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Published online by Cambridge University Press: 24 April 2015
Soon after Gotama the Buddha Sakyamuni obtained his Enlightenment in 531 B.C. he established the basis of a self-governing Religious Order (Sangha). The rules of this community (Vinaya) were framed and promulgated by the Buddha himself.
It is the general belief that the Buddha was concerned solely with establishing a moral and spiritual teaching and that he was not law-minded. For instance, T. W. Rhys Davids maintains that:
“… in the strict sense of the word there is no Buddhist law; there is only an influence exercised by Buddhist ethics on changes that have taken place in customs. No Buddhist authority, whether local or central, whether lay or clerical, has ever enacted or promulgated any law.”
Contrary to this view, I have argued that the Vinaya was a monastic code which in its entirety amounted to a legal system. In this article, I wish to consider the Buddha's relationship to law and law-making by examining the nature of his authority and how his recommendations were elevated into precepts. I shall argue that the Buddha legislated by way of precepts, that he was not a judge, as some scholars contend, and that his precepts rarely took the form of a dialogue in which a question of conduct is posed and a precept is uttered in response (Responsa).
1. Warder, A. K., Indian Buddhism 44 (1970)Google Scholar.
2. There are in existence several recensions of this disciplinary code. However, the Pali canon of the Theravada School is complete and accessible; hence in this article we will refer to this recension. The Pali version was first edited as The Vinaya Pitakum (Oldenburg, H., ed., 1874–1883)Google Scholar [cited hereafter as Vinaya Pitaka] and most recently translated as The Book of Discipline (Horner, I. trans. 1938–1966)Google Scholar [cited hereafter as Book of Discipline]. For a bibliography on Vinaya in Sanskrit, see Yuyama, A, A Systematic Survey of Buddhist Sanskrit Literature (1979)Google Scholar.
3. Law, , 8 in Encyclopaedia of Religion and Ethics, 827 (1908)Google Scholar. Among the few scholars who have concerned themselves with the legal aspect of Vinaya are Dutt, S., Early Buddhist Monachism (1960)Google Scholar; Bhagvat, D., Early Buddhist Jurisprudence (1939)Google Scholar; Dhirasekera, J., Buddhist Monastic Discipline, A Study of Its Origin and Development in Relation to the Sutta and Vinaya Pitaka, (1964)Google Scholar (unpublished Ph.D. thesis); Holt, J., Discipline: The Canonical Buddhism of the Vinaya Pitaka, (1981)Google Scholar; Voyce, M., The Legal Aspect of Early Buddhist Vinaya, (1982) (unpublished Ph.D. thesis, School of Oriental and African Studies, London University)Google Scholar. See also Chanana, , Social Implications of Reason and Authority in Buddhism, 3 Indian Econ. and Soc. Hist. Rev. 292 (1966)CrossRefGoogle Scholar; Chanana, , The Vinaya Pitaka and Ancient Indian Jurisprudence, 44 J. Bihir Research So. 22 (1958)Google Scholar.
4. I argue that the institutionalized system of social control laid down by the Vinaya is a legal system as it contains the three necessary attributes for a legal system. These are that:
1. Law will manifest itself in decisions made by an authority, such as a state leader or chief, who can compel enforcement of the law and who will for the time being remain supreme in his own sphere. Such decisions may find expression through legislation or by judge-made law.
2. Law will define a sanction.
3. Law will develop regular procedures which indicate clearly how disputes are to be processed.
See Voyce, M., The Communal Discipline of the Buddhist Order of Monks: The ‘Sanction’ of the Vinaya Pitaka (forthcoming in 29 Am. J. of Jurisprudence, 1984))CrossRefGoogle Scholar.
5. Supra note 4, attribute 1. On authority in law see Watson, A., The Nature of Law 53 (1977)Google Scholar; Roberts, S., Order and Dispute 137 (1979)Google Scholar.
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9. J. Dhirasekera, supra note 3, at 23.
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11. For literature on Parivrajakas, see Olivelle, P., The Origin and Early Development of Buddhist Monachism 1–32 (1974)Google Scholar; Teskey, L., The Institution of Sannyasa in Indian Religion (1975) (unpublished B. Litt thesis, Oxford)Google Scholar; Dumont, , World Renunciation in Indian Religion, 4 Contributions to Indian Sociology 33 (1960)Google Scholar; Heesterman, Brahmin, Ritual and Renouncer, 8 Wiener Zeitschrift Furt die Kunde Su-und Ostasiens 1 (1964)Google Scholar; Sharma, , Contributions to the History of Brahmanical Asceticism, Poona Orientalist 5 (1939)Google Scholar; Law, , A Short Account of the Wandering Ascetics (Parivrajakas) in India in the Sixth Century B.C. 53 J. of the Bihar Research Soc. 17 (1967)Google Scholar; Law, , Gautama Buddha and Parivrajakas, 29 J. of the Royal Asiatic Soc., Bengal Branch 123 (1925)Google Scholar.
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13. Vinaya Pitaka, supra note 2, at 1.42; Book of Discipline, supra note 2, at 4.55.
14. See Dhirasekera, supra note 3, at 306-308.
15. Sutta, Bhaya-Bherava, Nikaya, Majjhima 1.16, trans, as Further Dialogues of the Buddha, 1.12 (Chalmers, Lord trans., n.d.)Google Scholar.
16. J. Dhirasekera, supra note 3, at 309.
17. See Majjhima Nikaya, supra note 15, at 2.18.
18. Sutta, Dvedha-Vitakka, Nikaya, Majjhima 1.118, trans, as Further Dialogues of the Buddha (Chalmers, Lord trans., n.d.)Google Scholar.
19. Sutta, Mahaparinibbana, Nikaya, Digha 2.101, trans, as Dialogues of the Buddha 2.107 (Davids, T. W. Rhys trans., n.d.)Google Scholar.
20. Sutta, Mahaparinibbana, Nikaya, Digha 2.162 trans, as Dialogues of the Buddha 2.184 (Davids, T. W. Rhys trans., n.d.)Google Scholar.
21. See Vinaya Pitaka, supra note 2, at 3.18; Book of Discipline, supra note 2, at 1.18.
22. J. Dhirasekera, supra note 3, at 193-194.
23. Id. at 193, 307, 313.
24. Nikaya, Majjhima 1.124, trans, as Further Dialogues of the Buddha 1.86 (Chalmers, Lord trans., n.d.)Google Scholar.
25. Digha Nikaya 1.6.
26. Pacittiya 37 (This type of offense requires confession.); Vinaya Pitaka, supra note 2, at 4.85; Book of Discipline, supra note 2, at 2.335. See also Vinaya Pitaka, id. at 2.300, Book of Discipline id. at 5.417.
27. Vinaya Pitaka, supra note 2, at 3.9; Book of Discipline, supra note 2, at 1.18; Majjhima Nikaya 1.445; Samyutta Nikaya 2.224. See also J. Dhirasekera, supra note 3, at 108-113, 193-4.
28. Anguttara-Nikaya 1.230.
29. These offenses involve expulsion.
30. These offenses involve suspension.
31. Samantapasadika 1.213.
32. S. Roberts, supra note 5, at 137.
33. Majjhima Nikaya 3.9; Vinaya Pitaka, supra note 2, at 1.42; Book of Discipline, supra note 2, at 4.55.
34. Nikaya, Majjhima 3.7, trans, as Further Dialogues of the Buddha 2, at p. 159 (Chalmers, Lord trans., n.d.)Google Scholar; also trans. Middle Length Sayings 3.58 (Horner, I. B. trans., n.d.)Google Scholar.
35. The word “Patimokkha” seems to be used in its non-technical sense which is understandable as Ananda is explaining a matter of complex canon law to a Hindu priest (Brahmin).
36. Sutta, Gopaka-Moggallara, Nikaya, Majjhima 3.11, trans, as Further Dialogues of Buddha at p. 160 (Chalmers, Lord trans., n.d.)Google Scholar.
37. J. Holt, supra note 3, at 52-53.
38. Yang, M. C., A Chinese Village 134 (1973)Google Scholar.
39. Vine, Le, The Internationalisation of Political Values in Stateless Societies, 19:2, Human Organisation 58 (1960–1961)Google Scholar.
40. Anguttara Nikaya 3.132.
41. Digha Nikaya 2.76. See Sharma, J. P., Republics in Ancient India, (1968)Google Scholar.
42. Dutt, S., Buddhist Monks and Monasteries of India 87 (1962)Google Scholar.
43. I do not consider dramatic formalities, which are typical of the litigation system of law, necessary for a judge. See Osmond, Maynard V., 3 W.L.R. 711 (1976)Google Scholar. I acknowledge and accept the phenomenon known as “judicial legislation” as it is now realized that when a judge makes a decision new law is being created. See Frank, J., Law and The Modern Mind 35–45 (1970)Google Scholar.
44. Derrett, J., Religion Law and the State In India 188 (1968)Google Scholar.
45. M. Voyce, supra note 3, at 206-11.
46. Id. at 212-214.
47. Id. at 311-319.
48. M. Voyce, The Control of the King Over the Temples in Ancient India (to be published in Archiv Orientalni).
49. Salmond, J., Jurisprudence 122 (1966)Google Scholar.
50. Voyce, M., Aspects of the Nature of the Buddha's Responsa (1977) (M.A. thesis, School of Oriental and African Studies, London University)Google Scholar.
51. For literature on responsum as regards the Islamic tradition, see Fatwa, in 2 The Encyclopaedia of Islam 866 (1965)Google Scholar; for the Jewish responsa, see 14 Encyclopaedia Judaica 83–95 (1971)Google Scholar; for the Roman traditions Schiller, A. A., Roman Law, Mechanisms of Development (1978)CrossRefGoogle Scholar; and for a modern Indian equivalent see Derrett, J. D. M., An Original Vyavastha in the Field of Vyavahara: Scholars at Work at the Beginning of the Last Century, in 2 Essays in Classical and Modern Hindu Law 277–299 (1978)Google Scholar.
52. Stein, P., Regulae Iuris 103 (1966)Google Scholar.
53. Aristotle observed that well-drawn legislation should define all the points it possibly can and leave as few as possible to the decision of the judges. He gives several reasons for this. First, it is easier to find one man who is a competent legislator than a large number of competent judges and, secondly, that legislators can give long consideration to their enactments while judges have to act with expediency and may be influenced by immediate interests. See, Rhetorica in the Basic Works of Aristotle 1326 (Mckeon, R. trans., 1941)Google Scholar.
54. Lycurgus observed that where laws are unwritten it is more appropriate that those trained in the proper discipline can determine what will best suit the occasion. See Plutarch, , 3 Moralia 359 (Babbitt, F. C. trans., 1964)Google Scholar.
55. Gonda, J., Change and Continuity in Indian Religion at 284–314 (1965)Google Scholar; J. Dhirasekera, supra note 3, at 46-95; D. N. Bhagvat, supra note 3, at 48-53.
56. See Tissametteyyasutta, Sutta Nipata, 814-823, trans, in 10 Sacred Books of the East 151–152 (Muller, M. trans., n.d.)Google Scholar.
57. Conze, E., Buddhism, its Essence and Development 59 (1952)Google Scholar.
58. Tissametteyyasutta, supra note 56.
59. Digha Nikaya 1.6.
60. Vinaya Pitaka, supra note 2, at 3.18; Book of Discipline, supra note 2, at 1.33.
61. Vinaya Pitaka, supra note 2, at 3.19; Book of Discipline, supra note 2, at 1.34.
62. Digha Nikaya 1.63. For the Jaina attitude towards sexuality, see 2 Akaranga Sutta 15Google Scholar; Iv.3 Sutras, Jaina, 22 Sacred Books of the East, Vol. 22, 207 (Jacobi, H. trans.)Google Scholar. For Brahminical texts, see also Vasistha X.28; Manu Vi.49, and Gautama 3.11-12.
63. Samantapasadika 213.
64. See supra note 62.
65. It is important to note that the king could interfere in the Sangha to enforce its laws. See the so-called Schism edicts of Asoka found in Hultzsch, E., Corpus Inscriptionum Indicarum at 159–161 (1925)Google Scholar. See Voyce, M., The King's Enforcement of the Vinaya Pitaka: The Purification of the Sangha under Asoka to be published in Zeitschrift fur Religions und GeistesqeschichteGoogle Scholar.
66. Vinaya Pitaka, supra note 2, at 3.9-10; Book of Discipline, supra note 2, at 1.1819.
67. I distinguish between generalized legislation and particular legislation. By the former I mean legislation which is generalized and prospective representing an attempt to cover many points concerning cases which could arise in the future. By the latter I mean legislation for one particular case, such as an adoption statute. What is called judicial legislation also comes under this category as it is law made for one particular case.
Lingat, R., The Classical Law of India 224 (1973)Google Scholar considered that particular orders addressed to individuals or groups were not legislation. I do not follow the line of reason based on Roman expressions and suppositions that legislation must have a general and perpetual character. See the Digest of Justinian 19–20 (Moore, C.H. trans., 1904)Google Scholar.
68. S. Dutt, supra note 3, at 23.
69. Id.
70. Id. at 65.
71. S. Dutt, supra note 3, at 24.
72. Vinaya Pitaka, supra note 2, at 3.21; Book of Discipline, supra note 2, at 1.37.
73. Vinaya Pitaka, supra note 2, at 3.21; Book of Discipline, supra note 2, at 1.38.
74. Vinaya Pitaka, supra note 2, at 3.177; Book of Discipline, supra note 2, at 1.309.
75. We do not conceive that the Buddha meets our minimum requirements of our definition of a judge outlined supra note 43.
76. For instance see how the Buddha gave his reasons for one meal a day.
77. Horner translates this term dhammi-katha as reasoned talk, but we also find instances of this term in the Suttas, wherever the Buddha “instructed, incited, roused and gladdened” the monks “with Dhamma discourse.” See Anouttara Nikaya 1.306 (E.M. Hare trans., n.d.); The Book of Gradual Sayings 4.205Google Scholar. See also Book of Discipline, supra note 2, at 2.4.
78. Book of Discipline supra note 2, at 2.4.
79. Buddha made precepts as a result of criticism from the following: the public, lay-followers, suggestions from other monks and nuns, and because of suggestions from kings.
80. On this occasion Sona travelled from the Southern region to seek a specific ruling on the question of whether or not monks could use sandals, if monks could bath and if coverings could be used. Sona sought this ruling as apparently the Southern region was particularly difficult for monks and numbers were declining. See Vinaya Pitaka, supra note 2, at 3.196; Book of Discipline, supra note 2, at 4.263.
81. Sutta, Brahma-Sala, Nikaya, Digha, 1.5, trans, in Dialogues of the Buddha 1.3 (Davids, T. W. Rhys trans., n.d.)Google Scholar.
82. E. Conze, supra note 57, at 62.
83. The Amagandhasutta, Sutta Nipata 241; Jatakas No. 315, 451, 483, 504, 512, 528. See also Prasid, , Meat-Eating and the Rule of Tikotiparisuddha in Studies in Pali and Buddhism, A Memorial Volume in Honour of Bhikkhu Jagdish Kashyap 289 (1979)Google Scholar; Horner, , Early Buddhism and the Taking of Life in B. C. Law Volume, Part One 436 (1945)Google Scholar; Hopkins, , The Buddhistic Rule Against Eating Meat, 27 J. Amer. Oriental Soc. 455 (1906)CrossRefGoogle Scholar; Waley, , Did Buddha Die Eating Porkl, Melanges Chinois et Bouddhiques 343 (1931–1932)Google Scholar.
84. Pacittiya 61; Vinaya Pitaka, supra note 2, at 4.124; Book of Discipline, supra note 2, at 3.1.
85. See Vinaya Pitaka, supra note 2, at 3.172; Book of Discipline, supra note 2, at 1.298; Vinaya Pitaka, supra note 2 at 2.196; Book of Discipline, supra note 2, at 5.277. Fish and meat formed two out of the five permissible soft foods. Vinaya Pitaka, supra note 2, at 4.83; Book of Discipline, supra note 2, at 2.330.
86. Vinaya Pitaka, supra note 2, at 2.196, 3.172; Book of Discipline, supra note 2, at 1.298, 5.277. Majjhima Nikaya, supra note 2, at 1.368.
87. Vinaya Pitaka, supra note 2, at 1.218; Book of Discipline, supra note 2, at 4.325.
88. I. B. Homer, supra note 83, at 451.
89. Vinaya Pitaka, supra note 2, at 1.238; Book of Discipline, supra note 2, at 4.325.
90. Mahavira, the leader of the Jaina.
91. Vinaya Pitaka 1.238, Book of Discipline 4.325 (trans. I. B. Horner).
92. Vinaya Pitaka, supra note 2, at 3.172; Book of Discipline, supra note 2, at 1.2978.
93. Vinaya Pitaka, supra note 2, at 2.196; Book of Discipline, supra note 2, at 5.27578.
94. Jivakasutta, Majjhima Nikaya 1.368.
95. Digha Nikaya 1.5.
96. For the Jaina community's attitude towards meat see the Purusartha-Siddhyapaya 163 which demands that those who desire to avoid violence should renounce wine, flesh, honey and figs. See Tahtinen, U., Ahimsa Non Violence in Indian Tradition 158 (1976)Google Scholar.
97. For the Brahminical attitude see Manu. Xi.223, V. 52, U. Tahtinen, supra note 96, at 107-109. For a later Mahayana attitude see the Lankavatara Sutra (D. T. Suzuki trans. 211-222) indicating a much stricter approach which forbade meat.
98. In his edicts Asoka requests that animals should be treated with care. See Bloch, J., Les Inscriptions D'Asoka 94 (1950)Google Scholar; and E. Hultzsch, supra note 65, at 28. He also orders that certain animals are not to be killed on certain days and others are not to be killed at all. See Hultzsch, supra note 2, at 127. He also reduces the number of animals killed in his kitchen to two peacocks and a deer and intimates that the killing of these will also be stopped in the future. Finally, he discontinued royal hunts. See Hultzsch, supra note 65, at 37.
99. Vinaya Pitaka, supra note 2, at 217; Book of Discipline, supra note 2, at 4.296. See 418 Jataka, Book 3, p. 428; 459 Jataka, Book 4, p. 115; Horner, supra note 83, at 438.