https://orcid.org/0000-0002-3091-6576
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Abstract
Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pluralism. Yet such arguments are not only advanced by academics, nor are they value-free descriptions of law. Notions of legal unity and multiplicity may also be deployed strategically by the legal actors that scholars study in order to advance their own interests, or criticize others. This article considers this fact, along with its methodological consequences, by highlighting conceits of unity and multiplicity as they operate within Buddhist monastic law in Sri Lanka. Drawing on Buddhist legal texts in Sri Lanka’s main vernacular language of Sinhala as well as the Theravāda Buddhist liturgical language of Pāli, this article illuminates competing theories of legal monism and pluralism operating within traditions of Theravāda Buddhist monastic law. In so doing, it explores the complex politics—of averring or critiquing the self-presentation of legal authorities—that necessarily accompanies the study of religious law and other forms of non-state law.
Acknowledgments
The author is grateful to multiple anonymous reviewers for their very helpful feedback as well as to participants at the conference on Public Law, Legal Orders and Governance, co-hosted by JSW School of Law in Bhutan and University of Victoria in Canada, and to Victor Ramraj, Pooja Parmar and Nima Dorji.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 E.g. “Robust legal pluralism challenges the state’s claim to a monopoly on legitimate resolution of legal disputes as well as the ideal of uniform application of the law” (Swenson Citation2018, 440).
2 See von Benda-Beckmann in this issue.
3 Where the original language may be unclear, I employ the following conventions: “S:” indicates Sinhala, and “P:” indicates Pāli. Sinhala is transliterated according to the standard conventions outlined in Gair and Karunatillake 1976, with the exception that I use ae to transliterate ඇ.
4 Povinelli’s formulation of the idea follows Hegel’s notion of the “cunning of reason” in his Philosophy of History (Povinelli Citation2002, 16–17).
5 “buddha nītiyen laedunu budu putekuṭa suddāgē nītiyen pahara dennaṭa iḍa notabamu!” (Laṅkādīpa 2018).
6 These are called, in Pāli, Sutta Vibhaṅga, Khandaka, Parivāra.
7 The subsequent two offenses require further investigation to determine a punishment; the following thirty offenses require confession to the group plus the forfeiture possessions that has been acquired improperly; the next ninety-two offenses require confession to the other monks in one’s residence, followed by four offenses that also require confession. Beyond this, the Vinaya lists seventy-five “training principles” (sekhiyā) that serve as detailed behavioral instructions on how monks should conduct themselves while walking, eating, speaking and even urinating. The final four (of the 227) principles lay out seven ways of settling legal issues that arise between monks, such as disagreements over doctrine or disputed accusations of wrongdoing.
8 My translation of Sg 10; see also (Ñāṇatusitaa Citation2014, 107).
9 Pāli: sāvajjapaññati āpatti and anavajjapaññatti āpatti.
10 On this topic see Kieffer-Pülz (Citation2013 I, 322f., fn 1 ). The desire to distinguish and align monastic and royal laws is also visible in the distinct terms used by the Vinaya and its commentaries use to describe the royal legal system. As an example, the Samantapāsādikā uses the worlds aṭṭa and vohārika to describe legal cases and judges in royal courts, while it uses adhikaraṇa and anuvijjhaka to refer to the same in monastic legal contexts (von Hinüber Citation1995, 30–31).
11 While similar networks of monastic subgroups are visible in other Buddhist contexts, Sri Lanka’s sectarian dynamics gained particular momentum with the island’s colonization by the British in the late eighteenth century and the annexation of the island’s last independent kingdom. Between 1790 and 1948, nearly twenty-three new, independent monastic bodies took shape along various lines of affiliation: regional and caste identities, allegiance to particular senior monks, disagreements about legal and ritual principles contained in the Vinaya and even political disagreements among donors (Department of Buddhist Affairs Citation1984).
12 There are Vinaya rules clarifying that legal actions should be undertaken with monks that live within a single ritual boundary (sīmā). Yet there are, to my knowledge, no specific Vinaya regulations forbidding monks of one monastic ordination lineage or fraternity– either within or outside the sīmā – from participating in the legal activities of monks from another lineage or fraternity.
13 P: na bhikkhave yānena yāyitabbaṃ. yo yāyeyya, āpatti dukkaṭassa.
14 This was a major island-wide representative survey of 1669 Buddhist monks with in-proportion sampling from all major monastic fraternities and provinces, as well as representation for urban and rural areas and across ages. I designed, wrote and conducted the survey in Sinhala with the help of an experienced survey team, with enumerators located throughout the country, as well as with considerable advice from academic and monastic colleagues in Sri Lanka. Surveys were anonymous and private. They were handed out to monks at their home monasteries in sealed envelopes; and they were collected on the same day, or very soon after. Several rounds of pre-testing and piloting, as well as training, occurred between June and July 2017. Surveys were distributed and collected in all provinces between July and October 2017, with data entry running from November 2017 to March 2018. The survey is part of a major study I am conducting on the lived practices of monastic law in contemporary Sri Lanka. Publications that analyze this data will be forthcoming soon.
15 On the controversial status of nuns in the legal traditions of South and Southeast Asia, see (Bhikkhu Citation2013; Seeger Citation2008; de Silva Citation2016; Salgado Citation2019; Heirman Citation2019; Falk and Kawanami Citation2017–2018; Schonthal Citation2017–2018b).
16 On the challenges of this, see (Parmar Citation2018).