Mīmāṃsā and the Mitākṣarā School of Jurisprudence

This chapter traces the development of the concept of ownership in Sanskrit hermeneutical (Mīṃāṃsā) and jurisprudential (Dharmaśāstra) texts from approximately the first millennium CE to approximately the fifteenth century CE. The chapter draws attention to two linked trends in Indian jurisprudential history: (1) the development of a philosophical concept of ownership that occurred in the Sanskrit hermeneutical tradition centuries before the earliest logicians (Naiyāyikas); and (2) the recalibration and redeployment of several arguments concerning this Mīmāṃsā-derived concept by medieval Dharmaśāstra commentators who self-consciously framed their approaches to the jurisprudence of inheritance as further refinements of Vijñāneśvara’s Ṛjumitākṣarā (eleventh to twelfth centuries CE). The core legal and philosophical ideas analyzed are ownership-by-birth (janmasvatva) and ownership as an extra-śāstric (laukika) phenomenon respectively.

Conclusion

By roughly 1825 (the date of the publication of Sir Thomas Strange’s Elements of Hindu Law), the courts of the Bengal, Bombay, and Madras Presidencies enforced Colebrooke’s system of schools of Hindu personal law with the assistance of native Paṇḍitas.1 This system involved enormous variation. A Hindu family who moved from one region to another would remain under the jurisdiction of the school of law of their place of origin. Furthermore, the various schools of Hindu law were enforced differently in the Bengal, Bombay, and Madras Presidencies....

Introduction

Something is someone’s property (when) someone is eligible to use it as desired. Śabarasvāmin, Mīmāṃsābhāṣya (fourth century CE).1 There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right....

Navya-Nyāya and the Maithila and Gauḍa Schools of Jurisprudence

This chapter examines two schools of Jurisprudence that emerged in eastern India between the fourteenth and the sixteenth centuries CE: that of Mithilā (Maithila/Miśra) and Bengal (Gauḍa). These schools of jurisprudence, in contrast to the school of thought that developed around Vijñāneśvara’s Ṛjumitākṣarā, were neither strictly academic nor pan-Indian. Rather, they were deeply regional (in interest, influence, and self-identification), isolated almost completely from Vijñāneśvara’s Mitākṣarā and its Mīmāṃsā-derived theories of ownership, highly competitive (particularly in Bengal), and influenced by Navya-Nyāya philosophical debates about ownership. The core legal and philosophical ideas analysed are ownership-by-the-death-of-the-previous-owner (uparamasvatva) and ownership as a śāstric (śāstraikasamadhigamya) phenomenon respectively.

The Bhāṭṭa School of Benares

This chapter examines the reception of Dāyabhāga-centred, Gauḍa jurisprudence and Navya-Nyāya theories of ownership in the Dharmaśāstra and Mīmāṃsā writings of the Bhaṭṭa family of Mahārāṣṭrian Deśastha brāhmaṇas who led the southern (Dākṣinātya) community of paṇḍitas in Vārāṇasī between the sixteenth and seventeenth centuries. The Bhaṭṭas’ polemic against the Navadvīpan, Navya-Nyāya-inflected school of jurisprudence marks a watershed moment when the Mitākṣarā and its Mīmāṃsā-derived theory of ownership were incorporated into a broader, distinctively southern scale of Dharmaśāstra texts that framed the Mitākṣarā/Dāyabhāga divide as a debate between Mīmāṃsā and Navya-Nyāya theories of property. By the close of the seventeenth century, one could speak of two complex, comprehensive schools of Dharmaśāstric thought, inflected by Mīmāṃsā and Navya-Nyāya philosophy, centred around pedagogical networks in Vārāṇasī and Navadvīpa, taking paradigmatically divergent approaches to the problem of inheritance, and emanating from commentarial literature on the Mitākṣarā and Dāyabhāga respectively.

Anglo-Indian Schools of Hindu Law

This chapter turns to the British encounter with traditional Sanskrit learning in the late eighteenth and early nineteenth centuries and traces the construction of schools of Hindu Law in colonial India between 1772 and 1864. The chapter examines three digests of Sanskrit Dharmaśāstra that were compiled at the behest of the East India Company and whose English translations were utilized by British jurists the Ṣadr Dīwānī ‘Adālats (colonial civil courts): the Vivādārṇavasetu (translated in 1776 as A Code of Gentoo Laws), the Vivādabhaṅgārṇava (translated in 1795–6 as A Digest on Contracts and Succession), and the Dharmaśāstrasamgraha (which likely served as an impetus for Henry Colebrooke’s Two Treatises). Furthermore, it argues that these colonial-era Dharmaśāstra digests articulate discernible schools of jurisprudential thought regarding ownership and inheritance that frame themselves using the regional terminology of the early modern Dharmaśāstrins whose work is examined in Chapters 2 and 3 of this book. The treatises do this by recapitulating and by enhancing the eastern and southern scales of Dharmaśāstra texts that developed originally in Navadvīpa and Vārāṇasī in the sixteenth and seventeenth centuries.