Law and Religion: Law and Religion in Buddhism
LAW AND RELIGION: LAW AND RELIGION IN BUDDHISM
The study of secular law in Buddhist culture and society is a relatively new and intriguing area of research. This entry will first describe the Buddha's view of society and his legal decision making. Then it will review monastic offenses, punishments, and procedures, followed by a discussion of the first Buddhist king, Aśoka, and the growth and spread of Buddhism. In the final sections, three patterns for transmission of Buddhism will be described, one with a legal system, one without, and one in an area of legal pluralism. Then four other types of religious influence on a legal system will be discussed, foundational concepts; rituals; legal subject matters; and stories, art, and literature. The conclusion will present the current state of the field.
Law at the Time of the Buddha
Distinctions in modern academic discourse among politics, religion, law, and morality would have been incomprehensible in the intellectual culture of Brahmanic India of the fifth century bce. When Siddhārtha Gautama first sat under the pipal tree, law and justice were connected to the idea of dharma, the proper and natural development of the social and universal orders through morality and religious teaching. Given these interconnections, there is still little doubt that Siddhārtha Gautama was concerned with legal matters as we now define them. He was born heir apparent to the throne of the regional kingdom of Śākya in a time when princes were trained extensively in the Sanskrit smṛti legal literature, especially the Dharmaśāstras and the Dharmasūtras. He was taught the ritual and legal roles of a king who stood as the ultimate authority for maintaining the peaceful relations of his subjects. His turn away from his family obligations, from the opportunity to be king, and more specifically, from the administration of legal power was a personal renunciation but not an indicator of either a lack of interest in or a rejection of the importance of rules of conduct and social order.
Buddha's View of Society
The enlightened Buddha conceived of society as having two parts—a monastic saṅgha seeking enlightenment through his teachings and a supportive patron laity that donated to the saṅgha to make merit. He began immediately to teach, collect disciples, and form the new monks into a social order by expounding the rules and requirements of the group. These rules were later collected and written down as the Vinaya Piṭaka. As a central Buddhist teaching and one third of the Tripiṭaka, the Vinaya provides us with the clearest information about the Buddha's prescriptions as to the required behavior for ordained monastic practitioners.
Decision Making by the Buddha
The Suttavibhaṅga section of the Vinaya is a series of encounters between the Buddha and a monk defendant. In a standardized narrative sequence, a monk accuser approaches the Buddha and presents the infraction; then, the Buddha asks questions of the perpetrator to determine his state of mind and knowledge of the event. Finally, he makes a casuistic determination about the propriety of the act, often berating the defendant repeatedly, and announces the punishment that should follow as well as possible mitigating factors. Through a case-by-case process of institutional definition, the Buddha built a legal outline of the proper behaviors, speech, clothing, and rituals of the saṅgha.
Monastic Offenses, Punishments, and Procedures
The Prātimokṣa, or precepts, is a list of offenses in the Vinaya numbering from 218 to 263 for males and more for females. They range from the most serious—a violation of celibacy, theft, and intentional murder—to the least significant, concerning attire and walking style. To inculcate the rules of the social order, all Buddhist saṅghas chant the Prātimokṣa twice a month. Each of these offences is matched with a category of punishment, from permanent dismissal, called "defeat," to a combination of formal hearing in front of the saṅgha, probation, forfeiture, expiation, and acknowledgment. Suspension and formal reprimand were also possible.
The Prātimokṣa also contains a list of the procedures for resolving legal disputes within the monastery itself. It outlines types of verdicts that are possible, the definition of innocence, seven ways to settle a case, the definition of a majority verdict, insanity pleas, and levels of culpability. The Khandhaka section of the Vinaya provides the working structure of the monastery, the rules by which the community is organized. It regulates the wearing and sewing of robes, types of food, drink, medicine, and times of eating and sleeping. Each monastery could also develop its own separate constitution. The Buddha determined that after his death, legal decisions were to be made by a quorum of monks reaching a consensus, each monk having an equal vote. The resultant decisions of the saṅgha, called announcements of action, could concern any aspect of monastic life, including ordination, debate, ceremonies, and discipline. The rules of the Vinaya are similar in content and form throughout the Buddhist monastic world.
The Role of Monasteries in the Community
Until more recent times with the advent of state-supported schools and bureaucratic offices, Buddhist monasteries were often the local repositories for documents, artistic training, and medicine, as well as centers for education in writing and reading. In some societies but not all, Buddhist monks are tightly embedded in their communities as the ritual specialists. They provide ceremonies for the laity for house openings, new businesses, births, dangerous periods, exorcisms, illness, and death, all functions currently legally regulated by modern states through certification, licensing, business contracts, and social work. In pre-1960 Tibet monks were also often the literate legal specialists, maintaining legal records, drafting documents, presenting and arguing cases, and fashioning legal settlements for both monastic and lay parties.
The lay patrons of the saṅgha, who ranged in status from the lowest outcaste to local kings such as King Bimbisāra of Māgadha and King Prasenajit of Kośala were expected to adopt their own set of vows. As patrons, they were charged by the Buddha with providing the necessities of food, clothing, and shelter in the form of vihāra, resting lodges and ārāma, residences for the monks. These patrons also requested teachings from the Buddha on religious, political, and legal matters. To King Prasenajit, inclined to the pleasures of wealth, the Buddha lectured about subduing sense pleasures, living righteously, and the inevitability of impermanence. In legal matters, the Buddha advised him to not elevate himself above others, to exercise judicious reason, and to always observe the traditional rules of royal conduct. In the last days of the Buddha's life, King Ajātaśatru, the son of King Bimbisāra, sent his minister to inquire whether an attack against an enemy would be successful. The Buddha responded with a discourse on the seven conditions necessary for a just and prosperous state.
The Model of a Buddhist King
The Sutta Piṭaka section of the Buddhist canon contains discourses of the Buddha on kingship that praise the election of leaders who then rule through compassion, morality, and social justice. The first exemplar of a Buddhist king, King Aśoka (third century bce) of the Māgadhan Empire, came to power a hundred years after the Buddha's death. While uniting much of the South Asian continent, Aśoka experienced a particularly bloody victory and converted to Buddhism. He placed stellae as a confirmation of his faith at every outpost of his realm that described the importance of the Buddhist principles of noninjury, truthfulness, gentleness and generosity. King Aśoka made the welfare of his subjects the primary objective of his government and sent out officials to build way stations for travelers, dig wells, provide medicine, and care for orphans, the sick, and the elderly. Abolishing torture and the death penalty, he sought equal legal treatment of criminal infractions throughout the empire. His reign remains the best example of a government committed to putting Buddhist principles into practice.
Growth and Diffusion of Buddhism
From the huge monasteries of classical India, the teachings of the Buddha moved out with great rapidity for over fifteen hundred years until the destruction of Nālandā University in 1198 and then the influx of Muslims three hundred years later. As early as 250 bce, Aśoka's own son, the monk Mahinda, took the Buddhist dharma in the form of the Pali Theravādan canon to Sri Lanka. With translation of these texts into the local Sinhala dialect, an ideology that fused race, religion, and region, was adopted and continued by successive Buddhist states. Today, Buddhism remains the major religion of the island.
Historical transmission of Buddhism with law
Sri Lanka is an example, along with states such as Tibet, Burma, and Thailand, of areas that received Buddhist teachings from another country at the same time that they unified and developed advanced legal and administrative procedures. This is the first type of historical transmission of law that occurs in a Buddhist context. From this acculturation process evolved jurisprudential cultures, legal processes, rituals, and law codes that were heavily inspired by Buddhism. Recalling the reign of King Aśoka, the idea of the compassionate chakravartin, or wheel-turning king, often became the model for the ruler in these states.
The first king to unify Burma was King Anawrata of Bamar, who created a Buddhist capital at Pagan in 1057 ce. This Pali Buddhist king worked with monks to create the dhammasat and rajasat secular law codes based on Buddhist treatises, Hindu law, and the Sinhalese version of the Vinaya. In the following centuries, these law codes spread across what are now Burma, Thailand, Cambodia, and Laos, adapting to the local areas, languages, and spirit cults. In succeeding dynasties, especially under the Konbaung Empire (1752–1885), Burmese Buddhism moved down into the village level, with local monasteries taking over the functions of educating the youth, providing a standardized Buddhist ethical code, and unifying the country culturally and legally.
Transmission of Buddhism to a developed state
A second type of Buddhist transmission occurred when the religion entered a state that already had an advanced literate tradition, including a legal and political administrative apparatus. China is perhaps the best example of this second type. Traveling along the Silk Route, merchants brought Buddhism into several Central Asian kingdoms, but when it reached the area of what is now known as China around 50 ce, it encountered resistance in the form of an in-place legal system already strongly based in Daoism and Confucianism, with its ties to family and a prescribed set of harmonious social relations.
While Buddhism had a strong influence on Chinese ethics, art, architecture, and literature, some scholars have argued that it did not have a strong legal impact on the various Chinese Buddhist states from the Han (206 bce–220 ce) through the Tang (618–907) into the Song (960–1279) dynasties, or even in the brief revival of Buddhism under the Mongolian Yuan dynasty (1215–1368). Instead, they describe a legal administration controlled largely by Confucian-trained officials, with Buddhist monasteries vying for local political power and popular support. While this is an enormous simplification of a very long period of complex history, it is a thesis that is worth investigating as Buddhist legal research continues. In the Tang period, for example, a time of flourishing Buddhism, the great Law Code (Ku T'ang-lu shu-yi ) was concerned in its four main divisions—the code, the statutes, the regulations, and the ordinances—with the prevention, apprehension, and punishment of crime and with commercial law from a Confucian point of view. Scholars also report the use of the legal system to persecute and harass Buddhist monasteries at various points in Chinese history.
The record of the outer-lying kingdoms is mixed. The Tanguts of the Xixia dynasty (1038–1223), located in the current Chinese provinces of Gansu and Ningxia, produced law codes strongly influenced by Buddhism. However, the Vietnamese law codes derived from Chinese states such as the Lê code is described by its translators as having a Confucian core. The situation in Korea and Japan is similarly problematic. King Sosurim of the north state of Koguryŏ officially introduced Buddhism into what is now called Korea in 372 bce and at the same time established a school for Confucian learning. The legal codes and centralized administrative system that he promulgated during his reign are arguably not heavily influenced by Buddhism. Similarly, although Prince Shōtoku promoted Buddhism as the state religion of Japan at the end of the sixth century ce, scholars have argued that the Confucian tradition has always accompanied and superceded Buddhism's effect on the Japanese legal system and law codes. As more research is done on the relationship between law and Buddhism in these cultures, new information and perspectives will emerge.
Buddhism in legal pluralism
A third category of the relationship between Buddhism and law is legal pluralism. Many modern states such as Sri Lanka, Vietnam, Laos, and Mongolia have layers of colonialism, fragmentation, ethnic struggles, and global influence that have resulted in particularized legal pluralisms. Sri Lanka, an original Buddhist legal state, has overlays of Kandyan law, Catholic Portuguese influence (c.1505–1658), Calvinist Dutch law in certain regions (c. 1658–1796), and a period of English colonial rule from 1795 until independence in 1948. With ethnic struggles between Buddhists, Hindus, and Muslims, the recognition of the fishing laws of the Mukkuvar people and the Tesavalami legal code of the Tamil people of the Jatna region, legal pluralism defines modern Sri Lanka. This complex interplay of legal forces has resonance in modern-day Vietnam as well, with several forms of Theravādan Buddhism overlaid by Chinese Mahāyāna Buddhism and Confucian legal codes from an invasion in the fifteenth century. Spanish Catholicism in the sixteenth century was followed by French colonists, the rise of the Viet Minh, and occupation by the United States in the 1950s and 1960s.
A Typology of Nonstate Buddhist Influences on a Legal System
Interactions between Buddhism and law also occur when (1) basic Buddhist principles and reasoning processes, (2) Buddhist practices, rituals, and procedures, and (3) Buddhist ideas about legal subject matters such as murder, theft, inheritance, and land tenure are employed by the population when using the legal system. Finally, (4) Buddhist ideas can be captured in literature such as the jātaka tales of the former lives of the Buddha, in puppet plays, art, or numerous other aspects of culture and then influence the way in which a legal system operates.
First, legal systems are strongly influenced by the foundational ideas that their participants employ, such as the concepts of causation, intention, cosmology, conflict, notions of the community, karma, compassion, identity and subjectivity, status, jurisdiction, sanctuary, shame, apology, and evil. For example, in Buddhism the Christian theological problem of evil does not exist. Instead, an illegal, evil, or immoral act committed by a human being is the result of either received karma from a previous life or an intentional choice made during this lifetime. Illegal acts are an inevitable part of the human state of saṃsāra that is defined by duḥkha, suffering due to human hatred, greed, and delusion. These three elements of suffering are the root cause of all antisocial acts by individuals. Given that individuals who do not follow the dharma are ignorant of the perpetual cycle of saṃsāra, open conflict in the form of lawsuits and altercations are to be expected. Even legal categories such as lying and theft exist only as a result of human greed and pride. Thus, legal controversies in most Buddhist societies indicate a lack of knowledge and understanding of the dharma.
Karma is another Buddhist concept that can influence legal proceedings. The reason for an illegal occurrence in this lifetime could be found in one of several previous lives or in this life; the punishment of an illegal act in this life could occur in this life or in a future life. Studies of the use of karma as a rationale for not pursuing an injury case in a modern Thai city have demonstrated this. One scholar has found that individuals who do not sue commonly state that their current injury is the karmic result of their own previous, perhaps unintended, negative acts. Strikingly, injury suits are decreasing in this city and karmic rationales are being used more frequently with the increase in globalism.
Legal practices and rituals
In pre-1960 Tibet, monastic ritual debate techniques were one of the foundations of legal argumentation. Specialists in monastic legal decision making were often appointed to represent a monastery in a secular civil suit. Also, ritual ceremonies of catharsis and apology often follow lawsuits in Tibet, Japan, and Burma. This is a rich area for further investigation.
Legal subject matters
Third, ideas about the nature of theft and the factors that should be considered in assessing a case of theft in the Tibetan law codes were closely tied both to the customary rules of the plateau and to the discussion of theft in the Vinaya. Criminal cases were assessed by the four factors of Nāgārjuna, a great Indian Buddhist scholar of the second century, who looked to the object of the action, the motivation of the actor, the action itself, and the completion of the act. These four factors were written into the Law Codes of the Dalai Lamas. By several reports, these ideas of how to factor a case of theft were employed by the Tibetan population in their legal decision making even after the Chinese takeover in 1960; here, litigants are applying Buddhist factoring concepts in a new non-Buddhist, colonial court.
Narratives and art
Fourth, the story of the personal enlightenment of the Buddha was cited in Tibetan courts for the importance of fashioning punishments that would uniquely fit a defendant and improve his karma. As the Buddha taught that each individual was an impermanent collection of ever changing physical and mental states, conditioning the person's mind to a tranquil life and the dharma was often seen as the best form of punishment. Also, legal oaths were taken in front of artistic renderings of the Dalai Lama or the Buddha.
The study of secular law in Buddhist culture and society is a relatively new area that requires a multidisciplinary approach including comparative law, Buddhist studies, anthropology, history, religious studies, sociology, and sociolegal studies. There is little doubt that Buddhism has strongly influenced and been strongly influenced by legal culture in vast parts of Asia. The role of communism, for example, in extinguishing Buddhist practices has not even been touched in this review. Other categories that need to be more fully investigated are Buddhist law and women, violence and Buddhism, uprisings based on Buddhism, monastic martial arts training, messianic movements, and animist spirit traditions. While a few in-depth projects have been completed, it is an open and exciting field ready for detailed research, both historical and current, and more textual translations, comparisons, and theorizing.
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Rebecca R. French (2005)