It was once said that the field of Buddhism and law was a ‘missing discipline’, a gaping hole in the academic study of religion and law in desperate need of scholarly shovel work.Footnote
1
Fortunately, this gap has begun to be filled. Yet, the cover has not been spread evenly. Of the many subfields within the study of Buddhism and law that have not received adequate attention, the subfield of Buddhism and constitutional law stands out as acutely overlooked – a hole within a hole. In the last few decades, there have been no more than a handful of studies that engage in a sustained, direct way with the question of how Buddhism informs constitutional practice and how constitutional institutions influence Buddhism.Footnote
2
The contributions made in this Special Issue, therefore, are especially important.
The need for studies of Buddhism and constitutional law in Southern Asia is not simply a matter of academic hole-filling. (Academia is, after all, an endlessly holey place.) There are more pragmatic and urgent reasons for such scholarship. In recent years, Buddhism has become increasingly intertwined with constitutional practice, perhaps more so than in any period before. In the last two decades, almost all Buddhist-majority countries in South and Southeast Asia have been involved in projects of constitutional reform and replacement, in which the status of Buddhism has been heavily debated and the role of Buddhist leaders has been prominent. In most of these places, constitution drafters and activists have made efforts to strengthen constitutional prerogatives for Buddhism – some successfully.Footnote
3
Combine these developments in constitution drafting with emergent cultures of Buddhist-interest litigation and legal activism,Footnote
4
and one gets a sense of a growing trend of visibly ‘Buddhicized’ constitutional cultures in South and Southeast Asia.
If one considers these cultures as a group, one might rightfully ask, ‘How should we make sense of this?’ Scholars have paradigms for thinking broadly about Islamic constitutionalism and secular constitutionalism. But, to date, scholars have not developed a similar body of literature concerning what could be called ‘Buddhist constitutionalism’.Footnote
5
What sorts of imperatives, structures, and goals characterize these forms of constitutionalism? While Buddhism is not the only thing that defines the constitutional histories of Myanmar, Thailand, and Sri Lanka,Footnote
6
it does play a distinctive role.
To think about this distinctive role, and to join together some of the existing contributions mentioned above, I propose that we think about the intersections of Buddhism and constitutional practice by way of three questions, which can also be asked about religion and constitutional law in other jurisdictions: (1) How is the relationship between religious law and public law conceived?; (2) How is the relationship between religious authority and state-legal authority arranged?; and (3) How is the relationship between Buddhism and other religions imagined?
I. HOW IS THE RELATIONSHIP BETWEEN RELIGIOUS LAW AND PUBLIC LAW CONCEIVED?
In recent decades, comparative law scholars have developed a wide body of literature investigating the relationship between religious law and public law in Christian- and Muslim-majority jurisdictions.Footnote
7
To date, no equivalent body of scholarship has developed for Buddhist-majority contexts. For example, there are no scholarly debates within Buddhist legal studies that have a similar scope and depth to debates about shariah and public law.Footnote
8
Buddhism does not have a perfect equivalent to shariah. That is, Buddhist texts and authorities do not speak about the Buddha’s teaching as though it were a comprehensive code of revealed injunctions, interpreted by a dedicated body of jurists, and incumbent equally upon all followers. Nevertheless, it does have very prominent ideas of law, both as a specific set of ecclesiastical laws to be followed by monks (vinaya) and as a general set of natural laws that the Buddha refers to in his teachings (dhamma). In fact, the word dhamma itself can mean both teaching and law, and in early South Asian textual and epigraphical sources, is also used to refer to the teachings of other groups. In this context, one ought to ask the question: In contemporary Buddhist-majority states, are there debates about dhamma and public law that parallel those concerning shariah and public law in Muslim-majority settings?
Eugénie Mérieau gives compelling examples of this type of debate in Thailand.Footnote
9
In her contribution, she describes how, from the 1960s to the present, Thai jurists argued that Buddhist doctrines of royal duties (rājadhammā) and religious kingship (dhammarāja) were, if not direct sources of the Thai constitutional law, at least conventions within it. In fact, Mérieau hints at broader trends in these arguments over the last 300 years. These trends amount to a story of decline and revival in the perceived intimacy of dhamma and public law: in the era of Palace Laws before the nineteenth century, Thai jurists took for granted the fact that royal decrees were based on the ‘science of dhamma’ (dhammasattha);Footnote
10
during the constitutional revolutions in the 1930s, this linkage of dhamma and public law declined due to the influence of republican thinkers who sought to modernize and secularize Thai law along European lines; since the 1960s, Mérieau shows, the linkage has been revived, with Thai jurists once again favoring strongly Buddhistic interpretations of royal power, administrative authority, and constitutional law.
In Mérieau’s story, the fall and rise of what one might call dhammic public law is visible linguistically as well as jurisprudentially. Dhamma (Thai tham) has seen a revival as a core feature of legal language. Or, put a different way, dhamma could not be completely evacuated from public law discourse. As Mérieau shows, even Thai republican lawmakers did not sever completely Buddhism’s links to public law, integrating, as they did, the term dhamma into Thai word for constitution, rathathamanoon (literally meaning, the dhamma of the ratha or state). As the project of dhammic public law gained traction in the 1960s and especially in the last three decades, the linguistic traces of dhamma have become even more pronounced, culminating in Thai translations of terms like good governance (thamma-phibun) and rule of law (niti-tham).
All of this is striking from the vantage point of Sri Lanka, where the jurisprudence and language of constitutional law have not suggested the idea that Buddhism is a source of public law in quite the same way. Although Buddhism is given a special place in Sri Lanka’s constitution, and although monastic laws are validated in civil courts,Footnote
11
the technical lexicon of public law is not suffused with religiously resonant words. In Sri Lanka, Sinhala juristic terms such as good governance (yahapalanaya) or rights (ayitivāsikam) do not have a conspicuously Buddhist etymology. Instead, for most Sinhala speakers, these terms have the neologistic ring of technical back-translations from English terms. In fact, once one asks the question comparatively, one discovers that the language of public law in Sri Lanka appears surprisingly free of dhammic undertones, even in places that one would expect them, such as terms for justice (yuktiya or sādhāraṇaya). This is not to say that there is no overlap in the languages of ancient and modern law in Sri Lanka. (Terms used for constitution (vyavasthāva) or courts (adhikaraṇa) appear in much older texts, including monastic disciplinary codes such as vinaya and katikavāta.) Yet, these terms are neither exclusive to, nor especially suggestive of, the Buddha’s teachings. Rather, they are endemic to a variety of legal traditions in ancient Southern Asia, and when used in the context of modern public law, have no religious associations.
One cannot attribute the absence of Buddhist terminology in Sri Lankan public law to the absence of dhammic or Buddhist jurisprudence. (Sri Lanka’s colonial history and tri-lingual legal context have probably played a larger role in limiting the importation of Buddhist loan words into the vocabularies of public and administrative law.Footnote
12
) Nevertheless, when one compares Mérieau’s portrait of Thailand with that of Sri Lanka, one sees that jurists, campaigners, and politicians have approached the project of Buddhicizing law in differing ways in each place. If Thai jurists have blended dhamma and public law at the level of elite legal theorizing, Sri Lankan campaigners seem to have done so far more at the level of political speeches and street protests – or, at least, according to the standard histories of Buddhism and politics that scholars have to go by. In these standard accounts, the nexus of religious and public law lies in the rhetoric of politicians (eg SWRD Bandaranaike or JR JayawardeneFootnote
13
), the activities of Buddhist groups (the JHU or Bodu Bala SenaFootnote
14
), and the legal activism apparent in Buddhist-interest litigation.Footnote
15
In this respect, Mérieau’s article offers an exciting avenue for exploration in Sri Lanka and Myanmar: What are the important examples of dhammic legal theorizing – or Buddhist jurisprudence – in those places?Footnote
16
II. HOW IS THE RELATIONSHIP BETWEEN RELIGIOUS AUTHORITY AND STATE-LEGAL AUTHORITY CONCEIVED?
The relationship between Buddhism and constitutional practice plays out not just on a discursive level, but on an institutional level as well. Where the discursive relationship has developed by way of efforts to join Buddhist ideas with public law concepts, the institutional relationship has developed by way of efforts to manage (or avoid) conflicts between two groups of authorities that claim to act on behalf of Buddhism: state-legal authorities – including prime ministers, presidents, jurists, and (in the case of Thailand) monarchs – and Buddhist monks. Although conflicts between political and monastic authorities have a long history in the Buddhist world,Footnote
17
these conflicts have taken a particularly pointed form in the context of contemporary constitutional governance.Footnote
18
Most constitutions in Southern Asia mandate that governments support Buddhism. Yet, traditionally, it is the monks, not governments, that are imagined to be the direct guardians and embodiments of the Buddha’s teachings. So, how should governments interpret these constitutional mandates? How are state officials supposed to protect something over which Buddhist monks are supposed to have primary authority? This question is complicated even further by the fact that, in most of the Buddhist world, monks are not organized in a single, perfectly centralized and hierarchized ecclesiastical institution. So, in enacting constitutional duties to protect Buddhism, governments must wrestle both with a relative lack of religious credibility (in most contexts, they are not monks themselves) and with the lack of a perfect surrogate (eg a Buddhist Pope) who might exercise those constitutional duties on their behalf.
This conundrum of Buddhist authority provides an interesting point of comparison with constitutional practice in other parts of the world, one which Nyi Nyi Kyaw casts light on.Footnote
19
For Nyi Nyi Kyaw, the depth of this dilemma stems from an act of infelicitous constitutional borrowing. More precisely, it comes from attempts to take foreign models of church-state relations and apply them to Buddhist-majority contexts. In the case of Myanmar, this happens by way of an attempt to borrow Irish constitutional prerogatives for Catholicism as the model for newly-independent Burma’s constitutional prerogatives for Buddhism. In the context of this specific legal transplant, he asks the question: To what, exactly, were legal draftspersons giving a ‘special position’? In other words, what does it mean to replace a tightly centralized and hierarchical institution (‘the Catholic Church’) with an abstract collective noun ‘Buddhism’? Does this mean that constitutional protections for Buddhism in Southern Asia are something like the Concordats in which there is no equivalent of the Holy See?
When one proceeds from this line of questioning, one sees that the texts of ratified constitutions provide few answers. This is because, in most cases, the final language of written constitutions emerges not from a history of trying to clarify and solve these challenging questions, but from attempts to avoid them. The constitutional status of Buddhism in Myanmar, Sri Lanka, and Thailand (perhaps with the exception of the 2017 draft) remains purposively laconic, suggesting neither the priority of state over sangha nor that of the sangha over state. This is no coincidence. Rather, it reflects the intractability, in all three jurisdictions, of questions over whether monks or rulers ought to have the final say over Buddhist affairs.Footnote
20
To answer the questions Nyi Nyi Kyaw poses, one must look not to the written constitutions themselves, but to (what might be called) constitutional statutes – sets of foundational, basic laws that structure the relationship between monks and rulers. In Thailand, one has the Sangha Act of 1962 (amended in 1991 and 2017); in Myanmar, there is the Laws Relating to the Sangha Organisation of 1990;Footnote
21
and in Sri Lanka, the Buddhist Temporalities Act of 1931 (amended in 1992 and 2013). It is in these laws, and similar ones in Cambodia and Laos, that one finds what one could call the constitutional organization of (Buddhist) ‘church and state’ in South and Southeast Asia.Footnote
22
Although they are located outside of written constitutions per se, these statutory grundnorm-s (and their interpretations) provide the context against which one must understand written constitutional protections for Buddhism. So, if they are like Concordats, they are agreements between rulers and clerics in which the clerics are to be formally recognized (or appointed) by the rulers. In this way, then, the ‘Buddhist Concordats’ of Southern Asia remain more contrived and less workable than those of Europe because it is the government that ultimately controls what does and does not count as the ‘Buddhist Church’, and who is or is not the equivalent of a ‘Buddhist Pope’.Footnote
23
III. HOW IS THE RELATIONSHIP BETWEEN BUDDHISM AND OTHER RELIGIONS CONCEIVED?
The above discussion reveals something else about the links between Buddhism and constitutional practice in Southern Asia, to which Gehan Gunatilleke gives incisive expression in his contribution: Buddhist monks are not normal citizens or agents of law; they are exceptional in many senses.Footnote
24
Within legal regimes that give special status to Buddhism, Buddhist monks can make unique claims to authority, influence, and in some cases, impunity. Gunatilleke, following the work of Ayesha Zuhair, names this fact ‘monastic exceptionalism’, although he traces its roots to social norms rather than legal provisions. He is, of course, correct in so doing, and his interventions point to an important consideration, which Nyi Nyi Kyaw also suggests: the uniqueness of monks as legal agents comes not just from their unique status in written laws, but also from their privileged status in society-at-large. In other words, when it comes to the articulations of Buddhism and constitutional practice, social norms and legal norms are intertwined.
The exceptionalism of monks as agents and objects of law, raises another set of questions about the status (or exceptionalism) of Buddhism and Buddhists vis-à-vis other religious traditions and groups: In the same way that Buddhist monks are exceptional as agents of law, is Buddhism also exceptional as an object of law?
Underlying this question is a third dilemma embedded in the history of Buddhism and constitutional practice in Southern Asia. When it comes to religion, the modern constitutional regimes of Thailand, Myanmar, and Sri Lanka are viewed through at least two legal imaginaries. One legal imaginary is that of the liberal constitutional tradition, which presents constitutional law as a contract between citizens and governments, and which promises to citizens things such as freedoms, rights and equality. The other legal imaginary is drawn from what might be called sāsana histories, ie traditional Buddhist narratives recounting the dissemination and transmission of the Buddha’s teachings over time.Footnote
25
In this second legal imaginary, modern constitutional states stand as the latest iterations in a centuries-long tradition of royal polities in which Buddhism is (or should be) specially protected. All three contributions gesture at the influence of this second tradition: Mérieau’s work points to the official time of Thailand’s constitution being Buddhist Era – the years calculated from the passing-away-cum-ultimate-awakening (parinibbāna) of the Buddha. Gunatilleke and Nyi Nyi Kyaw’s articles point to the importance of Buddhist royal chronicles in the popular imagination and education.Footnote
26
Because constitutional practice in Southern Asia shows traces of both legal imaginaries, it treats Buddhism in two largely contradictory ways. On the one hand, constitutions render Buddhism through the lens of liberal constitutional thought, as something that is homologous to other religious traditions – structurally similar to Islam or Christianity, even if it is substantively unique. Buddhism in this view is commensurable with other religions as an object of law: like other faiths, it is imagined to consist of a discrete set of beliefs and practices, distinct from the ‘secular’ worlds of politics, economics, culture, etc.Footnote
27
This view of Buddhism is not shared by the other legal imaginary that dominates the history of Buddhism and constitutional law in the region, one that is drawn from sāsana histories. In this imaginary, the Buddha’s dispensation differs from other religious traditions not simply in its aesthetics or accouterments, but in its very structure and nature. To use a biological metaphor, the Buddhist tradition is not simply one species in a common genus (called ‘religion’); it is another genus entirely. In fact, in lieu of using the word Buddhism, proponents of this viewpoint frequently favor the word sāsana. Sāsana is a term that appears frequently in Buddhist texts and refers to the total legacy of the Buddha, philosophically, institutionally, textually, and materially – including everything from values, to education, to imagery, to relics, and to temple property.Footnote
28
In this approach, sāsana is to religion as law is to constitutional law: it is larger and more complex; it is thought to have a much wider footprint in society.
One can see these conflicting views of Buddhism (and its relationship to other religions) in the context of debates over the language of constitutional law. For example, in the late 1970s, drafters of Sri Lanka’s constitution insisted that the word sāsana be used rather than Buddhism (in Sinhala: buddha-āgama) to describe the object of state protection. This, they hoped, would make clear that the majority tradition was different-in-kind from other traditions. They also hoped that this would expand the state’s constitutional obligations to the majority tradition beyond the narrow set of things normally associated with ‘religion’ (eg rituals, beliefs) so as to encompass things like archaeological remains, Bodhi trees, artifacts, and manuscripts. Similar definitional debates have also taken place in Myanmar, where, as Nyi Nyi Kyaw recounts, monastic groups like MaBaTha have insisted on conceptual and legal distinction between sāsana and batha (rendered as ‘religion’).
As Gunatilleke and Nyi Nyi Kyaw show, these linguistic debates both reflect and enable conflicts among religious actors. To the extent that Buddhism is to be distinguished and privileged socially it comes to be distinguished and privileged linguistically, and vice-versa. As both authors show, the story of Buddhist and constitutional practice is a story that can be examined both in bottom-up and top-down terms, revealing equally the imprints of popular social moments and elite legal design.
IV. DEFINING THE STUDY OF BUDDHISM AND CONSTITUTIONAL PRACTICE
The dynamics of religion and constitutional practice that I describe above will have some analogues and resonances in other jurisdictions. One can find in other contexts vaguely similar debates about religious law and public law, religious and state-legal authority, and the status of the majority religion vis-à-vis other traditions. Moreover, it is important to acknowledge that Buddhism is just one, among many, important factors shaping constitutional cultures in Southern Asia. Others include direct and indirect colonialism, nationalism, powerful Left movements, royalty (and its absence), military regimes, and economic liberalization. Equally influential are the networks of legal borrowing that stretch across the region; and some of the jurists who helped shape legal culture in Sri Lanka, Myanmar, and Thailand also helped shape legal cultures in other parts of Asia, Africa, and Europe.Footnote
29
Despite these caveats, I believe it is still possible – and indeed, important – to acknowledge that the intersections of religion and constitutional practice take distinctive forms in Buddhist-majority South and Southeast Asia when compared with other parts of the world. One can begin to close in on this distinctiveness by way of triangulating three types of questions: (1) questions about the intersections between Buddhist law and public law; (2) questions about relationships between the rulers and monks; and (3) questions about the perceived (in)commensurability of Buddhism and other religions.
Asking these questions directs scholars towards some important points of contrast between Buddhist constitutionalism and other religious or secular variants. Debates about the dhammic nature of public law in Buddhist-majority settings are different in nature and in scope to the debates about shariah and public law that one sees in Muslim-majority contexts. Legal attempts to balance Buddhist monastic authority and state authority have also produced special sets of challenges which are unique from, and perhaps more fraught than, those seen in Europe. Finally, differing legal imaginaries – taken from liberal constitutional traditions and sāsana histories – have generated opposing ways of thinking about the similarities of the Buddha’s dispensation with other religions.
In asserting the distinctiveness of Buddhism, I do not mean to carve out a sheltered or exclusive niche in scholarship on constitutional law and religion for a small group of specialists. My intent is precisely the opposite: by starting to name the distinctive features of religion and constitutional practice in Buddhist-majority settings, I hope to integrate these jurisdictions more fully in ongoing discussions about religion and constitutional law. This is a jurist’s trick (with its origins, perhaps appropriately, in Canon law): by highlighting a set of special features, I want to give to ‘Buddhism and constitutional practice’ an air of intellectual personhood, which, like its legal counterpart, will hopefully lend an aura of solidity and coherence (and therefore comparability) to a set of behaviours, debates, institutions, and ideals that have, to date, been underrepresented, if not missing altogether, in conversations on religion and comparative constitutional law.
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It was once said that the field of Buddhism and law was a ‘missing discipline’, a gaping hole in the academic study of religion and law in desperate need of scholarly shovel work.Footnote 1 Fortunately, this gap has begun to be filled. Yet, the cover has not been spread evenly. Of the many subfields within the study of Buddhism and law that have not received adequate attention, the subfield of Buddhism and constitutional law stands out as acutely overlooked – a hole within a hole. In the last few decades, there have been no more than a handful of studies that engage in a sustained, direct way with the question of how Buddhism informs constitutional practice and how constitutional institutions influence Buddhism.Footnote 2 The contributions made in this Special Issue, therefore, are especially important.
The need for studies of Buddhism and constitutional law in Southern Asia is not simply a matter of academic hole-filling. (Academia is, after all, an endlessly holey place.) There are more pragmatic and urgent reasons for such scholarship. In recent years, Buddhism has become increasingly intertwined with constitutional practice, perhaps more so than in any period before. In the last two decades, almost all Buddhist-majority countries in South and Southeast Asia have been involved in projects of constitutional reform and replacement, in which the status of Buddhism has been heavily debated and the role of Buddhist leaders has been prominent. In most of these places, constitution drafters and activists have made efforts to strengthen constitutional prerogatives for Buddhism – some successfully.Footnote 3 Combine these developments in constitution drafting with emergent cultures of Buddhist-interest litigation and legal activism,Footnote 4 and one gets a sense of a growing trend of visibly ‘Buddhicized’ constitutional cultures in South and Southeast Asia.
If one considers these cultures as a group, one might rightfully ask, ‘How should we make sense of this?’ Scholars have paradigms for thinking broadly about Islamic constitutionalism and secular constitutionalism. But, to date, scholars have not developed a similar body of literature concerning what could be called ‘Buddhist constitutionalism’.Footnote 5 What sorts of imperatives, structures, and goals characterize these forms of constitutionalism? While Buddhism is not the only thing that defines the constitutional histories of Myanmar, Thailand, and Sri Lanka,Footnote 6 it does play a distinctive role.
To think about this distinctive role, and to join together some of the existing contributions mentioned above, I propose that we think about the intersections of Buddhism and constitutional practice by way of three questions, which can also be asked about religion and constitutional law in other jurisdictions: (1) How is the relationship between religious law and public law conceived?; (2) How is the relationship between religious authority and state-legal authority arranged?; and (3) How is the relationship between Buddhism and other religions imagined?
I. HOW IS THE RELATIONSHIP BETWEEN RELIGIOUS LAW AND PUBLIC LAW CONCEIVED?
In recent decades, comparative law scholars have developed a wide body of literature investigating the relationship between religious law and public law in Christian- and Muslim-majority jurisdictions.Footnote 7 To date, no equivalent body of scholarship has developed for Buddhist-majority contexts. For example, there are no scholarly debates within Buddhist legal studies that have a similar scope and depth to debates about shariah and public law.Footnote 8
Buddhism does not have a perfect equivalent to shariah. That is, Buddhist texts and authorities do not speak about the Buddha’s teaching as though it were a comprehensive code of revealed injunctions, interpreted by a dedicated body of jurists, and incumbent equally upon all followers. Nevertheless, it does have very prominent ideas of law, both as a specific set of ecclesiastical laws to be followed by monks (vinaya) and as a general set of natural laws that the Buddha refers to in his teachings (dhamma). In fact, the word dhamma itself can mean both teaching and law, and in early South Asian textual and epigraphical sources, is also used to refer to the teachings of other groups. In this context, one ought to ask the question: In contemporary Buddhist-majority states, are there debates about dhamma and public law that parallel those concerning shariah and public law in Muslim-majority settings?
Eugénie Mérieau gives compelling examples of this type of debate in Thailand.Footnote 9 In her contribution, she describes how, from the 1960s to the present, Thai jurists argued that Buddhist doctrines of royal duties (rājadhammā) and religious kingship (dhammarāja) were, if not direct sources of the Thai constitutional law, at least conventions within it. In fact, Mérieau hints at broader trends in these arguments over the last 300 years. These trends amount to a story of decline and revival in the perceived intimacy of dhamma and public law: in the era of Palace Laws before the nineteenth century, Thai jurists took for granted the fact that royal decrees were based on the ‘science of dhamma’ (dhammasattha);Footnote 10 during the constitutional revolutions in the 1930s, this linkage of dhamma and public law declined due to the influence of republican thinkers who sought to modernize and secularize Thai law along European lines; since the 1960s, Mérieau shows, the linkage has been revived, with Thai jurists once again favoring strongly Buddhistic interpretations of royal power, administrative authority, and constitutional law.
In Mérieau’s story, the fall and rise of what one might call dhammic public law is visible linguistically as well as jurisprudentially. Dhamma (Thai tham) has seen a revival as a core feature of legal language. Or, put a different way, dhamma could not be completely evacuated from public law discourse. As Mérieau shows, even Thai republican lawmakers did not sever completely Buddhism’s links to public law, integrating, as they did, the term dhamma into Thai word for constitution, rathathamanoon (literally meaning, the dhamma of the ratha or state). As the project of dhammic public law gained traction in the 1960s and especially in the last three decades, the linguistic traces of dhamma have become even more pronounced, culminating in Thai translations of terms like good governance (thamma-phibun) and rule of law (niti-tham).
All of this is striking from the vantage point of Sri Lanka, where the jurisprudence and language of constitutional law have not suggested the idea that Buddhism is a source of public law in quite the same way. Although Buddhism is given a special place in Sri Lanka’s constitution, and although monastic laws are validated in civil courts,Footnote 11 the technical lexicon of public law is not suffused with religiously resonant words. In Sri Lanka, Sinhala juristic terms such as good governance (yahapalanaya) or rights (ayitivāsikam) do not have a conspicuously Buddhist etymology. Instead, for most Sinhala speakers, these terms have the neologistic ring of technical back-translations from English terms. In fact, once one asks the question comparatively, one discovers that the language of public law in Sri Lanka appears surprisingly free of dhammic undertones, even in places that one would expect them, such as terms for justice (yuktiya or sādhāraṇaya). This is not to say that there is no overlap in the languages of ancient and modern law in Sri Lanka. (Terms used for constitution (vyavasthāva) or courts (adhikaraṇa) appear in much older texts, including monastic disciplinary codes such as vinaya and katikavāta.) Yet, these terms are neither exclusive to, nor especially suggestive of, the Buddha’s teachings. Rather, they are endemic to a variety of legal traditions in ancient Southern Asia, and when used in the context of modern public law, have no religious associations.
One cannot attribute the absence of Buddhist terminology in Sri Lankan public law to the absence of dhammic or Buddhist jurisprudence. (Sri Lanka’s colonial history and tri-lingual legal context have probably played a larger role in limiting the importation of Buddhist loan words into the vocabularies of public and administrative law.Footnote 12 ) Nevertheless, when one compares Mérieau’s portrait of Thailand with that of Sri Lanka, one sees that jurists, campaigners, and politicians have approached the project of Buddhicizing law in differing ways in each place. If Thai jurists have blended dhamma and public law at the level of elite legal theorizing, Sri Lankan campaigners seem to have done so far more at the level of political speeches and street protests – or, at least, according to the standard histories of Buddhism and politics that scholars have to go by. In these standard accounts, the nexus of religious and public law lies in the rhetoric of politicians (eg SWRD Bandaranaike or JR JayawardeneFootnote 13 ), the activities of Buddhist groups (the JHU or Bodu Bala SenaFootnote 14 ), and the legal activism apparent in Buddhist-interest litigation.Footnote 15 In this respect, Mérieau’s article offers an exciting avenue for exploration in Sri Lanka and Myanmar: What are the important examples of dhammic legal theorizing – or Buddhist jurisprudence – in those places?Footnote 16
II. HOW IS THE RELATIONSHIP BETWEEN RELIGIOUS AUTHORITY AND STATE-LEGAL AUTHORITY CONCEIVED?
The relationship between Buddhism and constitutional practice plays out not just on a discursive level, but on an institutional level as well. Where the discursive relationship has developed by way of efforts to join Buddhist ideas with public law concepts, the institutional relationship has developed by way of efforts to manage (or avoid) conflicts between two groups of authorities that claim to act on behalf of Buddhism: state-legal authorities – including prime ministers, presidents, jurists, and (in the case of Thailand) monarchs – and Buddhist monks. Although conflicts between political and monastic authorities have a long history in the Buddhist world,Footnote 17 these conflicts have taken a particularly pointed form in the context of contemporary constitutional governance.Footnote 18
Most constitutions in Southern Asia mandate that governments support Buddhism. Yet, traditionally, it is the monks, not governments, that are imagined to be the direct guardians and embodiments of the Buddha’s teachings. So, how should governments interpret these constitutional mandates? How are state officials supposed to protect something over which Buddhist monks are supposed to have primary authority? This question is complicated even further by the fact that, in most of the Buddhist world, monks are not organized in a single, perfectly centralized and hierarchized ecclesiastical institution. So, in enacting constitutional duties to protect Buddhism, governments must wrestle both with a relative lack of religious credibility (in most contexts, they are not monks themselves) and with the lack of a perfect surrogate (eg a Buddhist Pope) who might exercise those constitutional duties on their behalf.
This conundrum of Buddhist authority provides an interesting point of comparison with constitutional practice in other parts of the world, one which Nyi Nyi Kyaw casts light on.Footnote 19 For Nyi Nyi Kyaw, the depth of this dilemma stems from an act of infelicitous constitutional borrowing. More precisely, it comes from attempts to take foreign models of church-state relations and apply them to Buddhist-majority contexts. In the case of Myanmar, this happens by way of an attempt to borrow Irish constitutional prerogatives for Catholicism as the model for newly-independent Burma’s constitutional prerogatives for Buddhism. In the context of this specific legal transplant, he asks the question: To what, exactly, were legal draftspersons giving a ‘special position’? In other words, what does it mean to replace a tightly centralized and hierarchical institution (‘the Catholic Church’) with an abstract collective noun ‘Buddhism’? Does this mean that constitutional protections for Buddhism in Southern Asia are something like the Concordats in which there is no equivalent of the Holy See?
When one proceeds from this line of questioning, one sees that the texts of ratified constitutions provide few answers. This is because, in most cases, the final language of written constitutions emerges not from a history of trying to clarify and solve these challenging questions, but from attempts to avoid them. The constitutional status of Buddhism in Myanmar, Sri Lanka, and Thailand (perhaps with the exception of the 2017 draft) remains purposively laconic, suggesting neither the priority of state over sangha nor that of the sangha over state. This is no coincidence. Rather, it reflects the intractability, in all three jurisdictions, of questions over whether monks or rulers ought to have the final say over Buddhist affairs.Footnote 20
To answer the questions Nyi Nyi Kyaw poses, one must look not to the written constitutions themselves, but to (what might be called) constitutional statutes – sets of foundational, basic laws that structure the relationship between monks and rulers. In Thailand, one has the Sangha Act of 1962 (amended in 1991 and 2017); in Myanmar, there is the Laws Relating to the Sangha Organisation of 1990;Footnote 21 and in Sri Lanka, the Buddhist Temporalities Act of 1931 (amended in 1992 and 2013). It is in these laws, and similar ones in Cambodia and Laos, that one finds what one could call the constitutional organization of (Buddhist) ‘church and state’ in South and Southeast Asia.Footnote 22
Although they are located outside of written constitutions per se, these statutory grundnorm-s (and their interpretations) provide the context against which one must understand written constitutional protections for Buddhism. So, if they are like Concordats, they are agreements between rulers and clerics in which the clerics are to be formally recognized (or appointed) by the rulers. In this way, then, the ‘Buddhist Concordats’ of Southern Asia remain more contrived and less workable than those of Europe because it is the government that ultimately controls what does and does not count as the ‘Buddhist Church’, and who is or is not the equivalent of a ‘Buddhist Pope’.Footnote 23
III. HOW IS THE RELATIONSHIP BETWEEN BUDDHISM AND OTHER RELIGIONS CONCEIVED?
The above discussion reveals something else about the links between Buddhism and constitutional practice in Southern Asia, to which Gehan Gunatilleke gives incisive expression in his contribution: Buddhist monks are not normal citizens or agents of law; they are exceptional in many senses.Footnote 24 Within legal regimes that give special status to Buddhism, Buddhist monks can make unique claims to authority, influence, and in some cases, impunity. Gunatilleke, following the work of Ayesha Zuhair, names this fact ‘monastic exceptionalism’, although he traces its roots to social norms rather than legal provisions. He is, of course, correct in so doing, and his interventions point to an important consideration, which Nyi Nyi Kyaw also suggests: the uniqueness of monks as legal agents comes not just from their unique status in written laws, but also from their privileged status in society-at-large. In other words, when it comes to the articulations of Buddhism and constitutional practice, social norms and legal norms are intertwined.
The exceptionalism of monks as agents and objects of law, raises another set of questions about the status (or exceptionalism) of Buddhism and Buddhists vis-à-vis other religious traditions and groups: In the same way that Buddhist monks are exceptional as agents of law, is Buddhism also exceptional as an object of law?
Underlying this question is a third dilemma embedded in the history of Buddhism and constitutional practice in Southern Asia. When it comes to religion, the modern constitutional regimes of Thailand, Myanmar, and Sri Lanka are viewed through at least two legal imaginaries. One legal imaginary is that of the liberal constitutional tradition, which presents constitutional law as a contract between citizens and governments, and which promises to citizens things such as freedoms, rights and equality. The other legal imaginary is drawn from what might be called sāsana histories, ie traditional Buddhist narratives recounting the dissemination and transmission of the Buddha’s teachings over time.Footnote 25 In this second legal imaginary, modern constitutional states stand as the latest iterations in a centuries-long tradition of royal polities in which Buddhism is (or should be) specially protected. All three contributions gesture at the influence of this second tradition: Mérieau’s work points to the official time of Thailand’s constitution being Buddhist Era – the years calculated from the passing-away-cum-ultimate-awakening (parinibbāna) of the Buddha. Gunatilleke and Nyi Nyi Kyaw’s articles point to the importance of Buddhist royal chronicles in the popular imagination and education.Footnote 26
Because constitutional practice in Southern Asia shows traces of both legal imaginaries, it treats Buddhism in two largely contradictory ways. On the one hand, constitutions render Buddhism through the lens of liberal constitutional thought, as something that is homologous to other religious traditions – structurally similar to Islam or Christianity, even if it is substantively unique. Buddhism in this view is commensurable with other religions as an object of law: like other faiths, it is imagined to consist of a discrete set of beliefs and practices, distinct from the ‘secular’ worlds of politics, economics, culture, etc.Footnote 27
This view of Buddhism is not shared by the other legal imaginary that dominates the history of Buddhism and constitutional law in the region, one that is drawn from sāsana histories. In this imaginary, the Buddha’s dispensation differs from other religious traditions not simply in its aesthetics or accouterments, but in its very structure and nature. To use a biological metaphor, the Buddhist tradition is not simply one species in a common genus (called ‘religion’); it is another genus entirely. In fact, in lieu of using the word Buddhism, proponents of this viewpoint frequently favor the word sāsana. Sāsana is a term that appears frequently in Buddhist texts and refers to the total legacy of the Buddha, philosophically, institutionally, textually, and materially – including everything from values, to education, to imagery, to relics, and to temple property.Footnote 28 In this approach, sāsana is to religion as law is to constitutional law: it is larger and more complex; it is thought to have a much wider footprint in society.
One can see these conflicting views of Buddhism (and its relationship to other religions) in the context of debates over the language of constitutional law. For example, in the late 1970s, drafters of Sri Lanka’s constitution insisted that the word sāsana be used rather than Buddhism (in Sinhala: buddha-āgama) to describe the object of state protection. This, they hoped, would make clear that the majority tradition was different-in-kind from other traditions. They also hoped that this would expand the state’s constitutional obligations to the majority tradition beyond the narrow set of things normally associated with ‘religion’ (eg rituals, beliefs) so as to encompass things like archaeological remains, Bodhi trees, artifacts, and manuscripts. Similar definitional debates have also taken place in Myanmar, where, as Nyi Nyi Kyaw recounts, monastic groups like MaBaTha have insisted on conceptual and legal distinction between sāsana and batha (rendered as ‘religion’).
As Gunatilleke and Nyi Nyi Kyaw show, these linguistic debates both reflect and enable conflicts among religious actors. To the extent that Buddhism is to be distinguished and privileged socially it comes to be distinguished and privileged linguistically, and vice-versa. As both authors show, the story of Buddhist and constitutional practice is a story that can be examined both in bottom-up and top-down terms, revealing equally the imprints of popular social moments and elite legal design.
IV. DEFINING THE STUDY OF BUDDHISM AND CONSTITUTIONAL PRACTICE
The dynamics of religion and constitutional practice that I describe above will have some analogues and resonances in other jurisdictions. One can find in other contexts vaguely similar debates about religious law and public law, religious and state-legal authority, and the status of the majority religion vis-à-vis other traditions. Moreover, it is important to acknowledge that Buddhism is just one, among many, important factors shaping constitutional cultures in Southern Asia. Others include direct and indirect colonialism, nationalism, powerful Left movements, royalty (and its absence), military regimes, and economic liberalization. Equally influential are the networks of legal borrowing that stretch across the region; and some of the jurists who helped shape legal culture in Sri Lanka, Myanmar, and Thailand also helped shape legal cultures in other parts of Asia, Africa, and Europe.Footnote 29
Despite these caveats, I believe it is still possible – and indeed, important – to acknowledge that the intersections of religion and constitutional practice take distinctive forms in Buddhist-majority South and Southeast Asia when compared with other parts of the world. One can begin to close in on this distinctiveness by way of triangulating three types of questions: (1) questions about the intersections between Buddhist law and public law; (2) questions about relationships between the rulers and monks; and (3) questions about the perceived (in)commensurability of Buddhism and other religions.
Asking these questions directs scholars towards some important points of contrast between Buddhist constitutionalism and other religious or secular variants. Debates about the dhammic nature of public law in Buddhist-majority settings are different in nature and in scope to the debates about shariah and public law that one sees in Muslim-majority contexts. Legal attempts to balance Buddhist monastic authority and state authority have also produced special sets of challenges which are unique from, and perhaps more fraught than, those seen in Europe. Finally, differing legal imaginaries – taken from liberal constitutional traditions and sāsana histories – have generated opposing ways of thinking about the similarities of the Buddha’s dispensation with other religions.
In asserting the distinctiveness of Buddhism, I do not mean to carve out a sheltered or exclusive niche in scholarship on constitutional law and religion for a small group of specialists. My intent is precisely the opposite: by starting to name the distinctive features of religion and constitutional practice in Buddhist-majority settings, I hope to integrate these jurisdictions more fully in ongoing discussions about religion and constitutional law. This is a jurist’s trick (with its origins, perhaps appropriately, in Canon law): by highlighting a set of special features, I want to give to ‘Buddhism and constitutional practice’ an air of intellectual personhood, which, like its legal counterpart, will hopefully lend an aura of solidity and coherence (and therefore comparability) to a set of behaviours, debates, institutions, and ideals that have, to date, been underrepresented, if not missing altogether, in conversations on religion and comparative constitutional law.