Вы находитесь на странице: 1из 27

Society for Comparative Studies in Society and History

Indigenous Culture and Lawyer's Law in India

Author(s): R. S. Khare
Source: Comparative Studies in Society and History, Vol. 14, No. 1 (Jan., 1972), pp. 71-96
Published by: Cambridge University Press
Stable URL: http://www.jstor.org/stable/178061
Accessed: 08-08-2016 14:40 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Society for Comparative Studies in Society and History, Cambridge University Press
are collaborating with JSTOR to digitize, preserve and extend access to Comparative Studies in Society
and History

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

Indigenous Culture and Lawyer's Law

in India
University of Virginia

Anthropologists' view of law, as Bohannan (1963: 288) recently summarized, is generally concerned with two aspects: one studies the legal
procedures of foreign cultures and discovers and compares inquisitorial
and correctional devices, and the other focuses on basic axioms or 'postulates' underlying the stated norms or laws of a society. Bohannan amplifies
the scope by noting that not only the 'institutions of counteraction' should
be studied but also the events that precede and follow counteraction, for
the anthropologist has learnt that legal institutions are, after all, a product

of and constantly molded by indigenous culture. We are better aware of

this interrelationship in simple cultures (for examples, see Bohannan, 1957;

Gluckman, 1955, 1965; Hoebel, 1954; Llewellyn and Hoebel, 1941; Pospisil,
1958; Schapera, 1938; and Beattie, 1957). The anthropologist has attempted to compare and analyze the legal institutions of one society with
another, and tried to learn what the natives thought they ought to do, and
what they thought constituted a 'breach' of norms. How they went about
prevention and correction constituted another major area of inquiry and
description, sometimes implicitly and sometimes explicitly following
Western notions of law and jurisprudence. For example, 'case approach',
contractual relations, overt and organized counteraction for 'correction',
the dictum of 'not guilty until proved guilty', and the emphasis on partisan
'advocacy' and a 'written' code of conduct may have subtly influenced the
approach and perspectives in legal anthropology. Unless assiduously
separated, these characteristics seem to stand a much greater chance of
preconditioning anthropologists' analysis of 'native' law in complex, nonWestern civilizations, especially in those that have been systematically
exposed to Western legal procedures and have 'accepted' the system as
superimposed over the traditional adjudication measures.
India provides one such example and we will be concerned with it here in
detail. In such a pluralistic society the tendency may be to analyze and
compare the 'native' law (written or orally expressed) in terms of the

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

72 R. S. KHARE

Western system to find out how the two interrelate and influence the course

of 'court justice' (cf. the works of sociologically or anthropologically

inclined legalists, for example, Derrett, 1957, 1961a, 1961b, 1961c, 1962;
and Galanter, 1961, 1962, 1964a, 1964b, 1965 for a general discussion).
The tendency has gone further in picking up specific social issues and
examining them in terms of modern Indian legal provisions (see Rudolph

and Rudolph, 1967; Galanter, 1963a, 1968), highlighting the gaps or

relations between, for example, legal 'equality' and socially institutionalized 'inequality'.
All such studies generally exemplify macrosociological approaches and
appraisals, and have been found useful in discovering broad relations
between Indian legal institutions and general sociocultural factors. These
studies show that codified 'lawyer's law' does not exist in a vacuum; rather
it influences and is influenced by sociocultural time, space, events and their

underlying directive principles. Despite the complexity of Indian civilization, the anthropological tenet of one institution influencing all the other

ones, and in the process being itself influenced, seems to hold true. It is
precisely at this stage, I suggest, that we should start examining different

levels of conceptions of Indian legal systems in terms of their contextthat is, from close range and from the side of folk or popular culture.
This approach is not novel, as Redfield's (1955), Singer's (for example,
1955, 1959, 1961, 1966, 1969), and Marriott's (1955) works have shown

its usefulness under Indian conditions.

The application and examination of this approach to Indian law is almost entirely lacking, a seminal exception being Cohn's (1965) article,
where he begins to view lawyer's law from the side of the 'native'. Cohn's

(1965: 82-122; particularly pp. 103-15) description of'local law-ways' in a

series of Indian villages provides us with a required beginning. Although
the major intent of his paper was to review anthropological works 'on the
questions of disputes and law in India', he provides glimpses of how
villagers view lawyer's law and what are their most susceptible zones (for
example, land disputes and assaults). He also touches on what such actions
as 'going to court' mean to the villager, and briefly describes the expert
'sea-lawyers' of Senapur, who belonged to high as well as low castes; and
who 'could quote at length, by section, various of the tenancy acts and
knew the interpretation of the intricacies of the rights involved in these
acts and their loopholes and inconsistencies. One of the Thakurs, the
moneylender, took cases on speculation, that is he would advise and push
cases for a fee or a percentage of the awards' (1965: 106). (That such a
situation was briefly reported by other anthropologists is also noted by
Cohn.) However, Cohn indicates further legal arrangements or networks
that exist between villages, cities, and towns when he observes: 'In the
district courts, the lawyer's clientele of the pleaders appears to be used on

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


kinship and territorial ties. The few lawyers I have interviewed in Jaunpur
. . .stated they drew most of their cases from the part of the district from
which they came. At the train and bus station some lawyers keep touts to

bring clients to them' (1965: 107). Finally, he notes that the villager has
been involved in lawyer's law at various levels and in rather a variety of
ways, about which anthropologists know very little.

The purpose of this essay is to extend such discussion because in a

pluralistic society like India 'law' is an extremely complex category of
conceptions and interrelationships and should be approached from as
many different perspectives as possible. (On historical reasons for the
complexity, see Cohn, 1965.) 'Complexity' can be viewed from the common
man's end as well as from that of the specialist. From the latter's angle it is

a 'specialized service' much like that of medicine and public healthl and
has a team of specialists participating in an intricate formal organizationan aspect which is of marginal interest for this essay.

When viewed from the 'popular' or common man's end, lawyer's law
produces a shared and functional mass of conceptions and experiences,
and even a rudimentary social organization, which may roughly link up
with the specialist's system. Such a body of knowledge may be called the
popular image or version of lawyer's law, which is not identical with, let us

note, either Hindu Customary Law (based at least partly on 'written'

traditional sources) or lawyer's law (codified, parliament-approved laws
along with their historical 'case' antecedents). Popular versions of lawyer's

law may follow both, and then may join the system of cultural values as
well as the social structure. For example, the Western legal system has
certain definite conceptions of 'law and authority', 'law, rules, and norms',
'law and the sarkir (state)', and 'positive law and higher law'. The social
organization of lawyer's law emphasizes what sociologists call 'self-help
1 Both create or help maintain 'normalcy', one emphasizing the individual/group bodily
functions and the other concerned with the maintenance of individual/group sociocultural
norms. Both constitute 'professions' in Indian urban society. One's locus operandi is hospital
or clinic, and the other's is court and its related 'correctional' bodies. Both involve inductivedeductive procedures to come to a decision about a 'case' or a group of cases of a similar

variety (medicine or public health being more successful in 'group treatment'). Both constitute
formal complex organizations having a hierarchy of 'offices' and 'officers' organized around

the Weberian 'principles of bureaucracy' (for a summary see Etzioni, 1965). Finally, law and
medicine, as social institutions, reinforce each other whenever legal violation means, implies,
or incurs physical and/or mental, individual or group injury.
Although fully aware that the two specialities vary most conspicuously in their techniques
and modes of work, the similarities are significant and most meaningful to a social anthropologist because he gains an approach to view 'lawyer's law' from an angle which is different
from that of jurisprudence. The precedent is of course provided by medical anthropology,

where everything from social organization of a hospital to varied cultural 'patterning' of

patient, physician, and nurse (and their conceptions of sickness and remedies) has been
increasingly studied. (For a summary of anthropological efforts in Indian health field, see
Leslie, 1967: 27-42). On a similar basis, one may assume, the studies of popular cultures of
courts, bars and lawyer's 'offices' should be helpful in understanding the conception and
enactment of law under the varied influences of sociocultural change. It may tell us about

lawyers' subculture and its relationships to wider folk or unsophisticated culture and its values.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

74 R. S. KHARE

and the adversary principle', under which one is not guilty unless proved

guilty and has the rights of defense and partisan advocacy. The popular
version reinterprets all these conceptions in terms of cultural principles
and specific contexts. It expands to include shared opinions, anecdotes,
and stereotypes; it changes with the emphasis of the times. Its main function is to bridge the gulf (even if in a mythical manner) between the
specialist and the layman, whether of a city or a village. It makes the legal
process seem 'manageable' and more related to other aspects of one's life.
In the following pages, I shall describe some of the major characteristics
of the social-cultural conception of lawyer's law.2 First I shall describe
some of the shared cultural images of lawyer's law, especially how it
stands in relation to the religious dimensions of sacredness and profanity
among my informants who are of varied sophistication. I shall then show
how some social structural features have produced differential susceptibilities to lawyer's law. Finally, I shall present the informal organizational
network as it actually operates now from the villager's as well as from the
lawyer's side in the formal legal process.

Lawyer's law in India cannot be sociologically understood unless it refers

and relates itself to the sacred conception of 'Law'. The former can be
understood only in the context of the latter-a fact we shall note as we
follow the case presented here. Lawyer's law has been defined as 'the
enterprise of subjecting human conduct to the governance of rules'
(Fuller, 1964: 106), where 'rules' do not refer to 'norms' but to those that
are 'formal, explicit, and deliberately instituted'. Lawyer's law is therefore
a public, institutionalized mechanism for maintaining public order,
facilitating cooperative action, legitimizing power, authority and influence,
and defining and reinforcing rights and responsibilities. The conception of
the post-independence period in India tends to be overshadowed by the
state law and its various branches like criminal, civil, administrative, and
'common' law.

On the other hand, sacred law, expressed in a body of written codified

rules, as well as regional or local customs, may come from varied sources
including srutis (that is, the divinely inspired Vedas), Dharmashastras (law

codes), customs, and numerous interpretive schemes of later traditional

authorities (for an exhaustive account, see Kane, 1930-62; for interaction
between the sacred and lawyer's law, see Rudolph and Rudolph, 1967:
2 It is partly based on my fieldwork (1958-60; summer 1963; summer 1965) on Gopalpur, a
multicaste north Indian village of 650 people, situated twenty-three miles east of Lucknow, the

capital city of Uttar Pradesh. It is also partly based on my field observations of Lucknow
civil courts in action during the summer of 1966, when I carried out twenty-five systematic
interviews among the legal functionaries and their clients. Finally, the fact that I was born and
brought up in a lawyer's family also influences my presentation here.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


253-93; Smith, 1963: 265-91; Rankin, 1946; Jain, 1952; Derrett, 1957,
1963; Galanter, 1964a; for appraisals of some specific anthropological-

sociological issues in relation to law, see Galanter, 1968: 299-336;

McCormack, 1966; Derrett, 1958, 1966; and Cohn, 1959, 1965; for an
assessment of legal changes by'native' legal specialists, see Gajendragadkar,

1951; Setalvad, 1960; and Kane, 1962). Although the diversity of interpretation has always been a problem in adapting sacred law to a 'courtcase' approach to justice as introduced and established in India by the
British, and although the juridical studies focusing on this general problem

have been numerous (as the foregoing references indicate), the cultural
conception of 'law' has hardly been systematically discussed. Probably the
multiplicity of 'laws' at local, oral, and written levels has obfuscated such a

discussion. But underlying these diversities are found certain cultural

principles that produce a consistent frame of reference for understanding
the general meaning of Hindu law. Such a general and abstracted cultural

version of the latter will help us to compare it with lawyer's law (when
it is also conceived in terms of its basic principles). This we shall attempt
below; first I shall briefly compare it to lawyer's law.

Sacred law is, first of all, indigenous, whether codified and written
or passed on only through customs. It is sacred because it is integrated
with the cultural system of values and helps perpetuate them. In 'native'
words, it is sacred because its basis is dharma (righteous way of life or The

Eternal Moral Order of the Cosmos-see Zaehner, 1962: 2-5, 134 ff., for a
simple presentation of this category) and its function is to perpetuate or

uphold dharma. Even though this may initially seem to be a tautological

statement, it is not, for we find that the cultural concept of dharma is
cyclical and the meaning flexible; it is neither eroded nor changed by linear
time or circumstances (see Pocock, 1964; Khare, 1967). In a wider scheme,

dharma is natural law, self-compensating and self-sustaining. Its progression is cyclical (dharma-chakra) and not lineal, hence change in a
contextual (sthiti) or actional (karma) or progressional sense is only
superficial or extrinsic. Discrepancies of karma and its fruits are restituted

by God's intervention (i.e. incarnation-avtar) so that the law (dharma)

always prevails. In this basic sense, such a law is predictable and changeless, where a human or any other agency cannot alter the scheme. This
law is natural, not man-made; hence it is inescapable and ascribed. At a
different level stand the Hindu restitutive, codified devices which remain
contextual, microscopic, and external. They are fallible in time. But if they
are to be valid even at this level, they can be so only in relation to dharma.
They can be neither beyond it nor beside it.
Lawyer's law, on the other hand, is 'foreign' and is profane. It does not

integrate itself with the sacred order and is not 'born' out of dharma.
It may or may not serve contextual and microscopic aspects of dharma,

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

76 R. S. KHARE
depending upon the circumstances, but, as my informants contend, it is
certainly not a substitute for the Cosmic Law. For them it is mundane and
extrinsic; it is man-made and manipulative. Since it does not link up with

the 'basic principles of universe', it is 'unpredictable' in its long-range

objective. There is no built-in or innate device in lawyer's law to

re-create itself. It must be executed by man-made decisions and devices in

individual cases. Such a law must continuously be applied since it is not

'ascriptive' in the same sense as dharma is. Lawyer's law is therefore
dependent upon 'external' agents and indicators, including judges, lawyers,
evidence, plaintiff, and defendant. The justice is contextual and immediate,
hence specific and not generic.

However, in 'native' conception law courts are not beyond the pale of
dharma; they are within it and are open to divine intervention. Thus,
despite the above-noted differences, lawyer's law in India is not functionally
unrelated to the Cosmic Law; the latter encompasses the former and helps

provide an explanation for the success or failure of a court case. Sacred

values produce, as we shall see later on, 'folk images' of lawyer's law and
help to explain dilemmas and discontinuities in the modern legal system.
Thus, if a person is dissatisfied with the court decisions on his case, he falls

back upon such explanations as: 'Whatever these man-made courts may
do, I am sure God's court will hear my "petition" (prayer) and the (moral)
justice will come, for, as my Guru said, "there is delay but no injustice in

His Court." (Der lekin andher nahin.) God cannot overlook the truth and
he compensates for the delay'. However, if a case is being heard in the
court and has not yet been decided, the parties may resort to appropriate

ritual techniques for divine intervention.3 Special worships may be observed, temple visits may be made more frequently, special recital of ap-

propriate scriptures (for example, of those of Shakti-the Goddess Durga

-for destroying all obstacles in the way of her devotees) may be undertaken on a twenty-four hour basis, and the guru may be approached for
spiritual blessings, mental peace, and 'mystical' (magical) influence on the
adversary and his lawyer. The defendant wants to secure victory through
every possible means, while the plaintiff also wants to snatch it.4

If, despite these efforts, a person loses the court fight, the blame, as
we would guess, is on lawyer's law and its imperfections and not on
divine agencies. The 'failure' is immediately rationalized and explained,
3 Priests (purohits), temples, scriptures, sacrifices, and spiritual gurus 'help' in influencing the

court proceedings and events. In this sense, legal action resembles an unpredictable crisis like

sickness, where again all these techniques are resorted to for obtaining health. Mukadmd
(court case) is also a matter for astrological advising, where auspicious days, stars, and hours
are calculated for starting and conducting litigation. Temple-prasdd (offerings) help bring

blessings, as do the recitals of sacred scriptures and performance of certain sacrifices.

4 The ritual techniques may be supposed to function for, as well as against, the litigation
victory, depending upon the interest of the party. A defeated party may invoke supernatural
power to see that the opponent is defeated in cases with a third party.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


partly in terms of personal fate and karma, and partly on divine wish 'for

our own good, which we do not understand because of our myopic

foresight, but which does become apparent to us with time', argued a
Kanya-Kubja Brahman businessman of Kanpur often involved in sales tax
litigation.5 These relationships between lawyer's law and the religious
world should help illustrate further the characteristics of folk images and
their functions.

In the native scheme of cultural values,6 lawyer's law, following the

above-noted more general framework, is regarded as something 'undesirable'. It is so for several reasons. The most basic reason is that law-

yer's law, even with all its adaptations to customary law, remains at variance from the accepted moral standards of social behaviour. As one of my

lawyer-informants put it: 'Court law, even if existent in India since its
introduction in 1763, exudes western normatives of social behavior. Even
though the British tried to adapt and reform it repeatedly between then and
1947, the entire basis of organization and function of our courts remained

foreign. Nothing has changed after 1947 because our government has
accepted those norms as the basic yardstick of legal justice. This leaves deep
and wide gaps for the general acceptance of court law as the just law, and
its ways as the just ways for all kinds of social behavior'.7

Despite longer exposure to law courts, the villager as well as the common urbanite is still intrigued and baffled to find katchehri or adalats
(courts) working with an endless number of munshijis (a term applicable
from a typist or a clerk to a lawyer, depending upon the user's awareness).
The ways of the court are regarded as 'foreign and deceptive at every step,

unless there is someone acquainted who can help find the way'. The 'procedures' are never completely known to an outsider; new manipulations by
babus (clerks, typists, legal assistants, lawyers, etc.) are always cropping up,
making previous experiences of limited guidance. Helplessness is the main

feeling in such labyrinthine procedures, alienating even the adept 'sealawyers' of the villages.8 If the procedures and organization of lawyer's
5 It may be noted here that dependence on divine agencies varies directly in relation to the
severity of the court case. For example, generally criminal cases involve more anxiety than
civil ones, and revenue cases more than simple tax-evasion ones.
6 Although most of these images of lawyer's law (kanun) are unwritten, they are constantly

mentioned orally and transmitted during conversations, whether sitting around the fire in
winter in a village verandah, or sitting in the modern drawing room of an urbanite. The styles

may change but the content basically remains the same. It is important to note, as I shall
illustrate later, that legal specialists also share this ethos.
7 We will discuss the relative acceptance of court law in the following section. See Cohn
(1965: 104-14) for making similar observations on the same problem: 'The all-Indian legal
culture that the British shaped during the period 1763-1947, and which independent India

has taken over and is modifying, has affected the bulk of the population in varying ways, but
most infrequently in the ways those creating the legal culture intended' (p. 104).

8 The situation once again compares very well with the ideas of the common man about a
modern hospital (asparal). The same problems attend hospital help, only much more seriously
for a villager. The courts and hospitals symbolize foreign ways of dealing with crisis situations;
both symbolize complexity and unfamiliarity.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

78 R. S. KHARE
law are unfamiliar, its rationale is still harder to appreciate for the com-

mon man. Almost always the litigating parties may feel that they gave
more in time, money, and energy than they received through the court
justice.9 Lawyer's law is undesirable not only because of practical difficulties but also, as further exemplified below, because of several negative
cultural 'images' or meaning associations that it popularly carries under
the sacred scheme.

For example, lawyer's law is considered akin to gambling, in which one

loses money, social prestige (in the conservative or orthodox sense),

mental peace, morals, and friends. 'The wise do not appear in a court;
they find alternative and saner means of settlement' was the oft-repeated
observation of the village elders in Gopalpur. Like gambling, legal success

is thought to be based on 'chance' and produces addiction. Those once

successful in court return to litigate again at all costs, whether it spells
economic ruin or moral degradation.10 Maneuvering and manipulation of
people, fabrication of reality, and exaggeration of allegations (all morally

and ethically undesirable) are noted as the guidelines for courtroom

victory. Yet one does not always win. Only false pride is thought to start
legal action, most commonly over those very objects that dharma typifies as
sources of family or community quarrels (that is, land or wealth, violence,

and women).
Moreover, in a court God's justice is manipulated by man and his agencies. Hence, it is mutable and court decisions are thought to form the basis
for further violence, revenge, and perpetuation of injustice and inequality.
Lawyer's law is considered to be the game of the rich and tyranny for the
poor. (The informants were here especially referring to the pre-indepen-

dence period, when zamindars and local populations typified the two
poles.) Litigation may become a way of 'teaching costly lessons' to the
opponent (cf. Cohn, 1965).
Legal fighting is basically immoral because it is always considered to be
a display of personal or familial economic pride (abhimdn) and is a result of
'shortsightedness'. Legal action, the informants would often argue, can be
9 This seems to be a more commonly shared feeling today in the post-independence period
than before, when zamindars and talukdars (local landlords) sought prestige through litigation.
10 This image was especially noted and exploited by Gandhi in making his case for passive

resistance (for example, see De Bary, 1958: 254 ff., especially pp. 256, 260, and 261; Moon,
1969: 27). He observed that India in the past had 'courts, lawyers and doctors, but they were
all within bounds ... these vakils and vaids (lawyers and doctors) did not rob people; they were

considered people's dependents and not their masters. Justice was tolerably fair. The ordinary
rule was to avoid courts. There were no touts to lure people into them. [Gandhi saw the court
law of the British as external to Indian society and hence advocated its breach.] That we
should obey laws whether good or bad is a new fangled notion. There was no such thing in
former days. ... It is contrary to our manhood if we obey laws repugnant to our conscience.

Such teaching is opposed to religion and means slavery. [Thus, Gandhi evokes the sacred
(dharma) image of lawyer's law outlined earlier in this paper.] A man who has realized his
manhood, who fears only God, will fear no one else. Man-made laws are not necessarily
binding on him'.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


found to be basically dispensable, 'provided one has patience and control
over his tempers'. Legal action is always threatened, the argument goes,
by a powerful man, and it is he who is most likely to win over an already

oppressed opponent. (This view of law seems to be greatly influenced by

the pre-independence social experience, but continues to be relevant in
terms of modern economic inequality.) Court law is thus culturally symbolic of many 'vices' ranging from telling a lie and gambling to ruthlessness and individual oppression. The first popular reaction towards lawyer's
law is therefore to shun it or avoid it as far as possible.

If these negative or unfavorable folk images of law are widely shared,

the actual (sociological) effectiveness of lawyer's law in modern India must

be accounted for. How can people shun and resort to the same recourse
whenever necessary? How did the legal profession become desirable and
even prestigious, and legal action morally and socially undesirable?
Despite the post-independence 'slump' in the prestige of legal calling,1l
how have the roles of court law become more pervasive and persistent
even though complex and controversial? While detailed answers to
such questions should form the focus of an independent empirical study, I

shall here simply point out some broad, dynamic cultural aspects that
indicate how the indigenous conception functionally relates to and competes with the expanding jurisdiction of lawyer's law.
First of all, the native conceptual separation of legal action and 'courtroom culture' (which ranges from its labyrinthine bureaucracy and practical
difficulties to unexpected turns in interpersonal relationships with special-

ists) from law as a modern and still potentially lucrative profession, and
law as a powerful means of grievance redressal or revenge, must be
recognized. The latter two aspects are practical and desirable in their own
limits and contexts. Law as a 'job' is different from law as a means of
suppression; the former may be culturally desirable but not the latter. My
field data on this aspect fall into three contexts regulating popular conceptions of lawyer's law. First is the situation when a person is not actively
involved in any legal complication. The negative image of law is most
readily described by this majority at any point of time.12 'To stay away
from the clutches of court law and its enforcement agencies is morally
11 Although proper sociological and anthropological studies are required for understanding

the nature of and the reasons for the loss of prestige of the legal profession after 1947, one may

guess some plausible reasons: relocation of legal priorities and corresponding change in em-

phasis on legal training; complexity and redefinition of the legal arena and authority in the
fields of, for example, public and private business sectors; elaboration of sales and income tax
structures; and modifications of revenue collection procedures.

12 It is stronger and more elaborate if the informant is an educated, urban, low-income,

conservative householder with religious fervor. For him, the court is synonymous with 'sin', a
social disgrace affecting even the chance of his children's marriage. For him the law court is
something to stay away from. He boasts of his 'clean', law-abiding family record. His counterpart in the village of Gopalpur was the priest, who socialized the common villager in the same

manner. However, as can be guessed, the villagers shared the conception but acted as the

situation demanded.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

80 R. S. KHARE

desirable and practically necessary', according to almost all of my informants. Even for legal specialists it may be one thing to work for the clients
and 'cases' and another to have to face the law themselves.

The second kind of situation is with those who, for example, under
modern sales, revenue, and income tax provisions, have to confront law
courts 'to financially survive the ambiguities of the legal system'. Such
people, whether from a village or a city, cannot afford to hold as many
scruples as those in the first situation. They continuously confront and
adapt to the ways of the court. For some of them court has become, as
they say, a part of their way of life. They try to win all the time, or at least

hope so, but lose as well. They continuously try to measure the shrewdness,

motives and manipulation of 'ever-hungry lawyers' and evolve suitable

countermeasures (see below). But the problems are complex and compounding for them; they may therefore often ask their sons to become
lawyers so that 'the money will remain in the family and there will no more
be any crisis of confidence'. Many shopkeepers and other modern businessmen may be found in the above situation in the cities.

The villager, on the other hand, takes the law 'in stride' if he is experienced, or if he has 'experienced' (Cohn's 'sea-lawyers') counselling
and/or city contacts. Notwithstanding practical and procedural difficulties
with courts, the villager displays keen alertness to grasp the practicalities of
modern law to avoid repetition of the same mistakes. Whether he is fighting
for a piece of land, or over a factional or familial physical assault, or for a
'runaway' woman, he is actually fighting to keep his traditional honor. It
is in this sense he would go down fighting all the way once he has no choice
but to confront lawyer's law.13

Despite modern circumstances, the people of both categories want to

stay away from the lawyer and his complicated ways. This attitude and
approach is reflected in what sociologists have called (for a summary, see

Broom and Selznick, 1968: 421-4) the process of attrition or erosion that
operates between various actual situations in which lawyer's law could be
applied and those where it is actually applied. Although the process may
be cross-cultural,14 the motivating factors may be different. In Indian
circumstances, this process, as is evident from the preceding discussion,
enjoys wide cultural backing, and as we shall find out later on, it is also
favored by the social structure. Informal settlement rather than going to
court, and out-of-court compromise rather than 'fight to the finish' are
both morally and socially desirable. The merit of compromise is always
13 Ligitation only for personal revenge or for display of personal power seems to be rarer
today than during the zamindari period, when zamindars and talukdars had money as well as
contacts to force 'the opponent on his knees' through a series of court cases.
14 For example, Broom and Selznick (1968: 422) summarize how, in the United States, in a
1967 government survey only 50 out of a total of 2,077 criminal cases reached the stage of
court decision, and only 52 percent of those were adjudged of'proper conviction'.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


supposed to lie in 'avoidance of any further bickerings and loss of money

and time'. The same is generally true for legal experts.15 The attrition
process, evident in this cultural perspective, may be expressed widely and
in different ways throughout the legal structure.16
My third category is that of legal specialists, mainly lawyers and judges.
The latter exemplify a situation in which intensive training in lawyer's law
tries to push popular cultural notions into the background, or they are at

least 'purified' through knowledge, reason and 'evidence'. However,

simultaneously the fact remains that these specialists are products of their
culture. This dynamics is important. In my interviews with retired court

judges, lawyers and magistrates, dharma dilemmas of lawyer's law were

again underlined. They admitted they were often aware of folk images of
law on the one hand and the 'moral, conscientious (righteous) implications

of our decisions, on the other'. They were particularly careful to weigh

their decisions not only in terms of the legal evidence and precedents but
also against 'the demands of one's own conscience. And wherefrom comes

our conscience?-from our own cultural upbringing and the principles

that direct it'. But they would not like to equate their conscience merely

with dharma (in its usual layman's meaning), for their meaning of this
concept was at once rationalized, deparochialized, secularized, and applied
to the context. They agreed that it was a subtle and delicate element, but
necessary nonetheless. They recalled several particular cases in which they
deliberated within themselves for several sleepless nights before they could
reach a decision 'which agreed best with the recorded court evidence, the
informal information about the case, the guidelines of the legal precedents,
and the demand of my own and my colleagues' image, purpose, and sense

of justice'-recalled by a retired Brahman justice of an upper-level court.

A judge's 'conscience' (which indirectly brings in his culturally shared
notion of right and wrong) has long-range meaning as well as implications

for the judge himself. 'The dissatisfied conscience of a judge chases him
more and more as the time passes, and it returns with double force when
15 Gandhi, as a lawyer in South Africa, records this aspect in a typical manner (Moon,

1969: 27):

My joy was boundless. I had learnt the true practice of law. I had learnt to find out the

better side of human nature and to enter men's hearts. I realized that the true function of a

lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that

a large part of my time during the twenty years of my practice as a lawyer was occupied in
bringing about private compromises of hundreds of cases. I lost nothing thereby, not even
money, certainly not my soul.
16 All those who act illegally may not know; if they know, they do not report; if they report

to the local police authority, the latter (a constable) may counsel alternative, less troublesome
and socially more commendable ways of kith, kin and community compromise; if they
reach legal counsel, they may be disgusted or induced enough to turn to simpler means; if they
hire a lawyer, he may suggest advantages in settling the case outside the court (provided he
does not lose money); and finally, court proceedings may tire both parties sufficiently to
make them withdraw and settle privately. However, serious crimes may be less eroded
by this attritional process.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

82 R. S. KHARE

retired', observed the same judge. He conceded that he himself had made

some such decisions which have bothered him for a long time. What can
he do now? Lawyer's law does not present him with any retrospective
mode of redress, but his 'deeper' conception of dharma (here meaning the

Eternal Law of the Cosmos) does. He immerses himself in scriptural

readings and discussions; he looks back and reviews the legal context in
terms of the 'directives' evident from scriptural episodes, some stated by

the sages and some implicit, according to him. He was sure 'prayer' was
one means of achieving mental peace, and another was discussion with
one's friends.17

Lawyers, on the other hand, may be an extremely variable lot. Whereas

they carry little moral burden for directly punishing violators of the law,

they have more complex motives for practising law-most important

being the fact that it is their way of earning a living as well as of gaining
social prestige. A common lawyer, while freer in expressing his opinions

and images about court law, is most directly committed to apply and
explore it in relation to individual cases and to win them under the
exactitudes of professional competition. A lawyer has to be a practical
man in terms of his and his client's interests, even if they may diverge
occasionally. Accordingly, he has to manipulate and maneuver men, events,
and ideas frequently, and even in a contradictory manner. He is freely found

to appeal to the religious or traditional side of his client at one moment

and to the letter and spirit of the court law at another. He of course knows
how to manipulate popular or folk images of law; he may reinterpret them
in terms of the court necessities. As he always translates at various levels
the contents of the law to the layman and vice-versa, he is a multiple-ended
translator; he must be so if he is to be successful in his profession. He deals

with conceptual plurality for and (very often) against law. Accordingly,
my data on practising lawyers constantly show this shifting, situationoriented version of folk images of law.18

The above discussion indicates that lawyer's law carries favorable as

well as unfavorable cultural meanings patterned after sacred and secular,

and traditional and modern cultural characteristics. The important point

is that whereas culturally lawyer's law may be in conflict with the indigenous

systems of social control, it has developed dynamic, functional relations

with the latter, and that the cultural ethos may stand aloof or encompass

them at various levels in different ways. (This observation includes legal

17 This particular informant, aged seventy-two when interviewed in 1962, was engaged in
reading Mahabhdrata and several Purdnas, 'as an exercise in delineation of how good and bad
are to be separated through contexts'. During the evenings some of his old friends, learned
priests and lawyers, would drop in to discuss their experiences with court law. At times the
discussion was best summarized or focused by composing a poem in Urdu, English, Hindi or
Sanskrit. During the day, the retired judge would review the discussion and extend it further.
18 Actually the ethos appears to be so rich that it should be studied in detail on its own in
terms of a modern Indian profession of increasing competition and 'decreasing returns'.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


specialists.) The discussion further indicates how in conception the cultural
version is maintained (negating the intrinsic value of court law) and how in
actuality, if there is no alternative left, court law may be vigorously pursued
as a related cultural value in maintaining or enhancing the jealously guarded

traditional honor. It may be a 'contradiction' in the analytical model of

Indian law but it is a dynamic and necessary adaptation for the 'native'.
These points, signifying some general aspects of social change in India,
should be further clarified and supported by discussion of some social
structural features, the counterpart of cultural organization, especially if
my presentation of the cultural version is correct.

The social structure of Indian society, especially the Hindu, is most

commonly characterized by the institutions of caste, extended kinship,
extensive and exhaustive hierarchy, and elaborate ritual relationships.
These are traditionally persistent aspects and hence are called 'structural'
(although they adapt to and functionally relate with an increasing number
of modern contractual-achievement associations). They have predominantly
controlled the reception of lawyer's law; their system has betrayed selective

insulation (i.e. inequal receptivity to legal provisions), polar opposition,

or restricted mutual validation in various ways. Although even Hindu
Customary Law (henceforth HCL), as codified and as accepted by the
British law courts, may not be truly indicative of how social groups
actually regulate their social relations and punish the deviant, it remains
the nearest consistent version which can be compared with lawyer's law.
And it is such a comparison that has attracted the attention of modern
sociologically oriented scholars of Indian law (for example, see the works of

Derrett, Galanter, Rankin, and Jain already cited) and of modern Indian
jurists (for example, Gajendragadkar, 1951 and Setalvad, 1960). However,
the present discussion will view lawyer's law in terms of social structural
reality, making it neither a legal history of social laws nor a social history of
legal changes.

Once again two levels of discussion must be separated. One relates to the

patterning (an abstraction) of lawyer's law in respect of the structural

features, and the other to their actual functional relations. At the first level,

lawyer's law is 'positive law'-decided by a duly authorized and constituted body or agency-while HCL symbolizes both traditional 'positive
law' and what jurists (for example, see Patterson, 1953) call 'higher' or
'natural' law based on supernatural authority, or on human reason or
conscience. Concepts of natural law may be used to criticize and refine
public law, as is evident in the historical studies of Western jurisprudence
(see e.g. Vinogradoff, 1922), and as is also indicated in my above discussion
of legal specialists. But natural or moral law may not always be reflected

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

84 R. S. KHARE
in lawyer's law. Many rules of the latter may have little moral or symbolic
significance and hence the distinction between mala prohibita (wrong by
prohibition, by statute for 'public good') and mala in se (wrong in themselves). Parking in the middle of a street and a murder are examples of the
two kinds. (But the lines between them are situational.)

HCL has both types of regulations with a heavy accent on moral

obligation and sanctity. Even the rationality of a rule may be 'explained'
by the sanctity it carries in the scheme. Instead of organized agencies of
punishment, HCL envisages a supernatural 'force' working towards
perpetuating 'justice' or righteousness. However, the emphasis is on conformity through self-improvement and intensive socialization and education so that the sense of justice is blended with the dominant sense of
righteousness (dharma), and the sense of legal conformity and obligation is
carried in terms of traditional norms of social behavior. Lawyer's law,
therefore, in practice became an 'extension' of redressing wrongs mala in se,
even if the way it went about doing so was 'foreign'. For example, HCL and

lawyer's law both aim to punish a person charged with murder, but the
principles involved may be widely different: one immediately attaches the
force of moral 'wrong', while the other starts from the assumption of not
guilty until proved guilty and grants the right of self-defense and self-help.

However, both may share ideas of 'correction' through an exercise

of coercive authority, whether communal or cooperative.
Lawyer's law can remain an 'extension' of HCL, or vice-versa (depending

upon the end from which one is predominantly analyzing), only as long

as the aims do not conflict. In social areas where moral or natural law

does not concur in its aims with positive law, the 'bridge' breaks down and

the divergence becomes apparent. Caste hierarchy-a traditionally institutionalized mode of integrating status groups-is an example, where it is
'natural' to the culture but 'irrational' to the positive law. However, caste

organization (an example of mala prohibita in post-independent India) is

not equivalent to a crime, and hence lawyer's law could exist in India from
1763 without abolishing 'caste', while it had to do away with the practice of

sati (the immolation of a Hindu widow on her husband's pyre), and

female infanticide (see Cohn, 1965: 114), because with increasing common

awareness these practices became mala in se from being simply localized

mala prohibita.19 Polygyny, child marriage, dowry, property inheritance,
and institutionalized inequality are further examples of continuing disparity
19 Such a transfer is not unknown in modern society. For example: the greater the automobile congestion, the greater the need to punish severely for a parking violation-making it a
crime to park in a wrong place even for a moment. Environmental pollution and smoking

could be other examples.

Actually the transfer occurs both ways: from mala in se to mala prohibita (e.g. the intercaste

marriage in modern India, which is no longer punishable as a crime, as it was in the past) and
from a mala prohibita to mala in se (e.g. modern legal concept of 'mental cruelty' in divorce

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


in the aims of HCL and lawyer's law.20 The former still has a strong hold

over these areas, although they are now classified as mala prohibita in
lawyer's law.
Let me elaborate here on the mechanisms and levels of selective insulation in terms of Indian social structure, because it will allow us to interrelate

abstract features with actual ones, and will permit me to emphasize

ethnographic reality.
I have already tried to demonstrate that it is not culturally 'natural' for

an Indian to turn at once to lawyer's law for redress of grievance. It is

either the last or an inescapable resort. With this guiding cultural factor in
the background, we find that not all institutional activities of Indian society
are equally 'open' to lawyer's law. The selection is guided by the principles
already outlined; that is, by the strength of the traditional customs and the
'natural' moral issues at stake. A factional power fight involving violence

(assault, murder, etc.), and one's preference to marry through a specific

religious ceremony (instead of legal registration) may provide two types of
examples: the first immediately falls into the lawyer's criminal procedure

code, and the second may even become a matter of the fundamental
religious right of the citizen under the Constitution. Evidently, as at the
present, in the first example it is 'normal' for lawyer's law to hold, and for
custom to rule the second.21 Thus once the lawyer's law accepts customary
marriage as legally valid marriage (which it does), it indirectly affirms the
validity of numerous versions of caste, kinship and their regional structural

variations-a contradictory emphasis noted by modern Indian jurists and

legislators (see Smith, 1963: 265-91). In general, we can say that the
institutions of marriage, family, kinship, and religion are comparatively

more 'insulated' from lawyer's law than are economic and political rela-

tions, although contexts and modernization (e.g. secularization) are

important controlling factors.

Caste status, education, economic status, and modernization may

variously regulate the strength or erosion of insulation in these institutions

against lawyer's law. For example, in marriage, family, and kinship, the
use of lawyer's law is generally a social disgrace for higher caste families:

'it is avoided at all costs', according to my informants of this category,

'because it has subtle implications for our social prestige. Although litigation with anyone is bad, litigation among the members of the same family
20 It can be said that the British were generally more successful in enforcing lawyer's law in
areas which were clearly (or easily susceptible to) mala in se principle, but they stayed away
from replacing the traditional set of statutes of social behavior by legal schemes of mala
prohibita. It was only post-independent legislation which carried the latter dimension further,
mostly on paper (see Cohn, 1965: 113, for example, for a brief discussion of the problem of
divorce, where both the process of custom and legal attrition are evident).

21 Accordingly, lawyer's law recognizes customary marriage as legal marriage for

practically the entire Indian society. Marriage by registration is the exception, though a 'legal
rule'-a striking example of structural insulation because it perpetuates institutionalized social
status through caste.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

86 R. S. KHARE

is more shameful than with non-kin members of one's own caste, but is
less affecting if it is with another caste for seeking justice, or for maintaining

public order.22 Higher castes are thought to resist litigation through education and urbanity; 'they neither indulge in physical assaults nor in petty
quarrels on woman', observed a Brahman clerk of Lucknow. For high caste,

urbanized and educated traditional groups, marriage, family and kinship

are accordingly considered to be the most insulated areas for litigation,
while the least are those of power and property distribution. High caste
rural counterparts are supposed to follow this model. Rural lower castes,
however, are commonly thought to represent a third situation in which
they have practically no scruples about going to court for settling a divorce
or a kidnapping, a family feud or a criminal assault, or a land or a property
dispute. However, that is a view which lower castes may dispute.
These general remarks, we may note, hold true for litigation carried on
at the individual or personal level. However, if a person litigates on behalf
of an 'organization', whether business or administrative, these caste status

scruples become irrelevant because then it is a part of one's 'job'.

These different degrees of insulation against lawyer's law, it seems,
reflect the continuing predisposition of Indian society. They also indicate
how the traditional rationale of Indian society coexists and competes with
modern legal provisions, even though they symbolize 'modern rationality'
for social behavior.

I shall present below the case study details of village and city agencies of

lawyer's law in order to show how they betray the above-noted general
characteristics in reality, and what communication network they establish.
I shall concern myself with the 'sea-lawyers' of Gopalpur (the village near

Lucknow) and practising lawyers of Lucknow, and their interdependent

aspects of informal (but crucial) organization and function.

Village Organization of Lawyer's Law: The Case of Gopalpur

Although lawyer's law has been introduced to villagers for a long time, the

exposure has been 'uneven' or selective for certain historical (see Cohn,
1965) as well as structural reasons. Gopalpur displays this characteristic
and confirms Cohn's (1965) observation that litigation is most often
carried on around land disputes and personal assaults. However, Gopalpur
women produce another popular arena for potential legal actions, primarily
22 In this sense, higher caste zamindars or talukdars felt normally justified in carrying
litigation against lower caste groups, according to my informant, who himself was a high
caste zamindar before 1950. However, obviously there were other morally unjustifiable
aspects of the same action, especially if the litigation was directed against the poor and the


This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


because out of sixteen castes, fourteen belong to middle (Ahir and below)

and lower levels of the caste hierarchy where women can be openly disputed for marriage, widow marriage, custody, and property transfer.
Before 1947, the legal 'talent' in Gopalpur, as expected, resided with the
high caste Brahman and Kayastha families. However, alternative sources of

legal counselling began to appear after 1947. In 1959, there were five
persons-one Barhai (carpenter), one Kumhar (potter), one Ahir (goatherder), and two Kurmis (farmer)-from the three hamlets of Gopalpur
who claimed 'to know sufficient to lead a gaon-wala (villager) to an
appropriate vakil (lawyer) or to a tout in Lucknow who was known to be
both reliable and honest in his dealings and advice'. Two Kayasthas knew
three practising lawyers in Lucknow who were their kith or kin (one was a
wife's brother, another was a sister's husband's uncle, and the third was a
university class-fellow in the 1930s). Finally, there were at least two more

'legal advisors' (Kurmis) from the nearby villages of Rahmatnagar and

Mohammadpur who frequently came in to visit their caste members and
who made known that though they were not sanad (degree)-holding
lawyers, they were 'experienced enough to trick city lawyers'.

The above 'legal resource' of Gopalpur is heterogeneous and varied.

Who is a legal 'expert' for the villagers and who is not is partly a situational

question and partly based on the knowledge that exposure to any aspect
(or agency) of lawyer's law counts heavily and goes a long way to prove
that the man in question has the 'credentials' for guiding other villagers.

The two Kayasthas are commonly considered strongest because (1) they
fought and won court cases for over thirty years during and after their

zamindari rule; (2) they have some law books in their baithakd (drawing
room) and read English; (3) they have lawyers as relatives and friends and

have successfully employed them in the past; and (4) they have acquaintance with court officials, such as typists, munshis (clerks), patwdris or
lekhpals (authorized individuals for maps, land papers etc.) and notaries.23
The Ahirs and the Kurmis come next; between the two, Kurmis have out-

paced Ahirs in acquiring legal contacts and litigation experience. Kurmis

claim that they have broken the monopoly of Kayasthas, 'who often
23 In terms of these factors, only four actual experts are reported by the villagers of Gopalpur.
The rest are considered to have limited knowledge and hence to be less reliable in serious cases.

However, all nine (seven from the village and two from the neighboring villages) 'experts'
were consulted for this study for a variety of conflicts and their implications in terms of

lawyer's law.
This extra-village legal resource was prestigious for the Kurmis to combat the obvious edge
that the Kayasthas continued to carry after Independence. However, ambitious Kurmis were
not satisfied with the extra-village help and they talked in 1960 of sending their sons to become
lawyers. In 1964 two Kurmi youths had already entered Lucknow University with this aim,

'because factional rivalries between their caste and Kayasthas, Pasis, and Ahirs keep us in

constant danger that we may have to go to adalat (lawyer's court) to settle our major differen-

ces, especially those in which heads are broken'-so observed a Kurmi leader of Thakurpur
(a hamlet of Gopalpur). He added that the tendency to take a dispute to the court is 'growing,
probably because we are now knowing more and more about the vakil and his law'.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

88 R. S. KHARE

guided us in legal matters for increasing the clientele of their relatives

(lawyers, clerks etc.) in the city (Lucknow)'. However, in actuality when a

serious breach of law was involved, the Kayasthas were consulted most
heavily even by the Kurmis.
Experience and knowledge of a village 'expert' in legal matters is tested
against the actual outcome of the court case. If the result is in his favor,

the 'expert' enhances his prestige and receives some 'gifts' as a token of

gratitude. However, if the case is lost, the 'expert' and all of those
legal agents introduced by him lose the villagers' confidence, unless there

is a very strong and plausible explanation of 'what happened and what

actually went wrong'. 'Losing a court case is like losing a battle; it is a
personal defeat of the litigant as well as the advisor', observed one of the
Kurmi experts of the village.

Gopalpur's legal resources should not be taken as direct indicators of

actual litigation. More appropriately they are only indicative of the aware-

ness about lawyer's law and its potential implications on what goes on
within the village in factional and personal quarrels and in brewing disputes.

Thus, in a village like Gopalpur we must differentiate the legal 'counselling' that goes on in matters which have been reported to appropriate
legal authorities from those that are legal violations (if the written legal
provisions are applied) but have not been brought to the attention of
legal authorities. Obviously, the influence of local experts is wider and
more effective in the second type of situation, although they now usually
extend themselves to the first type. The local (village-level) 'legal' counselling is so important an influence on the actual functions of lawyer's law
in an Indian village that it merits a detailed separate study. Here I shall only
briefly present some of its characteristics.

The 'sea-lawyers' of Gopalpur (who are not full-time specialists) have

certain common features. A sea-lawyer is a literate man (and sometimes
even a college-educated man) who holds legal business as well as kinship
contacts in the neighboring towns and cities. (Those importantly represented in Gopalpur in 1959 were Lucknow, Haidergarh, Sultanpur,
Barabanki and Gosainganj.) He is always 'experienced'-that is, either he
or his family members have litigated in courts and he has been exposed to
city legal specialists. He frequently talks of and about lawyer's law and legal
organization in his talks. He always displays legal awareness by frequently
relating his own or his family's successful 'bouts' with lawyer's law and its
complexity. In Gopalpur (a three-hamlet village), these 'sea-lawyers' walk

from one hamlet to another to give advice, depending upon the parties
involved and their social relationship to the sea-lawyer. He first measures
the seriousness of the complaints of (if possible, both) the parties, gathers
surrounding 'facts' and 'evidences', and explicates their meaning. He always
starts from the premise that lawyer's law should be avoided, for, as all the

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


Gopalpur 'legalists'24 agreed, 'it is not worth it even with all its knowledge
that we have. The end is always costly in terms of time, money, and travel,

whether we win or lose. The more we know of the kachehri (courts) and
karinde (functionaries) the more unpredictable its ways seem to be. What
a person is called, what a person is empowered to do, and what he can do
if properly approached, are extremely varied areas in the lawyer's world'.
The 'sea-lawyer' always begins as an arbitrator of disputes, as do the kith

and kin of a quarrelling party. If initial mediation is unsuccessful and if

'the events fan the fire' and legal recourse becomes imminent, the local

'specialist' moves into focus and he may spend noons and evenings
advising. He comes and shares the hookah (bubble pipe), if appropriate.
He sits on a cot (or around a fire, depending upon the season) to give his
picture of the conflict and of the legal world. What could be done legally

is vizualized (even if naively), discussed, and examined against the past

experiences of the participants.25 A wide consensus of friends and kin is

taken, and if legal action is decided as the only alternative open to the
disputing party, the 'decision is always to win in the court'.26

This decision is momentous as it has far-reaching implications on the

villager and his daily routine. He must arrange for finances, must rearrange
work schedules, must travel to the city, and must finally prepare himself to
face the strangers and their tricks. But the most important question comes
up when he must engage a lawyer to plead for him. This is where the 'sea-

lawyers' and their 'introduction' to lawyer's ways help most. (The party
may consult the village priest too for a muhurat-auspicious time-as
usually the women insist on doing.) He provides them with practical guidelines and safeguards against obvious as well as remote pitfalls that appear
before and during the meetings with a lawyer in the city.27 If possible, the

new litigants like to take a village specialist along at least on their first
visit.28 They pay for his travel and make presents on a suitable occasion
during his visit, or just after it.
24 These local 'specialists' have learnt a hard way. They have lost cases even when they took
'every possible precaution known to us'. They have also committed mistakes in giving advice.

Yet their functional value lies in the fact that the villagers, when they confront the law, require

preliminary guidance preferably from a man trusted by them rather than from those (like
touts and lawyers' agents) who can misguide them for their self-interest.
25 Successes and failures are almost equally discussed.
26 Personal esteem and social prestige are supposed to suffer as much in a legal defeat as in
any face-to-face dispute. Bureaucratic imponderables do not lessen the impact.
27 For all these services, the 'specialist' is paid unostentatiously in the form of gifts. For
example, the boys of the help-receiving family may drop in on the family of the specialist
with a certain amount of grain and/or fruit, or baskets, or pots, announcing that their parents
sent them. If asked why, the boys run away, saying 'we do not know, ask my dadd (father)
when you see him'. The receiving party figures it out and either remains silent (but appreciates
the thoughtfulness) or modestly expresses the dispensability of such a gesture (although he may
not mean it). Direct cash payment for these services is absent in Gopalpur.
28 If city lawyers' impressions are representative, they observe that local 'specialists'
accompany the initiates more often now than ever before. This has implications for their
practice; see below.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

90 R. S. KHARE

This discussion now allows us to link up with a description of the informal organization (for getting clients) of city lawyers.
Urban Organization of Lawyer's Law: The Case of Lucknow Lawyers29

The informal organization of lawyer's law has two, mostly competitive,

ends. One is typically village-seated as described above and the other
originates from the lawyer's office. Both are networks of purpose-oriented

relationships; but one seeks legal help and the other 'hunts' clients with
appropriate kinds of legal complaints. Although both organizations are
contractual, the lawyer's network is much more so, structuring itself on

client-specialist principle and following dynamic sets of formal and

written as well as unwritten, informal, and humanitarian 'rules'. The urban

competition in legal practice has prompted the elaboration of a 'clientcatching network' on the one hand, and the emphasis on specialization, on
the other. Both tendencies are now proceeding simultaneously, creating a
baffling complexity for the village 'sea-lawyers' and their so-called 'clients'.

However, in reality such a complexity may be approached from various

routes by a villager.

A Gopalpur litigant, for example, plans his search for a city lawyer
with the help of his favorite local expert. He plans his trip on the basis of
what he learnt about lawyer's law, and readies himself to face the unknown
and the unexpected. He carries money securely on his person, wears clean

clothes, and prepares a light and handy bundle of supplies of 'food,

clothing and bed' that he can carry at the end of his lathi (long bamboo
stick) over his shoulders. He carries shoes or wears them (a symbol of
urbanity). He rises early in the morning to start either on his bicycle or on

bus towards Gosainganj or Lucknow (depending where the case is now

being heard). Since he knows he may have to stay away from home for
several days, he prepares his family to look after the essential work. If he
is going to face this ordeal alone, he is very somber: if he has one or two
friends or relatives who have agreed to come along, he is more assured; and

if he is being accompanied by his favorite local 'sea-lawyer', he is much

more relaxed and adventurous.30 In the last case, 'spearheading' is done by
the village 'specialist' as deftly as possible. If the latter knows a lawyer in
the city, the task is greatly simplified. The client is taken directly to this
'place of confidence', where the lawyer himself decides whether he is fit to
conduct the case or whether he should redirect the client to another

friendly lawyer (i.e. the one who reciprocates such transfers).

However, if the village 'specialist' does not know any lawyer in the city,
29 My present concerns are only with informal contacts between lawyers and clients,

especially those from villages.

30 The 'team' is common in Gopalpur. If somebody does not have any relative to go along, a
neighbor might accompany him, especially for the first time. A comparable 'crisis' party is

formed when going to a hospital.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


the task is harder and the 'client-catching network' is encountered. As

my Gopalpur informants repeatedly reported, the party, while on its way
to the city, meets touts, agents, and munshis (clerks) of city lawyers, who,
riding on bicycles, come out of the city-up to ten or fifteen miles awayearly in the morning and sit at a bus station, or on a 'strategic' culvert, or in
front of a roadside well or a refreshment shop or betel-leaf stall, and ask
the passers-by (guessing from their appearance, talks, 'nervousness', as one
of my tout informants told me) if they are in search of a lawyer. If there is
a slightest affirmative indication, the tout opens up his vakil's (lawyer's)31
bag of qualifications and successes.32 (Ranging from the size of his vakil's

bungalow to his legal fame, the tout presents a detailed description and
finally hands over cards bearing printed address and special qualifications.)
Several court cases are cited to inculcate confidence in the client and his

associates: if the client's 'sea-lawyer' from the village indicates that he has a
particular vakil in mind, the tout slowly but systematically demolishes the
'virtues' of the other vakil, frequently arguing that the times have changed
the said lawyer's winning sequence. If the client's party is reticent and in a
hurry, the tout may follow them on his bicycle for several miles, until he is
sure of the outcome.

The second 'confrontation', my village informants agreed, comes when

the city limits begin. The same strategy may be followed by another set of

touts and munshis to 'catch' those 'clients' who are free, or doubtful or
dissatisfied about their earlier vakils. This persuasion is generally more
intensive because these agents are more knowledgeable. Since they are
important to lawyers in transacting court business after 10 a.m., they are
usually not allowed to go outside the city, as the first batch does.
The third and final 'confrontation' is extremely diffused and complex.
It is within the court compound itself, where practically all the functionaries
of court align themselves with one, or more, batch of lawyers and/or their
touts. Those who had vakils are 'so thoroughly persuaded' that they may
change their choice. The competition is fierce here because the alignment is
competitive and multiplex within the organizations of lawyers, touts,
munshis, clerks, typists, lekhpals, police functionaries, and numerous other
procedural officials. By the time the village party reaches this arena, its
defenses (of staying noncommittal) become weak and patience begins to
wear out. All the party members, including the 'sea-lawyer', now must
decide33 to settle for one of the many suggested vakils. The moment this
31 Nowadays these touts are costly to keep and hence several city lawyers may share a pool
of competent touts, agents etc. This pool also enables a tout to suggest alternative specialists
as desired by a client or as demanded by the case.
Touts are more specialized than 'sea-lawyers' and are usually deft talkers.
32 As with a patient, a litigant must be assured repeatedly that he is going to win the case
in the court. The tout produces evidence after evidence to reassure the client.
33 Decisions are made by all members of the party, usually by moving away from the lawyer
and his tout. They confer in slow whispers about what the lawyer asks for as his fee, what the

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

92 R. S. KHARE

decision is made, a crisis is over for the village party. For the chosen vakil
and his tout, it is a 'victory', symbolizing 'flourishing practice', money and

successful persuasion. However, for both it is only the beginning of a

joint venture-a formal undertaking with a 'world' of informal adjustments and procedures.
If the court work is not finished in one working day, the party stays

overnight. The vakil and/or his tout may normally take care that the
clients have a place to stay. Usually, the vakil's house compound may be
used for the purpose. The party may find that it is not alone in such a stay.34

Several village parties may be in the compound, cooking their meals and
sleeping in a verandah or in the open (depending upon the season). The
vakil's office (kept at home) may be buzzing with people all evening. The
briefings as well as hard bargains may go on at this place. The party may
now begin to learn about the vakil as a human being desirous of helping
the client only if the latter comes ready to fulfill his demands in fees and
legal maneuvers.35
The initial contacts are most crucial for the party. Once it has secured
them with some degree of confidence, the major aim of the first trip is
achieved and the party returns to the village, mostly unmindful of the long
and arduous process of litigation, which may require dozens of such visits
and overnight city stays. Once back in the village, every member of the
party has experienced something which he will talk about for days to come,
and remember that 'we are no more ignorant of lawyer's law and some of

its ways. Next time we will be able to inform our relatives and friends
better, although we all agree that lawyer's law is not worth the trouble,
unless we are forced into that situation by our own mistakes'.36

Mention must be made of caste, kinship, and regional loyalties that

generally express themselves in the client-catching process. For example, if

the village has produced some lawyers who now practice in the city, the
tendency is to approach them first, although greater factional feelings in

village life may now restrict the use of such a resource-only those of a
favorable faction approach these lawyers.37 Further, these loyalties may
party thinks he should ask for, and what the client can afford to offer. The 'sea-lawyer' plays
his role here too. His decision carries weight. However, all members remain skeptical and

carry the idea that the lawyer and his agents are 'fleecing' them but that there is no alternative.
In hospital, the situation is comparatively less arbitrary, even if expensive. There can be no
grudge for payment in that situation as long as the funds last.
34 This is generally regarded as reassuring because other parties symbolize the past successes
of the lawyer.
35 Actually, the interactions are very competitive here too but the topic is beyond the scope

of this discussion.

36 Such remarks by a villager must be examined against the actual litigation carried out by
villagers and against the frequency of legally reportable violations. Finally these data should
be compared with actual results in court-convictions, acquittals etc. Once we have this
information for several comparable villages, the process of attrition in lawyer's law in India
can be estimated. At present, as far as I know, there are no such data available.
37 This may be so, despite the fact that the lawyer wants to increase his zone of clientele and
hence must assure equal treatment to all the members of his village.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


grow stronger or erode according to legal or social developments. Thus,
while tenure and land dispute cases, as Cohn (1965) noted, provide the
widest and more or less permanent basis for legal dispute, Gopalpur's
litigation record boomed with the government's new land consolidation
provisions, especially because the numerically strong lower caste groups
thought that the Kayasthas and Brahmans had bribed government officials

and had acquired the best irrigated pieces of land. During this period
(1958-60) there was great pressure to search for lawyers who belonged to
the village or the region, 'who will sympathetically deal with our grievances'. Actually, this tendency was also strengthened by the lawyers. Consoli-

dation cases, being relatively easy to settle and always tied down to the
administrative region and its functionaries, underlined the necessity of reestablishing or strengthening the regional rural ties if a lawyer wanted to
reap the harvest. Consequently, they even toured their regions with their

touts and agents and put regional loyalties into focus and action. Many
young lawyers, accordingly, 'established' themselves by winning these
cases for the people of their region. Serious criminal and civil cases, on the
other hand, tend to go to more experienced hands, where there may be so
much at stake that caste, kinship, and regional loyalties remain of limited

In conclusion: lawyer's law in India is in need of being viewed from the

common man's view. A systematic study of the latter, much like folk and

indigenous medical systems, opens up a full range of organizational and

cultural features which help to understand the actual sociological position
of lawyer's law in modern India and its relevance as an indicator of social
change. As in other elements of modernization, lawyer's law is also subject
to structural and cultural forces and their selective influences. Some

activities are thus more susceptible to the processes of lawyer's law than
certain others. This observation is important to understand the 'lag'
between post-independent social legislation and its actualization.
As this discussion attempts to show, the 'lag' is symptomatic of wider
conceptual (both cultural and structural) bases that have for over a century
molded and patterned popular ideas and images about lawyer's law. The
cultural themes have actually accorded images to lawyer's law, in which it is

only an 'artificial' or man-made counterpart of the immutable, overarching

religious law (Dharma). Even legal specialists share such images. Lawyer's
law may either overlap or provide restricted mutual validation, or produce
polar contradiction. In the latter category, lawyer's law remains ineffective,
especially when the cultural norms do not violate moral bases (mala in se)
of social behaviour but only some 'legal statutes for public good'. However,

when a custom (like sati custom) violates moral bases as well as statutes,

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

94 R. S. KHARE

lawyer's law takes over and disregards local customs. In an overview, it

seems as if Indian culture maintains selective insulation, both social and
cultural, against lawyer's law and continues to hold on to it for the
majority in caste, marriage, and kinship.

A look at the actual working of lawyer's law shows that, as can be

expected due to its early inception, it has strong and effective informal
organizations at both the village and city levels, and that both functionally
interrelate for making lawyer's law effective in socioeconomic controls,
despite its enormous bureaucratic complexity and continuing 'strangeness'
to a common villager. A lawyer's network engages knowledgeable men as
touts38 who successively translate and transvalue lawyer's legalisms for the
common client's comprehension. These 'connectives' deserve as much
attention as lawyers and clients, because they may be thought of as holding
a system of communication and interaction which gives credibility and
usefulness to lawyer's law in the millions of Indian villages.

Beattie, John (1957), 'Informal Judicial Activity in Bunyoro'. Journal of African Administration, 9: 188-96.
Bohannan, Paul (1957), Justice andJudgement among the Tiv. London: Oxford University

- (1963), Social Anthropology. New York: Holt, Rinehart & Winston.

Broom, Leonard and Philip Selznick (1968), Sociology (4th edn.). New York: Harper &

Cohn, Bernard S. (1959), 'Some Notes on Law and Change in North India'. Economic
Development and Cultural Change, 8: 79-93.
- (1965), 'Anthropological Notes on Disputes And Law In India'. American Anthropologist, 67: 82-122.
De Bary, Theodore William (1958), Sources of Indian Tradition, Vol. II. New York:
Columbia University Press.
Derrett, J. Duncan M. (1957), Hindu Law: Past and Present. Calcutta: A. Mukherjee &

- (1958), 'Statutory Amendments of the Personal Law of the Hindus since Indian
Independence'. American Journal of Comparative Law, 7: 380-93.
- (1961a), 'The Administration of Hindu Law by the British'. Comparative Studies in
Society and History, 4: 10-52.
-- (1961b), 'Sanskrit Legal Treatises Compiled at the Insistence of the British'.
Zeitschrift fur vergleichende Rechtswissenschaft, 63: 72-117.

- (1961c), 'Illegitimates: a Test for Modern Hindu family Law'. Journal of the
American Oriental Society, 81: 251-261.
38 Besides earning their keep, these agents, with time and experience, become vital links
between groups of lawyers and villagers. Always literate, their acute perception of legal

labyrinths grows with time. They eventually become indispensable right-hand men to lawyers
as well as clients.

Actually these touts vary in sophistication and hence are suitably deployed by the lawyers.
One successful in dealing with a city businessman may not be allowed to travel twelve miles
away to the village area to catch rural clients. Others more suitable are chosen for that

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms


- (1962), 'The History of the Juridical Framework of the Joint Hindu Family'.
Contributions to Indian Sociology, 6: 17-47.

- (1963), Introduction to Modern Hindu Law. Bombay: Oxford University Press.

- (1966), 'The Reform of Hindu Religious Endowments'. In Donald E. Smith, ed.,
South Asian Politics and Religion. Princeton: Princeton University Press.
Etzioni, Amitai (1965), Modern Organization. New Delhi: Prentice-Hall.
Fuller, Lon L. (1964), The Morality of Law. New Haven: Yale University Press.
Galanter, Marc (1961), 'Caste Disabilities and Indian Federalism'. Journal of the Indian
Law Institute, 3: 205-34.
- (1962), 'The Problem of Group Membership: Some Reflections on the Judicial
View of Indian Society'. Journal of the Indian Law Institute, 4: 331-58.
- (1963a), 'Law and Caste in Modern India'. Asian Survey, 3: 544-59.
- (1963b), The Role of Law in Indian Studies. Chicago (mimeo).
- (1964a), 'Hindu Law and the Development of the Modern Indian Legal System'.
Paper delivered at the 1964 annual meeting of the American Political Science Association, Chicago.
-- (1964b), 'Temple entry and Untouchability (Offenses) Act, 1955'. Journal of the
Indian Law Institute, 6: 185-95.
(1965), 'Secularism: East and West'. Comparative Studies in Society and History,
7: 133-59.

- (1968), 'Changing Legal Conceptions of Caste'. In Milton Singer and Bernard S.

Cohn, eds., Structure and Change in Indian Society. Viking Fund Publications in
Anthropology, 47.
Gajendragadkar, Justice (1951), The Hindu Code Bill. Dharwar: Karnatak University.

Gluckman, M. (1955), The Judicial Process among the Barotse of Northern Rhodesia.
Manchester: Manchester University Press (for the Rhodes-Livingstone Institute).
- (1965), Politics, Law and Ritual in Tribal Society. Oxford: Blackwell.
Hoebel, E. A. (1954), The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard University Press.
Jain, M. P. (1952), Outlines of Indian Legal History. Delhi: Delhi University Press.
Kane, Pandurang Vaman (1930-62), History of Dharmasdstra (5 volumes). Poona:
Bhandarkar Oriental Research Institute.

-- (1962), History of Dharmasdstra, Vol. 5, Part II. Poona: Bhandarkar Oriental

Research Institute.

Khare, R. S. (1967), 'The Concept of Time and Time-Reckoning among the Hindus:
An Anthropological Viewpoint'. Eastern Anthropologist, 20.
Leslie, Charles (1967), 'Professional and Popular Health Cultures in South Asia: Needed
Research in Medical, Sociology and Anthropology'. In Ward Morehouse, ed.,
Understanding Science and Technology In India and Pakistan. New York: University of
the State of New York.

Llewellyn, K. N. and E. A. Hoebel (1941), The Cheyenne Way: Conflict and Case Law in
Primitive Jurisprudence. Norman: University of Oklahoma Press.
McCormack, William (1966), 'Caste and the British Administration of Hindu Law'.
Journal of Asian and African Studies, 1: 25-32.
Marriott, McKim, ed. (1955), Village India: Studies in Little Community. Chicago:
University of Chicago Press.
Moon, Penderel (1969), Gandhi and Modern India. New York: W. W. Norton & Company.

Patterson, Edwin W. (1953), Jurisprudence: Men and Ideas of the Law. Brooklyn:
Foundation Press.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms

96 R. S. KHARE
Pocock, D. F. (1964), 'The Anthropology of Time-Reckoning'. Contributions to Indian
Sociology 7: 18-29.
Pospisil, L. (1958), Kapauku Papuans and their Law. New Haven: Yale University
(Publications in Anthropology, 14).
Rankin, George C. (1946), Background to Indian Law. Cambridge: Cambridge University

Redfield, Robert (1955), The Little Community. Chicago: University of Chicago Press.

Rudolph, L. I. and S. H. Rudolph (1967), The Modernity of Tradition. Chicago: The

University of Chicago Press.
Schapera, I. (1938), 'Contact between European and Native in South Africa'. In Aethods
of Study of Culture Contact, International African Institute Memorandum, 15: 25-37.
Setalvad, M. C. (1960), The Common Law in India. London: Stevens and Sons.
Singer, Milton (1955), 'The Cultural Pattern of Indian Civilization'. Far Eastern
Quarterly, 15: 23-36.

(1959), Traditional India: Structure and Change. Philadelphia: American Folklore


--(1961), 'Text and Context in the Study of Contemporary Hinduism'. Adyar

Library Bulletin, 25: 274-303.
-- (1966), 'Religion and Social Change in India: The Max Weber Thesis, Phase Three'.
Economic Development and Cultural Change, 15: 497-505.
(1969), Modernization, Ritual and Belief among Industrial Leaders in Madras City
Smith, D. E. (1963), India is a Secular State. Princeton: Princeton University Press.
Vinogradoff, Paul (1922), Outlines of Historical Jurisprudence. London: Oxford University Press.
Zaehner, R. C. (1962), Hinduism. London: Oxford University Press.

This content downloaded from on Mon, 08 Aug 2016 14:40:41 UTC
All use subject to http://about.jstor.org/terms