In Siam and, it seems, in all the Indianized kingdoms, one finds, alongside custom, another source of law, which is none other than dharmaśāstra, a specific contribution of Hindu civilization. The king does not legislate. His essential mission is to assure and maintain peace among his subjects. As such, he must ensure the proper administration of justice and fulfill the role of supreme judge in disputes that arise among his subjects. In this capacity, also, he can and must enact punishments against those who disturb the order. He may still lay down the rules for the organization of courts and the procedure to be followed before them; in sum, to take all measures so that his subjects live in peace. But all this constitutes only, so to speak, the outer casing of the law. As for the substance of law, that is, as for the rules for which it is a question of ensuring compliance, the king does not create them, because the law is entirely contained in immemorial custom and dharmaśāstra. The king is simply the defender and protector of custom and dharmaśāstra. This does not prevent the king from being an absolute sovereign and being able to do whatever he wants. He is therefore at liberty to make decisions contrary to dharmaśāstra and established custom. But such decisions have only the force of royal authority, they are not law. On the contrary, when the decisions of the king conform to equity, as understood by dharmaśāstra, they merge with it and are invested with the same authority.
2.1 The Problem
The king does not make law. His sovereignty is absolute. Law, as dhamma, originates outside the king, who merely acts as the judge and enforcer of law. The commands of the king are not legal enactments. They form the “outer casing of the law” as “mere orders … personal and accidental injunctions” (Lingat Reference Lingat1950, 9). The authority of royal command is proportionate to the degree that it conforms to dhamma as an exogenous standard of justice.
This thesis on precolonial Southeast Asian law by Robert Lingat reflects a particularly entrenched perspective in the history of scholarship on Buddhist (and more broadly Indic) constitutionalism – even if scholars themselves have not always employed the phrase. It highlights a certain antinomy, if not an antinomianism, at the heart of reflection on Buddhist “law.” On the one hand, the political function and legal authority of the king is thoroughly restrained, if not eclipsed, by dhamma (Sanskrit, dharma), envisaged as a sort of natural law. The pragmatics of this dhamma, seen to be embodied either in Tai, Mon, Khmer, or Burmese dhammasatthaFootnote 1 texts, or in classical Pali sutras manifesting a buddha’s speech, therefore furnish the skeleton of a constitutionalist doctrine purportedly realized in the historical practice of Buddhist communities.
The influence of this position, which locates law, as dhamma, outside kingship, is pervasive in Buddhist and Asian legal studies, but not always in the way our sources might anticipate, for the claim is not, simply, that there are forms of “natural” or “non-state” law. Indeed, to the extent that constitutional features have been considered at all by scholars of precolonial Buddhisms, we have hardly advanced beyond this perspective. It is brought to bear in nearly every analysis of Buddhist law or politics; for example, when the normative dimensions of Buddhist kingship are analyzed in relation to the dasarājadhammā (“ten laws for kings”) and the related dhammarājā motif (Gokhale Reference Gokhale1953; Reference Gokhale1966; Reference Gokhale1969; Collins Reference Collins2006, 460ff.), the career of the primordial Buddhist king Mahāsammata (Tambiah Reference Tambiah1989), or the beleaguered figure of the cakravartin (“‘wheel-turner’ king;” Tambiah Reference Tambiah1976, 39ff.). It is there, also, in devaluations of royal authority that elevate the status, in dhamma/law, of monasticism (Collins Reference Collins2006, 420). Such are the so-called ideologies of Buddhist kingship, Collins posits, which are “exemplified from any period and place in Southern Asia, across which Pali texts spread as the Theravāda form of Buddhism was adopted by monarchs, many of them would-be Wheel-turning Kings (cakkavatti-s) seeking what they hoped would be a universal empire, emblazoned with the universal truths of Buddhism” (Collins Reference Collins2006, 415). Frank Reynolds, commenting upon the tropes of dhammarājā, cakravartin, and Mahāsammata as found in the early strata of Pali texts, remarks that “these elements are of crucial importance because they provided a commonly accepted, orthodox basis for the richer and more complex patterns of royal symbolism and political involvement which were developed during the subsequent periods of Buddhist history” (Reynolds Reference Reynolds, Reynolds and Smith1972, 23).
Accordingly, as Balkrishna Gokhale claimed, Buddhism would seem to offer many resources to scholars of constitutionalism. Dhamma, “a constitutional concept of great significance” (Gokhale 1953, 161), operates as the framework that enables and constrains the king and the organs of royal power. Dhamma, as the “king of the king who is a cakravartin, a righteous king who rules by dhamma”Footnote 2 serves as a check on tyranny. As William Koenig restates the formula in relation to eighteenth- and nineteenth-century Burma, “the ruler became but the servant and agency of dhamma and his righteous conduct or sinful behavior infected the whole universe” (Koenig Reference Koenig1990, 68). On this reading, political and legal institutions find their justification in dhamma (in its representative texts), and it is dhamma (its representative texts) that places limits upon them in the name of supreme justice.
Lingat’s corollary however belies the puzzle. He adds that the king’s sovereignty is absolute; an absolutism circumscribed by law. It is my suspicion that Lingat, who among all authors to have contributed to the debate on constitutionalism – again, without naming it as such – in precolonial Theravāda Buddhism was surely the most well acquainted with a relevant archive (viz., local legal texts produced by the historical contexts in question) is here hedging his bets. He wants to have it both ways. An absolutism, but a righteous, or dhamma-constrained, absolutism – an aporia.
In what follows I aim, firstly, to raise criticisms of this now standard presupposition. The analysis of precolonial Buddhist constitutionalism developed by the likes of Lingat, Gokhale, Tambiah, Reynolds, Collins, and many others – and still very much current in the scholarly literature – is rooted in a speculative theorization of Buddhist constitutionalist law-as-exogenous-dhamma. This theory resists, with remarkable tenacity, most actual domains of law or legislation themselves, if by these terms we signify those forms of historical evidence that pertain to formal dispute resolution by courts and judges, juristic institutions and processes, or the normative, enforceable distribution and organization of social, economic, and political power. The rhetoric of kingship encountered in classical Pali Buddhist texts, despite its occasional (likewise rhetorical) redeployment even in legal discourse,Footnote 3 is in tension with precolonial Southeast Asian laws, jurisprudence, and juridical practices, and, moreover, with what is knowable about the operation, transformation, and effect of classical Pali Buddhist discourses of kingship and politics in history. This is so in the first instance empirically because the rhetoric of kingship advanced in local Southeast Asian law texts is rarely, if ever, closely parallel to classical figurations. Local Buddhist narratives of Mahāsammata and Manu, which I have written about at length elsewhere, are a perfect example: the jurisprudential significations of Thai and Burmese variants of their biographies bear only a “similar dissimilitude” to representations in the Pali sutras and commentaries (Lammerts Reference Lammerts2013; Lammerts Reference Lammerts2018, 48, 66–71). We have been misled, in my view, by work that has, by and large, taken a misplaced rhetoric of royal dhamma as proxy for law.Footnote 4
This argument is not intended to diminish the significance of classical Pali figurations of dhamma (those related to kingship or otherwise), via their local translations and transformations, for the general history of Buddhism or law in precolonial Southeast Asia. The salience of these figurations is to be established on a case-by-case basis.Footnote 5 Here my aim is to demonstrate that standard scholarly conceits about precolonial or “traditional” Buddhist constitutionalism – conceits concerning “righteous” and “wheel-turning” monarchs, or the exogenous, abstract dhamma that, as a higher principle of justice, somehow itself “reigns” sovereign and thereby exerts a regulatory function – are not, in fact, operative constitutional or even legal concepts according to the attested vocabularies of the legal history itself. There are many thousands of extant legal manuscripts and inscriptions, in many languages, from across precolonial Southeast Asia. Fewer than 1 percent have received any competent hermeneutical scrutiny. If we want to understand the changing historical expressions of Buddhist constitutional thought and practice, we must learn to read them. In doing so, it quickly becomes apparent that the construction of Buddhist constitutionalism according to the academic field is woefully at odds with, and does not do justice to, the richness and nuance of the archive.
By turning to more prevalent, effective, and historically situated legal discourses, this essay confirms that constitutionalism is indeed a pervasive feature of Buddhist lawmaking in precolonial Southeast Asia, yet its form bears little resemblance to classical tropes of dhamma. It may even be broader than any narrow focus on kingship and politics would suggest. The surviving testimony readily shows that the constitution of political power was not a separate or higher sphere of law with a singular genesis or formal instantiation. This is to say, constitutional discourse, including the ordering of the offices of the king (rājā), and of the monastic community (sangha), was part of an all-embracing process of constitutionalizing that encompassed other social, economic, and familial arenas. Thus, attempts to characterize or criticize constitutionalism in precolonial Buddhist law require that we respond to this more capacious scope of law-writing. It demands that we reimagine that thing we call “law,” and to see the constitution of rājā or lordship in immediate relation to other, constituted, legal phenomena. This undoubtedly betrays a certain friction with modern conceptions of constitutionalism that envision it as a singular type of legal creature narrowly concerned with regulating the exercise of executive power.
2.2 Three Environments
There are three principal, occasionally intersecting or conflicting, environmentsFootnote 6 of “Buddhist law” in precolonial Southeast Asia: vinaya, dhammasattha, and rājasattha (“royal legislation” or “royal edict/command”). Footnote 7 Each entails a distinct relation between what may be called “Buddhism” and “law.” Certain general features common to these environments include: (1) (usually) a form of material embodiment and circulation in writing, (2) an orientation toward the authority of a foundational, preternatural, text (the speech of a buddha, a cosmic treatise, or the speech of a king), and (3) a rationale or jurisprudential logic whereby the normative program of such legalism is imagined to have the capacity to enable or perpetuate, via different mechanics, the religion of Buddhism itself.
Broadly speaking, and eventually from such a distant perspective that the analysis begins to lose utility, the monastic vinaya – the paradigmatic though non-exhaustive subset of the broad category of monastic law (laws governing monks) – is the only environment of precolonial Southeast Asian law that is somewhat shared, in terms of a general repertoire and jurisprudence, among diverse Buddhist traditions across Asia. This apparent unity is also deceptive. There are multiple, more or less partial or complete, variant vinayas transmitted in several different languages (Clarke Reference Clarke and Silk2015), whose employment and application by monastic communities in history is highly uneven across time and space. Nevertheless, the influence of this law in Southeast Asia is hardly slight: a lengthy excerpt of the Pali vinaya, the bodhikathā of Vinaya-mahāvagga, is attested in Pyu epigraphy (discovered in Kunzeik, modern-day Burma), from around the sixth to seventh centuries CE, making this legal treatise, or a section thereof, possibly the earliest documented transmission of Buddhist literature in the region (Skilling Reference Skilling1997, 95 n. 7).Footnote 8
While vinaya texts were widely transmitted, copied, glossed, and kept in monastic libraries across Asia, perhaps unsurprisingly there is rather little direct evidence that vinaya law was in fact routinely observed in the everyday life of monks, and indeed in some cases, including in fairly recent times, there is considerable evidence that vinaya was wittingly transgressed or ignored. In many contexts, the classical vinaya texts and their commentaries are supplanted in practice by a preference for manuals, pamphlets, summaries, and rulebooks on monastic law and administration that comment upon, or occasionally depart from, that corpus (Blackburn Reference Blackburn1999). In certain areas – though not prominently in Southeast Asia – what we tend to think of as vinaya “properly speaking” was supplemented, or displaced, through the issuance of local documents that may be classified as monastic “constitutions,” “guidelines,” or “charters” (Jansen Reference Jansen and Silk2015) – e.g., katikāvata in Sri Lanka (Ratnapala Reference Ratnapala1971; Schonthal Reference Schonthal2021a), or chayik in the Tibetan sphere (Ellingson Reference Ellingson, Epstein and Sherburne1990; Jansen Reference Jansen2018; Sullivan Reference Sullivan2021) – which established norms for the operation of one or more monastic communities and, sometimes, those laypersons who happened to interact with them (Jansen Reference Jansen2018, 19, 153–57). In Burma, moreover, certain dimensions of monastic law were, in the seventeenth century and perhaps earlier, at least partly imagined to fall under the jurisdiction of dhammasattha, which presented norms decidedly at odds with the Pali vinaya and its commentaries – a feature of the legal history that stimulated considerable debate among eighteenth- and nineteenth-century jurists (Lammerts Reference Lammerts2018, 112–15, 164–68). And nearly everywhere throughout Buddhist Asia, kings regularly legislated rules for monks that often had no relationship whatsoever to vinaya.
Despite differences internal to, and in the application of, the various Buddhist vinaya literatures, this massive corpus tends toward a rather uniform jurisprudence concerning the sources and aims of law. Authoritative vinaya rules are understood to derive ultimately from the lawmaking efforts of a singular type of legislator: a buddha.Footnote 9 Gautama Buddha’s first legislative act, some two decades after he attained omniscience, was the declaration of the first pārājika (an offense leading to loss of clerical status) forbidding sex, including with animals or nonhumans (amanussa), among his male monastic disciples. The vinaya presupposes that other buddhas also promulgated laws for monks and some of Gautama’s own rules are attributed to them. The rationale of vinaya is routinely advocated in language that stresses its essential role in maintaining a functioning monastic system of lineage and discipleship, creating the possibility for rituals such as ordination, ensuring the survival of the Buddhist teachings, and even promoting the achievement of nirvana.Footnote 10
Until very recently the category of “Buddhist law” has been understood, entirely incorrectly, yet more or less exclusively, in terms of vinaya. But vinaya is not, at least not according to its founding vision,Footnote 11 a universal body of norms regulating the entire Buddhist community including the laity. This circumscription around the monastic population thus insinuates the existence of a plural legal environment, as scholars such as Robert Lingat (Reference Lingat1951, 164) and Andrew Huxley (Reference Huxley1999, 325) have observed. While the overtly “religious” character of vinaya law is uncontroversial – the rules are attributed to an omniscient superhuman legislator and exist to facilitate the advancement of ritual and soteriological imperatives – the corpus is largely comprised of what we might call administrative law; much of its content pertains to the mundane organization and business of monastic institutions and the everyday comportment of monks and nuns. Nevertheless, vinaya was, and remains, a major body of law and litigation in Southeast Asia as elsewhere, and proceedings of vinaya courts, tried by monastic judges, survive from the early seventeenth century (Lammerts Reference Lammerts2018, 37–43) and continue into the present across the Theravāda world (Schonthal Reference Schonthal2017–2018; Schonthal Reference Schonthal2021b; Janaka and Crosby Reference Janaka and Crosby2017).
The constitutional dimensions of vinaya, as well as those genres of monastic regulations and guidelines mentioned above, are immediately suggestive. Yet these have been hardly explored, perhaps due partly to the relative absence of considerations of kingship and politics in much of monastic legal discourse, though perhaps more so due to bias and a lack of appetite on behalf of comparative constitutional law scholars (Mérieau Reference Mérieau2020). Nevertheless, as Benjamin Schonthal (2021c) has recently argued, there are strong grounds to characterize vinaya and local genres of monastic law as manifesting constitutions, inasmuch as these documents aim not only to legislate rules for monks, but also to organize the institution, offices, and judicial processes of the monastic community.
Dhammasattha (“treatise on dhamma” or “instructions of dhamma”) is the Pali name of a regional Southeast Asian genre of legal literature that has a documented history of transmission in Burma beginning in the mid-thirteenth century (Lammerts Reference Lammerts2018, Ch. 2). Later references to and manuscript witnesses of the genre are attested in what is today Thailand, Laos, Yunnan, Cambodia, and Bangladesh. In Burma alone there are well over one hundred individual dhammasattha treatises surviving in thousands of palm-leaf and paper manuscripts. By the phrase legal literature, I mean firstly the generic sense of texts that present rules and sanctions related to matters such as inheritance, marriage, contract, theft, assault, etc., and also prescribe norms and procedures for adjudicating disputes (courts, ordeals, witnesses, evidence, judges, etc.). More specifically, however, I refer to the fact that these texts (like so many embodiments of law) are literary expressions. Some are written as poetry, and all dhammasatthas – quite unlike their Sanskrit dharmaśāstra cousins – repeatedly, even excessively, employ narrative (i.e., stories), such as the example from The Responsa of Manurājā discussed below, somewhat akin to the model of the Buddhist vinayas, in the characterization of a rule.
There are considerable limitations to our knowledge of dhammsattha. The scope and substantive content of any text called dhammasattha (or cognate vernacular terms) during the earliest historical phase – before the seventeenth century – are uncertain, since the textual traditions are difficult to date. There is also a question whether the word “dhammasattha” during this early phase indexed a perception of a legal genre or corpus, or if it simply referred to a single text. Nevertheless, some general contours of dhammasattha as a source of law are evident from the thirteenth to fifteenth centuries onward.
The first Burmese inscription to invoke dhammasattha does so in the context of a retelling of a trial pertaining to a complex dispute within the extended royal family over the inheritance of land and slaves to be donated to a monastery (Lammerts Reference Lammerts2018, 21–22). During the trial, the king orders his officials to consult dhammasāt (= dhammasattha) to determine the legitimate line of succession. The officials carry out the king’s command, and the inheritance is consequently awarded to the heir perceived to be sanctioned by the text. This heir then proceeds to donate the inherited property to a monastery in the year 1232.
In Thailand, the vernacular word dharrmaśāstra first appears in an inscription dated to around 1400 as part of a compound with the term rājaśāstra.Footnote 12 According to this inscription, a king, presumably Rāmarājādhirāja, the ruler of Ayutthaya,Footnote 13 announces, “in the center of the city of Sukhothai,” a series of royal pronouncements (oṅkāra)Footnote 14 dealing mainly with slavery and theft. Punishment (e.g., for stealing slaves) or reward (e.g., for facilitating the return of stolen property), the king says repeatedly, shall be “in accordance with the rule [or “measure”Footnote 15] of dharrmaśāstra and rājaśāstra.”Footnote 16
In the Burmese inheritance dispute, we see that royal judgment defers to the authority of the text to determine the rule. The judgment of the king is to let the dhammasāt establish the verdict. His judgment is simply a deferral of judgment to the letter of the law text. The Thai evidence, by contrast, is not a trial context, but an account of lawmaking by the king. The inscription represents law as established by royal command. Rāmarājādhirāja refers to dharrmaśāstra, and also royal edicts (rājaśāstra), only as a source for determining legitimate fines and compensation.
In his discussion of Rāmarājādhirāja’s inscription, Lingat (Reference Lingat1951, 182–83) writes:
“[The inscription] contains, a rare thing, if not unique in Asia, a series of legislative provisions. However, these provisions are placed under the double authority of dhammasattham-rājasattham. […] So we have there, in a relatively early period, and in any case close to the foundation of Ayutthaya, evidence for the existence, in Tai country, of a dhammasattham already generally employed as a legal principle, which suggests its introduction dates back to an even earlier era.”
A year earlier, Lingat (Reference Lingat1950, 24) elaborated what is meant by this “double authority”:
“The Royal prescriptions engraved on [Rāmarājādhirāja’s inscription] are said to have been enacted according to dharmasāt-rājasat, i.e. according to the system which derives authority of royal orders from the authority of a supreme Dharma.”
Lingat appears to recognize the royal legislative features of the text as an exception, a “rare thing, if not unique in Asia,” for sovereigns influenced by the Indic religions are, according to him, always dutiful servants of dhamma. Lingat could no doubt read the original inscription as well as anyone. Yet he fails to adequately explain, perhaps because it troubles his conception of the “supreme Dharma” governing all Buddhist law, that the laws for slavery and theft mentioned in the inscription are nowhere characterized, in fact, as deriving from the authority of dharmaśāstra. The force of the king’s speech (oṅkāra) does not emanate from any source outside the king himself. While it is facile to argue that the legislative prerogative of the king results, to some degree, from his capacious merit (puñña), and is thus not entirely disconnected from cosmological or ritual considerations,Footnote 17 this is rather different from claiming that dhamma qua dhamma is the only legitimate source of law, or that all law was necessarily derivative of an exogenous source, whether dhamma, dhammasattha, or custom.
The Dhammavilāsa dhammasat is the earliest surviving dhammasattha text from Burma, written in vernacular Burmese, including some scattered Pali verses and citations, sometime before 1638 (Lammerts Reference Lammerts2018, 56). It was shortly followed by the vernacular Responsa of Manurājā (Manurājā lhyok thuṃḥ),Footnote 18 a series of jurisprudential questions and answers (pucchā-vissajjanā) between a legist and king, compiled sometime between 1638 and 1648. In 1651 or 1652 the Manusāra dhammasattha was composed by the monk Tipiṭakālaṅkāra and a lay jurist styled Manurājā, the “eater” of taxes of Kaing Village. Manusāra is a Pali verse legal text that was probably compiled on the basis of earlier, now apparently lost, vernacular law treatises, to which was appended an interphrasal Burmese gloss commentary (nissaya). The Manusāra verses were eventually reedited and glossed anew in a recension by Vaṇṇadhamma Kyaw Htin, also titled Manusāra dhammasattha, in 1769. Judging from surviving manuscript copies as well as citations and references in other legal texts, Vaṇṇadhamma’s Manusāra was among the most popular and widely circulated law books in late precolonial Burma.
The dhammasattha corpus – which, in Burma, expands by more than a hundred additional treatises during the eighteenth to nineteenth centuries – is definable as a species of “Buddhist law” in at least three different senses, each of which are quite dissimilar from vinaya jurisprudence, since only very rarely are its rules directly attributed to any buddha (and when they are so-attributed, the buddha is usually Dīpaṅkara). In the earliest surviving texts, including those mentioned above, dhammasattha law is represented as an earthly instantiation of a cosmic treatise. The original text of the law is inscribed – in “letters as big as a cow” – on the boundary-wall of the universe, from which it is transcribed and transmitted to the human realm by the variously-named seer Manu, Manusāra, or Manosāra, who magically retrieves the alien text during the reign of the first king Mahāsammata.Footnote 19 In addition to its origins in outer space, accessible only to superhuman cosmonauts, dhammasattha texts are engaged in a complex relationship with Buddhist vinaya and sutra texts, which are frequently redeployed, although sometimes with substantial changes, to justify or illuminate certain laws. Finally, dhammasattha texts repeatedly remind their audience that the norms they prescribe are intended to preserve and perpetuate the sāsana (“teachings”) of Gautama Buddha, and that observing dhammasattha law offers a range of worldly (lokiya) and supermundane (lokuttara) benefits for judges and litigants, not least including nirvana.Footnote 20
Dhammasattha is neither a form of positive law nor “state” law – at least not prior to the mid-nineteenth century when functionaries of the British colonial state began to transfigure and redeploy the genre for use by the imperial judiciary. The laws are not attributed to any legislator; like stars they are a natural feature of the cosmos and will ultimately perish along with it. Over the course of the development of dhammasattha jurisprudence it is however certain that legists increasingly sought to align laws of the corpus with the provisions of vinaya and sutra. This entailed a self-conscious project of “purifying” aspects of the legal tradition and bringing them into putative alignment with a buddha’s speech. This involved, among other things, attributing rules to various buddhas or to ancient kings and bodhisattvas depicted in the jātaka corpus. A certain trend in the direction of emergent positivity is clearly evident. These complex reformulations, still too poorly understood, were discrete projects by laymen and monks who focused their efforts on different legal treatises and topics, not an organized or centralized movement of religio-legal reform under the explicit banner of the palace (Lammerts Reference Lammerts2018, 172–78). Nevertheless, during the full history of its transmission in precolonial Burma, dhammasattha texts were repeatedly justified in terms of their ability to extend the longevity of Buddhism in the world by establishing social, political, and economic norms that would, it was argued, increase human material wealth and thereby generate ever more resources for the support and expansion of Buddhist institutions.
Despite the circumscribed role of the rājā in the production or purification of dhammasattha law, if we are to understand constitutionalist norms in the “thin sense,”Footnote 21 as laws that regulate kingship or politics, dhammasattha provides no shortage of examples. Akin to Brāhmaṇical dharmaśāstra, there are laws about how a king should judge legal disputes, how he should urinate and brush his teeth, how he should worship the triple gem, about his prerogatives in assigning fines and punishment, about taxation, about royal property and insignia, about demarcating the extent of the realm’s territorial boundaries, about transgressions against the throne (rebellion, treason), about the king’s duties to investigate crimes, about the qualifications and appointment of ministers, officers, and judges, and so forth. There are even laws that govern the exemption of royal animals from criminal prosecution for trespass, causing destruction, or committing murder. The history and variation of these or similar rules could easily be mined to furnish examples of constitutionalist dimensions of dhammasattha law.
18.104.22.168 An Example of a Plausibly Constitutional Provision
Dhammasattha treatises are usually organized around eighteen major “titles of law” (typically called “roots;” mūla in Pali or amrac in Burmese – a category clearly related to the vyavahārapada framework of Brāhmaṇical dharmaśāstra): debt, inheritance, assault, theft, slavery, gifts, gambling, marriage, and so on. Provisions dealing with procedure are sometimes grouped together in a prefatory section, or sometimes scattered throughout relevant discussions of substantive law. One of the more interesting procedural clauses in the corpus, which has bearing on the question of regulating the king, concerns what we shall refer to as the “statute of limitations” on bringing legal suits. Toward the end of its introductory section, after enumerating the eighteen “titles of law,” Dhammavilāsa states:
Among the eighteen foundational titles of law in the dhammasat, the following four titles of law may be litigated when the king, lord of water and earth, has changed: the law of taking loans, the law of inheritance,Footnote 22 the law of saṅghika monastic lands, and the law of hereditary slaves (mi lā pha lā kyvan). But the following four titles of law shall not be litigated when the king, lord of water and earth, has changed: the law of murder, the law of intentional physical assault and verbal abuse, the law of rape,Footnote 23 and the law of theft of property, gold, or silver. Thus has the seer Manu declared.Footnote 24
The Manusāra of 1651/2 puts the same law this way:
I cite these verses (gāthā) regarding the nine types of legal disputes (amhu) that should be dismissed upon the change of king:
Suppression [of uprisings/rebellion], gambling, [transgressions against] another’s wife, murder,
fraud, concealment [of another’s property], armed robbery, theft, destruction. These nine legal suits (aṭṭa) are without a ruling (vinicchaya) when the king changes.
But not suits [involving] a runaway debtor or runaway slave who is apprehended after [the change of reign].Footnote 26
Provisions along similar lines are repeated, with minor variation, in most subsequent dhammasattha treatises compiled up to the colonial era. Their implication is that the period for initiating a legal proceeding in what we might call “criminal” cases – including murder, assault, rape, and theft – is limited to the reign of the king on the throne at the time the crime was committed. Following a change of reign, the ability to bring a suit lapses. This is not the case, however, when it comes to other titles of law, such as inheritance or monastic property. The window for litigating these domains does not expire.
As far as I am aware, this curious provision is unique to Burma, or minimally is not something echoed by Sanskrit dharmaśāstra rules or those of Thai or Cambodian dhammasattha. The only scholar to have commented upon it, the legal historian Shwe Baw, surmised that the logic underlying the formulation and persistence of the rule is uncertain, as is the question of whether it was ever observed in practice (Reference Baw1955, 538–39). Nevertheless, the law suggests that the reigning king has a special relationship to crimes committed during his tenure. Judges or kings themselves do not have legal authority (in dhammasattha’s field of view) to pass judgment over crimes perpetrated during the reign of former kings.
This, it seems to me, is one among many examples of a constitutionalist provision furnished by the dhammasattha corpus. The rule simultaneously enables and constrains the operation of courts in relation to certain categories of substantive law. Moreover, it imposes a limitation upon not only judges, but upon the king’s judicial power, for he is unable to adjudicate crimes committed prior to his coronation. A likely explanation for the law may be found in the fact that personal status was a determining factor in deciding “criminal” cases such as murder, assault, rape, and theft. The appropriate punishment for such crimes is assigned as a function of the socioeconomic “class” (Burmese, amyuiḥ; Pali, vaṇṇa) of both victim and perpetrator. In cases of murder and rape, for example, penalties often involved fines linked to the variable “body-price” (kuiy bhuiḥ) of the victim, sometimes in addition to corporal punishment such as mutilation, the value of which was determined by socioeconomic status, such as being a poor person, rich person, “Good Person,” military officer, minister, relative of the king, and so on. Status identities were highly fluid, inasmuch as they were bestowed by or in light of a dependent relationship with the reigning king, his kinspeople, and clients. They were not fixed in perpetuity across reigns in the same way as certain other social identities – such as, for example, father and daughter, husband and wife, monk, or hereditary slave status – which were of essential concern in other domains of law.
It is worth reiterating that this brief example of one among very many constitutional provisions in dhammasattha has absolutely nothing to do with a representation of the king as a dhammarājā, cakravartin, or bodhisattva. Nor does it relate to conceptions of exogenous dhamma as higher justice. The law, or if you prefer, the “dhamma” (Burmese, tarāḥ), of the text is no doubt authorized by a justificatory narrative (like all law), which at times invokes certain complex figurations of cosmology and kingship, such as the story of Mahāsammata and Manu, but these figurations alone are woefully inadequate to the task of elucidating the substance and mechanics of individual constitutionalist rules such as this. This is to say, again, that if we want to understand the operation of Buddhist constitutionalism in precolonial Southeast Asia, there is simply no substitute for direct engagement with the evidence of the legal texts themselves.
2.2.3 Royal Legislation
The legal ecosystem inhabited by dhammasattha recognized multiple sites of authoritative law. Dhammasattha was not a purely self-referential normative environment, but one that sanctioned forms of legal-textual alterity that could, and sometimes did, conflict with its own norms, including both vinaya and royal legislation (rājasattha). These other environments or genres of legislation did not necessarily differ on cosmological or ritual grounds – for example, in the sense that one was “religious” and the other “secular” – but were nonetheless deferred to on certain occasions. Indeed, dhammasattha texts not only recognize a hierarchy of law but yield to royal command as legislation of the highest authority superseding all other legal rules.
For example, in the final section of its seventh chapter, Responsa of Manurājā states:
Regarding the point that rājasattha has authority over dhammasattha, and an agreement (gati) annuls rājasattha: Despite whatever dhammasattha may authorize, the three spheres of life, wealth, and body shall be regulated by the command of the sovereign (rājasattha) prescribed by kings of great merit. Yet, despite whatever royal edicts might authorize, an agreement annuls royal legislation when the two litigants have reached mutual consensus. The following [tale] is evidence (sakse, lit. “a witness”) for this norm (thuṃḥ caṃ):
Once upon a time, two men entered into the service of the king. One day, the king asked them, “in what do you place your trust (yuṃ)?” One man replied, “only karma.” The other replied, “only my lord the king.” To the man who said that he trusted only karma, the king gave a bunch of bananas. To the man who said that he trusted only his lord, the king gave a coconut that had been filled with gold.
When the two men departed the palace and were out on the road, the one with the coconut said, “I have many children and grandchildren at home, whereas you have none, therefore let us exchange the coconut for the bananas.”
When he reached his house, the man who trusted only the king distributed the bananas among his children and grandchildren. The man who trusted only karma, when he arrived home, split open the coconut, found it filled with gold, and became rich.
Later, when they returned to the palace, the king inquired, “which of you has become rich?” The man who had said he trusted only the king replied, “your servant is still poor.” But the man who said he trusted only karma replied, “your servant is now rich.”
The king then asked what they had done with the bananas and coconut he had given them.
“Because I have many children and grandchildren, I exchanged the coconut my lord had presented to me.”
The king said, “I wanted you to have the gold-filled coconut. Because you exchanged it for the bananas, your colleague has received the gold and is now rich.”
The man responded, “Before I exchanged the coconut, I did not know that it was filled with gold intended for me. If this is true, a legal ruling (acī raṅ) resolving this case should be issued in accordance with the original intention of your gift.”
The king ruled that his original intention was irrelevant to the case. Since the two men mutually agreed to the exchange, their agreement must stand.
From that time onward, even when kings or other men may judge or command that someone receive something, the legal decision (cī raṅ thuṃḥ) has conformed to the mutual agreement of litigants. Thus, rājasattha has authority over dhammasattha, and an agreement annuls rājasattha.Footnote 27
In this rule and its accompanying narrative, dhammasattha subordinates itself to the legislation of the sovereign, nullifying its own jurisdiction over all legal questions on which the king himself might wish to issue an edict. However, rājasattha is also limited by mutual consensus or contractual agreement as a higher standard that even dhammasattha or royal law cannot abrogate. This provision echoes a maxim frequently encountered in Burmese legal documents, according to which dhammasattha law and formal tribunals become necessary only when disputes cannot be settled through other, non-legal means. That is, when parties to a dispute reach consensus in the resolution of conflict, there is no cause to invoke the law, even if the terms of the agreement do not conform to established legal norms. Even when the law is invoked, a trial held, and a judge has issued a ruling, transcripts of precolonial Burmese trial proceedings often conclude by stating that the litigants faced each other and together ate pickled tea (lak phak), symbolizing their mutual acceptance of and submission to the decision.Footnote 28 This ultimate goal of conflict resolution, outstripping any formal “legal” remedies, is not limited to the dhammasattha corpus, but is frequently promoted in surviving texts of royal edicts themselves.
The sovereign power of the king to determine and inflict corporal punishment according to royal legislation is also something routinely granted by dhammasattha law. For example, Dhammavilāsa states, in relation to oath breakers:
In fortified towns and large and small villages of the realm and in districts of the royal dominion that have been described [in the foregoing], whosoever makes an oath of truth in front of Good People, such as bhikkhus and brāhmaṇas, or others, saying that they will not break the oath, and then at a later time breaks that oath, they should be mercilessly beaten with the cane so that in the future they do not do it again. If the oath breaker is a person of high social status, they should be dragged down from their residence, their head covering or face cloth removed, and with their head bent down in shame they must leave their relatives behind and go to work as a gravedigger (dvanḥ caṇḍāla). They should be confined in the elephant or horse stable under the house. Let them collect the elephant and horse shit for two days, or four or five days, or six or seven days, or eight days, nine days, ten days, or a fortnight. Such is the punishment they should receive. This type of punishment is known as maṅḥ daṇ (“punishment of the king,” rājadaṇḍa). If they will not accept this sort of punishment once it has been given, let them pay a fine of 5 gold pieces or 100 silver coins. They should never again be trusted. They should suffer defeat in all legal affairs. However, if such a man is executed, or if his feet or hands are cut off, one should not invoke dhammasattha. In such cases one has invoked royal legislation (rājasattha). The judge who does this [i.e. invokes the dhammasattha as justification for corporal punishment] shall suffer punishment in the Four Hells.Footnote 29
A representative (though inexhaustive) collection of hundreds of Burmese royal edicts (Pali rājasattha; Burmese, amin. tau, “royal speech”) dated (not always unproblematically) between the late sixteenth and late nineteenth centuries has been edited by the historian Than Tun and published along with English-language summaries of each edict.Footnote 30 A cursory perusal of this remarkable corpus immediately reveals the legislative imperatives of Burmese kingship, a sort of paradigmatically Austinian archive of law as sovereign command, in which the king takes center stage in legislating the realm through the regulation of political institutions and identities. While the edicts are usually presented in the king’s first-person voice, they were often executed and proclaimed by his ministerial advisors at the palace. In one of the earliest such documents, for example, issued 29 April 1597, King Nyaungyan-min declares a lengthy list of dozens of duties for newly appointed ministers at the rank of senapati, including that they:
… Ceaselessly work to regulate the affairs of the realm; … render legal judgments that diligently strive to diminish theft, murder, and arson; render legal judgments for all beings that are proportionate to the offense; investigate and record in writing for the palace archive the qualifications of all subordinate royal officers (amhu thamḥ); … support and exhibit saṅgahaFootnote 31 to the four social classes; … advise the king when disputes arise, presenting him with the legal norm (thuṃḥ caṃ), so he may properly adjudicate the case; … do not judge cases under the sway of anger, ignorance, or greed for money;Footnote 32… do not maltreat or oppress the people; … observe the five precepts (sīla) every day; observe the uposatha [i.e., observe the eight precepts] four times a month; strive to perform meritorious deeds; send mettā to the lord who holds authority [= the reigning king]; for the sake of all beings, meditate ‘sabbe sattā averā hontu’ [may all beings be free from evil];Footnote 33 … do not allow the royal finances in the palace treasury to become depleted; do not follow the desires of women; avoid the three kinds of judicial bribes (uccā taṃ cuiḥ);Footnote 34 … in the first watch of the night, confer with those who know the dhammasattha and tales of judicial decisions, those who know legal norms, those who know how to judge and understand how to investigate, those who know trading and buying and selling, those who know the scriptures (kyamḥ gan), and those who know about astrology.Footnote 35 …Footnote 36
Many other edicts seek to regulate the conduct of tax officials, military servicemen, traders, monks, and slaves, and particularly the comportment of judges and the operation and fees of legal courts. Numerous examples demonstrate that the edicts of former kings may be regarded as settled law or established “precedent,” or they might be seen to be in conflict, nullified by the dictate of the reigning monarch. The orders also reveal the integration of dhammasattha law into royal law, in a sort of reversal of dhammasattha’s pluralist deference to rājasattha mentioned above: for example, an edict dated June 23, 1607, states that judges should follow dhammasattha norms in the conduct of trials and determination of punitive fines, or another dated August 11, 1692, that prescribes that the division of heritable property for military officers shall follow dhammasattha rules of succession.
Lingat would surely contend that “such decisions have only the force of royal authority, they do not make law” (Lingat Reference Lingat, Lingat and Paulme1937, 22). While such commands are not, in most cases, grounded in dhammasattha, nor in any “supreme Dharma,” nor in the words of a buddha, it is rather difficult to conceptualize a definition of “law” with which the rājā’s edict, as lavishly depicted in these documents, is incongruous, especially given that the transgression of such edicts was met with “severe punishment,” including bodily mutilation and execution (September 6, 1573). Likewise, Chris Baker and Pasuk Phongpaichit have recently demonstrated contra Lingat that in the neighboring context of precolonial Thailand “the evidence for kings making laws is very strong” (Baker and Pasuk 2021, 29).
2.3 The Outer Casing of the Law
The study of constitutional aspects of Buddhist law is beleaguered by the faithfully monogamous marriage of constitution and “state” in theoretical discussions, as well as, relatedly, the dissociation of constitutional law from other types of law. Aristotle popularized the distinct status of constitutions in Politics. Yet this persistent decoupling, so influential in modern Europe and contemporary constitutionalist scholarship, fails to account for the fact that in many terrains of history, including precolonial Southeast Asia, the regulation of the action of the political sphere has not been conceived of as at all distinct from other forms of law and lawmaking. Here all law is “constitutive” or “constituting,” and the rājā, for example, is merely another staged character in the legal performance.
If we are to try to engage constitutional aspects of precolonial Buddhist law, it is therefore necessary to expand the inherited parameters of the governing analysis, since a significant quantum of such law, until quite recently, has not been legislated under the aegis of a rājā (or “state”), much less by a demos, or “We the People,” even if it occasionally sought to regulate the throne. It is an anthropological commonplace that all formations of community, including the most acephalous, entail a regulatory or normative dimension that seeks to negotiate or manage relations of power, and thus evince constitutionalist aspects or strategies (Amborn Reference Amborn2009). Recognizing such features of Buddhist legal discourse, however, at least those actually circulating in precolonial Southeast Asia, asks us to think about constitutionalism from a somewhat different angle, one more aligned with the contours of our archive.
If we would like to discover Buddhist constitutionalist norms, if by this we mean the “thin,” non-Aristotelian sense of laws that order spheres of politics or institutional power (the palace, the monastery), we need not search very far at all. These are abundant across the several Southeast Asian legal environments discussed above, and I have offered only a handful of illustrative specimens, mostly from Burmese dhammasattha. There are extensive, readily accessible, examples elsewhere, too. Among these are the recently translated Kot Monthianban (“Palace Law of Ayutthaya;” Baker and Pasuk Reference Baker and Phongpaichit2016), the long-ago translated “lois constitutionnelles” of precolonial Cambodia (Leclère Reference Leclère1898, I, 37–232), as well as the local varieties of monastic law treated in the work of Berthe Jansen (Reference Jansen2018), Benjamin Schonthal (Reference Schonthal2021a; 2021c), and Brenton Sullivan (Reference Sullivan2021). It is nevertheless evident from the examples given above that the heretofore standard approach, fixated on the rhetorical tropes of Buddhist kingship spellbound by dhamma, fails to nominate even approximately viable candidates.
As Chris Baker and Pasuk Phongpaichit have recently observed, “the basis of kingship in Siam and neighboring states is often described solely in relation to sacredness and religious power through terms such as devaraja (god king), thammaraja (dhamma king), and cakravartin (wheel-turning emperor)” (Baker and Pasuk Reference Baker and Phongpaichit2016, ix). This indefensible predicament needs to change. There is, in short, no sparsity of rich legal documentation from precolonial Buddhist Southeast Asia that offers scholars access to distinctive local forms of constitutionalist thought and practice. Classical Pali repertoires are no doubt variously relevant to the discussion, but often in oblique and surprising ways. Indeed, the foregoing analysis argues for precisely an inversion of Lingat’s influential thesis. The integument or “outer casing of the law” is neither the king’s command nor the complex historical substance of lawmaking in whichever of our three environments, but rather the conceit of dhamma as the “king of kings,” which has received far too much attention in scholarship, at the expense of legal history itself.
National Library of Myanmar, Yangon
U Bho Thi Manuscript Library, Thaton
Universities’ Central Library, Yangon
One of the main research questions of this volume is: Do existing models in the study of religion and constitutional law adequately explain the dynamics of Buddhism and constitutional law in Asia? This might be broken down into two further and somewhat more specific questions, namely, what are the elements of a theory of constitutionalism that have the capacity to explain existing constitutional practice, and on that basis, prescribe certain general norms of constitutional order, in Buddhist-dominant Asian polities?
In giving some preliminary answers to these two questions within the scope of a short chapter, I rely on the following assumptions. I define the empirical context of study as “Buddhist-dominant Asian polities,” meaning contemporary states in Asia where Buddhism is a material and salient influence on the law and politics of constitutionalism. This group of countries is both geographically widespread and extremely diverse in terms of its socioeconomic structures, societal and political cultures, and, importantly, its traditions of Buddhism. Notwithstanding those differences, we possess sufficient comparative knowledge in the field of “Buddhism and Law” studies to be plausibly able to work with a set of general propositions about how Buddhism influences constitutionalism. Buddhist-dominant Asian polities are also highly varied in terms of constitutional democracy, representing everything from non-democracies to consolidated democracies, meaning that there is no common concept of analytical constitutionalism through which we can understand their governance and politics. The normative assumptions underpinning the dominant contemporary discourse of comparative constitutional law, chiefly the assumptions concerning the autonomy and normative superiority of legal norms over other norms, are either inadequate or inappropriate for analysing the constitutional cultures of these countries. As a consequence, mainstream comparative constitutional law has found it difficult to find purchase in these countries as an explanatory framework, a normative philosophy of good government, and as a technology of constitutional design.
Existing accounts therefore do not adequately deal with the key relationships between politics, law, and culture, which produce, legitimate, structure, and limit governing power – in a word, constitutionalism – in Buddhist-dominant Asian polities. These relationships are between, on the one hand, the constitutional forms of legal authority that more or less originate in some version of a Western model, and on the other hand, the formal or informal modes of the exercise of political or public power that more or less derive from Buddhist-infused cultural norms. The first step in the construction of a meaningful theory of constitutionalism for and in this category of polity, therefore, is to be able to provide a descriptive account of this relationship between authority and power, form and function, state and society, institutions and culture.Footnote 1 This account must not be distorted by either external substantive normative assumptions (e.g., derived from liberalism) or by a “normativist style” of theorising.Footnote 2 In particular, it must not be assumed from the facile resemblance of constitutional forms to Western models that Western values can be used to understand and evaluate their operation. The methodology of theory-building in this first phase thus ought to be descriptive and interpretative, as opposed to normative and prescriptive, so as to achieve two important preliminary aims. The first is to capture, as accurately as possible, the reality of constitutionalism as it is actually practiced in these polities. The second is to provide plausible and explicit explanations of the various dialectic or syncretic ways in which the interaction between Western forms and Buddhist norms gives shape to the practice of constitutionalism. Only once such a satisfactory descriptive account has been developed should we turn our attention to the normative dimensions of a theory of constitutionalism, that is, questions about the nature of power-constraining principles, and the reasons by which they are justified.
This two-step theory-building exercise engages the two distinct bodies of scholarship already mentioned – “Buddhism and Law” studies and mainstream comparative constitutional law – which have hitherto developed along parallel trajectories. Driven mostly by the methodological frames and substantive concerns of religious studies, anthropology, sociology, and history, “Buddhism and Law” studies aspire to an emic approach to understanding Buddhist conceptions of law and legal order. Comparative constitutional law, typifying an etic approach, is driven by lawyers and political scientists, with the formalist methodologies characteristic of those disciplines and concerned mostly with structures, institutions, and procedures of political power and legal authority. Even when comparative constitutional law concerns itself with agentic and cultural questions, it usually looks at local specificities from the perspective of certain ideal-typical normative frameworks, which are Western in origin, but are projected now as values of universal application.Footnote 3 These two bodies of knowledge, in terms of both methodology and substance, have their strengths and weaknesses as partial accounts of constitutionalism in Buddhist societies, but as noted, they have largely developed without much engagement with each other. In theorising a model of constitutionalism that could have the best potential explanatory and prescriptive value in Buddhist-dominant Asian polities, “Buddhism and Law” studies and comparative constitutional law should therefore be brought into a dialogic conversation.
Such a conversation would have two dimensions. One the one hand, it would draw from the contextual insights of “Buddhism and Law” to answer general questions of constitutionalism posed by comparative constitutional law, and thus contribute to the broadening and deepening of the potential contribution of “Buddhism and Law.” On the other hand – and this is what this chapter is mostly concerned with – it would be the beginning of a process of refining the conceptual equipment of comparative constitutional law in two related ways. One would consist of modest and incremental ways of improving current methods of “doing” constitutional comparativism, while the other involves a more fundamental and even radical revaluation of the foundations of the discipline. The more modest challenge would be that, through its incorporation of “Buddhism and Law” insights, comparative constitutional law could become more methodologically and analytically responsive to the normative and institutional specificities of the constitutional cultures of Buddhist-dominant Asian polities. The more radical possibility is that it could be an opportunity to reappraise the prevailing liberal normativity of mainstream comparative constitutional law in a novel way.
This new pathway to reappraisal is presented by a consideration of the dynamic, as opposed to an either/or, relationship between tradition and modernity in Buddhist-Asian societies. Serving as an analogy for revisiting comparative constitutional law’s origins in the European Enlightenment, this enables multiple meanings of that intellectual watershed to be rediscovered, in particular, alternatives to the dominant liberal narrative of the Enlightenment as (liberal) modernity’s triumph over (illiberal) tradition. Such alternative meanings of constitutional modernity have the potential to pluralise the normative foundations of comparative constitutional law, and to curb liberalism’s dominance within its discourse and practice. Some of these alternative meanings of constitutional modernity could make the constraining function of constitutionalism in its normative dimension more consistent with, and less jarring to, the Buddhist-Asian ethos than individualist liberal precepts, without at the same time undermining their constraining function. It would also make the necessary reappraisal of the normative core of comparative constitutional law an inclusive and iterative process between different world cultures.Footnote 4
3.2 Buddhism and Law Studies and Constitutional Law
There are a number of insights relevant to constitutional theory-building that might be gleaned from the emergent literature on “Buddhism and Law.” Extensively discussed in this literature, albeit not always in ways that directly help the constitutional theorist, are Buddhist ideas of law and dharma, personhood, sovereignty, statehood, political order, collective identity and nationalism, political and territorial space, political ethics, and the relationships between the sangha and laity in general and rulers in particular.
One of the first lessons is that understanding constitutionalism in the Buddhist world demands a comparative methodology that is contextual, which is to say, an approach that looks at the interplay of positive law and other informal types of law in the context of history, politics, culture, and society (French and Nathan Reference French and Nathan2014, 17–24). For this reason, it is also necessarily a multidisciplinary endeavour. A comparative methodology that focuses only on formal law or institutions, or one that looks at constitutional structures that resemble Western models through Western normative values or animating conventions alone, is likely to result in heavily misleading conclusions. Of course, even in fully modern constitutional systems of positive law, scholars understand that there is more to constitutionalism than the formal laws of the system (Ferejohn, Rakove, and Riley Reference Ferejohn, Rakove and Riley2010, 10–11). But the difference here is that constitutionalism involves an interplay between laws, rules, norms, practices, and modes of behaviour that emanate from at least two fundamentally different cultural sources – the Western and Buddhist traditions – and often more than two sources depending on the “cultural packages” accompanying legal transplantation through which the given Buddhist-dominant legal system has historically taken shape (French and Nathan Reference French and Nathan2014, 22 Footnote n. 6).
In terms of traditional comparative law methods, the approach that perhaps has the greatest relevance for constitutional law is the idea of legal transplants, because this permits study not only of how legal concepts are transmitted between different polities, but also examines “the role of power, legitimacy, and authority in their transmission” (French and Nathan Reference French and Nathan2014, 21). French and Nathan note the prevalence of studies concerning what appear to be “private law” in the Buddhist world, but they underscore a caution that is especially important for constitutional law: “ … a subject for investigation is the degree to which the public-private dichotomy enshrined in Comparative Law discourse is of heuristic value in Buddhism, and also whether or not these putatively universal constructs are too culturally and historically determined to be useful” (French and Nathan Reference French and Nathan2014, 19–20). This is a point that holds true across a much broader set of issues in constitutional law than simply the public/private divide. Similarly, legal history is a field that contributes much to our understanding of constitutional law by helping us gain a better understanding of law in the past, explaining the role of law in history, and in these ways giving us a more complete understanding of the present (Harding Reference Harding, Harding and Pongsapan2021, 1–3).
In terms of substance, Buddhism is directly and extensively concerned with questions of social, political, economic, and legal order; its concerns and its regulatory ambitions are not just otherworldly (French and Nathan Reference French and Nathan2014, 14 Footnote n. 6). In “Buddhism and Law” studies, the idea of law includes the modern conception of a legal system as the body of binding rules governing a polity, conceptions of justice underpinning those rules, and the institutions and procedures for its creation and execution as well as adjudication under those rules. However, as French and Nathan pertinently add, “ … law also includes other practices, such as … the social customs, practices, and rules that constitute a form of social control for the maintenance of the group; and … social manners, customary practices, etiquette, and general behaviours regulating silence, speech, and interaction” (French and Nathan Reference French and Nathan2014, 13–14). This clearly underscores the expansive notion of “law” in Buddhist societies, and this is salient for determining the province of constitutionalism in both the descriptive and normative sense.
Buddhist law operates in a diffuse, fragmented, pluralistic, overlapping, and syncretic way, which must be understood on its own terms. Comparison with other systems of religious law in world history may help in appropriate cases (e.g., law within the Ottoman empire, which functioned in similarly plural and dialectical ways over a large and heterogenous territory). But other comparisons (e.g., with the canon law of medieval Europe) may lead to misleading conclusions, such as the equation of the strength and coherence of the legal system with qualities such as centralisation, codification, and institutionalisation. As French and Nathan argue, “The Buddhist tradition has always been known for its wide diversity in terms of its vast store of sacred texts and different canons, multiple buddhas and bodhisattvas, and accommodation to local beliefs and worldviews” (French and Nathan Reference French and Nathan2014, 14). This pluralistic, open-ended, and adaptable character of Buddhist law is not a weakness or a marker of incoherence but the very source of its vitality. It is one reason why Buddhism has been both able to form the basis of historic state-formation in so many societies in such a geographically vast and culturally diverse expanse across Asia, and continue to influence the legal systems and political processes of these countries today (French and Nathan Reference French and Nathan2014, 15). Yet at the same time, this fundamental pluralism is what also explains why there has never been a unified object called “Buddhist law” in the same sense as Islamic law, Jewish law, or canon law.
One of the most important lessons for constitutional theorising that emerges from this brief survey is thus the theme of pluralism. Within Buddhism’s unity is a rich pluralism of contextualised expressions. The theme of inherent pluralism is salient in both analytical and normative terms. In the analytical sense, it tells us that constitutionalism in Buddhist societies ought not be constructed on overdetermined positivist categories. Similarly, strong analytical regimes of separation – between domains such as law, politics, culture, and society, or state and religion, or state and society, or the public and the private, or the individual and the collective – would also be inadvisable in building descriptive theory in these contexts. Likewise, the distinctive nature of legal authority, political power, and the forms of their interactions in Buddhist Asia raise questions about how theoretical frameworks on law and religion built with primarily the Abrahamic monotheistic religions in mind might work in this region.Footnote 5
In the normative sense, the inherent diversity of both the Buddhist world and Buddhist traditions appears to offer a rich empirical and ideational basis for developing metaconstitutional theories (or foundational political theories) for constitutional order and constitutional design. Given the centrality of the themes of pluralism and syncretism to the formation of these theories, they moreover promise to take shape in ways that are very different to the Western European and North American historical and cultural contexts from which monistic and centralist theories that currently serve comparative constitutional law have emerged.Footnote 6 In particular, we should note that the sociological pluralism of the type we must account for in the Buddhist world has little to do with the value pluralism of Western liberalism, and likewise, the syncretic character of its various constitutionalisms is both a cause and consequence of a historical experience with modern state-formation that is fundamentally different to that of the West. Put another way, plausible constitutional theory for Buddhist-dominant polities cannot be constructed through the prism of Enlightenment liberalism, and its principles of individualism, voluntary choice, and its various regimes of separation.
3.3 Comparative Constitutional Law and Buddhist-Dominant Asian Polities
As is well-established, comparative constitutional law developed in a succession of waves as a result of major global events, such as the response to the horrors of World War II, decolonisation, and the third wave of democratisation beginning with the collapse of Latin American dictatorships in the 1970s through to the fall of the Soviet bloc in the 1990s. It has now become a self-sustaining interdisciplinary academic field as well as a community of practice, through the linkages between international development policy and constitution-building as an instrument of democratisation and conflict resolution in the global south. In the post-Cold War period, when comparative constitutional law saw its greatest expansion, it has also undergone several phases of rapid discursive evolution, with new challenges superseding older concerns and new information technologies assisting comparativism in multiple ways. For example, a major shift has been from the comparative study of specific subjects within municipal constitutions to the comparative study of general themes of constitutionalism (Tushnet Reference Tushnet2018, 1–11). More recently, scholars have noted a “global south turn” in the field, to which we will return in a moment.
One thing about comparative constitutional law that has remained stable and constant throughout this period of exponential growth is its core set of normative precepts, and an institutional design heuristic that is intended to realise those goals. The latter includes democratic elections, constitutional bills of justiciable rights, strong-form judicial review, the separation of powers, fourth pillar institutions, and other institutional devices for constraining power and protecting the rule of law. This normative-institutional core has been defined by the values of liberal constitutionalism, also theorised as “liberal constitutional democracy” (Ginsburg and Huq Reference Ginsburg and Huq2018, 9–15), “the postwar paradigm” (Weinrib Reference Weinrib and Choudhry2006, Chapter 4), and “structural-liberalism” (Dowdle and Wilkinson Reference Dowdle, Wilkinson, Dowdle and Wilkinson2017, 17–20). Heavily influenced by the American and French encounters with Enlightenment thought, the normative dimension of the core can be said to encapsulate the following theses. I present these theses here in a highly abstracted and stylised form, with some sacrifice of historical complexity and nuance for the sake of analytical clarity.
The American and French revolutions and consequent constitutional foundings represented the historical paradigm shift of social and political organisation from tradition to modernity (or as the shift is sometimes described, from hierarchy to equality, status to contract, religion to reason). Premodern society was a source of human misery. By the application of human reason and human will, however, society and indeed human nature was radically reconstructed so as to ensure liberty, equality, and fraternity for all. Human beings possess the vast power to destroy and recreate society on a total scale. The constitutional modernity so created is underpinned by two key principles. First, constituted authority is legitimate only to the extent that it is based on the general will of the people. Second, the moral basis of any obligation of obedience to authority, which necessarily involves some restriction on individual freedom, is that it is self-imposed. Only the individual can decide what these self-imposed limits are, based on the individual’s own exercise of reason. Any other restraint emanating from existing legal, political, social, and especially religious structures of the community in which the individual lives, lacks the legitimacy required by constitutional modernity.
The philosophy of liberal constitutionalism therefore is based on a historical mindset that sharply and favourably distinguishes modernity from whatever form of order that was present before. It reproduces a sociological worldview of individualism, a normative commitment to individual choice based on the voluntary will, a rejection or at least a subordination of any conception of natural or cosmological order as a legitimate basis of constitutional order, and a set of institutional commitments geared to the protection of individual liberty rights as the main end of constitutionalism. Moreover, constitutional liberalism, as a variant of Enlightenment thought, casts its normative principles as universal precepts applicable to the whole of humanity. This represented a rejection of the premodern notion of the constitution as the expression of the identity of specific politico-cultural communities, or broadly, the concept of the “body politic” (Collingwood Reference Collingwood1942, Chapter XXIV) in classical Western political theory, or the synecdochical polities bound by ritual idioms in premodern Buddhist states (Nissan and Stirrat Reference Nissan, Stirrat and Spencer1990, Chapter 2).
The success of liberal constitutionalism within the American experience, together with the global geopolitical position of the United States in the post-World War II and post-Cold War era, made it possible for a theory otherwise contingent on time, place, and culture, to be projected as the basis of a universal theory of constitutionalism.Footnote 7 Liberal constitutionalism’s universality, of course, has always been a contested claim within and without the Western tradition (Dowdle and Wilkinson Reference Dowdle, Wilkinson, Dowdle and Wilkinson2017, n. 21). The unevenness of democratisation in Buddhist-dominant Asian polities immediately demonstrates at least one of the sources of contestation, namely, that the universalist blueprint struggles to gain traction in societies where there is a powerful existing source of values and ideas of selfhood. Indeed, it would have been surprising if liberalism’s individualist principles had gained more traction in Buddhist societies, where constitutional ordering is cosmological and karmic rather than rationalist and secular. Bluntly put, on the Buddhist view of the nature of social life and of political obligation, the legitimacy and acceptance of constitutional arrangements are not dependent on individual reason and will (although in the Buddhist democracies these will have a place in constitutional politics and law), but on other fundamental concepts of the moral universe, and on the Buddha’s teachings on the human nature and the nature of political authority (Schonthal Reference Schonthal2016, Footnote n. 4; Walton Reference Walton2017, Footnote n. 5; de Silva-Wijeyeratne Reference de Silva Wijeyeratne2013).
Constitutional forms may be imposed, borrowed, or imported from the West, but this does not mean either that these societies have also collectively converted to the liberal normativity that liberalism assumes to be the essential condition of constitutional modernity, or that the adoption of Western constitutional forms denotes a clean rupture between traditional and modern constitutionalism. Rather, the more accurate depiction would be that tradition and modernity in relation to constitutionalism are not two counterposed elements separated by time and distinctive normative conceptions of legitimate order, but are coeval, coterminous, and coexisting elements of a longer and continuing story of historical evolution (Welikala Reference Welikala2017). Buddhist-dominant Asian polities had different encounters with the West in the age of Western imperialism; some were, and some were not, colonies. But while the Western influence did transform the legal forms of constitutionalism in virtually all of them, it did not create or fundamentally reconstitute the modern culture of constitutionalism.
Of course, this experience has not been unique to Buddhist Asia, and the challenge posed by the clear dissonance between the normative assumptions of the current paradigm of comparative constitutional law and the realities of democratisation in the global south has led to a “Southern turn” in the scholarship (Dann, Riegner, and Bönnemann Reference Dann, Riegner and Bönnemann2020, 3). This work is still developing, but recent contributions broadly fall into either rejectionist or accommodationist attitudes about liberal constitutionalism, with a number of different types of argument within each category. Rejectionist views are of three types (Dann, Riegner, and Bönnemann Reference Dann, Riegner and Bönnemann2020, chapters 2–5). The two strongest forms of rejectionism are the arguments that hold that liberal constitutionalism’s association with either colonialism, or colonialism’s successor paradigm of “classical modernist” (Smith Reference Smith1998, Chapter 1) post-colonial nation-state building, makes it inappropriate wholesale for the post-colonial world. The key objection here is to the assumed superiority of the Enlightenment conception of modernity and progress that underpinned both paternalist colonial constitutional development and post-colonial classical modernism. The somewhat softer form of rejectionist arguments are those that question if the Western cultural and historical particularities, which are the inseparable context of liberal constitutionalism’s successful operation, render it inapplicable to non-Western conditions. This is a type of amendatory critique that may blend into accomodationism, provided its analytical concerns are satisfactorily met. Accommodationist accounts argue for the relevance and retention of liberal constitutionalism in the global south, either through a “re-imagining” of substantive liberal values from a global south perspective (Roux Reference Roux2021), or through a “self-reflexive” style of constitutionalism (Dowdle and Wilkinson Reference Dowdle, Wilkinson, Dowdle and Wilkinson2017, n. 21). Accommodationist accounts, as Dowdle and Wilkinson put it, are about constitutionalism “ … beyond liberalism, not against liberalism” (Dowdle and Wilkinson Reference Dowdle, Wilkinson, Dowdle and Wilkinson2017, 1).
All these views have their explanatory and normative value, although perhaps the rejectionist accounts are less persuasive overall than the accommodationist ones. Despite being based on valid considerations of justice and dignity of former colonial peoples, the rejectionist approach can nevertheless be seen as too binary to form the basis of a satisfactory account of constitutional contexts in which the reality is not, and ought not to be, defined by an either/or choice between democratic and some other form of constitutionalism, but as a dialectical or syncretic relationship between the two. As noted before, both the descriptive and prescriptive tasks of constitutional theory are defined by this reality in Buddhist Asia. Thus, while the accommodationists offer more to this undertaking, a characteristic feature of their work is the acceptance of the dominant Franco–American interpretation of the Enlightenment and the consequential substantive model of modern liberal constitutionalism that is the legacy of their revolutions. This interpretation reifies liberty and reason, as outlined above, but it ignores a central dimension of the intellectual debates of the Enlightenment, namely, social and political virtue.
Himmelfarb characterises this body of Enlightenment thought as the “sociology of virtue,” counterposed to the two other strands she labels the “ideology of reason” and the “politics of liberty” (Himmelfarb Reference Himmelfarb2008, 3–22). This strain of Enlightenment thought focuses empirically on sociological and historical traits of societies, and normatively on social virtue and political morality, for its account of modern constitutionalism. Less preoccupied with the evils of religion as well as less enamoured with the potency of human reason, this style of constitutionalism foregrounds the innate human capacities for moral conduct as the basis of a statecraft of limited politics, scepticism, prudence, and accommodation, and values tradition and organicism alongside reason and liberty. It opposes revolution and holds that constitutional statecraft was primarily about the management of human imperfection.
What can we extrapolate from this for the present? Himmelfarb gives us a descriptive and empiricist model of constitutionalism that tracks the descent of certain aspects of the present’s constitutional arrangements to alternative, more primordial, sources of human nature. She also suggests an underlying concept of social consent to constitutional arrangements, but this is organic rather than rationalist. The longevity of the constitution (qua body politic) and its deep social acceptance exist in a symbiosis; and it is this symbiosis that invests the constitution with legitimacy. The constitution, in this reading, is the whole body of legal and political rules and moral principles that authorise the institutions of government and regulate the relationship between government and society. No sharp distinctions are drawn in this conception between the political, social, and cultural spheres of life.
If this should raise understandable concerns that the model favours established patterns of hierarchical social, economic, and political power that are inimical to the interests of individuals, minorities, and vulnerable social groups, it would be important to emphasise that this model of constitutionalism as an ideal type also, crucially, integrates the function of principles derived from reason and the common good in its normative dimension. The role of objective reason and a notion of the common good are critical here, as this is what distinguishes this model from one based solely on the ascriptive demands of the dominant religion or ethnicity – as one might find in the context of the ethnic and religious pluralism of Buddhist-dominant Asian polities, or in the latent traditions of the pre-democratic past that have mutated into modern forms of authoritarianism, or in the other hierarchical structures that adversely affect non-dominant groups and individuals. A model of constitutional modernity of this type, it can be argued, is more consistent with the empirical realities that constitutionalism encounters in Buddhist-dominant Asian polities than a model based on reason and revolution. Its organicism can readily embrace the cosmological ordering of the Buddhist world. Its traditionalism enables ancient traditions of Buddhist societies to be treated with respect, rather than with the derision of tradition that often accompanies liberalism’s reification of individualism and rationalism.
But how does it function as a constitutionalism of limitation on power and authority? Buddhist political ideas are primarily about enabling virtuous rule, and its principles of limitation rely primarily on moral suasion (the dasa-rājadhamma being the exemplary device). These techniques are more often than not inadequate for the purposes of disciplining the vast power of the modern state. While therefore it is clear that law must have a meaningful role in disciplining politics, and the institutional means of operationalising this function can look very similar to those of liberal constitutionalism, the crucial difference is the way in which the principle of limitations is normatively justified. Unlike liberal constitutionalism, the organic conception of constitutionalism Himmelfarb foregrounds is not concerned with remoulding state and society in the image of its ideal conception of the good. The idea of limits here serves not a transformative, but a preservative purpose, although preservation may require prudent and proportionate reformation. Concerned primarily with maintaining peace, order, and good government, this model of constitutionalism strives to ensure that the constitution is not instrumentalised in favour of this or that substantive conception of the good, whether that is liberal constitutionalism, or monistic ideologies (such as nationalism and authoritarianism) in plural societies, which may be contrary both to modern democratic values and the inherent pluralism of the Buddhist tradition. The constitution, rather, remains fundamentally a procedural framework that enables the peaceful co-existence of multiple and competing conceptions of the good, albeit within the “moeurs”Footnote 8 of the particular Buddhist society to which it gives political and legal expression.
This brief outline of the makings of a theory of constitutionalism in and for Buddhist-dominant Asian polities of course leaves many questions yet unanswered. Further research would be needed to more fully theorise the foundational, normative, and institutional aspects of this model. However, what I hope I have achieved through these brief reflections is to underscore the point that liberal constitutionalism is neither the sole nor even an essential basis for constitutional democracy. If that premise is accepted, then complementary pathways for constructive scholarship open up, which may give us a better model of constitutionalism for Buddhist Asia, and via greater epistemological self-awareness, the regeneration of comparative constitutional law on more plural and inclusive foundations.