LAW AND BUDDHISM

Comparative jurisprudence divides legal systems into families or types based on cultural and historical origins. Buddhist law is the most recent entrant into the category of religious legal systems, a category that includes Islamic law, biblical law, Hindu law, and Talmudic law. The development of Buddhist law as a disciplinary subject has been slow because of the lack of a single unifying religious language or script and Buddhism's wide cultural dispersal throughout Asia. Scholars have also presumed that Buddhism did not have an obvious relationship to secular legal systems because of its distinction between lay and monastic populations and its tolerant, as opposed to mutually exclusive, approach to local religions and politics. More recent studies, however, have demonstrated that the influence of Buddhism on law and political systems has been profound.

There are at least four ways in which Buddhism interacts with law. First, Buddhism itself incorporates a monastic law code, the vinaya, and special disciplinary procedures for the monastic population. This code has been analyzed extensively and functions as a template for secular rules. Second, some regions have created Buddhist states following the example of AŚoka, an early Buddhist political leader. Sri Lanka, Bhutan, and Thailand are current examples. Third, Buddhism has been a significant social force in shaping the cultural attitudes toward law and the legal system in many Asian countries that are not Buddhist states. The time period and the local context from which Buddhism was exported to the country, as well as the local context into which it has been adopted, are all important factors. Fourth, when the local population reasons through the lens of Buddhism, the legal system can be significantly affected. The form of reasoning and the backdrop of the vinaya rules, as well as the foundational principles of Buddhism, such as karma (action), anitya (impermanence), causation, factoral reasoning, and right action, can all strongly affect a legal system.

The origins of internal Buddhist monastic law are clear. After his enlightenment, Śāyamuni Buddha began to collect a group of disciples who followed his teachings. As part of the process of institutional definition, he made hundreds of casuistic determinations about the proper behavior, clothing, and speech of individuals, and he shaped the collective rituals of the saṄgha. The Suttavihaṅga section of the vinaya describes these early legal decisions. There are no similar legal decisions for the laity. In the vinaya, the most serious offenses (pārājika) for a monk—killing, stealing, having sex, or misrepresenting one's meditative powers—result in expulsion from the order. Nuns have an additional four pārājika. The PrĀtimokṢa, a list of over two hundred precepts for monks, and over three hundred for nuns, is recited twice a month by the members of every saṅgha to remind them of the guidelines for their society. The procedures and rules of the internal legal systems of monasteries and nunneries are based on the vinaya, with a formal meeting of the full saṅgha serving the authoritative decision-making body. Legal positivists argue that a religious entity is not a state authority and that ostracism from a group is not a true legal sanction, so the vinaya system cannot be considered a legal system. But this analysis is based on the misconception that law operates only in nation-state command systems and that the authority function in Buddhism is fulfilled by a divinity rather than the Buddha's designated successor, the saṅgha.

Several regions have followed the path of the third-century b.c.e. Magadhan emperor Aśoka by establishing Buddhist states based on received scripts, Buddhist scriptures, and the idea of the compassionate cakravartin (wheel-turning king). Such Buddhist-inspired law codes and jurisprudential cultures evolved in Sri Lanka, Burma (Myanmar), and Tibet. In Sri Lanka, for example, the arrival in the third century b.c.e. of Indian monks brought the oral tradition of the Pāli canon to the island. Combining the ideologies of race, religion, and region, Buddhist states governed much of the island until 1818, when the Kandyan monarchy was finally overthrown by the British.

Although Buddhism may have entered Southeast Asia as early as the time of Aśoka, King Anawrata was the first to unify Burma into a Buddhist state in the eleventh century. The king and monks of the capital city of Pagan combined the Pāli Vinaya with Hindu law and Buddhist treatises to create the dhammasat and rājasat secular law codes, which spread in the ensuing centuries across what is now Burma, Thailand, Cambodia, and Laos. In Tibet, the first king to be influenced by Buddhism was Srong bstan sgam po, who, in the seventh century c.e., sent his minister to Gandhāra to develop a written script and bring back Buddhist texts. Buddhism became the state religion in Tibet in the eight century and strongly influenced the local legal rules already in place from the period of the earliest kings. For example, the Ganden Phodrang law code of the Dalai Lamas, written in the seventeenth century, is a secular law code of customary practices filled with Buddhist reasoning, such as factoral analysis, consensus, uniqueness of cases, motivation, and veracity tests.

Buddhism has been a significant factor, although not usually the sole or even the central influence, in the legal structure of many Asian countries. Buddhism entered these regions at different historical points and through various sources. For example, Japan first received Buddhist monks, texts, and images from Korea, and although Prince ShŌtoku promoted Buddhism as the state religion at the end of the sixth century, the Confucian and Daoist traditions of East Asia always accompanied and, some would argue, superseded, Buddhism's effect on the legal system of Japan. At the end of the Tokugawa period (1603–1868), Buddhism in Japan was also overshadowed by the indigenous Shintō religion and worship of the emperor. In Mongolia, Buddhism was adopted in the thirteenth century into a country that already had a strong legal administrative system based on the Zasag law code of Genghis Khan. Vietnam had state patronage of several different forms of MahĀyĀna and TheravĀda Buddhism competing with Hinduism from the tenth century, but after the fifteenth century, the state ideology of Confucianism led to a decline in Buddhism's influence on the legal system. The transplantation, waxing, and waning of Buddhist influence on law is a large area for further study.

Basic Buddhist principles, reasoning processes, and rules may influence law because they are employed by the population that use the legal system. Thus, a country may impose a strong socialist law code, such as the Russian-imported Mongolian codes in force between 1924 and 1992, upon a population whose culture reasons through Buddhist principles. This is true of the Tibetan population today, which, although it has been incorporated into the Chinese state, continues to employ Buddhist reasoning and principles in most of its decision making.

As Buddhism spread from India to China and Japan, Pagan, and Sumatra, it had extensive influence on secular legal systems. Modern scholars have begun to look more seriously at this influence, as well as the operation of legal procedures within Buddhist monasteries and nunneries. Scholars have also begun to study the overlay of exogenous legal systems and the transplantation of law codes from other countries onto Buddhist legal systems. Local-level influence of Buddhism is another interesting area of research. For example, in a 1970s study of litigation in Chiangmai, Thailand, interviews with litigants showed that the number of injury claims had steadily decreased over a ten-year period due to a stronger emphasis in the local community on reasoning through karmic causes and their consequences. Combining both Buddhist studies and comparative law, Buddhist law is an emerging new disciplinary area.

Bibliography

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Hinüber, Oskar von. "Buddhist Law According to the Theravāda Vinaya: A Survey of Theory and Practice." Journal of the International Association of Buddhist Studies 18 (1995): 7–45.

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Rebecca French