Journal of Asian Studies (Preprint, Uncorrected Proof), 2024
In re cent years, thou sands of Bud dhist mo nas tics have marched in antiregime pro tests across... more In re cent years, thou sands of Bud dhist mo nas tics have marched in antiregime pro tests across South and Southeast Asia. Among the larg est and most in u en tial nonstate or ga ni za tions in the re gion, mo nas tic com mu ni ties ap pear to be pow er ful agents for po lit i cal change. Yet, like sim i lar move ments over the last half-cen tu ry, re cent mo nas tic pro tests did not pro duce broader po lit i cal re sis tance among the monk hood, nor did they lead to sub stan tive po lit i cal change. What ex plains this? Why has an ti gov ern ment ac tiv ism among Bud dhist monks been less du ra ble or impactful than other types of mo nas tic ac tiv ism, such as the va ri e ties of chau vin is tic na tion al ism that have risen to prom i nence in re cent years? This ar ticle draws on three case stud ies-Myanmar, Thailand, and Sri Lanka-to of fer one an swer: sangha cap ture, the stra te gic use of law, bu reau cra cy, pa tron age, and co ercion by governing elites to in duce com pli ance among mo nas tics while also muf ing and mar gin al iz ing would-be crit ics. KEYWORDS Bud dhism, de moc ra cy, pol i tics, Southeast Asia, law
Legal pluralism and critical social analysis, 2022
Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pl... more Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pluralism. Yet such arguments are not only advanced by academics, nor are they value-free descriptions of law. Notions of legal unity and multiplicity may also be deployed strategically by the legal actors that scholars study in order to advance their own interests, or criticize others. This article considers this fact, along with its methodological consequences, by highlighting conceits of unity and multiplicity as they operate within Buddhist monastic law in Sri Lanka. Drawing on Buddhist legal texts in Sri Lanka's main vernacular language of Sinhala as well as the Theravāda Buddhist liturgical language of Pāli, this article illuminates competing theories of legal monism and pluralism operating within traditions of Theravāda Buddhist monastic law. In so doing, it explores the complex politics-of averring or critiquing the self-presentation of legal authoritiesthat necessarily accompanies the study of religious law and other forms of non-state law.
Abstract In recent years, international campaigns to promote religious freedom have come under su... more Abstract In recent years, international campaigns to promote religious freedom have come under sustained scholarly scrutiny. At the core of much of this scrutiny are concerns about a pernicious misfit between legal categories and local realities. Recent scholarship suggests that international advocacy campaigns often rely on narrow and partisan understandings of religion and religious freedom and, in turn, marginalize or ignore local practices of worship, asceticism, textual engagement and moral self-fashioning. However, in Asia, as in most parts of the world, international religious freedom advocacy campaigns do not enter a blank space of lived religion. Rather, they participate in a broader ‘economy’ of organisations and advocacy campaigns designed to promote, protect or liberate particular forms of religion. The politics of religious freedom in Asia is not, then, simply an encounter between translocal categories and local religiosities. It also involves competing domestic campaigns to redeem and reform particular types of religiosity. To make this point, this article considers one important religious freedom campaign from Sri Lanka in 2004 and examines how that campaign participated in and responded to an existing economy of what Elizabeth Shakman Hurd calls ‘expert religion.’
*Previous Commenting Session cancelled by accident; restarting it here*
Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a detailed portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merge, interact, and co-evolve. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, the rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience. Eds. : Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation. Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
Although “rule of law” is often regarded as a solution for religious conflict, this article analy... more Although “rule of law” is often regarded as a solution for religious conflict, this article analyzes the role of legal processes and institutions in hardening boundaries and sharpening antagonisms among religious communities. Using case studies from Sri Lanka, India, Malaysia, and Pakistan, we highlight four specific mechanisms through which legal procedures, structures, and instruments can further polarize already existing religious conflicts. These mechanisms include the procedural requirements and choreography of litigation (Sri Lanka), the strategic use of legal language and court judgments by political and socioreligious groups (India), the activities of partisan activists who mobilize around litigation (Malaysia), and the exploitation of “public order” laws in contexts framed by antagonism targeting religious minorities (Pakistan).
This Article examines rules of procedure and process that structure the Buddhist legal system in ... more This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call "secondary rules," which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist "rules about rules" not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law--one of the oldest and most widespread systems of nonstate law--for the broader field of comparative legal studies, from which it has been largely absent.
This article urges scholars to look beyond the Vinaya Piṭaka when thinking about the regulation o... more This article urges scholars to look beyond the Vinaya Piṭaka when thinking about the regulation of Buddhist monastic life. It makes this case by examining an understudied genre of vernacular legal texts that has influenced the regulation of monks in Sri Lanka for more than a millennium. Monastic constitutions, or katikāvatas, affirm the Vinaya’s authority in principle, while functioning in practice as stand-alone administrative codes. Promulgated by kings and monastic leaders, these constitutions aim to bring unity, discipline, and organization to particular communities of monks by consolidating and updating monastic legal principles “in accordance with the times.” Despite their historical and contemporary importance, monastic constitutions have not been studied comprehensively beyond the eighteenth century. This article fills that gap, charting transformations in katikāvatas from the late 1700s to the early 1900s, a period that saw the end of Laṅkan monarchy and the spread of British colonial control. Following a review of existing scholarship, this article demonstrates that during the nineteenth century a new type of monastic constitution gained prominence, which I call group katikāvatas. Through analyzing group katikāvatas, this article not only provides new insights into the practical adaptation of monastic law in Sri Lankan history, it also calls attention to the importance of Buddhist law-making more generally as a strategic activity undertaken by monastic collectives and their patrons in order to enhance and protect their reputation, independence, and material interests in changing social and political contexts. URL: https://www.journals.uchicago.edu/doi/10.1086/713588
Drawing on textual and ethnographic research conducted over the last five years, this article ana... more Drawing on textual and ethnographic research conducted over the last five years, this article analyses an important genre of judicial practice in South and Southeast Asia that has been almost entirely ignored by socio-legal scholars: Buddhist systems of judging. Using the judicial system of one monastic group in contemporary Sri Lanka as a case study, it argues that Buddhist judging requires more than just the internalisation of moral principles, as is often assumed. According to Buddhist (monastic) principles of judging, legal procedures—similar to those used in state-legal settings—are equally essential. These procedures govern everything from making legal complaints, to the structuring of trials, to determining jurisdiction and many other topics. By examining Buddhist judicial systems, this article not only casts new light on the pluri-legal landscape of Asia, it also offers new reflections on the intersection of religion-based and state-based systems of law in the contemporary world.
A forthcoming chapter (2020) examining the impact of Covid-19 on religious life in Asia, with a s... more A forthcoming chapter (2020) examining the impact of Covid-19 on religious life in Asia, with a special focus on Buddhism in Sri Lanka. This is a draft. Final version will be linked when available.
Journal of the American Academy of Religions, 2019
Public disputes over the legal regulation of religion are often portrayed as naturally occurring ... more Public disputes over the legal regulation of religion are often portrayed as naturally occurring conflicts between competing normative systems: religious law and state law. What, then, explains why some normative frictions become the focus of major controversies, whereas others do not? This article tries to answer this question, while examining a genre of religious law that has not received much attention by scholars of law and religion, Buddhist law in Sri Lanka. Drawing on monastic disciplinary texts, legal archives, and representations of law taken from online and popular media, this article analyzes how and why a minor, routine friction between Buddhist ecclesiastical rules and Sri Lankan statutory regulations—a dispute over whether a monk may wear his robes in prison—came to be portrayed as a grand contest between two incompatible regimes: “Buddhist law” and “state law.”
This commentary article proposes that scholars might think about the intersections of Buddhism a... more This commentary article proposes that scholars might think about the intersections of Buddhism and constitutional practice by way of three questions, which can also be asked about religion and constitutional law in other jurisdictions: (1) How is the relationship between religious law and public law conceived?; (2) How is the relationship between religious authority and state-legal authority arranged?; and (3) How is the relationship between Buddhism and other religions imagined?
Contrary to popular stereotypes, Buddhist monks do not live in separate, cloistered worlds sealed... more Contrary to popular stereotypes, Buddhist monks do not live in separate, cloistered worlds sealed off from domestic and international lawmaking, courts and politics. Buddhist monks (like most people) live in a complex situation of legal pluralism. They act as agents and subjects in multiple regulatory regimes: from monastic tribunals, to constitutional law, to transnational legal bodies. This article, which introduces a special issue of Buddhism, Law & Society, identifies several foci of inquiry that may orient current and future scholarship on the legal pluralism of Buddhist monastic life in contemporary Southern Asia. These include: the prevalence of " hybrid " laws that merge together monastic and state authority; the participation of monks in lawmaking and adjudication; the significance of monasticism as a legal status; the reproduction of legal authority through ordination and lineage; the multiplicity of monastic disciplinary 'texts' beyond the Vinaya Piṭaka; and the transformations (and endurance) of legal pluralism over time.
How do contemporary legal systems affect the interpretation and application of religious laws suc... more How do contemporary legal systems affect the interpretation and application of religious laws such as Buddhist monastic law? What happens when Buddhists turn to public litigation to dispute the meanings of the Vinaya Piṭaka, the monastic disciplinary code? This article answers these questions by looking closely at recent court cases from Sri Lanka. It argues against the influential assumption that contemporary legal regimes stabilize and narrow interpretations of religious law. It illustrates instead how certain domains of modern legality, especially constitutional law, create new opportunities, spaces and incentives for destabilizing and pluralizing the interpretation of religious norms. Drawing on original legal submissions, draft bills, interviews and other sources from the " expanded archive " of law, I explain why the use of constitutional law has broadened and deepened debates about Buddhist monastic law, its core rules, key texts and regulatory role in the modern world.
In recent years, international campaigns to promote religious freedom have come under sustained ... more In recent years, international campaigns to promote religious freedom have come under sustained scholarly scrutiny. At the core of much of this scrutiny are concerns about a pernicious misfit between legal categories and local realities. Recent scholarship suggests that international advocacy campaigns often rely on narrow and partisan understandings of religion and religious freedom and, in turn, marginalize or ignore local practices of worship, asceticism, textual engagement and moral self-fashioning. However, in Asia, as in most parts of the world, international religious freedom advocacy campaigns do not enter a blank space of lived religion. Rather, they participate in a broader ‘economy’ of organisations and advocacy campaigns designed to promote, protect or liberate particular forms of religion. The politics of religious freedom in Asia is not, then, simply an encounter between translocal categories and local religiosities. It also involves competing domestic campaigns to redeem and reform particular types of religiosity. To make this point, this article considers one important religious freedom campaign from Sri Lanka in 2004 and examines how that campaign participated in and responded to an existing economy of what Elizabeth Shakman Hurd calls ‘expert religion.’
From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, t... more From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, the study of religion and constitutional law has gradually shifted its attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. While this shift has produced a rich literature on Islam and constitutional law, it has almost entirely neglected Buddhism. This neglect presents a significant problem for scholars of comparative constitutional law because, as this article contends, some of the most important legal projects in South and Southeast Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the saṅgha. By looking at the premodern roots of Buddhist constitutionalism and examining its distinctive formations in Sri Lanka and Thailand, this article explains how and why this particular form of religious constitutionalism has come to influence politics and law in contemporary South and Southeast Asia.
This chapter examines the idea of toleration in Theravada Buddhism. In it, I investigate when, wh... more This chapter examines the idea of toleration in Theravada Buddhism. In it, I investigate when, where, and with what effects Buddhists in Southern Asia have made the deliberate choice to affirm the idea that followers of the Buddha ought not to interfere with the conduct or beliefs of others, including others whom they disapprove of or dislike. Such an investigation does not yield what one might call the Buddhist view of toleration. Rather, this chapter shows multiple ways in which this impulse has played a role in Buddhist life. Some forms of Buddhist toleration conform to notions of toleration celebrated in European philosophical liberalism; some do not. The Buddhist impulse to toleration has been embodied as much in programs of practice as in philosophical concepts. Therefore, when looking at the Buddhist world, I read the presence of toleration—a concept that, as many scholars point out, is taken from and understood in reference to European (particularly post-Westphalian) philosophical and political thought—as embodied not only in structures of thinking and reasoning but in patterns of behavior, including the administration of Buddhist polities, the writing and rewriting of myths, and the observance and reconfiguration of ritual.
A large proportion of mainstream media coverage of Sri Lanka and Myanmar has grouped Bodu Bala Sē... more A large proportion of mainstream media coverage of Sri Lanka and Myanmar has grouped Bodu Bala Sēnā (BBS), the 969 Movement and the Organization for the Protection of Race and Religion (MaBaTha in its Burmese acronym) as a single phenomenon. Referred to variously as Buddhist terrorism, Buddhist militarism or Buddhist nationalism, these groups appear in popular media as separate iterations of a shared type. However, beneath the many ostensible symmetries—particularly commonalities at the level of group representation—subtle but significant differences also exist in the groups’ political and religious positionalities and their dispositions towards the promises and perils of development and globalization. Not only are these points of specificity important for purposes of descriptive precision, they are essential for understanding the various stimuli, formations and directions of Buddhist activism in South and Southeast Asia today.
This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal... more This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal study of contemporary Buddhism. We identify lacunae in the current literature and call for further work on four themes: the relations between monastic legal practice and state law; the formations of Buddhist constitutionalism; Buddhist legal activism and Buddhist-interest litigation; and Buddhist moral critiques of law. We argue that this agenda is important for advancing Buddhist studies and for the comparative study of law and legal institutions.
This article considers the effects of special constitutional prerogatives for Buddhism in Sri Lan... more This article considers the effects of special constitutional prerogatives for Buddhism in Sri Lanka. It argues that, contrary to the expectations of both supporters and opponents, these clauses have not done what they claim to do: they have not enhanced the dominance of Buddhism on the island. Through a detailed analysis of recent legal action, this article demonstrates how special constitutional protections for Buddhism, in fact, aggravate and authorize splits among Buddhists. In making this argument, this article points towards a larger thesis: constitutional provisions designed to ensure the inter-religious dominance of one tradition may, under certain circumstances, actually amplify intra-religious conflicts over the nature, boundaries, and doctrines of that tradition. This work therefore encourages scholars to rethink the assumed polarity between secular-liberal constitutions and religiously preferential ones. Although opposed in their expressive dimensions, religiously neutral and religiously preferential constitutions may in fact generate similar church-state conundrums. The case of Sri Lanka suggests that, in the same way as perfect religious neutrality is impossible, so too is perfect religious supremacy.
Journal of Asian Studies (Preprint, Uncorrected Proof), 2024
In re cent years, thou sands of Bud dhist mo nas tics have marched in antiregime pro tests across... more In re cent years, thou sands of Bud dhist mo nas tics have marched in antiregime pro tests across South and Southeast Asia. Among the larg est and most in u en tial nonstate or ga ni za tions in the re gion, mo nas tic com mu ni ties ap pear to be pow er ful agents for po lit i cal change. Yet, like sim i lar move ments over the last half-cen tu ry, re cent mo nas tic pro tests did not pro duce broader po lit i cal re sis tance among the monk hood, nor did they lead to sub stan tive po lit i cal change. What ex plains this? Why has an ti gov ern ment ac tiv ism among Bud dhist monks been less du ra ble or impactful than other types of mo nas tic ac tiv ism, such as the va ri e ties of chau vin is tic na tion al ism that have risen to prom i nence in re cent years? This ar ticle draws on three case stud ies-Myanmar, Thailand, and Sri Lanka-to of fer one an swer: sangha cap ture, the stra te gic use of law, bu reau cra cy, pa tron age, and co ercion by governing elites to in duce com pli ance among mo nas tics while also muf ing and mar gin al iz ing would-be crit ics. KEYWORDS Bud dhism, de moc ra cy, pol i tics, Southeast Asia, law
Legal pluralism and critical social analysis, 2022
Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pl... more Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pluralism. Yet such arguments are not only advanced by academics, nor are they value-free descriptions of law. Notions of legal unity and multiplicity may also be deployed strategically by the legal actors that scholars study in order to advance their own interests, or criticize others. This article considers this fact, along with its methodological consequences, by highlighting conceits of unity and multiplicity as they operate within Buddhist monastic law in Sri Lanka. Drawing on Buddhist legal texts in Sri Lanka's main vernacular language of Sinhala as well as the Theravāda Buddhist liturgical language of Pāli, this article illuminates competing theories of legal monism and pluralism operating within traditions of Theravāda Buddhist monastic law. In so doing, it explores the complex politics-of averring or critiquing the self-presentation of legal authoritiesthat necessarily accompanies the study of religious law and other forms of non-state law.
Abstract In recent years, international campaigns to promote religious freedom have come under su... more Abstract In recent years, international campaigns to promote religious freedom have come under sustained scholarly scrutiny. At the core of much of this scrutiny are concerns about a pernicious misfit between legal categories and local realities. Recent scholarship suggests that international advocacy campaigns often rely on narrow and partisan understandings of religion and religious freedom and, in turn, marginalize or ignore local practices of worship, asceticism, textual engagement and moral self-fashioning. However, in Asia, as in most parts of the world, international religious freedom advocacy campaigns do not enter a blank space of lived religion. Rather, they participate in a broader ‘economy’ of organisations and advocacy campaigns designed to promote, protect or liberate particular forms of religion. The politics of religious freedom in Asia is not, then, simply an encounter between translocal categories and local religiosities. It also involves competing domestic campaigns to redeem and reform particular types of religiosity. To make this point, this article considers one important religious freedom campaign from Sri Lanka in 2004 and examines how that campaign participated in and responded to an existing economy of what Elizabeth Shakman Hurd calls ‘expert religion.’
*Previous Commenting Session cancelled by accident; restarting it here*
Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a detailed portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merge, interact, and co-evolve. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, the rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience. Eds. : Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation. Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
Although “rule of law” is often regarded as a solution for religious conflict, this article analy... more Although “rule of law” is often regarded as a solution for religious conflict, this article analyzes the role of legal processes and institutions in hardening boundaries and sharpening antagonisms among religious communities. Using case studies from Sri Lanka, India, Malaysia, and Pakistan, we highlight four specific mechanisms through which legal procedures, structures, and instruments can further polarize already existing religious conflicts. These mechanisms include the procedural requirements and choreography of litigation (Sri Lanka), the strategic use of legal language and court judgments by political and socioreligious groups (India), the activities of partisan activists who mobilize around litigation (Malaysia), and the exploitation of “public order” laws in contexts framed by antagonism targeting religious minorities (Pakistan).
This Article examines rules of procedure and process that structure the Buddhist legal system in ... more This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call "secondary rules," which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist "rules about rules" not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law--one of the oldest and most widespread systems of nonstate law--for the broader field of comparative legal studies, from which it has been largely absent.
This article urges scholars to look beyond the Vinaya Piṭaka when thinking about the regulation o... more This article urges scholars to look beyond the Vinaya Piṭaka when thinking about the regulation of Buddhist monastic life. It makes this case by examining an understudied genre of vernacular legal texts that has influenced the regulation of monks in Sri Lanka for more than a millennium. Monastic constitutions, or katikāvatas, affirm the Vinaya’s authority in principle, while functioning in practice as stand-alone administrative codes. Promulgated by kings and monastic leaders, these constitutions aim to bring unity, discipline, and organization to particular communities of monks by consolidating and updating monastic legal principles “in accordance with the times.” Despite their historical and contemporary importance, monastic constitutions have not been studied comprehensively beyond the eighteenth century. This article fills that gap, charting transformations in katikāvatas from the late 1700s to the early 1900s, a period that saw the end of Laṅkan monarchy and the spread of British colonial control. Following a review of existing scholarship, this article demonstrates that during the nineteenth century a new type of monastic constitution gained prominence, which I call group katikāvatas. Through analyzing group katikāvatas, this article not only provides new insights into the practical adaptation of monastic law in Sri Lankan history, it also calls attention to the importance of Buddhist law-making more generally as a strategic activity undertaken by monastic collectives and their patrons in order to enhance and protect their reputation, independence, and material interests in changing social and political contexts. URL: https://www.journals.uchicago.edu/doi/10.1086/713588
Drawing on textual and ethnographic research conducted over the last five years, this article ana... more Drawing on textual and ethnographic research conducted over the last five years, this article analyses an important genre of judicial practice in South and Southeast Asia that has been almost entirely ignored by socio-legal scholars: Buddhist systems of judging. Using the judicial system of one monastic group in contemporary Sri Lanka as a case study, it argues that Buddhist judging requires more than just the internalisation of moral principles, as is often assumed. According to Buddhist (monastic) principles of judging, legal procedures—similar to those used in state-legal settings—are equally essential. These procedures govern everything from making legal complaints, to the structuring of trials, to determining jurisdiction and many other topics. By examining Buddhist judicial systems, this article not only casts new light on the pluri-legal landscape of Asia, it also offers new reflections on the intersection of religion-based and state-based systems of law in the contemporary world.
A forthcoming chapter (2020) examining the impact of Covid-19 on religious life in Asia, with a s... more A forthcoming chapter (2020) examining the impact of Covid-19 on religious life in Asia, with a special focus on Buddhism in Sri Lanka. This is a draft. Final version will be linked when available.
Journal of the American Academy of Religions, 2019
Public disputes over the legal regulation of religion are often portrayed as naturally occurring ... more Public disputes over the legal regulation of religion are often portrayed as naturally occurring conflicts between competing normative systems: religious law and state law. What, then, explains why some normative frictions become the focus of major controversies, whereas others do not? This article tries to answer this question, while examining a genre of religious law that has not received much attention by scholars of law and religion, Buddhist law in Sri Lanka. Drawing on monastic disciplinary texts, legal archives, and representations of law taken from online and popular media, this article analyzes how and why a minor, routine friction between Buddhist ecclesiastical rules and Sri Lankan statutory regulations—a dispute over whether a monk may wear his robes in prison—came to be portrayed as a grand contest between two incompatible regimes: “Buddhist law” and “state law.”
This commentary article proposes that scholars might think about the intersections of Buddhism a... more This commentary article proposes that scholars might think about the intersections of Buddhism and constitutional practice by way of three questions, which can also be asked about religion and constitutional law in other jurisdictions: (1) How is the relationship between religious law and public law conceived?; (2) How is the relationship between religious authority and state-legal authority arranged?; and (3) How is the relationship between Buddhism and other religions imagined?
Contrary to popular stereotypes, Buddhist monks do not live in separate, cloistered worlds sealed... more Contrary to popular stereotypes, Buddhist monks do not live in separate, cloistered worlds sealed off from domestic and international lawmaking, courts and politics. Buddhist monks (like most people) live in a complex situation of legal pluralism. They act as agents and subjects in multiple regulatory regimes: from monastic tribunals, to constitutional law, to transnational legal bodies. This article, which introduces a special issue of Buddhism, Law & Society, identifies several foci of inquiry that may orient current and future scholarship on the legal pluralism of Buddhist monastic life in contemporary Southern Asia. These include: the prevalence of " hybrid " laws that merge together monastic and state authority; the participation of monks in lawmaking and adjudication; the significance of monasticism as a legal status; the reproduction of legal authority through ordination and lineage; the multiplicity of monastic disciplinary 'texts' beyond the Vinaya Piṭaka; and the transformations (and endurance) of legal pluralism over time.
How do contemporary legal systems affect the interpretation and application of religious laws suc... more How do contemporary legal systems affect the interpretation and application of religious laws such as Buddhist monastic law? What happens when Buddhists turn to public litigation to dispute the meanings of the Vinaya Piṭaka, the monastic disciplinary code? This article answers these questions by looking closely at recent court cases from Sri Lanka. It argues against the influential assumption that contemporary legal regimes stabilize and narrow interpretations of religious law. It illustrates instead how certain domains of modern legality, especially constitutional law, create new opportunities, spaces and incentives for destabilizing and pluralizing the interpretation of religious norms. Drawing on original legal submissions, draft bills, interviews and other sources from the " expanded archive " of law, I explain why the use of constitutional law has broadened and deepened debates about Buddhist monastic law, its core rules, key texts and regulatory role in the modern world.
In recent years, international campaigns to promote religious freedom have come under sustained ... more In recent years, international campaigns to promote religious freedom have come under sustained scholarly scrutiny. At the core of much of this scrutiny are concerns about a pernicious misfit between legal categories and local realities. Recent scholarship suggests that international advocacy campaigns often rely on narrow and partisan understandings of religion and religious freedom and, in turn, marginalize or ignore local practices of worship, asceticism, textual engagement and moral self-fashioning. However, in Asia, as in most parts of the world, international religious freedom advocacy campaigns do not enter a blank space of lived religion. Rather, they participate in a broader ‘economy’ of organisations and advocacy campaigns designed to promote, protect or liberate particular forms of religion. The politics of religious freedom in Asia is not, then, simply an encounter between translocal categories and local religiosities. It also involves competing domestic campaigns to redeem and reform particular types of religiosity. To make this point, this article considers one important religious freedom campaign from Sri Lanka in 2004 and examines how that campaign participated in and responded to an existing economy of what Elizabeth Shakman Hurd calls ‘expert religion.’
From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, t... more From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, the study of religion and constitutional law has gradually shifted its attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. While this shift has produced a rich literature on Islam and constitutional law, it has almost entirely neglected Buddhism. This neglect presents a significant problem for scholars of comparative constitutional law because, as this article contends, some of the most important legal projects in South and Southeast Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the saṅgha. By looking at the premodern roots of Buddhist constitutionalism and examining its distinctive formations in Sri Lanka and Thailand, this article explains how and why this particular form of religious constitutionalism has come to influence politics and law in contemporary South and Southeast Asia.
This chapter examines the idea of toleration in Theravada Buddhism. In it, I investigate when, wh... more This chapter examines the idea of toleration in Theravada Buddhism. In it, I investigate when, where, and with what effects Buddhists in Southern Asia have made the deliberate choice to affirm the idea that followers of the Buddha ought not to interfere with the conduct or beliefs of others, including others whom they disapprove of or dislike. Such an investigation does not yield what one might call the Buddhist view of toleration. Rather, this chapter shows multiple ways in which this impulse has played a role in Buddhist life. Some forms of Buddhist toleration conform to notions of toleration celebrated in European philosophical liberalism; some do not. The Buddhist impulse to toleration has been embodied as much in programs of practice as in philosophical concepts. Therefore, when looking at the Buddhist world, I read the presence of toleration—a concept that, as many scholars point out, is taken from and understood in reference to European (particularly post-Westphalian) philosophical and political thought—as embodied not only in structures of thinking and reasoning but in patterns of behavior, including the administration of Buddhist polities, the writing and rewriting of myths, and the observance and reconfiguration of ritual.
A large proportion of mainstream media coverage of Sri Lanka and Myanmar has grouped Bodu Bala Sē... more A large proportion of mainstream media coverage of Sri Lanka and Myanmar has grouped Bodu Bala Sēnā (BBS), the 969 Movement and the Organization for the Protection of Race and Religion (MaBaTha in its Burmese acronym) as a single phenomenon. Referred to variously as Buddhist terrorism, Buddhist militarism or Buddhist nationalism, these groups appear in popular media as separate iterations of a shared type. However, beneath the many ostensible symmetries—particularly commonalities at the level of group representation—subtle but significant differences also exist in the groups’ political and religious positionalities and their dispositions towards the promises and perils of development and globalization. Not only are these points of specificity important for purposes of descriptive precision, they are essential for understanding the various stimuli, formations and directions of Buddhist activism in South and Southeast Asia today.
This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal... more This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal study of contemporary Buddhism. We identify lacunae in the current literature and call for further work on four themes: the relations between monastic legal practice and state law; the formations of Buddhist constitutionalism; Buddhist legal activism and Buddhist-interest litigation; and Buddhist moral critiques of law. We argue that this agenda is important for advancing Buddhist studies and for the comparative study of law and legal institutions.
This article considers the effects of special constitutional prerogatives for Buddhism in Sri Lan... more This article considers the effects of special constitutional prerogatives for Buddhism in Sri Lanka. It argues that, contrary to the expectations of both supporters and opponents, these clauses have not done what they claim to do: they have not enhanced the dominance of Buddhism on the island. Through a detailed analysis of recent legal action, this article demonstrates how special constitutional protections for Buddhism, in fact, aggravate and authorize splits among Buddhists. In making this argument, this article points towards a larger thesis: constitutional provisions designed to ensure the inter-religious dominance of one tradition may, under certain circumstances, actually amplify intra-religious conflicts over the nature, boundaries, and doctrines of that tradition. This work therefore encourages scholars to rethink the assumed polarity between secular-liberal constitutions and religiously preferential ones. Although opposed in their expressive dimensions, religiously neutral and religiously preferential constitutions may in fact generate similar church-state conundrums. The case of Sri Lanka suggests that, in the same way as perfect religious neutrality is impossible, so too is perfect religious supremacy.
Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entangl... more Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a detailed portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merge, interact, and co-evolve. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, the rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation.
Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
(1) Nick Cheesman in Law and Society Review.
(2) Melissa Crouch in Asian Journal of Law and Soci... more (1) Nick Cheesman in Law and Society Review.
(2) Melissa Crouch in Asian Journal of Law and Society
(3) Tamir Moustafa in the Law and Politics Book Review
(4) Jaclyn Neo in International Journal of Constitutional Law
(5) Tyler A. Lehrer in Asian Ethnology
In this online review essay I argue that religion poses special challenges as a category of law; ... more In this online review essay I argue that religion poses special challenges as a category of law; and these challenges arise not simply because religion is difficult, if not impossible, to define nor because legal agents deploy the category in strategic, prejudicial, or inconsistent ways. Religion is a uniquely thorny category of law, I will insist, because the use of that category—in legislatures, courtrooms, and mediascapes—evokes (at least) five distinct discursive contradictions, opposing ways of representing and understanding those things that are supposed to be protected or regulated by law: contradictions of communality, authority, acquisition, imagination, and independence.
The current political jostling in Egypt between the Muslim Brotherhood and the various individua... more The current political jostling in Egypt between the Muslim Brotherhood and the various individuals and organizations grouped under the title “Salafis” should give pause to those who view the “Arab autumn” primarily as a contest between Islamists and secularists. In Egypt, as in many parts of the world, the most important choices that voters make about the future of religion and the state are not choices about whether states should be religious or secular. Rather, they are questions about what institutional and legal features a “religious” state should have.
The recent electoral results in Egypt show that the question of whether Egypt should be an Islamic state is not the only—or even the main—question being wrestled with by politicians and voters. The more important issues being considered in the present moment are how the state should protect, promote and/or regulate Islam: Should Egypt’s new constitution declare the country an “Islamic state” or classify Islam as the “state religion”? Should Shariah be a source of law or the source of law? Should Egypt’s new government seek to reform society according to “Islamic values”? And, if so, what would those values include? Who should have the final authority to interpret Islam in Egypt, government agents, religious clerics or some hybrid institution such as a state-appointed religious council?
This concern with how to organize a religious state (rather than whether to do so) is not just a feature of law-making in Muslim-majority countries. This is also true of the Buddhist-majority countries of Southern Asia, such as Sri Lanka, Thailand and Cambodia. In post-independence Sri Lanka, for example, the most politically salient questions concerning religion have not been how to implement a 'secular ' (lokayatta) political order, but how government should best support the island’s Buddhist monks. On one side of the argument are Buddhists who insist that in order to preserve the “purity” and coherence of Sri Lanka’s many different Buddhist monastic fraternities, the government must have the power to standardize monks’ education, to implement and enforce monastic codes of conduct, and to audit how monks use the extensive property and assets of Buddhist temples. On the other side are Buddhists who argue that government agents should not be given the authority to intervene in the religious lives of clerics (who, after all, are their spiritual superiors); rather the state should recognize the monks as “embodiments” of Buddhist teaching and direct to them special institutional and financial privileges without any regulatory ‘strings.’ Thus, as in Egypt, Sri Lankan debates over the relationship between Buddhism and the state are not debates over how to separate the two, but debates over how to (correctly) link them.
This is a Facebook group dedicated to sharing news, questions and events relating to the academic... more This is a Facebook group dedicated to sharing news, questions and events relating to the academic study of Buddhism and law. Please join if you're a scholar who is interested in these issues.
Routledge Handbook to Freedom of Religion and Belief, 2020
This is a draft of a chapter from a forthcoming edited collection. In it, I argue that one can id... more This is a draft of a chapter from a forthcoming edited collection. In it, I argue that one can identify multiple 'Buddhist perspectives' on religious freedom. I also argue that those perspectives, taken seriously, help call into question the presumed consistency, stability and universality of religious freedom as a philosophical and legal project.
Asian Journal of Law and Society (FORTHCOMING), 2020
Long-form review of Christian Lammerts' Buddhist Law in Burma: A History Dhammasattha Texts and J... more Long-form review of Christian Lammerts' Buddhist Law in Burma: A History Dhammasattha Texts and Jurisprudence, 1250–1850. Reviews the book with a general socio-legal readership in mind. It also examines the book's importance for current scholarship about law and religion.
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Papers by Ben Schonthal
*Previous Commenting Session cancelled by accident; restarting it here*
Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a detailed portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merge, interact, and co-evolve. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, the rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience.
Eds. :
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation.
Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
See: https://global.oup.com/academic/product/covid-19-in-asia-9780197553831?cc=nz&lang=en&#
dispositions towards the promises and perils of development and globalization. Not only are these points of specificity important for purposes of descriptive precision, they are essential for understanding the various stimuli, formations
and directions of Buddhist activism in South and Southeast Asia today.
*Previous Commenting Session cancelled by accident; restarting it here*
Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a detailed portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merge, interact, and co-evolve. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, the rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience.
Eds. :
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation.
Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
See: https://global.oup.com/academic/product/covid-19-in-asia-9780197553831?cc=nz&lang=en&#
dispositions towards the promises and perils of development and globalization. Not only are these points of specificity important for purposes of descriptive precision, they are essential for understanding the various stimuli, formations
and directions of Buddhist activism in South and Southeast Asia today.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago and a Research Professor at the American Bar Foundation.
Benjamin Schonthal is Professor of Buddhist Studies and Head of the Religion Programme at the University of Otago, where he also co-directs the Otago Centre for Law and Society.
(2) Melissa Crouch in Asian Journal of Law and Society
(3) Tamir Moustafa in the Law and Politics Book Review
(4) Jaclyn Neo in International Journal of Constitutional Law
(5) Tyler A. Lehrer in Asian Ethnology
The recent electoral results in Egypt show that the question of whether Egypt should be an Islamic state is not the only—or even the main—question being wrestled with by politicians and voters. The more important issues being considered in the present moment are how the state should protect, promote and/or regulate Islam: Should Egypt’s new constitution declare the country an “Islamic state” or classify Islam as the “state religion”? Should Shariah be a source of law or the source of law? Should Egypt’s new government seek to reform society according to “Islamic values”? And, if so, what would those values include? Who should have the final authority to interpret Islam in Egypt, government agents, religious clerics or some hybrid institution such as a state-appointed religious council?
This concern with how to organize a religious state (rather than whether to do so) is not just a feature of law-making in Muslim-majority countries. This is also true of the Buddhist-majority countries of Southern Asia, such as Sri Lanka, Thailand and Cambodia. In post-independence Sri Lanka, for example, the most politically salient questions concerning religion have not been how to implement a 'secular ' (lokayatta) political order, but how government should best support the island’s Buddhist monks. On one side of the argument are Buddhists who insist that in order to preserve the “purity” and coherence of Sri Lanka’s many different Buddhist monastic fraternities, the government must have the power to standardize monks’ education, to implement and enforce monastic codes of conduct, and to audit how monks use the extensive property and assets of Buddhist temples. On the other side are Buddhists who argue that government agents should not be given the authority to intervene in the religious lives of clerics (who, after all, are their spiritual superiors); rather the state should recognize the monks as “embodiments” of Buddhist teaching and direct to them special institutional and financial privileges without any regulatory ‘strings.’ Thus, as in Egypt, Sri Lankan debates over the relationship between Buddhism and the state are not debates over how to separate the two, but debates over how to (correctly) link them.