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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c9.s4.t4: 4. Functional Sovereignty

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c9.s4.t4

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4. Functional Sovereignty

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Now, *śreṇîs* had their own judicial tribunals. The craftsmen had thus the privilege of being tried by the jury of their own peers. In the matter of legal decisions, if we may take Brihaspati³ as a narrator of actual facts, even court practice had to yield to the opinion of gilds. Corporations were “invested with the power to decide law suits”,⁴ and their meetings were declared to be “resorts for the passing of a sentence”.⁵ As such, gild courts may have had jurisdiction over cases affecting the community at large and not solely over their own disputes. But it is to be observed that the judicial system of the Maurya Empire for which alone we have some reliable evidence does not have a place for gilds as public tribunals.

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³ II, 26.

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⁴ Nârada, I, Legal Procedure.

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⁵ Brihaspati, I, Constitution of a Court of Justice, 26—30.

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Of equal importance was the legislative or law-making power of *śreṇîs*. The gilds “made” or “declared” their own laws and had their own usages binding upon them.¹ As a rule, the state could not institute any regulations over-riding these gild customs. We learn from Manu, Brihaspati and other codifiers of laws or customs that "rules of their own profession" were recognized by the state for cultivators or peasants and farmers, artisans such as carpenters or others, artists, money-lenders, companies of tradesmen, dancers, persons wearing the token of a religious order such as the Pâśupatas, and even robbers.² Gautama also, the earliest of the writers, observes that peasants, traders, herdsmen, moneylenders, and artisans have authority to lay down rules for their respective classes. And in the suits brought before the state judiciary in appeal from gild tribunals, the royal judges were expected to learn the facts and rules "from those who in each class had authority to speak". The king's officers were to give legal decisions "in accordance with what were declared to be the rules in the *śreṇî*".³

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¹ ^1 *Mahâ*, *Śânti*, Ch. 54, 20.

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² ^2 Brihaspati, I, Constitution of a Court of Justice, 26; *Śukra* IV, v, lines 35—36; Manu, VIII, 40, 41; Nârada X, 2, 3.

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³ ^3 Gautama, XI, 21, 22.

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Last but not least, the administrative *sva-râj* or "self-determination" of *śreṇîs* was practically unconditioned. They could exercise their governmental power as almost sovereign units, as *imperia in imperio*, i. e., without depending on the sanction of the state. The right of the *samûha* to punish even the *mukhya* or president is stated by Kâtyâyana as well as by Mîtra Miśra⁴ who cites him while interpreting Yâjnavalkya's opinion on the question. In Brihaspati's law also the gild-*sabhâ* could normally punish one of the guilty members, ostracize or even banish him, as has been pointed out above. Only, if in boycotting him the gild were "actuated by hatred" might the state "restrain" the corporation.⁵ The ultra-democratic constitution of Chinese gilds was all but outdone by the *samûhas* of India.⁶

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⁴ ^4 *Vîra-mitrodaya*, p. 448; Yâjnavalkya, II, 187; Majumdar, pp. 12, 21, 22.

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⁵ ^5 Brihaspati, XVII, 18—19.

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⁶ ^6 Morse's *Gilds of China*, pp. 9, 12.

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The executive, judicial and legislative autonomies⁷ of *śreṇîs*, or the *laissez faire* enjoyed by these "local" bodies, must have been considerably restricted and circumscribed by the "centralizing" exploits of successful empire-builders or "nation"-makers.⁸ But archaeological researches have not as yet unearthed any evidence as to the adverse effects, inevitable as they must have been, of the *śâsanas* (i. e. legislative enactments or statutes and ordinances) of *sârva-bhaumas* on the immunities of gild-soviets. It is apparent, however, that, on the whole, the *sva-râj* of Hindu *śreṇîs* i. e. the "functional" sovereignty of India's old economic associations was essentially an analogue if not a replica of the *liber burgus* of mediæval Europe in so far as this latter was achieved by and dependent on gilds and crafts.¹

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⁷ ^7 In regard to coins issued by gilds see Banerji's *Prâchîn*, p. 18, Cunningham's *Coins*, p. 59, Mookerji's *Local*, p. 214 and Marshall's article in the *Arch. Sur. loc. cit.*

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⁸ ^8 All economic and political interpretation of Hindu gilds must be regarded as hypothetical until light is thrown on this important constitutional question. This aspect of the problem has escaped the notice of antiquarians.

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¹ Goodnow's *Municipal Government*, pp. 55—61, 137; Brissaud's *History of French Public Law*, 253; Gross, Vol. I, pp. 105, 159—162; Sidgwick, p. 253; Sarkar's *Pos. Back*, Vol. II, p. 98.

Cites (8)