to teach me even after leaving graduate school. Finally, my wife, Mary Rader, patiently taught me how to tackle a project such as this. Her love and understanding, as well as her ability to provide an intelligent sounding board for my ideas, meant more to me than she will ever know. To Mary and to all those who gave of their time and talents to assist my work and improve my ideas, I say thanks. Donald R. Davis, Jr. CONTENTS Introduction ............................................................................................. 1 Legal History, Legal Theory, and India; Plan of the Study. Chapter One...............................................................................................25 History and Evidence in Medieval India; Temple Records in Medieval Kerala; Historical Background of Law in Medieval Kerala. ChapterTwo...............................................................................................41 Land Law and Social Order; Land Law and Law Relations in Early Medieval Kerala; Records of Land Sale; Dharmaśāstra Perspectives on Land Sales; Mortgages and Upper Caste Solidarity; Property and Social Stratification. Chapter Three.............................................................................................79 Legal Procedure and Crime; Procedures and Courts in the Resolution of Crimes; The Means and Ends of Punishment; The Policing System; Criminal Law in Dharmaśāstra. Chapter Four ........................................................................................ 103 Administrative Law: the Division of Juridical Labor; Rājas, Rulers, Rights, and Responsabilities; Temple Councils: Integrating the Universal Locality. Chapter Five.......................................................................................... 119 “Customary Law” and the Historiography of Dharmaśāstra; The Problem with Custom; Custom and Dharma in Dharmaśāstra; Custom and Law in Dharmaśāstra and Medieval India. Conclusion........................................... ■................................................ 149 Maryādā: Law In- and Out-Side of Dharma. Map of Kerala ...................................................................................... 155 Appendix .............................................................................................. 157 Glossary................................................................................................. 163 Bibliography.......................................................................................... 167 Index....................................................................................................... 183 Introduction 1 INTRODUCTION Legal History, Legal Theory, and India Comparative law depends upon the assumption that an under­ standing of differences in the world’s legal systems is the only plausi­ ble foundation for the articulation of increasingly complex interna­ tional legal orders. To say that the history of law in India is one part of the history of law in the world would seem obvious. In actuality, however, the legal history of India and other regions in Asia and Africa has been excluded from what might be called mainstream jurisprudence or legal theory in Europe and America1. Especially in historical contexts, the laws of Asian and African countries never qualify as law itself2. Instead, they are segregated by outmoded adjec­ tives like “primitive” or “native” or, equally dismissive, “non­ Western3.” Law is not unique among Asian and African social institu­ tions in receiving such treatment. 1. William Twining (2001: 185-189) describes such micro-comparative legal studies as the “Country and Western Tradition” of comparative law, i.e. comparison only of the law of nationstates and only of law in the West. 2. See, for example, Evans-Pritchard: “In a strict sense Nuer have no law” (1940: 162). See also MacCormack: “The view that China did not have law has still not entirely disap­ peared, even in the writings of well-informed scholars” (1996: xiii). Western jurisprudence, Ronald Dworkin has been the leading critic of historical, comparative approaches to law. Dworkin’s view is that, “Theories that ignore the structure of legal argument for suppos­ edly larger questions of history and society are... perverse” (1986: 14). 3. Max Gluckman discusses the theoretical problems encountered when certain “qualifica­ tions” are required of a society before it can be said to
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