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. introduction Modern lawyers sometimes have trouble seeing custom or "folk law" as law at all, at least in a formal sense. The ninteenth-century legal theorist John Austin's classical formula held that law consists of the commands of a sovereign backed by the threat of sanctions. Custom in itself is mere habit until it is gets adopted by judges (and thus tacitly by the sovereign). 1 More recent positive law theorists have tended to insist that in the absence of a constitution, a legislative apparatus, and a bureaucratic state able to provide for enforcement, there can be no legal rules per se, only maxims or customs. To have law, said the positivists, there must be a "basic norm" (Grundnorm: Kelsen 1949) or a "rule of recognition" (Hart 1994 [1961]), that is, a rule with broad acceptance in accordance with which all other laws derive This article began as a lecture at the University of Virginia, 24 February 2011. The research was largely conducted under the auspices of the Institut français de Pondichéry during 2009-10, with the support of a Fulbright-Hays FRA fellowship. Revisions were made during the following year with a sabbatical fellowship from the American Philosophical Society and from a Lenfest Sabbatical Fellowship (Washington and Lee University). I am grateful to these institutions for their support. I have benefited from comments by
