Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism Miguel Álvarez Ortega Abstract. The aim of this paper is to present legal scholars with major notions and features pertaining to a non-Western philosophical tradition such as Buddhism, which possesses its own normative vision that expresses itself in different models, patterns and exigencies according to the capacity, spiritual goals, context and position of the agents. This results in a varied array of role-based regulations: it is this area that is explored in this paper through an analysis of the cases of the householder, the monks and the monarch, thus enabling a relection upon social structure, legal idiosyncrasy and the functioning of the ruling power. Keywords: Buddhist Law, Buddhist Social Regulation, Buddhist Monastic Codes, Buddhist Model Monarch, Coercion and Violence. 1. Introduction: Buddhism and Legal Studies If one tries to bring to mind some sort of archetypal image of Buddhist traditions one is quite likely to evoke a still meditator in robes surrounded by gentle scents of incense or more directly the icon of a sitting Buddha, slightly smiling from his enlightened perspective. Nothing would seem more distant from the aggressive and vindictive atmosphere found in any courthouse. This type of understandable contrast seems to be based on a well spread prejudiced vision of Buddhism as a largely asocial and anomic spiritual enterprise. As Harris states: Buddhism has often been characterized as an entirely other-worldly religion with a Gnostic distaste for the worldly order. Furthermore, the intensely individualistic lavour of the Buddha’s spiritual message has led some to suppose that its attitude towards the political order should be lukewarm, to say the least. Such views are wellattested in the scholarly community, as well as among Buddhists themselves. (Harris 1999a, 1) Rivista di ilosoia del diritto [II, 2/2013, pp. 423-446] ISSN 2280-482X © Società editrice il Mulino Indeed, important igures such as Max Weber referred to Buddhism as “unpolitical and antipolitical” (Weber 1958, 206), “world-rejecting” and straightforwardly recommending “inaction” (Weber 1978, 504, 546); similar claims are easily found in the Hastings Encyclopaedia of Religion and Ethics, where one reads, “in the strict sense of the word, there is no Buddhist Law” (see Kalupahana 2008, ix). But Buddhism, as a complex praxis and belief-system, is one of the oldest religions, dating back to 2,500 years ago. Its historical relevance in Asia, from Sri Lanka to Vietnam, is undeniable and it currently counts on some roughly 500 million followers. Despite its soteriological project, one would expect Buddhism to have had some important inluence on the legal systems and political regimes where it has enjoyed a notorious or prevalent presence. Likewise other major religions have kept their supramundane sphere while caring for – sometimes even ruling – worldly affairs based upon their own principles. Yet, if one takes a look at the major collections of Comparative Law, such as David and Brierley’s (1978), Zweigert and Kötz’s (1998), Glendon, Carozza and Picker’s (2008) or Glenn’s (2010), there is no speciic section dedicated to Buddhism-inspired Law. Attention to Hindu, Chinese and Japanese legal traditions are the closest cultural allusions to be found. Kritzer’s is the only collection that contains a brief work dedicated to Tibetan Law, written by specialist Catherine Redwood French (2002a). This American lawyer portrays quite a gloomy picture of the academic attention paid to what she calls “Buddhist Law”. In a paper expressively titled “The Case of the Missing Discipline: Finding Buddhist Legal Studies” she states: There are no established classic texts in this subject matter, no substantial literature, no body of students in M.A. or Ph.D. departments, no conferences, no chairs, no traditional pedagogy and no academic training programs in either religious studies departments or law schools. There are no professors of Buddhist law here in North America and although I continue to hope, I have yet to ind them in Asia or Southeast Asia. Other than a book I wrote on the Tibetan Legal System, some long articles on Burmese legal history by Andrew Huxley of the School of Oriental and Asian Studies (“SOAS”) in London and David Engel’s current work on injury narratives among Thai Buddhists, this is an immense research area that has no scholarship. (2004, 680) The author makes the case that within current disciplinary boundaries, practices and traditions of Buddhist Law are rendered an unappealing and suspiciously exotic research topic (697-699). It is widely accepted, however, that at least two major secular legal traditions have emerged from Buddhist milieu – a Theravada one originating in Myanmar and spreading through Southeast Asia (Laos, Cambodia and Thailand) and a Vajrayana one developing in Buddhist Tibet and neighbouring Buddhist kingdoms (Lee 1978; Huxley 1996a; Redwood French 2002b; Whitecross 2006; Reynolds and 424 Miguel Álvarez Ortega Carbine 2000, 152). This should certainly not preclude the various inluences that Buddhism may have played in other contexts throughout history, like the Asokan Empire or Japan, for example; but if we are to admit the reasonable tenets of Andrew Huxley, the most fertile soil for a lay Buddhist legislation to have developed are the aforementioned regions, which lacked an established legal tradition prior to the arrival of Buddhism (Huxley 2012, 42; Lee 1978, 154). However accurate and grounded Redwood French’s disciplinary lament, it may be conceded – and she seems somehow to admit it – that the cultivation of what she calls Buddhist Law is no easy nor straightforward enterprise. The lack of some sort of secular legal code in religious canonical sources is no minor handicap. But this does not mean that there is no such a thing as a Buddhist perspective on social regulation, though the presence of textual material dedicated to such issues is relatively minor when compared to other concerns (Jones 1981, 14; Junger 1998, 84). If legal-anthropological approaches try to identify what may be considered Buddhist elements in instances of praxis of former or contemporary positive law, a legal-philosophical view would attempt to start the journey by trying to establish how the very notion of a well-ordered society is expressed in or can be deduced from canonical sources. This does not imply an intention to assume the plausible yet different trend followed by those engaged in providing an ethical answer to current moral and political dilemmas from a Buddhist perspective (see, e.g., Queen and King 1996; Keown, Prebish and Husted 1998). That broad normative angle allows a wider and more lexible account of the Buddhist social ethos and enables not only a relection in descriptive terms but also the discussion of regulation matters in a prescriptive fashion. Yet a preferably historical approach is adopted here, which will become especially relevant in the concluding section. From the legal-philosophical perspective, exploring this ield would require taking into account the different components that build the Buddhist normative vision. This relates logically to both general Buddhist tenets and ethics as well as the speciic role-based normativity analysed in this article. Yet, since this is not the appropriate place to address those general issues, a condensed introduction has been included here for the reader unversed in the Buddhist tradition. Buddhist thought is developed upon the core notions of Dharma (Natural Law), the human quest to escape from suffering and the ultimate vanishing of that suffering through the complete realization of the empty nature of phenomena (sunyata). This vacuity entails a rejection of any essence, namely the human soul, which results in the doctrine of no-self (anatman) and enables an ontological description where all elements of reality come about through dependent co-arising or origination (pratīyasamutpāda). Buddhist Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 425 morality comes into play as an essential part of the path to clear out the aflictive emotions that impede realization – ignorance, grasping, and aversion. Thus, śīla, i.e. Ethics, constitutes one of the spheres of cultivation along with samadhi (meditative concentration) and prajña (wisdom) (Keown 2001, 108109). General morality appears as a set of requirements for the agents. The basic common set designed for laypeople is known as the “ive precepts” (pañca-sīlāni) and strongly resembles the commands stated in major religions and traditions. It is usually recited as part of a formula of spiritual adherence to the Buddhist practice known as “taking refuge”, in which practitioners undertake the precepts to refrain from destroying living creatures, taking that which is not given, sexual misconduct, incorrect speech and intoxicating drinks and drugs which lead to carelessness. The existence of wider lists of precepts along with varied contextual ethical angles and considerations has allowed Peter Harvey to refer to “gradualism” as a deining feature of Buddhist morality, which tries to adapt its content to the capacities and commitment of the practitioner (Harvey 2000, 51ff.). As for the elements that build up moral judgment, according to Vélez de Cea (2004, 139): “Early Buddhist ethics […] tend to integrate in its criteria of goodness three factors: motivation and content of actions (wholesomeness, blamelessness) and their consequences (harmless and happy results for oneself and others).” General morality, which concerns all agents, is a ield, which has produced its own specialized literature requiring its own monographic treatment (Keown 2001; Harvey 2000) and shall not be addressed here. Considering that what we call Law and Politics are speciic normative areas, the aim of these pages is to present the legal scholar with the particular normative frames described in the oldest Buddhist sources for individuals contextualized in different situations. This leads to a consideration of provisions related to the householder (gihi) representing the lay sphere, the monks (Sangha), and the monarch (raja) in the Pali canon and related sources.1 The concluding section presents an attempt to make progress in the understanding of the ideal vision of social regulation in early Buddhism. 1 The Pali canon contains an attempted reproduction of recalled discourses of the Buddha (known as suttas or sutras), along with the rules of monastic disciple (the Vinaya) and some other philosophical excerpts and developments (Abhidhama). Like the founders of other spiritual traditions, the Buddha never ixed his teachings in a written form. The canon was irst committed to writing in the 1st century BC and it roughly contains the largest collection of sources admitted by all Buddhist traditions while corresponding to the oficial canonical set of the oldest school, called Theravada and currently prevailing in South East Asia and Sri Lanka. 426 Miguel Álvarez Ortega 2. Gihi: the householder and his relations The irst regime based upon social roles may be found in the Discourse to Sigala (Sigalovada Sutta), labelled by Buddhaghosa as “the Vinaya (Buddhist code of discipline) of the householder” (gihi-vinaya) (Thera 1960). Here the Buddha explains the ways to honour the six quarters that symbolize the different social relations of the householder: “The parents should be looked upon as the East, teachers as the South, wife and children as the West, friends and associates as the North, servants and employees as the Nadir, ascetics and Brahmans as the Zenith” (Thera 2010). Paradigms of reciprocal duties and commitments are set so that the individual remains virtuous and social harmony is kept along the different interactions found in community life. Thus, for example, children owe respect and service to their parents and must therefore support them, fulil their duties, keep the family tradition, make themselves worthy of their inheritance and honour the passing of the departed. Parents, on the other hand, must keep their children away from evil, show them the virtuous path, teach them labour skills, arrange for a proper marriage and grant them access to the family inheritance (Subasinha 1997, 28-31). According to Khongchinda (1993, 25-26), this web should be addressed as an implementation of what he calls the “principle of social contact”, intended to describe the honourable male citizen as the centre of communicative patterns whose proper handling leads to individual ethical conduct. Certainly, these patriarchal constructions and the paternalistic traits perfectly suit Indo-European idiosyncrasy. Thus, Khongchinda refers to the relections of one of the Western translators of the sutta: Parent, wife, friend, master, teacher and religious man of all ranks are as little gods, so great is the responsibility attaching to these six positions, so ine is the opportunity for exercising compassion, tender care, and protection. In the six reciprocal aspects there is an element of childhood. (Ibidem) If following role-based duties is not only seen as an expression of individual moral virtue, but also as a truly necessary element to “make the world go round”, as the sutta states, then we may also be facing a civil social contract granting the very existence of the community. In general terms, the relevance of this brief sutra lies both in its singularity – it certainly does not pertain to a major genre within Buddhist literature – and in what it represents as an opposition to the prevailing normative trends of the epoch. In the Discourse to Sigala we ind yet another example of the Buddha criticizing Brahmanical mores embodied in the ancient legal literature of Dharmasutras. This corpus refers to several codes that envisage Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 427 the expected behaviour of the male Brahmin within the caste-based and ritualistic Vedic system (Olivelle 2003, 1-18). The motivation of the Buddha’s instructions to worship the six directions seems to be an attack upon this ritualism (Gombrich 2006, 81), as well as a claim for a more fair social structure based upon respect and reciprocal duties. Even though the pivot is still the paterfamilias, the structure neglects the caste system and can therefore be considered as more socially progressive. According to Kalupahana (2008, 78), benevolence and compassion inspire this social web in which all relations aim at granting happiness and welfare for oneself and others. One should not, still, over-idealize the picture. Leaving aside the always problematic relative weight of a particular text within the tradition, some scholars, for example, point to the fact that since “servants and slaves represent the direction underfoot […], a clear image of social inferiority emerges with the under-classes literally being trodden on” (Kelly, Sawyer and Yareham 2010). This issue may also serve as an example of the commonly discussed features and controversies of Buddhist ethics. An ordinary and accepted institution in the Ancient world – Aristotle’s defence is widely quoted – slavery clearly contravenes a prohibition stated in the eight-fold noble path, where human trade and proxenetism are deemed as a breach of right livelihood, because occupations that imply harming other beings violate sīla. Yet, in this Laymen Sutta, instead of suggesting the atrocity of its bare existence, it suggests provisions should be arranged so the conditions of slaves and servants are as favourable as possible: In ive ways should a master minister to his servants and employees as the Nadir: (i) by assigning them work according to their ability; (ii) by supplying them with food and with wages; (iii) by tending them in sickness; (iv) by sharing with them any delicacies; (v) by granting them leave at times. The servants and employees thus ministered to as the Nadir by their master show their compassion to him in ive ways: (i) they rise before him, (ii) they go to sleep after him, (iii) they take only what is given, (iv) they perform their duties well, (v) they uphold his good name and fame. (Thera 2010) So, undesirable as the institution of slavery is (even for the master who is granting himself no great karma and is getting further from Nirvana), no taxative and clear-cut normative answer is provided. This leaves space for scholarly relection upon the big topics of social realism, adaptability and gradualism as unavoidable interpretative keys in the realm of Buddhism social regulation. These features shall be addressed in the following sections. The tradition of establishing and using this type of lay code also found expression in post canonical Theravada, hence the XIIth century Upasakamanussavinaya and the more interesting and recent texts produced in revivalist XIXth century Sri Lanka (Crosby 2006). Interestingly enough, one of those codes was compiled/composed by British Colonel Alcott under the 428 Miguel Álvarez Ortega unmistakable title Buddhist Catechism (1881) and is still used in Sinhalese schools today (Queen 1996, 25). The other relevant production would be Anagarika Dharmapala’s Gihi Vinaya (1898), an extensive manual outlining 200 rules that are intended to regulate all aspect of lay life, including such petty issues as using the toilet. According to McMahan (2008, 99ff.) these codes would serve the purpose of both revitalising the Buddhist tradition, leaning on some nationalistic backdrop, while presenting it in a “new” manner, compatible with modern life and civilisation. Other scholars point to a conscious opposition of this new trend to both traditional Buddhism and colonial rule, assuming some sort of “this worldly asceticism” that would gain for the movement the name of Buddhist Protestantism (Queen 1996, 26; Gombrich and Obeyesekere 1988, 212ff.). The Discourse to Sigala stands as an early Buddhist social model, having inspired further literature aimed at providing an archetype of conduct for lay Buddhists, but its broad moral scope (which comprises questions such as friendship and marital gifts) and its limited provisions disallow any attempt to consider that it stands by itself as some sort of proto-code of Private Law. 3. The Sangha: the monastic regulation The monastic community, the Buddhist Sangha, is the social group that possesses the more detailed regulatory regime. Apart from ethical dasa-sīla, the ten precepts of virtuous morality, monks are subjected to a special code called Vinaya (discipline) whose core part is identiied as the Patimokkha (or Pratimoksa in Sanskrit). Apparently, as long as monks started gathering together during the monsoon season and progressively leaving aside their individual wandering ways, the need for rules became apparent. Initial lexible guidelines irst appeared, being orally transmitted by the Buddha, and then a codiication process started after his death in different schools (Rhys Davids 1996, x; Dutt 1996; Bhagvat 1993, 41-63). There are currently a few major Vinayas, which contain different codes for monks and nuns and whose essence remains very similar, varying only in minor differences (Harvey 2000, 93). For instance, the Theravadin Patimokkha consists of 227 rules (for monks) that cover quite a range of topics, from essential issues such as killing or provoking a schism to more ceremonial or petty questions such as the proper tailoring of a robe. They are organized in eight sections according mainly to the results deriving from breach, which could entail confession, forfeiture or various degrees of ostracism.2 Physical punishment is – at least 2 The structure consists of the following eight sections: 1) pārāgika imply expulsion of Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 429 theoretically – not contemplated, which raises no minor concern regarding enforceability, an issue to which we shall return. Yet, physical enforcement seems to be an acceptable part of children’s – namely monks’ – education (Deegalle 2002, 10); the normality of physical punishment on children being easily noticed in such an openly Theravada country as Thailand (Nelson et al. 2009). The content of this book, along with others that comprise the Vinaya, stress the evidence that even highly developed practitioners cannot avoid the ubi societas ibi ius and also shows that ancient Buddhist tradition had its own normative vision. This irstly relates to a peculiar punitive philosophy much centred on the idea that transgression itself carries disgraceful consequences for the infractor who remains further from the path to enlightenment, will experience heightened suffering and accumulate bad karma. Expulsion is the most severe punishment because it curtails the possibilities to attain awakening and will probably make the perpetrator a social outcast (Wijayaratna 1990, 143-144). Some faults and punishments can only be discovered and repaired by the offender, whose confession and acceptance are, in any case, at least central elements in legal procedures if not unavoidable requirements (for a contemporary analysis see: Voyce 2009). It also entails a consensual approach to conlict solving that involves detailed procedural requirements that often engage the whole community (Wijayaratna 1990, 146-147). In general terms, the Vinaya is quite appreciated from a technical point of view, originating, for example, a thorough analysis of 25 kinds of theft (Huxley 1995, 25-26; 1999). If the well-known Buddhist interest in the study of human psychology is considered, it is no surprise to ind a detailed approach to the factors taken into account to evaluate human action – effort, perception, intention, object and result – which do not fall far from modern criminal law approaches (Harvey 1999, 271-291). Adaptability and lexibility are usually mentioned as notable features too, alluding not only to the existence of several codes but to the continuous the Sangha (e.g. 3. “whatsoever Bikkhu [monk] shall knowingly deprive a human life of a human being […] he is fallen into defeat, he is no longer in communion”); 2) saṅghādisesa requires a formal meeting of the order (e.g. 2. “whatsoever Bikkhu, being degraded, shall, with perverted mind, come into bodily contact with a woman”); 3) aniyatā comprehends two rules regarding undetermined matters (e.g. if a bikkhu sits secluded with a woman in an inappropriate manner that may either lead to defeat, formal meeting or confession; 4) nissaggiya pākittiya imply both forfeiture and confession (e.g. if a bikkhu “receives a robe from the hands of a Bhikunni not related to him, except in exchange”); 5) pākittiya offences require a confession (e.g. a deliberate lie or abusive language); 6) pāṭidesanīya demands acknowledgement (e.g. inappropriate acceptance of food); sekhiya are deemed a group of training rules connected to discipline (e.g. 33. “Begging straight on from house to house will I eat the alms placed in my bowl”); and adhikaraṇa-samatha are the rules for the settlement of cases (this section mainly remits to the Kullavagga) (Rhys Davids 1996, 1-69). 430 Miguel Álvarez Ortega need of contextual accommodation in the face of challenges such as current monastic life in Western countries (Prebish 2003, 45-74; Yifa 2002, 53ff.; Numrich 1994). And we should not overlook the fact that a great deal of the Vinaya literature is extremely casuistic, since most norms are deemed to have been stated by the Buddha as a response to a concrete issue. Gombrich remarks that: in the case of many of the minor rules the account of how they came to be promulgated is both stereotyped and implausible, and we may well think it improbable that they were laid down by the Buddha himself – most likely they were created after his time. This […] shows that later generations scrupulously followed the pattern the Buddha had established of laying down rules only when they had been shown by events to be necessary, and always for the same reasons. (Gombrich 2009, 173) So rules are generally built upon examples and a direct elaboration of supposed underlying principles is usually avoided (Perrett 1987, 78). A nonliteral approach is also suggested by scholars who highlight accounts of the Buddha himself invoking the spirit of the norm rather than the letter, alluding to changing contexts and even permitting individual exemptions (Thānissaro Bhikkhu 2010). This idea of allowance of lexibility is reinforced by the well-known reference in the Mahaparinibbana Sutta stating that bikkhus (monks) may abandon some minor rules. There remains, however, the controversial question of which rules those may be and what the appropriate circumstances are. As a result, caution usually leads to the non-enforcement of this provision (Wijayaratna 1990, 143). Respect and reverence towards the integrity of the Vinaya Code was especially important when the Sangha initially functioned in an acephalous manner. This is obviously no longer the case, since: Ananda’s [one of the main direct disciples of the Buddha] explanations characterize the constitution and organization of the Community in the following ways: 1. It had no leader, no “king”; 2. It was always ready to pay homage and listen to a monk who was virtuous, wise and advanced on the path of inner progress; 3. There was no centralized authority and power.” […] When asked, “If there is no leader or refuge, on which basis can the Community be uniied?” Ananda answered: “Brahim, we are not without refuge. We take refuge in the Doctrine [read Dharma and Vinaya]” (Wijayaratna 1990, 153) Regarding the origin and nature of the Vinaya, scholars tend to focus on its relations with sīla. Opinions range here from a direct derivability of the Patimokkha from the panca-sila (the ive precepts of morality) (Pachow 1955, 57ff.) to more moderate opinions that rather suggest a lexible connection to the dasa-sila (ten precepts) (Harvey 2000, 94-95). Some even go as far as to defend a completely different aim and scope, implying that the monastic Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 431 code deals mainly with administration and etiquette and not with morality (Schmithausen 1991). The other extreme would be occupied by Holt (1981), who tries to look for a common underlying principle in the conduct of perfected beings. Taking into account the varied nature of the norms involved, it might be sensible to admit that their shared textual context corresponds both to a unifying criterion that brings all relevant norms together – both for practical and liturgical reasons – as well as to a material relationship in which morality partially overlaps and justiies etiquette and discipline (Prebish 2007, 3-4; Keown 2001, 33-34). Being the oldest legal set to have been continuously applied throughout history, the Vinaya, along with its literature and praxis, is as much admired as apparently insuficiently studied (Von Hinüber 1995, 44). Designed for the regulation of a small, close, spiritual community, taking this code as a direct model for social regulation or even as some sort of foundation for fundamental rights seems a disproportionate approach. Yet, Vinaya rules are an example of the existence of true Buddhist legal material that possesses, as it has been briely shown above, its own peculiar normative characteristics. Andrew Huxley has pointed in quite a literary fashion that this corpus serves both as a praxis or “medicine” for the nirvana-seeker and a guarantee of social peace within the Sangha. From the Buddhist point of view, sheer adherence to the rules as externally imposed or for discipline’s sake is not quite a true aim: “you know the medicine has inally worked when you cease thinking of it as law: when you do the right thing because you want to do it […] rather than through mere obedience” (Huxley 1996b, 144). This should not sound alien or exotic to the Western legal mind if we, for example, think about it in terms of Kantian autonomy or of a Hartian internal point of view as a moral assumption of legal bindings, as opposed to the mere compliance for prudential reasons or an external point of view. It is albeit, true, that the Vinaya lays more stress on what some philosophers call “harm to self” rather than on “harm to others”, which might have favoured a normative culture much centred on the idea of self-responsibility and selfpunishment. The very problem of coercion is in fact no small issue, but this does not seem to have altogether prevented an inluence on actual legal and political thinking and regulation (see, e.g. Sucharitkul 1998). One should make no idealised assumption regarding law enforcement within the monastic community either. Huxley recalls famous passages that make allusions to strength and physical enforcement and that seem to have legitimised different degrees of “proactive” interpretation, the case of the monk warriors such as the Shaolin (James 2004) being the most extreme example: “Off you go, Sariputta and Moggallana. Carry out a formal act of banishment from Kitagiri against those monks who follow Assaji and Punabbasu.” “But, 432 Miguel Álvarez Ortega Lord, these monks are fierce and rough.” “Then take a crowd of monks with you.” (Vin. II, 11) Good to bad monks are like rulers and robbers – when one is strong, the other is weak (A, I. 69; D, I, 115). (Huxley 1996b, 147) The problem of coercion will be treated in the next section, dealing with political power. 4. The Raja and the Dharma A last source of normative relection leads to considering the position of the raja, the Indian ruler, and his tasks within early Buddhism. Here, at least three tensional relationships may be identiied, taking into account the response towards the Brahmanical system, the coercion element linked to power and the external habitat in which the Sangha functions. As for the irst tension, the Aggañña Sutta is considered of great importance, since it relates the mythical origin of the world and mankind while displaying a direct, satirical response to the Brahmanical divine justiication of power and caste. In the irst part of the Sutta, two Brahmins relate having been insulted for having left their caste to join the Sangha, thus despising their godly origins. The Buddha points that all humans are born from women and that it is one’s personal behaviour and attitude following the Dharma which determine one’s worth of respect, not the bare pertaining to a caste. In the second part of the Sutta, the origins of human beings is explained as a successive degradation of a common race of bodiless and genderless light forms that progressively acquired coarser and more differentiated bodies, due to the origination of sensual perception, attachment and the various sources of suffering. The appearance of rice determined the advent of assigned property, and violation thereof justiies the origin of ruling power: [20] Now those beings, Vasettha, gathered themselves together, and bewailed these things, saying: From our evil deeds, sirs, becoming manifest, inasmuch as stealing, censure, lying, punishment have become known, what if we were to select a certain being, who should be wrathful when indignation is right, who should censure that which should rightly be censured and should banish him who deserves to be banished? But we will give him in return a proportion of the rice. [93] Then, Vasettha, those beings went to the being among them who was the handsomest, the best favoured, the most attractive, the most capable and said to him: Come now, good being, be indignant at that whereat one should rightly be indignant, censure that which should rightly be censured, banish him who deserves to be banished. And we will contribute to thee a proportion of our rice. (Rhys Davids and Rhys Davids 1910, 88) Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 433 Then, the institution of castes emerged as a practical means to arrange for the distribution of the different tasks that society started to require and no differentiation was made regarding either Dharma bonding or capability to attain Nirvana. The resemblances with Western theories of social contract have been pointed out by scholars like Ram Sharan Sharma (1996, 49; also Rogers Macy 1979, 48), while the solitude of these ideas within the general Buddhist realm is stressed by authors who claim that “this theory is unlikely to have been used as a ‘political argument’ by ‘actual historical agents’” (Collins 1983, 387; Harris 1999a, 3). The opposition to the Brahmanical world has generated major consensus, because while the Buddhist ruler inds justiication in the protection of property among “equal” beings, the Brahmanical king is expected to maintain social class divisions based upon divine distinctions and the use of force (Tambiah 1976, 20-22; Ghoshal 1968, 62; Chakravarti 1996, 152). Thus, the Arthasastra literature, considered the compendium of Brahmanic Political Science (Boesche 2002), shows such a ruthless pragmatism that, according to Max Weber (1946, 123), Machiavelli’s Il Principe seems harmless. This leads to the second tension abovementioned, the problem of violence, since the very functions connected to the monarch seem to contradict basic principles of Buddhism, centred around the avoidance of suffering and ahimsa (non violence). According to Zimmerman, Buddhist early thought developed different models to confront this issue, which still remains alive and open in current discussions. One tendency, focusing on the opposition to the Brahmanic “coercive” and violent king, points to the ruler as an undesirable position, intrinsically rendering terrible karmic consequences (Zimmermann 2006, 220-221). References may be found in the Vinaya alluding to kings as those “who administer torture and maim”, being even compared, like Saint Augustine would do later, to thieves (Chakravarti 1996, 159-162). Other sources, yet, such as the Cakkavatti-SihanadaSuttanta (The Lion-roar on the Turning of the Wheel), depict the deeds of the cakravartin, the turning-wheel monarch who conquers the four parts of the world, ruling according to the pañca-sīla (the ive precepts of morality) and having no need to resource to violence. This igure is related to the myth of Metteyya (or Maitreya), a forthcoming Buddha that is expected to appear in a pseudo-Messianic fashion, and which has been used as a legitimising invocation by different historical kings and anti-colonial movements in Buddhist countries (Kitagawa 1981, 112; Malalgoda 1970, 434; Jaini 1988, 77; Harris 1999b, 8, 57, 207). References dedicated to illustrating the model of the righteous monarch, the dharmaraja, may be found in several suttas as well as in tales about previous lives of the Buddha, called jatakas (Roy 1996, 23-40). For instance, the Maha Sudassana Sutta describes the 434 Miguel Álvarez Ortega seven gems that symbolize attributes of the king, such as inancial support or military strength. This seems to have enabled some scholars to deduce that one duty of the king is to provide material preconditions of the social order (Chakravarti 1996, 152-158; also Ratnapala 1993, 73-90), since there it is recorded that [180] Then, Ananda, the Great King of Glory established a perpetual grant by the banks of those Lotus-ponds – to wit, food for the hungry, drink for the thirsty, raiment for the naked, means of conveyance for those who needed it, couches for the tired, wives for those who wanted wives, gold for the poor, and money for those who were in want. (Rhys Davids 1969, 264) A similar reference may be found in the Kutadanta Sutta, quoted by Gombrich: The king should supply seed and feed to those who are working at agriculture and animal husbandry; he should supply capital to those who are working at commerce; he should organize food and wages for those working in his own service. Then those people will be keen on their jobs, and will not harass the countryside. The king will acquire a great pile. The country will be secure, free from public enemies. People will be happy, and dancing their children in their laps they will live, I think, with open doors. (Gombrich 2006, 84-85) These duties are deeply linked to the consequences derived from neglecting thereof, which is phrased following the typically Buddhist notion of dependent co-arising: Thus, from the not giving of property to the needy, poverty became rife, from the growth of poverty, the taking of what was not given increased, from the increase of theft, the use of weapons increased, from the increased use of weapons, the taking of life increased – and from the increase in the taking of life, people’s life-span decreased. (Quoted in Loy 2001, 85) So, according to Rogers Macy (1979, 46): “the material welfare of the people, their need for hospitals, roads, wells and jobs, the importance of and adequate economic base, are stressed in many a sutta and jataka of the Pali scriptures and have inspired Buddhist social service through Asoka’s era to our present time” (see also Khongchinda 1993, 93-94). The relevance of the number seven mentioned above in the Maha Sudassana Sutta may also be attested in one of the most inluential discourses, the Mahaparinibbana Sutta, where the Buddha summarizes most of his teachings before his passing and establishes the seven conditions leading to the welfare of a nation. According to this source, the Vajjis will ind prosperity as long as they hold frequent meetings; attend to them and discuss peacefully; respect their ancient constitutions; respect and listen to the elders; refrain from abGihi, Sangha, Raja: Role-based Normativity in Early Buddhism 435 ducting women and maidens; honour their shrines and protect and guard the arahats (Rhys Davids 1969, 7ff.). Stress on the qualities of the dhammaraja may be found in examples such as the Maha-Hangsa Jataka, which contains a description of the ten royal virtues which: “comprise alms-giving (dana), morality (sila), liberality (pariccaga), honesty (ajjava), mildness (maddava), self-restriction (tapas), non-anger (akkodha), non-violence (avihimsa), patience (khanti) and non-offensiveness (avirodhana)” (Zimmermann 2006, 224). It is also worth noticing that when the king is righteous, not only do citizens act likewise and make violence unnecessary, but also the whole kingdom prospers and the fruits in the trees grow juicy and sweet,3 thus showing the ontological nuances of Dharma. These idealistic features seem to avoid, according to Zimmerman, the problem of a need for coercion possibly arising and its potential karmic consequences (Collins 1996, 442; Zimmermann 2006, 217) and are contested by other accounts of the model king in which pragmatism takes over and allows a varied use of force by the ruler, including execution. Thus Gokhale states, that according to sources such as Samyutta Nikaya (I), Majjhima Nikaya (I) and Milinda Panha: “The king must punish the wicked and is allowed to use various kinds of punishments to deter the potential offenders. In this punitive task the king is given absolute powers to the extent of banishing culprits from his kingdom or even execution of convicted criminals” (Gokhale 1969, 735). A straight and comprehensive justiication for the use of violence is, as yet, avoided and scarce references are made to the king facilitating through punishment the fulilling of the criminal’s own karma (i.e. the evil consequences deserved through evil actions) (Rhys Davids 1890-1894, vol. I, 254-257) and to the exigency of a non-passionate mental state for the punisher. These two reasons seem to be the only explanation for this concession to realism.4 This theme acquires importance and complexity when dealing with the violent royal task par excellence – war. Apparently, the Buddha would elude direct reference to such matters when advising kings and would instead focus on their personal spiritual wellbeing. An assumption that an ethical sovereign would avoid unethical enterprises such as wars may apply here. Still, when asked about the future rebirth of a war hero, he stated that hell was the place for a murdering warrior (Maithrimurthi 2003, 130, 134). Leaving aside the utopic takeover to be performed by the cakkavatti, who conquers with his army but paradoxically See, e.g., Rajovada Jataka. For an online edition of W.H.D. Rouse’s translation see Cowell (2004, vol. II). 4 See, e.g., Maha-Paduma Jataka, Somanassa Jataka and Sumangala Jataka. For an online edition of Robert Chalmers’ translations see Cowell (2004, vol. I). 3 436 Miguel Álvarez Ortega through not killing, war is not explicitly endorsed in Pali sources. Yet war appears to have been perceived as a necessary evil in Ancient India, where non-Buddhist texts and traditions prevailed in the political arena, so Buddhist thought would rather focus on trying to mitigate its development and compensate it through merit-making performed by monarchs (Schmithausen 1999, 52-55; Jenkins 2010, 71). Contemporary scholars insist on the absence of a notion of a righteous war (Premasiri 2003, 153-166), implying that early Buddhism was more prone to a ius in bello than to a ius ad bellum, a tendency that is somewhat subverted in Mahayana developments and modern nationalisms. The fact that political power, with all its implications, is something with which the Buddhist community needs to ind a way of cohabitation leads to the third tension. As with any spiritual movement, Buddhism found itself dealing with the complicated business of trying to uphold its internal structure and autonomy, aimed at attaining soteriological goals, while acknowledging the reality of external political affairs. In one of the earliest and still seminal works on this topic, Gokhale (1969, 732-733) refers to a distinction between dittadhamma and samparaya alluding to temporal and spiritual spheres, respectively, which represent a sort of continuum of differenced realms expressed in concepts such as attha (worldly good) or ana (power, state) and dhamma (lawful, spiritual good). This distinction, a primary account of which Reynolds (1972) developed as the theory of the “two wheels of dhamma”, would represent an initial phase focused on acknowledging the need of the state while granting the autonomy of the Sangha, whose members are required to abstain from commenting political affairs (Maithrimurthi 2003, 129). It inds a signiicative representation in king Ajatasattu’s uttering in the Samanta Pasadika, a ifth century commentary on the Vinaya written by Buddhaghosha: “Yours is the authority of the spirit (dhammacakka) as mine is of power (anacakka)” (Chakravarti 1996, 174). However, the sheer separation does not dissolve the tension but preserves an equilibrium based upon contradictory exigencies. Then, Gokhale (1969, 736-737) defends, a second phase seeks to solve the antinomy in terms of supremacy of dhamma over ana resulting in the aforementioned models of the cakkavatin and dhammaraja. This leads to what Gunawardana (1979) calls an “antagonistic symbiosis” of external protection in exchange for religious legitimacy when the law of Dhamma is followed, which implies a moralization of the State and a transition from conlict towards reciprocity (Tambiah 1976, 40-41). Apparently, the Buddha himself was willing to reform precepts of the Vinaya when requested by kings as part of an overall strategy to accommodate local conditions and customs (Hanh 1998, chap. II), while not encouraging any direct politiGihi, Sangha, Raja: Role-based Normativity in Early Buddhism 437 cal shift whatsoever (Khongchinda 1993, 72). This new paradigm implies, rather than structural or political preferences, an admission of the prevalence of the law of Dhamma, which is relected in passages from the Anguttara Nikaya stating that “dhamma [is] the Lord of the King But who, lord, is the raja of the raja, the roller of the wheel, the dhamma man, the dhammaraja? The Buddha replied: It is dhamma […]: Herein bhikkhu, the raja, the cakavatti the dhamiko dhammaraja, relies just on dhamma, honours dhamma, reveres dhamma, esteems dhamma: with dhamma as his standard, with dhamma as his mandate, he sets a dhamma watch for folk within his realm. (Quoted in Chakravarti 1996, 169) All this may be interpreted as an important and clear ascendancy of Natural Law or morality requirements over politics and common legality. 5. Concluding thoughts Among the many perspectives one can adopt regarding Buddhism and social regulation, in these pages I have opted to address early canonical sources in search for a normative model, that is, the regulatory elements needed for a fair society. Since the topic had no systematic treatment in early Buddhism, the indings hereby explored are fragmentary, insuficient and at times too tensional to provide a complete picture congruous with the frameworks of today’s Legal or Political Theory or a Theory of Justice. But it is the task of an academic to try to riddle some sense out of scattered and varied references and relections. In this regard, recent scholarly approaches have at times been deemed to take their interpretative tasks too far, even attempting a foundation of International Law upon Buddhism (Jayatilleke 1967), to state one example. There is nothing intrinsically lawed in these approaches so long as their scope and method are comprehensively elaborated. But there seems to be a signiicant difference between describing or explaining a determinate problem or model according to historical sources, on the one hand, and recreating, proposing or designing a model based upon or inspired by the principles deduced from those sources, on the other. Yet distinctions are not easy to establish when working on the normative domain where the frontier between descriptive and prescriptive approaches is a well-known commonplace that allows a wide spectrum of greys and intermediate positions. Within this frame, efforts will be put to provide relections with a preferably historical perspective, yet allowing a certain degree of philosophical elaboration. If one contextualises the studied material within ancient normative thought it is interesting to notice the presence of a common feature shared 438 Miguel Álvarez Ortega with other philosophical traditions – the one-dimensional and omni-comprehensive character of normativity expressed in the notion of Dharma. Dharma, as Natural Law, refers to the idea of Sollen both in its moral and physical sense, likewise the notion of Dyké in the pre-Socratic tradition (Jaeger 1952, 40ff.). This explains the aforementioned reference to agricultural abundance derived from the sheer righteous attitude of the king. It is thus not surprising to ind out that Kalupahana’s The Buddha and the Conception Law (2008) dedicates two thirds of its length to explain epistemology and the “laws of nature” through the notions of emptiness, dependent-origination and karma. Should one consider these ideas as merely Eastern obsolescent exoticism, we should not forget that Western thought would still deem useful this ontological approach to justice as late as mid XXth century in radical versions of the Natur der Sache revival such as Herbert Schambeck’s (1964). Another expression of this comprehensive character may be found in the notion of the unitary character of primitive social ethos, developed by Pérez Luño to account for the fashion by which early normativism would address law, morals, politics, customs and religion as undifferentiated or highly dependent and overlapping domains. The progressive development of philosophical thinking, along with the technical decantation in codes would serve historically to gradually enable the demarcation of distinctive normative spheres (Pérez Luño 1996, 108ff.). In that sense, Early Buddhist Dharma presents both centripetal and centrifugal tendencies. Examples of the irst dynamic may be found in the communal approach to heterogeneous issues in the same source; for instance, friendship and labour duties in the case of the laypeople, murder and the tailoring of a robe in the case of the monks. As for the centrifugal movement, the very existence of the Vinaya as a technical separate corpus attests for a clear normative differentiation, while the transcendental submission of the king to the rule of Dharma points to a supremacy of Morals over sheer legality. In the Greek milieu this was expressed by the idea that what is fair by law (nomos) is not necessarily fair by nature (physis) (ibidem). So, what are the common characteristic features of the early Buddhist normative vision? The consideration of the aforementioned studied sources along with the basic tenets of Buddhist thought seem to point to two main key elements: the avoidance of suffering as the aim, and the dependent co-arising of phenomena as the compelling context. To consider that karma would in and of itself take care of wrongdoers and that suffering is only removed through the attainment of Nirvana rendering mundane punishments and regulations superluous, would be a misinterpretation, as it does not consider the multiple levels on which Buddhism unfolds. As Gihi, Sangha, Raja: Role-based Normativity in Early Buddhism 439 Sonparn Promta has lucidly explained, if one takes for example the fundamental Buddhist notion of no-self (anatman) too seriously, one may end up defending that there is no such thing as theft, since the very concept of ownership would be lawed. Yet the prohibition of taking what is not given and the right to own what has been obtained by one’s effort were both explicitly established by the Buddha. Promta (2002, 27-30) concludes that this sort of reasoning confuses the level of relative or conventional truth (sammutti sacca) and the level of the ultimate truth (paramattha sacca). So even if karma is to reap its results throughout successive reincarnations and ultimate liberation is only attained through religious praxis, human normative agency stands as a necessary instrument (even for advanced practitioners) that must create and take into account the causes and conditions to prevent and alleviate suffering. This rationale works on many levels when addressing the duties of a king, among which the provision of material welfare stands both as an exigency to ease suffering and a means to prevent social chaos. The shared qualities of human beings as bearers of suffering and capable of enlightenment explain an ideally egalitarian approach to the normative agents. This is expressed in the preferably horizontal models found on the three spheres here analysed – the patterns of reciprocal duties for laypeople; the originally acephalous and assembly-styled Sangha; and even if there is no direct criticism of monarchy as such, we have seen how the Vajjis are encouraged to hold frequent and peaceful meetings and respect their ancient constitutions, and how the justiication of ruling power seems to have a contractual grounding in the Agañña Sutta. As for the normative texture, sources reveal a preference for case-law development resulting in detailed technical classiications (see above the example of theft), a teleological, lexible and contextual hermeneutics and the need of an internal adherence of addresses. Indeed, the psychological disposition stands as an important element for infractions as well as for procedures and punishments. These last two elements appear to involve a certain degree of problematic tension always related to enforcement and coercion. Thus, confession and acceptance are, in any case, at least central elements in legal procedures if not unavoidable requirements. Redwood French (2002a, 123ff.) relates how this modus operandi would have frequently blocked lay trials in pre-Chinese Tibet. The preference for spontaneous adherence, compliance and acceptance along with the founding duty of creating the causes and conditions to prevent and alleviate suffering appear to stand as the reasons why the treatment of the ruling power and punishment displays divergent and sometimes extreme approaches that range from ideal Dharma kings that govern and conquer with no violence to pragmatic rulers entitled to all means necessary. In any case, there does not seem to be 440 Miguel Álvarez Ortega a single harmonizing treatment that would happily solve these dilemmas in early sources. 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