Ownership and inheritance in Sanskrit jurisprudence

• Main Author: Fleming, Christopher
• Other Authors: Minkowski, Christopher
• Published: University of Oxford 2017
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.748815

An account of theories of ownership (svatva) and inheritance (daya) in Sanskrit jurisprudence (Dharmashastra). This thesis concerns the development of the concept of ownership (svatva) in Sanskrit jurisprudential literature (Dharmaśāstra) and in Sanskrit philosophical literature (Mīmāṃsā and Navya-Nyāya) between the 11th and 19th centuries CE. Scholastic Sanskrit literature (Śāstra) boasts one of the world's most detailed and sustained inquiries into the philosophical nature - and legal incidents - of ownership. Classical jurists, ritual hermeneutists and logicians who wrote in Sanskrit engaged in often acrimonious debates: about what ownership is, about how one becomes an owner, about who can be an owner (and who can be owned), and about where to draw the line between Śāstric injunctions and the facts of the empirical world. In what follows, I examine the mutual relationship between shifting philosophical theories of ownership and juridical models of inheritance (dāya) at four watershed moments in Indian intellectual history: the compilation of Vijñāneśvara's Ṛjumitākṣarā (12th Century); the emergence of the university of Navadvīpa (1514); the Brāhmaṇasabhās of the Kāśiviśveśvara temple in Vārāṇasī (1600-1669); and the creation of Anglo-Hindu Law (1772-1825). I argue that different Dharmaśāstric models of inheritance - in which families held property in trusts or in tenancies-incommon - emerged in tandem with related developments in the philosophical understanding of ownership in the Sanskrit text -traditions of hermeneutics and logic. I demonstrate that, contrary to recent work on the subject, one can talk meaningfully about regional 'schools' of precolonial (indeed, even colonial) Sanskrit jurisprudence to the extent that one can identify consistent lines of argument that were strongly associated with specific academic institutions, scholastic lineages and disciplinary techniques in different regions of India. The thesis makes contributions that will be of use to specialized scholars of Sanskrit knowledge systems and to legal historians in a number of ways. First, the thesis reconstructs the intricacies of the evolution of ownership in a collection of hitherto unexamined textual material. Second, it posits a greater connection between Sanskrit jurisprudence and philosophy than understood previously. Third, it connects the scholastic study of ownership with the self-fashioning and competitive agendas of Brāhmaṇa lineages in early modern university towns such as Mithilā, Navadvīpa and Vārāṇasī. Finally, it problematizes the fashionable truism of a profound epistemic rupture between pre-colonial Sanskrit jurisprudence and colonial Anglo-Hindu law. The thesis suggests a need for a shift in the contemporary scholarly approach to Dharmaśāstra away from inherently flawed considerations of the obvious disjunctures between Dharmaśāstra and positive, Anglo-American 'law,' and militates for an intellectual historical approach to Dharmaśāstra as an expert, scholastic, form of jurisprudence. In doing so, the thesis opens up new possibilities for Sanskrit textual history, Indian legal history and comparative jurisprudence.