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Buddhism and/in Comparative Constitutional Law

Dr. Benjamin Schonthal, University of Otago, Dunedin, New Zealand

In recent years, a slow but steady tectonic shift has taken place within the study of religion and constitutional law. It was not so long ago that studying religion and constitutional law meant studying the regulation of religion in secular liberal contexts—generally among a limited set of ‘usual suspect’ Anglophone and/or European cases.[1] Today, things appear to be changing. There is, now, a growing subfield within comparative constitutional law dedicated to examining religiously€ preferential constitutions, especially those outside of the Anglophone world. At the vanguard of this subfield are scholars working on the history and practice of constitutional law in Muslim-majority countries. Thanks to these scholars, the field of comparative constitutional law has a benefited from a corpus of first-rate research into the links between Islam and public law in Egypt, Pakistan, Malaysia, Indonesia, Tunisia, Iran, Iraq and other places.

These advances in the study of Islam and constitutional law, while an enormous boon for scholars, have also thrown into relief the relative poverty of research regarding other types of religiously preferential constitutions. Particularly overlooked in this literature are the constitutional regimes that give special status and recognition to Buddhism.

Despite its reputation as an ascetic religion, unconcerned with worldly power, Buddhism remains deeply entangled with constitutional law throughout Southern Asia. With the exception of Vietnam, the constitutions of all Buddhist-majority states in South and Southeast Asia give Buddhism special status or recognition. In their own ways, the constitutional texts of Myanmar, Thailand, Sri Lanka, Laos, Cambodia and Bhutan affirm the importance of Buddhism as a tradition that deserves special attention, protection or patronage.[2]

Contrary to the expectations of many, modern Buddhism exists in a close and complex relationship with public law. Nevertheless, the links between Buddhism and public law have rarely been a primary object of inquiry for scholars. In fact, a general lack of scholarly emphasis can be said to apply to the study of Buddhism and law in contemporary settings more broadly.[3] As it relates to the disciplines of Buddhist studies and legal studies, the neglect is bipartisan. Scholars of Buddhism have tended to treat sustained inquiries into the intersections of Buddhism and contemporary law as a matter to be handled by political scientists or law scholars. Scholars of comparative law, for their part, have trained their sights on other religious traditions, and have largely overlooked Buddhism, which is often assumed to be politically quiescent and, therefore, an inert entity in regimes of legal regulation. The result is that, with some exceptions,[4] the study of Buddhism and contemporary law has ‘fallen between the chairs’ of academic disciplines and, as a consequence, continues to be enormously neglected.[5]

We ought to remedy this neglect. Scholars of law, politics and religion have much to gain by a better understanding of the contemporary intersections of Buddhism and law. In Asia today, Buddhist monks and Buddhist-interest groups play influential roles in the creation and application of law, particularly constitutional law. At the same time, legal actors and institutions have become key sites for debates about the nature and proper practice of Buddhism.

For example, in the tense atmosphere around Thailand’s current constitutional reforms, some of the loudest voices have been those of Buddhist organizations. These organizations demand that the new constitution declare Buddhism the “state religion” of Thailand and insist that Thai legal institutions must do more to protect Buddhism against “impure” beliefs and practices. Moreover, the battle between yellow shirts and red shirts, which has formed the defining context for Thailand’s ongoing constitutional struggles, overlaps closely with disputes about the contours of orthodox Buddhism and, in particular, which monks should be appointed to the powerful position of sangharaja, or ‘king’ of Thailand’s official Buddhist monastic order.[6] Similarly, in Myanmar, Buddhist monks have, for decades, been among the most influential agents of legal and institutional reform.[7] At the same time, Myanmar’s most recent reforms have created new opportunities for activism by Buddhist monastic groups in public, most notably nationalist groups like Ma Ba Tha (the Society for the Preservation and Protection of Race and Religion). Recently, Myanmar’s Buddhist organizations have succeeded in using the country’s parliament and courts to pass and enforce laws designed to protect Buddhism from a variety of perceived threats.[8]

To the examples of Thailand and Myanmar, one could add other examples from Sri Lanka, Cambodia, Bhutan and elsewhere. In fact, it is not unreasonable to say that, in Asia today, a full and complete understanding of public law demands some understanding of Buddhism and Buddhist organizations; and, conversely, a full understanding of Buddhism demands some understanding of the institutions and practices of public law.

Volume 3(1) of the Asian Journal of Law and Society explores these intersections of Buddhism and law in contemporary Asia. The volume is, in many ways preliminary: it seeks to call attention to the importance and insufficiency of studies on Buddhism and contemporary law, while at the same time taking a few small steps towards advancing this important sub-field.

In an introduction to the volume, Tom Ginsburg and I trace briefly the history and topography of socio-legal studies of Buddhism. We also identify four specific areas – and specific clusters of questions – that, we believe, merit further research: the intersections of monastic law and state law; the formations of Buddhist constitutionalism; the dynamics of Buddhist-interest litigation and Buddhist legal activism; and the nature of Buddhist moral critiques of state law. Following this introduction, the volume then brings together five new research articles written by scholars of law, political science and religion. These articles examine the links between Buddhism and law in multiple settings (Sri Lanka, Japan, Thailand and Myanmar) while also considering multiple forms of law (Buddhist monastic and customary law, statute and constitutional law, regional and international law). This volume is not the first collection of scholarship to examine Buddhism and law. However, it is the first journal volume dedicated specifically to the socio-legal study of Buddhism in the contemporary world. We hope that it will provide both a partial roadmap for and an encouragement to other scholars working on this topic.

Suggested Citation: Benjamin Schonthal, Buddhism and/in Comparative Constitutional Law, Int’l J. Const. L. Blog, June 3, 2016, at: http://www.iconnectblog.com/2016/06/buddhism-andin-comparative-constitutional-law


[1] Hirschl, Ran (2014) Comparative Matters. New York: Oxford University Press, 213-4.

[2] Schonthal, Benjamin “Securing the Sasana Through Law: Buddhist Constitutionalism and Buddhist-interest Litigation in Sri Lanka,” Modern Asian Studies (2016): first view http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=10208869&fileId=S0026749X15000426

[3] As it relates to the study of Buddhism and law prior to the nineteenth century, there is also insufficient research. However, one might argue that the degree of that insufficiency is comparatively lesser thanks to important textual and epigraphically research conducted by scholars of Buddhism, Asian history and Indology. For a partial list of these studies, please see: Benjamin Schonthal & Tom Ginsburg. 2016. “Setting An Agenda for the Socio-Legal Study of Contemporary Buddhism,” Asian Journal of Law and Society, 3(1): 1-15, fn. 6.

[4] These include, but are not limited to: Engel, David, and Jaruwan Engel (2010) Tort, Custom and Karma: Globalization and Legal Consciousness in Thailand. Palo Alto, CA: Stanford University Press; Whitecross, Richard W. (2014) “Buddhism and Constitutions in Bhutan.” In Buddhism and Law: An Introduction. Edited by Rebecca Redwood French and Mark Nathan. New York, NY: Cambridge; Harding, Andrew (2007) “Buddhism, Human Rights and Constitutional Reform in Thailand.” 2 Asian Journal of Comparative Law 1-9. Ishii, Yoneo (1986) Sangha, State, and Society, Honolulu: University of Hawaii Press; Schonthal, Benjamin (2016) Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka. New York: Cambridge University Press.

[5] Rebecca French, a trained lawyer and anthropologist of Tibetan Buddhism, has referred to the entire study of Buddhism and law as a “missing discipline,” a remarkable and rare hole in scholarship “that sits right in front of us but has never been looked at.” French, Rebecca R. (2004) “The Case of the Missing Discipline: Finding Buddhist Legal Studies.” 52 Buff. L. Rev. 679.

[6] http://www.bangkokpost.com/archive/push-to-make-buddhism-state-religion/741924. Engel, David M. 2016. “Blood Curse and Belonging in Thailand: Law, Buddhism, and Legal Consciousness,” Asian Journal of Law and Society, 3(01): 71-83

[7] Schober, J. 2011. Modern Buddhist Conjunctures in Myanmar. Honolulu: University of Hawai’i Press,

[8] Crouch, Melissa. 2016. “Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar,” Asian Journal of Law and Society, 3(01): 85-104; Schonthal, Benjamin & Matthew J. Walton. 2016. “The (New) Buddhist Nationalisms? Symmetries and Specificities in Sri Lanka and Myanmar,” Contemporary Buddhism, 17(1): 1-35.

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Published on June 3, 2016
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