Formations of Buddhist constitutionalism in South and Southeast Asia

Abstract

From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, the study of religion and constitutional law has gradually shifted its attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. While this shift has produced a rich literature on Islam and constitutional law, it has almost entirely neglected Buddhism. This neglect presents a significant problem for scholars of comparative constitutional law because, as this article contends, some of the most important legal projects in South and Southeast Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the saṅgha. By looking at the premodern roots of Buddhist constitutionalism and examining its distinctive formations in Sri Lanka and Thailand, this article explains how and why this particular form of religious constitutionalism has come to influence politics and law in contemporary South and Southeast Asia.

1. Introduction

1.1. Lost in the tectonics: the absence of Buddhism in comparative constitutional law

For some time, a tectonic shift has been taking place in the study of religion and constitutional law. From a subfield focused mainly on secular constitutions in Anglophone and/or European settings,¹ scholars have gradually turned their attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. The need for this shift is clear. By some estimates, nearly 40 percent of all basic laws give special status and protections to a preferred religion or religions.² Moreover, researchers increasingly acknowledge the limits of using the “secular liberal prototype” of constitutional law as an explanatory or normative model for understanding constitutional law globally.³ In many parts of the world, political elites neither assume (nor aspire) to create constitutions that are rigorously impartial towards religion.

One can see the benefits of this tectonic shift in a developing body of theory concerning (what has come to be called) Islamic constitutionalism. Thanks to first-rate research on Tunisia, Egypt, Sudan, Iraq, Iran, Afghanistan, Pakistan, Malaysia, and elsewhere, scholars now know a great deal about the historical influences,⁴ legal “scripts”⁵ and normative conflicts⁶ that accompany the conception, implementation, interpretation and function of constitutional regimes that give Islam a privileged status.

Studies of Islamic constitutionalism have enriched the field of comparative constitutional law. However, they have also cast light indirectly on the lack of studies concerning other types of religious constitutionalism. Particularly neglected in this respect have been legal regimes that give a special status to Buddhism. As one of the major religions of Asia, Buddhism remains deeply entangled with constitutional practice in many Asian countries. Nevertheless, the links between Buddhism and public law have rarely been a primary object of inquiry for scholars.⁷ Disciplinary biases in the academy are partially to blame. Scholars of Buddhism have tended to treat contemporary constitutional law as a matter to be handled by political scientists or law scholars. Scholars of public law, for their part, have not paid much attention to Buddhism either—perhaps on account of Buddhism’s popular image as an ascetic religion, unconcerned with worldly power. The result is that, with a few exceptions,⁸ the study of Buddhism and constitutional law has fallen between the chairs of academic disciplines and continues to be ignored.⁹

This failure to look seriously at Buddhism and public law presents a significant problem for understanding constitutional practice in South and Southeast Asia (herein Southern Asia). Of the seven states in Southern Asia that have a majority Buddhist population, all but one give to Buddhism special status in their constitutions. In their own ways, the constitutional texts of Myanmar, Thailand, Sri Lanka, Laos, Cambodia, and Bhutan each single out Buddhism as deserving special attention, protection and/or state patronage.¹⁰ In these jurisdictions, Buddhist monks and interest groups play influential roles in creating and applying constitutional law; and Buddhist ideas and institutions figure prominently as topics of constitutional negotiation. In fact, in the constituent processes that have taken place (and are currently ongoing) in Sri Lanka, Thailand, and Myanmar, Buddhism has often figured prominently as a key issue of debate.

1.2. Buddhist constitutionalism

A full and complete understanding of public law in Southern Asia demands an understanding of Buddhism and Buddhist organizations; and, conversely, a full understanding of contemporary Buddhism demands some understanding of public law. This article takes a few steps towards bridging this divide. It contends that some of the most important legal projects in Southern Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the saṅgha.¹¹ This article examines the development of Buddhist constitutionalism and tracks some of its regional variations in Southern Asia, areas in which the Theravāda tradition of Buddhism has been dominant.¹²

This investigation of Buddhist constitutionalism borrows two methods from studies of Islamic constitutionalism. First, it analyzes Buddhist constitutionalism in terms of the key regulatory dilemmas that it addresses. I argue that at the center of Buddhist constitutionalism, for its proponents, are neither questions about ascertaining and applying transcendent laws in a man-made legal order (as in the case of Islamic constitutionalism),¹³ nor questions about reconciling Buddhist prerogatives with general religious rights (so as to conform to the requirements of secular-liberal constitutionalism).¹⁴ Central to Buddhist constitutionalism, instead, are questions about how to balance royal/political authority and ecclesiastical authority. In designing a legal system that safeguards Buddhism, Southern Asian lawmakers have been particularly concerned with properly structuring the relationship between governing elites and Buddhist monks—each of whom have, historically, claimed special responsibilities and authority for the protection of the religion.¹⁵

Second, this article follows studies of Islamic constitutionalism in that it contextualizes the regulatory dilemmas of Buddhist constitutionalism within the longue durée of Southern Asian history. Attention to the long sweep of time reveals both the dist inctiveness of contemporary Buddhist constitutionalism, as an institutional form, as well as the important continuities between contemporary and premodern arrangements. It confirms Ran Hirschl’s insight that “many of the contemporary debates in comparative constitutional law have early equivalents, some of which date back over two millennia”¹⁶—demonstrating that this insight holds equally true for ancient Southern Asia as it does for the ancient Mediterranean worlds.

This article proceeds in two parts. Section 2 examines the longer history of Buddhist constitutionalism’s central regulatory dilemma of negotiating the relationship between monks and rulers (a term used to refer, in the premodern period, to monarchs and royal officials and, in later periods, to monarchs, presidents, parliaments, military regimes, and other government officials). Considering evidence from Buddhist texts and material remains, I argue that these sources offer opposing viewpoints on the ideal relationship between state/royal power and ecclesiastical power, while also testifying to a tense interdependence between the two, an “antagonistic symbiosis” that comes to animate projects of Buddhist constitutionalism in the modern period.

Section 3, a much longer section, explains how and why two Theravāda-Buddhist-majority states, Thailand and Sri Lanka, came to adopt alternate formations of Buddhist constitutionalism, opposing legal regimes for managing the antagonistic symbiosis of rulers and monks. In Section 3.1, I argue that, in the nineteenth and twentieth centuries, Thai kings and governments developed a mode of Buddhist constitutionalism that dealt with the tensions between governmental, royal and monastic authority by placing Buddhist monks under governmental and royal control. In Section 3.2, I examine similar historical periods in Sri Lanka and argue that legal draftspersons there resolved the dilemma in an opposite way: they devolved import ant powers to, and ensured significant autonomy for, the saṅgha. Comparing these two cases not only illuminates the structural differences among Thai and Sri Lankan formations of Buddhist constitutionalism, it also reveals the importance of historical factors—including the character of premodern and modern political regimes, the structure of Buddhist monastic hierarchies, the presence or absence of monarchy, colonial regimes, and military governments, among others—in shaping those formations. At the same time, using the method of historical comparison, I argue that both formations of Buddhist constitutionalism have produced their own distinctive types of regulatory crises involving state agents and Buddhist monks. These crises remain contentious and highly visible in Southern Asia today.

2. The historical antecedents of Buddhist constitutionalism: kings and monks in Buddhist political theory

As in the case of Islamic constitutionalism, the regulatory dilemmas of Buddhist constitutionalism have a long history. While Buddhist texts and epigraphy do not stand as objective historical witnesses, they nevertheless contain a number of idealized portraits of how monks and kings (two of the most common authors of Buddhist historical sources) conceived the perfect Buddhist polity. Reading these sources, one finds the presence of at least three different normative visions for how kings and monks ought to relate to (or regulate) each other: kings ought to regulate the purity of monks; monks ought to regulate the power of kings; kings and monks ought to exist in a perfect reciprocity of power. In addition to these three normative visions, one also finds evidence for a fourth type of relationship between kings and monks: a tense co-dependence or antagonistic symbiosis. In this section, I briefly review evidence for each of these three normative visions, while ultimately arguing for the importance of the fourth way for thinking about links between royal and ecclesiastical authority in Buddhist history.¹⁷

2.1. Kings>Monks

One can find many Theravāda Buddhist texts that seem to justify the preeminence of kings over monks. Compilations of Buddhist monastic law, known as Vinaya (meaning discipline), include passages requiring monks to abide by royal decrees. For example, Pāli versions of the Vinaya, used by Theravāda Buddhists, restrict entrance to the monkhood to those who are not already obligated to the king in some way. Therefore debtors, conscripts, prisoners, slaves, convicts, and others are forbidden from taking the robes of a monk.¹⁸

The early Buddhist record also offers mythological justifications for the elevated status of kings. In one important myth, the Aggaññasutta (the story of what comes first), the world’s first king is crowned in order to resolve the violence of the world’s first humans. Exhausted by a Hobbesian world of conflict and chaos, the text recounts, the populace come together to elect the most handsome and charismatic man to be the Great Elected One (Pāli: Mahā-sammata) to “criticize whoever should be criticized, accuse whoever should be accused, and banish whoever should be banished.”¹⁹ In return for this, they offer the new king a share of their harvest.

In Southern Asia, this story of the first king functions as more than just a moral tale. Since the early modern period, kings in the region have declared themselves to be descendants of the Mahāsammata, righteous monarchs (dhammarāja-s) whose edicts and actions conform to the “laws” (dhamma) of the Buddha.²⁰ In some cases, royal claims to righteousness have gone even further. In addition to claiming to be the rightful heirs to the Mahāsammata, kings have also declared themselves to be living bodhisatta-s, beings who, on account of their virtuous past lives and their innate meritoriousness, were destined to be reborn as future Buddhas.²¹

Material remains also support the ideology that kings ought to exercise authority over the monks who lived in their domains. The main evidence of this type comes from the stone monuments left by the Indian emperor Aśoka, from the third century bce.²² Those monuments, especially when read alongside the many ancient biographies of Aśoka, eulogize the right of kings to periodically “purify” the monkhood of impious or heterodox members. Royal edicts, chiseled into stone pillars during Aśoka’s reign, warn monks and laity of the harsh penalties facing those who cause schism within the Buddhist monastic order.²³ Hagiographies portray Aśoka as exercising that authority liberally and forcibly disrobing many thousands of monks in order to reform and unify the saṅgha in his domains.²⁴ In the Aśokan paradigm, kings not only embodied righteousness, they were responsible for auditing and protecting the righteousness of the monks who lived within their kingdoms.

2.2. Monks>Kings

Other evidence from Buddhist history indicates an alternative normative vision, one in which monks—as personifications and protectors of the Buddha’s dispensation—were supposed to have authority over kings. From one perspective, this rendering should not be surprising considering the fact that it was mostly monks who (with royal support) wrote and transcribed the early texts that contemporary scholars use to understand Buddhist history. Nevertheless, even considering this, one finds a considerable number of sources praising the idea that monks ought to supervise the activities of kings and determine which rulers were legitimate.

As seen above, Buddhist texts offered idealized visions of proper kings and polities. The ideal king is imagined to rule according to a specific set of virtues. These include justice, fairness, and the ability to ensure law and order. While discussions of royal virtues provided a language for glorifying kings, it also created opportunities for critiques of kings who did not live up to those standards. This is because the same texts that addressed Buddhist standards of royal virtue tended to place monks in the position of judging the righteousness (and therefore legitimacy) of Buddhist kings. One such set of standards was the dasa-rāja-dhammā, the ten major duties of Buddhist kings, which comprised: charity, morality, generosity, honesty, forbearance, piety, restraint, nonviolence, patience, and non-aggressiveness.²⁵ Another set of standards measured the righteousness of kings according to the wellbeing of monks who lived in the kingdom. In this view, a thriving and wealthy monkhood could be taken to indicate the presence of a legitimate and pious king. In this way of thinking, the justness and morality of rulers could be assessed according to whether or not they gave generously to monks.

Vivid rationalizations for the superior status of monks can be seen in Buddhist stories about the deference shown to Buddhist monks by ancient kings. Within Asia’s enormous body of Buddhist literature, one finds many narratives in which a king gives his seat to and prostrates before an ordinary Buddhist monk. Even in the context of ancient China, which had a maximal royal cult, one finds narratives that describe how Buddhist monks were exempted from demonstrations of deference to rulers.²⁶ One of the most famous Suttas (or didactic stories) in the textual corpus of the Theravāda tradition elaborates at length on the superiority of monks,²⁷ placing in the mouth of a powerful king the recognition that “we [kings] should pay homage to him [a monk], we should rise and invite him and press him to receive [gifts] from us.”²⁸

More than just gaining respect, monks also acquired land and manpower as the result of grants from pious kings. Over time, these grants led to significant wealth. Historians of Buddhism have shown that, by the early modern period, monks in Sri Lanka, Thailand, Burma, and elsewhere controlled vast amounts of cultivatable land and acted as landlords on a massive scale.²⁹ In addition to (tax-free) land grants, kings also granted to monastic orders the benefits of existing service-tenure arrangements, contracts between kings and peasants to provide various types of royal service. This could be service as cultivators, or as ritual specialists (e.g., drummers), or as tradespersons (e.g., as artisans or potmakers).³⁰ In certain times and places, then, Buddhist monks had considerable resources at their disposal. Monastic wealth and power even came to compete with that of kings by offering alternative avenues of influence and patronage for people living away from the royal capitals.

2.3. Kings/Monks

As a whole, Buddhist historical sources support two ideas: the idea that kings ought to (or did) exercise authority over monks and the idea that monks ought to (or did) exercise authority over kings. Also present in Buddhist political philosophy, however, are attempts to blend these models, and to create institutions that could harmonize royal and monastic power. The most common strategy for this involved clarifying the boundaries between the duties and domains of kings and those of monks. Some early Buddhist texts conceive these domains as complementary spheres of what (we moderns) might call temporal and religious affairs: “the way of visible things” (diṭṭhadhamma) and “that which is coming” (samparāya). Later texts offer a more fully elaborated jurisdictional division between two “wheels” (cakka-s): the wheel of power (āṇā-cakka) and the wheel of the Buddha’s teaching (dhamma-cakka).³¹ Evidence from early-modern Buddhist kingdoms in Southern Asia suggest that this jurisdictional division was also embodied in alternative bureaucratic hierarchies which corresponded to royal and ecclesiastical authority. At the top of the royal hierarchy was the king (rāja) with powers over affairs of the kingdom; at the top of the saṅgha hierarchy was a “saṅgha-king” (saṅgha-rāja) with powers over the affairs of monks and the Buddha’s teachings (dhamma).³²

A third strand of Buddhist normative thought, therefore, portrayed the relationship between monks and kings as one of mutual benefit, where monks supported kings and vice versa. Monks helped kings by consecrating their rule, performing state rituals, acting as advisors and serving as propagandists.³³ One vivid example of this last aspect can be seen in the lineage (vaṃsa) literature from Sri Lanka. Written by monks for particular kings, this literature reads as an extended mytho-historical justification for the rule of those kings, showing how they descended through illustrious genealogies, gave liberally to (the appropriate groups of) Buddhist monks and defeated invading enemies.³⁴ Those same kings who benefited from monastic propaganda also acted as powerful patrons for monks, giving food and protection, while also endowing large monasteries.³⁵

2.4. Antagonistic symbiosis

In a way, all three normative arrangements described above are influential. Kings had a degree of power over monks; monks had a degree of power over kings; monks and kings also needed each other. That is, if one considers the total portrait offered by Buddhist historical sources, the relationship between these two major power brokers in ancient Southern Asian polities was neither one of pure (royal or monastic) domination nor one of pure symbiosis. Rather, one sees both co-dependence and struggle. These struggles involved not simply competing claims of worldly versus supra-mundane authority, but material struggles over land, taxes, and autonomy. Even without wealth, Buddhist monks were sometimes able to rally supporters using charisma and moral suasion. In fact, monk-led rebellions were common in mainland Southeast Asia, particularly during periods of consolidating royal and colonial rule.

While it is impossible to generalize for all of places and times, one can say that, in Southern Asia before the eighteenth century, the relationship between Buddhism, monasticism and political authority was characterized by both mutuality and conflict between kings and monks. This situation has been described by the well-known historian of Sri Lanka, R.A.L.H. Gunawardana, as one of antagonistic symbiosis.³⁶ It is antagonistic symbiosis—this simultaneous (or oscillating) codependence and rivalry between political elites and monks—that serves as the one of the key regulatory dilemmas animating Buddhist constitutionalism in the twentieth century.

3. The formations of Buddhist constitutionalism: 1800s to the present

The formations of Buddhist constitutionalism that one sees today in Southern Asia have grown out of opposing schemes for managing this longstanding antagonistic symbiosis between monks and rulers using the instruments of modern law and bureaucratic administration. In designing and deploying these formal institutions, Southern Asian lawmakers have built upon and blended two normative strategies taken from Buddhist history: one strategy has been to resolve the regulatory struggle between civil and monastic authority by extending state control over the saṅgha; a second strategy has involved a jurisdictional split between civil and monastic authority, specifying for each specific zones of authority. The various configurations of Buddhist constitutionalism that one finds operating in Sri Lanka, Thailand, Myanmar, Cambodia, and Laos today emerge from some combination of these two strategies. They also emerge from the distinctive legal and institutional environment of modern nation-states. In premodern polities, the boundaries between royal law, the Buddha’s law (dhamma) and monastic norms (Vinaya) tended to be, like territorial boundaries, hazy, and shifting.³⁷ This haziness came to be seen as a problem by legal modernizers in nineteenth- and early-twentieth-century Southern Asia. Local and colonial lawmakers sought to bring clarity, consistency, and coherence to law.³⁸ In the constitutional age of the twentieth century, the solution to antagonistic symbiosis took the form of constitution-like basic laws: sets of comprehensive, prescriptive, positivist rules, written in the vernacular, circulated widely, and applicable evenly to all citizens living within a country’s newly solidified territorial boundaries.³⁹

Against this backdrop, one can read the formations of Buddhist constitutionalism in Thailand and Sri Lanka as opposite strategies for dealing with antagonistic symbiosis using the instruments and imaginaries of modern legal and constitutional thinking. Thailand has adopted a form of Buddhist constitutionalism that manifests maximally the first type of strategy: extending state control over the monkhood. Sri Lanka has adopted a form of Buddhist constitutionalism that manifests maximally, or comparatively so, the second type of strategy of defining zones of monastic autonomy from the state. In both cases, these developments reflect historical inheritances as well as deliberate political calculations. Thailand’s developments owe much to that country’s lack of colonial occupation, the influence of military regimes and the persistence of the institution of kingship. Sri Lanka’s strategy emerged out of a history influenced enormously by colonization, monastic segmentation and the disestablishment of Buddhist kingship. Buddhist constitutionalism is, in this way, as much a historically contingent outcome as a politically confected arrangement.

In this section, I explain the characteristics, history, and results of these divergent trajectories of Buddhist constitutionalism. Starting with the nineteenth century, in which ideologies of modern legalism first begin to gain influence, I examine the distillation of contemporary Buddhist constitutionalism. I also show how these opposing modes of Buddhist constitutionalism have given rise to different types of regulatory crises. In Thailand, these crises relate to the integration or expulsion of Buddhist groups from an official national monkhood. In Sri Lanka, these crises relate to deep disagreements over the proper sources of Buddhist authority.

3.1. Thailand

(a) Centralized state control of the sa·ngha

Thai Buddhist constitutionalism has managed the antagonistic symbiosis of governmental and monastic authority by bringing monks under the control of the state, or more precisely, under the ambit of royal and bureaucratic authority. Compared with its Southern Asian neighbors, Thailand has the most complete and comprehensive legal and bureaucratic structures for regulating monks. Thailand’s government recognizes and oversees a formal monastic hierarchy that stretches, in theory, to all parts of the country. These structures of authority are bolstered and administered by special state institutions as well as a specific statute, the Sangha Act of 1962 (amended in 1991 and 2017), which is the third in a series of similar Sangha Acts enacted by Thai kings and governments since 1902.

As laid out in the 1962 Act, Thai monks come under the authority of a single monastic ruler, the Supreme Patriarch (Thai: sanghkarat; Pāli: saṅgha-rāja), who is appointed by the king from a list of qualified candidates.⁴⁰ In reigning over the pyramidal structure of Buddhist monks in Thailand, the Supreme Patriarch acts on the advice of a council of senior Buddhist monks called the Council of Elders (mahatherasamakhom), whom he partially appoints.⁴¹ A lay bureaucrat, the Director-General of the Office of National Buddhism,⁴² also sits on the Council as ex officio Secretary-General; and the Director-General’s office serves officially as the meeting place for the Council (art. 13 of the Sangha Act). Thus, in its administrative structure and physical location, the influence of the king and state officials over the Council is clear. State influence is further assured by the requirement that the Council gain the signature of the relevant Minister before issuing an order to dismiss or appoint monks. When it comes to the powers of the Supreme Patriarch, the Sangha Act specifies that he may “govern” the country’s monks provided his dicta do not contravene the Theravāda code of monastic discipline (Vinaya), existing laws passed by the Council, or any of the orders and laws enacted by the state (art. 8).

Under the terms of the Sangha Act, the Supreme Patriarch and the Council of Elders—along with the state officers who participate in and help administer the Council—have formal, legal authority over monks in Thailand. The Council exercises this power through a carefully designed hierarchy that parallels that of Thailand’s civil administration. The Council of Elders stands at the apex of a pyramid of “ecclesiastical governors” (chaokhana) and sub-councils at the regional, provincial, district, and sub-district levels. The Act presents these monastic officials as reigning over the abbots of individual temples throughout the country.⁴³ It also empowers higher-ranking officials to appoint lower-ranking ones (art. 22). In this way, the Council’s orders and regulations are imagined to flow “downwards” to individual temples through the capillaries of an official, centralized saṅgha hierarchy. At the same time, the Act gives the Council of Elders final say in all matters of monastic discipline. This means that, legally speaking, the Council of Elders (under the supervision of government ministers and the king) ultimately determines who can and cannot be recognized as a monk. In law, if not always in practice, the Council has the power to disrobe those monks who do not conform to its standards (arts. 24–30). This hierarchical network also gives the Council significant powers over movable and immovable temple property. The Sangha Act vests monastic property in trust with the individual temples (which are classified as juristic persons), while also giving the saṅgha hierarchy and Department of National Buddhism ultimate oversight over that property. Similarly, any new temple construction or renovation must receive approval from the Council (art. 32).⁴⁴

In its conception and application, then, the 1962 Sangha Act is specifically designed to bring hierarchical order to the saṅgha, such that it can be regulated and, in certain cases, put to use by the state.⁴⁵ This fact is borne out in the history of drafting the 1962 version of the Act. Field Marshall Sarit introduced the 1962 law after his coup as a way to shore up the military government’s power over the saṅgha and to repeal the effects of a 1941 law that, in Sarit’s view, had inappropriately introduced democratic and decentralized procedures into the national saṅgha hierarchy. As with Thai society generally, Sarit argued that too much democracy in the saṅgha would produce strife and dissension.⁴⁶ Starting in the 1960s, Sarit used the newly centralized system as a way to help put Thai monks in service of broader government goals. These goals involved deploying monks to combat communism in the North and East and to inculcate among rural villagers a standardized “national” (central Thai) culture, language, worldview and way of practicing Buddhism.⁴⁷ More recent bureaucratic and judicial decisions have conformed to Sarit’s vision of the Council of Elders as having primary authority over Thailand’s monks. For example, in two instances from 2002 and 2004, the Supreme Administrative Court refused to hear petitions from Buddhist monks who sought to appeal the Sangha Council’s decision to disrobe them, insisting that the Council has exclusive jurisdiction for including or barring monks from the official saṅgha hierarchy.⁴⁸

(b) Historical contexts

This modern system of centralized saṅgha administration grows out of a longer history of attempts to centralize, standardize and control monastic groups. While there is a very old history of royal control over the saṅgha in the lands that are today controlled by modern-day Thailand,⁴⁹ the origins of Thailand’s contemporary Sangha Act can be traced more directly to the late 1700s. From 1782, following the establishment of the Chakri dynasty in Bangkok (the dynasty that still reigns today), Thai kings introduced a series of regulations and administrative decrees designed to standardize monastic life and bring it more closely under control of the king. In 1782, King Rama I declared the first of ten “saṅgha laws” that aimed to regulate the activities of monks as well as the relationships between monks and laity.⁵⁰ These decrees proscribed certain behaviors for monks, which were considered to be unbecoming. They also empowered royal officers to audit monastic conduct and, if necessary, recommend that certain monks be disciplined.⁵¹

Over the course of the century, other Chakri kings expanded on the regulatory programs introduced by Rama I. In 1859, King Rama IV (King Mongkut) implemented a comprehensive registration system for all temples patronized by members of the royal family. This program required the abbots of those temples to submit registries of local monks to district officials, who would then convey them to Bangkok. By 1902, King Rama V (King Chulalongkorn) introduced the first Sangha Act, extending this system of registration to all Buddhist temples (royal and “ordinary temples”) within the newly established borders of the Thai state.⁵²

The goal of these nineteenth-century reforms was the creation of a single, unified saṅgha, which—like Thailand’s new, modern bureaucracy—would be uniformly disciplined, educated and loyal to the king. With these goals in mind, the Chakri kings attempted to integrate and reform the country’s multiple monastic orders. Prior to these reforms, monastic groups (khanas) formed along multiple lines of affiliation, such as affiliations to a particular teacher, region or language. Thailand’s monks were also divided into two major fraternities (nikai), which continue to operate to this day: the Thammayut, a small fraternity founded by then-Prince Mongkut in 1833 and associated with the royal family; and the Mahanikai, or “great fraternity” consisting of all other monks.

In strengthening and centralizing the monastic hierarchy, Chakri kings, and especially Rama V, sought to give the saṅgha more centripetal force. Although framed in the language of monastic purification, this process of centralization had the effects of elevating royal and state authority over that of monks. It was the king who appointed the Patriarch and other high-ranking monks; and those royally endorsed monks (disproportionately from the Thammayut Nikai) oversaw the promotions of monks underneath them. The system of ranks was reinforced by the hierarchical distribution privileges and honors. High-ranking clerics received honorary titles, cash stipends, preferred seating position in large ceremonies, monastic secretaries and assistants, explicit grants of authority over temples and temple lands and powers to adjudicate disputes among monks.⁵³

From the middle of the century, bonds of blood further solidified the links between saṅgha and the king. Royal monks (princes in the Thai monarchy) increasingly came to serve as high-ranking members of the official saṅgha. In 1851, the Chakri dynasty achieved an unprecedented linking of royal and monastic power: a high-ranking prince in the royal family became head of the kingdom’s monks; and a high-ranking monk, who had been genealogically in line for the throne, cast off his robes to take the position of king.⁵⁴ These close familial links between monastic leaders and the royal family would endure for most of the nineteenth century, as would the disproportionate representation of Thammayut Nikai monks (who, although far fewer in number than the Mahanikai, enjoy greater royal patronage) in the official monastic hier archy.⁵⁵ And the close collaboration of kings, royal officials and prince-monks would help to build a thoroughly state-led system for overseeing, disciplining, registering and credentialing monks.

(c) Buddhist regulatory crises, Thai-style

Buddhist constitutionalism, in its Thai guise, is a project that has roots dating back more than two centuries. It is also a project driven by an attempt to use law and formal institutions to regulate and centralize the authority and activities of Buddhist monks. Although the formal saṅgha hierarchy does not influence all of Thai monastic life,⁵⁶ it does give rise to distinctive types of regulatory crises, involving struggles over the recognition and control of monastic groups that do not conform with the standards of practice endorsed by the Council of Elders. In fact, tense struggles of this type followed almost immediately after the introduction of the first Sangha Act in 1902 (a similar law to the 1962 Act) and have continued to crop up regularly in the intervening decades.

Between 1908 and 1935, a major struggle over monastic recognition and control took shape in the northern Thai region of Lanna, involving a charismatic monk from the northern Yuan tradition of Buddhism, named Kruba Siwichai.⁵⁷ By most accounts, Siwichai did not set out to rebel against centralized monastic authority. Rather, his transgressions resulted directly from the gradual extension of monastic regulations to Lanna, which, until the late 1800s, had existed as a separate tributary polity. On three separate occasions, saṅgha officials charged Siwichai for violating rules of monastic discipline by engaging in what were, at that time, customary practices in Lanna. At the core of his trials was the accusation that Siwichai had performed illegal ordinations. What made them illegal was that Siwichai did not gain approval from the local state-appointed saṅgha official. They were also illegal because Siwichai, although a senior monk, had failed to register himself as an upajjhaya, a monk with the authority to ordain other monks. Refusing to renounce or reform his behaviors, Siwichai was detained on multiple occasions by representatives of the government. However, his popularity as a religious leader made it difficult for state agents to coerce him into cooperation. On several occasions over the course of his trials, Siwichai’s supporters rallied to his defense, intimidating would-be state disciplinarians. In the end a tense détente was reached by Siwichai performing his obedience through signing a document pledging that he would abide by the terms of the 1902 Sangha Act, even though in practice his activities seem to have carried on.

The trials of Siwichai show early examples of how the project of centralizing state authority over the monkhood generated conflicts over the activities and recognition of particular monks and monastic groups. By creating a hierarchical, centralized monastic institution, with a mandate to standardize and order monastic life throughout the country, the Thai state positioned itself and its official monastic body as the arbiters and enforcers of monastic orthopraxy. In so doing, it created the possibilities for implicating the state in conflicts over heteropraxy. In the case of Siwichai, conflicts over ordination (and other monastic activities) overlapped with conflicts over regional independence for Lanna: embedded in the contest between Siwichai and central authorities were other contests over Lanna’s cultural, linguistic and political independence from Bangkok. Echoing a key feature of antagonistic symbiosis described in Section 2, the Bangkok authorities viewed Siwichai not simply as a threat to their version of Buddhist orthodoxy, but also as a charismatic figure around whom political resistance might be organized.⁵⁸

In recent decades, one can observe a similar pattern. As with Siwichai, Thai-style Buddhist constitutionalism has continued to generate conflicts over monastic membership and control, which often overlap with other salient political and social divides. Similarly, these conflicts have tended to involve Buddhist monastic groups that acquire popularity and wealth outside the official saṅgha’s structures of power. In contemporary Thailand, the most important and influential Buddhist movement of this type is Wat Phra Dhammakaya, a temple and monastic organization that started around 1970. In recent decades, the Dhammakaya movement has grown quickly. It is now the wealthiest Buddhist organization in Thailand and one of the most popular. The group’s teachings differ from the standardized Buddhism of the official saṅgha hier archy. Dhammakaya recommends a special style of meditation, expounds a unique doctrine of enlightenment and advocates a style of religiosity that, for many critics, looks more like US-style mega-churches than traditional Thai temples. (Dhammakaya’s 800-acre temple complex outside of Bangkok attracts as many 100,000 worshippers on holidays.⁵⁹) Teaching these unique practices and doctrines, and relying on a very sophisticated outreach and media apparatus, the Dhammakaya movement has garnered considerable support, particularly from upwardly mobile middle-class urbanites, including a number of powerful business and political leaders.⁶⁰ This popular support has also translated into financial support: through a variety of fund-raising efforts, coupled with the sale of merchandise and ritual donations, Dhammakaya has raised billions of baht. It has also attracted the scorn of critics who accuse the group of advocating an ethos of crass materialism.⁶¹

Under the centralized regime of monastic authority that characterizes Buddhist constitutionalism in Thailand, the rise of a new Buddhist monastic group, with an alternative style of religious practice as well as a strong base of popular support, is threatening on two levels. On one level, Sangha authorities in Thailand view Dhammakaya’s version of Buddhism as a threat to orthodoxy, one that requires the reform or disrobing of heterodox monks. On multiple occasions, from 1998 onwards, the Council of Elders, the Supreme Patriarch and government officers have filed charges against the chief abbot and monks of the Dhammakaya, including allegations of misappropriating temple property, misinterpreting Buddhist teachings, constructing improper Buddhist images, improperly marketing itself and falsely claiming to have performed miracles.⁶² On another level, once labeled as heterodox, these groups, if powerful, can pose a second type of challenge to the official saṅgha and the Thai state. This challenge consists in the fact that monks who are accused of heterodoxy may refuse to accede to the dicta of the Council or Supreme Patriarch, even when those dicta are backed by the coercive powers of the state. This, in turn, threatens to expose the weakness of the official (monastic and state) system and the de facto independence of monastic groups that can mobilize large numbers of people.

This is exactly what has happened from the 1990s to 2017 in the case of Dhammakaya. Saṅgha authorities have found it extremely difficult to control or “downgrade the status” of a movement so popular and powerful.⁶³ For example, during the course of investigations from 1998 to 2000, the chief abbot of Dhammakaya refused to attend a number of disciplinary meetings. In addition, he publically challenged the moral authority of both the official saṅgha authorities and of state officials. Although the chief abbot ultimately agreed to transfer certain property titles out of his own name and into a temple trust (a key demand made by officials), state authorities appeared to have had no choice but to drop all other charges.⁶⁴ This retreat from prosecution reflected the influence of Dhammakaya supporters, which, like the supporters of Siwichai in the early 1900s, succeeded in using popular and political power to defend the group’s independence.

Today, the situation has grown even more tense, with the Thai junta taking a much more aggressive posture towards investigating and charging the head monk of Dhammakaya. As before, the chief abbot has refused to cooperate with special investigators and has ignored summons, saying that the charges were false. This time, however, the regime responded by ordering a massive, police siege of Dhammakaya’s main temple, blocking people and essential supplies from entering in an effort to force the abbot out of hiding. As before, “disciplining” Dhammakaya is proving challenging, requiring drastic and alarming power-plays on the part of the state. In pursuing Dhammakaya, the junta has taken a no-holds-barred approach and made use of emergency-style powers (listed under the controversial article 44 of the interim 2016 Constitution) to reassert the state’s position as the ultimate supervisor and arbiter of legitimate monastic authority in Thailand. In early 2017, the regime even took the dramatic step of amending the Sangha Act to give the king (and the regime) even greater say in appointing the Supreme Patriarch. General Prayuth pursued this amendment, observers note, in order to avoid the appointment of a senior Mahanikai monk who—although he served as acting patriarch after the death of the previous patriarch in 2013 and was nominated for the position by the Council of Elders—had been resistant to the junta and friendly with Dhammakaya’s head abbot.⁶⁵

As seen in the case of Kruba Sivichai and Dhammakaya, particular types of regulatory crises accompany Buddhist constitutionalism in its Thai formation. Thai kings and governments have responded to the tensions between state and saṅgha by creating basic laws that give the state formal powers to control monks though creating and overseeing an official monastic hierarchy. This official hierarchy has, however, been unable to exert total control over popular monastic groups. All the same, Thai regimes have consistently portrayed monastic unity as essential to the protection of Buddhism; and the protection of Buddhism has been, since the 1932, a central feature of Thailand’s twenty-plus constitutions.⁶⁶ Thailand’s latest draft constitution, endorsed by the junta but as-yet unratified, adds to existing protections for Buddhism even stronger provisions empowering the Thai state to “establish measures and mechanisms to prevent the desecration of Buddhism in any form and encourage the participation of all Buddhists in the application of such measures and mechanisms”⁶⁷—a provision which, judging by recent regulations issued by the regime,⁶⁸ will further enable it to claim the right to engage in Aśoka-like oversight over standards of Buddhist orthopraxy and orthodoxy.

The Thai formation of Buddhist constitutionalism, although it has given the state powers to centralize and supervise the saṅgha, has also led to significant conflicts at the margins. Where the state cannot formally coopt and control popular monastic movements, it creates tense standoffs between semi-autonomous monastic groups and the state’s own saṅgha authorities. Thai-style Buddhist constitutionalism essentially leaves state and saṅgha authorities with two options for dealing with would-be independent sects: controlling/coopting them or disrobing them. This makes monastic conflicts a high-stakes game that, as recent events indicate, a control-minded regime cannot afford to lose. On the other side, monks who value autonomy, or object to the state-monastic curriculum, or feel slighted by the system of ranks and promotions are left with few options too. They must either operate outside of the system as in the case of Siwichai (or the reformist movement, Santi Asoke,⁶⁹ or Thailand’s Buddhist nuns⁷⁰); or seek some kind of awkward accommodation within the system as in the case of Dhammakaya in the late 1990s; or, in extreme cases, directly resist state control and risk being the targets of coercion, as in the case of Dhammakaya since 2016.

3.2. Sri Lanka

(a) The complex anatomy of Sri Lanka’s sa·ngha

If the Thai form of Buddhist constitutionalism manages the tensions between state and monastic authority by empowering royal and government officials, the Sri Lankan system gives significant power and autonomy to monks themselves. As in Thailand, there are sociological and historical reasons for this. Buddhist constitutionalism, in its Sri Lankan guise, emerges within a monastic milieu different to that of Thailand. In general, Sri Lankan monastic orders are more decentralized and autonomous than those of Thailand. In fact, the desire to protect monastic autonomy was a key issue of debate during the drafting of Sri Lanka’s first republican constitution, especially during discussions about how to describe the special status of Buddhism on the island. While many drafters wanted to declare Buddhism the “state religion (Sinhala: rajyāgama),” this phasing was stridently (and successfully) opposed by groups of Buddhist monks who worried that calling Buddhism the “state religion” insinuated that the government had regulatory control over the island’s saṅgha.⁷¹ These monks, and their supporters, eventually forced the island’s constitution drafters to abandon “state religion” in favor of a clause that did not suggest state powers over monks. The clause they settled on, embodied in article 9, gave Buddhism the “foremost place” while also obligating the state to “protect and foster” the Buddhist teachings and institutions.⁷²

As this story about constitution drafting indicates, Sri Lankan monks have been very resistant to attempts on the part of the state to regulate the saṅgha. Sri Lanka has never developed an equivalent to the Thai Council of Elders. No single island-wide hierarchy, official or unofficial, structures the monkhood. Separate hierarchies exist within each of the island’s three major independent fraternities, or Nikāya-s: the Siyam Nikāya, Amarapura Nikāya and Rāmañña Nikāya. (The fraternities are named for the areas to which they trace their ordination lineages: Siyam or Siam, and Amarapura and Rāmañña in present-day Myanmar.) The Siyam Nikāya is the largest and oldest fraternity; and it has its headquarters in Kandy, the site of the island’s last Buddhist kingdom (until its conquest by the British in 1815). The Rāmañña and Amarapura Nikāya-s were established later and have their major centers in the southern and western parts of the island. Roughly half of the island’s monks belong to the Siyam Nikāya, while the rest divide among the Amarapura and Rāmañña Nikāya-s.⁷³

Although Buddhists in Sri Lanka often refer to the island’s monks as part of a single great community of monks (Sinhala/Pāli: mahā-saṅgha), in practice deep principles of division separate the fraternities. These divisions relate to location, pupillary lineage, and especially caste (Sinhala: kula).⁷⁴ Moreover, two of the three major fraternities are also internally segmented, containing dozens of autonomous sub-groups: these are called chapters (pārśava) in the case of the Siyam Nikāya and, confusingly, called “fraternities” (niyāka [I will use the lowercase “n” to distinguish in transliteration]) in the case of the Amarapura Nikāya.⁷⁵ These sub-groups go by different proper names, maintain distinctive organizational structures and perform their own separate higher ordination ceremonies.⁷⁶ They also differ in how they dress, interpret disciplinary codes and practice rituals. In 2012, the Department of Buddhist Affairs, the government office charged with liaising with the island’s monks, recorded eight separate sub-groups within the Siyam Nikāya and twenty-one separate sub-groups within the Amarapura Nikāya.⁷⁷ Other statistics from 1989, quoted by one scholar in 2002, put the total number of sub-fraternities at forty-three.⁷⁸ In both cases, one can assume that the actual number of independent sub-groups is larger than reported figures insofar as those figures do not include non-registered sub-groups.⁷⁹ In some cases, separations among these sub-groups may be almost as great as that of the fraternities.

(b) Monastic property and legal regulation of monks

Already one can see that, compared to the closely centralized and regulated hier archy of the official Thai system, the Sri Lankan government recognizes segmentation at many levels. The depth and persistence of this segmentation relates closely to the ways in which the monastic groups and the state regulate monastic property, which differs considerably from Thailand. In most Thai temples, the chief monk, or abbot, administrates temple property in consultation with a group of lay trustees. Officially, this happens under the supervision of regional, district, provincial and countrywide superior monks. By contrast, in most Sri Lankan temples, the abbot—or vihārādhipati (literally “temple governor”)—has considerably independence and relatively little oversight from the state. While there are some formal statutory restrictions on what abbots may and may not do with temple property (see below), abbots have considerable discretion in the use and transfer of property. Moreover, and in further contrast to the Thai system, civil courts rather than monastic tribunals have ultimate authority for adjudicating disputes over temple lands in Sri Lanka. In Sri Lanka, property disputes often appear first in monastic tribunals (adhikaraṇa) or assemblies (sabhā) within a given monastic chapter. However, if the dispute cannot be resolved there, they can be (and in many cases are) appealed to civil courts, where civil court judges hear them. This means that Sri Lanka’s civil courts see a considerable number of cases involving disputes among two or more monks over the control of temple property.⁸⁰ One lawyer who appears regularly in these types of cases estimates that there are approximately forty cases per year.

If the state regulation of the saṅgha in Thailand is felt primarily in the regulation of membership, hierarchy and discipline, in Sri Lanka it orients primarily around the adjudication of disputes over temple property. In addition to the texts and procedures used by fraternities (and subchapters) to manage property disputes, two bodies of state law also address these disputes: an ordinance, introduced first in the late colonial period, called the Buddhist Temporalities Ordinance (temporalities being the term given to the matter of Buddhist properties by the British, who first drafted a law of this type—see below); and a body of common law that dates back to the early 1800s, before the introduction of any statute or ordinance, referred to as Buddhist Ecclesiastical Law.

The Buddhist Temporalities Ordinance (most recently amended in 2013) lays out rules for how to manage the property of Buddhist temples. For all “ordinary” Buddhist temples, which constitute the vast majority of temples on the island, the Ordinance specifies that property is controlled by a trustee who is appointed for a five-year term by the abbot of the temple. As the abbots may appoint themselves as trustees, today in Sri Lanka most abbots are also trustees for the temple. The Ordinance lists acceptable uses of temple property or income. These include expenses relating to: maintaining the temple, supporting monks, paying temple workers, promoting Buddhist education, performing regular rituals, assisting the poor, and covering administration costs and legal expenses relating to the preservation of temple property.⁸¹ While the Ordinance allows the Commissioner of the Department of Buddhist Affairs to monitor temple expenses, Commissioners—who are usually career civil servants rather than experts in Buddhism—rarely intervene punitively in monastic affairs. This means that temple abbots/trustees have considerable independence and flexibility in how they acquire, use and dispose of temple income.

Thus, in a context of decentralized authority, the temple abbot has significant control over monastic life: he manages temple property, governs local monastic affairs and has fairly independent authority over the monks who reside with him.⁸² As a result, the post of abbot remains highly sought-after and contested. A general rule-of-thumb applies to the appointment of an abbot. He should be the most senior, qualified successor to the previous abbot, in a system of “student-after-student” succession.⁸³ (Senior, in this case, refers not to a monk’s age but to the number of “rainy seasons” that the monk has passed in robes since he was ordained.⁸⁴) Despite this overarching norm, numerous types of disagreements can occur, involving questions such as: Can an abbot handpick a successor who is not the eldest pupil? How should succession proceed in cases where incumbents or successors disrobe?⁸⁵

Unlike the rules for using temple property, which are laid out in statutes, courts assess incumbency-claims according to Buddhist Ecclesiastical Law (see below). The size and scope of the corpus is vast. One recent volume, representing the most comprehensive analysis to-date, refers to over 200 Supreme Court judgments.⁸⁶ The various guidelines for determining succession collected in this law derive from a mixture of sources, including: rules of monastic comportment contained in Pāli texts, testimony from senior monks and customary practices at temples as described by government officials, monastic residents and lay patrons.

(c) Historical contexts

Buddhist constitutionalism in Sri Lanka manages the key regulatory dilemma of competing monastic and state authority by giving greater power and autonomy to monks. From one perspective, this approach reflects and encourages the deep segmentation of Sri Lanka’s monkhood: a decentralized saṅgha requires structures of regulation that permit decentralized control of temples and monks; and decentralized control of temples and monks makes possible further segmentation. From another perspective, however, historical factors seem determinative. The legal regulation of the saṅgha in Sri Lanka is not only the result of regulatory decisions made by successive Sri Lankan governments in response to a segmented monkhood, it is also the result of policies introduced by the British during a period of direct colonization—something that Thailand did not encounter.⁸⁷

Colonization affected Sri Lankan Buddhism in many ways. However, when it comes to the relationship between government and monks, colonialism’s most consequential legacies come from its dismantling of the institution of kingship. In 1815, the British deposed the last king of Sri Lanka, the ruler of the highland kingdom of Kandy. This change posed several dilemmas for the antagonistic symbiosis between monks and kings. Without a king, who would exercise traditional royal prerogatives to purify the saṅgha of heterodox monks, to donate land and money to the saṅgha and to act as final arbiter in monastic disputes?

British colonists initially took over these roles themselves. Yet, starting in the 1830s, colonial policies started to shift and British governors gradually moved to extricate themselves from responsibilities for local religions. As it related to the saṅgha, British officials transferred to colonial courts many of the powers formerly assumed by monastic bodies and kings. Using Buddhist texts (in translation), evidence from senior monks and the brokering of local court mediators and translators, British (and later Ceylonese) magistrates gradually took responsibility themselves for adjudicating disputes over monastic property, incumbency and succession according to British common law notions of property and trusts.⁸⁸ This process, over time, altered legal and popular understandings of monastic property. Monastic lands and assets came to be treated neither as something endowed to the temple by the king or the state, nor as something imaginatively held in trust for the entire monastic community (referred to in early Buddhist texts as “the saṅgha of the four quarters”), but as something controlled by specific senior monks. That is, by the late colonial period, British civil courts had crafted a body of case law and a corpus of legal knowledge that legitimated and defended the fiduciary powers of a single individual: the temple abbot.⁸⁹

As in the era of kings, intra-fraternity hierarchies and tribunals continued to exist. However, by the second half of the nineteenth century, the powers of these bodies had declined in the face of the growing powers of civil courts. According to the terms of Sri Lanka’s colonial and post-colonial legal systems, the judgments of monastic tribunals were not enforceable by the state. Moreover, they were only of advisory value to courts; and judges regularly ignored and overturned the decisions made by monastic bodies.⁹⁰ In contrast to nineteenth-century Siam—where kings and their officers created new, official, centralized hierarchies of saṅgha authority—in nineteenth-century Ceylon, colonial legal structures disempowered existing monastic hierarchies by empowering individual abbots. This, in turn, created new opportunities and incentives for the formation of novel subgroups. With control of temple property vested in the figure of the abbot (and not the broader chapter, fraternity or monkhood as a whole), schismatic monks had little to lose in the way of material resources by separating from the parent fraternity—and much to gain.

(d) Buddhist regulatory crises, Sri Lankan-style

Clearly, devolved control of temple property and the decentralized nature of Sri Lanka’s monkhood have generated conflicts over monastic property. However, they have also generated specific types of regulatory crises over doctrine, discipline and religious authority. Consider for example a very recent and very public legal dispute involving the right of a Buddhist monk to drive a car.⁹¹ Central to the case, which lasted ten years in the island’s High Court and Supreme Court, was the question of whether the government would violate its duties to “protect and foster” Buddhism by permitting a Buddhist monk to drive a car (something that monks do not normally do in Sri Lanka). Dozens of monks, lay donors, and government officials participated in the case, which generated considerable acrimony and anxiety among Buddhists on the island. On the one side was Ven. Paragoda Wimalawansa Thero, the monk who requested the license, supported by approximately twenty other Buddhist monks, many of them abbots of small semi-urban temples. In submissions to the court, this group insisted that driving was essential to Buddhist monks because it allowed them to fulfill their many religious duties more efficiently. These duties included conducting rituals, teaching Sunday schools and ministering to lay persons. On the other side were some the best known senior monks on the island, including the recognized head monks of the three overarching monastic fraternities (big “n” Nikāya-s). They objected to Wimalawansa’s petition insisting that, by driving, Buddhist monks would be transgressing traditional standards of comportment. Therefore, they argued, the state’s clear constitutional obligation to protect Buddhism also entailed an obligation to deny monks the legal right to drive.

In tracking the arguments made for and against Wimalawansa, both in the courtroom and in public media, one sees clearly how the decentralized nature of Buddhist authority and property in Sri Lanka has made disputes about monastic discipline—or Buddhist orthodoxy, in general—so contentious. Both Wimalawansa and his opponents offered compelling evidence, taken from Buddhist texts and customs, to attack or defend, respectively, the acceptability of monks’ driving. Both cited Pāli sources and pointed to important Buddhist principles. Yet, in the absence of an official or island-wide monastic hierarchy, there was no supreme ecclesiastical authority to evaluate the merits of the evidence. Each side claimed their own authority to speak for Buddhism. Wimalawansa repudiated the interpretations and authority of the senior monks who gave evidence against him, insisting that they had no authority to judge the behavior of individual abbots.⁹² Conversely, Wimalawansa’s opponents claimed that he and his supporters had no authority to demand changes to customary standards of Buddhist monastic comportment, nor to justify those changes in terms of Buddhist doctrine.

When the Court of Appeal eventually passed judgment on the matter, rejecting Wimalawansa’s petition, this too provoked a crisis of authority. In justifying its decision, the appellate court offered its own interpretations of monastic discipline. Yet, in doing this, the court, consisting of two Buddhist lay persons, could not help but dictate standards of discipline to Buddhist monks—a reversal of the normal ordering of Buddhist knowledge and power in Sri Lanka’s decentralized monastic system. Therefore, in the end, the court’s decision managed to upset both parties, including the “winning” side!⁹³

The driving license case is not unique in the history of Buddhist constitutionalism in Sri Lanka. Over the last five decades, one can point to similar legal, political and social conflicts.⁹⁴ Legally, one finds a number of cases in which Buddhist monks face-off in court over the acceptability of certain types of behavior, with both sides claiming to be authorized voices for Buddhism. Aside from driving, monks have clashed in court over the issue of Buddhist monks working as social workers and lawyers. Unlike in Thailand, civil courts find themselves in a double-bind of being called upon to resolve the doctrinal and disciplinary disputes that inevitably arise in the context of a decentralized saṅgha, while at the same time not being able to claim the official and traditional religious authority to do so.

Similar conflicts have occurred in the political domain. Since the 1940s, Buddhist monks, interest groups, lay organizations and others have participated in fierce conflicts over the questions of whether monks should participate in politics and whether the government should regulate monks. In both matters, monastic autonomy has won out. Unlike Thailand, which has entirely disenfranchised monks and other religious leaders,⁹⁵ Sri Lankan monks not only vote, they also contest and hold public office, including seats in the national parliament. As of 2017, there were two monk-led political parties: the fairly unsuccessful Bodu Jana Peramuṇa (the Buddhist People’s Party) led by the monastic nationalist organization, Bodu Bala Sēnā (army of Buddhist power); and the more successful Jātika Heḷa Urumaya (the national [Sinhala] heritage front) or JHU, which first rose to prominence in 2004 and whose members continue to hold influence in government.

This is not to say that the Sri Lankan government has not tried to pass legislation similar to the Sangha Act in Thailand. Since the 1940s, Sri Lanka’s successive governments have repeatedly attempted to create a national Buddhist council (maṇḍalaya) to oversee, among other things, the discipline and organization of the saṅgha. More recently, in early 2016, the Sri Lankan government even introduced a bill called the “Therawadi Bhikkhu Kathikawat Bill,” designed to give the high-ranking monks of officially recognized monastic fraternities greater legal powers to discipline individual monks within those fraternities (similar to powers given to the Thai Council of Elders). In all cases, these legal interventions failed because they were opposed by monks (supported by opposition politicians) who were wary of any state encroachments on monastic autonomy.⁹⁶

In Sri Lanka, Buddhist constitutionalism has not created a centralized, state-governed saṅgha, but has recognized and amplified existing lines of segmentation among monastic groups. This has led not just to disputes over temple property but to more general disputes over who has the authority to speak for Buddhism and/or regulate the behavior of the saṅgha. The regulatory dilemmas of Buddhist constitutionalism in Sri Lanka do not provoke crises of official monastic membership and control (as in Thailand) but crises of authority, characterized by an unsettling atmosphere of non-resolvability when it comes to questions about who is entitled to speak officially for Buddhism. If, in Thailand, the regulatory crises of Buddhist constitutionalism call into question the legitimacy of the Council of Elders and their powers over the monks, in Sri Lanka the regulatory dilemmas of Buddhist constitutionalism call into question the very possibility of Buddhism being a singular doctrinal, institutional or monastic whole. In all of the disputes described above—from the case of the driving monk, to the matter of monks in politics, to the disputes over creating island-wide bodies to supervise monastic affairs—one sees the ostensibly unbridgeable diversity concerning the ways that monks govern themselves as well as understand and mobilize Buddhist norms.

4. Conclusion

4.1. The formations of Buddhist constitutionalism in Thailand, Sri Lanka and beyond

As with Islamic constitutionalism, Buddhist constitutionalism has its own distinctive formations, structural tensions and legal challenges, which are important for law and politics in contemporary Southern Asia. Proponents of Buddhist constitutionalism—those who use written constitutions and other basic laws to insure the protection and preservation of Buddhism—face a key regulatory dilemma: the antagonistic symbiosis between state authority and ecclesiastical authority. That dilemma has been handled in different ways by lawmakers in Sri Lanka, Thailand, Bhutan, Laos, Myanmar and Cambodia.

As a starting point for analysis, this article has examined the cases of Thailand and Sri Lanka, which offer tantalizingly contrasting strategies for managing antagonistic symbiosis and, as such, tantalizingly different formations of Buddhist constitutionalism. In Thailand, kings, civilian governments, and military regimes have created and consolidated an official saṅgha hierarchy, through which they have attempted to bring monastic authority under the control of the state. When this strategy has failed, or been challenged, it has contributed to regulatory crises in the form of contests over monastic control and membership, placing semi-autonomous monastic groups in direct conflict with the state and official saṅgha authorities. Colonial and independent governments in Sri Lanka have pursued an opposite strategy for managing antagonistic symbiosis. Rather than establishing an official monastic hierarchy, they have produced and maintained legal structures that devolve significant autonomy to the abbots of individual temples. Despite the fact that civil courts regularly adjudicate property (and other) disputes among Buddhist monks, the discourse of Buddhist constitutionalism in Sri Lanka disavows direct state control over monks: Even civil court judges tend to describe what they do as arbitrating (rather than intervening in) monastic disputes. Where regulatory crises emerge in Sri Lanka they tend to be crises of authority, arising from the fact that no single monastic or governmental body claims total, official power to speak for Buddhism.

Notable in the cases of both Thailand and Sri Lanka is the durability of these strategies, especially considering the fact that campaigners in both countries have tried repeatedly to alter them. In Thailand, Buddhist monks have petitioned the Supreme Administrative Court—the highest administrative tribunal in Thailand—to review decisions made by the official saṅgha hierarchy which, petitioners insisted, violated state laws and Vinaya (a move that, if successful, would weaken the official saṅgha’s legal control over monks).⁹⁷ Similarly, using certain loopholes in the Thai Civil and Commercial Code, Thai temple abbots have also tried to gain greater control over donations and property made to ordinary temples.⁹⁸ In Sri Lanka, Buddhist monks and lay Buddhist organizations have, for decades, pushed to create a single governmental body with authority over all Buddhist monks. These efforts have included: attempts at creating an official, national advisory council of senior monks to consult with government on all policy matters relating to Buddhism; attempts at standardizing and incorporating Buddhist monastic legal codes; and attempts at implementing an official monastic court system, with legally trained monks as judges.

Yet, in both cases, the momentum of these systems, along with realities of politics and monastic life, have, like rubber bands, pulled Buddhist constitutionalism in Thailand and Sri Lanka back towards their longer-standing strategies of state-led centralization and devolved autonomy respectively. The Supreme Administrative Court in Thailand denied the petitions of the monks; and there are indications that Thai government is working actively to close property-law loopholes that might give monks greater autonomy.⁹⁹ Similarly, administrative and legal schemes to centralize the monkhood in Sri Lanka have repeatedly tried and failed.

Considering the durability of these formations, one might ask: what explains them in the first place? As this comparative historical analysis has shown, Thai and Sri Lankan formations of Buddhist constitutionalism are not simply the products of elite decisions. They derive equally from political, social, and religious factors operating in the two contexts. In Thailand, the combination of strong monarchs, military governments, and concerted projects of legal and political centralization have directly contributed to creating and maintaining an official saṅgha hierarchy. By contrast, the British dismantling of monarchy in Sri Lanka and the subsequent empowering of temple abbots through colonial law gave further impetus to processes of monastic segmentation that were already under way on the island. Sri Lanka’s postcolonial democratic politics, in which monks played key roles, further ensured that this monastic autonomy did not get rolled back in the independent era.

Similar factors may also have contributed to the development of Buddhist constitutionalism in Myanmar, Cambodia, and Laos. For example, projects of Buddhist constitutionalism in Myanmar have produced an official monastic hierarchy (albeit weaker and more fragmented than that of Thailand) while also permitting a segmented and fairly independent saṅgha. One might explain these developments, which blend elements of both the Thai and Sri Lankan formations of Buddhist constitutionalism, by looking at Myanmar’s Sri Lanka-like history of disestablished monarchy and active monastic engagement in politics and its Thailand-like history of heavy-handed military dictatorships.¹⁰⁰ Similarly, one might think about the formations of Buddhist constitutionalism in contemporary Cambodia—and the intermittent, if not entirely successful, efforts to consolidate a unitary monastic hierarchy there—as partially reflecting a Sri Lanka-like climate of contentious politics involving Buddhist monks as well as Thailand-inspired movements to restore monarchy following the Pol Pot period.¹⁰¹ My point in offering these hypotheses is not to suggest that the formations of Buddhist constitutionalism are fully path-dependent or historically predetermined. Indeed, the formations of Buddhist constitutionalism in Myanmar and Cambodia have changed significantly over the course of the twentieth century. I offer these comparative reflections, rather, to gesture towards the productive potential for comparative historical inquiry in the study of Buddhist constitutionalism in Southern Asia.

This article serves as a first foray into Buddhist constitutionalism. It is not intended as a last word. Many questions remain. One set of questions relates to the varieties of Buddhist constitutionalism in Asia: What sorts of strategies, policies, politics, and histories contribute to the formations of Buddhist constitutionalism in Myanmar, Laos, Cambodia, or Bhutan? What explains the patterns of durability and change in particular settings? What other important regulatory dilemmas, beyond antagonistic symbiosis, have defined the development of Buddhist constitutionalism? How has Buddhist constitutionalism impacted the lives of Buddhist laity and non-Buddhists and how has it transformed the ways that monks interpret and apply traditional codes of monastic law (Vinaya)? What is unique about Buddhist constitutionalism in non-Theravāda contexts, such as Bhutan?

Another set of questions relates to the links between Buddhist constitutionalism and religious constitutionalism more broadly: To what extent are projects of religious constitutionalism similar in their structures and challenges? When and why do lawmakers change strategies, or abandon religious constitutionalism entirely? How do projects of religious constitutionalism intersect with other legal projects?

The lists of questions above are indicative rather than exhaustive. They highlight a few possible vectors of inquiry, which, if pursued, will deepen and broaden our understanding of religion and constitutional law in Asia, while further urging on the tectonic shifts that have already added so much to the field.

Footnotes

1

Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 213–214 (2014).

2

Pew Forum on Religion and Public Life, Global Restrictions on Religion, Pew Research Center (Dec. 17, 2009), http://pewforum.org/docs/?DocID=491.

3

Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, 16(1) Ind. J. Global Legal Stud. 85 (2009); Asli Bali & Hanna Lerner, Constitution Writing, Religion and Democracy (2017); Ran Hirschl, Constitutional Theocracy (2010); Hanna Lerner, Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey, 65(4) World Pol. 609 (2013).

4

See, e.g., S.A. Arjomand, Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan (2008); Anver M. Emon, The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law, inConstitutional Design for Divided Societies: Integration or Accommodation? 258 (Sujit Choudhry ed., 2008); Wael B. Hallaq, Shari’a: Theory, Practice, Transformations (2009); Clark B. Lombardi, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, 11(3) Int’l J. Const. L. 615 (2013); Asifa Quraishi-Landes, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible, 16 Rutgers J. L. & Religion 553 (2015).

5

Kristen A. Stilt, Contextualizing Constitutional Islam: The Malayan Experience, 13(2) Int’l J. Const. L.. 407 (2015). See alsoRainer Grote & Tilmann J. Röder, Constitutionalism in Islamic Countries: Between Upheaval and Continuity (2012).

6

See, e.g., Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (2012); Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (2002); Noah Feldman, Islamic Constitutionalism in Context: A Typology and a Warning, 7 U. St. Thomas L.J. 436 (2009); Asem Khalil, From Constitutions to Constitutionalism in Arab States: Beyond Paradox to Opportunity, 1(3) Transnat’l Legal Theory 421 (2010).

7

Benjamin Schonthal & Tom Ginsburg, Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism, 3(1) Asian J. Law Soc. 1, 4 n. 6 (2016).

8

David M. Engel & Jaruwan S. Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (2010); Andrew Harding, Buddhism, Human Rights and Constitutional Reform in Thailand, 2 Asian J. Comp. L. 1 (2007); Yoneo Ishii, Sangha, State, and Society: Thai Buddhism in History (1986); Darius Lee, Here There Be Dragons! Buddhist Constitutionalism in the Hidden Land of Bhutan, 15(1) Austl. J. Asian L. 1 (2014); Benjamin Schonthal, Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist-interest Litigation in Sri Lanka, 50(6) Mod. Asian Stud. 1966 (2016); Richard W. Whitecross, Buddhism and Constitutions in Bhutan, inBuddhism and Law: an Introduction 350 (Rebecca Redwood French & Mark A. Nathan eds., 2014).

9

Rebecca French, a trained lawyer and anthropologist of Tibetan Buddhism, has referred to the entire study of Buddhism and law as a “missing discipline,” a remarkable hole in scholarship “that sits right in front of us but has never been looked at.” See Rebecca R. French, The Case of the Missing Discipline: Finding Buddhist Legal Studies, 52(3) Buff. L. Rev. 679 (2004).

10

Schonthal, supra note 8.

11

In focusing on the role of constitutions and basic laws in “organizing power” rather than limiting power, I follow the work of Brown, supra note 6.

12

Scholars and practitioners often divide Buddhism into two major traditions—Theravāda and Mahāyāna—corresponding to the dominant forms of practice in Southern Asia and Northern, Eastern and Himalayan Asia respectively.

13

Saïd Amir Arjomand, Islamic Constitutionalism, 3(1) Annu. Rev. Law Soc. Sci. 115 (2007).

14

While critics of Buddhist constitutionalism point to this incongruity, proponents tend not to see an intrinsic conflict between giving special to attention Buddhism and ensuring general religious rights for all citizens. For an examination of these rationales in Sri Lanka, seeBenjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka ch. 4 (2016).

15

This is not to say that this has been their only concern. Indeed, one can identify other regulatory conundrums (or example, the question of how to define Buddhism for the purposes of law). Nevertheless, the dilemma of ecclesiastical and political authority has proved uniquely challenging and persistent, and has fed into many other regulatory debates.

16

Ran Hirschl, “Remembrance of Things Past,” 13(1) Int’l J. Const. L. 1 (2015).

17

For another typology, see Ian Harris, Introduction to Buddhism and the Political Process: Patterns of Interaction, inBuddhism and the Political Process 1 (Hiroko Kawanami ed., 2016). For a wonderful discussion of Buddhist political theory in Myanmar, seeMatt Walton, Buddhism, Politics and Political Thought in Myanmar (2016).

18

Ananda Abeysekara, Politics of Higher Ordination, Buddhist Monastic Identity, and Leadership at the Dambulla Temple in Sri Lanka, 22(2) J. Int’l Ass’n Buddhist Stud. 255, 257 n.3 (1999).

19

Steven Collins, The Discourse on What is Primary (Aggañña-Sutta), 21(4) J. Indian Phil. 301, 345 (1993).

20

Steven Collins, The Lion’s Roar on the Wheel-turning King: A Response to Andrew Huxley’s “The Buddha and the Social Contract,” 24(4) J. Indian Phil. 421 (1996); Steven Collins & Andrew Huxley, The Post-canonical Adventures of Mahāsammata, 24(6) J. Indian Phil. 623 (1996); S.J. Tambiah, The Buddhist Conception of Kingship and Its Historical Manifestations: A Reply to Spiro, 37(4) J. Asian Stud. 801 (1978); S.J. Tambiah, King Mahasammata: The First King in the Buddhist Story of Creation, and his Persisting Relevance, 20(2) J. Anthropological Soc’y of Oxford 227 (1989).

21

John Clifford Holt, Buddha in the Crown: Avalokitesvara in the Buddhist Traditions of Sri Lanka (1991); Patrick Jory, Thailand’s Theory of Monarchy: The Vessantara Jataka and the Idea of the Perfect Man (2016).

22

Romila Thapar, Asoka and the Decline of the Mauryas (1973).

23

Benjamin Schonthal, The Tolerations of Theravada Buddhism, inTolerations in Comparative Perspective (Studies in Comparative Political Theory) (Vicki Spencer ed., forthcoming 2017).

24

J.S. Strong, The Legend of King Aśoka: A Study and Translation of the Aśokāvadāna (1989).

25

Steven Collins, Nirvana and Other Buddhist Felicities: Utopias of the Pāli imaginaire 461 (1998).

26

Leon Hurvitz, “Render unto Caesar” in Early Chinese Buddhism, 5(3–4) Sino-Indian Stud. 80 (1957).

27

Sāmaññaphala Sutta (The Story of the Benefits of Being a Renunciant) (Maurice Walshe trans.), inThe Long Discourses of the Buddha: A Translation of the Digha Nikaya 91 (2005).

28

Id., at 98 lines 35–36.

29

Michael Aung Thwin, The Role of Sasana Reform in Burmese History: Economic Dimensions of a Religious Purification, 38(4) J. Asian Stud. 671 (1979); Hans-Dieter Evers, “Monastic Landlordism” in Ceylon: A Traditional System in a Modern Setting, 28(4) J. Asian Stud. 685 (1969); Victor B. Lieberman, The Political Significance of Religious Wealth in Burmese History: Some Further Thoughts, 39(4) J. Asian Stud. 753 (1980).

30

Ishii, supra note 8, at 41.

31

Balkrishna Govind Gokhale, The Early Buddhist View of the State, 89(4) J. Am. Oriental Soc’y 731 (1969).

32

The Palace Law of Ayutthaya and the Thammasat: Law and Kingship in Siam (Chris Baker & Pasuk Phongpaichit trans., 2016) [hereinafter The Palace Law]; Ishii, supra note 8, at 62.

33

Peter Skilling, King, Sangha and Brahmans: Ideology, Ritual and Power in Premodern Siam, inBuddhism, Power and Political Order 182 (Ian Harris ed., 2007). Skilling is careful to point out, however, that monks were not the only ones that did this.

34

Steven Kemper, The Presence of the Past: Chronicles, Politics, and Culture in Sinhala Life (1991).

35

R.A.L.H. Gunawardana, Robe and plough: Monasticism and Economic Interest in Early Medieval Sri Lanka (1979); Frank Reynolds, The Two Wheels of Dhamma: A Study of Early Buddhism, inThe Two Wheels of Dhamma: Essays on the Theravada Tradition in India and Ceylon 6 (Gananath Obeyesekere et al. eds., 1972).

36

Gunawardana, supra note 35. S.J. Tambiah identified this monastic-royal tension as one of the “dialectical tensions” in S.J. Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background 515 and passim (1977). See alsoCollins, supra note 25.

37

Christian Lammerts, Genres and Jurisdictions: Laws Governing Monastic Inheritance in Seventeenth-Century Burma, inBuddhism and Law: An Introduction 183 (Rebecca Redwood French & Mark A. Nathan eds., 2014).

38

Tamara Loos, Subject Siam: Family, Law, and Colonial Modernity in Thailand (2006).

39

This, of course, does not apply to the major empires of the ancient Southern Asian world, such as the Mauryan Empire. On premodern polities, seeThe Palace Law, supra note 32; Tony Day, Fluid Iron: State Formation in Southeast Asia (2002); A. Huxley, Thai Law, Buddhist Law: Essays on the Legal History of Thailand, Laos, and Burma (1996); Yoneo Ishii, The Thai Thammasat (with a Note on the Lao Thammasat), inThe Laws of South-East Asia 143 (M.B. Hooker ed., 1986); Christian Lammerts, Buddhist Law in Burma: A History of Dhammasattha Texts and Jurisprudence, c. 1250–1850 (forthcoming 2017).

40

Until recently, the king followed a norm of appointing the most senior member of the Council of Elders. However, on January 6, 2017, General Prayuth and the Prime Minister issued an amendment to the Sangha Act specifying that the king has full discretion to appoint the saṅgha rāja. (More on this below.) Sangha Act (Amendment) No. 3 of 2017 as contained in 134-II Royal Thai Government Gazette (I thank Mark Charoenwong for pointing this out.)

41

The Council consists of monks who have reached the highest monastic rank (somdet, currently ten monks) along with several other monks from the second-highest ecclesiastical rank (ratchakhana). Ratchakhana-rank Council members are selected by the Patriarch himself, and they serve for renewable two-year terms (arts. 12, 14). There are sixty-two levels of monastic rank in the modern Thai system and progression through the hierarchy is based on performance in state-administered ecclesiastical exams as well as one’s service and reputation.

42

Before 2002, this was the Director-General of the Department of Religious Affairs. The change was made in response to popular demands that the official saṅgha should not be overseen by a bureau responsible for religious affairs, but special bureau for Buddhist matters only. Putsasi Theerasuvat, Buddhism as a Factor in Thai Politics: 1963–1992 (May 9, 2014) (unpublished Ph.D. Dissertation, Jawaharlal Nehru University, Delhi), at 118.

43

Tambiah, supra note 36, at 366.

44

Interview with Dr. Amnaj Buasiri, Deputy Director for the Dept. of Religious Affairs, Bangkok, Thailand, Dec. 21, 2011.

45

One of the first clauses of the 1962 Sangha Act clarifies that it is the Minister of Education, not the Supreme Patriarch, who shall have ultimate control over implementing the terms of the Act (art. 6).

46

Ishii, supra note 8, at 113–119.

47

Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (2007); Charles F. Keyes, Buddhism and National Integration in Thailand, 30(3) J. Asian Stud. 551 (1971).

48

Tomas Larsson, Keeping Monks in their Place?, 3(1) Asian J. L. & Soc’y, 17, 20–21 (2016).

49

Ishii, supra note 8, at 62.

50

Craig J. Reynolds, The Buddhist Monkhood in Nineteenth Century Thailand (1973) (unpublished Ph.D. dissertation, Cornell University), at 36–46.

51

Id. at 43.

52

Ishii, supra note 8, at 72–73.

53

Reynolds, supra note 50.

54

Id., at 114–115.

55

Duncan McCargo, The Changing Politics of Thailand’s Buddhist Order, 44(4) Critical Asian Stud. 627, 637–638 (2012). McCargo calculates that, among the eight patriarchs of the Council of Elders between 1932 and 2012, five have been from the less populous Thammayut sect and only three from the more populous Mahanikai. More telling, though, is McCargo’s estimation that Thammayut patriarchs held office for seventy of eighty years due to the fact that the three Mahanikai monks only had short tenures in office.

56

Justin Thomas McDaniel, The Lovelorn Ghost and the Magical Monk: Practicing Buddhism in Modern Thailand (2011).

57

Information in this paragraph comes from the M.A. work (in progress) of Thongtida Krawaengit as well as Katherine Bowie, The Saint with Indra’s Sword: Khruubaa Srivichai and Buddhist Millenarianism in Northern Thailand, 56(3) Comp. Stud. Soc’y & History 681 (2014); Katherine Bowie, Of Buddhism and Militarism in Northern Thailand: Solving the Puzzle of the Saint Khruubaa Srivichai, 73(3) J. Asian Stud. 711 (2014); Keyes, supra note 47.

58

Kruba Siwichai is just one example. There are many other examples of Buddhist holymen who share similar characteristics. See Taylor M. Easum, A Thorn in Bangkok’s Side: Khruba Sriwichai, Sacred Space and the Last Stand of the Pre-modern Chiang Mai State, 21(2) S. East Asia Res. 211 (2013); Amporn Jirattikorn, Buddhist Holy Man Khruba Bunchum: The Shift in a Millenarian Movement at the Thailand–Myanmar Border, 31(2) Sojourn: J. Soc. Issues in Southeast Asia 377 (2016).

59

Rachelle M. Scott, Nirvana for Sale?: Buddhism, Wealth, and the Dhammakaya Temple in Contemporary Thailand 52 (2009).

60

Rachelle M. Scott, A New Buddhist Sect?: The Dhammakāya Temple and the Politics of Religious Difference, 36(4) Religion 215 (2006); James L. Taylor, New Buddhist Movements in Thailand: An “Individualistic Revolution,” Reform and Political Dissonance, 21(1) J. Southeast Asian Stud. 135 (1990); Edwin Zehner, Reform Symbolism of a Thai Middle-Class Sect: The Growth and Appeal of the Thammakai Movement, 21(2) J. Southeast Asian Studi. 402 (1990).

61

Rory Mackenzie, New Buddhist Movements in Thailand: Towards an Understanding of Wat Phra Dhammakaya and Santi Asoke 90 (2007).

62

Scott, supra note 59, at 138.

63

One proposal was to downgrade Wat Phra Dhammakaya from a monastery to a meditation center. Danna Marie Cook, Wat Phra Dhammakaya: Competition and authoritative conflict with the Thai monastic elite (Aug. 2009) (unpublished M.A. dissertation, Arizona State University), at 56.

64

Id.

65

Senior Monk Backs Off as Sangha Act Amended, The Nation, Dec. 30, 2016.

66

Since 1932, all Thai constitutions have mandated that the king be a Buddhist and act as protector of the sāsana, a term that means both Buddhism and religion in general (e.g., Const. of Thailand, 1932, art. 4 and Const. of Thailand, 2007, § 9). Since 1997, Thai constitutions have added to this a section obliging the state to patronize and protect Buddhism (e.g., Const. of Thailand, 1997, § 73 and Section 79 of Const. of Thailand, 2007, § 79).

67

Thai Interim Const. (2016) sect. 67.

68

Kongpob Areerat, Junta’s Latest Attempt to Regulate Faith suppresses Rights and Freedom: Experts, Prachatai English, Aug. 26, 2016.

69

Mackenzie, supra note 61.

70

Martin Seeger, The Bhikkhunī-Ordination Controversy in Thailand, 29(1) J. Int’l Ass’n Buddhist Stud. 155 (2006).

71

Schonthal, supra note 14.

72

Sri Lanka Const. 1978, art. 9.

73

Department of Buddhist Afffairs of the Government of Sri Lanka, Vihārasthāna hā Bhikṣūn Vahansē Saṅgaṇanaya (“Census of Bhikkhus and Temples”) (2012). Obtained from the Department of Buddhist Affairs in 2013. The official statistics here calculate the monastic population as follows: 53% Siyam Nikāya, 28% Amarapura Nikāya, and 19% Rāmañña Nikāya.

74

Kitsiri Malalgoda, Buddhism in Sinhalese Society, 1750–1900: A Study of Religious Revival and Change (1976).

75

The Rāmañña Nikāya alone is free from formal sub-sects. However, other principles of division apply. According to one author writing in the mid 1970s, the Rāmañña Nikāya did indeed include splits into two “sections” according to caste lines. Urmila Phadnis, Religion and Politics in Sri Lanka 55 n. 7 (1976).

76

Steven Kemper, Reform and Segmentation in Monastic Fraternities in Low Country Sri Lanka, 40(1) J. Asian Stud. 27 (1980).

77

Department of Buddhist Afffairs of the Government of Sri Lanka, supra note 73.

78

Ananda Abeysekara, Colors of the Robe: Religion, Identity, and Difference 178 n. 12 (2002).

79

Id., 178.

80

Interview with a lawyer and specialist in Buddhist Ecclesiastical Law, who regularly appears in these cases, Dec. 17, 2014.

81

Buddhist Temporalities Ordinance No. 19 of 1931, amended most recently by Buddhist Temporalities (Amendment) Act No. 3 of 1992, § 25.

82

Steven Kemper, The Buddhist Monkhood, The Law, and The State in Colonial Sri Lanka, 26(3) Comp. Stud. Soc’y & History 401 (1984).

83

An early explanation of this form of “pupillage” is contained in G.W. Woodhouse, “Sissiyanu Sissiya Paramparava” and Other Laws Relating to the Buddhist Priesthood, 3(3) Ceylon Antiquary & Literary Register 174 (1917–1918).

84

Hans-Dieter Evers, Kinship and Property Rights in a Buddhist Monastery in Central Ceylon, 69(6) American Anthropologist 703 (1967).

85

H.W. Tambiah, Buddhist Ecclesiastical Law, 8-1 J. Ceylon Branch, Royal Asiatic Soc’y 71 (1962).

86

Wickrema S. Weerasooria, Buddhist Ecclesiastical Law: A Treatise on Sri Lankan Statute Law and Judicial Decisions on Buddhist Temples and Temporalities (2011).

87

This is not to say that Thai history was not profoundly impacted by the history of colonialism. Many scholars point to an “indirect” political and cultural colonialism in Siam and link the centralization of the Siamese state in the late-nineteenth century to pressures felt from the British and French powers in the region. The Ambiguous Allure of the West: Traces of the colonial in Thailand (Rachel V. Harrison & Peter A. Jackson eds., 2010).

88

On this last category, see Vijaya Samaraweera, An “Act of Truth” in a Sinhala Court of Law: On Truth, Lies and Judicial Proof Among the Sinhala Buddhists, 5(1) Cardozo J. Int’l & Comp. L. 133 (1997).

89

Kemper, supra note 82.

90

One lawyer who regularly appears in these cases estimates that civil court judges overturn the decisions of monastic tribunals in approximately 30 to 40% of these cases. Interview, Colombo, Dec. 17, 2014.

91

Ven. Dr. Paragoda Wimalawansa Thero in SC 84/2007 (SC/Sp.LA/ 240/2007, CA Writ. App. 1978/2004), unpublished decision (on file with the author).

92

Interview with Ven. Paragoda Wimalawansa Thera. In Waskaduwa, Colombo, Sri Lanka, Dec. 2015.

93

Schonthal, supra note 14, ch. 6.

94

Schonthal, supra note 8.

95

Tomas Larsson, Monkish Politics in Southeast Asia: Religious Disenfranchisement in Comparative and Theoretical Perspective, 49(1) Mod. Asian Stud. 40 (2015).

96

Benjamin Schonthal & Asanga Welikala, Buddhism and the Regulation of Religion in the New Constitution: Past Debates, Present Challenges, and Future Options, CPA Working Papers on Constitutional Reform No. 3, July 2016, available athttp://www.cpalanka.org/wp-content/uploads/2016/08/Buddhism-and-the-regulation-of-religion-in-the-new-constitution-Working-Paper-3.pdf.

97

Larsson, supra note 48, at 20.

98

Id., at 22–25.

99

Id.

100

For a (now dated) explanation of official monastic structures in Myanmar, see Bruce Matthews, Buddhism under a Military Regime: The Iron Heel in Burma, 33(4) Asian Survey 408 (1993); Tin Maung Maung Than, The “Sangha” and “Sasana” in Socialist Burma, 3(1) Sojourn: J. Soc. Issues in Southeast Asia 26 (1988).

101

Ian Harris, Buddhism in Cambodia Since 1993, inCambodia: Progress and Challenges Since 1991, at 320 (Pou Sothirak et al. eds., 2012).