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Chapter 5 shows that the claim that the Greek Bavarian-led state was undermining the formation of the nation was further radicalised when scholars, and in particular Nikolaos Saripolos, took on international law and addressed directly the curtailed sovereignty that the Great Powers had imposed on Greece. The chapter argues that if we want to understand the Greek discussions on international law, we need to consider two things: first, the place of the Greek kingdom within the regional legal order that had been formed in the Eastern Mediterranean since the 1830s; and second, the ways in which from the late 1840s onwards (and especially during the Crimean War) this order was being redefined by European powers and in particular by Great Britain. In this context, a number of interventions in the domestic affairs of the state by the guarantor powers made people like Saripolos realise that the fictions on which the international position of Greece was based had to be revised. They also led to claims that the monarchical policies were jeopardising the already precarious place of Greece in the geography of civilisation, and possibly its very political existence.
Chapter 4 demonstrates that the recommendations that favoured state intervention were coupled with a different way of thinking about political power: its nature, its sources and its organisation. The intellectual éminence grise behind this was Nikolaos Saripolos, who, after coming to Greece and being elected to the Law School in 1846, was to become the country’s leading constitutional and international law scholar. Being mindful of the revolutionary tradition and fusing together several different intellectual currents (Rousseau, Doctrinaires, the monarchiens, Benjamin Constant), Saripolos changed the terms of constitutional thinking by drawing on the revolutionary idioms of natural rights and national sovereignty. This was a liberal, governmental discourse that spoke in terms of sovereignty as self-rule and of the state as a moral person with rights in the international arena. As the chapter demonstrates, for Saripolos – as well as for the economist Ioannis Soutsos – the state in the form it then took had become an obstacle to the formation of the nation and was undermining social cohesion.
The relation between Buddhism and constitutional law is not just a story of Buddhist influences on public law; it is also a story of how concepts and ideas that are prominent in constitutional design and interpretation also come to influence Buddhism. The chapter investigates this possibility by looking closely at a new transnational movement of televangelist Buddhist monks who form part of the “Mahamevnāwa Monastery.” Mahamevnāwa monks have taken the linguistic ideology of Sinhala nationalism which was central to constitutional practice in Sri Lanka and made it a central tenet of Buddhist practice (i.e. making the national language the language of Buddhism). They have also taken an idea that the law of the land should be accessible and representative of the “nation” which is core to the very concept of constitutional law itself and turned it into a soteriological principle of accessing nirvana. I argue that what links both these things is that both the constitution and the Mahamevnāwa reforms embody similar forms of linguistic ideology in which the ideal state can be realised by creating “public” texts for the uplift of the “nation.”
This chapter is about how Buddhism in Inner Mongolia, specifically Geluk Buddhism, was regulated in the post-Qing (1636–1912) under Republican China (1912–49) and the Japanese Empire (1868–1947), two regimes that competed to govern this key region in the interwar period. This chapter examines how the Republic of China and the Japanese Empire understood Geluk Buddhism in Inner Mongolia and the kinds of regulations and policies that were introduced to define and regulate the tradition. The chapter reveals that Geluk Buddhism was promoted to a certain degree as a useful “tool” in the two regimes’ geopolitical plannings, but it was ultimately understood as a “problem” for modernization and secularization efforts. The chapter further argues that the competition by the two regimes to regulate Buddhism in Inner Mongolia can be viewed as a larger civilizing process for modern nation-states to limit, secularize, modernize, and de-ethnicize religion.
Recent constitutional struggles suggest that the Thai constitutional system is not secular. Traits of traditional Buddhist ideas as well as liberal democratic ones can be identified. While a constitution guarantees human rights and electoral governance, still, provisions of the judiciary and watchdog agencies reflect the traditional understanding of political authority. The rise since 1997 of these unelected elites should be seen as an effort by the traditional elites to create a moral high ground to undermine the majority’s wisdom and dominate Thailand’s political landscape. This chapter focusses on how the Buddhist concept of barami has influenced constitutional designs in the past two decades, which coincide with the rise of conservatism and moral politics in Thailand. It then traces the root of the current conflict, which is whether a good man should win over a popular man.
Shortly after the conclusion of the Korean War in 1953, the Buddhist monastic community in South Korea was beset by an internal schism concerning celibacy that turned into a power struggle for control of the Korean sangha. Aside from the temples themselves, the secular courts were the primary battleground in this dispute over monastic marriages and celibacy. The legal case at the heart of the “purification movement” (chŏnghwa undong) offers insight into the monastic community’s attempts to navigate the legal landscape of post-war South Korea. The secular courts had no legal basis under the post-1948 Constitution for deciding whether celibacy was required in order to maintain one’s status as a Buddhist monk. The cases focussed instead on the legality of revising the Chogye Order’s own Constitution (chonghŏn), or more specifically the meeting or gathering in which these changes were authorized. This chapter looks at the intersection of Buddhism and constitutional law in Korea as revealed in these historical events.
This chapter offers a survey of the three principal environments of Buddhist law in precolonial mainland Southeast Asia: vinaya (monastic law), dhammasattha (juristic law), and rājasattha (royal legislation). It assesses, on the basis of manuscript and epigraphic evidence from Burma and Thailand dated between the thirteenth and eighteenth centuries, the scope and significance of constitutional norms and jurisprudence within each sphere. The chapter seeks to dethrone prior scholarship on constitutionalism in Theravāda Buddhism that has narrowly fixated on idioms of kingship and dharma, arguing that such work misconstrues and diminishes regional legal history. It explains, moreover, that the comparative study of Buddhist constitutionalism in precolonial Southeast Asia must necessarily expand the horizon of inquiry to consider those fields of law (such as family law) concerned with matters other than higher-order institutional governance.
Do government laws have a trickle-down effect into monastic laws? Or is it the other way around? The adjudication of monastic law and the presence or absence of governmental intervention in such matters can indicate the status of the relationship between monasteries and state. Previous research has shown that many Tibetan Buddhist monasteries were distinct legal entities, with the power to try and punish not just the monks but also the lay-people who interacted with the clergy. This chapter is concerned with the ways in which these two types of constitutional laws were related to each other. While in the case of Bhutan certain state regulations were based on existing monastic guidelines, which suggests that monastic law directly inspired secular governmental policy, the picture for historical Tibet is less clear. The language of some “secular” legal texts reveals that their authors were very much aware of internal monastic laws and accommodated them. Similarly, the monastic rulebooks pointed out when monks were subject to state law. This chapter examines where and how government law and monastic law intersected in early modern Tibet and attempts to demonstrate the potential mutual influences and legal concerns.
This chapter discusses the Cambodian Constitution’s recognition of both Mahanikay and Thommayuth sects, arguing that the reseparation of the sangha was the outcome of a political compromise made in the country’s peace-building process, which has since been overtaken in secular politics. Cambodia’s 1993 Constitution not only symbolized the purported transition to democracy but also the return of Buddhism to the status of state religion. The traditional separation between Mahanikay and Thommayuth sects replaced the unified sangha structure in place since the end of the Khmer Rouge. This new status quo maintains constitutional recognition through the inclusion of the Supreme Patriarch of each sect as members of the Throne Council. However, the novel position of Great Supreme Patriarch brought into question this division. This chapter will suggest that the division should be understood as a political compromise made by the ruling Cambodian People’s Party to the cosignatories of the Paris Peace Accords, and that it leaves an ambiguous new de facto situation within the Buddhist hierarchy. The chapter highlights how the constitutional recognition of Buddhist authority in contemporary Cambodia has been structured by a confluence of party-political and peace-making considerations.
This chapter begins the project of theorizing the relationship of Buddhism and constitutionalism from the perspective of Buddhist-majority polities. The first step is to be able to provide a descriptive account of the relationships between authority and power, form and function, state and society, institutions and culture, as 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 give 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.
The essay looks at the Buddhist Association of China (BAC), which the Chinese Communist Party (CCP) has promoted as an influential actor in Buddhist circles on the global stage, via one of its key instruments for influence in Chinese societies and abroad, the United Front Work Department (UFWD). This chapter argues that Buddhist actors who seek to shape the legal-political framework of their societies according to their values are facing increasing competition from a fellow influential Buddhist association that conveys the positions of its political mentor rather than shared religious values. The chapter contextualizes this issue by presenting the limited influence of Buddhism on legal thought in Chinese history. It then examines the BAC and the status of Buddhism in contemporary life, looks at the CCP UFWD influence on the BAC, and chronicles the BAC emergence as a major actor in Buddhist international organizations. It concludes on the significance of the BAC for Buddhists worldwide and constitutional law.
This chapter presents two contrasting examples of Buddhist activists whose on-the-ground activities and institution-building efforts have been defined by concerns about divisions between religion and state stipulated by Japan’s 1947 Constitution. The first case introduces Buddhist clergy who mobilized following the March 11, 2011, disasters in northeast Japan. The second investigates the lay Buddhist organization Soka Gakkai and its affiliated political party Komeito. Both cases demonstrate the need to look beyond court cases to determine ways in which constitutional religion and state divisions have determined the actions of Japanese Buddhists and their legal statuses in Japan’s postwar order.
Tibetan ethnohistories of Buddhist law have traditionally revolved around the figure of the seventh-century emperor Songtsen Gampo, codifier of first written Tibetan law code. This code was putatively “based” on the ten Buddhist virtues, enshrined in early Mahāyāna works such as the Daśabhūmika (“The Ten Grounds”). This claim is often debunked by modern constitutional historians, who argue that there is little evidence of any lineage of Buddhist textual sources from India to Tibet at the time to support such a claim. However, a closer reading of Indian Mahayana texts and subsequent Tibetan writings suggests a different interpretation of this claim: that the emperor’s dependence on the ten virtues was seen to be noetic rather than literary. Specifically, that its formulation was a product of his personal qualities as a second ground bodhisattva, which naturally generated virtuous law in a Buddhist sense; and that it was based on ethical objectives rather than a lineage of codified injunctions. In this sense, the Buddhist core of royal law was understood to depend on the personal virtue and wisdom of the lawmaker, rather than the integrity of the codified textual lineage.
This chapter explores the Vietnamese state’s constitutional framework for governing Buddhism. The framework includes: (1) principles in the big-C Constitution (the formal, written Constitution of 2013); (2) small-c constitutional rules, including broader legislation enacted to implement the formal Constitution, particularly the 2016 Law on Religions and Belief; and (3) the Buddhist constitution, a body of governing law of the Buddhist community, particularly the Charter of the Buddhist Sangha of Vietnam. To some extent, the Vietnamese case illustrates unique features compared to other Buddhist contexts, mainly due to Vietnamese socialism. However, the Vietnamese case also reveals commonalities with the other cases analyzed in this volume.
Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.”1 For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies.
How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies.
In recent years, nations around the world have faced a veritable crisis of ineffective government. Basic governmental functions – preventing private violence, resolving disputes through lawful means, providing an infrastructure to enable people to meet their most elementary needs for shelter, nutrition, transportation, communication, education – go unmet. In some countries, these basic functions are met but longer-term governance issues languish, and government is perceived to be unresponsive in ways that some believe contribute to political backlashes, including those against minority groups. These failures in governance are also perceived to have contributed to a global upsurge in authoritarianism and a concomitant decline in democracy.1
Moreover, the basic freedoms protected in many democratic constitutions – freedom from state-sanctioned torture and from punishment or coercion without fair process; freedom of expression, of religion, of movement; freedom from invidious discrimination; enjoyment of property without arbitrary government interference; free exercise of the suffrage – cannot exist, in an organized society, without government effective enough to control itself and its agents and otherwise to secure the protection of those rights.
The theme of this volume – constitutionalism and the right to effective governance – has important connections with the fight against public corruption.1 This short contribution to the volume will briefly introduce three aspects of this topic: (1) How might corruption pose a threat to effective constitutional governance? (2) How might anticorruption efforts also put strain on the constitutional system? (3) In what ways might constitutional design choices affect the scope, prevalence, or type of corruption? The hope is that, by sketching out these relationships, this discussion can help to stimulate more dialogue and engagement between constitutional theorists and anticorruption specialists, who sometimes occupy separate intellectual and professional universes despite the close connections between their subject areas.
Since the uprisings of 2010 and 2011, it has often been assumed that the politics of the Arab-speaking world is dominated, and will continue to be dominated, by orthodox Islamic thought and authoritarian politics. Challenging these assumptions, Line Khatib explores the current liberal movement in the region, examining its activists and intellectuals, their work, and the strengths and weaknesses of the movement as a whole. By investigating the underground and overlooked actors and activists of liberal activism, Khatib problematizes the ways in which Arab liberalism has been dismissed as an insignificant sociopolitical force, or a mere reaction to Western formulations of liberal politics. Instead, she demonstrates how Arab liberalism is a homegrown phenomenon that has influenced the politics of the region since the nineteenth century. Shedding new light on an understudied movement, Khatib provokes a re-evaluation of the existing literature and offers new ways of conceptualizing the future of liberalism and democracy in the modern Arab world.
In recent years, nations around the world have fallen prey to what might be described as a crisis of ineffective government. Basic governmental functions and services, such as ensuring education, health care, and a strong economy, are deeply compromised. Not only does ineffective governance undermine the general welfare, it can also pave the way for authoritarian regimes to take hold in erstwhile democracies. In their bid for power, autocratic leaders have often capitalized on citizens’ disenchantment with governance failures. In response to the rise of authoritarianism in democratic nations, considerable scholarly attention has been paid to the relationship between constitutionalist structures and democratic sustainability.