BUDDHIST CONCEPT OF LAW

I

When Gautama, the man, overcame his attachment to the self, he was no longer controlled by greed, hatred and delusion. He thus saw the Dhamma, which could be interpreted as the law, or the law of nature in its reality of Suchness or Thusness. Hence he is known as the Buddha, the Awakened One. Without selfishness, one can be wise, and understand the law of nature as it really is. With this wisdom or understanding, one is automatically compassionate, i.e. one wants to serve all sentient beings to the best of one's ability.

According to tradition, Gautama became the Buddha, the Compassionate One, during a full moon in the month of May. He reflected for a long time whether anybody else would be able to see the truth as it really is. However, he felt that the five ascetics who used to follow him in his search for the truth could also be enlightened. So he went to preach to them during the full moon in July. This first sermon became known as the turning of the Wheel of Law -Dhamma Cakka.

The first of the five ascetics who grasped the essence of the sermon is known as the one with the ‘Eyes of the Law’-Dhamma Cakkhu, though eventually all of them acquired the eyes of the law. Ultimately they too became awakened and freed from greed, hatred and delusion. Like the Buddha, they all became arahats, the Worthy Ones.

According to the Buddhadhamma, attaining the truth goes hand in hand with examining our minds; that is, critically reflecting on our prejudices, ignorance, and self-attachment. We are driven by desire or arrogance to prove our stories, assumptions, and hypotheses. In contrast, the dhamma calls for self-reflexivity. In the absence of arrogance we will not resort to demonizing our opponents to prove the virtues of our ways. Moreover, we will also be mindful that the decisions we make are often motivated by intertwined emotions, such as love, hatred, fear, or delusion. Reaching this state, we will be able to liberate our minds from the prison of self-attachment and thus attain wisdom: the ability to see reality as it is.

In Buddhism, the truth is perceived at two levels:

1) the Ultimate Truth, which is the law of nature, and

2) the Conventional Truth, as generally agreed upon by society.

There are five aspects of natural law, namely:

• Physical law or physical inorganic order concerning natural phenomena, including the climate and seasons;

• Biological laws or physical organic order, concerning natural inheritance or natural evolution;

• Psychic law, concerning mental and/or spiritual development;

• Karmic law (moral laws) concerning action and its result; and

• General law of cause and effect, concerning causality and conditionality.

Each aspect of natural law is difficult to perceive unless one is free of selfishness, or at least without biased views. Natural law or orderliness of nature may be expressed as follows:

• All conditioned states are impermanent;

• All conditioned states are subject to oppression, conflict or suffering, i.e. the sense of lack;

• All states are not self- “Egolessness”.

The above are known as the Three Common Characteristics, which is the universal law in Buddhism. Without understanding this law with our heart as well as our head, we shall be blinded by selfishness. Hence we have to use skillful means to transform greed into generosity, hatred into compassion and delusion into wisdom or understanding, in order to overcome suffering or the sense of lack.

This, one can do by following the Psychic Law, concerning mental and spiritual development, which is the heart of Buddhist meditation.

Active attention is essential for any internal transformation work. Only through attention do we step out of reactive processes that run our lives. With the cultivation of attention, we have the primary tool we need to move into presence. Our original mind is obscured by many layers of conditioning, including patterns of perception, emotional reactivity, family history, and social and cultural conditioning. All these layers have to be peeled, if we are to open ourselves to the mystery of being.

Once we understand the mystery of being, then we can understand the law of Karma, volitional action, and its results, which can be divided into 12 categories, according to the Theravada School of Buddhism. (The Tibetan tradition has a more elaborate explanation of the law of Kamma, e.g. collective volitional action of society or the nation-state.)

With a real understanding of natural law, one should cultivate more compassion rather than stressing punishment; and focus more on education, rather than imprisonment – not to mention corporal or capital punishment.

So far, we have dealt with various aspects of Dhamma or the law of nature, but to put it simply, the ultimate law is interconnection or ‘Suchness’, also known as the law of dependent origination or conditioned arising. From Ignorance arises Kamma Formation, followed by Consciousness, Mind & Matter, Six Sense Bases, Contact, Feeling, Craving, Clinging, Becoming, Birth, and Decay & Death – also sorrow, lamentation, pain, grief, and despair. Thus arises this whole mass of suffering.

This is known as the law of forward order. The Buddha also taught the law of backward order through the total falling away and cessation of Ignorance. Thus ceases Kamma Formations, etc. Through the cessation of Birth, ceases Decay & Death, and also sorrow, lamentation, pain, grief and despair. Thus comes about the cessation of this whole mass of suffering.

II

Conventional truth, or the law of the state or of society, in Buddhism, is termed Vinaya. In broad terms, the real Vinaya includes all laws, orders and regulations, which are harmonious with the law of nature. It is essential therefore to understand the law of nature and set up a social norm, or law of the land, accordingly.

It is important to understand that whether laws concerned the community of monks or secular life, they were not associated with divine revelation or origin. Buddhism does not believe in creation, or in a creator god; Buddhist laws are man-made, and based on pragmatic experience and a sense of ethics.

Accordingly, in a Buddhist democracy, laws are based on ethics. The king or the ruler is bound to guard the Norm or Dhamma. He protects the Norm by practicing it and urging his followers to practice it. Based on ethical principles, laws are formulated to address pragmatic situations. One may see this in the origin of all Buddhist laws.

Violation of the law by the king himself would have a serious impact on the entire ethical foundation. In this case the king or ruler loses the confidence of the people. The ruler practices the Dhamma and urges the people to follow it. Should he violate the Norm whilst urging the people to follow him, his subjects would soon lose confidence in him and his rule.

The Buddha, when he delivered his first sermon to the monks at Varanasi (Isipatana), is referred to as setting into motion the supreme Wheel of the Law (Dhamma Cakka). In doing so, the Buddha thus initiated the rule of righteousness. Such a rule of righteousness is meant for the welfare and happiness of all mankind "out of compassion for the world."

It was the Buddha's objective to create a democratic foundation with a constitution and a code of law for Buddhist monks. When the Buddha was once asked as to why the religious dispensation of certain Buddhas lasted long, and others did not - he replied that the Buddhas whose religious dispensation did not endure for a long time did not enact a code of rules or principles. The importance of laws and a constitution for the monks (and flowing from them for any country or people) is implicit in this.

Such a code of law did not come into being all at once. For a considerable length of time the monks who were all arahats (liberated ones) sustained their community life without such laws. The Buddha waited for the correct time to lay down such legislation, which was considered necessary only when the community was mature and developed.

Buddhist laws are democratic in the sense that the reasons for their enactment are transparent. These reasons are given as follows:

• For the welfare of the community
• For the convenience of the community
• In order to curb miscreants
• For the ease of well-behaved monks
• In order to restrain misbehaviour
• In order to check future misbehaviour
• In order that those who have faith may strengthen their faith
• In order that good doctrines may be longlasting
• For the promotion of discipline.

It is seen how these reasons apply to the promulgation of any laws or a constitution for people in a democratic country. Such laws are enacted primarily for the well-being and convenience of the people. Those who transgress the law and contribute to social discomfort would thus be restrained and punished. On the other hand, those who obey the laws and follow an orderly life will find that their faith in life is easy because of the laws.

Future misbehaviour would thus be discouraged by good laws. Those who do not personally have faith in the law would nevertheless develop a respect for it by seeing the law at work. Equally, the confidence of those who believe in the law and the Constitution would be reinforced, thereby guaranteeing a long life for the Constitution. The secure function of the law and discipline - a vital tenet of a Buddhist democracy- would thus be promoted.

There is no doubt that in this obligation, utilitarian as well as pragmatic motives behind legislation in a Buddhist country come to light. Laws are not meant for the benefit of a selected élite, but for all the community. The laws make life easier for those who do not transgress the law.

The laws are prompted by public opinion. The sociological origin of the majority of forfeiture laws becomes evident when one enquires into the nature of the circumstances that engendered them. Sixteen such rules came into being due to criticism of monks by the laity. Eight owe their existence to such criticism made by modest monks; three from nuns; two from Ananda (Buddha's personal attendant), and one from a criticism made by a wanderer.

The law is expected to maintain the Norm. In the case of Vinaya rules, it is the Middle Path. This Path has to be followed to realize the Four Noble Truths and attain Enlightenment. The first step is the observance of the Norm, which links directly with the five mindfulness trainings:

First: Cultivate compassion and protect all forms of life.

Second: Cultivate loving kindness and practice generosity, and respect the property of others.

Third: Cultivate responsibility and learning ways to protect the safety and integrity of individuals, couples, families, and society, respect my commitments and the commitments of others, and prevent sexual misconduct.

Fourth: Always speak the truth, and cultivate loving speech and deep listening in order to bring joy and happiness to others and relieve others of their suffering.

Fifth: Practice mindful eating, drinking, abhor bad influences, and work to transform violence, fear, anger, and confusion in myself and in society by practicing a diet for myself and for society.

The Buddhist democratic law as stated, is based on ethics and mindfulness training. It is this ethical basis which gives the necessary direction to the law. When the law is violated, the consequences disturb the entire living-order. It may result in the offender being punished, but it does not stop there. The automatic process upsets the natural order and may injure all living beings and non-living beings as well as the environment.

This is so because the law is identified with righteousness. One may sometimes escape social sanction or punishment, but the ethical basis nevertheless results in punishment in this life or the next. The disturbance created to the order of life is an irrevocable process; thus a violation of the law damages all natural relationships - man to man, man to other beings, and man to nature.

The law is invested with power because it is based on ethics; it is the Norm that confers this power to the law. The Norm when upheld, protected and followed by the ruler, symbolizes righteousness. The Buddha asked his followers to treat the Dhamma (doctrine of righteousness) and Vinaya (the Constitution and the code of laws) as their teacher when the Buddha would not be there anymore.

In a Buddhist democracy, the rule of law requires not only consistency in the expression of the law, but also consistency in its application. Because there is no relationship to divine origin, the contradictions observed between divine laws and man-made laws are not found in Buddhist laws. Good law undoubtedly conforms to moral righteousness. The Buddhist law reflects our moral experience as seen in the history of their formulation and later modifications.

Buddhist teachings acknowledge that mere legislation will not automatically translate into a healthy social order. Although the legislative framework is itself necessary, more important is the spirit of the law, according to which people should regulate and discipline their lives. Understanding and conforming with the spirit of the law indicates the ethical purpose of the law, and is thus more important than mere obedience to the letter of the law.

A king or ruler of the state should ensure a system of impartial justice. When a case arises, each party has to be listened to carefully, and the arguments considered and evaluated before judgment is given. Partiality, ill-will or fear should not be allowed to colour 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…” In Niti Niganduwa, a treatise on the Kandyan Law of Sri Lanka, a similar statement is observed. It contains a chapter on these four categories of injustice. A Mahayana text says that when a sage monarch rules the world, there is no excess in the application of punishment.

For example, it is said that a judge fails to uphold justice through hatred: 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. Likewise it is said that he will fall into injustice through ignorance if he deprives a rightful owner of his property, or pronounces an innocent man guilty, or fail to convict a guilty person on the basis of some idea that may come into his head without applying legal principles (Yukti Ayukti) to the facts of the case. The judge is exhorted to come to a decision only after carefully considering all relevant facts. A judge who fails to follow these rules is likely to lose prestige and suffer loss of status among his colleagues; while the reputation and standing of a judge who administers the law with impartial justice will be enhanced.

The Buddha is regarded as the embodiment of righteousness. Ultimate sovereignty does not reside in any ruler or a government. It is interesting to observe how in Buddhist political theory, the ruled (people) are made responsible for the quality of the rulers they have chosen. They have the option to elect the particular rulers or not; support them or not support them. When rulers do not follow the path of righteousness, they automatically lose their right to rule and forfeit their sovereign power. Thus, misrule is the result of people choosing the wrong rulers!

The ruler is not above the law or immune to it, and is answerable in law in the manner of an ordinary citizen. The idea that a ruler can do no wrong is alien to Buddhist thinking. This concept again has its origins in a belief in the divine origin of kings. Buddhist teachings regard every individual as equal and personally responsible for all the volitional acts which he commits: “The Law (i.e. Kamma) is equal for all beings. Low or middle or high, the Law cares for nothing. The Law has no preference”. A ruler thus cannot claim special powers or immunity to laws to which other people are subject.

The establishment and the maintenance of human freedoms, dignity and rights are suggested by Buddhist teachings, which emphasize self-reliance, personal effort, endeavour, values and responsibility. The Law gives clear utterance to such human self-reliance, which is highly esteemed in Buddhist teachings.

The rule of righteousness recognizes liberty in its three dimensions, i.e. liberty of thought, liberty of speech and liberty of action. As the human life-process operates through the three doors - mind, speech and body - these three freedoms correspond with the three doors. 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. The ultimate liberty, based on thought, speech and action, should be free from attachment, hatred and foolishness. The justice process safeguards and protects these threefold doors.

The rationale for safeguarding such freedoms by the Buddhist system of justice can be understood by examining the Buddhist objectives of life. Attaining Nirvana or the highest level of freedom, happiness, perfection and knowledge is the ultimate objective; and thus our aim should not be to hinder development in others, but to foster our own development, leading to happiness for all. The laws of righteousness and of justice are there to help, promote and sustain the development of skillful acts, and to deter us from performing unskillful acts. The Buddhist ideology of justice thus serves a pragmatic objective – an open agenda for action leading to happiness and welfare for all.

Principles of justice in Buddhism may be seen in the judicial system. The Buddha utilized it for the community of monks. Buddhist commentators, referring to the seven conditions of welfare, developed insights into the judicial process. The later Buddhist literature belonging to both southern and northern traditions contributed further in this context.

The justice system adopted for the community of monks begins with the premise that everyone is equal before the law. The 'accused' is presumed neither guilty nor innocent until proved so by hard evidence. The judge or judges were selected carefully, considering their character, wisdom, experience and qualities such as impartiality and adherence to the rule of righteousness. The accused was brought before the court, and his willingness to recognize and abide by the court rules was established.

Whenever a complaint was brought, it had to be done without malice, showing compassion to the accused. This illustrates how the impartiality and righteousness expected of the courts won even the confidence of the wrongdoer. An experienced and wise monk (not to be confused with the prosecuting officer) would present the case, outlining its essential background and implications for the law and morality. In it, the historical and sociological perspective was presented to the understanding of the accused. The role of the monk presenting the case was to help the court understand the accused and view the alleged offence in the correct perspective. The accused could examine the evidence and even produce fresh evidence to prove his case.

The Buddhist law of punishment was 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 Law of Kamma placed the responsibility on the judge who, if he is not impartial, would himself suffer from his own actions. The result of this system of justice was that the people had confidence in justice, which they believed was delivered impartially to them.

Buddhist justice could be understood from two examples. One is from the Vinaya, where the individual accused of a ‘crime’ is tried by the community of monks. The second is from the Vajjian Law, the secular law adopted by the Republican Vajjians to deal with crime.

Under monastic law, the ‘accused’ is brought before a court of law and tried. He is formally accused by a monk learned and well-versed in the 'Court Law.’ The judge (or judges) is carefully chosen, and the judicial procedure precisely laid down. Witnesses are summoned and examined. If the court of assembled monks finds him guilty, he is then punished. Punishment is laid down under various categories of which the most serious is expulsion. This happens automatically when a monk indulges in any of the four most serious crimes (i.e. Parajikas). For other crimes, the punishment ranged from probation to rehabilitation.

The accused could appeal, and be heard by the entire community of monks. In all instances, the approach was to recreate the crime-scene, making the accused participate willingly, so that he would realize the social, physical, psychological and spiritual dimensions of his violation of the law, and thus be motivated to take steps not to indulge in such acts in the future. The rehabilitation involves not only the accused, but also the community in which he lives.

The Vajjian secular law and judicial system was so constructed that every opportunity was provided to the accused to prove his innocence. In successive trials from the lowest to the highest, at each instance he is discharged if innocent and tried again in a higher court if found guilty. At each court he is allowed to prove his innocence. This process convinces him that every possible opportunity is given to him and he need not entertain any grouse about it. It is devised so as to make the accused feel that justice has been rendered to him. When judgment is given, traditional law books are consulted and punishment imposed accordingly.

These two examples show how the judicial system in the Buddhist tradition could be practically applied to the judicial system of a Buddhist democratic country. The belief in the possibility of transforming human nature, the need to approach the criminal with mercy and understanding, and the doctrine that officials are morally responsible for the work they do, resulted in a reformatory theory of punishment, only secondarily deterrent. •



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