This society of Buddhist monks is the only society that has been based primarily on a constitution, rather than a person, for more than a thousand years.
— Rāmañña Mahānikāya Madyasthānaya, Colombo, Sri Lanka, December 17, 2018Footnote 1For scholars of comparative constitutional law, the quotation above will likely generate more than a little bit of skepticism. For starters, it comes from an unconventional source. This grand statement of constitutional history derives not from a historian or legal scholar but, rather, from a Buddhist monk in the context of a speech given to other Buddhist monks. The historical timescale suggested by the speaker is also likely to raise doubts. Constitutional law, in this version of events, runs far deeper into the historical record than the two or three centuries that most academics associate with the genre. Perhaps most unusual for scholars of constitutional law, however, is the idea that Buddhist monks—a community of ascetics more often associated with spiritual, rather than legal, accomplishments—might themselves have a governing body of law that one could justifiably call a constitution.Footnote 2
This article aims to convince scholars of law and society, and especially scholars of comparative constitutional law, that the monk’s claims are not as outrageous as they might first appear. In what follows, I demonstrate that there is body of governing laws appearing widely throughout the global history of religions that warrants classification as constitutions. Like national constitutions, these laws present themselves as a form of “higher law” that declare the identity of a given a community, organize and limit its structures of governing power, define its foundational norms, and authorize further acts of rulemaking.Footnote 3 I argue further that socio-legal studies of constitutional law would benefit from looking more closely at these laws—which I call religious constitutionsFootnote 4 —not only as a way of moving beyond the limited canon of case studies that has dominated the field for some time (Hirschl Reference Hirschl2014, 213–15) but also as a way to think more critically and creatively about the influence and importance of constitutions beyond the nation-state, both historically and in the present (Teubner Reference Teubner2012, 2013). Such inquiries would also benefit the discipline of religious studies by bringing important questions from the field of comparative constitutional law (about amendment, entrenchment, autonomy, and so on) to bear on the study of foundational religious texts and by further sensitizing scholars to the significance of institutions and corporate governance in the history of religions.Footnote 5
Examining religious constitutions can also enhance our understanding of the relationship between religion and constitutional law in contemporary nation-states. While there is no shortage of excellent studies on the topic (for example, Jacobsohn Reference Jacobsohn2005; Greenawalt Reference Greenawalt2006; Hirschl Reference Hirschl2010), more often than not, these studies treat the norms and institutions of religion as though they were naturally opposed to those of state law, different in kind. As a result, much of the research in this area—as in other areas of socio-legal studies (Oraby and Sullivan Reference Sullivan2020, 258–59)—has focused on the tensions (and required accommodations) that follow from the interaction of two presumptively heterogenous domains. Studying religious constitutions offers scholars the opportunity to soften and broaden this “secularist” approach to religion and constitutional law by considering more deliberately the conceptual, structural, and historical contiguities that unite the laws governing religious groups with those governing modern nation-states. Examining these contiguities not only casts light on constitutional law’s religion-like qualities, as scholars such as Robert Cover (Reference Cover1983), Paul Kahn (Reference Kahn2003), Sanford Levinson (Reference Levinson2011) have identified,Footnote 6 it also helps to explain the existence of numerous types of religious law—both past and present—that share the structure, function, and aims of modern national constitutions.
This article unfolds in two parts. In the first part, I offer broad observations about the history and varieties of religious constitutions across space and time. I call attention to the presence of legal codes existing within multiple religious traditions that show strong similarities in form and substance to contemporary national constitutions. I also reflect on their historical significance as instruments of communal governance for religious groups. In the second part, I apply these insights to one particular case study—Buddhists in contemporary Sri Lanka. Buddhism might be considered to be a limit case for studies of religion and law, given the tradition’s widespread reputation as being more concerned with personal development than communal governance. I offer a different portrait of Buddhism, a legalistic one in which religious constitutions play a key role. Drawing on fieldwork from Sri Lanka, I provide a firsthand account of what a modern Buddhist constitution looks like and how it works to govern the members of one of Sri Lanka’s largest monastic fraternities. I also highlight this text’s striking similarities both with the official state-sponsored Constitution of Sri Lanka and with other Buddhist constitutions from around Asia.
The goal of this article is to encourage new ways of thinking about the law-religion nexus that focus less on the boundaries between religious and constitutional authority and more on the similarities between them. The article urges scholars to think about the intersections of religion and constitutional law not simply in terms of bipartite flows of influence or effect—for example, looking at the impact of constitutional law on religious life or vice versa—but as commensurable, homologous forms of social ordering that deploy (and borrow) similar concepts and logics to address common human dilemmas. Paying attention to religious constitutions not only helps to excavate an underappreciated body of law but also pushes scholars of law and society to acknowledge more fully the fact that religious communities are also legal communities, and despite our modern fixation with separating state law from religion, much deeper entanglements between the two can be seen when we press against the usual connotative range of our scholarly categories.
RELIGIOUS CONSTITUTIONS, MORE AND LESS
The history of religious constitutions is both more and less expansive than one might think. It is more expansive in that virtually every major world religion contains a body of law that shares some formal and functional features with modern national constitutions (a topic about which more will be said below). It is less expansive in that the sacred texts with which non-specialists are most familiar—such as the Qur’an, the Bible, the Vedas, and others—are often not constitutional in nature. Aside from their sheer size and diverse contents (including stories, cosmologies, prophecies, and more), many of the world’s most famous sacred texts are thought to be directly revealed from a transcendent source rather than drafted by the religious community itself. Moreover, many of the holiest texts in the history of religions were not meant for a broad readership or widespread use in the administration of human societies. Although they may have constituted religious communities—in the sense of gathering human populations around a sacred written source (creating “peoples of the book”)—they have not served as the governing laws of the community in any modern sense.
What, then, are those religious laws that might qualify as constitutions? Identifying these sources hangs on the knotty question of how to define a constitution, and that question remains the topic of ongoing (if not always explicit) disagreement in the study of comparative constitutional law. Judging from recent publications, the consensus is still dissensus. Constitutions are written or unwritten (Amar Reference Amar2012; Fassbender Reference Fassbender2016), liberal and illiberal (Ginsburg and Simpser Reference Hirschl2014; Tushnet Reference Tushnet2017), congeries of basic laws or single texts (Albert and Colón-Ríos Reference Albert and Colón-Ríos2019; Navot and Roznai Reference Jamal2019). They are also national, subnational, or even transnational (Dixon and Landau Reference Berger2015). The capaciousness (or indeterminacy) of this category is, in part, what has made socio-legal studies of comparative constitutional law so exciting. Like many academic disciplines—from Asian studies, to history, to religious studies—tension over how to define the eponymous object of study has enlivened conversations. On the one side are scholars who prefer to keep the category small by guarding the designation “constitution” for the foundational legal texts of nation-states written after the late eighteenth century (Loughlin Reference Loughlin, Dobner and Loughlin2010; Grimm Reference Grimm2016). On the other side are scholars who deliberately push beyond this standard in the hope of finding a broader set of qualities that gives constitutions their distinctiveness (Tully Reference Tully1995; Teubner Reference Teubner2012; G. Anderson Reference Anderson2013).Footnote 7
By arguing that particular religious texts should be categorized as constitutions, this article stands at the far end of this spectrum. Even for scholars who are happy to apply the term “constitution” beyond contemporary nation-states, the idea of a religious constitution, in particular, may seem dubious due to the prevalence of two influential (if contestable) assumptions about the nature of constitutions: the assumption that constitutions apply only to political communities and the assumption that politics and religion exist as separable domains of human activity (Grimm Reference Grimm2016, 3–4). Given that a growing number of scholars today reject the second premise (for example, Asad Reference Asad2003; Hurd Reference Hurd2008; Agrama Reference Agrama2012; Engel Reference Engel2016; W. Sullivan Reference Sullivan2020), I suggest that we should also reject the first: to the extent that religious groups aspire to self-governance, autonomy, order, and justice, they are also political communities, and, for that reason, the governing laws of those groups ought to be considered possible candidates for the category of constitution.
At least one leading scholar of comparative constitutional law, Ran Hirschl, has already urged scholars in this direction. In his state-of-the-field book, Comparative Matters, Hirschl (Reference Hirschl2014, 79) argues that studying religious laws is not just useful, but necessary. “New arguments in comparative constitutional law that ignore religion law’s rich interpretive legacy” he insists “run the risk of being too thin and ahistorical to be considered truly novel.” While Hirschl stops short of equating religious law with constitutional law (preferring to use the terms “constitutive law” in order to maintain a categorical firebreak), he makes a strong case that religious law and contemporary constitutional law closely resemble each other, pointing out that both religious communities and nation-states engage in projects of “translating morally elevated yet open-ended texts into guidelines for public life” (111). In fact, Hirschl argues that the structural and historical links between contemporary constitutional law and religious law are so thick that the absence of scholarship on religious law in the field of comparative constitutional law is not simply regrettable but “intellectually sinful” (111).Footnote 8
Where Hirschl has identified symmetry between religious laws and constitutions, other scholars have identified continuity. Having largely moved past debates about the character of modern law (Galanter Reference Galanter and Weiner1966; Friedman Reference Friedman1994), it is easy for socio-legal scholars to forget that the turn-of-the-century sociologists of law theorized an evolutionary link between contemporary legal institutions and premodern religious antecedents. Classical legal theorists from Henry Maine (Reference Maine1891), to Max Weber (Reference Weber and Eisenstadt1968, 81–125), to Carl Schmitt (Reference Schmitt and Schwab2005) all argued, in their own ways, that modern legal systems emerged historically through a gradual process of rationalizing and secularizing religious law. According to this logic, contemporary state law, including constitutional law, not only shared a conceptual grammar with religious laws, but it also shared a genealogy. Over the last four decades, these somewhat speculative insights have been more substantively demonstrated by the work of scholars such as Harold Berman (Reference Berman1983) and Brian Tierney (Reference Tierney1982) who have traced a path of historical causality from reforms in Christian legal structures (starting with the Gregorian reforms in the twelfth century) to the development of modern constitutional systems.Footnote 9
The Comparative Study of Religious Constitutions
The history of religions is filled with examples of texts that constitute the shared identity of a community, clarify its guiding regulations, outline its administrative structures, define the terms of legal legitimacy, and are intended to function as basic laws that orient subsequent acts of generating and interpreting law. I call these texts constitutions not simply because they fulfill minimal definitional criteria—such as constraining elites and defining bureaucratic roles (for example, Ginsburg Reference Ginsburg2012)—but also because they embody multiple qualities that scholars of comparative constitutional law have regarded as the core characteristics of constitutions. These texts therefore exhibit a profound “family resemblance” with modern national constitutions, albeit in contexts that predate or stand apart from the modern nation-state.Footnote 10 Using the language of constitutional theory, these texts function as “higher” legal codes that define the terms of governance: its key procedures, offices, subjects, rights, obligations, and so on. They also serve to check and create governing power, while exhibiting clear features of “constitutional identity,” legitimacy, and entrenchment (Jacobsohn Reference Jacobsohn2010; Ginsburg and Dixon Reference Ginsburg and Rosalind2011, 4–5; Gardbaum Reference Gardbaum, Rosenfeld and Sajó2012, 170–71). As with modern national constitutions, these texts are normative in nature, prescribing how “power should be established and exercised in the form of a systematic and exhaustive claim embodied in a legal document” (Grimm Reference Grimm2016, 44; emphasis in original).Footnote 11 They serve as focal texts that express and engage with a broader (and changing) set of unwritten norms, practices, and orienting principles, defining together the legal culture of a given community (Berger Reference Berger2008). In some cases, these texts even self-designate as constitutions and model themselves on modern national constitutions, especially from the late nineteenth century. While my choice of examples in this article prioritizes written texts, a fuller investigation of religious constitutions would also consider various forms of oral or unwritten constitutions that also exist, and which scholars such as John Borrows (Reference Borrows2010a, 2016) have discussed in the context of Indigenous communities.
A striking example of texts that fulfill the above conditions are the various “constitutions” promulgated by the Shia Imami Isma’ili community. Initially promulgated in 1905 under the auspices of the community’s spiritual leader, the forty-eighth Imam, Sultan Mohammed Shah Aga Khan III, these codes (approximately five by the 1970s) served as “governing documents” that “stipulated the organization of various institutional bodies, hierarchies, and structures” for administrating law in Isma’ili communities in different parts of the world (Jamal Reference Jamal2013, 237). In 1986, these territorial constitutions were supplemented by a transnational “Constitution of the Shia Imami Muslims” (subsequently amended in 1998) that brought the various territorial charters into a global administrative framework. In all of these texts, one finds a mixture of administrative and procedural rules, such as guidelines for settling disputes and contracting marriages, as well as religious principles such as the affirmations of key faith precepts, including the unity of Allah and the spiritual authority of the Imam. These texts also contain rules relating to health, education, commercial activity, titles, and the process of ratifying amendments (Ismaili.net 1998).
Similar texts can be found in other religions. Consider, for example, a code called the Constitution and Discipline of the Methodist Church, published in Springfield, Ohio, in 1867 (General Convention of the Methodist Churches 1867). Like the Isma’ili constitutions, this text brings together higher-order rules of administration and governance, with discrete rules of procedure and clear principles of faith. In this case, the sovereign authority is not a single religious leader but, rather, “the Lord Jesus Christ as the only head of the Church” in whose name the constitution “establish[es] a form of government” and secures for “Ministers and Members of the church their rights and privileges” (9–10). The text consists of ten “elementary principles” and twelve articles, which together provide for the terms of membership, the protection of rights, the guarantee of fair trails, the clarification of key ethical rules, and the establishment of administrative hierarchies. This part is followed by a much larger section, titled “Discipline,” primarily addressed to clerics, which lays out in extensive detail the articles of faith, the duties of priests (of various types), the core ritual and moral rules of the community, the jurisdictional boundaries of parishes, and the vast procedural rules and liturgical formulae relating to church activities. Like the Isma’ili constitution and most contemporary national constitutions, the 1867 Constitution of the Methodists was one of several versions (continuing from the early 1800s to the present day), each ratified by a particular community as an amended version of an imaginatively singular charter.
A third example from a different religious tradition further demonstrates the point. For most of the last millennium, Buddhist monks in Sri Lanka have organized communal life with the help of a genre of legal texts that function as constitutions for the renunciant community. Called katikāvatas, these texts are drafted by committees of senior monks for communities of monks living within the same polity, associating with a given monastery or claiming adherence to a particular fraternity. Written in the vernacular language of Sinhala (rather than the liturgical language of Pāli), these constitutions—especially in their post-nineteenth-century forms—announce the unity of a given monastic body, define its major rules of conduct, clarify its structures of authority, designate protocols for managing misbehavior, and identify the group’s shared history and values (Schonthal Reference Schonthal2021). As with the examples mentioned above, these monastic constitutions function for fraternities as foundational legal codes that establish, order, and limit governing power. They also combine the blueprint for a governing regime with key tenets of religious devotion.
By almost all measures, each of these texts ought to qualify as a constitution for reasons of comparative analysis. A glance at their format alone—their inclusion of preambles, definition sections, and their structure of articles and appendices—evokes clearly the form of modern national constitutions. Their substance also bears striking similarities in their emphasis on higher-order legal principles and institutional organization. Of course, in many cases, the symmetries of religious constitutions with modern constitutional law are not accidental. In the case of the Isma’ili constitution, the clear points of reference were the constitutional projects being undertaken in colonial India and Africa (Nanji Reference Nanji1974; Steinberg Reference Steinberg2011, 49–54). In the case of the Methodists, it was the US Constitution as well as other church constitutions that were adopted in the mid-1800s. Modern monastic constitutions in Sri Lanka also show strong echoes of national constitutions; in this case, it is the Constitution of Sri Lanka that stands as an exemplar, as we shall see below.
Yet structural similarities between religious and national constitutions are not simply the results of mimicry on the part of religious lawmakers. These texts, many of which predate the modern constitutional era, also emerge out of similar histories of asserting and establishing corporate independence. Like national constitutions, religious constitutions develop in the wake of “revolutionary” moments where the identity of religious communities was renegotiated through schism and/or reformation (Ackerman Reference Ackerman1991; Jacobsohn Reference Hirschl2014; Gardbaum Reference Gardbaum2017). The Imami Isma’ili constitutions emerged following a series of “secessions” from other groups in the nineteenth and early twentieth centuries (J. Anderson Reference Anderson1964, 21–22). In the case of the Methodist constitution, it was the church’s recent union with the Wesleyan Methodist Convention and their separation from Methodist churches in the “rebel states” of the American South that had not repudiated slavery (General Convention of the Methodist Churches 1867, 6–7). Virtually all of the Buddhist constitutions that I have studied in Sri Lanka from the twelfth century onwards—along with similar types of texts in premodern Tibet and contemporary Korea—have emerged after attempts either to merge multiple monastic groups into a single clerical hierarchy or to break away from existing hierarchies in order to form new sects (Kaplan Reference Kaplan2016; Jansen Reference Jansen2018; B. Sullivan Reference Sullivan2020; Schonthal Reference Schonthal2021).
Religious Constitutions across Time and Space
The texts described above represent only a small sample of religious constitutions within a much larger sea of possibilities, spanning time and space. Given the differing assumptions about the nature and function of law across history and regions, these texts take very different forms. They also appear with varying degrees of prominence and regularity among religious communities. (Not every religious community necessarily produces a constitution.) In order to contextualize the examples given above, therefore, it is helpful to look more broadly, if briefly, at other examples across several religious traditions.
The histories of Christianity and Judaism offer some of the most striking possibilities for religious constitutions. Clear candidates in the Christian tradition include the various bodies of canon law in Catholic, Anglican, and Orthodox churches as well as the various communal “constitutions” visible among Protestant groups (Doe Reference Doe2008; Helmholz Reference Helmholz2010; Kaufhold Reference Kaufhold, Hartmann and Pennington2012; Hill Reference Hill2018). Equally strong examples come from the governing charters of monastic fraternities, such as Rule of St. Benedict, which describe the regulations and administrative structures of monastic life for particular orders of monks (Venarde Reference Venarde2011). In the case of Judaism, one could point to multiple historical attempts to condense the rules of ritual, behavior, morality, and governance contained in the Torah in a single code that could govern the Jewish people in exile. Although the Mishnah and Talmud lean in this direction (albeit in a more commentarial mode), texts such as the thirteenth-century Mishneh Torah or the sixteenth-century Shulkan Arukh constitute explicit attempts to codify the religious and social laws governing Jews living in a particular place and time (Novak Reference Novak, Witte and Frank2008). These codes stand within a much longer genealogy of community laws governing Jewish groups. In fact, one even finds evidence for a community law, or constitution, among the Dead Sea Scrolls. Surviving fragments of the so-called “Rule of the Community” found at Qumran suggest the presence of a constituting document that codified the identity of the group, its administrative order, key prohibitions, and procedural norms (Martínez Reference Martínez1996, 3–32).Footnote 12
Religious constitutions are less easy to identify across the vast spread of Islamic legal history, which has tended to standardize norms in traditions of interpretation that eventually consolidated into distinct schools of legal reasoning (madhhabs) and practices of jurisprudence (fikh). This makes Islamic law one of most pluralistic traditions of religious law (Hallaq Reference Hallaq2009; Moustafa and Sachs Reference Moustafa and Jeffrey2018; Jamal Reference Jamal2019).Footnote 13 Given this pluralism, it is difficult to identify clear examples of would-be Islamic constitutional codes that purport to condense or mediate divine laws in a comprehensive way for a given community of Muslims.Footnote 14 Nevertheless, one can find texts that appear to have ambitions in the direction of a constitution. Consider, for example, the attempts made to identify and clarify a single paradigm of fikh in the form of “canonical” compendia (Gleave Reference Gleave2001), or the collections of legal rules called mukhtasars that, from the thirteenth century, came to serve as a kind of “codified common law” for given communities (Fadel Reference Fadel1996, 197ff),Footnote 15 or even more recent attempts at nationalising madhhab in places like Indonesia (Crouch Reference Crouch2018).
Like Islamic legal history, obvious examples of religious constitutions do not appear widely in the Brahminical/Hindu legal traditions that have emerged in India and come to influence South and Southeast Asia. The ancient tradition of Hindu law called dharmaśāstra (literally, “the science of moral law”Footnote 16 ) emerges around the turn of the common era as a diverse collection of expert reflections written by Brahmin priests concerning the rules of proper human conduct (Davis Reference Davis2010, 13–16). Although sprawling as a genre, dharmaśāstra comes of age in a legal milieu in which distinct corporate groups (such as guilds, soldiers, and ascetics) were imagined as having their own bodies of laws. Dharmaśāstra was, in this model, a collection of norms specifying the key obligations of various corporate groups (particularly priests and kings), even if its major written codes were too encyclopedic and distant from the exigencies of actual administration to function as constitutions in any practical sense (Davis Reference Davis, Dresch and Skoda2012; Lubin Reference Lubin2015, 228–30). In the second half of the first millennium, dharmaśāstra provided the fundament for other codification projects, which have a more constitutional visage. These included numerous attempts to condense and collect rules in the form of digests or compendia that could be used by jurists and ascetic groups as stand-alone legal codes for ordering social and ritual life (Olivelle Reference Olivelle1995; Michaels Reference Michaels, Lubin, Davis and Krishnan2010; Davis and Brick Reference Davis, Brick, Olivelle and Donald2018). It also included the merging of legal principles taken from dharmaśāstra into a variety of more constitution-like law codes designed to govern particular polities or social communities, such as the remarkable body of dharmaśāstra-influenced legal codes that were drafted in the premodern kingdoms of Java and Bali starting in the early first millennium (Creese Reference Creese2009a, 2009b; Lubin Reference Lubin, Cox and Vergiani2013).
In the Buddhist polities of mainland Southeast Asia, another major development in legal literature—with more strongly constitutional features—also drew inspiration from dharmaśāstra. This new form of Buddhist law—which is distinct from the monastic constitutions discussed above—also concerned itself with morally correct governance and even referred to itself using the same word—the “the science of dharma” (dhammasattha, dhammathat, and thammasat in its Pāli, Burmese, and Thai equivalents, respectively). Yet the Buddhist dhammasattha literature parlayed these moral concerns into a more concise, coherent, and directive form, a code that could help kings, magistrates, and other “good people” regulate society in a manner consistent with the teachings of Buddha (Ishii Reference Ishii and Hooker1986; Huxley Reference Huxley1996; Baker and Phongpaichit Reference Borrows2016; Lammerts Reference Lammerts2018). Although Buddhist dhammasattha codes varied within and across the polities located in modern-day Myanmar, Thailand, Cambodia, and Laos, they all claimed to represent the human codification of transcendent legal principles that should be used for governing local populations and administering justice (Lammerts Reference Lammerts2018).
Although diverse in numerous ways, the texts described above share several features. All of them emerged before the nineteenth century, meaning that one cannot dismiss their constitutional features simply as imitations of modern national constitutions. The texts above also share a constitutional impulse in their stated aspiration to be authoritative compilations of cornerstone rules for a given community. Like national constitutions, they present themselves as comprehensive codes, containing a broad and varied set of legal guidelines designed to regulate and guide the lives of a particular population. Many of these texts claim to be condensations of a larger, but previously uncodified, body of laws, rendered in more direct and useable form: the Codex Juris Canonici consolidates various rules of the ancient church, the Sulkan Aruch condenses the governing laws of Torah, the mukhtasars collect the key principles of Islamic common law, and so forth. Although all of the texts admit human authorship, they nonetheless claim to be a form of “higher law” in their approximation of what that divine or supernatural law would require of particular human communities. They are, in Kelsen’s words, a kind of mediated Grundnorm from which valid norms are presumed to flow (1961).
This overview of constitution-like religious texts is not comprehensive. In addition to attending to unwritten constitutions, a more complete consideration of the category would include examples from a variety of other traditions, such as Confucianism, Taoism, or Jainism, the histories of which also show evidence of constitutional impulses and constitution-like texts (see, for example, Son Reference Son2016). Nevertheless, these few examples demonstrate the pervasiveness within the history of religions of forms of law that, even if not perfectly symmetrical with contemporary national constitutions, share a sufficient number of principles, assumptions, aspirations, and textual features that they ought to merit serious consideration by socio-legal scholars who work in the field of comparative constitutional law. Some in the field might resist this broadening of comparison as a matter of taxonomy, insisting that the category of “constitution” needs to remain narrow in order for it to have analytical purchase. If the field of comparative constitutional law is serious about its comparative mandate, however, it should not gatekeep as a reflex but, rather, apply to would-be comparisons a set of taxonomic principles that, as much as possible, resist the syllogism that the guiding charters of modern nation-states are constitutions and, therefore, constitutions are the guiding charters of modern nation-states. Such principles might include, as I have done here, the stated function of such laws (in organizing or limiting the administration of power), the implied authority of law (as a Grundnorm or higher law), the intended audience of law (a distinct community committed to self-government), the form and content of law (as systematic codes meant to condense and entrench a community’s foundational norms and identity), and the normative orientation of law (its goal of shaping and disciplining societies).
If one applies these principles to the legal codes created by religious communities, one can identify a number of candidates within the history of religious law that are worthy of constitutional comparison. Looking more proximately and focusing attention from the mid-nineteenth century onwards, these comparisons even call out to scholars in the form of codes (like the Isma’ili and Methodist ones above) that declare themselves to be constitutions and/or model themselves on the constitutions of nation-states. I analyze one such example in the following section.
BUDDHIST CONSTITUTIONS
The quotation that serves as the epigraph to this article comes from an oration given by a Buddhist monk at a conference of Buddhist monastic judges (anuvijjakas) that I attended in Sri Lanka in 2018. The conference, which was held at a large Buddhist monastery in Colombo, was one of several events scheduled that year to train Buddhist monks about Buddhist law, all of which were sponsored by the island’s second-largest unitary monastic fraternity, the Rāmañña Nikāya. During the daylong event, monks heard from a variety of speakers. Some discussed principles of Buddhist property law. Others analyzed hypothetical legal cases, with the goal of training monks in the correct habits of judicial thinking.Footnote 17 This particular conference attracted nearly fifty attendees, and judging from the responses in the room, most of them agreed with the speaker’s assessment of Buddhism’s unique history of constitutional law. Similar sentiments about the constitutional history of Buddhist monks were expressed at other legal conferences that I attended over the last five years and in the dozens of interviews I conducted with monastic jurists across the island. These Buddhist monks agreed that monastic life, like lay life, is governed by legal codes.
This is certainly the case for the Rāmañña Nikāya. At the center of the fraternity’s administrative law is a text called a katikāvata, which I have translated above as “monastic constitution” and which Rāmañña monks refer to informally as their own “constitution,” drawing on the same term (vyavasthāva) that Sinhala speakers use to denote the national constitution (āṇḍukrama vyavasthāva). The comparison is both meaningful and deliberate. As one monastic judge put it, when I asked him whether the monastic constitution and the national constitution functioned similarly,
[i]t is by following [our] katikāvata that we maintain monastic society in this fraternity, by following that constitution (vyavasthāva) alone. We don’t operate outside of this. For everything—[whether] we’re appointing monks to positions [or] administering temples and properties—we do it according to the katikāvata. It’s something not to violate. That’s our katikāvata.Footnote 18
In this quotation, as well as in other parts of our conversation, the monk suggested that the organization of monastic life paralleled that of national life: both were oriented around legal texts that limited and regulated the legitimate use of power.
The Rāmañña constitution can be found in most of the fraternity’s monasteries, and it seems to be consulted regularly. According to a survey of 1,669 fully ordained Buddhist monks (bhikkhus) that I conducted in 2017, 43 percent of the respondents reported that they “referred to” (pariśīlanaya karanavā in Sinhala) a monastic constitution sometime within the last six months.Footnote 19 In its current form, the Rāmañña constitution runs 235 pages (including several appendices) and circulates as a soft-cover book printed by the government publishing bureau under the auspices of the fraternity. The text is updated every few years, following processes of amendment (about which more will be said below). The most recent imprint from 2014 begins with an introduction giving a short history of the text and its links to an earlier period of Buddhism:
Throughout history, one can see that, from time to time, monastic society—which was governed by the code of discipline (vinaya) enacted by the Buddha—would go astray and those who were responsible for the religion (śāsana) had to promulgate the necessary laws and regulations (nīti rīti Footnote 20 ) to guide [monks] back to the correct way in a timely manner. Those [laws and regulations] that were drafted and introduced during this time in order to preserve the virtuousness of monastic society go by the name of katikāvatas, and history shows that they were promulgated periodically during the royal period [before colonization] in order to uplift Buddhism. (Rāmañña Nikāya Reference Jacobsohn2014, i)
Visible in this passage is an abbreviated genealogy of monastic constitutions, which verifies their claims to legal authority. According to the narrative, the original code of law for monks was the Vinaya Piṭaka (hereinafter the Vinaya), the “basket of discipline” that forms one-third of the Theravāda Buddhist canon.Footnote 21 For Buddhist monks, the Vinaya is thought to contain the original instructions given by the Buddha regarding the regulation of monastic life. Yet the Vinaya itself, which runs five volumes in the standard critical edition, is not well suited for the practical administration of monastic communities (Hallisey Reference Hallisey1990; Blackburn Reference Blackburn1999). Not only is the text unwieldy in its size, it is also preserved in the liturgical language of Pāli, which only specialist monks can read easily.Footnote 22
According to the authors of this (and other) monastic constitutions, katikāvatas were drafted as practical codes for administrating, organizing, and disciplining communities of monks. On the one hand, katikāvatas contain succinct summaries of the Vinaya’s core rules, rendering them in an easily understandable, systematic, and vernacular form. On the other hand, they mix these summaries with a variety of other rules, procedures, and administrative structures—some of them recently created, others drawn from diverse Buddhist or secular legal literature—that are necessary for governing the monastic group in a given time and place. As the authors of an earlier version of the Rāmañña katikāvata have put it,
[t]he word “katikā” means an order that one follows regarding a thing that must be done. “Vatta” means facts that should be considered or can help improve the situation. Therefore, “katikāvata” contains those actions that must be observed either because they ought to be done or because they help improve the situation. The Buddha said about actions such as these “this is acceptable, this is not acceptable.” It should be known that katikāvatas are constitutions (vyavasthā) that have been promulgated by the saṅgha [the monkhood], or a collective of monks (gaṇa) or an individual in accordance with the legal standards (mahāpadesas) set out by the Buddha. (Rāmañña Nikāya Reference Rāmañña1925, xi)Footnote 23
The authors of this code, like the authors of the 2014 one, treat katikāvatas as instruments of corporate governance, the legitimacy of which depends both on their fidelity to the teachings of the Buddha and their ability to mold those teachings to fit modern circumstances. In this way, the authors of these monastic constitutions, like drafters of national constitutions, claim to respond to contemporary social realities while also aiming to reshape those realities in ways that render them more orderly, virtuous, stable, and just.
A second claim to legal legitimacy also runs through the Rāmañña (and other) monastic constitutions, one that links the text not only to the Vinaya but also to illustrious lineages of pious monks. As with modern national constitutions, which draw their legitimacy in part through the invocation of a discrete social collective, “a people,” that is presumed to pre-exist and validate the advent of the document (Loughlin Reference Gardbaum2017), so too do monastic constitutions rely on and verify the existence of an enduring monastic community. In the case of the Rāmañña constitution, this community is traced to a discrete cohort of founding monks who, “observing the misconduct in the existing lineages of monks,” travelled to Burma so that they could “take ordination in a pure monastic lineage and establish that lineage firmly in Sri Lanka” (Rāmañña Nikāya Reference Jacobsohn2014, i). The Rāmañña fraternity, to which the monastic constitution applies, identifies the boundaries of its community as those monks who trace their spiritual lineage (paramparāva) to these “founding fathers”Footnote 24 through a continuous chain of transmission from teacher to student (where the “son” in one generation becomes the “father” in the following generation).Footnote 25 Thus, in a manner reminiscent of the consanguineous imaginary of the nation, the Rāmañña monastic constitution presents itself as the agreed upon charter of a group with strong (even quasi-familial) notions of collective identity.
Administrating the Monastic Community
Even a casual glance at the Rāmañña Nikāya constitution shows striking similarities to Sri Lanka’s national constitution. The Rāmañña katikāvata is divided into chapters, which are subdivided into sections and clauses, according to the same numbering conventions used by the Sri Lankan constitution (of numbers, Roman numerals and letters). Compared with the twenty-four chapters in the national constitution, the Rāmañña constitution has fourteen, which have the following titles:
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1. “Basic Principles”;
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2. “[Rules for] Novice and Full Ordination”;
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3. “Conduct for Ordinary Monks”;
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4. “The Appointment of Chief Incumbent Monks and the Control of Monastery Property”;
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5. “Regional Monastic Councils”
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6. “The Governing Monastic Council”;
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7. “The Executive Monastic Council and the Board of Special Authorities”;
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8. “Development Councils”;
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9. “The Qualification Assessment Council”;
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10. “[Protocols for] Holding Meetings and Advancing Proposals”;
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11. “The Appointment of Chief Authorities and Appointment of Officials”;
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12. “The Positions of District Judge and Judicial Councils, and Their Organization of Duties”;
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13. “The Fraternity Protection Council” and
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14. “Forest Hermitages and Practice Centers.”
Ten of the fourteen chapters deal directly with the activities, responsibilities, and appointment procedures pertaining to the various branches and offices of monastic administration. The remaining four chapters (chapters 1–3, 10) clarify the core responsibilities, expectations, and procedures that Rāmañña monks ought to observe. The first chapter, concerning “Basic Principles,” even commences by explaining the nature and objectives of the katikāvata itself. It calls the text an “administrative framework” (pālana kramaya) and “behavioural code” (pratipatti saṅgrahaya) for the fraternity and clarifies the document’s “ultimate purpose” (paramārthaya) as being “the endurance, protection, development and administration of the existing lineage of monks in the Rāmañña fraternity” (Rāmañña Nikāya Reference Hirschl2014, 1). Also notable in the first chapter is a six-page-long “Definitions” section that glosses fifty-two technical terms taken both from the Vinaya (such as the Pāli word for a person who hopes to become a monk—paṇḍupalāsa) and from the administrative lexicon of contemporary Sri Lankan law, including terms such as “petition” (petsama) and “charge sheet” (cōdanā patraya).
Creating and Checking Governing Power
The administrative structure laid out by the Rāmañña constitution shows striking similarities to the constitutions of Sri Lanka and other democracies, in its threefold division of executive, legislative, and judicial power. In one of the monastic workshops that I attended in 2018, a senior jurist explained the importance of the fraternity’s judiciary using the following comparison:
In the [Rāmañña Nikāya] constitution, it says that the Executive Monastic Council (karaka saṅgha sabhāva) holds the executive power [for the fraternity]. … Legislative power is held by Governing Monastic Council (pālaka saṅgha sabhāva); and judicial power rests with you [the monastic judges]. When you look at these three branches of power (balasthāna) as they operate today with the state constitution (rājya vyavasthāva) we can understand which of them has the most influence … it’s the judiciary.Footnote 26
In saying this, the speaker referred to three major monastic councils (sābhavas) that form the backbone of the Rāmañña constitutional system. The Executive Council consists of the fraternity’s highest-ranking monastic officials (ādhikārīn vahansēlā), such as the twenty senior preceptors that supervise ordinations and the eight provincial chiefs who serve as the administrative heads of the Rāmañña fraternity for each province.Footnote 27 It also includes the senior representatives from the various regions (prādēśa) in which the Rāmañña fraternity has branch temples.Footnote 28
Overseeing the council is a steering committee presided over by the fraternity’s highest-ranking monk, the great leader (mahānāyaka), along with seven deputy leaders (anunāyakas) and the judicial chief (adhikaraṇanāyaka).Footnote 29 The Executive Council, which meets four times per year, has the power to “make necessary provisions” to ensure the protection, development, continuation, and administration of the fraternity” (Rāmañña Nikāya Reference Hirschl2014, 50, para. 69(i)). This authority includes directing the everyday governance of the fraternity, supervising various lower-level administrative bodies such as Regional Monastic Councils and Development Boards, managing the training and credentialing of monks, and overseeing the appointment of monks to high-level positions such as judges serving on the fraternity’s Supreme and High Courts (49, para. 68). The Rāmañña constitution also gives the Executive Council “special authority” (viśēṣādhikāraya) to act in ways not specified in the katikāvata in “special” situations. These powers evince strong similarities to the “emergency powers” given to the executive in Sri Lanka’s constitution (53, para. 70). Also similar is the special prerogative that the constitution gives to the great leader to issue “special orders” (viśēṣa vidhāna) in times of pressing need (75, para. 106).
As presented in the Rāmañña Nikāya constitution, the Governing Council functions in ways similar to a parliament. Its primary duties consist of drafting and amending orders that operationalize the key regulations of katikāvata (Rāmañña Nikāya Reference Hirschl2014, 48, paras. 64, 65). Members of the Governing Council, which currently number 226 (compared with the 225 members of parliament in Sri Lanka’s Parliament), are elected from regional constituencies through a process of majority vote by all Rāmañña monks who live in that region.Footnote 30 Most regions send three monks to the Governing Council. However, like Sri Lanka’s national electoral system, more populated regions send more representatives: areas with more than sixty temples and eighty full-time bhikkhus can elect six, while areas with more than forty-five temples and sixty-one bhikkhus elect four. Also similar to the Sri Lankan constitutional system are the ten “supplementary members” (atirēka sāmājikayan) that the Executive Council appoints to the Governing Council, in a manner not unlike the national list candidates appointed by political parties. In addition to these groups, all monks who have served in the highest leadership positions in the fraternity—such as the great leader or the judicial chief—are entitled to serve as honorary lifetime members (yāva jīvika garu sāmājikayan) with voting rights (43, para. 56(i)–(ii)). The Governing Council is overseen by a chairman and deputy chairman who preside over the semi-annual meetings (66, para. 96). The entire body is reconstituted every seven years, at which point all members and leadership positions must be re-elected.
The third branch of monastic government laid out in the Rāmañña constitution are the institutions of the judiciary.Footnote 31 Like the state judicial system, the Rāmañña judiciary consists of three major tiers. At the bottom are fifty regional judges (prādēśikānuvijjakas) charged with adjudicating local disagreements among monks (and sometimes lay trustees) that cannot be resolved by the local abbots. Above these regional judges sits a High Court (jyeṣṭādhikaraṇaya) consisting of twenty-one senior judges (jyeṣṭānuvijjakas) who convene in three-judge panels to hear cases that involve more serious matters (such as property disputes or complaints about monastic misconduct) as well as Regional Court cases on appeal. At the top of the Rāmañña judicial system sits a Supreme Court (uparimādhikaraṇaya) consisting of twelve justices usually convening in benches of three but, occasionally, in full five-justice benches for the most significant cases. The Supreme Court has original jurisdiction over the most serious matters (such as expulsion from the fraternity) as well as appellate jurisdiction over High Court cases. The judicial system laid out in the Rāmañña constitution shows striking similarities with that of Sri Lanka’s national constitution, not only in its form but also in the procedures and powers specified. For example, the monastic Supreme Court, like the national Supreme Court, has powers to review some of the actions of the Governing and Executive Councils, such as appointments to national bodies and the issuing of orders that violate the fraternity’s constitution (Rāmañña Nikāya Reference Hirschl2014, 96, para. 145). Both systems also appoint judges in a similar way: executive appointment that is confirmed though committees.
Lower and Higher Laws
One of the most striking similarities between the national and Rāmañña Nikāya constitutions are the parallel systems of national and regional governance. Alongside the Executive and Governing Councils described above, the fraternity’s constitution also establishes a provincial executive in the form of provincial chiefs (palātnāyakas) and regional legislatures in the form of Regional Sangha Councils (prādēśika saṅgha sabhāvas). Like provincial governors and Provincial Councils in Sri Lanka’s national constitution, monastic provincial chiefs are appointed by the executive, while Regional Councils parallel Sri Lanka’s Provincial Councils in their role as smaller, local parliaments with highly restricted legislative powers (Government of Sri Lanka 1978, para. 154).Footnote 32
The Regional Councils are composed of all fully ordained monks (in good standing) who live permanently in the region. Given the fact that monks often travel for the purposes of education and religious work, the Rāmañña constitution defines permanent residence status as monks who live in the region for at least three months out of every year, which is the length of the traditional rainy season retreat prescribed in the Vinaya. Monks can only be full, voting members in one Regional Council, although they may have honorary membership without voting rights in other Regional Councils—for example, in cases where monks serve as abbots of multiple temples in different regions.Footnote 33 As with the island-wide Governing Council, Regional Councils appoint officers (niladhārīn) for three-year terms, some of whom form the Executive Council (karaka sabhāva) of the Regional Sangha Council. In general, Regional Councils are responsible for implementing orders that are sent from the fraternity’s Governing or Executive Councils, but they also have limited powers to draft and implement their own local ordinances (katikā), provided those ordinances conform with the Rāmañña katikāvata Footnote 34 —an arrangement that parallels the relationship between national law and local law laid out in Sri Lanka’s national constitution.
Rights and Responsibilities
The rights and obligations of individuals are at the heart of the third chapter in both the Sri Lankan constitution and the Rāmañña constitution. In the case of the former, Chapter 3 provides a list of fundamental rights for citizens; in the case of the latter, it contains a list of twenty “ethical behaviors (pratipatti) that must be observed (piḷipaediya yutu).” Roughly, a quarter of the behaviors relate to the daily duties of monks. For example,
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(i) Every single monk should ask himself daily “Have I protected my monasticism (bhikṣūtvaya)?”
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(ii) [Monks] should engage in the four postures [of walking, sitting, standing, and lying down] mindfully and in a manner that is suitable for a monk.
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(vi) [Monks] should meditate at the prescribed time daily at a meditation site that is chosen according to their own disposition.
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(vii) [Monks] should make offerings three times per day. In addition to praising the triple gem [the Buddha, his teaching, and the monks], in the evenings they should chant protective versus, following the tradition of the fraternity.
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(viii) [Monks] should attend daily to the dagoba, the bodhi tree, and the statutes as well as make sure the temple treasures, the temple premises, and the areas nearby are cleaned. (Rāmañña Nikāya Reference Hirschl2014, 14–15, para. 23)
This list of duties draws upon and consolidates lists of daily tasks for monks taken from older monastic handbooks and constitutions dating from the twelfth to the nineteenth centuries (for example, Vijitananda Reference Vijitananda1985). This section therefore condenses a set of long-standing expectations about the daily activities of monks in the language and form of a modern national constitution.
A similar blending of contemporary form and ancient content can be seen in the prescribed behaviors relating to Rāmañña monks’ obligations to the fraternity’s monastic legal system. Seven of the twenty rules listed in this section refer directly to procedures, protocols, and penalties from the Vinaya, with which monastic readers are presumed to be familiar (Rāmañña Nikāya Reference Hirschl2014, 14–15, para. 23(i)–(xx)). As with the daily duties, these Vinaya guidelines are reframed as a set of discrete prescriptions: monks are admonished to confess disciplinary offenses immediately to their monastic superiors so that they can undergo an appropriate penance (para. 23(iii)–(v), (xiv)); and they are warned against committing offenses that incur serious penalties, such as probation or banishment (para. 23(xv)–(xvii)). In all cases, the katikāvata reframes complex (and often compendious) Vinaya rules as general principles and succinct directives.
The last set of prescribed behaviors relates to the appearance and conduct of monks in public, a matter that has concerned Buddhist monks from the earliest eras. Here too, the Rāmañña Nikāya constitution drafters drew from and repurposed traditional injunctions in order to update them for the modern world. Three prescriptions involve the proper appearance and use of monastic robes, umbrellas, and bowls—all of which ought to have the official colors and insignia agreed upon by the fraternity (Rāmañña Nikāya Reference Hirschl2014, para. 23(ix), (x), (xx)). Other prescriptions relate to how a monk ought to behave outside the monastery, for example:
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(xii) [Monks] should not be in unsuitable (agōcara) places [a category glossed in the “Definitions” section of the katikāvata as “places that defile the respectability of a monk” such as bars, restaurants, dance and musical performances, sporting events, abattoirs].
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(xviii) As it would lead to the decline of monasticism (bhikṣutvaya), [monks] should not participate in party politics nor be members of a political party; nor should they hold a membership in things such as a provincial council, or city council, or local council, or state council; nor should they go forward as a candidate for one. (Rāmañña Nikāya Reference Hirschl2014, para. 23)
While premodern Buddhist texts do not discuss bars, political parties, or city councils, they do contain admonitions against inappropriate types of interactions with laypersons, such as sitting privately with women or wandering around villages without a purpose. While not displacing these regulations, the contemporary Rāmañña constitution, not unlike national constitutions, selectively underscores certain types of moral behavior as being uniquely important and worthy of entrenching.
Entrenchment and Amendment
Entrenchment is a feature important to both the Sri Lankan and Rāmañña Nikāya constitutions. In both cases, lawmakers protected the texts’ status and function as guiding legal charters by prescribing special limits on, and rules for, amending or replacing them. Moreover, in both cases, procedures of amendment and replacement have been used regularly over the last several decades in order to adjust the document to fit particular political or social needs. Revised editions of the Rāmañña katikāvata have appeared roughly every decade or two since 1900, with new publications appearing in 1901, Reference Rāmañña1925, 1950, 1964, 1973, 1989, 2003, and 2014. In most cases, the amended constitutions both edited and broadened the text, revising existing provisions and adding new ones. As one monastic interviewee remarked when I asked him about these amendments, “as things change, and new situations arise monks got together and make the necessary additions.”Footnote 35
Despite the regularity with which the Rāmañña Nikāya constitution has been revised, the process of making amendments is very carefully controlled, resembling the procedures used by constituent assemblies and select committees of parliament. For example, the process of amending the katikāvata between 2003 and 2014 began in 2007 with a series of talks in the Governing Council, leading to the appointment of a fourteen-member Constitutional Amendment Subcommittee (katikāvata saṅśōdhana anukāraka sabhāva) that met every three months for several years and travelled around the island to gather submissions from the forty-seven Regional Councils. The amended text produced by that group was then presented to the Governing Council for ratification (Rāmañña Nikāya Reference Hirschl2014, vi–viii). This particular amendment process brought new powers to the judiciary, created the position of provincial chief and added a number of new councils designed to address urgent social problems. One of the members of the committee explained to me in an interview in 2017:
We created four development councils: a Pariyatti [Behavioral] Development Council for the training of monks in the Tipiṭaka; a Patipatti [Learning] Development Council to deal with deteriorating discipline [among some monks]; and then there was the Nikāya [Fraternity] Development Council. That was created to address things like the declining numbers of ordinations, the closure of temples and fewer monks in the temples. [It was done] to reinvigorate our places of worship and expand the fraternity.Footnote 36
Previous amendment processes helped to address other concerns. For example, the section on “ethical behavior” described above was first added in the 1989 katikāvata. The introductory section of that document explains this innovation in the following terms:
The [previous] constitutional code gave the most prominent place to the fraternity’s system of governance. Yet, following the needs of the times, a decision was made that [the fraternity] should create a more complete constitution that has both a section on the governing structure of the fraternity and a section on the behavior of [individual] monks[;] so in 2525 [of the Buddhist Era]/1982 [AD], the Executive Council appointed a three-member Constitutional Amendment Subcommittee (katikāvat sampādaka anukāraka sabhāvak). … [That body] examined the particular facts in the original katikāvata [published in 1901] as well as the subsequent constitutional codes, while also establishing the points of agreement from both the Executive and Administrative Councils before adding their own views and creating this [new] constitutional code for Buddhist monks. … For this [project] the Amendment Subcommittee held approximately fifteen discussion meetings … [following that] the Governing Council made the necessary amendments … and then formally ratified it. (Śrī Laṅkā Rāmañña Mahā Nikāya Pālaka Saṅgha Sabhāva 1989, i–ii)
As these two descriptions show, monastic constitutions, like national constitutions, undergo periodic processes of review and amendment, led by subcommittees and ratified by the executive and legislative branches of the fraternity. These processes echo constitutional amendment procedures visible in Sri Lanka in the 1950s and 1970s, all of which were led by specially appointed subcommittees (Schonthal Reference Schonthal2016, 60–146).
Despite the reasonable regularity with which the Rāmañña katikāvata has been amended, the fraternity maintains a highly conservative attitude toward the document. In fact, versions from 1925, 1950, and 2014 all include in their appendices copies of the original 1901 katikāvata, referring to it as the “root constitution” (mūl katikāvata) upon which current versions are built. This conservative bent can also be seen in the painstaking amendment procedures laid out in the current version of the constitution. Before amending the katikāvata or even revising a portion of it, a meeting must be held in which two-thirds of the Governing Council agree to the action (Rāmañña Nikāya Reference Hirschl2014, 48, para. 65). A balance of powers also applies to the process of proposing and voting on amendments: the Executive Council cannot dictate the terms of the amendment process but only present to the Governing Council proposals (yōjanā) for the formation of a subcommittee that will consider “the adding of necessary rules, the abolishing of unnecessary ones and other amendments that are required” (50, para. 69(ii)). Similarly, the Governing Council cannot ratify amendments without the signature of the head of the Executive Council, the great leader (48, para. 65). Further protections exist in the form of seven-year (renewable) term limits that apply to members of the Governing and Executive Councils, with the exception of the great leader, who serves for life (71–72, para. 103). These norms and rules have effectively led to the entrenchment of the Rāmañña katikāvata’s core provisions, especially in comparison to the numerous revisions (and attempted revisions) of Sri Lanka’s national constitution during similar periods of time.
Buddhist Constitutions across Time and Space
The 2014 Rāmañña katikāvata is clearly a strong example of a code of religious law that fulfills virtually all of the criteria of the contemporary constitutional prototype: it is a comprehensive, systematically presented charter that announces the shared identity of a group, lays out its core regulations and administrative structure, enunciates principles of legal legitimacy and protocols of entrenchment, and establishes itself as a higher law that sets the terms for both national and regional governance and the various forms of local law that are imagined to come under it. As with modern national constitutions, it is the product of progressive amendment over time, and while it does not displace the authority of the Buddha’s teachings, it selectively presents and reframes those teachings in concise, prescriptive form—in much the same way that constitutions throughout the world claim to be legitimate, prescriptive embodiments of natural or divine law (Hamburger Reference Hamburger1993).
Most strikingly, the 2014 Rāmañña katikāvata looks like a modern national constitution—in particular, the Sri Lanka national constitution—in its layout, structure, and contents. When I asked about these parallels, monks in the Rāmañña Nikāya acknowledged the strong similarities but resisted the idea that the code was modeled slavishly on Sri Lankan public law. According to them, the parallels between the two developed through circuits of indirect influence: familiarity with the national constitution by senior members of the fraternity, training in Sri Lanka’s legal system among some monks (including one monk who had been a member of parliament previously), and periodic consultations with public lawyers who, in their capacity as lay supporters of the fraternity, offered suggestions on the Rāmañña Nikāya constitution. Moreover, to the extent that constitutional law has become the prototype for modern legality in recent decades, it makes perfect sense that groups looking to develop guiding legal charters will turn to national constitutions as exemplars. One might even speculate that over the last century in Sri Lanka—and in many other places—the genre of constitutional law, imagined as the consummate form of written law, has gained a more general social prestige that it carries across many cultural contexts, including those perceived to be distant from public law, such as religious and social organizations.
The Rāmañña Nikāya constitution is not alone among Buddhist legal texts in its strong resemblances to national constitutions. Similar texts have been produced by other contemporary Buddhist groups. For example, Korea’s largest monastic sect, the Chogye Order, also follows a “constitution” that lays out a complex system of governance with its own division of power. The organization’s website describes the text as follows:
The Jogye [Chogye] Order has its own constitution based on the Buddhist Dharma and discipline. The charter set out at the monks’ Conference in 1929 stands as a model for the modern constitution which came into being on April 10, 1994. The administrative organization of the Jogye Order includes a Supreme Patriarch or Spiritual Leader, the highest authority in transmitting the order’s traditions; a President who overseas administration of the order; a Central Directorate for Religious Affairs comprised of an Administrative Headquarters, a Bureau of Education, and a Bureau of Missionary Activities; a Central Council, the legislative organ, and a Board of Adjudication, the legal organ. (Jogye Order Reference Jogye1994)Footnote 37
More than just the comparisons made by the Chogye leaders, the Chogye constitution itself displays striking similarities to modern national constitutions in its organization into sections and subsections, its concern with basic rights and protocols of entrenchment, and even the balance of executive, legislative, and juridical authority.
Examples of Buddhist constitutions can also be identified historically, even if their structural and substantive similarities with contemporary national constitutions are slightly less obvious than the texts described above. The Rāmañña katikāvata, for example, is just one contemporary iteration of a much older genre of katikāvata texts dating back to the twelfth century in Sri Lanka, most of which (I have argued elsewhere) share the form and function of modern constitutions, albeit in a style and setting that are very different to that of contemporary nation-states (Schonthal Reference Schonthal2021). Equally viable as a candidate for premodern Buddhist constitutions are a genre of Tibetan legal texts called chayik, which Brenton Sullivan (Reference Sullivan2020), following the work of Ter Ellingson (Reference Ellingson, Epstein and Richard1990) and others, refer to as the “monastic constitutions” that structure and regulate monastery life.Footnote 38
CONCLUSION
Those who recognize the importance of law for organizing human societies should not be surprised by the existence of religious constitutions, such as the Buddhist variants described above. After all, religious groups represent some of the largest, most durable, and omnipresent social collectives in the world. Over centuries, these communities have developed sophisticated economic, educational, and legal systems; and these complex systems of social-normative regulation have helped religious groups to maintain a significant degree of autonomy. Religious laws have enabled cooperation among large (and often geographically dispersed) groups of members and have helped to manage the distribution of clerical power. Religious laws have contributed to the standardization of procedures and processes for credentialing officials, administrating rituals, disciplining adherents, and controlling property. When one focuses on these features of religious communities, it seems reasonable, perhaps even inevitable, that religious groups—or any large social group for that matter—might have constitution-like governing laws.
Looked at from this perspective, it makes sense that there would be strong family resemblances between religious constitutions and political constitutions extending both “vertically” in time and “horizontally” across societies and legal cultures. Practices of legal borrowing can be found in most places and periods of history (Watson Reference Watson1993; Wright Reference Wright2009; Benton and Ross Reference Benton and Ross2013; Hussin Reference Hussin2016). Just as legal ideas cross territorial borders, they also cross categorical ones, flouting the imagined lines between religious and secular, state and society (Peletz Reference Peletz2013)—even if scholars have not been equally as venturesome in their boundary crossing. Similarities between the governing laws of religion and the governing laws of polities ought to be more commonplace than aberrant. This is especially the case over the last two centuries, as imperial powers and postcolonial governments exerted pressure on populations to express their identities and grievances in the idiom of state law (Sharafi Reference Sharafi2014; Kauanui Reference Kauanui2018; Moustafa Reference Moustafa2018; Colley Reference Colley2021). To look at the Rāmañña katikāvata or the Isma’ili or Chogye constitutions, then, is not to observe an ersatz constitution—a second-rate copy of a modern national constitution—but, rather, to view a purposefully designed legal amalgam that expresses the normative structures of religious life using the current “lex franca” of global governance, the national constitution.
Given the profound historical and substantive similarities between religious and national constitutions, admitting religious constitutions into the canon of comparative constitutional law not only makes categorical sense, it also has significant benefits for scholars across academic fields. The study of religious constitutions helps to sensitize scholars to the social permeability of legal forms and the ways in which concepts, structures, and terminology that gain prominence in one domain of social regulation have the capacity—perhaps even the tendency—to do so in other domains of social regulation. Notions of authority, virtue, personhood, or justice that appear in one legal system often appear in contemporaneous or subsequent systems, albeit in slightly modified form (Cover Reference Cover1983; Davis Reference Davis2007; Whitman Reference Whitman2008; Lubin Reference Lubin, Cox and Vergiani2013; Berger Reference Berger2015; Massoud Reference Massoud2019). In this sense, religious constitutions are genetically, structurally, and epistemologically entangled with political constitutions, serving both as prototypes for them and simulacra of them. Those who design national constitutions, in many cases, treat them as “the modern analogue” of earlier forms of religious law (Lombardi Reference Lombardi2006, 49; Mérieau Reference Mérieau2019). The converse is also true: those who design religious laws tend to express ideas of order, authority, and communal autonomy in ways that echo the laws of nations, guilds, or kings (Kieffer-Pülz Reference Kieffer-Pülz2011; McClish Reference McClish2019; Schonthal Reference Schonthal2020). Examining religious constitutions does not merely expose scholars to one more type of constitutional law, it also casts a broader light on the complex normative ecology within which all legal projects participate and from which they draw.
The creation of religious constitutions and national constitutions are, in this way, parallel sorts of activities, both of which aim to unify and coordinate aspirationally independent human communities—whether we classify those communities as religious or political, national or subnational. Each one bears witness to the collective pursuit of ordered independence. The parallel nature of these pursuits makes it more likely that the governing laws of these human collectives will evolve in co-referential and co-constituting ways. That is to say, both national constitutions and religious constitutions are iterations of what are fundamentally similar legal projects—the idealized, systematic expression of communal autonomy, whether its aims are oriented toward sovereignty or salvation (Yelle Reference Yelle2019). These expressions share features familiar to scholars of comparative constitutional law: notions of higher law and limitations on governance, ideas of entrenchment and constitutional identity. Yet they also share features familiar to scholars of religion: mythic narratives and ritual devices, appeals to transcendent principles, and notions of divinity. In fact, one could say that it is these underlying symmetries that deter the very comparisons that would expose those symmetries in the first place. This is because the same qualities of sacral sovereignty that bring constitutional law in conceptual and affective proximity to religion also generate a “deep resistance” to any kind of profaning comparison with the laws of others (Kahn Reference Kahn2003, 2678). The religion-like nature of modern constitutional law, it might be said, discourages scholars from acknowledging the constitution-like nature of religious law.
This article has sought to advance scholarly discussions of religion and constitutional law by reorienting our intuitions about the principle of conjunction—the “and”—that binds them together. Looking closely at religious constitutions, such as those of Buddhist monks in Sri Lanka, helps to identify a religio-constitutional complex characterized by complementarity rather than contestation, homology rather than heterogeneity, and syncretism rather than opposition. Recognition of this fact may not be sufficient to unstitch long-standing secularist assumptions in the field of comparative constitutional law or socio-legal studies, but it could, at the very least, nudge research toward a broader, more methodologically dexterous and more pluralized understanding of constitutions and, by so doing, encourage scholars of comparative constitutional law to undertake the very self-reforming steps that the field’s most prominent voices have recommended: “erring on the side of inclusion” (Saunders Reference Saunders2009, 29) and adopting a “more holistic approach” (Hirschl Reference Hirschl2014, 15). Doing so will not only hasten the shift from, in Ran Hirschl’s words, “comparative constitutional law” to “comparative constitutional studies” but also open up new avenues of discussion, theorization, and scholarly exchange among specialists in the study of law, religion, and other disciplines (151).
