Buddhism and Law

by

Miguel Alvarez Ortega

• LAST REVIEWED: 28 September 2016
• LAST MODIFIED: 28 September 2016
• DOI: 10.1093/obo/9780195393521-0225

Introduction

The title “Buddhism and Law” refers to an incipient interdisciplinary research area exploring the interactions and overlappings between Buddhist traditions and the legal domain, mainly promoted by Buddhologist Frank Reynolds and legal scholars Rebecca French and Andrew Huxley. From Pali scholarship pioneer T. W. Rhys Davids to the most recent legal comparativists, the legal dimension of Buddhism has found strong detractors, even if their positions are sometimes deprived of due nuances. So the volume Buddhism and Law: An Introduction (French and Nathan 2014, cited under Anthologies) is anything but an ordinary academic work within a settled line of research. We find academic volumes referring to “Buddhist law” (in a lay sense) as early as the late 19th century, whereas the scholarly perception of a particular research area manifested itself in Reynolds 1995 (cited under Anthologies), a special issue of the Journal of the International Association of Buddhist Studies. Defenders of this relatively “new” research field point to Western Buddhist studies promoting a transcendental approach to Buddhist traditions (“the other-worldly bias”), while suffering a research deficit regarding the social and normative dynamics of Buddhist societies. Yet one may observe to what extent Buddhism and law seem to make up quite a controversial couple. Their relationship highly depends upon the meaning conferred to each individual term. Narrow religious approaches to Buddhism and strict positivist definitions of law allow for little interaction, whereas visions encompassing the ethical and sociopolitical dimensions of both elements grant a richer area of intersection. The conceptual density of the Buddhist notion of dharma, often translated as “law,” also contributes to this complexity. The reader may be surprised to find out that Kalupahana’s The Buddha and the Conception of Law mainly addresses epistemological issues, while at the other side of the spectrum, Jardine’s Notes on Buddhist Law (Jardine 1882–1883, cited under Southeast Asia) is exclusively dedicated to Burmese domestic law. The result is a bibliographical kaleidoscope where heterogeneous (and sometimes contradictory) approaches and topics coexist and overlap. The most common and shared ground for studies of Buddhism and law relates to the monastic regulation (Vinaya) and its external (and reciprocal) influences on lay law. In this sense, scholars tend to specialize in particular Buddhist traditions or geographical areas, Theravada Southeast Asia and Vajrayāna Himalayas being the most fertile. Here, literature questioning simplistic assumptions regarding the Buddhist character of law and regulations in Buddhist countries also needs to be taken into account. Broader approaches include the consideration of the impact of Buddhist ethics on social regulation or the problem of political power and its legitimation. Other studies aim at deciphering a Buddhist model of justice or propose a treatment of contemporary normative issues such as human rights or criminology from a Buddhist angle. Methodological plurality comprises textual, conceptual, anthropological, historical, systematic, descriptive, and prescriptive approaches.

General Overviews

There is currently no single-authored academic work systematically covering the whole range of topics and approaches to Buddhism and law. Frank’s Reynolds introduction to the special issue of the Journal of the International Association of Buddhist Studies (Reynolds 1995) and Rebecca French’s mournful reference to a “missing discipline” (French 2004a) are of use in understanding the status quaestionis at the inception of this discipline, whose configuration finds a decisive momentum in French and Nathan 2014. There is also a gap within comparative law—Huxley’s entry on “Buddhist Law” in Kritzner’s Legal Systems of the World (2002) refers exclusively to Theravada countries, for example. Recent efforts to review the existing literature while proposing a research agenda focusing on contemporary socio-legal issues may be found in Schonthal and Ginsburg 2016. Certain works, on the other hand, are useful in providing a sort of guide to normative and political references in classical sources. Chakravarti 1996 is arguably the most complete reference of this genre.

• Alvarez Ortega, Miguel. “Gihi, Sangha, Raja: Role-Based Normativity in Early Buddhism.” Rivista Internazionale di Filsofia del Diritto 2 (2013): 423–446.

  Summarized introduction to and discussion of canonical normative references according to social roles: the layman, the monk, and the king. An attempt to identify common features of a Buddhist notion of law is provided in the conclusion.

• Chakravarti, Uma. The Social Dimensions of Early Buddhism. New Delhi: Munshiram Manoharlal, 1996.

  A comprehensive volume that reflects upon the social milieu of the Buddha’s time and provides detailed references to political and legal positionings in canonical sources.

• French, Rebecca R. “The Case of the Missing Discipline: Finding Buddhist Legal Studies.” Buffalo Law Review 52.3 (Summer 2004a): 679–699.

  Considers the features and difficulties for the study of Buddhist-based law, with an emphasis on its disciplinary placement.

• French, Rebecca R. “Law and Buddhism.” In Encyclopedia of Buddhism. Vol. 1. Edited by R. E. Buswell, 459–461. New York: Macmillan, 2004b.

  Very brief introduction that identifies four ways of interaction: monastic law, Buddhist States modeled on the example of Aśoka, legal attitudes in non-Buddhist states, and Buddhism-inspired legal reasoning.

• French, Rebecca R., and Mark A. Nathan. “Introducing Buddhism and Law.” In Buddhism and Law: An Introduction. Edited by Rebecca R. French and Mark A. Nathan, 1–30. New York: Cambridge University Press, 2014.

  DOI: 10.1017/CBO9781139044134.002

  Tries to present and define the topics, concerns, difficulties, and boundaries of what is deemed a relatively new and particular research field: “Buddhism and Law.”

• Jayatilleke, K. N. “The Principles of International Law in Buddhist Doctrine.” In Facets of Buddhist Thought: Collected Essays. By K. N. Jayatilleke, 317–482. Kandy, Sri Lanka: Buddhist Publication Society, 2010.

  In order to identify/recreate a Buddhist approach to international law, the author introduces main Buddhist concepts and explains normative notions drawn both from monastic and lay sources. Originally published in 1967 as part of the Collected Courses (Recueil des cours) of The Hague Academy of International Law.

• Reynolds, Frank. “Buddhism and Law—Preface.” In Special Issue: Buddhism and Law. Edited by Frank Reynolds. Journal of the International Association of Buddhist Studies 18.1 (1995): 1–6.

  The first reflection upon the need to define and promote legal approaches to Buddhism. Includes reference to bibliographical antecedents.

• Schonthal, Benjamin, and Tom Ginsburg. “Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism.” Asian Journal of Law and Society 3.1 (2016): 1–15.

  DOI: 10.1017/als.2016.3

  Reflects upon and summarizes the recent history of this research area. Identifies and characterizes four sections within the so-deemed understudied contemporary socio-legal scholarship on Buddhism: the monastic law-state law relationship, Buddhist constitutionalism, Buddhist legal activism, and Buddhist-interest litigation and Buddhist moral critique of law.