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1 THEBUDHHIST LAW 22 and 23 May 2016 in Thailand by Justice THEBUDHHIST LAW 22nd and 23rd May 2016 in Thailand By Justice Sonam Tobgye, Former Chief Justice of Bhutan Introduction Buddhism is not only a religion and philosophy but includes enlightened laws. They are progressive and modern. They are not restrained by ages, not constrained by geography and not restricted by races (racial feelings - jati-vitakka, national feelings - janapada-vitakka and egotism or personal and national pride - avannatti).The first word of Buddha was: “I shall go to Banaras where I will light the lamp that will bring light unto the world. I will go to Banaras and beat the drums that will awaken humankind. I shall go to Banaras and there I shall teach the Law.”1 What is law? Dynamic intelligence, speculative minds, common misery of pain and shared anguish made the human search for law and justice. Human aspired for salvation and liberation through spiritual, philosophical and intellectual pursuit to unlock the mysteries and expose the truth. The quest for law was one of them. Therefore, the history of natural law enshrines that the Greeks gave a conception of universal law for all mankind under which all men are equal and which is binding on all people. Two trends of thought existed among them. Firstly, the Sophists developed a skepticism in which they recognized the relativity of human ideas and rejected absolute standards. The basis of law was the self-interest of the lawmaker and the only reason for obedience to law was the self-interest of the subject. Secondly, according to other schools of thought, law was guided by uniform principles, which could provide stability. This view was supported by Socrates, Plato, Aristotle and Zeno. Law is an interpretative social practice2 that contains implicit moral principles and values. Law is related to justice, reason and ethics. It is also an instrument of social change.3 According to Alexander Bickel: “Law is the principal institution through which a society can assert its value”.4 Nonetheless, laws could be tyrannous as the Draco’s laws. Different religious leaders and philosophers defined laws as under: (a) Solon said,“Laws are the spider’s webs which, if anything small falls into them they ensnare it, but large things break through andescape”; 1Suresh K. Sharma &Usha Sharma, “Cultural and Religious Heritage of India”, in S. Radhakrishan,“Buddha and His Religion”, First Edition 2004. 2 For example, Chanakya (350-275 BCE) who was a philosopher and founder of an independent political thought in India, laid down rules and guidelines for social, legal and political order in the society. See B.K Chaturvedi, Chanakya, Diamond Pocket Books, 2001. 3 Roscoe Pound, An Introduction to the Philosophy of Law, 1930.According to him, legal order must be flexible as well as stable. Law must be overhauled continually, and refitted continually to the change in the social life which it is to govern. 4 Alexander Mordecai Bickel, The Least Dangerous Branch, 1962. 1 (b) Early Indian legal theorist talk of Matsyanyaya – justice in the world of fish, where a big fish can freely devour a small fish; (c) Oliver Goldsmith also said, “Laws grind the poor, and the rich man rules the law.” In all societies, the law gives form and direction to the social world. It represents the solemn will of the state pronounced through the legislative power for the common good. Nagarjuna5 wrote: “As the earth is to living and non-living entities, law is to human beings.”6 Among the definitions of law of the pre-Socratic and Greco-Romanic periods, the definitions given by Austin, Hart, Joseph Raz, Max Weber, Kelsen, Ronald Dworkin, Hegel, Marx and Nietzche, Ronald Dworkin’s definition is the most appropriate. He defined law as: “…a system of rules – the rules laid down by statute and precedent, distinct from the rules and principles of morality.” In Buddhism the wheel of the most excellent laws rolled at Sarnath when Buddha began to preach to the five bhikkhus7 that the spokes of the wheel are the rules of pure conduct: justice is uniform like their length; wisdom is the tyre; modesty and thoughtfulness are the hub in which the immovable axle of truth is fixed.8According to Buddhism, law is for the welfare and happiness of the many- bahujanahytaya, bahujanasukhaya. This is a utilitarian concept. LaksiriJayasuriya noted: “…In many respects Buddhist ideals of statecraft embodying principles and practices such as the rule of law, deliberative democracy, procedures of governance and the social policies of the Asokan welfare state bear a striking similarity to Enlightenment values in Europe.”9 Utilitarian reasoning has three distinct axioms: consequentialism, welfare and sum- ranking. It concentrates on individual happiness or pleasure, as pioneered by Jeremy Bentham. Origin of Law The raison d’être of the evolution of humanity is procreation, survival and progress. According to Richard Posner, “In primitive society, people believed in self-help.” From self-help to common defense, time and history responded positively. The human urge for better and greater lives, from the Greek’s conception of universal law (koinosnomos), the partial skepticism of the Sophists, and the epochs of Cynicism, Rationality, Humanism, Renaissance, Enlightenment (the Age of Reason), Empiricism, Romanticism, Postmodernism, all the way to today’s complex and technological world, were reactions, counter-actions, often revolutionary, so that 5Nagarjuna or Pelgoen Phagpa Lhuedrup was a famous Buddhist philosopher of the second century A.D. 6 Refer Suhrida Lekha. 7They are the five “Excellent Disciples” of Buddha namely (1) kun sheskaun Di nya, (2) rtathul, (3) rlangs pa, (4) mingchen and (5) bzangLdan. 8Dharma Chakra Pravartan. 9Laksiri Jayasuriya, Buddhism, Politics, and Statecraft, International Journal of Buddhist Thought & Culture September 2008, Vol.11, pp.41-74. 2 individual freedoms would be secured, and a harmonious society and the sovereignty of the nation would not perish. Philosophies and spirituality expressed through constitutions anchored on the various schools of thought such as teleology, deontology, consequentialism and realism, which acted as self-correcting and self- imposed restraints. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably put into twelve books. It was based on the concept of Ma’at, characterised by tradition, rhetorical speech, social equality and impartiality.By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements. The 1912 BC Mosses Law: The law of Mosses refers primarily to the Torah or first five books of the Hebrew Bible, traditionally believed to have been written by Moses. In 1760 BC King Hamurabi revealed the code of laws by the Mesopotamian sun god Shamash, who is also revered as the god of justice. The first Constitution was that of the Athenian Solon’s in 495 BC. (He was known as “a wise lawgiver.”It was reaction to the Draco’s law in 621 BC. His laws were written in blood instead of ink. The laws of rGyalpoMelong-gdongof 1914 B.C. from Tripitika, incorporates the concepts of retributive, deterrent and reformative Justice. Objective of law Law serves many purposes and functions in a society. Law establishes standards, maintain order, resolve disputes, protects liberties and rights, and promotepeace and tranquillity forcommon good. (a) Baruch Spinoza noted, “the laws, which prescribe what everyone must believe, and forbid men to say or write anything against this or that opinion, are often passed to gratify, or rather to appease the anger of those who cannot abide independent minds.” (b) Blackstone mentioned,“Law is the embodiment of the moral sentiment of the people. (c) John Biggs Jr. said that “Let us revise our views and work from the premise that all laws should be for the welfare of society as a whole.” Buddha said: “Law is for correcting those who have gone wrong - (Durmanganapudgalanigrahaya)”10 … Law must allow each individual to know, before taking any action, what conduct is illegal, why it is forbidden, and what will be the penalty for violation. In substance, the law must forbid only such private conduct that violates the individual rights of others. Law should be clear and precise, it should leave no room for any person to 10bka’-‘gyursutra, rapa, page 57 (back page). 3 exercise arbitrary power through unpredictable subjective decisions. Buddha himself mentioned: “He who dispenses justice in an arbitrary manner could never be considered one who abides by the law. One who clearly ascertains both right and wrong is the one who is held as wise and just.”11 Furthermore, in Dhammapada it is mentioned: “He is not thereby just because he hastily arbitrates cases. The wise man should investigate both right and wrong. The intelligent person who leads others not falsely but lawfully and impartially, who is a guardian of law, is called one who abides by righteousness.”12 Law should have utilitarian and functionalist purposes.13 It must encourage virtue, and prevent vice and immorality. The legal principles must be divided under three divisions, the enunciation of legal values without subordinate sections, elaborate legal remedies, and punishment for violation and non-compliance. Every law must be cautionary to avoid disproportionate punishment and abuse of power. Law should be practical and enforceable without undermining transparency, accountability, efficiency and professionalism. It should be same to others and to oneself. It should be just and one should be subjected to it.14 It should be held up by interlocking principles for mutual support, maintain consistency and avoid incoherence. It should be free from passion and ulterior motives. Laws that are biased and legislated in anger will be subjected to the wrath of time. Rational for law Buddha gave ten reasons for promulgating laws responding to different situations.
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