Pramāṇa · Search · About · API

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c9.s1: Section 1. Property and Woman in Private Law

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c9.s1

Language
English

Contents

Section 1. Property and Woman in Private Law

c9.s1.1

[The bed-rock of modern legal institutions is twofold. First, the individual adult is treated as an entity quite independent of the family, the village, the gild or any other corporation. Secondly, the woman is juridically a *selb-ständig* i. e. self-sufficient unit enjoying rights different from, and independent of, those of the man, even of the husband.]

c9.s1.2

In Europe, and especially in America it is the "industrial revolution" (with its concomitant mobility of labor and more or less freedom of economic competition) that is chiefly responsible for the daily advancing social and political equalization. And no doubt the impact of this new democracy has powerfully influenced the foundations of organized life in Asia also, from Tokyo to Cairo.

c9.s1.3

[But it is interesting to observe that even under ancient and mediæval conditions the legal sense of Hindus was akin to and approached the "modern" conscience in both these postulates of civic existence. Thus, for instance, the emancipation of the individual from the head of the family was effected very early in Hindu law. It is embodied in the institution of inheritance and partition of property *per stirpes* (i. e. per stocks) as opposed to that *per capita* (i. e. per head).¹

c9.s1.4

¹ For the relations between Manu, Vijnâneśvara and Jîmûtavâhana on the question of individualism in property rights see Radhakamal Mukerjee's *Foundations of Indian Economics*, pp. 20—21; Maine's *Early History of Institutions*, Lect XI, p. 328.

c9.s1.5

[A has two sons, B and C. B dies after leaving two children, 1 and 2, and C dies after leaving four, a, b, c, and d. On the death of the grandfather, A, the Hindu law of succession to A's property will keep the stocks of the two sons (B and C) separate; and one half of the inheritance will be divided between the two grandchildren (1 and 2), and the other half between the four grandchildren (a, b, c, and d). This is known as division *per stirpes*; the tendency of more developed and modern law on the subject is to prefer this mode of partition.]

c9.s1.6

But in less developed and in archaic or primitive systems, although not invariably, if we accept Lowie’s sociology of ancient institutions, the property is divided equally between all the six grandchildren, share and share alike. This mode, or partition *per capita*, will not consider the claims of the fathers (B and C) as of any importance at all, but place the entire jurisdiction or dominion within the grandfather’s will or cognizance.

c9.s1.7

But the importance of the father as an individual is recognized as greater than that of the grandfather in the matter of partitioning the grandfather’s property according to Jîmûta-vâhana’s *Dâya-bhâga* school of law, prevalent in Bengal since the twelfth century, which, although professedly a digest of all ancient codes, attaches special prominence to Manu (A. C. 150). The same system is followed in Vijnâneśvara’s *Mitâkṣarâ*, a commentary (eleventh century) on the *Institutes* of Yâjnavalkya, (A. C. 350), another old jurist, which has authority in every part of India including Bengal.¹ Individualism was thus held in high respect in the judicial psychology of the Hindus.

c9.s1.8

¹ G. C. Sarkar’s *Hindu Law*, pp. 27—29; V. N. Mandlik’s *Hindu Law* (Texts and translations of Vyavahâra Mayûkha and *Yâjnavalkya Smriti*); Colebrooke’s *Two Treatises on the Hindu Law of Inheritance (Dâyabhâga and Mitâkṣarâ)*; Jolly’s *Hindu Law of Partition, Inheritance, and Adoption*, pp. 9—30; Jolly’s *Recht und Sitte*, pp. 87—92; Mitra’s *Law Relating to Hindu Widow*, pp. 61—69.

c9.s1.9

Secondly, in regard to the legal status of woman, both Jîmûta-vâhana and Vijnâneśvara declare *strîdhana*² or “woman’s special property” incapable of alienation, on the basis of older authorities. In Hindu India the husband³ has absolutely no right to whatever a woman may have “acquired by inheritance, purchase, partition, seizure or finding”, — the five origins of property in Gautama’s jurisprudence.⁴ Besides, when the husband dies, sonless Hindu widows⁵ have for ages been entitled to enjoy the husband’s property for life. But the right does not extend to alienation except under specified conditions.

c9.s1.10

² *Yâj*, 145; *Dâya*, Ch IV, sec I, 1, 2; *Mit*, Ch II, sec XI, 2; *Manu*, IX, 194 (“sixfold” property of woman); Jolly’s *Hindu Law*, pp. 226—261.

c9.s1.11

³ *Yâj*, 147; *Mit*, Ch II, sec XI, 31, 32. See Mackenzie's *Studies in Roman Law*, pp. 92, 93 (parapherna).

c9.s1.12

⁴ X, 115; For “seven modes” of acquiring property vide *Manu* X, 115; cf. also *Manu*, IX, 44; Jolly's *Recht*, pp. 90—92.

c9.s1.13

⁵ *Dâya*, Ch XI, sec I, 2, 3; *Mit*, Ch II, sec I, 2, 3.

c9.s1.14

"Nowhere", then, as Gooroodas Banerjee¹ remarks, "were the proprietary rights of women recognized so early as in India; and in very few ancient systems of law have these rights been so largely conceded as in our own. In certain cases *** a woman's dominion over her *strîdhana* is absolute".

c9.s1.15

¹ ^1 *Hindu Law of Marriage and Strîdhana*, p. 312; cf. Gibelin's *Etudes sur le Droit Civil des Hindous*, Vol. I, p. 111.

c9.s1.16

The Code Napoleon and the Continental laws based on it give the wife an absolute right to only a part of her property, the *parapherna*. But the rest has to be added to the common household as *dot*. This law of *dot*, which, again, is really a continuation of the law of *dos* in the *Institutes* of Justinian, is thus less developed than the Hindu law of *strîdhana*.

c9.s1.17

The Married Women's Property Act (1886) of England is, according to Boutmy in his *Essai d'une psychologie politique du peuple anglais au XIX^e siècle*, essentially distinct from the Napoleonic and continental codes in so far as it gives independence to women proprietors. But even this Act falls short of the Hindu. Because, as Maine² explains it, not only has the Hindu woman "singularly full power of dealing with the *strîdhana*, — not only is the husband debarred from intermeddling with it save in extreme distress, -- but when the proprietress dies, there is a special order of succession³ to her property, which is manifestly intended to give a preference, wherever it is possible, to female relations over males".

c9.s1.18

² ^2 *Early History*, Lect XI, p. 334. cf. Coomaraswamy's *Mediaeval Sinhalese Art*, p. 35 for the corresponding position of the Ceylonese woman. *Vide* Boutmy's *English People*, pp. 115-216.

c9.s1.19

³ ^3 *Mit*, Ch II, sec XI, 9, 12, 13; Ch I, sec III, 8, 9, 10. But the *Dâya* law (Ch IV, sec II) is different.

c9.s1.20

One need not read into all this a conscious anticipation in India of the theory adumbrated by Mill in his *Subjection of Women*. We are not confronting here the feminism of today, i. e. the economic independence and political enfranchisement of women such as are advocated by Bebel the German socialist in his classic on *Woman*. Rather, on the whole, the mind of the Hindu in regard to Private Law was, to all intents and purposes, not much distinct from that of the European.

c9.s1.21

But first, it should be realized, however, that so far as the *pater-familias* of the patriarchal family is concerned, the spirit of Hindu jurisprudence was not more servile than that of the early Roman Twelve Tables (B. C. 452). Secondly, the ecclesiastical law of Europe provides that the first charge of a man's property is the purchase of "masses" for his soul. And here the Roman Catholic meets on a common platform the Hindu with his doctrine of "spiritual benefit",¹ according to which property is generally held to be intended for the discharge of sacrificial duties (*pinda*) for the manes of the dead.

c9.s1.22

¹ G. C. Sarkar, Ch IX, pp. 311—317. For the resemblances between Hindu, Greek, Roman and Germanic laws see Gibelin, Vol. I, pp. 52—55, 85, 114, 292, 302.

c9.s1.23

Culturally speaking, besides, the mentality of the Hindu woman will be found to be identical with that of the Latin (French and Italian) as described in Joseph-Barthélemy's *Le Vote des Femmes*. Nay, it will be not much different from the female *psyche* of the United States in the early nineteenth century as analyzed by Calhoun in his *Social History of the American Family*.

c9.s1.24

Institutional *Viriya* (Energism).

c9.s1.25

Now that during the epoch of the "white man's burthen" the Hindu has been deprived of the chances for displaying an aggressive secularism except, if at all, only as a "second fiddle" to the "natural master", there has grown up a general scepticism among Eur-American scholars even as to the capacity of Hindus for organized activity and institutional achievements.² This occidental suspicion about the Orient has absolutely no foundation in facts. The Hindu *viriya* (i. e. energy or genius) for organization and cooperative endeavor has exhibited itself as much in the political as in the non-political spheres of social life.

c9.s1.26

² Smith's *Early Hist.*, pp. 357, 477; *Akbar*, 385; Ox. Hist., pp. XI, XII. Majumdar's *Corporate Life in Ancient India* is a reply to the sweeping statements of Smith, as Mookerji's *History of Indian Shipping* is to the conventional theory regarding the alleged "splendid isolation" of Hindu culture.

(a) Samgha ("group-person")

c9.s1.t1.1

One Hindu institution at least is known to orientalists. This is the *samgha* or church of Buddhist Asia. Necessarily it is as old as Śâkya the Buddha (B. C. 623—543). It has really had a longer history, since in Pâṇini³ the philologist's time (B. C. 650) *samgha* was the "generic" term for any public body, incorporated association or corporation. Its social significance was equivalent to that of the Greek *polis* (lit. city)

c9.s1.t1.2

³ III, 3, 42; V. 3, 112—114; Majumdar, p. 90; Mookerji's *Local*, 32, 33; Bhandarkar's *Anc. His. Ind.*, pp. 141—153. For the date of Pâṇini see R. G. Bhandarkar's discussion in the *Bombay Gazetteer*, 1896, Vol. I, pt. II, p. 141, *The Pos. Back. Hind. Soc.*, Vol. I, p. 69, and Jayaswal's note in the *Ind. Ant.*, May, 1918. For *polis* cf. Gilbert Murray's *Rise of the Greek Epic*, pp. 31, 79, Schömann's *Antiquities of Greece*, 91, 92, 95, 96, 121, 122, and Dunning's *Political Theories*, Vol. I, 51, 55, 56.

c9.s1.t1.3

as popularized by the political philosophers of Hellas. The different organized bodies of the seventh century B. C. were known as *samghas* of different species.

c9.s1.t1.4

Thus there was the *pûga* characterized as *samgha* of a special denomination. It was a corporation of men I) belonging to different social groups (*nânâ-jâtîyâh*) and (II) practising diverse (no regular or fixed) professions (*aniyata-vrittayah*), but (III) distinguished from other *samghas* by having a preponderance of economic or secular interests (*artha-kâma-pradhânâh*). Such an association was either a rural commune or a *municipium*.

c9.s1.t1.5

A second *samgha* of the day was the *vrâta*. It was similar to the *pûga* in having the first two "properties"; but its *differentium* was indicated by the concept of *utsedha-jîvinah*, i. e., the profession of blackmailing, brigandage or hooliganism as a regular means of livelihood. The European counterpart of the Hindu *vrâta* was the order of *Ritter* or "Knights" whose exploits have received a romantic treatment in Goethe's *Götz* and Schiller's *Räuber*. The modern Bengali novelist Bankim Chandra Chatterji's *Ânanda Matha* (The Abbey of Bliss) is likewise an idealization of a similar corporation.

c9.s1.t1.6

The *âyûdha-jîvi samgha* was a third organized body of Pâṇiṇi's days. As the name implies, it was an association of men who "lived by the profession of arms". Men proficient in military tactics used evidently to incorporate themselves into bands, and were available most probably for mercenary service. This *samgha* was therefore distinct from the *vrâta*.

c9.s1.t1.7

The world into which Śâkya was born was thus familiar with several incorporated associations.¹ It was only a commonplace floating term of the period that Buddhist *Vinaya* (discipline, organization, government) literature of the fourth century B. C. adopted as the name of an ecclesiastical polity.

c9.s1.t1.8

¹ Fick's *Die Soziale Gliederung im nordöstlichen Indien zu Buddha's Zeit*, pp. 172—183 (chapter on *Die Gilden der Kaufleute und Handwerken*).

c9.s1.t1.9

But the secular significance of the term continued to prevail as current as ever. For, about the same time the school of politics associated with the name of Kautilya² described all corporate bodies by Pâṇiṇi's term. In the Kautilyan category there were at least two classes of *samgha*. One class consisted of those who "lived by the science of economics" (*vârtâ-śâstropa-jîvinah*) i. e., were engaged in farming, industry, commerce or banking. To the other class belonged those with whom the "epithet of *râjâ* or King was a source of social existence", i. e., who were rulers by profession. In Kautilya's days, therefore, the ordinary *śreṇî* or gild was as good a *saṃgha* as the republic or non-monarchical body of people among whom "every person is a *râjâ*".

c9.s1.t1.10

² *Artha-śâstra*, Bk XI, ch. 1.

c9.s1.t1.11

Thus during the period that closed with Alexander's failure in India and Chandragupta Maurya's expulsion of Hellenistic Greeks from Afghanistan Hindus were used to at least six classes of public association, viz. the *pûga*, the *vrâta*, the *âyûdha-jîvi*, the *śreṇî*, the *râjâ*, and the *vihâra* (monastery or church). While the first four would have been usually known by their special names, the common term *saṃgha* would have denoted the republics of the Lichchhavikas, Vrijjikas and others as well as the ecclesiastical organization of Buddhist monks.

(b) Samûha ("group-person")

c9.s1.t2.1

In the later literature of political institutions the term *saṃgha* seems to have dropped out of general use. The most "generic" term for *polis* with the authors of the *smṛiti-śâstras*, at any rate, is *samûha*. In the fourth century A. C. Yâjnavalkya¹ used it generically for any corporation. *Samûhas* were known to be divided into various classes differing from one an other according to the nature of objects for which the association was instituted or the kind of persons organizing themselves into a *polis*. One of these was the *śreṇî*, i. e. gild, a second was the *naigama* (also *nigama*) or body of traders (the "gild merchant"), and a third was the *pâṣaṇḍi*, or group of socio-religious heretics and dissenters, e. g., Buddhists, Jainas and other denominations; and *gaṇa* (town) was the fourth.

c9.s1.t2.2

¹ II, 192.

c9.s1.t2.3

The use of *samûha* as a "genus" is to be noticed in Mitra Miśra's *Vîra-mitrodaya*,² a commentary on Yâjnavalkya. For according to him the *pûga* is a particular class of *samûha*. It was made up of those who "lived at the same place", but belonged to different social orders, the so-called castes, and followed different professions. It was thus a territorial concept, the term for a village or town, having the same connotation as in the grammar of Pâṇiṇi. In Vijnâneśvara,³ also, another commentator of Yâjnavalkya, *samûha* is generic, for he defines *gaṇa* to be a division of *samûha* and considers *grâma* (village) and other settled areas as belonging to this species. The same use of *samûha* is to be seen in Kâtyâyana,⁴ a jurist cited by Mitra Miśra.

c9.s1.t2.4

² Majumdar, 17, 58; Mookerji's *Local*, 31.

c9.s1.t2.5

³ Majumdar, 17, 58; Mookerji's *Local*, 31.

c9.s1.t2.6

⁴ Majumdar, 17, 58; Mookerji's *Local*, 31.

c9.s1.t2.7

The milieu that produced the *dharma* or *smriti śâstras* (law-books) was therefore one in which at least four or five institutions, the *śreṇî*, the *naigama*, the *pâṣaṇḍi*, the *gaṇa* or the *pûga* were centres of public life.¹ The common name for all of these bodies was *samûha*.

c9.s1.t2.8

¹ Jolly's *Recht*, p. 136.

(c) Gaṇa (municipium and republic)

c9.s1.t3.1

But it would appear that people were using some of these terms interchangeably. The same institution was being described by different names, and the same name was being given to different institutions. We have just noticed that Vijnâneśvara uses *gaṇa* where Mitra Miśra employs *pûga* to denote the identical "group-person". Both commentators were right because their common authority Yâjnavalkya² himself was responsible for the confusion, as he had used *gaṇa* in the sense of a town-corporation. Nârada³ (450 A. C.), another jurist who preceded these scholiasts had also done the same. Indeed the same confusion is to be noticed in all writings on *smriti* (tradition) and *dharma* (law).⁴ Kâtyâyana similarly identifies *gaṇa*⁵ with *pûga* when he defines it as a *samûha* of *kulas* or families.

c9.s1.t3.2

² II, 8, 187—192, 361.

c9.s1.t3.3

³ Introduction, I, 7, X, 2.

c9.s1.t3.4

⁴ Manu III, 164, IV, 209; cf. also Śukra, IV, v, 59—62.

c9.s1.t3.5

⁵ *Viramitrodaya*, p. 426; Majumdar's interpretation (p. 94) of Kâtyâyana's passage is untenable; cf. Mookerji's *Local*, 30.

c9.s1.t3.6

During the early centuries of the Christian era, the term *gaṇa* appears to have been elevated one flight up in the series of "communities". From its status as the name of a *grâma* and *pura*, the *domus* and *civitas* of mediæval European jurisdictions, it came to imply also the *regnum* of a whole people, thus giving rise to another confusion in language. In the eulogies on military triumphs or other meritorious deeds inscribed by poets of the period we find the term being used to describe the association of "self-rulers", i. e., of "poly-archal" peoples organized on the principle of *sva-râj*. Republican nationalities of the Yaudheyas, Mâlavas and others are thus known as *gaṇas* in the coins⁶ and inscriptions⁷ of the Ândhra-Kuṣân and Gupta times. The poets of the *Mahâbhârata*⁸ also described the states in which all were "equal" by the same epithet.

c9.s1.t3.7

⁶ Cunningham's *Coins of Ancient India*, pp. 76—79; Rapson's *Indian Coins*, p. 15; Banerji's *Prâchîn Mudrâ* (Ancient Coins), Ch. VI.

c9.s1.t3.8

⁷ Fleet's *Gupta Inscriptions*, pp. 14, 152. *Ep. Ind.* 1905—06, pp. 44—47.

c9.s1.t3.9

⁸ *Śânti*, Ch. CVII, 31—32.

c9.s1.t3.10

Neither *samûha* nor *gaṇa*⁹ seems ever to have acquired the comprehensive connotation of *samgha*. But the diversity of Gierke's "group persons" in Hindu public life through the ages is self-evident. The attempt on the part of grammarians, logicians, political theorists and lawyers to analyze the concept of a public body and differentiate its various species is also significant. The story of Hindu public life has therefore partially to be sought in the development of *samghas*, *samûhas* and *gaṇas*,¹ the different categories of what may be called the Asian *polis*.

c9.s1.t3.11

⁹ Note the use of *gaṇa* in Jaina literature. cf. Jacobi's *Jaina Sutras*, 113, 273, 286, 306.

c9.s1.t3.12

¹ ^1 A brochure given over to the analysis of these and other new terms in indology from the constitutional and economic viewpoints is a desideratum for comparative politics.

Linked texts (9)