17.1 Introduction

Anthropological analysis, at any rate the kind that has been emanating from Euro-American departments for the last fifty years or so, is grounded in the discovery of difference. Anthropologists look closely, watch patiently, think critically, and engage in a kind of concentrated musing – what others have more elegantly called “cultivated attentiveness” – all in the hopes of seeing new colors in the rainbow.Footnote ¹ We are the science, if one cares to use that word, of human specificity. And yet, as much as anthropology trades in human difference, it also delights in sameness. Nineteenth-century anthropologists of the armchair variety, turn-of-the-century fieldworkers of a functionalist persuasion (as well as their structuralist others), postmodernists, and even twenty-first century anthropologists ever so gingerly attempting an ontological turn are all committed to seeing what can, and what cannot, be considered true of humankind writ large. In the face of difference, we are fascinated by similarity.

The chapters in this collection are, therefore, not only a source of incredibly rich insight on the relationship between Buddhism and constitutional law; they are, additionally, the source of a peculiarly anthropological pleasure because they offer a charming lesson in the interpretive possibilities of sameness. For those of us who are not scholars of Buddhism and are only very tenuously students of constitutional law, the chapters cast into stark and provocative relief the assumptions that we may carry about the wide swath of Buddhist contexts examined by the chapter authors. What that means, of course, is that the chapters also reveal the assumptions we as scholars carry about ourselves and our own areas of work.

In the rest of my own short chapter, I will tease out a few moments where the thematic concerns addressed by some of the authors with respect to Buddhism speak powerfully to concerns that have animated the study of Hinduism and constitutional law as undertaken by myself and others. I focus on three chapters in particular: Mark Nathan’s analysis of monasticism and celibacy in Korea; Richard W. Whitecross’ reflections on dual sovereignty in Bhutan; and Krishantha Fedricks’ writing on language ideology in Sri Lanka. This selection both is and is not random. I read Nathan’s chapter first and was so struck by the way its central concerns resembled issues that I have repeatedly engaged with in my own work on Hinduism in India, that I decided to cast about the series collection for geographical and thematic variety. I landed on the chapters by Whitecross and Fedricks and realized that, together with Nathan’s, they constituted an excellent triad. Each of them showed me, thoughtfully but unequivocally, how themes I had only considered with respect to India and Hinduism were applicable and generative far beyond those contexts. As with all anthropological endeavors, my hope is to unsettle assumptions about one thing via an exploration of another. But first, a little background.

17.2 Hinduism and Constitutional Law

What I am about to say certainly does not apply to all Hindus or all Buddhists. But, just as certainly, it does capture the way a particularly significant constitutional law system – India’s – understands the contours and content of Hinduism. It also seems to capture elements of Buddhism as it is understood by the legal systems of several countries. Two points of divergence between Hinduism and Buddhism seem especially important for the task of regulating them constitutionally.

First, everyday Hinduism is deeply tied to temple worship. There are caveats, of course: not all Hindus worship in temples; those who do so worship for different reasons and at different frequencies; and, finally, both the experience and the perceived merits of temple worship vary widely. Nevertheless, the importance of darśanam (“auspicious sight”) necessarily makes temples, whether they are roadside altars, pilgrimage centers, or precolonial royal masterpieces, central to the practice of Hinduism. Moreover, Hindu temples are not primarily or even significantly associated with religious elites in the vein of bhikkhus and bhikkhunis – although, again, there are many such elites and many of them are linked with specific temples.

Second, it is difficult to identify stable communities or hierarchies within Hinduism of the sort generally associated with the Buddhist sangha – for the most part. Communities that are generally (and certainly judicially) considered Hindu range from the tens of thousands in the Ramnami Samaj to the tens of millions in the Radha Soami Satsang. The various mathas that control many of Indian Hinduism’s most venerated temples are nothing if not hierarchical. And castes are both hierarchical and communitarian, even if their membership boundaries and religious bona fides have long been up for debate. Despite these and other reasonable caveats, it remains the case that Hinduism writ large lacks a standing religious elite that is hierarchically structured.

Both of these features suggest that the challenges precipitated by “Hinduism and constitutional law” ought to be markedly, albeit not entirely, different from those triggered by the confluence of “Buddhism and constitutional law.” And yet, as the rest of this chapter shows, that is not the case. The three chapters I will discuss below demonstrate that, despite these seemingly foundational religious differences between Hinduism and Buddhism (as well as innumerable legal differences between the countries in question), the puzzles to be solved – or not – are in many ways the same.Footnote ² That lesson is, in itself, striking in the extreme.

17.3 Monasticism and Celibacy in Korea

In his chapter, Mark Nathan uses a longstanding dispute over monastic celibacy to argue that South Korea’s modern constitutional framework opened up spaces for disagreement over Buddhist institutions, rather than having a consolidating, stabilizing, or homogenizing effect, as we might have expected. In November 1960, a group of young monks stormed into the Supreme Court and threatened to commit suicide because the Court had not definitively supported their side in a battle over whether Korea’s national Chogye Order mandated monastic celibacy. Rather than ruling on this core issue, the justices relied on procedural reasons to send the case back to a lower court (where the protestors’ pro-celibacy side had won). Indeed, despite repeated and contentious litigation, Korean courts never actually made a determination as to the religious necessity of monastic celibacy. As Nathan observes, they remained unwilling to wade into doctrinal disputes and were “concerned only with the written constitution, rules, and regulations of an organization composed of members who self-identified as Buddhist” (Reference Nathan, Ginsburg and Schonthal2022).

Self-governance within a framework of intense state oversight is, as Nathan argues, a characteristic feature of Foucauldian governmentality, and it is a thread that runs through the historical period he discusses. The Temple Ordinance published in 1911 by Korea’s colonial Japanese government comprised just seven short articles, and it required Korean monastics to formulate the laws that would govern their own behavior as well as the procedures by which their leaders would be chosen. These temple laws were, however, subject to the colonial government’s approval, and as such they became an important avenue for indirect state involvement in the reshaping of Korean Buddhism. In 1926, for instance, revisions that won Japanese approval “removed celibacy from the list of required qualifications to assume the duties of abbot, which seemed to open the door to legal recognition of monastic marriages” (Nathan Reference Nathan, Ginsburg and Schonthal2022). Because the colonial approach both depended on and reinforced the appearance of Korean Buddhist autonomy in matters of religious life, disputes over religious practice – including over the issue of monastic celibacy – became disputes over which religious faction had the authority to issue behavioral mandates, rather than disagreements over which practice better reflected Buddhist tenets.

I confess that what initially drew me to this chapter was its focus on religiously motivated celibacy. For the last ten years, my own work in India has centered on the Hindu temple at Sabarimala, Kerala, whose presiding deity, Ayyappan, is most famous for being a permanent celibate who is unable or unwilling to receive fertile women devotees. But the dynamics that Nathan explores – of state involvement under cover of religious autonomy, and of state involvement that facilitates (rather than erases) uncertainty and contestation – were also immediately recognizable to me, as indeed they would be to any student of religion-state relations in India. Like so many other public Hindu temples, Sabarimala is subject to intense and statutorily mandated state oversight that is often presented as, and sometimes actually is, the product of citizens’ preferences. Similarly, although there is no organizational constitution at play in the women’s entry dispute, an earlier phase of the dispute required courts to determine “who had the power to revise … the rules of governance”: the temple’s chief priest, its advisory committee (a non-governmental body of local elites), or governmental overseers (Nathan Reference Nathan, Ginsburg and Schonthal2022; Das Acevedo Reference Das Acevedo2018).

There is, to be sure, a key difference: namely, the willingness of Indian courts to wade enthusiastically into religious doctrinal waters. Scholars disagree about whether or not these forays reflect indigenous or foreign interpretive styles, about whether they are democratically defensible given the unelected nature of the judiciary, and even about whether they negate India’s ostensibly secular character – but there is little disagreement over whether or not Indian courts do, in fact, pronounce on the validity of religious beliefs and practices (Das Acevedo Reference Das Acevedo2013; Dhavan Reference Dhavan and Larson2001; Fuller Reference Fuller1988; Galanter Reference Galanter1971; Mehta Reference Mehta and Jaising2005; Smith Reference Smith1963). At various points during the women’s entry dispute, for instance, Indian courts have declared both that Sabarimala’s ban on women is an “essential” aspect of Ayyappan worship (making it eligible for more robust constitutional protections) and that it is a non-essential aspect of Hinduism that gives way to other constitutional guarantees of equality and non-discrimination (Das Acevedo Reference Das Acevedo2020).

But what Nathan’s chapter makes beautifully clear to outsiders like me, aside from the similarities and differences I’ve just described, is that we may need to reexamine our often too-quick assumptions about the traditions and countries we study. Scholarship on religion-state relations in India has generally rationalized extensive state involvement in the management of Hindu temples by pointing to the lack of religious hierarchy and congregational identity within Hindu tradition. If the state didn’t step in, this thinking goes, there would be no one to coordinate resources, resolve disputes, or pursue reforms. While Nathan’s chapter on Buddhism in Korea does not by itself unravel this way of understanding Hinduism in India, it does – given the existence of religious hierarchy within most iterations of Buddhism and the importance of the sangha – suggest that we may need to more carefully examine its explanatory power.

17.4 Dual Sovereignty in Bhutan

In his chapter on Bhutan, Richard W. Whitecross argues that the Dual System implemented in Bhutan by the Zhabdrung, Ngawang Namgyal (d. 1651), and further entrenched by the 2008 Constitution, has had unexpected and not always positive consequences. The Zhabdrung himself embodied both religious (chos) and secular (srid) authority but he separated these two aspects of his authority among his subordinates – most relevantly, between a secular regent (the Druk Desi) and a chief abbot (the Druk Je Khenpo). This Dual System “functioned reasonably well until the last quarter of the eighteenth century when the rivalry emerged between the regional governors who vied for the post of Desi” (Whitecross Reference Whitecross, Ginsburg and Schonthal2022, 7). The 2008 Constitution, which was largely the achievement of Bhutan’s Fourth King but only came into force during the reign of his son, the Fifth King, simultaneously embraces and resists the Dual System.

On the one hand, the 2008 Constitution provides, for the first time, that the Dual System will be embodied in the person of the monarch (Whitecross Reference Whitecross, Ginsburg and Schonthal2022). Whitecross notes that “[t]he coronation rituals created for the enthronement symbolically presented the monarch as the legitimate successor, the Zhabdrung,” who was, it should be remembered, the last ruler of Bhutan to personify both forms of authority. More explicitly, Article 2(2) of the Constitution states that the Dual System “shall be unified in the person of the [king] who, as a Buddhist, shall be the upholder of the [Dual System].”

At the same time, the Constitution takes significant steps to separate religious and secular authority because of the drafters’ belief that “ethnic and religious differences are the main causes of problems in this world” (Whitecross Reference Whitecross, Ginsburg and Schonthal2022). Article 3(1) calls Buddhism the country’s “spiritual heritage,” rather than its state religion. Article 3(3) obliges “religious institutions and personalities” to ensure “that religion remains separate from politics” and even declares that “[r]eligious institutions and personalities shall remain above politics.” And finally, there is no formal role for the Zhung Dratshang (Central Monk Body) within any central governing bodies, as had been the case since 1953. Thanks to these provisions, Whitecross argues that the 2008 Constitution has led to a decidedly “un-dual” outcome, which is “the exclusion of religious practitioners from engaging in local level politics” (Reference Whitecross, Ginsburg and Schonthal2022).

Once again, there are plenty of similarities with the Indian – and specifically, Hindu – context. A primary and well-documented worry of India’s constitutional framers was that “left to itself, religion could permit orthodox men to burn widows alive on the piers [sic] of their deceased husbands … coerce indulgence in social evils like child marriage or even crimes like human sacrifice … or relegate large sections of humanity to the sub-human status of untouchability and inferiority” (Bhagwati Reference Bhagwati and Baird2005, 43). Likewise, India still formally – although the hollow formality of this statement is becoming every day more extreme – lacks an established state religion. At the same time, and apart from political developments that have made India a Hindu state in all but name, the Constitution accords considerable cultural and legal dominance to Hinduism over other religious traditions. It identifies India by a name, Bharat, with largely Hindu connotations; it authorizes reforms respecting Hindu temples that are widely understood to have been motivated by a desire to consolidate Hindu identity and prevent an exodus of Dalit Hindus through conversion; it includes the prohibition of cow slaughter among its non-justiciable Directive Principles; and, perhaps most unambiguously, it treats Buddhism, Jainism, and Sikhism as legally equivalent to Hinduism.Footnote ³

Notwithstanding these considerable similarities between the Bhutanese and Indian contexts, what is most striking to me about Whitecross’ study is the way in which it acknowledges, even embraces, the inescapable ambiguity of the Dual System of sovereignty. For some time now I have been arguing – and I think the “women’s entry” dispute demonstrates – the extent to which India’s Constitution reflects allegiance to two very different visions of democratic sovereignty. Many of the Constitution’s more striking elements reveal an understanding of sovereignty as something that is shared between citizens and the state; conceptualizing sovereignty this way “enables the state to undertake the kind of broad and often unpredictable reforms required to construct a more equitable society” (Das Acevedo 2016, 579–580). At the same time, and often within the very same constitutional articles, India’s charter also promises traditional liberal protections that are predicated on the state’s obligation, as a mere agent of citizens’ (wholly owned) sovereign authority, to stay out of various spheres of activity. What other commentators have discounted, I’ve argued, “is the possibility that this tension is an intentional and productive feature of Indian constitutionalism writ large (and by extension, of Indian democracy) rather than being accidental, pathological, or specifically about religion” (Das Acevedo 2016, 579). Even as it explores the unintended consequences of the Dual System, Whitecross’ chapter encourages us to take seriously the tensions baked into it in both its original formulation by the Zhabdrung and its interpretation in the 2008 Bhutanese Constitution.

17.5 Language Ideology in Sri Lanka

Krishantha Fedricks’ chapter argues that the religio-political Mahamevnāwa movement is shaped by a Sinhala-centered language ideology in a way that is responsive to both nationalist and constitutionalist idioms. Since its establishment in 1999, Mahamevnāwa has founded seventy branches within Sri Lanka as well as international outposts in countries like the United States, India, Germany, England, and Dubai. The movement is both nationalist and transnationalist. On the one hand, Mahamevnāwa challenges the liturgical primacy and sonic sacredness of Pāli, and it also embraces popular aesthetic and religious forms to a degree that is unusual within “mainstream nationalist monastic politics” (Fedricks Reference Fedricks, Ginsburg and Schonthal2022). On the other hand, Mahamevnāwa is intentionally transnational in its orientation and technologically diversified in its methods, so much so that Fedricks considers it to be “the first televangelist Buddhist group in Sri Lanka” (Reference Fedricks, Ginsburg and Schonthal2022). Similarly, the movement is both constitutionalist and anti-constitutionalist. Its faith in the power of correct language and form, like its emphasis on a philosophical orientation or set of principles – the dhamma – as a guiding charter for the true Buddhist state, means that Mahamevnāwa incorporates the foundational premises of constitutional law within its own structure and strategy. At the same time, the movement is firm in its disavowal of secular constitutions and its critique of monastic participation in politics, on the grounds that both have led to the decline of Buddhism in contemporary Sri Lanka.

Fedricks’ inversion of the usual question – how religion impacts law – is familiar and familiarly productive to anyone studying the impact of constitutional law on Hinduism in India. The Indian Supreme Court’s religious freedom jurisprudence is regularly applauded or derided (or both) for its construction of a Hinduism that coheres remarkably well with the Constitution’s more progressive impulses. In the mid-twentieth century, for instance, some of the Court’s most famous adjudicative efforts argued that, properly understood, neither Hindu texts nor Hindu principles required that temples absolutely exclude Dalit individuals from their premises; instead, what they required was “insignificant participation” on par with many other Hindu constituencies. More recently, the Supreme Court held that neither the tenets of Ayyappan worship nor those of Hinduism as a whole require the exclusion of women aged ten to fifty from Sabarimala’s premises. “It is a universal truth,” wrote Chief Justice Dipak Misra in 2018, “that faith and religion do not countenance discrimination” – because, in the end, he said, “[a]ll religions are simply different paths to reach the Universal One” (Indian Young Lawyers Association v. State of Kerala, at para. 4). Scholars of Indian religious freedom jurisprudence, myself included, have thus become accustomed to pointing out how, to paraphrase Fedricks, “notions of constitutional law find their way into [Hindu] institutions” (Reference Fedricks, Ginsburg and Schonthal2022).

But what is striking is that Fedricks begins his account with a brief history of ethnolinguistic nationalism before he ever gets to constitutional law, and even after discussing constitutional concerns he returns to language ideology as it is marshalled by Mahamevnāwa. The bidirectional nature of this dynamic is just as evident in the Indian context: Chief Justice Misra’s comment about different paths riffs off a well-known line from the Ṛg Veda that was arguably mistranslated by Swami Vivekananda, and that now makes cameo appearances in both legal and popular discourse with such frequency that it is impossible to accurately parse the direction of flow (Doniger Reference Doniger2014, 18). What Fedricks’ chapter reminds us of, in other words, is not simply the value of occasionally fronting law as subject rather than object in conversations about religion and constitutionalism, but the need to always remember the chicken-and-egg nature of that relationship.

17.6 Conclusion

As I began by suggesting, the chapters in this volume offer a rare opportunity: the chance to learn substantively about a fascinating new area of interdisciplinary legal scholarship while also learning, thematically and analytically, about one’s own. For the anthropologist who seeks difference, there is nuanced, granular analysis that teases out the unique dimensions of both Buddhism and constitutionalism as they manifest across several contexts. And for the anthropologist who delights in sameness, there is an invitation, subtly different in each chapter but present in them all, to consider how these lessons about a particular religious tradition (and several countries) are also lessons about other traditions and other countries.

For the scholar of comparative constitutional law – who is, after all, one of the primary readers of this volume – these chapters offer a distinct yet related provocation: how are the chapters’ shared points of emphasis, Buddhism and constitutionalism, best thought of? Is it Buddhism and constitutional law, Buddhism as constitutional law, or even the preposition-free Buddhist constitutional law? Too often, comparative constitutional law scholarship has rested on the easy assumption that what is being compared is most relevantly thought of in political and geographic terms – the nation-state – and, consequently, that the third of these formulations is best: American constitutional law versus Indian constitutional law, and so on. That assumption may always have been problematic, but it is now even less defensible given the rapid ascendance of movements that are populist, transnational, and very often ethnoreligious in nature. By troubling the premise that the objects of comparison and analogy in comparative constitutional law are easily identifiable, these chapters open up a space for thinking more creatively about the intersection of religion and law.

18.1 Introduction

Readers of this volume may be wondering, as I myself have wondered, why a person with only the most rudimentary knowledge of Buddhism and only a smattering of knowledge about constitutionalism itself should be involved in a discussion devoted to both subjects. I have considered this question as a likely one among you, and I want to offer two possible justifications for my appearance.

One is Tom Ginsburg’s invitation. An offer from him was something I hesitated to reject. Tom stands at the top of the field of comparative constitutionalism, and I figured: If he asked me, there must be a plausible reason. You can make your own decision on this. The other is my own interest in the character of religious law – not just Christian law but the law of other religions. Both this volume and my research involve the possible connection between the two. I thought – I still think – that organized religion may, by its inherent nature, be connected with constitutionalism. Both stand upon a conviction that there are certain fundamental rules and principles that must be respected. They stand outside our own volition, indeed our own full understanding, and they shape our law. Perhaps the easiest example from the perspective of Christianity is that of the Ten Commandments. Its commands are not subject to repeal or amendment, though our adherence to them will never be perfect and their exact reach may be controversial. They are “constitutional” in that sense. Containing no penalties for violation, they cannot be considered positive law, but they invite legislators to provide more definite enactments to secure their enforcement.

In contributing to this volume, I was motivated by a desire to discover whether another religion – Buddhism – shared this feature with Christianity. Does what I have described make an intellectual connection with what exists in the practice of Buddhism? For purposes of comparison, this short chapter contains four examples that show how the canon laws, which regulated life in Christian churches, were understood and treated in practice.

18.2 Definitions

I begin with two definitions. Canon law means the law of the medieval church. In its definitive form, it was the product of the twelfth to the thirteenth centuries, fashioned from decrees of church councils, papal rulings, biblical texts, the ancient laws of Rome, and the dictates of natural law. It lasted in its medieval form for a long time: in the Catholic church until the twentieth century, and in Protestant lands, in what might be called a secularized but still substantially similar form, until about the same time. It was part of the European ius commune, the general law of European lands that supplemented and directed the scope of local customary laws. Constitutionalism is a more contested term. If I may borrow from what I remember from a talk given by the dean who first invited me to come to the University of Chicago, Gerhard Casper, later president of Stanford University, it is not simply a set of laws that preempted other laws. He wrote: “Constitutionalism does not refer to having a constitution but to structured and substantive limitations on government” (Casper 1987, 16). He did not mean that only a democracy could have such constitutional limitations. As Tom Ginsburg has himself shown, even authoritarian regimes may leave room for institutions that check the exercise of despotic powers (2008). The significant question is not where we place any particular category of rights, but how close they are to being unlimited. Almost all the rights we hold are subject to limitations. They cannot be absolute, and it is more useful to examine what the limitations are than it is to attempt to place those rights into one box or the other. In what follows, I shall assume that the reader knows only slightly more about the medieval canon law than I do about Buddhist law.

18.3 First: Status-Based Rights of the Clergy, Including Monks and Nuns

A foundational principle of the canon law was that the clergy should be treated as a class and separately in law than were other men and women. Most famously, this principle was the basis for “benefit of clergy” in England, a privilege that allowed clerics accused of serious crimes to escape prosecution in the royal courts. Instead, they were to be remitted to the hands of their bishop, who would deal with them as he saw fit – no mean privilege in an age when the ordinary punishment for those found guilty of a felony was death at the gallows. This was only the most famous application of what the church itself considered a matter of right ordering in a world where clergy stood apart from the laity. The claim, canonists said, was one that no secular ruler had authority to reverse. The temporal law itself recognized this principle, as in Magna Carta’s first clause – the English church shall be free. This arrangement had consequences. It meant that physical attacks against a cleric were to be dealt with differently from similar attacks against the laity – an offender was to be tried in an ecclesiastical court and, if found guilty, required to undertake a journey to the papal court in Rome to seek absolution from the Roman pontiff. It also required special disposition of the property of clerics at their death, much like the situation of Buddhist monks.

Of course, it was also true that the clergy was bound by stricter rules in some respects. Requirements in their dress, limitations on the right to own property, and of course the burden of celibacy – the issue we learned about in the context of Korean Buddhism presented by Mark Nathan in this volume – were all regarded as consequences of this part of the canon law. I should add that some of these assertions were contested in specific situations – just as the reach of provisions in the US Constitution today sometimes become matters of dispute. Allowing claims to freehold land to escape secular jurisdiction simply because it came into the hands of an ecclesiastic seemed an abuse of the right ordering of society to most English common lawyers for instance, and they developed ways to prevent it. However, that there existed a basic and permanent difference between the spiritual and the temporal spheres of life those lawyers did not dispute, and this fundamental difference had in effect constitutional consequences.

18.4 Second: Freedom of Religious Choice

Surprising as it may seem to find any mention of freedom of choice in matters of religious faith in the law of the medieval church – the architect of the Inquisition – the canon law did in fact contain such a principle. No unwilling person was to be required to embrace Christianity. Jews were permitted to raise their children in the Jewish faith, even where the government of a land was in the hands of orthodox Christian bishops and magistrates. The same was true of other religions. This is, however, an example of a fundamental freedom that was reduced to a very small corner of human life as it was put into practice, and the medieval church cannot pretend to have been a champion of religious freedom. This is because the canon law also held that, although the choice to accept baptism or to refuse it was a real one, once baptism had been chosen freely, it was final. No freedom to renounce Christianity was available, and since in practice most baptisms were conducted while the person was an infant, in fact, this freedom of choice largely disappeared. It was akin to circumcision among the ancient Israelites; it could not be undone, and it obliged the circumcised to keep the Mosaic Laws. The constitutional freedom to choose one’s religion, found in the texts of the medieval canon law, would thus have to wait to become fully effective – just as in the history of the common law, freedom of speech in English had to wait until it could be expanded from the privileged floor of the Houses of Parliament to the streets of London.

18.5 Third: A Right to Remain Silent

Known commonly in modern legal parlance as the “privilege against self-incrimination,” this constitutional principle was commonly stated by the legal maxim Nemo tenetur prodere seipsum: No one is obliged to proceed against himself. Included in Amendment V to the US Constitution (1791), the principle is also found in several of the canonical texts as understood in the Middle Ages. It was buttressed also by the principle, stated in the same basic texts, that De occultis non judicat ecclesia: The church does not pass judgment on matters that are hidden. The proper place for these private matters was the private forum of confession to God, not the public forum of a court of law. As Panormitanus, the greatest of the late medieval canonists, stated in this argument, buttressing it with citations from the Bible and the Decretum, “It seems that no one is required to answer an interrogation or an incriminating charge, because Nemo tenetur prodere seipsum” (Panormitanus 1615). Like the concept of religious freedom, however, this constitutional right turned out in practice to mean less than it does today. This happened because public fame was accepted as raising a legitimate presumption of a person’s guilt, requiring him to swear a compurgatory oath of his innocence if he wished to squelch the rumor’s effect. In other words, he could not be required to incriminate himself, but he could be required to rebut public fame against him if it was held by good and substantial members of the community. Parallels to this situation may be seen today – most recently in the reputation of “inappropriate behavior” that has been fastened on many men in respect of women they admired. Had this been 1250, in the absence of definitive proof of their offenses, they might have been obliged to undergo canonical purgation, and I think it is fair to say that this would be an inroad on the presumption of innocence and the privilege against self-incrimination.

18.6 Fourth: Welfare Rights

Article 25 of the Universal Declaration of Human Rights declares that “Everyone has the right to a standard of living adequate for the health and well-being of his family.” It may be surprising to discover that the medieval canon law contained a similar, though not identical, provision. However, it was based not upon noble aspirations, but rather upon dictates canon lawyers found in the law of nature. Before society was organized, their argument ran, all things on Earth had been held in common. So it was in the Garden of Eden. Private property depended upon a general agreement to forgo common ownership in favor of individual incentives to make productive use of what they possessed. It would reward effort and protect against thievery. However, that agreement did not extend to times of extreme want. When those times arrived and social organization fell apart, the poor could take from the wealthy without scruple. In a sense, they were simply taking what was already theirs – held in common perhaps – because they were entitled to it under the agreement made at the time. It followed also that governments had the ability to organize efforts in this direction to avoid the chaos and public disquiet that would accompany a regime of pure self-help. This point may also be amusing. Of course, the idea that there had actually once been a “world parliament” that agreed to this system requires a stretch of the imagination. William Blackstone, the great eighteenth-century English lawyer, described it as “too wild” to be believed (Blackstone 1979). But he did not reject the conclusions that lawyers had always drawn from it. Undoubtedly more limited in scope than what is now found in the Universal Declaration, it has been claimed that it stands as a worthy ancestor of today’s aspirations.

18.7 Conclusion

There is a good deal more that could be said on this subject. More examples could be provided, more rights and limitations expanded upon. My hope, however, is that there may be some parallels in Buddhist thinking that relate to what I have described. I picked my four subjects because I thought there might be, and there are, indications in the chapters from this volume to encourage my hopes on this score. Clerical privileges, for instance, might be just such an area which Buddhist thought held to be off limits from meddling and change by secular authorities. Berthe Jansen’s very helpful chapter on monastic constitutional law certainly encourages this approach. Perhaps another example would be Martin Mills’ discussion of Songtsen Gampo’s royal law based on the Buddhist ten virtues, or Iselin Frydenlund’s chapter on events in Myanmar. Seemingly, it also resembles what D. Christian Lammerts wrote about the dhammasattha law of precolonial Southeast Asia and his wonderful example of the exchange of a bunch of bananas for a coconut filled with gold. Richard W. Whitecross’ treatment of constitutionalism in Bhutan encouraged the same thought, as did Krishantha Fedricks’ intriguing introduction to televangelist Buddhist monks. On the other hand, some of the contributions seem to me to suggest the opposite – that the real problem has been simply the treatment of Buddhists by avowedly secular governments rather than the place of constitutional ideas within Buddhism itself. Levi McLaughlin’s considerations on the impact of the 1951 Religious Juridical Persons Law on Japanese Buddhists is an example. This chapter and a few others have addressed the treatment of Buddhism under current law, not constitutionalism itself as part of religious law. Valuable and interesting as they are in themselves, they have suggested to me the absence of Buddhism as a likely source of constitutional principles. If that is what we must conclude the evidence shows, I will be wiser, but also sadder.

19.1 Introduction

In the hope of encouraging the enormously valuable project of developing a field of Buddhism and law that can interact symbiotically with the young field of Islam and constitutional law, this chapter will try briefly to do three things. First, it will ruminate upon the surprisingly long delay in commencing a study of the relationship between Islam and constitutional law, and upon the political and academic developments that eventually inspired the academic field to focus its energies productively onto studies in this area. Second, it will discuss some of the central findings produced by scholars over the past twenty-five years as they started, belatedly, to explore the complex relationships between Islam and constitutional law around the world. This part of the chapter will focus on the conclusions that have been drawn by scholars of the Sunni tradition. The study of Islam and constitutional law makes clear that when one is dealing with a global, internally plural tradition such as Islam or Buddhism, it is sometimes necessary to generalize first about particular sects or regional instantiations of a religious tradition, before one can draw broader conclusions. Scholars of Islam and constitutional law have largely, though not exclusively, focussed on the Sunni world and its “constitutional imaginary.”Footnote ¹ Third, this article will very cautiously draw upon the contributions in this volume to highlight some ways in which patterns found in the Sunni Muslim world seem to be absent in a number of Buddhist countries. The claims made in this section are cautious and the ambitions of the discussion modest. Hopefully, though, this discussion will highlight some possible areas for productive future research for scholars in the new field of Buddhism and constitutional law.

19.2 The Rise of the Study of “Islam and Constitutional Law”

In retrospect, it should have been obvious that the introduction of constitutions into the Muslim world would have profound effects upon the constitutional imagination of people around the world, Muslims and non-Muslims alike.

From a very early period, Islamic thinkers have been interested in questions of ethical governance and about how government should be structured, both to ensure that the ruler acts morally and that he creates a society in which morality is encouraged. Scholars of Islamic thought have long been interested in this subject. Furthermore, almost from the time that they were first introduced in the nineteenth century, constitutions in majority Muslim states have generally made at least some reference to Islam. Over time, the references to Islam have become more widespread and more elaborate. Furthermore, in countries where the constitution explicitly carved out a role for Islam or Islamic values, governments began to feel significant pressure to honor the constitutional obligation to respect Islam. As a result, national administrative legislation was adopted to organize (and control) the institutions that had historically interpreted Islam for the people. A number of scholars, particularly political scientists focusing on Islamic politics in post-colonial countries, have discussed these developments.

Hiding in plain sight within this literature were questions that begged to be answered. Why over the course of the twentieth and twenty-first centuries, were polities throughout the heterogeneous Muslim world demanding that constitutional systems carve out a role for Islam in shaping state practices and state law? What was the role of religious mentalities in the shaping of these demands? What were the effect of debates about constitutionalizing Islam on Muslims’ understanding of their own religion? Were they causing Muslims fruitfully to revisit the works of Islamic religious and intellectual history? If so, should their findings cause the Western academy to rethink some of its accepted wisdom about Islamic intellectual and political history? Were these debates inspiring them to develop viable alternatives to classical liberal constitutionalism? If so, what was (or should be) the effect of this development of the constitutional imaginary outside the Muslim world?

The Islamic tradition, like many global religious traditions, presents itself differently in different parts of the world and, indeed, within a single majority Muslim country, different classes or communities may express their commitment to Islam in different ways.Footnote ² After World War II, scholars focusing on the Islamic tradition started to emphasize the importance of describing the way that Muslims in a particular region experienced and understood their religion. Less attention was focussed on the task of identifying transregional patterns in Muslim religious discourse or practices.Footnote ³ During this same period, many sociologists of religion were under the thrall of a secularization thesis, a commitment that likely led them to discount the possible significance of religious language in political discourse or in new constitutional texts.

By the 1980s, however, global events were forcing policymakers and academics to admit and address the obvious. Islamist discourse was becoming an increasingly important factor in politics all over the Muslim world. This discourse often involved a common demand that national governments recognize (and honor) a constitutional obligation to respect supposedly “Islamic” traditions of government. In 1979 alone, the world watched as a military government in Pakistan continued to impose a program of Islamic constitutional reforms accompanied by massive legal reforms; Iran completed a dramatic Islamic revolution against a dictatorial ally of the US; Afghanistan was convulsed by an Islamically inflected war of resistance against a Soviet puppet regime; and oil-rich Saudi Arabia experienced a shocking armed takeover of the Grand Mosque in Mecca by Islamist radicals, who believed that the seemingly conservative monarchy was insufficiently respectful of Islamic traditions of moral governance. Within two years, the president of Egypt had been assassinated by Islamist radicals and in Sudan, a military junta decided to shore up its flagging popularity by embracing a radical program of Islamic constitutional and legal reform.

By the early 1990s, scholars studying different parts of the Muslim world through a variety of disciplinary lenses were beginning to think about how best to approach the phenomenon of Islamic political discourse in a world of nation-states and of Islamic language embedded into national constitutions. As they did so, these scholars began to identify some new questions. Among them: When and where did the impulse to constitutionalize Islam first emerge? Did it really grow organically (as some modern Islamist thinkers asserted) out of a premodern tradition of political thought that had incubated a latent commitment to constitutionalism even before the age of written constitutions? Why was the wording of the constitutional provisions that referenced Islam so idiosyncratic? How did a decision to integrate Islam into a constitutional text (or into the interpretation of a formally secular constitution) actually affect the people who lived under that constitution? This last issue involved two distinct but symbiotic questions. First, did the decision to bring Islam into constitutional discourse change the way that Muslims understood and engaged with their religion? Second, did the decision to bring Islam into the constitutional order change the practices of the state and/or the experiences of its subjects?

To answer all these questions scholars had to draw upon a multitude of disciplines that had not hitherto existed in regular dialogue. Historians of classical Islam had to revisit the accepted wisdom in their field about both Islamic thought and state practices, while historians, anthropologists, sociologists, and political scientists with expertise in one or more parts of the Muslim world had to explore the evolution of modern ideas about constitutions and constitutionalism. Building on these micro-studies of constitutional (or proto-constitutional) thought and of religious developments, scholars could attempt to draw broader conclusions about the way in which ideas and practices traveled and evolved across space and time, and about the nature of the impact in the Muslim world both of Islam on constitutional law and, conversely, of constitutional law upon Islam.

As scholars have begun to answer some of these questions, the promise of a greater prize has appeared. Some scholars began tentatively to draw hypotheses about the broader lessons that evolving studies of Islam and constitutional law might teach the world about the role religion can and often does play in the modern world and, more specifically, about the roles that religion can play in the constitutional orderings of modern states (Brown Reference Brown2002, Hirschl Reference Hirschl2010). For some of the more ambitious hypotheses to be tested, scholars needed access to studies that could help establish whether patterns in the Muslim world were analogous to patterns in other parts of the world, especially parts in which a person’s identity was understood in terms of a religion other than Islam. For example, were majority Buddhist countries constitutionalizing Buddhism? If so, was the process being driven by factors similar to those driving constitutional Islamization? Was the process proceeding in a fashion similar to that unfolding in the Muslim world? Was the constitutionalization of Buddhism enshrined in constitutional provision similar to that being drafted in the Muslim world? And finally, was the constitutionalization of Buddhism affecting governance in the Buddhist world in a manner similar to the way it was affecting governance in the Muslim world?

The present volume provides hope that some of the answers to these questions may start to be answered in the coming years. Contributions to this volume demonstrate that Buddhism, like Islam, has clearly engaged from a very early period with questions about how rulers should act and about how political actors should interact with religious actors to ensure that ethical behavior is encouraged in society. Buddhism does show up, albeit sometimes obliquely, in modern constitutional texts and/or commentaries. And Buddhist actors are active politically, sometimes in ways that affect constitutional politics directly and sometimes in ways that significantly affect the political dynamic and political expectations and thus, albeit indirectly, shape the constitutional order of the state.

The study of Buddhism and constitutional law seems to be at an even earlier stage in its development than is the now quite robust study of Islam and constitutional law. Possessing only the most cursory knowledge about the history of Buddhist studies in the modern world, I cannot say whether the delay grows out of the institutional structures and academic trends that postponed the arrival of a robust community focussed on studying Islam and constitutional law. Looking at the wealth of material produced in this volume, one can only be grateful that scholars in the field of Buddhist studies have, like scholars of Islamic studies, identified the study of religion and constitutional law as a fruitful area for research. Already in this pathbreaking volume, the editors and contributors have demonstrated that they have a great deal to work with. For anyone who is interested in generating robust comparative work on the phenomenon of “religion and constitutions,” “constitutionalization of religion,” or something that might be described as the “religification of constitutions,” the contributions to this volume, taken together are eye-opening and provocative. One can only hope that scholars of Buddhism and constitutional law will be interested in actively engaging with scholars focusing on the study of Islam and constitutional law and vice versa.

19.3 The State of “Islam and Constitutional Law” Studies

As the intellectual project of “Buddhism and constitutional law” begins, the participants in that project might productively bear in mind some of the insights that scholars of “Islam and constitutional law” have to date developed as they have sought to describe the evolving constitutional imaginary for the vast number of Sunni Muslims who today want their state simultaneously (i) to satisfy the obligations of an “Islamic state” and (ii) at the same time to operate as a modern state under a modern constitution.

Over roughly the past twenty-five years, scholars interested in the broader connection between Islam and constitutional law have produced and slowly begun to synthesize a wide variety of findings from a myriad of different academic fields including, among others, religious studies, political history, social history, contemporary Islamic politics, anthropology, sociology, and area studies. As a result of this work, scholars have begun to develop a new understanding of Sunni Islamic intellectual and political history – one that tries to explain patterns in Islamic thought and behavior, that scholars of Islam until recently tended to see as counterintuitive and problematic.

19.4 Islam and Buddhism and Constitutional Law

Looking at the contributions to this volume, it seems clear that scholars of Buddhism and law are making progress toward some broader hypotheses about the relationship of Buddhism to constitutional law at different times and places. It is exciting to think that one may soon be able to do comparative studies of Islamic and Buddhist constitutional ideals, and it will be fascinating to see whether these potentially quite different conceptualizations may have led Muslims and Buddhists to use constitutions (and constitutional law) in different ways. Many of the contributors to this volume describe ways in which the nature of Buddhist concepts and intuitions may have led Buddhists to embrace a different understanding to Muslims about what religion is, what the role that religious law and religious institutions should play in a modern state, and thus, in the modern world, what types of constitutional provision a religious constitution should include.

In the Sunni Muslim world, Islamic ideas have to date tended to facilitate the rise of a “constitutionalist” ethos in Sunni Muslim polities, albeit one that does not necessarily understand “constitutionalism” to require state respect for liberal values. This in turn has led to the widespread adoption of constitutional provisions that are explicitly constitutionalist and which announce that government discretion is broadly constrained by some moral principles that are announced in scripture. In these cases, the boundaries on moral governance are to be interpreted in the final instance by people outside the control of the ruler and whose authority comes, ultimately, from their recognition as scholars by the community as a whole. This pattern, already present in the premodern period, sounds in a “constitutionalist” key. It has led to the rise of Islamic constitutions that are marked by their consistent concern with identifying Islam as a source of restraint on state power, and with the identification of a system that can guarantee that the executive is not given control of the definition of Islam to such an extent that it is left to be the judge of its own power, notwithstanding the different assumptions about religious authority in the Shiite context of Iran.

19.5 Conclusion

These are only an initial set of questions that comes to mind from comparing my own field of specialty, in Islam and constitutional law, with the incipient subfield of Buddhism and constitutional law, as apparent in the contributions to this volume. The study of Islam and constitutional law has emerged only recently, but it has already produced provocative work that has challenged some long-held assumptions in the fields of Islamic studies and in comparative constitutional law alike. The study of Buddhism and constitutional law promises on its own to do similar things for the academy. More exciting yet, the work produced by scholars of Buddhism and constitutional law creates the possibility of meaningful comparative study in a broader field of “religion and constitutional law.”