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THEBUDHHIST LAW 22nd and 23rd May 2016 in Thailand By Justice Sonam Tobgye, Former Chief Justice of

Introduction is not only a 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 . 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 , procedures of governance and the social policies of the Asokan 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, , 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 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. He said:

“I am enacting rules of training (sikkhapada, precepts) for the monks (i) for the well-being of the Community, (ii) for the convenience of the Community, (iii) in order to curb miscreants, (iv) for the ease of well-behaved monks, (v) in order to restrain misbehavior in the present, (vi) in order to check future misbehavior, (vii) in order that those who have no faith (in this religion) may acquire faith, (viii) in order that those who have faith may be further strengthened in their faith, (iv) in order that the good Doctrine (Dhamma) may last long and (x) for the promotion of discipline”.

Buddhist teachings acknowledge that good legislation be translated into a healthy social order. A king or ruler of the state should ensure a system of impartial justice. Buddha propagated:

11The Dhammapada, The teachings of Buddha, Verse 19: Endowed with Dharma. 12Spoken in the Jetavna Grove, DhammaññhaVagga, The Just Or Righteous (Text and Translation by Ven. Nàrada), Chapter 19, verse 256. 13Normative ethics is rational inquiry into or theory of the standards of right and wrong, good and bad in respect of character and conduct, which ought to be accepted by a class of individuals. Hugo Grotius argued that law arises from a social impulse. Hayek - “only the existence of common rules makes the peaceful existence of individuals in society possible… the “rationalist” or “constructivist” understanding of the origins of law.” 14 MarkTushnet, The insurance theory of constitutional regime - serves as insurance against losing office. 4

“The Law is that which leads to welfare and salvation. It forms conduct and character distinguished by the sense of equality among all beings.”

Buddhism holds that the law itself is based on consent resulting from understanding, friendliness and mutual interest. The role of sanctions is secondary. Buddhism speaks of virtuous behaviour arising out of respect for the dictates of our conscience (attadhipateyya), respects for public opinion (lokadhipateyya) and respect for righteousness or Dhamma (dhammadhipateyya). Buddha refers in one place to a class of people:

“Out of fear of punishment in this life do not plunder the goods of others”.

Although the goal of Buddhism is a state in which there is freedom from fear (abhaya), it recognizes the importance of cultivating a sense of moral shame (hiri) and moral dread (ottappa) in the initial stages of one’s moral development. The Buddhist attitude to the criminal is:

“You must punish them out of compassion and from a desire to turn them into worthy persons as you do as regards worthy sons; and you must not be moved by hatred or by the desire for material gain’. As a consequence of compassion, mercy should be shown to those who are punished, imprisoned or beaten in accordance with the law (nyayato), prisoners should be well looked after, no one should be imprisoned for life and there should be no mutilation or execution of criminals though banishment is permitted.”

Types of laws Laws may broadly be divided into natural law (jus naturale) and positive laws (jus positivum), criminal and civil laws, substantive and procedural laws, public and private international laws, etc.

Buddha promulgated physical laws (utu-niyama), biological laws (bijaniyama), psychological laws (citta-nyama), moral (kamma-niyama) and spiritual (dhamma- niyama) laws. These laws were similar to the Stoic conception of the koinosnomos or “universal law”.

At the end of the Roman era, the principles of natural law were accepted by Christians. St. Augustine was the most important person, who was influenced by the last school of pagan philosophers, known as the Neo-Platonists. According to Christian fathers, all laws, and property were the product of sin.St Thomas Aquinas attempted to harmonize the teachings of the church with those of natural laws. He distinguished between four kinds of law in his Summa Theologya. He said that human law or man-made law must conform to reason and thus to eternal law. The neo-scholastics such as Dabin, Martain and Finis followed and refined the doctrine of Aquinas. However, Bentham condemned the belief in natural rights on the grounds that it inspired violence and bloodshed as seen in the excess of the French Revolution. He was the founder of the Analytical school. In the middle of the nineteenth century there was a strong counter movement against the metaphysical tendencies of the preceding centuries.

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Austin, Holland, Salmond, Kelson, Gray, Hohfield, Kocurek and Hart expounded the Analytical orAustinian or the Imperative school. This movement is described as positivism.Individualism became the manifestation of the cult of reason. Positivism as a scientific attitude rejects a priori speculations and seeks to confine itself to the data of experience.

Legal positivism shared with positivistic theory the aversion to metaphysical speculation and to the search for ultimate principles. It sought to exclude value considerations from the science of jurisprudence and to confine the task of this science to an analysis and dissection of positive legal orders. It holds that only positivist law is law, and by positive law Austin means those juridical norms, which have been established by the authority of the state.

The legal positivist also insists on a strict separation of positive law from ethics and social policy and identifies justice with legality, which is observance of the rules laid down by the State. It has manifested itself most conspicuously in a jurisprudence of an analytical type, known as analytical positivism. Analytical positivism takes as its starting point a given legal order and distils from it by a predominately inductive method certain fundamental notions, concepts and distinctions, comparing them with the fundamental notions, concepts and distinctions of other legal orders in order to ascertain some common elements.

Similarly, Buddhist laws can generally be classified into two categories, natural laws –Rang bzhin gyi khrims as described in the bka‘gyur, Tri Pitaka, Bodhicharyavatara (spyod ‘jug) and bde smon15, and positive laws - the bcas pa‘i khrims. Differentiation of natural law or positive law is explained in Nagersen and Milenda, which are so relevant and modern. In Buddhism, the positive laws include the six edicts of law, such as:

 Khri stse ‘Bum bzher gyi khrims (Law of governance of Army and Executive).16  Bum gser thog Sha-ba-can gyi khrims (Law relating to weights, measures and fair trade).17  Rgyal-khams dper blangs kyi khrims (Law of the State).18  Mdo-lon zhu-bcad kyi khrims (Law of Interrogation).19  Dbang chen bcad kyi spyi-khrims (Law of the great governors).20  Khabso nang-pa‘i khrims (Law relating to fair trial).21

Lawis further classified into five broad sections, Nyan-thos kyi khrims (Laws for the dhamma followers), byangchub Sems-dpa‘i khrims (Laws for the Saints), bde bar gshegs pa‘i khrims (Laws of Enlightenment), dge ‘dun gyi khrims (Monastic Laws), and Rang or Kun gyi khrims (Secular Laws).

15 Prayer(pranidh‘ana) to be reborn in the sukhavati paradise of amitabha Buddha by Karma chags med(r‘a ga a syas), 17th century. 16 The first law Code of King Srongtshen Gambo. The Code enshrines and responsibility. 17 It deals with duties of an individual regarding the matter relating to weights, measures and fair trade etc. 18 It enshrines duties and obedience to laws. 19 It enshrines fair trial. 20 It enshrines adjudication by due process. 21 It enshrines delivery of equal justice without discrimination. 6

Justice Philosophers and jurists wrestled with the concept and definition of justice to reflect the sublime human aspiration. Justice is a promise and a gift to humanity. John Rawls mentioned: “Justice is the first virtue of social institutions.”

Similarly, Socrates said:

“Justice is virtue and wisdom … injustice is vice and ignorance.”

Cephalous suggested that justice consisted of speaking the truth and paying one’s debt, whereas Thrasymachus proclaimed, “justice is nothing more than the interest of the stronger.” Hesaid that just [dikaion] is the same everywhere – whatever is to the profit or advantage [sumpheron] of the mightier. Similarly, in Plato’s dialogue Gorgias, Calicles advocates an extreme doctrine of natural justice as the right of the strongest.

Justice is sine qua non andindispensible for the enjoyment of rights and freedom. It is an embedded value confirming the maxim:

“Nulli vendemus, nullinegabimusautdifferemus, rectum autjustitiam”.

It means, ‘To no man will we sell, or deny, or delay, right or justice.’ Justice should not favour strong and eliminate weak. Justice is a social virtue and an inherent human necessity. Justice Cardozo mentioned:

“The final cause of law is the welfare of society.”

Justinian Code, A.D. 533 mentions that – “Institia est constans et perpetua voluntas ius suum cuique tribunes” - justice is the constant and perpetual purpose of rendering each man his due and “iurispraeceptasunthae: honest vivere, alterum not laedere, suumcuiquetribuere”- the precept of the law are: to live honestly, not to injure your neighbour, and to render each man his due.

Delivery of justice requires institutional building, legal framework, infrastructural development, technology and human resource development. Mipham Rimpoche in the 19th century said:

“Good laws are the guardian and protector of the World. Hearing that it punishes the guilty would appease the good people but frighten the bad ones”22

Hence, Justice promotes virtues and vitiates vices. With passage of time and changing situations, justice acquired multi-dimensions and categorizations such as Commutative justice, Correctivejustice, 23 Compensatory justice, Social

22Mipham Rimpoche, rajaniti shastra, p.116. 23Corrective Justice promotes equality in exchange of goods in accordance with the amount and quality of labour contained therein. 7 justice, 24 Distributive justice, 25 Institutive justice, Economic justice, 26 Political justice,27 Global justice28 etc.

The important quality of the person whose work is concerned with the punishment of a man who has done wrong is that he must consider and examine the case from many documents, situations and pleas, and then decide justly and rightly. Buddha speaks of how to prepare the decision:

“You first have the advice of a being all-wise like me; it is no wonder if you should judge your case fairly and justly avoiding the four ways of wickedness.”29

When a case arises, each party has to be listened carefully, and the arguments considered and evaluated before judgment is given. Partiality, ill-will or fear should not be allowed to influence one’s judgment. In the Mahavastu, it is stated:

“When a dispute arises, he should pay equal attention to both parties and hear the arguments of each, before deciding according to what is right. He should not act out of prejudice, hatred, ignorance or fear…”

It is said that a judge fails to uphold justice, if he deprives a rightful owner of his property, or pronounce an innocent man guilty because he had a long-standing grudge against him, or because he was irritated over another matter without applying legal principles (YuktiAyukti) to the facts of the case. A judge who fails to follow these rules is likely to lose prestige and suffer loss of status among his colleagues as well as the confidence of the people.

Plato, the great Greek thinker praised justice as one of the four virtues: wisdom, courage, temperance, and justice, to support the perfect state. 30 According to Buddhism justice is the soul of the ruler’s function. Buddha said to the king of Kosala:

“My lord king, to judge a cause with justice and impartiality is the right thing”.31

Mahā-Pāduma-Jatakasays that the king’s duties in the court, when he decides case, are to be performed with care and deliberation.

Forms of justice Aristotle divides justice into distributive and corrective justice. Distributive justice stresses the role of the state; corrective justice promotes equality in exchange of goods in accordance with the amount and quality of labour contained therein. Buddha

24Social justice aims at abolition of all kinds of inequalities, which may result from the inequalities of wealth, opportunity, status, race, religion, caste, title, etc. 25Distributive justice stresses the role of the state. 26Economic justice at distribution of material resources is for the common good and to prevent concealment of wealth. It also includes equal pay for equal work, right against exploitation, etc. 27Political justice is absence of any unreasonable or arbitrary distinction among the people in political matters. It includes single electorate and adult franchise. Every citizen is entitled to contest in and participate in irrespective of their status. 28Refer; What is Gobal Justice? Thomas Pogge—Politics as Usual: What Lies Behind the Pro-Poor Rhetoric. 29E.B. Cowell (ed.), N. 67, 1. 30 V. Venkata Rao, Ancient Political Thought (Delhi: S. Chand & Co., 1966), p. 44. 31 Professor E.B. Cowell (ed.), Jātaka Stories, Vol. II trans., W.H.D. Rouse (Delhi: Cosmo Publicatons, 1973), p. 1. 8 stresses on the individual’s right to take what is due to him which is closer to Aristotle’s corrective justice.

Justice may be harmonious reconcilement of individual conduct with the general welfare of society, such as (i) social justice aims at abolition of all kinds of inequalities, which may result from the inequalities of wealth, opportunity, status, race, religion, caste, title, etc. (ii) economic justice at distribution of material resources for the common good and to prevent concealment of wealth. It also includes equal pay for equal work, right against exploitation, etc. (iii) political justice is absence of any unreasonable or arbitrary distinction among the people in political matters. It includes single electorate and adult franchise.

In the utilitarian view, principles of justice like all other moral principles, take their character and colour from the end of happiness. The voluntarist accounts that the principles of justice are the products of choice. The guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement.

Commutative justice or corrective or rectificatory justice as advocated by Aristotle not only includes payment for a service but also compensation for damage incurred and punishment for a crime. Justice consists in observing the right proportion, maintaining a balance and observing certain equality. Commutative law is a proposition that the arguments of a certain function or operator can change place without affecting the results. It concerns with persons especially fairness of goods and fulfilment.

Social justice confirms to amoral principle such as all people are equal. Social justice in terms of a fair distribution of resources, the impartial rule of law and political freedom in Buddhism is dri-ma medpargragspa’imdo (VimalakirtiNirdesa Sutra) - when one’s mind is purified, society will also be purified. Distributive justice concerns the right way of allocating benefits and burden entailing principles such as ‘to each according to need’. It is really a thing to be achieved because unless there is distributive justice, an effort to reduce the number of the under privileged and have-nots will not be achieved.

Nobody should gain the surplus value, which leads to the concentration of wealth in a few hands, leading to social injustice.Buddha mentions:

“It takes great courage to stand up for and protect what is right… Do not violate the rights and commitments of others.”

Thomas William Rhys Davids said:

“The Buddha’s doctrine of love and goodwill between man and man is here set forth in a domestic and social ethics with more comprehensive detail then elsewhere. And truly we may say even now of this Vinaya or code of discipline, so fundamental are the human interests involved, so sane and wide is the wisdom that envisages them, that the utterances are as fresh and practically as binding to-day and here as they were then at Rajagaha. Happy would have been the village or the clan on the banks of the Ganges where the

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people were full of the kindly spirit of fellow-feeling, the noble spirit of justice which breathes through these naïve and simple sayings.”32

In Light of Asia, Buddha said:

“Be thou content to know not, knowing thus Thy way of right and duty:”33

Apart from many types of justice, one is institutive justice that raises issues of , procedure, codification and interpretation and popular justice, “the exercise of justice by the people”. In case of popular justice, it has its own limitation for instance, Agamemnon in Euripides Hebula, Creon I Antigone and the jury that tried and condemned Socrates has no deliberations and no possibility of appeal.

Justice as fairness, as a theory, is situated by Rawls broadly within that tradition, and he describes his theory, as an attempt ‘to generalize and carry to a higher order of abstraction the traditional theory of social contract as represented by Locke, Rousseau, and Kant.

Mahā- Hangsajātakadescribes justice as a cause of well-being and happiness. Oppression and arbitrary behaviour were considered to be the root of social evil. They were a real cause of social suffering and a great fetter, which made humans suffer. In every society, justice is needed for defeating oppression. According to Buddha, the principles of justice are based on the four wrong causes of behaviour or prejudice:

“(1) prejudice caused by love or desire, (2) prejudice caused by hatred or animosity, (3) prejudice caused by delusion or stupidity, (4) prejudice caused by fear.”34

Democracy In Buddhism, the brotherhood of monks was established on democratic foundations with a constitution and code of law governing their conduct.35 The day to day affairs were governed by a liberal culture of equalitarian inter personal relations, advocacy and integrative social and international relations.

Historically, Cleisthenes invented democracy in 508 BC. The word “democracy” combined the elements demos, which means “people” and krátos a “force” or “power”.Before the development of democracy by Cleisthenes in 508 BC in ancient , the concept was already in practice in the independent republic of Vaishali in India. Lord Buddha had based his Sangha on the various democratic values of Vaishali.

There are three major ; (a) ; (b) ; and (c) Presidential or Parliamentary Democracy. Direct Democracy is achieved through direct participation of all citizens, whereas representative democracy involves a body of elected representatives and within the group of

32The Layman’s Code of Discipline, Sigalovada Sutta. 33Sir Edwin Arnold, The Light of Asia or the Great Renunciation Being the Life and Teaching of Gautama, the Prince of India and Founder of Buddhism, (2009), 153. 34T.W. Rhys Davids (ed.), Dialogues of the Buddha, 1957, p. 228. 35 Refer International Journal of Buddhist Thought & Culture, Volume 11. 10 representative , the focus may be on a strong president (Presidential Democracy) or on a strong parliament (Parliamentary Democracy). Apart from these basic types of democracy there are other various types of democracy such as: Monistic democracy, Primitive democracy,36Spartiandemocracy, or classical democracy, , 37 Bioregional democracy, Constitutional democracy, Demarchy, 38 Defensive democracy, 39 , ,40Dominant-party system, , E-democracy,41 Emergent democracy, , , , , , Market democracy, Multiparty democracy,Non-partisan democracy, 42 Interactive democracy, 43 , Plebiscitary democracy, , 44 , , , 45 , 46 , 47 Republican democracy, , Soviet or Council democracy, 48 , Deepening democracy, 49 Pseudo democracy, Electoral democracy, Secular democracy, Neo-democracy, Westminster democracy, , , etc.

Buddhist monastic governance is a deliberative form of democracy. The principles and practices governing the organization of the monastic community (the sangha) have implied affect to social philosophy and political governance in the Buddhist countries. The monastic community was governed and regulated by a well formulated code of conduct (the Vinaya), which formed an integral part of the Buddhist teaching. The day to day affairs of the sangha were governed by a liberal culture of equalitarian based on the seniority of ordination in the monkhood.50 The monastic body stipulates living in communal harmony, with communal property and a bare minimum of one’s private material possessions. It also has the responsibility towards the wider society of public in general. Buddha mentioned that if any institution or country wished to

36The believe that the democracy existed before 5th century was supported by the fact that there existed the bonded relation in the groups and the decision of the elder were respected and thus the concept of or primitive democracy. 37Anticipatory democracy relies on some degree of discipline and usually market informed anticipation of the future, to guide major decisions. 38It is a form of democracy in which people are randomly selected from the citizenry to either act as representatives, or to make decisions in specific areas of governance (defence, environment, etc.). 39It is a democracy in which a democratic society has to limit some rights and freedom in order to protect the institutions of the democracy. 40It is an organizational method where members of a political party discuss and debate matters of policy and direction and after the decision is made by majority vote, all members are expected to follow that decision in public. 41It comprises the use of electronic communications technologies, such as the Internet in enhancing democratic processes within a or representative democracy. 42A system of representative government or organization such that universal and periodic (by secret ballot) takes place without reference to political parties. 43Interactive democracy is a proposed form of democracy utilizing information technology to allow citizens to propose new policies, “second” proposal and vote on the resulting laws that are refined by Parliament, in a referendum. 44A type of democracy that focuses on the importance of naturing and tolerating difference and dissent in decision making process. 45A democratic system of governance based on consent decision making, circle organization and double linked representation. 46A democratic method of choosing political and administrative officials, advocated by Aristotle, and used in classical Athens and Venice, which is based on the drawing of lots as opposed to election be vote. 47The values of religion play a role in the public arena in a society populated by religious. 48A form of democracy where the workers of a locality elect recallable representatives into organs of power called soviets (council). The local soviets elect the members of religional soviets who go on to elect higher soviet. 49Deepening democracy is the democracy that looks beyond the election. 50The Buddha’s own son when ordained as a monk took his place in the monastic community according to seniority. The Brahmajala Discourse No 3 which enumerates some 62 types of ‘ and philosophies’ (Walshe 1987). Laksiri Jayasuriya: Buddhism, Politics, and Statecraft. 11 maintain its independence, it should strengthen its more democratic forms of governance.51

In Buddhism, within the monastic community, a practice of debating and discussion amongst equals was recognised. Buddha mentioned that the truth needed to be discovered by a process of rational inquiry untrammelled by faith or tradition.52 He asked the disputants to adopt a dispassionate and critical attitude, employing logic and reason in resolving religious and philosophical disputes. Therefore, Buddhism adopted the logical and rationale form of governance a ‘deliberative democracy’, which was participatory and accommodating differences of opinion and even dissent without imposing majoritarian decision making principles. In juridical history, personal rights like the right to vote53, , thought, conscience and personal occupied a higher status in the hierarchy of values than property rights.

Equality Equality of all living beings is essentials of Dharma. Equality 54 is one of the supporting values of a Constitution. Buddha persuaded Suneet:

“…the caste and creed find no place in the path of Sambodhi. Just as rivers lose their identity afterfalling into the sea, all are equal in our doctrine and there cannot be discrimination against them.”

Buddha said:

“I preach the Law equally… On my path, all are considered equal”55.

The justice system adopted for the community of monks began with the premise that everyone is equal before the law. Buddhist teachings regard every individual as equal and personally responsible for all the volitional acts, which he commits. Buddha reiterated in Dharmasangiti Sutra as:

“The Law is equal for all beings. For low or middle or high the law cares nothing. So I must make my thought like the Law. The Law has no regard for the pleasant. Impartial is the Law…The Law does not seek refuge. The refuge of all the world is the Law…The Law has no preferences. Without preference is the Law. So I must make my thought like the Law.”56

51Mishra (2004), in his succinct and readable account of this episode, draws pointed attention to an inherent conservatism in governance (e.g., paying heed to custom along-side other more liberal features such as participatory decision making. This indicates the functional and pragmatic nature of governance. International Journal of Buddhist Thought & Culture. 52Refer the Kalama Sutta or the Charter of Free Inquiry (Bhikku Soma 1963) 53The Buddhist concept of “Tsa Trampa” was synonymous to the modern concept of election. Historical records show that not only clay tablets were used for voting, but also sticks were used for voting by putting them in a ballot box. The counting and the declaration of the results of such voting were done and displayed before the public for transparency and fairness. 54Freedom and equality mean different things to different thinkers. For example, leftist thinkers emphasize equality, while rightist thinkers favor freedom. Nietzsche, who likes and does not value equality, is a philosopher to the extreme right. In fact, Nietzsche thought that democratic equality was an impediment to human excellence because it builds “herd morality” that puts people down and promises less than what they deserve. In order for human excellence to develop freely, says Nietzsche, there should not be any equality constraint on people: a noble heart should not be put down in order to make it equal to a base heart, people should be allowed to compete freely for power and, naturally, noble people will win the competition and become rulers of human society. 55bka’-‘gyursutra, zhapa, page 240 verso. 56World Scripture: Comparative Anthology of Sacred Texts, Volume 1991, Part 2. 12

Rule of Law Buddha asked his followers to treat the Dhamma (doctrine of righteousness) and Vinaya57 (the Constitution and the code of laws) as their teacher when Buddha would not be there. According to the doctrine of righteousness, it is said that one may sometimes escape social sanction or punishment, but the ethical basis nevertheless results in punishment in this life or the next. In a Buddhist democracy, the rule of law requires not only consistency in the expression of the law but also in its application. Good law conforms to moral righteousness. According to Buddhism, laws must be in accord with moral and ethical values,58 which encompass cardinal, spiritual, cultural, ethical (normative, positive, descriptive and meta-ethics) legal, moral and normative values. These values are reinforced by Buddha in:

“Silasamannata - harmonious moral conduct: maintaining a level of conduct that meets community standards; adhering to community rules, not making oneself an object of distrust in the eyes of the community; refraining from conduct which would be detrimental to the community; contributing to a homogenous and equal respect for the community laws and compliance therein”.

Epistemologically, rule of law is borrowed from German Jurisprudence - a “legal state”, “state of law”, “state of justice”, “state of rights” or “state based on justice and integrity”.The Rule of Law is necessary to sustain the whole edifice of society by upholding and protecting the citizen and his freedom and encompasses the concept that right may be done to all manner of people according to law. Rule of law scuttles the philosophy of Sophist Calicles, who denounced justice of the weak to neutralize the strength of the strong.

Pope Gelasius (492-496) argued that prelates had legislative authority higher than kingly executive power. Aristotle mentioned of the rule of law and government by consent. Han Feizi, the major figure of the Chinese Fajia (Legalist) school, advocated rule of law as the government that adhered to laws and a strict method of administration.

Dicey’s rule of law has the material rule of law and the formal rule of law. The material rule of law requires the realization of just legal order and formal rule of law requires the state activities to be based on laws that are consistent with the constitution. In his treatise, “Law of the Constitution”, he identified three principles which together establish the rule of law:59

(a) The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (b) Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and

57The Vinaya Laws- Of all the monastic laws, the Vinayalaws are most extensive as well as intricate and reveal the legal aptitude as also the common sense on the part of the Buddhists. They are obviously vivid and run into minutest details, so that even a partial knowledge of them gives us a fair idea of the monastic life of the early Buddhists. They are systematically and scientifically arranged, though their classification may fall short of the modern methods. The principle underlying the classification is the motive and magnitude of the offence. 58 William Blackstone, Law is the embodiment of the moral sentiment of the people. 59A.V Dicey, Introduction to the study of the law of Constitution, Tenth Edition, (2003), page 202-203. 13

(c) The law of the constitution as a consequence of the rights of individuals as defined and enforced by the courts.

The rule of law in Buddhism, Dhammanuvatti enjoins living in conformity with righteous laws and principles, both in personal life and in work is a rule of evidence, everyone is prima facie equal before the law.

It was proclaimed by Guru Rinpoche,“The powerful must know the limit of their power.”60 The rule of law is the recognition of the supremacy of law, elimination of discrimination, due process of law, and judicial review of administrative action. It conforms to the Buddhist philosophy of:

“Upekkha,impartiality, fairness, and understanding that all beings experience good and evil in accordance with the karma they have created; steadfastness in maintaining laws that are righteous”.

Due Process of Law Due process of law is a fundamental feature of the Buddhist legal system. It means adopting those measures authorized by law which ensure, for example, lawful arrests and searches, access to a fair trial and hearing, access to legal remedies and the elimination of unnecessary delays in the court process. It is called “Nati”61 in Pali which formulates the six non-permissive cases of Tagganiya-kamma62 and the twelve cases of a proceeding Sammukha –Vinaya, ‘Proceeding in presence’63. In Buddhism, for the decision and settlement of cases “the proceeding in presence” must be performed:

 For the consciously innocent;  In the case of those who are no longer out of their mind;  On confession of guilt;  By majority of the chapter;  For the obstinate; or  By covering over as with grass.

And a dispute is to be settled in conformity with seven Buddhist principles64such as:

 Sammukhavinaya (proper decorum).  Amudhavinaya(legality).  Amudhavinaya(freedom from duress).  Yadbhuyasikiya(decision through majority).

60Pad ma bka’thang, page. 150 verso. 61It is noted that “The Bhikkhus must be warned, While warning him, he should be reminded of the law, which he has violated. The offender ought to be charged with the particular offence. The offender must be prosecuted by a discreet and able Bhikkhu. The Bhikkhus approve the carrying out of the Tagganiya-kamma against the Bhikkhus by remaining silent. However, if the motion is not approved, the Bhikkhus must object. The process has not been carried out in a full assembly of properly qualified persons, according to law and justice. The process must be carried out in the presence of the litigant parties. The accused person must confess himself guilty. The proceedings must be carried out with justice in the presence and approval of all the Bhikkhus belonging to the particular circuit.” 62A proceeding has to be carried out in a full assembly of qualified persons, according to law, and in the presence of the litigant - when it has been carried out after the accused person has confessed himself guilty. 63 Pekkhetianupekkhetitiyatha so tam atthampekkhatikevapunappunankapekkhatievamkaroti.(SamantaPasadika.) Sammukha-vinaya- patirupakena. The rule of procedure, called Sammukha-vinaya, or ‘Proceeding in Presence,’ is one of the seven modes of settling disputes in the closing chapter of the Patimokkha (`Vinaya Texts,'Vol.i,p.68), and is more fully described in Kullavagga IV, 14,16, and other sections. 64Vinaya Text, Nyapa, page 384. 14

 Tattvasvbhavaisiyah(basis for judicial decision).  Sterna prastarakah(resolution through rebuttal).  Pratijnakarakah(guilty plea).

Justice is sublime and transcendental. Therefore, Buddhist transcendental wisdom is relevant to law, justice, democracy, freedom and rights. Prajna-Paramita intones transcendental wisdom of the right to freedom of speech, thought and conscience. To protect them, Lord Buddha had established judicial process with due process of law, fair trial and rule of law. Lord Buddha exhorted that

“…upholding the Law - Deliberate well and lean not to either side … Not dispense justice in an arbitrary manner clearly ascertain both right and wrong. Wise men … Hear both sides first, then judgment true declare; … a well-weighed verdict65 gives, Of righteous judge the fame for ever lives.”

The stages of the judicial process encompassing Opening Statement, Defence Reply, Rebuttals, Evidence,Witnesses, Independent testimony, Exhibit, Cross Examinations, Judicial investigation, Closing Statement (Nigamanam – mjugduebsduba) and the Judgment (Yadbhuyasikiya –vinayan consensus), are reflected in Buddhism. It ensures discipline in arguments, exhaustiveness of hearing, time of reflection, documentary records and serves as a self-checklist. This system eliminates repetitive arguments, psychological intimidation and delaying tactics. It recognizes both the static and the dynamic impact of information. The process is in pursuit of the truth and facts, which strengthen due process, fair trial and the rule of law. The hearing procedure is a series of logical steps that require chronological sequence, and its implementation translates into results and actions.

In Buddhism, the Tagganiya-Kamma has many legal guarantees as that contained in the Covenant of Civil and Political Rights, such as: (a) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (b) To be tried without undue delay; (c) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. In Buddhism, Legal Council is known as trnastaraka-vinayana;(d) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Witness is smrti-vinayana in Buddhism; and (e) To be cross-examined - (sammukha -vinayana).

Rights The rights enshrined in the Constitution of different countries are broadly classified into civil, political, substantive, social, economic, positive, negative, corrective, distributive, perfect, imperfect rights, etc. In addition to these, there are rights in rem, in personam and property rights. Therefore, we must be conscious of the national

65 Doctrine of Ratio-decidendi. 15 aspirations, as well as the existence of perfect rights, which are recognized and enforced by law ‘ubi jus ibiremedium,’ (where there is right, there is remedy). We must constantly and consistently follow Buddha, who said:

“Look not for refuge to anyone besides yourselves.”

The concepts of rights, freedoms and dignity are ingrained in Buddhism, which hold human life and dignity in the highest regard. The reverence for the various principles of human right has been woven in the tapestry of our society. Human Rights cannot and must not be a monopoly for homo sapiens but that it must be based on compassion extended to all the sentient beings and protection of the five elements.

Right to life Legally, right to life is immutable and to cherish it is pursuit of every living being. Buddha said:

‘Give ear, O mendicants! The Deathless (amrta, eternal life) has been found by me. I will now instruct. I will preach the Dharma.”

That eternal life requires law to sustain it so that strong would be just and weak will be secured through preservation of private right and public justice.Life is precious. Albert Schweitzer said:

“Reverence for life affords me my fundamental principle of morality, namely, that good consists in maintaining, assisting and enhancing life and to destroy, to harm or to hinder life is “evil.”

Freedom Freedom in Buddhism is dri-ma medpar grags pa’i mdo (Vimalakirti Nirdesa Sutra) – when one’s mind is purified, society will also be purified.

Buddhism is based on social reforms and freedom for all. Buddha taught eight freedoms and ten advantages. Buddhist fundamental freedoms are right based, which are eightfold noble path, right vision (Samyagdrsti), right conception (Samyaksamkalpa), right speech (Samyagvac), right conduct (Samyakkarmanta), right livelihood (Samyagajiva), right effort (Samyagvyayama), right mindfulness (samyaksmrti) and right one-pointed contemplation (Samyaksamadhi).The noble laureate Amartya Sen, in his book Development as Freedom points out:

“In Buddhist tradition, great importance is attached to freedom, and the part of the earlier Indian theorizing to which Buddhist thoughts relate has much room for volition and free choice. Nobility of conduct has to be achieved in freedom, and even the ideas of liberation (such as moksha) have this feature.”

Liberty Liberation is not an inherited virtue; it is an acquired power. According to Buddhism, liberty of thought depends on the freedom of mind, liberty of speech on what we could express in words, and liberty of body on all external actions.Buddha had the concept of “natural rights,” rights belonging to a person by nature because he was a human being. He treasured right to life and denounced destruction of it. Right to life

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and liberty are guaranteed fundamental rights in almost all the constitutions and human rights documents.

Fair Trial According to Lord Widgery:

“The principles of natural justice were those fundamental rules, the breach of which will prevent justice from being seen to be done.”

It refers to two important principles namely, (a) audialterampartem; and (b) nemojudex in causasua (no one can be judge in his own cause).

The principle of equality before the law is sometimes regarded as part of the rights to a fair trial. Article 14 of Covenant of Civil and Political rights has the provision of fair trial. The right entitles individual to be recognised as subject and not as object of the law. The right to fair trial includes;

 the right to be heard by a competent, independent and impartial tribunal;  the right to a public hearing;  the right to be heard within a reasonable time;  the right to counsel;  the right to interpretation;  the right to be notified of charges in a timely manner;  the right to adequate time and means for the preparation of a defense;  the right of the accused to defend him or herself, or the right to a counsel chosen by the accused and the right to communicate privately with the counsel;  the right not to incriminate oneself;  the right to appeal at first instance to a higher court;  the prohibition on double jeopardy; and  the prohibition of ex post facto.

These rights were also enunciated by Buddha, when he said:

(1) “Be charged with the particular offence and which is supported with evidence and witnesses; (2) “Be in the presence of a representative; and (3) “Be ordered to remember whether he has or has not committed, brought upon himself a new offence (namely, of obstinacy or prevarication)”.

Further, the fair trial method is clearly depicted in the Seven Practices of Reconciliation (saptadhikarana-samtha):66

(1) The first practice is samukha-vinaya, or face to face sitting. According to this practice, the dispute must be stated before the entire convocation of bhikkhus, with both sides of the conflict present. This is to avoid private conversation about the conflict, which inevitably influences people against one side or the other, creating further discord and tension.

66Seven Practices of Reconciliation (saptadhikarana-samtha) was formulated after four days of discussion by the bhikkhus. It is to be used in settling disputes within the sangha. 17

(2) The second practice is smrti-vinaya, or remembrance. In the convocation, both parties involved try to remember from the beginning everything that led up to the conflict. Details should be presented with as much clarity as possible. Witnesses and evidence should be provided, if available. The community listens quietly and patiently to both sides in order to obtain adequate information to examine the dispute.

(3) The third practice is amudha-vinaya, or Non-stubbornness. The monks in question are expected to resolve the conflict. The community expects both parties to demonstrate their willingness to reach reconciliation. Stubbornness is to be considered negative and counter-productive. In case a party claims that has violated a precept because of ignorance or an unsettled state of mind, without actually intending to violate it, the community should take that into account in order to find a solution that is agreeable to both sides.

(4) The fourth practice is tatsvabhaisya-vinaya, or voluntary confession. Each party is encouraged to admit his own transgressions and shortcomings without having to be prodded by the other party or community. The community should allow each party ample time to confess his failings, no matter how minor they may seem. Admitting one’s own fault begins a process of reconciliation and encourages the other party to do likewise. This leads to the possibility of full reconciliation.

(5) The fifth practice is pratijnakaraka-vinaya, or accepting the verdict. When the verdict is reached, janapticaturthin-karmavacana, it will be read aloud three times. If no one in the community voices disagreement with it, it is considered final. Neither party in dispute has the right to challenge the verdict. They have agreed to place their trust in the community’s decision and carry out whatever verdict the community reaches.

(6) The sixth practice is yadbhuyasikiya-vinaya, or Decision by Consensus. After hearing both sides and being assured of the wholehearted efforts by both sides to reach a settlement, the community reaches a verdict by consensus.

(7) The seventh practice is trnastaraka-vinaya, or Covering Mud with Straw. During the convocation, a venerable elder monk is appointed to represent each side in the conflict. They are high monks who are deeply respected and listened to by others in the sangha. They sit and listen intently, saying little. But when they do speak, their words carry special weight. Their words have the capacity to soothe and heal wounds, to call forth reconciliation and forgiveness, just as straw covers mud, enabling someone to cross it without dirtying his clothes.

ADR Settlement of cases through judicial process did not mean imprisonment within it. Buddha advocated preference to conciliation, arbitration, negotiation and forgiveness to discord and violence. Buddha said:

18

“A special officer called the “arbitrator” (salaka-gahapaka-lit. vote-taker), noted for his impartiality, knowledge of the law and voting procedure was unanimously elected by a formal resolution of the assembly to take charge of the voting. Every attempt was made to secure unanimity in the voting but if a division appeared inevitable, the motion was put to the house and decided by the majority vote (yebhuyyasika). Voting could be by secret ballot (gulhaka), open ballot (vivataka) or by “the whispering method” (sakanna-jappaka). …

Stare decisis Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere (to stand by decisions and not disturb the undisturbed). Similarly, in Buddhism it is mentioned as:

“When a legal question, O Bhikkhus, has been thus settled, if a disputant re-open the question, such re-opening is a Pakittiya. If one who has conveyed his consent complain of the decision, such complaint is a Pakittiya.”67

Reformative The ‘accused’ is presumed to be innocent until proven guilty. The Buddhist law of punishment is based on rehabilitation and reformation, rather than on retribution. The Buddhist belief in Kamma led them to develop a system that avoids inflicting unjustified, useless and illogical penalties. The Buddhist ideology of justice thus serves a pragmatic objective, leading to happiness and welfare for all.

Criminal jurisprudence Anglo-Saxon criminal law originally developed to satisfy the desire for retribution.In the Buddhist Jurisprudence, the offences are classified in (a)three physical acts: taking life, taking what is not given, and sexual misconduct; (b) four verbal acts: lying, sowing discord, harsh words, and worthless chatter; and (c) three mental acts: covetousness, wishing harm on others, and wrong views. Refraining from all evil and cultivating the good is summarized in the form of the Ten Virtues:

(1) Refraining from taking life – pranatighatadvirati. (2) Refraining from taking that which is not given – adattadanadvirati. (3) Refraining from engaging in sexual misconduct – kamamithyacaradvirati. (4) Refraining from lying – mrsavadatprativirati. (5) Refraining from speaking harshly – parusatprativirati. (6) Refraining from slandering – paishunayatcprativirati. (7) Refraining from engaging in worthless chatter-sambhinnapralapatprativirati. (8) Refraining from being covetous – abhidhyayahprativirati. (9) Refraining from being malicious – vyapadatprativirati. (10) Refraining from holding wrong views – mithyadrstiprativirati.

The ten virtuous acts can broadly be divided into three categories of non-virtuous actions to be avoided and they are:

 The three non-virtuous actions of body – trunikayaduscaritani.

67Refer Vinaya Text, Vol. 20 part III, page 54.

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 The four non-virtuous actions of speech – catvavagduscaritani.  The three non-virtuous actions of mind – trinimanoduscaritani.

Criminal justice has two essential pre-conditions of criminal liability that is guilty mind (mensrea) and commission of an act. Buddha has rightly noted:

“All wrongdoing arises because of mind…”

Any act of an individual by itself does not constitute a guilt or crime, unless it is accompanied by a guilty mind. “Actus non facitreum, nisi mens sit rea”. In Buddhism, commission of crime has four stages:

(11) Intention to commit crime or mind (premeditated act) - (Parikalpa) (12) Preparation to commit crime or execution of plan (Prayatna)- (13) Commission of crime (Parinispanna) (14) Remorselessness.

The principle of aggravating and mitigating circumstances is based on sdigpa’iyanlagbzhithat is gZhi, bSam pa, sbyorba and mTharthug.

The Buddhist procedural laws are comprehensive and it includes: (a) They ought to be warned and when they have been warned, they ought to be reminded if they offend the Rule in the Patimokkha. It is similar to Miranda warning; (b) After that, they ought to be charged with the (particular) offence. It is similar to Part III section14(3) of the International Covenant on Civil and Political Rights. They have to be informed promptly and in detail in a language, which he understands of the nature and cause of the charge against him; (c) When they have been charged with the offence, some discreet and able Bhikkhu ought to lay the matter before the Samgha, saying, “Let the venerable Samgha hear me… If the time is fit for the Samgha (to do so) let the Samgha carry out the Tagganiya-Kamma against the Bhikkhus”; and (d) the accused may confess it and then deny, or make counter-charges.

Similar to the classification of an offence depending upon the degree of crime under the modern criminal jurisprudence, even under Buddhism the crime have been graded under different level of degrees as follows:68

(a) The gravity of culpable homicide is differentiated depending on the primary and secondary intentions: 'Dodchagskyisgonasgsod pa (shakhragphags pa), zheldanggisgonasgsod-pa (sdangbaisemskyigsod pa) and gtimuggisgonasgsod- pa.

(b) Taking that which is not given (Ma byin pa len pa) can be of different kinds: mThus/dbanggis ma byin par len pa (taken by force for example seizure and booty from the war, armed robbery, extortion etc.), Thabskyis ma byin par len pa (taken through cheating), and 'Jab bu/sgyus mabyin par len pa (theft without knowledge of the owner).

68 References: bKa’ ‘gyur, Mani bka’‘bum, and Zhal lung. 20

(c) Log gyemor Mitshangsspyod pa (Sexual Offences): It can be of, Rang gi Bud med (Rape of one's wife), gzhangyi Bud med (Rape or intercourse with other’s wife), Bud med gzhan(Rape of other woman), Choskyisbsrungspa’i Bu med (Rape or having intercourse with person under vows), etc.

(d) Phra ma or discordcan be of mngonphra, lkogphra, ngag ‘khyal, brnabsems,gnodsems and log-lta.

Buddha differentiated the gravity of offence as:

“This is not a most grave offence.” Whatsoever quarrel, strife, controversy, difference of opinion, contradiction, opposition, cantankerousness, or contention there may be on such a matter, this is called a legal question arising out of dispute.”

Chastisement of the offences are clarified by Buddha as:

“The six are work for word the same as in the last section, reading `censure 'for` dispute.' `And which are the three causes of wrong-doing that give rise to legal questions of censure? … There are six origins of offence that give rise to legal questions of offence. There is an offence that originates in deed, but not in word nor in thought. There is an offence that originates in word, but not in deed nor in thought.”

In the Buddhist law code,offences are classified under seven categories in a descending order viz. Parajika, Sanghadisesa, Aniyata, Nissaggiya-Pacittiya, Pacittiya, Patidesaniya, and Sekhiya. From the legal point of view, Parajika is the gravest offence, Sekhiya the lightest one. There are also two kinds of offences which come under Thullaccaya and Dukkata which were a later addition. Thullaccaya as the analysis will show, is weaker in jurisdiction than Sanghadisesa and Dukkata even less than Pacittiya.

The offences are characterised into Nissaya-kama, Dukkata offence, (Pabbagga, Tagganiya-kamma, Tassa-papiyyasika-kamma), the five classes of offences (the paragika, samghadisesa, pakittiya, patidesaniyaand dukkata offences), the seven classes (the paragika, samghadisesa, thullakkaya, pakittiya, patidesaniya, dukkata, dubbasita offences.) etc.

“The five groups of offences are subjects of legal questions of offences, and the seven groups of offences are subjects of legal questions of offence. This is what is called a legal question arising out of offence.`And among these, what is a legal question of business? Whatsoever is to the Samgha a matter which ought to be done, an obligation, a matter for which leave ought to be formally asked, the proposal of a resolution, the proceeding by nattidutiya-kamma, or by natti-katuttha-kamma, that is called a legal question of business.”

Buddhist law has the modern concept of Aggravating circumstances – Actusreus (Intentional - Intention - Sampaganamusavadassahoti), Premeditated commission of Offence, Instigating/aiding and participation and remorselessness. Mitigating

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circumstances - Defense of insanity – “These are the three cases, O Bhikkhus, in which the grant of the dispensation for those who are no longer insane is valid”.

Concerning onus propundi – burden of proof Buddha retrained:

‘Legal questions of dispute. Right. Wrong. Undetermined.` A legal question arising out of dispute may be right, and it may be wrong, and it may be undetermined. Of these, which is the legal question arising out of dispute which is right? Whatsoever quarrel, strife, contention, difference of opinion, contradiction, opposition, cantankerousness, or contention there may be in such a discussion is called a legal question arising out of dispute that is right. If, O Bhikkhus, whilst the case is being enquired into by those Bhikkhus, pointless speeches are brought forth, and the sense of any single utterance is not clear, I enjoin upon you, O Bhikkhus, to settle the case by referring it (to a jury or commission). I enjoin upon you, O Bhikkhus, to appoint on the jury a Bhikkhu possessed of these ten qualities.’

Medical jurisprudence `Whatsoever kinds of medicine are meet for the use of sick Bhikkhus, -that is to say, ghee, butter, oil, honey, and molasses,-when such are received they must be used within a period of seven days during which they may be stored up. Whosoever goes beyond that limit shall be dealt with according to law.' Further, he rebuked them, and having delivered a religious discourse, said to the Bhikkhus : No surgical operation is to be performed within a distance of two inches round the anus, and a clyster is not to be used. Whosoever does so, is guilty of a thullakkaya offence.'

Legislative intent We have already seen that Buddhism does not favour a command theory of the law of Jane Austin. It opposes the Hindu traditionof law based on the deterrent and retributive theories of punishment - the “science of punishment” (danda-niti69). The legislative intent were reformative and it was based upon mischief making rule as K. N. Jayatilleke said:

“These were a utilitarian and mischief making pragmatic motive behind the legislation. Besides, the rules are meant to serve the interests of the Community as a whole, while making things easy for those whose behavior is good and serving as a deterrent to others. The legislation is also inspired by public opinion and seeks to promote public confidence in the institution, whose life is said to be prolonged by the legislation concerned. It is also said to serve the discipline, which is considered a good in itself.”

Administration of justice Buddha’s dictum contains cardinal principles of natural justice, judicial temperance and code of conduct were modern as the Mahavastu recorded:

“When a dispute arises he should pay equal attention to both parties to it, and hear the arguments of each and decide according to what is right. He should

69(dandamdharmamvidurbudhah)” 22

not act out of favouritism, hatred, fear or folly. He should hear the arguments of each side and act according to what is right”.

Courts Law is a system of rules usually enforced through a set of institutions, which is to provide an objective set of rules for governing conduct and maintaining order in a society.

Judge(sutta-dhara) Buddha said:

“These are the qualifications always ascribed to one who rightly fills any judicial offence, and are called the four Agatis. They are the especial attributes of a good king sitting as judge, and are mentioned elsewhere (Samghadisesa XIII; Mahavagga VIII, 5,2; VIII, 6.I, 2) of other officials of the order with duties similar to those in the text.

Buddha even appointed a woman as a judge according to Dr. B.B. Singh who said:

“…the Buddha had entrusted Visakha, a lay-woman of repute, the responsible task of judicial investigation into a disputed matter and also to give her judgment. Though Visakha was an exceptional personality elevating the women in the public life to the extent that they could act as judges…”70

Obedience of the law Obedience of the law either because it is the law (Hobbes) or because it is or it reflects to some extent at least the divine will () or again because it is right to do so (natural law theorists).Buddha said:

`Continue, Brethren, in the practice of Right Conduct, adhering to the Rules of the Order; continue enclosed by the restraint of the Rules of the Order, devoted to uprightness in life; train yourselves according to the Precepts, taking them upon you in the sense of the danger in the least offence.”

Acquittal “They in turn investigated matters and if he was not a thief they released him but if they suspected that he was a thief they made him over to the justices (sutta-dhara) … they in turn to a panel of eight judges (attha-kulika) … they in turn to the president, who investigated the case and if he thought that he was not a thief, released him but if he was convinced that he was a thief called for the book of precedents (paveni- potthaka).

Interpretation We see that the Buddhist ethical theory is teleological in so far as its conceptions of right and wrong are goal-determined by the notions of the SummumBonum and the good of mankind. At the same time Buddhist ethics has also been stated from a deontological standpoint, where men in society, including monks and nuns, are said to have certain duties to perform by virtue of the stations in life they occupy, although

70Buddhism and the Women Uplift in India. 23 the fundamental obligation of all should be to seek finally to attain Nirvana for it is only then that one’s obligations are over (kata-karaniya). Man’s social duties are to be performed not merely out of a sense of duty but as far as possible out of a spirit of service (gaga), love (metta) and understanding (panna), the opposite of greed, hatred and ignorance.

Amendment Laws should be as far as possible just and enduring for its normative, procedural and institutional values including institutional responsibility and accountability. Therefore, Aristotle warned:

“Even the most minor changes to basic laws and constitutions must be opposed because over time the small changes will add up to a complete transformation.”

Nonetheless, no law lasts forever. This is in consonance with the Buddhist philosophy of impermanence. However, the laws must endure through fluctuating fortunes. Therefore, Mipham Rinpoche cautioned:

“If the laws are amended repeatedly, respect and obedience will diminish”.71

Lord Denning said that laws should liberate and enslave, which echoes the wisdom of Buddha, when tells Ananda:

“If the Sangha so desires, it may abolish the minor rules of the Community after my death”.

Conclusion The human urge for better and greater lives, from the Greek’s conception of universal law, the partial scepticism of the Sophists, the epochs of Cynicism, Rationality, Humanism, Renaissance, Enlightenment (Age of Reason), Empiricisms, Romanticismand Postmodernism to modern era were reactions, counter-actions and often revolutionary so that individual freedom and harmonious society will not perish and that the sovereignty of the nationbe secured and protected. Philosophies and spiritualism expressed through constitutions and anchored on the various schools of thought such as teleology, deontology, consequentialism and realism act as self- correction and self-imposed restraint. Buddha embraced all them and he was the first social reformer to liberate humanity and empower people to wrench themselves from the accumulated sins of the past and shackles of ignorance. Buddha did not believe in original sin. According him, humans are not doomed to continue in that plight. We changethe course of history and redeem its glory. Angulimala is a shining spiritual example for repentance and embracing changewithout the ghost of past misdeeds.

Laws of Buddha served many centuries. However, in the Buddhist world, they were segregated and relegated to spiritualism. It is time for desegregation and demystifying the illuminating and treasure of wisdom of law. Law is an integral part of daily life and justice is the promise for humanity. Buddhist laws are relevant as we exhaust other alternatives. Therefore, times are propitious. Let us listen to the voice of peace

71Mipham Rinpoche, rajanitishastra, page 22. 24 and whisper of law and justice that Buddha speaks through his Arhats and Tripitika for Dhamma holds society together – Dharma evahato, dharma raksatiraksatiand tames the savage nature of humans.Let us build, improve and work together to unfurl the Buddhist Constitution, Buddhist Procedural and Substantive laws and humane Penal Code to complement and supplement the legal systems that we painfully built. This Conference can take this historic task to build permanent peace and great human beings. We are united by the common zeal for peace and unity, closer together through science and technology and build enlightened laws to secure happiness, security and peace.

Trashi Deleg

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