Part II - Himalayan Asia

4 The Zhabdrung’s Legacy Buddhism and Constitutional Transformation in Bhutan

Richard W. Whitecross

4.1 Introduction

Constitutional democracy emerged in Bhutan, the last surviving independent Buddhist state located in the eastern Himalaya, in an unusual way. It arrived neither as the result of colonialism, as in Malaysia, nor from popular democratic movements, as in Nepal in the early 1990s. Rather, limited monarchy was introduced by royal command (kasho). The monarchy circumscribed its own power, without any overt pressure to do so.

Buddhism and governance were intertwined in the Bhutanese system of government created in the early seventeenth century by Zhabdrung Ngawang Namgyal,¹ the Tibetan religious leader who unified the country and conceived it as a “religious” estate. This intertwining of religion and government ended on July 18, 2008, when the first written Constitution of Bhutan was enacted, seven years after the royal command to prepare its drafting. The new Constitution declared Buddhism “the spiritual heritage” of Bhutan, whilst removing representatives of the Central Monk Body from the National Assembly. This separation of religion and politics was underscored by the Electoral Commission’s ban on public religious events in the six months leading up to elections (Election Commission of Bhutan 2012).

Buddhism and Bhutanese social and cultural life are difficult to separate. Elizabeth Allison has observed the role of Tibetan, or Vajrayāna Buddhism, in shaping the “attitudes, practices and beliefs” of the eastern Himalaya (2015). The above-mentioned definition of Buddhism as the spiritual heritage of the kingdom can be found in Article 3 of the Constitution. Yet, as Matthew Moore notes, “there is very little discussion in the [constitutional] document” about Buddhism (2016, 51). Although the Constitution does not declare Buddhism to be the “state religion,” scholars interpret Article 3, and the Constitution in general, as promoting Buddhism as the state religion.² Indeed, during the drafting and finalizing of the Constitution, the Fourth King, the then-Crown Prince, the chairman of the drafting committee, and other officials asserted that the Constitution and its new form of government were consistent with Buddhism. Therefore, on what basis is the Constitution consistent with Buddhism and what are the post-enactment implications of such claims?

Leo Rose has observed that Bhutan posed a “novel methodological problem,” for it was, in his opinion, “data-free” (1977, 10). Much has changed since Rose’s research in the 1970s, though it is still true that the “early history of this remarkable country is enveloped in great obscurity” (White 1999, 99). But some aspects of governance are becoming more legible. In this regard, this chapter focuses on the recent process of constitution making and Buddhism following the enactment of the Constitution in 2008. The first section contextualizes the interrelationship between religion and government in the Bhutanese polity between the early and mid-seventeenth century, as well as the establishment of the hereditary monarchy in 1907. The twentieth century saw the consolidation of the monarchy along with major political reforms in the mid- to late twentieth century that informed the preparation of the 2008 Constitution. The second section focuses on how the constitutional drafting committee navigated the debates and sensitivities over whether to declare Buddhism the state religion and the roles of the two main schools of Vajrayāna Buddhism found in Bhutan, the Drukpa Kagyu and the Nyingma.

The third and final section draws on interviews with Bhutanese about their changing perspectives on Buddhism and politics in Bhutan following the enactment of the 2008 Constitution. These interviews enable us to understand some of the consequences that are only gradually emerging over a decade after the ratification and enactment of the Constitution. Two principal themes emerge: the unexpected outcome of the separation of religion and politics, as reflected in lay monk/practitioners³ choosing to put aside their religious role so that they can enter village-level politics; and the role of the monarch as Buddhist king and royal kidu (royal prerogative to grant aid).⁴ The chapter concludes by arguing that whilst there is a minority that wishes to amend the Constitution to make Buddhism the state religion, there is a growing concern about the unintended consequences of the Constitution and, more specifically, the exclusion of religious practitioners from engaging in local-level politics as part of a more general ambivalence between the legitimizing power of “continuity” and the demands of “modernity.”

4.2 The Zhabdrung Ngawang Namgyal: The Drukpa State and Dual System

The first half of the seventeenth century saw the creation of the three “great theocracies of the greater Tibetan cultural world” (Smith 2001, 119): the Ganden Phodrang in Lhasa, the Jetsun Dampa lineage among the Khalkha Mongols, and the Drukpa state established by the Zhabdrung, Ngawang Namgyal, in Bhutan.⁵ The Zhabdrung fled Tibet in 1616 following a dispute over his recognition as the reincarnation of Padma Karpo, the Fourth Drukpa Kagyu hierarch. From his arrival in Bhutan, the Zhabdrung began the process of unifying those leading families affiliated with the Drukpa Kagyu school, such as the ‘Ob mtsho family, whilst dealing with the internal opposition and the external threats from Tibet (Phuntsho 2013).

According to a biography of the Zhabdrung, after entering a three-year-long retreat in 1623/24, he experienced a series of visions, including one where he saw the founder of the Drukpa Kagyu school, Tsangpa Gyare, and his protector deity, Mahakala, both encouraging him to establish a Drukpa state “by securing both spiritual and political power over the southern lands” (Phuntsho 2013, 223). In 1624, news of the death of the Tsangpa ruler in 1621, which had been kept secret, emerged. His death was attributed by Tibetans and Bhutanese to the Zhabdrung’s use of magic. Shortly afterwards, the Zhabdrung, assuming the title “Great Magician,” composed the “Sixteen I-s.”⁶ As in any iconic document of this form, the first three I-s are significant:

1. 1. I turn the Wheel of the Dual System

2. 2. I am a good refuge for all

3. 3. I hold the teachings of the Glorious Drukpa

.

(Phuntsho 2013, 220)

It is interesting that the first I does not refer – as might be expected in the Buddhist context – to “a good refuge.” Instead, it is based on the Zhabdrung’s role as the embodiment of a system of government in which he combines religious (chos) and secular authority (srid). It is in this role that he is the “good refuge for all.”

In 1625/26, the Zhabdrung sent out edicts stamped with the seal of the “Sixteen I-s” to be placed at strategic locations on mountain passes, cliffs, and other sites, declaring that “all gods, humans and spirits of the Lhomonkazhi, from this day, fall under the dominion of the great magician Ngawang Namgyal and everyone must heed his words.”⁷ The construction of fortified monasteries (dzongs) in the major valleys of western Bhutan enabled him to establish control over the region. In time, further dzongs were built across central and eastern Bhutan, helping combat the ongoing threat from Mongol and Tibetan forces.⁸ Unlike the administrative fortresses of Tibet, the dzongs of Bhutan were, and remain, both administrative centers and monasteries.

The organization of the Drukpa administration took its definitive form during the 1630s and 1640s, shortly before the Zhabdrung’s death in 1651. The Zhabdrung embodied both religious and secular authority, as witnessed by the Portuguese missionary Father Cacella: “He was the King and at the same time the Chief Lama” (Aris 1986, 173). The Zhabdrung created two positions: a regent, called the “Druk Desi,” was appointed to exercise political power,⁹ and a Chief Abbot, the “Druk Je Khenpo,” was entrusted with the spiritual and administrative leadership of the Drukpa Kagyu religious institutions.¹⁰ The introduction of these two positions created the Dual System (chhoe-sid-nyi),¹¹ a term still used in contemporary Bhutan, including in Article 2(2) of the Constitution, referring to the “religious and secular” branches of the state.¹²

Whilst the concept of the Dual System was not new, the Bhutanese version can be distinguished from the one used in Tibet. Unlike in Tibet, where lay officials dealt with secular matters, and monks dealt with religious affairs, in Bhutan, government officials were ordained. Whilst it is tempting to understand the concept of the Dual System as separating religion and politics or secular matters, Georgios Halkias points out an ambiguity in the concept. According to his view of the concept of “dual sovereignty”:

While there are clear lines of demarcation between the role of the Buddha and his sangha and the function of the king, there is often a blurring of these lines in the literary, practical, and cultural manifestations of Buddhism across Asia. Ambiguity is nowhere more evident than in the promotion and application of notions of “dual sovereignty” combined in a single person capable of arbitrating secular and spiritual power in this world and the world beyond.

(2013, 493)

This ambiguity is particularly relevant to Bhutan. The Desi and Je Khenpo were below the Zhabdrung, who embodied both secular and spiritual power in his function as “the Wheel of the Dual System.” It may have been his hope that he would be succeeded by his only son, but the son’s early death prevented the position of Zhabdrung from becoming hereditary. As a result, in time, the Zhabdrung passed to a series of incarnations, below whom the Desi and Je Khenpo oversaw the running of the Drukpa state.

The theocratic basis of the Zhabdrung system of government is outlined in two available law codes. The early eighteenth-century law code – the Bka ‘khrims – and the Black Stone Edict set out detailed rules for government officials. Notably, both draw parallels between the system of government instituted by the Zhabdrung and that of the Tibetan empire under Srong-btsan Gampo.¹³ Each text emphasizes that the purpose of Drukpa Kagyu theocracy established by the Zhabdrung was to bring happiness to the populace, for “if there is no law, happiness for the beings does not arise. The beings are not happy, there is no sense that the Dharma masters of the Drukpa uphold the two teachings [Dual System]” (Windischgratz and Wangdi 2019, 15). Bhutan itself was divided into three large regions: Paro, Dagana, and Trongsar. Each region was placed under a “universal lama” who was also the governor.¹⁴ The Zhabdrung system of government was to remain in place until the establishment of the monarchy in 1907.

4.3 Civil War and the Decline of the Dual System: Eighteenth and Nineteenth Centuries

The Dual System functioned reasonably well until the last quarter of the eighteenth century, when a rivalry emerged between regional governors who vied for the post of Desi. Similarly, rival candidates as reincarnations of the Zhabdrung were promoted by individual governors (Aris 1979). Despite its central government being weak and fragmented, Bhutan retained its independence. The weakened central government eventually lost its authority to the Trongsa governor, Jigme Namgyel, in the mid-nineteenth century (Pommaret 1997). A major figure in the 1864 Duar War with the British, Jigme Namgyel defeated various political rivals, such as the governor of Paro, to claim power in 1870. Building on his success, his son Ugyen Wangchuk further consolidated power after his father’s death in 1881 and developed closer ties with the British, notably through his role as a mediator during the Younghusband expedition to Tibet in 1904. Sir Frances Younghusband described Ugyen Wangchuk’s role in the treaty with the Tibetan authorities as “highly instrumental in effecting a settlement” (Kohli 1982, 164). With the death of the Zhabdrung, Jigme Chogyel, in 1904 and the retirement of the fifty-seventh Desi, Yeshe Ngodrup, in 1905, a political vacuum appeared in Bhutan.¹⁵ The absence of both a religious and a secular head of state threatened the recent stability of the country and provided the basis for the creation of the Wangchuck monarchy.

4.4 The Contract of Monarchy: Preserving the Zhabdrung’s Legacy

In late 1906, Ugyen Dorji, the drungpa (local official) of Haa, submitted a letter to the State Council proposing that Ugyen Wangchuk be elected King of Bhutan. Furthermore, Ugyen Dorji proposed that the position should be hereditary. The letter was addressed to the Desi, the Je Khenpo, the four monastic masters, the regional governors of Punakha, Thimphu, and Wangdi, the three governors of Paro, Trongsa, and Dagana, plus various officials. Whilst it is usually presented that there was unanimous agreement that Ugyen Wangchuck be elected king, Phuntsho notes there are no records of the reactions of the clergy and state administrators to the petition (2013, 520). The coronation was held at Punakha on December 17, 1907. A British mission attended under John Claude White, the British political officer for Sikkim and Darjeeling. The ceremony took place in the main assembly hall in Punakha Dzong. Two important features of the ceremony need to be highlighted. The first is that a contract (genja) establishing the monarchy was signed during the ceremony.¹⁶ The contract states:

To the lotus feet of the Precious Judge, the Exalted one of the Dual System.

It is submitted that while from former times in our kingdom of Bhutan, the Great Regent took office from among any that came forth from the lamas and teachers of the monastic college or from the council of ministers and the regional governors, there was otherwise no hereditary monarch … the purport of this contract expressing the deliberations and common desire of all those mentioned above … Sir Ugyen Wangchuck is empowered as hereditary monarch … has been installed on the Golden Throne … and to the succession of his royal heirs.

(Aris 1994, 96)

The clear statement that the monarchy would be hereditary is central to the contract. It was a simple formula, yet one that made an important point: the system of rule by reincarnations was ended.

The second aspect worth our attention is that, after reading out the oath of allegiance to the new king, the Je Khenpo fixed the Ngachudrukma seal to the top of the document in vermillion. State officials, governors, representatives of the people, and other lamas then affixed their own seals. The application of the Ngachudrukma seal underscored that the new monarchy was not replacing the Zhabdrung; rather the new monarchy and its dynasty were a continuation of the Zhabdrung’s vision. The ritual used at the coronation in 1907 underlined – indeed continues to underline – the hereditary nature of the monarchy and the continuity of the Zhabdrung’s vision. The key moment in the coronation of each Bhutanese king is not the public ceremony. Rather, the high point of each coronation is the receipt by the new king of the five colored scarves from the Je Khenpo in front of the Zhabdrung’s shrine in the Machen Temple in Punakha Dzong. This private moment marks, for the Bhutanese, the legitimacy and recognition of the monarch by the Zhabdrung. It is unclear if the intention was for the monarch to replace the Desi (secular ruler); however, the last Desi, Yeshe Ngodup, was also a Speech reincarnation of the founding Zhabdrung. Tensions arose as the new king assumed power, as Yeshe Ngodrup, the former Desi and incarnate felt sidelined. In 1915, he became the fifty-third Je Khenpo, until his death in 1917. The king died in 1926 and was succeeded by his son, Jigme Wangchuk.

In 1908–1909, the sixth reincarnation of the Zhabdrung Thugtrul (Mind Incarnation) lineage was identified in Arunachal Pradesh, his parents having migrated there from Bhutan.¹⁷ The young reincarnate, Jigme Dorji returned eventually to Bhutan. After the death of the First King, moves by his supporters to recover the temporal powers of the Zhabdrung led to conflict between the Second King and the reincarnate Zhabdrung. Matters reached a head in 1931, when the brothers of the Zhabdrung sought political support from Gandhi. Shortly afterwards, the Zhabdrung was murdered at Talo, near Punakha (Aris 1994, 119–25; Wangchuck 1998). These events were perceived at the time as presenting a serious threat to the institution of hereditary monarchy.

From the 1930s onwards, the Second King, Jigme Wangchuk concentrated his efforts on reforming and centralizing the administrative system. The structure of Dual System established by the Zhabdrung Ngawang Namgyal remained in place; however, it was recognized by the Bhutanese elite, as well as by the British, that the strife of the nineteenth century was due to the lack of effective control. To address this, the king created a central cabinet to assist him: the state minister, the chief of protocol, the chamberlain, and, depending on the season, the Thimphu or Punakha governor. It is important to note that the Central Monk Body did not have any direct role in government.

4.5 Reform and Renewal: Drukpa Kagyu Representation in Government

The first two kings consolidated royal authority and control in Bhutan. The transition to the monarchy perpetuated the structures of the Zhabdrung government, and as Michael Aris has noted, “the state is still today [in the early 1990s] presented as the church triumphant under the motto ‘the Glorious Drukpa Victorious in All Directions’” (1994, 24). The succession of the Third King, Jigme Dorji Wangchuk, in 1952, saw the breadth and pace of economic, political, and social change, supported by India, accelerate. From the royal edict creating the National Assembly in 1953, a series of reforms sought to restructure the Bhutanese administrative system.¹⁸ A notable aspect of the creation of the National Assembly was the provision for representation by the state-sponsored Central Monk Body of the Drukpa Kagyu school headed by the Je Khenpo.¹⁹ The National Assembly primarily performed an advisory role until 1965, when a new Royal Advisory Council was established which included a representative of the Central Monk Body.²⁰ The Royal Advisory Council took over the advisory role from the National Assembly, which in turn focused on developing its legislative functions.

The Third King refined the changes made to the central bureaucracy, which oversaw the wider structural changes in government toward creating a distinct separation of powers. New ministries and governmental departments were established, and a regular centralized bureaucracy emerged, offering positions for the emerging numbers of formally educated Bhutanese. The personal, charismatic aspects of the former system remained, but with the separation of the judiciary under the High Court in 1968, the district officers relinquished their roles as dispensers of justice. Local government continued to draw on preexisting forms, although the villages were reorganized into gewog under the supervision of a gup (village headman) and eventually, once membership of the National Assembly was reformed in the 1960s, the gewog were represented by chimi (representatives).

Starting in 1961, a series of Five Year Plans took shape, with each plan emphasizing various goals and policies. Until the late 1980s all of these plans can be characterized as secular and outward-looking. Central to the changes was the introduction of formal state education. Until the 1950s, the only education available in Bhutan was provided in monasteries and dzongs and focused on the monastic curriculum (Kinga 2002, 19–21; Phuntsho 2000). The introduction of secular education broke this connection and depended initially on Indian schoolteachers. Kinga describes the new education system as “creating administrative and technical personnel … required for development programmes” (Kinga 2002, 20).

The sudden death of the Third King in 1972 led to the ascension of his son, the Fourth King, Jigme Sengye Wangchuk. In a public declaration following his succession to the throne, he recognized the religious authority of the Je Khenpo and stated that he had no intention of “making any competing claims” in terms of religious authority (Kinga 2002, 20).

The main emphasis of royal government continued to focus on the infrastructure of Bhutan. The Sixth Five Year Plan issued in 1987 saw a shift in emphasis:

The wellbeing and security of the country depends on the strength of its culture, traditions, and value systems. Therefore, every effort must be made to foster the unfailing faith, love and respect for the country’s traditional values and institutions that have provided the basis and ensured the security and sovereignty of the nation while giving it a distinct national identity.²¹

In 1989, a royal decree stressed the importance of a shared culture uniting the Bhutanese, irrespective of religion or ethnic group. At this point, relations between the government and the political leaders of the ethnic Nepali communities, who had settled in Bhutan in the early part of the twentieth century, deteriorated. The implementation of the new “One Nation, One People” policies and the new Citizenship Act escalated tension on both sides.

The period between the late 1980s and 1990s was a troubled one for Bhutan. The widely reported exodus of approximately 100,000 Nepali speakers, primarily from southern Bhutan, to refugee camps in eastern Nepal brought Bhutan under the scrutiny of a range of international organizations, notably Amnesty International, the International Red Cross, and the United Nations High Commission for Refugees (UNHCR). To address the criticisms made by these organizations, the royal government began a series of legal reforms. The reforms of the legal system were instigated under the supervision of Chief Justice Lyonpo Sonam Tobgye. These included improving the training of judges and restructuring the criminal justice system. At the same time, the government introduced the first formal legal education course, the National Legal Course, which included classes on Bhutanese and international law, Buddhist literature, and religion (Royal Court of Justice 1999, Appendix C. iv–viii).

4.6 The End to Direct Royal Rule: Cabinet Government

“[The] Bhutanese monarchy,” it has been said “has always been very flexible in its attitude towards political structures” (Mathou 1999, 120). On June 10, 1998, the Fourth King announced the devolution of his full executive power to an elected cabinet of ministers. In retrospect, the kasho (royal command) transferring royal power to the cabinet of ministers was the first step toward a written constitution and the introduction of parliamentary democracy. In the kasho, the Fourth King states that “having observed the political systems of other countries, it is important that Bhutan should have a system of government that is best suited for the needs and requirements of a small nation … to ensure its continued wellbeing and security and safeguard its status as a sovereign independent country” (Wangchuck 1998, 5). This suggests that the Fourth King was actively seeking to reform the system of government.

During the ten-year period of cabinet government, the role and prestige of the monarchy remained unchanged. Responsibility for governing the country rested with the cabinet ministers. The National Assembly elected the cabinet ministers, with the king playing an important role in indicating his support for the cabinet. The ministers were accountable to the National Assembly, and the Central Monk Body continued to be represented among the members. The role of the king, even after the de jure transfer of powers to the cabinet, remained central.

4.7 Drafting the Constitution: Re-Imagining the Polity

The move toward democratization continued to be led by the Fourth King. Although the June 1998 edict transferred royal power to a cabinet elected by the National Assembly, the Fourth King retained considerable charismatic power. Therefore, when the king issued a royal edict on September 4, 2001, that Bhutan should have a written constitution, his command was acted on. In December 2001, a committee was established to prepare a draft constitution. A drafting committee of thirty-nine delegates under the chairmanship of Chief Justice Sonam Tobgye, was appointed. Among the thirty-nine delegates were two monastic representatives nominated by the Je Khenpo. The drafting committee held a series of meetings in different locations in Bhutan and prepared a draft which was first submitted to the king and then to the cabinet.²²

After the completion of the draft Constitution, the chief justice commented that the most difficult sections to draft related to local government, whilst the most sensitive discussions revolved around Buddhism and the role of the Central Monk Body. Underlying the discussions on Buddhism were concerns expressed by one delegate that “ethnic and religious differences are the main causes of problems in this world.”²³ The same delegate referenced the problems caused by vying religious factions when the Zhabdrung, Ngawang Namgyal, arrived in the seventeenth century. More significantly, he noted, “we have experienced it ourselves … in recent years in Dramitse. Tibet lost its independence because of politicization of religion.”²⁴ The observation drew the drafting committee’s attention to a brief challenge to the central government that had arisen in the 1990s in eastern Bhutan.

Three recurring themes emerge from the available notes of the drafting committee deliberations. The first is that the Dual System established by the Zhabdrung should be consolidated in the monarch. The second is a concern about the potential for religion to cause social division. The third is an emphasis on the similarity between the two main Buddhist schools in Bhutan, the Drukpa Kagyu and the Nyingma. The Punakha chimi argued that Kagyu and Nyingma “are just like different paths leading to the same destination.”²⁵ The comment is accurate for, although each school can be distinguished by its particular ritual practices and teachings, both draw on texts translated from Sanskrit into Classical Tibetan and on philosophical treatises and commentaries by masters of each school (Mynak Trulku 1997).

Prior to the publication of the draft Constitution in March 2005, rumors of the uncertainty about its contents circulated through Thimphu. When the draft was published, the king, cabinet ministers, the chief justice, and other officials began a series of meetings in each of the twenty dzongkhags (districts). The meetings, as reported by the media, appear to reveal a deep unease among the people who attended them toward both the draft Constitution and the proposed new form of government. Among the key concerns reported during these public meetings were provisions for the removal of the monarch and, at least during the first meetings, the fact that Buddhism was not declared the state religion. The king and the ministers addressed the concerns expressed during these meetings, with the king noting that the language used in the Dzongkha text presented difficulties for many ordinary people. As a result of the meetings and later debates, the draft Constitution underwent at least two further phases of revision with a third version of the Constitution released in August 2006. Finally, it is worth noting that the draft Constitution was published on the Internet, stimulating wide-ranging discussions and drawing critical comments from anonymous Bhutanese bloggers. The Internet has provided the Bhutanese with a range of platforms on which they are able, anonymously, to comment and critique a range of policies, including the draft Constitution. However, it is unclear to what extent, if any, the views expressed in chat rooms or other platforms influenced the revision and final version of the Constitution.

The final Constitution came into force on July 18, 2008. In a televised event, the occasion was marked with a simple ceremony held in the main temple of Thimphu Dzong. A special version of the Constitution, written in gold Dzongkha script, was placed before the images of the Buddha, Guru Rinpoche, and the Zhabdrung Ngawang Namgyal. Beside it was a copy of the Zhabdrung’s own law code underscoring the continuity between the government established by him in the early seventeenth century and the new system of government established by the Constitution. The ceremony was marked by prayers “for the prosperity of the nation and the fulfilment of the aspirations of the Bhutanese people” (Dorji, Penjore and Wangchuk 2008). The Fifth King, in an act reminiscent of the 1907 coronation, added his seal to the Constitution. After the ceremony, the Constitution text was escorted to the National Assembly “where it was placed before the Golden Throne.”

Before turning to consider the Constitution, it is worth commenting on the transition from the Fourth to the Fifth King. On December 9, 2006, the Fourth King announced in a kasho that he was abdicating and transferring his power to the Fifth King. The kasho ends with a “religious homage and a prayer for the nation” that emphasizes Bhutan as a Buddhist country and the legacy of the Zhabdrung:

May the blessing of Ugyen Guru Rinpoche, the father of our nation, Zhabdrung Ngawang Namgyal, and our guardian deities continue to guide the destiny of our country and protect the future of the Glorious Palden Drukpa.

(Pommaret 2015, 258)

The kasho shocked the Bhutanese; the draft Constitution provided for the monarch to step down once they reached the age of sixty-five. The Fourth King was only fifty-one. When I spoke with the Bhutanese about the Fourth King’s abdication and the kasho, they described the Fourth King as being a religious monarch, succinctly expressed in this final statement. The sacral element of the Bhutanese monarch is a theme to which we will return later in the chapter.

4.8 The Constitution: Separation of Religion and Politics

According to the chairman of the constitutional drafting committee, Lyonpo Sonam Tobgye, the “Constitution is … the Supreme Law of the nation and throws light on the structure of the polity” (Tobgye 2015, 1). Lyonpo Sonam Tobgye’s exposition on the new Constitution emphasized the role of the monarch as a “Buddhist” monarch, but the new government structure removed the Central Monk Body from the executive and legislature. Buddhism is mentioned as “ideology and precepts” or as the “ethics” that underpin the “tradition, culture, [and] philosophy” of Bhutan (Tobgye 2015, 1–2). To understand the Constitution’s underlying reconfiguration of the Bhutanese polity, this section analyzes select articles that highlight the intention of the constitutional drafters to separate religion and politics in Bhutan.

4.8.1 An Invocation: Three Jewels and the Protectors

Before turning to consider the Constitution proper, it is worth noting the preamble. Set out on a separate page in both the Dzongkha and English versions, the preamble is contained within a circular representation of a mandala.²⁶ In the four corners of the page and surrounding the mandala are four white conch shells (reminiscent of those on the Zhabdrung’s Ngachudrukma seal),²⁷ each with a flowing ribbon. The outer circle of flames protects an inner circle or fence of gold vajras.²⁸ Inside the circle of vajras are eight dharma wheels, each separated by eight mantras written in Lantsa script with the actual text of the preamble in the center.²⁹ The precise symbolism of the preamble’s mandala may not be fully understood by ordinary Bhutanese: for example, the white conch shells are associated with, among other things, the proclamation of the buddhadharma. But the idiom of the text is familiar and recognizable.

Preamble

WE, the people of Bhutan:

BLESSED by the Triple Gem, the protection of our guardian deities, the wisdom of our leaders, the everlasting fortunes of the Pelden Drukpa and the guidance of His Majesty the Druk Gyalpo Jigme Khesar Namgyel Wangchuck;

SOLEMNLY pledging ourselves to strengthen the sovereignty of Bhutan, to secure the blessings of liberty, to ensure justice and tranquility and to enhance the unity, happiness and well-being of the people for all time;

DO HEREBY ordain and adopt this Constitution for the Kingdom of Bhutan on the Fifteenth Day of the Fifth Month of the Male Earth Rat Year corresponding to the Eighteenth Day of July, Two Thousand and Eight.

The opening line in English mirrors other written constitutions. In the Dzongkha version, the term “nga bcas” or “we” is used to emphasis the “people as a collective body” (Tobgye 2015, 22). However, the English translation glosses references to a range of deities. The complete Dzongkha invocation to the “guardian deities” refers to “dharma protectors” (chos skyong) and guardian deities (srung ma).³⁰ The preamble succinctly merges the range of worldly deities that still play an important role in religious practices at the local and national level. The opening section of the preamble mirrors the language found in the preamble to the Supreme Law Code 1959 and other statutes.³¹ In his discussion of the preamble, Lyonpo Sonam Tobgye simply states, “this invocation denotes the records of historical and religious beliefs and its derivative values” (Tobgye 2015, 22–23). Whilst acknowledging Bhutan’s religious beliefs and values, this comment glosses over for the non-Dzongkha reader the richer, fuller meaning given in the Dzongkha version, which is firmly rooted in the ritual practices of the Drukpa state.³² It serves as a reminder that we should not overlook or undervalue the implicit underlying cultural and religious values of the drafters, including the chairman of the drafting committee.

4.8.2 Article 1: The Kingdom of Bhutan

Broad and wide-ranging, Article 1 contains provisions on territory and international borders, as well as on the national flag, national anthem, national day, and national language (Article 1(5), 1(6), 1(7) and 1(8)). These provisions underscore the importance to the Bhutanese state of recognition, both internally and externally, of its independence and distinct identity. Of significance, Article 1 of the Constitution defines the sovereignty of Bhutan and the new structure of the Bhutanese state. Declared by Article 1(2) to be a “democratic constitutional monarchy,” the Bhutanese state “shall be a separation of the Executive, Legislative and Judiciary” (Article 1(13)). It is worth noting that according to Lyonpo Sonam Tobgye this separation of powers has deep roots in premodern Bhutan. According to him “[the] Zhabdrung’s Kathrim and the Thimzhung Chhenmo [also] have a provision on separation of powers” (Tobgye 2015, 26). According to Article 1(11), the Supreme Court “shall be the guardian of this Constitution and the final authority on its interpretation.” Here too one finds a hidden Buddhist element, given that the new Supreme Court complex in Thimphu was designed as a mandala with each of the five court buildings dedicated to one of the five dhyāna buddhas (Whitecross 2018).

4.8.3 Article 2: The Monarch

In the process of developing the Constitution, the role and position of the monarch was a key consideration. The Fourth King instigated the shift from direct royal rule to cabinet government and, with the 2008 Constitution, to an elected parliament and national government for the first time in Bhutanese political history. In discussions with the Bhutanese during the years between the royal kasho and the finalization of the Constitution, the future role of the monarch was one about which they expressed deep concern. These Bhutanese interlocutors identified the monarch with their sense of national identity and implicitly, the wellbeing of the country.³³ Article 2 is one of the longest in the Constitution, running to twenty-six subsections, two of which will be analyzed. Article 2(1) states that “His Majesty the Druk Gyalpo is the Head of State and the symbol of unity of the Kingdom and of the people of Bhutan.” This simple statement captures and addresses Bhutanese concerns about and views of the monarch. As with the Zhabdrung, the monarch is the apex of the political system.

The sacral, religious dimension of the monarch is expressed specifically in Article 2(2). The article does two key things. Firstly, it proclaims that the Dual System (Chhoe-sid-nyi) remains in place “unified in the person of the Druk Gyalpo” (Article 2(2)). Secondly, it declares that the Druk Gyalpo, “as a Buddhist, shall be the upholder of the Chhoe-sid.” This goes further than the 1907 contract for the monarchy because it sets out, for the first time, that religious (chos) and secular (srid) authority are combined in one person: the monarch. This is very reminiscent of the previously mentioned Zhabdrung declaration “I turn the Wheel of the Dual System.” Where it was unclear whether Ugyen Wangchuk, when elected in 1907 as king, was replacing the Desi or both the Desi and the Zhabdrung lineages, this matter has been implicitly addressed by Article 2(2).³⁴ The monarch continues Zhabdrung Ngawang Namgyal’s legacy of merging temporal and religious authority. This is further underscored by the provision in Article 10 requiring that each session of the parliament open with the king present and accompanied by rituals introduced by the Zhabdrung. These include the opening and closing of each session with Buddhist prayers.³⁵ The monarch, as the Zhabdrung’s legitimate heir, embodies the Dual System and is explicitly a Buddhist.

4.8.4 Article 3: Spiritual Heritage

The Constitution states in Article 3(1) that “Buddhism is the spiritual heritage of Bhutan, which promotes the principles and values of peace, non-violence, compassion, and tolerance.” The intention of the drafters was, after debate, not to declare Buddhism, or a particular Vajrayāna school of Buddhism, to be the state religion. Rather, its centrality to Bhutanese culture, society, and history should be acknowledged. As suggested in the introduction, the separation of Bhutanese culture and society from the pervasive presence of Buddhism is a difficult challenge with which drafters grappled.

Under the Dual System established by Zhabdrung Ngawang Namgyal, monks and religious figures played a key role in the administration of the Drukpa state. The political reforms of the Third King ensured that the Drukpa Kagyu order were represented in government and on the Royal Advisory Council. However, Article 3(3) of the 2008 Constitution states:

It shall be the responsibility of religious institutions and personalities to promote the spiritual heritage of the country while also ensuring that religion remains separate from politics in Bhutan. Religious institutions and personalities shall remain above politics [emphasis added].

For the first time since the foundation of the Drukpa state in the 1620s, religious figures from the Drukpa Kagyu order are excluded from participating in politics at any level. Of course, this exclusion applies across all religious practitioners, not only those in the Central Monk Body, and includes non-Buddhist “institutions and personalities.”³⁶ The decision to break with the tradition of including representatives and advisors from the Central Monk Body (Zhung Dratshang) was not taken lightly.³⁷ However, it was probably recognized by those involved in drafting the Constitution that its terms could not exempt the Central Monk Body from this exclusion from political activities if it was to achieve the envisaged separation of politics and religion.

Article 3(4)–(6) briefly addresses the appointment of the Je Khenpo and the five lopons (spiritual masters), as well as the membership of the Dratshang Committee.³⁸ These provisions solely concern the Central Monk Body. Other Buddhist organizations must comply with the requirements set out in the Religious Organizations Act 2007. It is important to note that the majority of temples, monasteries, and other religious institutions are privately owned, or community based.

Of course, it would be difficult, after 400 years, to remove state support for the Central Monk Body. After all, the declaration of the “glorious Drukpa victorious in every direction” implicitly refers to the Drukpa Kagyu school. The Central Monk Body continues to perform the rituals for the wellbeing of the kingdom and, accordingly, the Constitution states in Article 3(7) that “the Zhung Dratshang and Rabdeys shall continue to receive adequate funds and other facilities from the State.” Therefore, whilst no longer represented in the reformed National Assembly or National Council, the Drukpa Kagyu retains the official endorsement of the Bhutanese state.

The state is given further responsibilities under Article 4. This article focuses on the role of culture and heritage. Article 4(1) states that:

The State shall endeavor to preserve, protect, and promote the cultural heritage of the country, including monuments, places, and objects of artistic or historic interest, Dzongs, Lhakhangs, Goendeys, Ten-sum, Nyes, language, literature, music, visual arts, and religion to enrich society and the cultural life of the citizens.

Whereas Buddhism is defined as the “spiritual heritage” of the kingdom, Article 4(1) classes religious sites and buildings, as well as “religion,” as part of Bhutan’s “cultural heritage.” There is an interesting merging of tangible and intangible culture encompassed by Article 4(1). The Bhutanese state has in recent years recognized the importance of its national culture, as well as the vulnerability of religious sites and their contents to natural disasters, fire, theft, and vandalism. What is unclear from the wording is to what extent the Bhutanese state is obliged to “promote” religion. The clause is arguably heavily focused on Buddhist cultural heritage, and by extension “religion” refers to Buddhism, rather than Hinduism, which is practiced by Nepali speakers. The state has supported the construction of a major new Hindu temple in the capital, Thimphu, but there have been claims by Hindu organizations that their other planning applications are less likely to be given approval than those submitted by Buddhist organizations (U.S. Department of State, Office of International Religious Freedom 2019, 1).

4.8.5 Religion: State Policy and Fundamental Rights

References to religion and to Buddhism appear in several other articles of the Constitution. Under Article 7(4) on Fundamental Rights, Bhutanese citizens enjoy the freedom of religion, subject to the state being able to reasonably restrict this freedom to avoid “incitement to an offence on the grounds of race, sex, language, religion or region” (Article 7(22)(d)). This provision is further developed in Article 15 on political parties, which explicitly prohibits parties organizing on a regional, ethnic, or religious basis. The Election Act 2008 builds on these restrictions, suggesting that the state is concerned with the potential of religion, as well as other markers of difference, to undermine “national cohesion and stability.”

Whilst political parties and candidates must not use religion as the basis for membership, the principles underlying state policy set out in Article 9 include a clear statement reminiscent of those contained in earlier law codes that emphasized the “happiness” of the populace. Article 9(2) declares that “the State shall strive to promote those conditions that will enable the pursuit of Gross National Happiness [GNH].”³⁹ In the period following the enactment of the Constitution, the concept of Gross National Happiness was secular, and focused on four pillars: sustainable and equitable socio-economic development; environmental conservation; the preservation and promotion of culture; and good governance (Royal Government of Bhutan 2009). In turn, these four pillars were incorporated into nine domains of GNH set out in the 2010 “GNH Index of Bhutan.”⁴⁰ Whilst acknowledging that “socially engaged Buddhism and Buddhist moral and ethical engagement with happiness influences GNH,” Ritu Verma describes GNH as “a secular concept” (2017). In the 2015 GNH survey, questions on spiritual practice and belief (for example, around compassion, karma, and meditation practice) were refined and extended, allowing for a more nuanced presentation of the underlying Buddhist ethics that informs GNH (Ura et al. 2015).

Finally, Article 9(20) builds on the idea of Buddhism as a “spiritual” and “cultural heritage,” by promising that the state will “strive to create conditions that will enable the true and sustainable development of a good and compassionate society rooted in Buddhist ethos and universal human values.” This is the most explicit reference in the Constitution to Buddhism and its values. For his part, the chief justice who helped design this clause has suggested that “Buddhist ethos” refers to the six perfections of Buddhist morality, or pāramitās (Tobgye 2015, 137).

If Buddhism is not the official state religion and the Central Monk Body is not part of the government, how can the constitutional scheme be described as “Buddhist” in any strong sense? The answer lies in its embodiment of the Dual System explicitly by the monarch himself – a novel situation in Bhutanese history. The coronation rituals created for enthronement symbolically present the monarch as the legitimate successor of the Zhabdrung. The monarch, as a Buddhist king, takes the role of the Zhabdrung, supported by the prime minister and government (secular) and by the Je Khenpo and Central Monk Body (religious). The status of the monarch as a Buddhist king, however, sits alongside other constitutional principles that claim to separate religion and politics.

4.9 What Do the Bhutanese Think of the Constitution?

The previous sections considered the nature of the theocracy established by Zhabdrung Ngawang Namgyal and its development up to the enactment of the 2008 Constitution, focusing particularly on the legal texts themselves. This section considers how Bhutanese citizens have interpreted those texts, drawing on recent interviews with the Bhutanese about their views of the Constitution.⁴¹ Two principal themes emerged during these interviews. The first theme relates to the separation of religion and politics. The second returns to the conceptualization of the Buddhist monarch in light of the recent role of the Fifth King in leading the country’s efforts to contain the COVID-19 pandemic, as well as in responding to associated economic challenges. The interviews focused on ordinary Bhutanese citizens, rather than lawyers, judges, or state officials. This approach was chosen to redress the discussion of the Constitution as a legal document by acknowledging its value as a living document.

4.10 From Gomchen to Gup: An Unexpected Consequence

Aku Sengge rises early every morning. In a small room off the main living space, in front of an altar made from tubular shelving, he begins his daily ritual practice. Once the morning prayers and mantra recitations are completed, accompanied with the occasional ringing of a small hand bell and, on certain days, the rattle of a small hand drum, he prepares breakfast for his family. Now that he is retired, he devotes his days to religious practice. Born and raised in northeastern Bhutan adjacent to the Tibetan border, Aku Sengge was sent to become a monk when he was twelve. He remained in the local monastery in Kurtoe where he learned to read Classical Tibetan, and to perform a range of rituals, as well as to carry out a range of tailoring tasks, including making appliqué thangkas. In his late twenties he met his wife, and when she fell pregnant, he decided to leave the monastery to raise a family. Since settling in his wife’s village, Aku Sengge has become an indispensable part of local life, conducting rituals for his neighbors.

A devout practitioner, Aku Sengge, became close to the village lay monk/ practitioner. The elderly gomchen appreciated Aku Sengge’s knowledge of rituals and his ability to read Classical Tibetan.⁴² It was through his participation in and conduct of the annual rituals for his neighbors that Aku Sengge eventually became the village gomchen. Outside the formal state-sponsored monastic body, the gomchen is an important feature of local, everyday religious practice in villages and rural communities. They are called on to perform rituals and prayers at times of childbirth, marriage, and death, to remove sickness, and for “other social and religious functions” (Kinga 2002, 27). Aku Sengge’s own teacher taught him about the local deities and spirits that are a prominent feature of popular religious practice throughout Bhutan.

Despite his fulfilling life, Aku Sengge is worried. His son died young, and his daughter moved away from her natal village to teach Dzongkha in another district. Education and a desire for a life removed from agriculture has led many young people, particularly, though not exclusively, men, to leave the village. Few of the young people want to train to become gomchen, and Aku Sengge worries that there will be no new gomchen to continue the practices taught to him. His concerns touch on a wider social challenge: the migration from rural to urban settings that has escalated over the last decade.

A younger Bhutanese informant has different concerns. Karma Tshering asked to join a monastery when he was sixteen. Originally from the eastern district of Tashigang, he was educated and raised at the military base at Tencholing, in Wangduephodrang. After eight years of study, he decided to return to lay life and moved back to his mother’s home village in Tashigang district. His maternal aunt’s husband was the village gomchen and his uncle welcomed him as his assistant gomchen. Through Karma’s family ties and his attendance at ceremonies hosted by village households and the annual rituals for the community, he established a good reputation. However, Karma, who had attended high school until he was sixteen, explained he wanted to help his neighbors in more practical ways. Acknowledging the important spiritual role of being a gomchen, Karma decided after discussion with his family, in particular his mother, aunt, and uncle, to stop being a gomchen in order to be able to vote and, more importantly for Karma, to stand for election at the village level. These activities were forbidden to gomchen by Bhutanese law.

In interpreting the aim of the Constitution to separate politics and religion, Section 184 of the Election Act 2008 states that:

A tulku [reincarnate], lam [religious person], any influential religious personality or ordained member of any religion or religious institutions excluding the laity, as determined/registered as religious organizations or religious personalities under the provisions of the Religious Organizations Act 2007, shall neither join a political party nor participate in the electoral process as they must remain above politics and cannot use their influence for the benefit of any party or candidate.

Gomchen, as locally “influential religious personalities,” may not stand for election nor vote. Aku Sengge is equivocal about his lack of voting rights. He views politics as a worldly activity that distracts from religious practice, specifically meditation and merit making. During the various elections held since 2008, he has avoided all meetings and chosen not to take part in discussions, even with family members of the candidates put forward. Aku Sengge’s attitude contrasts with that of Karma.

Karma lacks the necessary educational requirements to stand for the National Assembly or the National Council. Both require “a formal university degree” (Election Act, Sections 176(d), 177(d)). However, he is “functionally literate and possesses skills adequate to discharge his duties” as a member of the local government (Election Act, Section 178(d)). Karma explained: “It was my mother who first suggested it. I was surprised because she wanted me to be a monk … Now she feels that if she can’t stand, I should.” However, Karma’s surprise at his mother’s change of attitude and her preference that he take on a local political role was echoed by other Bhutanese. A former monk from eastern Bhutan, Tenzin, commented that women in his home village were increasingly looking to learn about business, and less inclined to attend to the annual rituals. Although the comment was made in passing, it is one that others have observed in recent years.

Concerns over the decline of religious practice are not new in Bhutan. Nor can these observations be taken to suggest that Buddhism is waning in the country. They do suggest that the formal separation of politics and religion, inaugurated by the 2008 Constitution, may be having unexpected consequences. These include the declining numbers of gomchen and the number who are choosing to set aside their lay monk/practitioner status. Karma’s decision was made because of the legal prohibitions set out in the Election Act. Yet, his mother was a key factor in his decision. Her preference that her son give up his status as a gomchen echoes Tenzin’s own observations about changes taking place at the local level. This was highlighted in 2016, when both candidates for the local government position of gup (village chief) in Bartsham were former gomchen (Zangmo 2016).

Echoing the separation between religion and politics that appears in the 2008 Constitution, the Religious Organizations Act of 2007 applies a similar rubric to all organizations except for the Central Monk Body.⁴³ At present, the register of religious organizations shows 127 entries, all Buddhist, except 2 Hindu organizations. The legal body created to oversee the implementation of the Act, the Chhodey Lhentshog,⁴⁴ has six duties set out in Section 13. These include, in addition to promoting “the principles and values of peace, non-violence, compassion, and tolerance” echoing the phrasing of Article 3(1), working to “create the conditions that will enable the true and sustainable developments of a good and compassionate society rooted in Buddhist ethos” (The Religious Organizations Act 2007, Section 13(a) and (b)). The fourth duty is to “ensure that religion remains separate from politics in the country” (Section 13(d)).

Based on the provisions of the Religious Organizations Act 2007 and the Elections Act 2008, there have been bans on public religious activities ahead of upcoming elections. For example, the Election Commission of Bhutan issued a notification that it expected religious institutions and clergy “shall not hold, conduct, organize or host any public activities from January 1 until the election.” The Election Commissioner, Chogyel Dago Rigdzin, described the ban as a “preventative measure” to avoid the mixing of politics and religion. Guidelines published by the Election Commission remind readers that under the Constitution, religious institutions and personalities “shall be responsible … to promote the spiritual heritage of the country while also ensuring that religion remains separate from politics in Bhutan” (Election Commission of Bhutan 2012, 1). The Guidelines go on to define a “religious personality” as a Bhutanese “citizen who is a monk, gomchen, nun, priest, sādhu, pundit, an ordained, or a robed person of any religion” (3). The Guidelines then prohibit “performing or sponsoring any activity of religious nature for or by a political party, candidate or supporter … that could be exploited for political gains” (2).

Aku Senge and Karma both commented that the ban included important practices that they, as gomchen, regularly performed, such as rituals dedicated to the local deities that form a major part of religious practice at the village level.⁴⁵ Do they feel that the current laws should be amended? Aku Senge worries about the longer-term impact of the prohibitions. For him, failing to perform the rituals regularly is serious. His concerns range from the immediate spiritual and welfare concerns of not performing the rituals for individuals and communities, to the necessity of rituals for building and representing communities. Karma hopes that by encouraging a public discussion over the prohibitions on rituals before elections and the impact on gomchen that the current laws will be repealed. Karma’s comments reflected concerns expressed by Tshering Dorji, an elected member of the National Council for whom “Buddhism has played [a] significant role in the life of an individual citizen and leaders, which in turn has shaped Bhutanese polity, culture, and society. That is why I appreciate the merit in the need for the religion to stay above (not separate from) politics in our context” (2012).

4.11 The Buddhist Monarch: Granting Kidu in a Pandemic

Throughout my reign, I will never rule you as a King. I will protect you as a parent, care for you as a brother and serve you as a son. I shall give you everything and keep nothing; I shall live such a life as a good human being that you may find it worthy to serve as an example for your children; I have no personal goals other than to fulfil your hopes and aspirations. I shall always serve, day and night, in the spirit of kindness, justice and equality.

His Majesty’s Coronation Address, Punakha Dzong, November 6, 2008

Conducting any interviews at present means that interviewer and interviewee share one problem: the COVID-19 pandemic. A recurring theme across the interviews was the role of the Fifth King in supporting the Bhutanese government’s control of the pandemic. The handling of the pandemic by the Bhutanese authorities has been remarkable: national lockdowns were successfully rolled out and enforced, citizens flown home by the state, and infection rates were kept low, with only one death (Drexler 2021). In his public speeches and messages throughout 2020, the Fifth King regularly supported the Bhutanese government in its work to contain the virus and to reassure the population.

The discussion of the king’s words and, more importantly, his actions, highlighted one key feature: the granting of kidu (royal relief). The above-discussed Article 2 of the Constitution of Bhutan sets out the right of the monarch to give kidu to those in need. An established feature associated with the monarch – the right to ask for and be awarded kidu – was described by one interviewee as “going for shelter to the king.” Awarding kidu is for many a demonstration of the king’s fulfilment of his Buddhist duties as king. Kidu has featured in several speeches by the Fifth King, notably in 2012, when he linked the granting of kidu to sacred duty: “a King’s sacred duty is in looking after the wellbeing and kidu of our people” (Wangchuk 2012). In 2020, as a result of the closing of the borders and the cessation of tourism, it is estimated that up to 50,000 Bhutanese have either lost their main source of income or employment.

In April 2020, the Druk Gyalpo’s Relief Kidu fund was launched by the Fifth King.⁴⁶ The fund was established to support those whose incomes have been affected by the pandemic. Originally set to run for three months, the relief fund was extended until July 2022. Between April 2020 and March 2022, the fund has provided financial support to over 54,783 applicants.⁴⁷ The practical and symbolic significance of the relief fund was emphasized in interviews. The sacral element of the monarch, though not expressed in such terms, was noticeable to observers and Bhutanese alike, and suggests that for many Bhutanese, Article 2 encapsulates their views on the Fifth King as a Buddhist king. Admittedly, for some who grew up and remember tales of their grandparents living under the Second King there appears to have been a shift in the perception or character of the monarch. This shift appears linked to the increased focus on the Fourth King and, more recently, on the Fifth King, as Buddhist monarchs.

The Fourth King, Jigme Sengye Wangchuk was (and is) revered by the Bhutanese in a way that other earlier kings do not appear to have been.⁴⁸ In a longevity prayer written for the Fourth King in about 1967 when he was crown prince, Dilgo Khyentse, a prominent Tibetan Nyingma teacher, appealed to the Bodhisattva Padmasambhava on behalf of the king,

With your power of blessing and pervasive charisma,

In the southern great land of Dharma,

May the crown prince reign supreme in great fame,

During his noble reign as Dharma king,

And may his service toward all people.

(Palmo 2008, 246–48)⁴⁹

The emphasis on the Fourth King as a dharma king appears to foreshadow how he became viewed by the Bhutanese. During earlier fieldwork and more recent discussions with the Bhutanese, several commented on the family descent of the Fourth King and Fifth King from the Buddhist teacher Pema Linga (1450–1521). More recently, in a publication marking his sixtieth birthday, the Fourth King is explicitly described as a bodhisattva and cakravartin king, a common theme that is discussed in other chapters in this volume. In the recent pandemic, we see a similar portrayal of the current king, the fifth Druk Gyalpo, Jigme Khesar Namgyal Wangchuk. In one conversation, the cakravartin king was described as appearing during difficult times and that the Fourth King demonstrated this throughout his reign, particularly through his vision to transform the government of Bhutan. The religious dimensions of the monarch have been cultivated and serve to elevate him above the political fray, associating him and his successor with the wellbeing of the kingdom. As discussed above, the separation of religion from politics was aimed at placing religion – or specifically Buddhism – above politics. In a similar way, the reconfiguration of the political system of government allows the expressly Buddhist monarch to be on the one hand supportive of governments and on the other, above “politics.”

4.12 Conclusion

Four hundred years after his arrival in Bhutan, Zhabdrung Ngawang Namgyal’s legacy remains. The election as king of Ugyen Wangchuck in 1907 shifted political power and control to the monarch. The move to cabinet government was the first step of a trajectory raising the monarch above everyday politics and government, and towards the unifying role of the Zhabdrung. The removal of the Central Monk Body from government marked a shift in the relationship between state and religion, but not one that undermined or removed the centrality of Buddhism in Bhutanese life. Rather, the Constitution recast the Dual System through its embodiment in the person of the monarch. As argued above, the Constitution transformed the role of the monarch as a Buddhist king, a dimension that was not promoted by the first two Bhutanese kings. The Fourth King, as prophesized by Drudra Dorje (Pommaret 2015, 258), ordered the preparation of the Constitution, marking a shift toward the explicit sacralization of the monarch, as bodhisattva, dharmarāja, and cakravartin. However, as illustrated above, there are concerns about the unintended consequences on religious practices and practitioners of the desire by the drafters of the Constitution to separate politics and religion. Running through the discussions of the drafting committee, and in more recent public discussions about the separation of Buddhism and politics, is a tension between continuity with the past – real or imagined – and modernity. Perhaps, as some informants suggested, the current restrictions will be removed as Bhutan matures as a democracy. Yet there are strong forces that other Bhutanese view as marking a decline in religion – Buddhism – in Bhutan. As Aku Senge wistfully noted, each generation “must work out what the dharma – Buddhism – means to them.”

5 The “Trick of Law” The Hermeneutics of Early Buddhist Law in Tibet

Martin A. Mills

*

5.1 Introduction

Constitutionalism – the principle that government should be limited in its powers, and those limits enshrined within laws that stand above the individuals and institutions that govern – is generally regarded as a good thing. As a good thing, it might seem obvious that everyone, or at least as many people as possible, should have it. Here, of course, things get trickier: after all, the very concept of whether something is a good idea depends on an underlying moral (and ultimately religious) culture, one that may not be shared universally or organized in a comparable way. For present purposes, one of the most salient questions facing any study of Buddhism and constitutional law is whether constitutionalism as a legal ideal might be consonant with Buddhism at all. That it might not be does not, of course, imply that Buddhist culture must be in some sense deficient, or indeed a ‘bad thing.’ Instead, we must actively consider the possibility that it is a different thing. In what follows, I will examine how, in Tibetan constitutional history, one of those major differences lies in the perceived role of the personal morality and ethical insight of Buddhist rulers and lawmakers.

Before addressing that question, however, it is worth rendering explicit how Western constitutional thinking depends upon its own Christian (or more broadly, Abrahamic) history of ‘Higher Law,’ or foundational constitutional principle. As Richard Helmholz (2010) has pointed out with great clarity elsewhere, Western constitutionalism is generally underlaid by three facets of Christian ecclesiastical thinking, all of which are in some sense either negated by, or have no direct equivalent in, many Buddhist traditions.

The first principle is that the fundamental rules of Biblical law “stand outside our own volition, indeed our own full understanding,” largely as a consequence of having been bequeathed by God, rather than men. This is most obvious in the case of the Hebrew foundations of Biblical law, wherein Moses received the Ten Commandments from God on tablets of stone at Mount Sinai, and the law in the direct verbal instructions from God in the revelations of Leviticus; it is also inscribed in the Gospel of John’s opening proclamation that In principio erat Verbum, et Verbum erat apud Deum, et Deus erat Verbum (“In the beginning was the Word, and the Word was with God, and the Word was God.” John 1:1). In this sense, the word of true law, in a Biblical sense, necessarily precedes its human adjudicants and disseminators, who thereby cannot stand above or prior to it. Even in the case of secular and royal law, the Christian tradition – following the writings of Paul and Peter – ascribes the authority of kings and emperors to the power vested in them by God, rather than as something that flows from them personally (Roman 13:1–7; 1 Peter 2:13).

The second principle is that human law – whether ecclesiastical, royal, or secular – could not infringe or adjudicate upon the realm of ‘hidden things’ (De occultis non judicat ecclesia). Neither the devices and desires of the heart nor the personal convictions of the soul can be judged by a public court of law, coming instead under the jurisdiction and judgement of God, through private prayer, confession, and repentance.

In combination, the upshot of these two principles has been to set aside private (or ‘inner’) morality and insight from the scope of formal law, which exists in the public realm between individuals. Law in a formal sense is received primarily in textual form and submitted to and interpreted by persons not as individuals, but as representatives of an office in the Weberian sense – that is, as contractees, citizens, subjects, soldiers, judges, or monarchs. This ‘exclusion of the inner’ in turn serves as the foundation of what we might call a ‘constitutionalist disposition.’ This is the view that human law is, or at least should be, a public matter in both principle and practice, the parameters of which lie outside the subjectivities of the individual human heart. In the study of legal history, this disposition is found most clearly in the assumption that if you are seeking the source of a legal code or doctrine you will find it in one of two places: either in a previous legal codex, or in the hand of the divine. The one place you would not, or at least should not, find its source is within the heart of the lawgiver.

This disposition is not universally shared within the history of Christendom. Ideas, after all, do not hold sway by themselves. The two principles above found their place within constitutional history largely as a consequence of the birth-pangs of the Protestant Reformation in Europe, which often pitted private conviction against royal law. This struggle framed the formation of American constitutionalism. As Edwin Corwin pithily summarized in 1955:

The Reformation superseded the infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.

(1955, 1)

Indeed, this rejection of the personal authority of rulers in making and applying law has motivated the penning of most of the world’s great constitutions. If the king himself (that is, in his ‘body natural’ as English law would term it – see Kantorowicz 1957) cannot be the source of law, then he must be constrained by it. This is the essence of what Richard Helmholz rightly identifies as the third main aspect of constitutionalism: its role in providing “structured and substantive limitations on government,” restrictions that apply either to (i) the boundaries between private rights (such as personal religious convictions) and public law (such as nationally established religions) and (ii) claims by monarchs and legislators to exist ‘above the law’ – a possibility deemed not only illegitimate but impossible according to the first principle, above.

While appropriate to the ‘Higher Law’ ideas held by certain forms of Christian constitutionalism, this methodological exclusion of the personal moral qualities of the lawmaker sits far less easily with Buddhist conceptions of law. Here, the legitimate role of the personal morality and sagacity of emperors, kings, and judges in both producing, overseeing, and interpreting law remains vital to the general understanding of Buddhist constitutional thought.

In large part, this derives from one of the core distinctions between Buddhism and the Abrahamic faiths. Within Buddhism, the central soteriological framework does not lie in the gulf between sinful humanity and a lawmaking and judging Godhead, but rather in a combination of paths (Sanskrit. mārga; Tib. lam) and grounds (S. bhūmi; T. sa) that lead, through ethical realization, to liberation from saṃsāra.

While Buddhism certainly has ample place in its cosmologies for divine realms and deities, this overarching ‘path and grounds’ framework sees both the human and the divine as subordinate to its vision of suffering and liberation. Indeed, humans and deities are only seen as morally distinct from one another as a matter of degree, not kind – a property shared within Hinduism (Fuller 1992, 3–4).

As a consequence, law in any absolute sense is neither recognized as, nor legitimated by, being divine in origin: while gods may be called upon as witnesses or guarantors and may also be seen to make demands that bind particular communities to certain ritual practices and prohibitions, there is simply no Buddhist equivalent of the Ten Commandments.

However, this is not to say that the Buddhist doctrine regards law as a purely personal and subjective matter. Here, we need to recognize that the term dharma involves two distinct but related meanings, particularly in Mahāyāna Buddhist thought. The first meaning is dharma as a doctrine of reality: that phenomena are characterized by impermanence, non-self, and emptiness, and that clinging to those phenomena produces suffering. Dharma from this perspective is seen to exist eternally, whether a Buddha emerges in the world to reveal it or not (Williams et al 2000, 8) – it therefore precedes personal realization. The second meaning, however, refers to the paths that lead from ignorance of reality to knowledge and awakening, and from suffering to liberation. Travelling these paths involves different vehicles (S. yāna; T. theg pa) or traditions of teaching – most conventionally the Śrāvakayāna (T. nyan thos kyi theg pa, ‘hearer vehicle’), the Pratyekabuddhayāna (T. rang rgyal gyi theg pa, ‘solitary realizer vehicle’), and the Bodhisattvayāna (T. byang chub sems dpa’i theg pa, ‘bodhisattva vehicle’).

This last reference to the various ‘vehicles’ for teachings of the dharma is most famously illustrated in the parable of the burning house in the Lotus Sūtra, told by the Buddha to his disciple Śāriputra. In the parable, a wealthy man returns home to find his house on fire and his many children, unaware of the danger, engrossed in playing with their toys. Knowing that there is only one exit from the house and that trying to herd them out himself will take too long, the Buddha explains the solution devised by the wise father:

At that time the rich man had this thought: the house is already in flames from this huge fire. If I and my sons do not get out at once, we are certain to be burned. I must now invent some expedient means that will make it possible for the children to escape harm. The father understood his sons and knew what various toys and curious objects each child customarily liked and what would delight them. And so he said to them, “The kind of playthings you like are rare and hard to find. If you do not take them when you can, you will surely regret it later. For example, things like these goat-carts, deer-carts and ox-carts. They are outside the gate now where you can play with them. So you must come out of this burning house at once. Then whatever ones you want, I will give them all to you!” At that time, when the sons heard their father telling them about these rare playthings, because such things were just what they had wanted, each felt emboldened in heart and, pushing and shoving one another, they all came wildly dashing out of the burning house.

(Watson 1993, 56–57)

When the children emerge from the burning house, however, they discover only one vehicle: a large jewel-encrusted carriage drawn by a pure white ox. Challenging Śāriputra as to whether the rich man had lied to his children (and thereby whether it is deceitful to teach different yānas), the Buddha explains that while it was necessary to preach several vehicles “to attract and guide living beings,” in truth there is only one ultimate vehicle (S. ekayāna; T. theg pa gcig pa) of Buddhahood, which becomes clear once beings have escaped from the burning house of saṃsāra. He concludes, “that rich man was not guilty of falsehood. The Tathagata does the same, and he is without falsehood.”

The purpose of the burning house parable is explicitly to explain the Mahāyāna distinction between the transcendent wisdom that sees reality, and the conventional wisdom of ‘skillful means’ (S. upāyakauśalya; T. thabs la mkhas pa) that is historically imminent and sees what each individual disciple requires at a particular point of the path in order to be released from saṃsāra. While the latter wisdom is seen to arise out of the cultivation of the former, the latter does not take the form of the former: the goat cart and the jewel-encrusted carriage are different.

This Buddhist emphasis on the soteriology of path and vehicle means that, while there is a ‘final reality’ that exists prior to personal insight into it, any ‘law’ that is focused on Buddhist goals of liberation from saṃsāra depends upon a conventional and historically situated moment between teacher and disciple or, as we shall see, between a Buddhist ruler and subject, and most particularly upon the “wisdom of skillful means” possessed by the teacher and ruler. As a consequence, from the Mahāyāna perspective especially, the ‘hidden’ (in the sense of inner personal morality and ethical insight) cannot be excluded from the process of situated lawmaking. More than this, because the Buddhist path contains ethical insight at its heart, law is understood as being emphatically within personal volition and understanding.

Nevertheless, royal law in Buddhist kingdoms was generally understood to be distinct from Buddhist codes of lay and monastic discipline, thus separating out constitutional principle into two distinct spheres (Pirie 2017a, 406). In what follows, I will examine one of the few apparent exceptions to this split when it comes to Buddhist legal culture: the claim, widespread in Tibetan history, that its first Buddhist emperor, the seventh century Purgyal ruler, Songtsen Gampo, based the first written law codes of his new empire on the ‘ten virtues’ (T. dge ba bcu) of Mahāyāna Buddhism – something of an early test case of “Buddhist constitutionalism.”

To do that, however, it is necessary to ask not simply whether Buddhist constitutional law is a contradiction in terms, but first and foremost to ask what Buddhist religious thinkers thought about public law in the first place. Here I will address the views of late Indian and Tibetan Mahāyāna writers. I will argue that they had much to say on this subject – in particular, regarding the origins, reality, and objectives of legal governance – much of which requires us to pay close attention both to legal texts and codes as well as to the rich philosophy and hermeneutics of governance within the Mahāyāna tradition.

Before moving on, a few words are necessary on the relationship between the terms constitutional and constitutionalism as used in this chapter. By ‘constitutional,’ I mean the very general sense of pertaining to understandings, however diverse, of the nature and form of legitimate governance, what Philip Abrams referred to as the “state-idea” (Abrams 1988). This is distinct from ‘constitutionalism,’ that far narrower idea that texts provide for formal limits on legitimate governance (generally in abstract, office-bearing terms). Thus, while the United Kingdom may lack a single written constitution, it certainly has deeply embedded constitutional and constitutionalist ideas. Constitutionalism thus argues that constitutional ideas should be rendered in a very specific way: one which, regardless of how secular it may claim to be, follows the principles of Christian ecclesiastical law in separating overarching law from the person of rulers, both in theory and in practice.

To these terms, however, I would add one further – that of “constitutional mythology,” a phrase I have explored briefly elsewhere (Mills 2011 and 2018), but which is hugely pertinent to the general study of Tibetan historiography. Tibetan history-writers, rather than seeking to discuss their ideas of governance in abstract, legislative terms, tend to embed those ideas within the life-narratives of key historical figures. In doing so, and in rendering coherently those ideas within the narrative, they usually transform those narratives significantly, in effect turning source material into mythology.

Such constitutional mythologies are exceptional neither to Tibet, nor to Buddhist societies, nor indeed to non-Western legal cultures – they are simply to be found in those constitutional frameworks that have not yet been captured by the rationalized, rule-based format of modern constitutional texts. Space precludes a comparative review of this here, but a single example will suffice: that of the constitutional status of the English monarch. The political theology of early modern English kingship has been examined in depth in Ernst Kantorowicz’s magisterial 1957 study, The King’s Two Bodies. But to grasp the full strangeness of English constitutional mythology, there are few better places than the opening page of John Allen’s Inquiry into the Rise and Growth of the Royal Prerogative in England:

To unlearned persons desirous of understanding the constitution of England, the transcendent attributes ascribed to the King, in his high political capacity, must prove a stumbling block at the very commencement of their studies. They may have heard that the law of England attributes to the King absolute perfection, absolute immortality, and legal ubiquity. They will be told that the King of England is not only not capable of doing wrong, but of thinking wrong, that he cannot mean to do an improper thing, that in him there is no folly or weakness. They will be informed that he never dies, that he is invisible as well as immortal, and that in the eye of the law he is present at one and the same instant in every court of justice within his dominion.

(1830, 1)

Such constitutional mythologies might offend our modern sensibilities, appearing as folklore-ish renditions of the supernatural, the products of irrational and uncritical piety. This, however, is mainly because, as moderns, we are used to our constitutional ideals of governance being enshrined within the pages of a document, rather than being hung upon the shoulders of a historical person. For the Tibetan tradition, such a person was Songtsen Gampo and, later, the ruling Dalai Lamas (Mills 2018).

5.2 The First Written Tibetan Law Codes

Tibet’s Purgyal Empire Period – during which the Yarlung Dynasty of southern Tibet expanded to found one of the most powerful empires of first millennium Asia, bringing into being what we call Tibet today – is revealed to us only partially in scattered piles of historical fragments: monumental inscriptions, tattered imperial records hidden in the library cave of Dunhuang, and textual portions retranscribed by Tibetan historians across the intervening centuries.

In addition to these early fragments, however, later Tibetan tradition offers scholars a millennium worth of revealed prophecies, religious commentaries, and scholarly ethnohistories of the Tibetan Empire. Together these sources combine to create the received tradition prevalent from the medieval period onwards. These texts were generally composed from the late tenth century at the earliest, several hundred years after Songtsen Gampo’s reign and in the wake of the fall of the Tibetan Empire. The accounts of Songtsen Gampo’s life and rule can be found in some of Tibet’s most famous post-imperial literature: from the ‘hidden treasure’ (terma) literature of the post-dynastic period such as the eleventh-century Pillar Testament and the twelfth-century Compendium of Maṇis, to later histories such as Sonam Gyaltsen’s fourteenth-century Clear Mirror of Royal Genealogies or Pawo Tsuglag Threngwa’s sixteenth-century Feast for the Wise. All of these sources present an idealized portrait of his rule, with many elements that are simply absent for near-contemporary accounts, such as those found at Dunhuang.

These post-imperial texts narrate the lives of the great and pious ‘religion kings’ (chögyel) that brought about the ‘First Diffusion’ (sngar dar) of Buddhism to Tibet, and with it the foundations of Buddhist culture in Tibet. Foremost among these ‘religion kings’ was the thirty-third tsenpo (emperor) of the Yarlung Dynasty, Tri Songtsen or Songtsen Gampo (or ‘Songtsen the Wise,’ c. 569?–649?). He was heralded by subsequent Tibetan tradition as the human manifestation of the celestial bodhisattva Avalokiteśvara, Tibet’s patron Buddhist tutelary deity; as having expanded the imperial borders massively, effectively founding Tibet, as we now understand it, out of a medley of surrounding polities; as having founded the city of Lhasa as his personal fief; as having constructed the famed Jokhang, Ramoché, and Trandruk temples; as having brought writing and Buddhist scriptures to Tibet; and most of all for our purposes, as having inscribed the first written legal codes (bka’ khrims). To say, as some have, that Songtsen the Wise was to Tibetans as King Arthur was to the British is to understate the matter; a closer analogy would be King Solomon’s role in the history of Israel.

5.3 The Received Tradition and Its Critics

In these post-imperial narratives, the codification of imperial written law under Songtsen Gampo went hand in hand with the emperor’s initiation of a Tibetan written script and formal court literacy. Texts such as the eleventh-century Pillar Testament record how, during the reign of Songtsen Gampo’s ancestor Lhatotori, Buddhist scriptures and a stūpa fell from the sky onto the roof of the dynastic palace at Yumbulagang in the Yarlung Valley. Among them was the Karandavyūha, a sūtra detailing the qualities and worship of the great Mahāyāna bodhisattva Avalokiteśvara, celestial protector of the Land of the Snows. However, Lhatotori and his court were illiterate and unable to read the newly revealed scriptures, and as a consequence he had this ‘Powerful Secret’ sealed in a casket, enshrined and left for future generations to unravel.

Five generations later, as Songtsen Gampo expanded the Purgyal Empire across the Tibetan Plateau, he sent emissaries to India to study writing and grammar. Among these emissaries, most of whom died from the rigors of the journey and the Indian climate, was the young Sambhota of the clan Thonmi, a ministerial scion reputed for his intelligence. Arriving in India, he studied for years under two scholars, Kamsadatta and Devavidyāsimha, transforming the fifty consonants of the Indian Gupta script into thirty consonants of the Tibetan spoken language.

After some years, Thonmi Sambhota and Kamsadatta returned to Tibet, bringing with them several Buddhist texts. The Pillar Testament describes how, on his arrival at Lhasa, Thonmi both translated the texts in Lhatotori’s casket and aided the emperor in formulating Tibet’s first written law codes:

To the joy of the king, [Thonmi Sambhota] offered him the noble doctrine of the Mahāyāna, whereupon the king said: “Can you read the ‘powerful secret’ of my ancestor Lhatotori Nyenshel?” Lotsāwa Sambhoṭa studied them, reading Vimalamitra’s Glorious Mudras for Amending Breaches, the Karandavyūha Sūtra, Nāgā’s Glorious Mudras for Amending Breaches and Reversing the Karma of the Ten Non-Virtues.

They established four legal codes of the laws of the ten virtues. Then, in studying the script, the king did not go out for four years. The ministers said, “In not coming out for four years, the king is a know-nothing idiot! The happiness of the Tibetan people is down to us, the ministers.”

The king overheard this, and thinking, “If they call me an idiot, it will not be possible to tame the people,” spoke thus: “All you ministers and people, come and gather around me! When I, the king, remained in one palace and didn’t move around from place to place, you were happy. Yet you ministers are saying that this very happiness of the Tibetan people is down to the ministers and that the people are under the command of the ministers.” Having said this, he gave them an order: “It has become necessary for me to formulate the laws of the ten virtues. I wanted to make the law before. Previously, the lawless twelve minor border kingdoms of Tibet, lacking law, created manifold wickedness, harming my maternal lineage. All the people within my kingdom wanted blood price if a murder was committed and compensation if there was theft; wanted compensation for assault or robbery; for adultery, they desired the adultery price; and punishments to be enacted for lying, divisive speech, covetousness; harmful intent, wrong view and whatever actions were against the law. [The king] having declared this, the ministers thought: “this king is wise (sgam po) and will correctly hold and protect the practices of the holy doctrine.” Being of profound mind, therefore, they named him King Songtsen the Wise.”

(KKM: 107–8)¹

The Pillar Testament rendition of the founding of Buddhist law translated above does indeed closely approximate the classical ten virtues within wider Mahāyāna literature: the three virtues of body (avoiding killing, stealing, and sexual misconduct), speech (avoiding lying, gossip, harsh speech, and slander), and mind (avoiding avarice, ill-will, and wrong views).

This is the version of the narrative of Songtsen Gampo’s founding of the law of the ten virtues that probably represents the locus classicus of the later medieval received tradition. Its generally understood implication, at least among modern scholars, is that the emperor, in collaboration with Thonmi Sambhota, formulated his royal law on the basis of its codification in a Sanskrit text on the ten virtues, variously rendered as Reversing the Karma of the Ten Non-Virtues, or more simply The Ten Virtues, and that this was some version of, or commentary on, the Daśakuśalāni Sūtra. The later (and more famous and widespread) Compendium of Maṇis, supports this general interpretation:

Then the emanated king, in order to introduce the sentient beings of the snowy land to the dharma, applied the law based on the Sūtra of the Ten Virtues.

(MKB, Vol. E: f. 375–76)

But if the Pillar Testament presents us with the locus classicus for the received tradition of Songtsen Gampo’s relationship with “the ten virtues,” other texts and sources present a far less clear picture, one that has made the received tradition the object of considerable scholarly criticism. The most common and substantial criticism focuses on the historical possibility of literary transmission: that Songtsen Gampo’s laws were based on pre-existing Indian texts on the ten virtues such as the Daśakuśalāni Sūtra. The core criticisms here are, firstly, that there seem to be no mention of them in any contemporary or near-contemporary imperial sources related to Songtsen Gampo’s rule. Indeed, nothing resembling the Daśakuśalāni seems to arrive in Tibet until at least one and a half centuries after Songtsen Gampo’s death. Thus Rolf Stein, in his 1986 essay, “Tibetica Antiqua IV: La tradition relative au début du bouddhisme au Tibet,” places the first Tibetan literary references to the ten virtues in and around the reign of Trisong Détsen, a century later: in Buddhaguhya’s letter to emperor Trisong Détsen (Tanjur No 5693, vol. 129, 284, col. 5); in the translation of the Ten Teachings of Ksịtigarbha, Great Summary of the Mahāyāna into Tibetan by the Chan master Rnam par mi rtog pa in 800 (Kanjur No 905, Chapter 6); and, finally, in the imperial promulgation of the text in 822 (Stein 1986). Even then, as Fernanda Pirie has argued in detail, it was not associated with the practice of royal governance or administration (2017a). In other words, the assertion that Songtsen Gampo deployed the ‘law of the ten virtues’ exclusively on the basis of textual transmission from India is fairly clearly a post hoc fabrication.

The second criticism is that the legal code that is said to have emerged from this process – of both the ‘ten virtues’ and the appended ‘sixteen norms of moral behavior’ – is only barely recognizable as the classical ten virtues. Thus, for example, the fourteenth-century Clear Mirror of Royal Genealogies lists these as follows:

Thonmi Sambhota, Gar Tongtsan Yulzung, Tiseru Gongton, Nyang Trizang Yangton, and one hundred ministers in all levelled differences and, in accordance with the king’s behest, enacted the law of the ten virtues:

1. (i) The good should be rewarded, and the wicked punished.

2. (ii) The high should be suppressed by law, and the low skillfully protected.

3. (iii) The bodyguard should be divided into four units.

4. (iv) Highland water should be assembled into ponds, and lowland water conducted into channels.

5. (v) Weights and measures should be organized, and fields divided into plots.

6. (vi) People are to train in writing.

7. (vii) Horses should be marked with ownership-colors.

8. (viii) Exemplary customs should be established.

9. (ix) Those making quarrels should be punished.

10. (x) Murder should be fined variably.

11. (xi) That which is stolen should be substituted eightfold, and with the thing itself, ninefold.

12. (xii) Adulterers, having been castrated, should be banished to another country; liars/frauds should have their tongues cut off.

Furthermore:

1. (i) Go for refuge in the Three Jewels, showing them devotion and respect.

2. (ii) Maintain gratitude to one’s parents and honor them.

3. (iii) Do not forget benefactors such as fathers, uncles, and elders, the three, and repay them in kindness.

4. (iv) Do not quarrel with superior persons and noblemen, but have faith in them, and adapt one’s manners and behavior to them.

5. (v) Fix one’s mind on the divine religion and writings and understand their meaning.

6. (vi) Have trust in karmic causation and avoid perpetrating sins.

7. (vii) Be of benefit to friends and neighbors, and do not enact mischievous thoughts.

8. (viii) Acting from a straightforward foundation, rest in a mind of renunciation.

9. (ix) Showing moderation in food and alcohol, act modestly.

10. (x) Returning debts on time, do not act dishonestly with weights and measures.

11. (xi) Do not think on matters to which one is neither promised nor commissioned.

12. (xii) Among friends, remain independent of women’s useless gossip.

13. (xiii) When the truth or falsity [of a case] does not emerge, pledge [one’s] oaths before the local gods and protectors of the teachings as witnesses.

Taking the ten virtues as an exemplar, the twenty laws of Tibet were finalized at Shomara and affixed with the seal of the king and all the ministers, and so they were propagated [in Tibet] like the light of the sun and moon.

(KKM, ff. 159–60)²

Indeed, from this perspective, sources like the Clear Mirror themselves appear quite confused at times. For example, the enumeration of the king’s new laws, as outlined above, is directly preceded by a section which states that Songtsen Gampo’s imperial law was derived less from sacred India than from Tibet’s northern neighbors:

Having adopted accounting from the eastern kingdom [China] and the Mi-Nyag; translated the holy doctrine from India in the south; unlocked treasuries of food, wealth, and fineries from the Sogdians and Nepalese in the west; and adopted law and work (practices) from the Tartars and Uyghurs in the north – in short, having enacted dominion over the four directions, he became the helmsman king over half the world.

(GSM, f. 158, emphasis added)³

Indeed, on the question of Songtsen Gampo’s law codes, we find them variously presented as the ‘law of the ten virtues,’ the ten religious virtues and sixteen codes of moral behavior, the four religious laws and sixteen secular ones, and, often enough, as the six law books. Even these presentations are once again at odds with the complex sets of legal precedents and procedures found in partial fragments in the Dunhuang documents (Dotson 2006).

Possibly the most confusing source on this is the tenth-century Considerations of Wa which, as one of the earliest post-dynastic sources, seems to claim that Songtsen Gampo both did and did not base his laws on the ten virtues. Thus, it describes the arrival of Thonmi Sambhota, accompanied by an indecipherable copy of The Ten Virtues (dGe ba bcu; Daśakuśalāni):

[Returning to Tibet, Thonmi Sambhota] was accompanied by [Kamsadatta], an Indian versed in reading and writing, and took with him some [texts of] the doctrine such as Chos dkon mchog sprin [Ratnameghasfitra], Pad ma dkar po, Rin po che tog, gZugs grwa lnga and dGe ba bcu [Daśakuśalāni]. As there was nobody to translate them, the [texts of the] doctrine received the royal seal and were placed in the treasury of Phying pa [castle]. Then [the emperor] announced: “In my lineage after five generations there will be a descendant who will spread the doctrine of Buddha, and at that time the casket should be opened.”

(dBZh, 27–28)

Whereupon the emperor entered retreat for four years, at the end of which he nonetheless produced laws “on the basis of the ten virtues”:

He therefore held a discussion with his four attendants who had been taught the alphabet and in four months, on the basis of the Ten Virtues, he made the law (bka’ khrims) and put it into writing. [It included] the ‘wergild’ for the taking of human life, compensation (rku ‘jal) for theft and robbery, the [cutting off of] the nose and the [removing of] eyes for sexual misbehavior, the taking of oaths for preventing lying, etc.).

Wangdu and Diemberger 2000, 28)

The picture here is therefore a confused one, and while, for example, the Pillar Testament is extremely explicit that the ten virtues as understood in the classical Indian formulation were proposed by Songtsen Gampo – specifically, in the text itself, putting them in his own reported speech – , the principal assertion by post-imperial writers appears to be that, whatever form the imperial law actually took, it was in essence the ‘ten virtues’ (see also Uray 1972, n. 53).

We can see this in the way the Considerations of Wa asserts – indeed, within the same passage – that despite the fact that the dGe ba bcu (Daśakuśalāni) text would not be translated for a further five generations, the king’s law was nonetheless based on the ten virtues. This, at the very least, suggests that we need a wider frame of reference for understanding the post-dynastic claim that Songtsen Gampo’s laws were ‘based on the ten virtues’ than pure textual transmission.

In trying to make sense of all this – and perhaps more pertinently trying to understand how Tibetan post-imperial writers themselves made sense of it – one of the most important questions to address is: What precise legal reality was implied by a term such as “law based on the ten virtues?” In many respects, and by extension, this question evokes a much larger question about whether later writers, working as they also were within the fragmented ruins of the old Tibetan Empire, regarded Songtsen Gampo’s reign as institutionally ‘Buddhist’ in the first place.

For many modern historians of Tibet, the received tradition of Songtsen Gampo’s founding of written law cannot be taken as reliably historical,⁴ with Andreĭ Vostrikov famously lamenting the inability of Tibetan historians to “distinguish facts from myths – what is historical from what is legendary” (1970, 59). Toni Huber provides a somewhat more nuanced take on this frustratingly labile historical moment:

A large amount of painstaking historical, philological, and archaeological research now supports the view that what Tibetans have held most dear about their purported early Buddhist past and its founding figures is more a creative product of later, Buddhist-inspired history writing than a reflection of contemporary circumstance during the dynastic period.

(1996, 58)

In approaching this problem, modern scholarship has frequently taken a distinctly political approach. The core conclusion – that much of Songtsen Gampo’s rule is a post hoc idealization – is either understood in terms of a bald political partisanship such as the ‘progressive glorification of royal ancestors’ (Aris, 1997, 9; Dotson, 2006, 11; Sørensen, 1994, 24; Tucci, 1962, 126) or some version of Hobsbawm and Ranger’s ‘invented tradition’ (1983), in which events such as Songtsen Gampo’s development of the ‘law of the ten virtues’ is a post hoc projection of textual ideas that actually came to Tibet centuries later (Stein 1986, 213–14, see also below). In many cases, this is treated as a pious elaboration. For others still, it is sufficient simply to discreetly express doubt as to the historicity of such accounts and move on (Pirie 2017a, 2017b; van Schaik 2016).

5.4 Law beyond the Texts

It is worth being clear at this point: most of the criticisms, regarding the integrity of the textual lineage connecting the Indian corpus of Buddhist ideas about the ten virtues to Songtsen Gampo’s laws, seem entirely sound. Setting aside the view that ‘hidden treasure’ revelations, discovered more than three hundred years after the events they describe, retain any privileged claim to historicity, there is effectively no evidence that the ten virtues as a textual tradition or codex existed in Tibet prior to Trisong Détsen’s rule, more than a century after the death of Songtsen Gampo. In this regard, post-imperial claims that there was a textual lineage that bridged between the Indian tradition of Mahāyāna Buddhism and Songtsen Gampo’s laws (such as in the Compendium of Maṇis) remain unsupported, at least according to our present records.

With that said, however, we should be careful not to allow the dubious historicity of such claims to distract us from two important considerations: firstly, the sheer difficulty in objectively assessing what exactly makes Songtsen Gampo’s kingdom ‘Buddhist’; and, secondly, the actual meaning and significance of such a post hoc fabrication, beyond merely whether it was true. It is possible, after all, to refuse to be taken in by an ideological claim and simultaneously to take it seriously as an influential artifact in its own right, which is itself worthy of further analysis.

While there are, so far, no known contemporary or near-contemporary written references to Buddhism during Songtsen Gampo’s rule, we are reasonably certain that some of the great edifices of Tibetan Buddhism – in particular, the Jokhang, Ramoché, and Trandruk temples – seem almost certainly to have been built during that time. The significance of those building projects remains unknown to us, and the contemporary written records from that time are spartan at best. Upon what do we rely as criteria for such a designation as ‘Buddhist’: what people did, or what people said about what they did? Do we depend upon our own definitions of what counts as Buddhist, those of the time, those of later Buddhist writers, or indeed those of the nearby non-Tibetan courts? More specifically, when it comes to a phrase like “based on the ten virtues,” are we sure we know what the writers of the Pillar Testament or the Considerations of Wa meant by this when they put pen to paper?

Such assessments are necessarily and inevitably interpretative: they depend not simply on a verifiable history of textual and monumental sources, but also on an identifiable hermeneutics of governance and history. As Paul Ricœur described in detail, the simple fact of ‘writing afterwards’ changes the significance of historical events precisely because one knows what came after (1983). England’s King John signing the Magna Carta at Runnymede in 1215 was famously described by Stubbs’ Constitutional History of England (1874–78) as the earliest spark of the spirit and growth of democracy, but we can be sure that neither King John nor the rebel barons he met with had any such idea in their heads.

In this regard, the historicity, intent, and Buddhist credentials of Songtsen Gampo’s law codes raise three distinct kinds of question:

1. (i) What can we understand of the Tibetan imperial period from contemporary and near-contemporary sources? This is typically the subject of Old Tibetan Studies, and centers around the study of archaeological remains, such as the royal tombs, imperial inscriptions, and the vast textual collections unpacked from Dunhuang, such as the Old Tibetan Annals, the Tibetan Chronicle, and the many legal fragments and case law reports.

2. (ii) What can we glean from later, post-imperial sources about the Tibetan imperial period? This inquiry involves either filtering out accumulated additions and interpolations within post-imperial works or sourcing their references, thus mining them for the contents of putative original imperial material. The most famous of such endeavors is undoubtedly Géza Uray and Helga Uebach’s analysis of textual sources to unpick the original imperial texts (Uebach 1992, Uray 1967 and 1972). In what follows, in order to create some continuity in this debate, I will revisit some of Uray’s own examples in light of my own analysis.

3. (iii) What can we glean from those later sources about how post-imperial Tibetan writers understood and thought about history-writing itself? This question, which I will also attend to, relates to what Huber refers to as “Buddhist-inspired history writing.” Here, it is not sufficient to simply argue that subsequent Buddhist historiography was ‘pious’ (a common cipher for ‘simple’ and ‘uncritical’) or indeed that historical figures were simply ‘glorified’ (a distinctly Christological term, along with words like ‘majesty’ and ‘power,’ all associated with Hebrew and Greek notions of the divine). Nor can we necessarily be taken in by too monolithic a notion of ‘tradition’ with regard to the early post-imperial sources. While a ‘received tradition’ may have emerged by the late medieval period, we know that texts such as the Considerations of Wa, the Pillar Testament, and the Compendium of Maṇis emerged during a remarkably fractured and fractious period of Tibetan history (indeed, the so-called post-imperial silbu-dü, or ‘time of fragmentation’). Much like today’s scholars, the medieval authors of these and many other works were themselves trying to make sense of a difficult and often confusing range of historical sources from the imperial period, some (most notably the likes of Pawo Tsuglag Threngwa) engaged in extensive and detailed textual reconstruction, and others (such as Lama Dampa Sonam Gyaltsen, author of the Clear Mirror) seeking to integrate their textual sources into a particular and sophisticated historical worldview and understanding of governance. Many were trained Buddhist chroniclers with significant philosophical training in the Mahāyāna. In other words, we can and should expect to find political, philosophical, and historiographic principles at work in their writings, just as Corwin could identify complex and sophisticated Christological ideas at work in the ‘higher law’ of American constitutional thought.

And indeed, this is what we find. The textual sources, both before and after the imperial period, consistently tell us that while texts are important, they are not the sole domain or object of constitutional thought and history.

5.5 The Hermeneutics of Buddhist Kingship

Previously, I have argued that works such as the Pillar Testament and the Compendium of Maṇis are clearly influenced – both substantively and organizationally – by the hermeneutics of the Avataṃsaka Sūtra, a voluminous and influential Mahāyāna scripture from around the third or fourth century CE (Mills 2012).

The Avataṃsaka (also known as the Mahāvaipulya Buddhāvataṃsaka Sūtra) was translated into Chinese in two versions by Buddhabhadra in 418–20 and Śikṣānanda in 695–99 and rendered into Tibetan in the ninth century CE by the Indian paṇḍita Jinamitra at Samyé during the reign of Trisong Détsen (Ōtake 2007). Thematically, the Avataṃsaka Sūtra centers on the question of the cosmological reality of the historical Buddha as an object of devotion and discipleship, and the role of bodhisattvas within the world. Its most famous chapters – the Daśabhūmika (“Ten Grounds”; Tib: ‘phags pa sa bcu pa’i mdo) and the Gaṇḍavyūha (“Flower Array,” T. Tib. sdong po bkod pa’i mdo) – have much to say on the subject of bodhisattva-kingship and the nature of history, and lengthy sections are given over to the precise status and role of the ten virtues and ten non-virtues in the path of the bodhisattva. There are three aspects of this that will be considered in this chapter, since they give us a doorway into understanding the post-imperial view of Songtsen Gampo’s law: the Avataṃsaka Sūtra’s notions of the origins of law, the reality of law, and the objectives of law.

5.5.1 The Origins of the Law

The Daśabhūmika, or Sutra of the Ten Grounds, details the ten virtues and their relationship with kingly law: specifically, it explains in depth both the ten virtues and the three realms of lower rebirth (familiar to many from the ‘wheel of life’ motif painted at the entrance to Mahāyāna Buddhist temples and monasteries) to which the ten non-virtues lead. An important aspect of the Ten Grounds’ explanation is that the ten virtues are not primarily understood as a code of personal discipline, but as the personal qualities of a bodhisattva who has attained the second ground (the ‘stage of purity’). That is, the virtues emerge ‘naturally’ from their stage of realization. For example, on the question of virtues of body:

Enlightening beings in the stage of Purity naturally become imbued with ten virtuous ways of acting: they avoid taking life, they abandon weapons and hostility, they have conscience and sympathy and are compassionate and kind to all living beings, wishing for their welfare. They do not harm living beings even in their fantasies, much less injure other beings by gross physical harm with the conception of beings as such. The enlightening beings also abandon taking what is not given. They are satisfied with what they have and do not desire others’ possessions. Thinking of things that belong to others as belonging to others, they do not give rise to any intention to steal and do not take even so much as a blade of grass or a leaf that is not given to them, much less take the necessities of life from others. The enlightening beings also abandon sexual misconduct. They are satisfied with their own spouses and do not desire the spouses of others. They do not give rise to desire for others’ spouses, much less have sexual intercourse with them.

(Cleary 1993, 714)

The Daśabhūmika Sūtra clearly identifies this second bodhisattva ground as occupied by monarchs and emperors:

This is a brief explanation of the second stage of enlightening beings, the stage of Purity. Many of the enlightening beings in this stage are sovereigns, lords of four continents, and masters of the law, competent, powerful, able to rid beings of the impurities of bad behavior, to set them on the ten paths of virtuous conduct … Here enlightening beings become monarchs, leading sentient beings by the ten virtues: by all the virtue they have amassed, they will become saviors of the world, rich in the ten powers.

(Cleary 1993, 718–20)

In this sense, the Avataṃsaka Sūtra presents the virtuous king as inherently inclined toward the ten virtues, which spontaneously and karmically emerge, along with their royal status, from the stage of the path they have reached as a bodhisattva. Thus, lawmaking and the morality of the lawmaker are seen as naturally and logically intertwined. As with the narrative of Songtsen Gampo’s formulation of the first written laws, these are seen as produced spontaneously from his wisdom (sgam po).

If we were to take such an understanding as our basis for the historical formulation of law – which I would argue that some medieval Tibetan writers certainly did – there is no necessary requirement for Songtsen Gampo to base his new written legal code on a specific pre-existing text or coding of the ten virtues. To say that his law was “emergent from the ten virtues” was to say that it emerged from his personal qualities as a regal bodhisattva.

This formulation, I would argue, can help explain the persistent conditional linguistic forms used by subsequent writers to relate the ‘ten virtues’ to the specific elements of Songtsen Gampo’s law. Thus, the Considerations of Wa states:

For four months, the tsenpo wrote the law codes, drawn out from the foundation of the ten virtues.

(dBZh, 28)⁵

Here, “drawn out from the foundation” is gzhi blangs, in which gzhi is a basis, foundation or birthplace. Similarly, Orgyan Lingpa’s Five Books of Law has:

Conjoined with the ten virtues, a decree of law was composed.

(KDNg, f. 20b.2)

And the Treatise Known as Gateway to Engaging with the Dharma by Sonam Tsémo (1142–82) has:

Taking the ten virtues as a basis/beginning, the law was composed.

(Uray 1972, 53)

In all cases, this implicit connection between the ten virtues and the law is regularly understood not as a transposition or replication, but rather as an inspiration or spontaneous production. As we shall see below, this implies a potential distinction between the moral intentions of the lawgiver and the laws they produce.

5.5.2 The Reality of the Law

The second aspect of the Avataṃsaka Sūtra’s treatment of governance is the manner in which rule, whether religious or political, is seen as perspectivally disparate. Quite literally, both buddhas and bodhisattvas are ‘seen’ differently by different people, depending on those people’s spiritual inclinations and stage of realization.

In the opening verses of the Gaṇḍavyūha chapter, this perspectival standpoint is laid out in voluminous detail. The text, famous for its presentation of the Mahāyāna view of the hierarchical distinction between the Mahāyāna and Śrāvakayāna vehicles, describes the Buddha’s teaching of the “coming forth of the lion” at Sravasti, in the garden of Anathapindada in the Jeta grove, to five thousand bodhisattvas, kings, and hearer-disciples (Cleary 1993, 1138). On entering meditative concentration, the Buddha reveals that he is not simply sitting in a grand kingly pavilion at Sravasti, but instead at the epicenter of an infinite buddha-field, its ground made of diamond and jewels, the pavilion a mighty palace the size of a city, all surrounded by and coextensive with an infinite number of buddha-fields, worlds and palaces, each inhabited with hosts of buddhas, bodhisattvas, and world-turning emperors. All of this vast cosmological drama was witnessed by the five thousand bodhisattvas attending upon the Buddha, but not his closest disciples, Śāriputra, Maudgalyāyana, Mahākāśyapa, Revata, Subhūti, Aniruddha, Nandika, Kapphiṇa, Kātyāyana, Pūrṇa Maitrāyaniputra, and so on, for whom little of note happened.

The Gaṇḍavyūha then renders in extensive detail the reasons for the different views of the bodhisattvas and the hearers which, it asserts, revolves around the fact that the disciples, being hearers rather than bodhisattvas, seek only the personal peace of nirvana and are therefore incapable of the compassionate omniscience involved in the bodhisattva vehicle:

Because they were emancipated by the vehicle of hearers, they had realized the path of hearers, they had fulfilled the sphere of practices of hearers, they were fixed in the fruit of hearers; they rested on the knowledge of the light of truth, they were fixed at the limit of reality, they had gone to the state of eternal peace, they had no thought of great compassion and had no pity for the beings of the world; they had accomplished what they had to do for themselves.

(Cleary 1993, 1147)

There then follows a lengthy discourse elaborating this general perspectival principle in multiple examples. Thus,

The situation was like that of hundreds of thousands of ghosts gathered on the bank of the great river Ganges, hungry and thirsty, naked, without shelter, emaciated, dehydrated by the wind and heat, attacked by flocks of crows, terrorized by wolves and jackals – they do not see the Ganges River, or they may see it as dry, without water, or full of ashes, because they are shrouded by actions that blind them. In the same way the old great disciples there in the Jeta grove did not see or penetrate the transfigurations of the Buddha, because they rejected omniscience and their eyes were veiled by ignorance.

(Cleary 1993, 1148)

This same view is commonly enough expressed today. Thus, Dilgo Khyentse Rinpoche, in his recent commentary on the twelfth-century Copper Mountain Testament, which shares some authorship with the Compendium of Maṇis, argues:

Try to understand this comparison: the Buddha’s twelve deeds and so forth differ in the traditions of the Hīnayāna and Mahāyāna [forms of Buddhism]. We only take the Mahāyāna version to be truly authentic. The Hīnayāna version is what was perceived through the limited vision of Hīnayāna disciples. This is the same as the analogy of a white conch shell being seen to be yellow by someone who has jaundice … The inconsistencies and dissimilarities in the life stories of enlightened beings come about because those beings are perceived differently from different levels of people who are influenced … The buddhas appeared [in different ways] because of the different karmic perceptions of different followers.

(Dilgo Khyentse Rinpoche 1993, 12)

This aspect of the Avataṃsaka Sūtra clearly influenced post-dynastic Tibetan writings on these subjects, both in substantive, narrative, and philosophical terms. The famous tale of Songtsen Gampo’s meeting with the two monks of Khotan, found in almost all post-imperial Tibetan renditions and generally seen as the seminal portrayal of Songtsen Gampo as the bodhisattva Avalokiteśvara, is a classic example (Mills 2012). The two monks are described as receiving a vision in Khotan that Songtsen Gampo was Avalokiteśvara in person. Making the long pilgrimage to Central Tibet to meet the emperor, however, they witness a terrifying spectacle of torture and carnage in the name of the king’s law, leading them to reject the idea that he could possibly be Avalokiteśvara. Summoned before the king, however, he explains to them that what they saw were not actual people being harmed, but illusory manifestations (sprul pa), magically produced each day by the ruler. This vignette demonstrates clear matches with the Gaṇḍavyūha’s account of the seeker Sudhana’s meeting with the Indian king Anala (Mills 2012).

In the post-dynastic texts on Songtsen Gampo’s life from the Pillar Testament onwards this moral perspectivism is formalized, not only in the story of the Khotanese monks, but also in a series of narrative tropes that appear episodically throughout his royal biography. Indeed, even the king’s birth is presented in terms of levels of illusion and clarity:

Three different ways of seeing this event arose: to the Buddhas of the Ten Directions, it appeared that the sublime Chenrésik, having planned the liberation of sentient beings in the snowy land of Tibet on the basis of the power of prayers in former times, shining like a brilliant lamp in the darkness of this wild region, had cast his gaze upon that precious place. In the perception of the Bodhisattvas of the Ten Grounds, it appeared that Chenrésik, with the intention of leading the sentient beings of this wild and snowy realm to the Dharma, manifested himself as a king who would strive to benefit beings by means appropriate to each. In the perception of the common black-headed people, it appeared that a son of unsurpassed wonder had been born to the king.

(GSM, ff. 140–42)⁶

Likewise, as post-imperial texts such as the Pillar Testament and Clear Mirror regularly state, the essential relationship between the ten virtues of Buddhist doctrine and kingly law are, like the Buddha Śākyamuni’s “coming forth of the lion,” seen only by bodhisattvas and those others “who have eyes to see.”

5.5.3 The Objectives of the Law

If, as mentioned above, there was potentially a difference between the spontaneous moral intentions of the bodhisattva-king and the laws he formulated, this was because such a formulation was understood to take into account the moral nature of the Tibetan people themselves. This is most obvious in the tale of the Khotanese monks mentioned above. Songtsen Gampo explains to the terrified monks:

Those who are to be tamed by me are not clothed by peace. [Therefore], through the door of wrathful means, illusory people are punished.

(KKM 1989, 304)

And, in the Compendium of Maṇis version of this tale:

The Tibetan people, having a monkey-father and a rock demoness mother, were difficult to subdue [and thus] difficult to lead to religion. As a consequence, fearful religious law was protectively employed.

(MKB, Vol. 1(E), ff. 407)

This idea of the nature of a people as an object of law – as an intermediary function in the formation of legal codes and practice themselves – is similarly enshrined in the Gaṇḍavyūha chapter of the Avataṃsaka Sūtra. Thus, after the seeker Sudhana questions King Anala’s apparently ruthless and bloody application of the law in his kingdom, Anala explains:

I have attained enlightening beings’ magical liberation. The people in my realm are given to all sorts of evildoing – murder, theft, rape, falsehood, slander, vilification, divisive talk, covetousness, malice, false views, villainy, violence, cruelty. I am unable to turn them away from evildoing by any other means, so in order to subdue them, mature them, guide them, and secure their welfare, out of compassion I have illusory executioners kill and maim illusory criminals, making a display of intense suffering and pain; seeing this, the people in my realm become afraid to do evil. Seeing the people alarmed by this device, I have them give up evildoing and conduct themselves virtuously; then I establish them in ultimate security, the end of all suffering, the bliss of omniscience.

(Cleary 1993, 1245)

In Mahāyāna Buddhist terms, this is of course the principle of ‘skillful means’ discussed above, in some respects similar in logic to the Islamic concept of the “objectives of the law” (maqasid al-shari’ah). This is the jurisprudential principle that the law, however it is formed, must lead people toward a particular set of religious objectives (Kamali 1999), even if they do not completely understand their full religious significance. Within such a perspective, law is goal-oriented rather than simply normative. In the Islamic legal traditions, these are largely focused on the formation of mutual aid, compassion, and education within the Islamic community itself. In the post-dynastic Tibetan sources and the Avataṃsaka, the objectives of law are focused on avoidance of the lower realms of rebirth and, as we saw above, “ultimate security, the end of all suffering, the bliss of omniscience.” Similarly, in the seventeenth century, Geluk scholar Sumpa Khenpo described how:

At that time good laws were introduced by the king and the councilors, in order to lead the Tibetan subjects to the excellent religion, according to which (the laws) the men steady in the ten virtues and the so-called “sixteen pure human moral rules,” (notably) … should be noblemen.

(Uray 1972, 54)

In the tale of the Khotanese monks and also the Gaṇḍavyūha, such a goal required both the deployment of wrathful kingly means and the performance of ‘illusory manifestation’ (sprul ba): in the Pillar Testament, the Compendium of Maṇis, and the Clear Mirror, Songtsen Gampo is depicted as magically producing both victims and torturers and executioners, all with the objective of terrifying his subjects into observing the ten virtues. Put simply, in goal-oriented jurisprudence, codified law does not need to look like the “ten virtues” in order to lead Tibetans toward them.

Medieval Tibetan writers thus identified a disjuncture between the intentions of Songtsen Gampo as bodhisattva-king and the necessities of ruling non-virtuous and recalcitrant populations, a recurring theme in Tibetans’ historical self-understanding. Similarly, in Müsépa’s Lineage of Sakya Succession (1475),⁷ the story is told of how the Sakya ruler Pakpa carried out harsh laws. When a monk grew concerned at this behavior by a Buddhist ruler, Pakpa – in a manner remarkably similar to Songtsen Gampo and the Khotanese monks – explained the skillful means behind his actions. The monk later exclaimed:

Being truly amazed at [Pakpa] Lama’s ability, he told everyone he saw about this incident. He realized that Pakpa’s actions and behavior were performed to tame all beings, and that the animal slaughter, tax collection, and corvée labor pertained to the karma of the individuals. May I come to regard [all these actions] as the extraordinary [karmic consequences]!

(Mus srad pa: Sa skya gdung rabs)

This obviously means that, from this Tibetan perspective, law as a form of royal and governmental regulation can and does often ‘look’ very different from more normatively identified Buddhist ethical principles. The relationship between the two is expressly understood as indirect, mediated by the nature of the people ruled over, and the wisdom and skillful means of the ruler as bodhisattva.

Indeed, in a sense the secular law (as opposed to the Buddhist vinaya) is understood as derivative and in a very real sense ‘illusory.’ Thus, in his Naming of the Sources of Religious Sponsors (StSby, ff. 14–15), the Geluk historian Longdöl Lama Ngawang Losang (1719–94/5), explained how this involved law as a ‘trick’ (T. zol):

If (it is asked) so: What are the sixteen (points) of the law of the sixteen pure human moral rules composed by king Songtsen Gampo … As in this way the ten virtues of the excellent religion were completed by the trick (zol) of law, the gates of the three damnations were closed, the way of paradise and liberation was widened. So it is said.

(Uray 1972, 54)

Here, Longdöl’s use of the term zol is cognate with the notion of a magician’s illusion, akin in many respects to the Mahāyāna idea of ‘illusory manifestations.’ In this respect, the post-dynastic texts are both explicit and repetitious on the point, following the philosophical view of the Avataṃsaka Sūtra: that the reality and mechanisms of law, and therefore of kingly rule itself, are illusory in nature, and certainly not clear to ordinary eyes.

5.6 Conclusion

In his monumental study of Buddhism in Tibetan societies, Civilised Shamans, Geoffrey Samuel commented extensively on the historical tensions between two modalities of Tibetan religious life: the clerical and the shamanic. The shamanic, Samuel argued, invoked “alternative modes of reality” that were fundamental to the vicissitudes of everyday life and often ethically antinomian in application; while the clerical concentrated on the authority of scholarship, philosophical analysis, and adherence to more classical rule-bound notions of ethical behavior (1993, 9–10). Indeed, in line with Samuel’s analysis, there are Tibetan clerical approaches that emphasize a clear lineage of textual sources that leads from Indian Buddhism to Tibetan law.

Nonetheless, most of what has been discussed above fits very neatly into Samuel’s characterization of the ‘shamanic modality’: the idea of public law as a kind of ‘trick’, ‘manifestation’, or ‘skillful means’: the notion of reality, and in particular the reality of governance, as being perspectival and somewhat illusory; the idea that ethics is a hidden underlying or fundamental reality that shapes law, even laws that do not seem to follow ethical codes in any straightforward or obvious way.

In seeking to understand these things, we are forced to grapple with a Buddhist tradition that is different from Helmholz’s portrait of European and American constitutional thought in three key ways. First and foremost, public law in this view was expressly understood as not directly embodying or representing Buddhist norms and rulings, but rather as moving toward the underlying objectives of those norms and rulings. This principle was not uniquely Tibetan but derived from long-established Mahāyāna logics about the nature of the spiritual path (lam) toward liberation, and the place of rulers and monarchs on that path. This meant that law was seen as Buddhist in a complex and perspectival way. Secondly, as with the Islamic traditions of jurisprudence, public law was understood as goal-focused rather than norm-focused. The form of law was seen as determined by larger moral objectives that, in turn, were derived from a wider picture of Buddhist striving toward liberation. Thirdly, and as a consequence of the above, the quality of public law was seen as dependent on the personal moral insight and sagacity of the lawmaker. While there is seen to be a clear distinction between royal law and the monastic code of discipline, both are seen to derive from the wisdom of the founding leader, whether that be the emperor or the Buddha.

In regard to its origins, reality, and objectives then, Buddhist law (within this Mahāyāna framework, at least) is quite unlike Helmholz’s description of Christian constitutional thought, in that Buddhist law (in the Tibetan examples discussed in this chapter) must exist within the purview of the lawmaker’s “own full understanding” because “hidden things” – namely, private conviction and morality – are seen to be essential elements in its formation.

Thus, the post-imperial narratives about Songtsen Gampo’s founding of the law both emphasize a textual lineage (in particular, reference to a ‘sūtra of the ten virtues’) as well as valorizing the wisdom of Songtsen Gampo in formulating the laws ‘based on the ten virtues.’ Like the wealthy father standing outside his burning house in the Lotus Sūtra parable then, medieval Tibetan histories of law present multiple legitimations to promote Tibetans’ flight from non-virtue to law. And as with the parable, this may be seen as a ‘trick,’ but it is not seen to be a falsehood.

Tibetan Sources

• ANK 2000. ཨ་མེས་ཞབས་ངག་དབང་ཀུན་དགའ་བསོད་ནམས་ཀྱི>/>་བཀའ་འབུམ། (The Collected Works of A-mes-shab Ngag-dbang Kun-dgah bSod-nams). TBRC: W29307.

• dBZh དབའ་བཞེད། (Considerations of Wa). Wangdu, Pasang, and Hildegard Diemberger. 2000. dBa’ bzhed – The Royal Narrative Concerning the Bringing of the Buddha’s Doctrine to Tibet. Wien: Verlag der Otserreichischen Akademie der Wissenschaften.

• CJsG བསོད་ནམས་རྩེ་མོ། (1142–1182) ཆོས་ལ་འཇུག་པའི་སྒོ་ཞེས་བྱ་བའི་བསྟན་བཅོས། (Treatise Known as Gateway to Engaging with the Dharma). TBRC: W2DB4568.

• GSM བསོད་ནམས་རྒྱ>/>་མཚན། (1312–1375) >/>རྒྱལ་རབས་གསལ་བའི་མེ་ལོང་ (Clear Mirror of Royal Genealogies) W23770.

• KDNg ཨོ་རྒྱ>/>ན་གླིང་པ། (b. 1323) བཀའ་ཐང་སྡེ་ལྔ་། (Five Books of Law). TBRC: W17319.

• KhGSt (Feast for the Wise) དཔའ་བོ་གཙུག་ལག་ཕྲེང་བ་ (1504–1566) ཆོས་འབྱུ>/>ང་མཁས་པའི་དགའ་སྟོན་ TBRC: W1PD96069.

• KKM rGya-mtsho, Smon-lam, ed. 1989. བཀའ་ཆེམས་ཁ་ཁོལ་མ་ (Pillar Testament) Lanzhou: Kan su’u mi rigs dpe skrun khang.

• MKB 1975. མ་ཎི་བཀའ་འབུམ་ (Compendium of Maṇis). Bla brgyud gsol ‘debs dan lo rgyus skor sgrub thabs kyi chos skor. New Delhi.

• Mus srad pa མུས་སྲད་པ་ (1424–1498) སསྐྱ>/>་ག་དུ>/>ང་རབས། Sa skya gdung rabs. S1550: Sakya Research Centre.

• StSby ཀློང་རྡོལ་བླ་མ་ངག་དབང་བློ་བཟང་། (1719–94/5) བསྟན་པའི་སྦྱི>/>ན་བདག་བྱུ>/>ང་ཚུལ་གྱི>/>་མིང་གི་གྲངས། (Naming of the Sources of Religious Sponsors) TBRC: W1NLM293.

6 Tibetan Buddhist Monastic Constitutional Law and Governmental Constitutional Law Mutual Influences?

Berthe Jansen

*

6.1 Introduction

Did constitutional law exist in Tibet? According to one popular source, the Encyclopedia Britannica, constitutional law denotes “the body of rules, doctrines, and practices that govern the operation of political communities.” The entry continues: “In modern times, the most important political community has been the state.”¹ Lending a broad interpretation to the phrase “political communities,” I hypothesize that, in the context of pre-1950s Tibet, Buddhist monasteries could be constituted as communities that not only governed themselves but also exercised political and judicial power far beyond the monasteries’ boundary markers. The relative autonomy of the monasteries, their power, and unique legal status mean that a study of Tibet’s legal system would be incomplete without considering monastic “constitutional law.” Furthermore, there are a number of indications that monastic concepts of the law influenced the Tibetan state’s legal procedures.

This chapter explores a number of these influences. Regarding the so-called monastic ideologies of law, one has to be aware that these are hardly ever found explicitly in legal literature. This is significant since “despite the many remarkable achievements of Tibet’s religious leadership in areas of culture including literature and the arts, philosophy, and spiritual discipline, sustained reflection on the basis of political organization itself was never part of traditional learning”(Kapstein 2006, 138).² Similarly, Ruegg states: “The search for theoretical models and ancient Indian historical precedents which might have served Tibetan thinkers is, however, no straightforward matter, for our Tibetan sources are not as explicit on the subject as we would wish” (2013 [1997], 220).³ More specifically, with regard to Tibetan law, Tucci writes: “There is no profane literature to speak of, because culture belonged entirely to the monks; even the laws which ruled Tibet for several centuries, although bearing the names of the kings who enforced them, were almost certainly written down by lamas”(1949, 94).

By extension, primary sources available today do not contain much reflection by Tibetan authors on how religion and the law were to be reconciled. To get a glimpse of Tibetan Buddhist legal thinking, one has to read between the lines of prescriptive legal texts as well as works that describe the juridical process.

In recent decades, a number of compilations of older Tibetan legal texts have been published in the Tibetan Autonomous Region as well as in China proper. Some of these volumes contain a classification of “religious” legal texts (chos khrims) and secular legal texts (srid khrims).⁴ The religious legal texts tend to be monastic guidelines (bca’ yig), a genre of texts that deals with the rules within monastic institutions (see Jansen 2015, 2016, and 2018). This distinction between Tibetan religious rules and secular rules is by no means a modern one; it is not uncommon that monastic guidelines written between the twelfth century and the 1950s refer to the secular law, and that secular law books from similar periods refer to monastic guidelines. My interest lies in the connections between these so-called religious and secular legal texts, between laws for monks and laws for lay people. Aside from contents and vocabulary use, authorship connects these two types of legal texts. This is obvious when the legal texts are written by – for example – the fifth Dalai Lama (1617–82), but less clear when the author is unknown. By reading these works closely and noting the quotations drawn from other types of literature contained in them, we get a better understanding of the ways in which the author was educated and inspired.

6.2 Tibet’s Legal Codes

Generally speaking, in the Indian classical model, the relationship between the king and Buddhist monastics is modeled on that of the advice-giving monk – the kalyāṇamitra, if you will – and the well-meaning king, who is occasionally prone to violence. This relationship between ruler and “spiritual friend,” between “donor” and “priest,” which is particularly prevalent in the Mahāyāna tradition, has been extensively studied and commented upon by scholars of Buddhism (most notably by Ruegg 1991; 2013 [1997], but also see Deeg 2016). While there are instances in which this Buddhist relationship between religion and politics became a historical reality, it appears that more often than not, the two domains – secular rule and the Dharma – were not easily distinguishable categories. This is to say that the lines between them were often blurry, if they existed at all.

The presence of a prosperous and powerful sangha meant that there was less need for the sponsorship and protection of a secular ruler. In premodern Tibet, where monks and monasteries were, at times, particularly influential, the harmonious merging of the “secular” and the religious domains even became an explicit desideratum (Tib. Chos srid zung ’brel). Even so, the monks in their monasteries were meant to keep to their own “constitutional” laws – “the body of rules, doctrines, and practices” that governed their communities – while lay Tibetans were expected to abide by local “secular” laws. The former consisted of praṭimokṣa vows, the vinaya more generally, other religious vows, more universal Buddhist ethics, and last but not least, the more localized and often highly pragmatic “monastic guidelines” (bca’ yig). These guidelines were often written by religious figures of high standing. A fair number of surviving sets of guidelines were authored by monks who also had significant political power.⁵ Therefore, the same monks who wrote the texts that regulated monasteries were also responsible for issuing official decrees, judicial decisions, and possibly legal codes. One would thus expect there to be considerable similarities between these genres of literature, something upon which I will further elaborate below.

That monks had their own “laws” meant that they were – again in theory – not subject to the laws of the local ruler. In serious cases such as murder, however, this also meant that monastics could get punished twice. First the monk would be beaten, forcibly disrobed, and expelled. Next, he would be tried as a lay person in a secular court (Jansen 2018, 171). Minor legal cases that involved both monks and lay people were often solved through mediation or through adjudication at the monastery in whose territory the case had taken place. Among historians of Tibet there is a general consensus that in such cases, the monks had a greater advantage.

While the Tibetan tradition claims that law emerged on the basis of Buddhist notions, in fact when Buddhism was first adopted as the royal religion in the eighth century, legal works preserved in Dunhuang roughly datable to that time did not directly reflect Buddhist sentiments. It seems that a juridical system was already in place during the height of the Tibetan empire (Pirie 2017, 409–10).⁶ According to Uray, the introduction of Buddhism did indeed promote the development (and possible adaptation) of (new) legal codes, which suggests that the imperial legal codes from the seventh and eighth centuries reflected the new religion’s influence (Uray 1972, 11–68; also see Jansen 2020a). In those codes, four fundamental laws are given, prohibiting murder, thievery, lechery, and the bearing of false witness. These works also refer to the ten non-virtuous acts (mi dge ba bcu), which appear to be an obvious reference to the basic Buddhist ethical framework. In other words, “Buddhism contributed to the substance of Tibetan laws, as well as providing their formal framework” (Dreyfus 1995, 120).

There is no universal agreement on these points, however. Schuh claims that the legal texts that were subsequently produced (the Zhal lce) were not based on these non-virtuous acts, nor on the sixteen pure human rules (mi chos gtsang ma bcu drug).⁷ Schuh argues that the influence of Buddhism was a “retrospective, purely fictitious, ideological construct” (1984, 299–300). Van der Kuijp has also noted “the total absence of anything that might remotely be construed as Buddhist, except for their propagandistic introductions written for the purposes of legitimation and authority”(1999, 288).⁸ My contention is that while the legal codes in their earliest beginnings, for example, those dateable to the early seventh century, may not have been Buddhist, they most certainly came to integrate Buddhist values as time passed and as legal texts were further edited, elaborated, and “modernized” to accommodate the sentiments of the day. As a result, Tibetan legal codes contain a mix of notions, ideas, and vocabulary – often difficult to understand even for highly educated readers of Tibetan.

Perhaps the most well-known and widespread Tibetan legal code is “The Sixteen Pronouncements” (Zhal lce bcu drug). Although nothing of the contents suggests as much, the origin of this code is traditionally attributed to King Songtsen Gampo (Srong btsan sgam po, seventh century CE), who is credited with igniting the flame of Buddhism in Tibet (see Chapter 5, this volume). Some see the genre of zhal lce texts as being Tibet’s constitution, and indeed at certain times in the history of Tibet certain zhal lce codes did actually function as something referred to as an authoritative “body of rules” used to govern the operation of political communities. At the same time, we also know that informal socio-legal practices formed, and still form, a large part of the social reality in Tibetan regions (see Pirie 2006). The fact remains that Tibet’s literary and oral tradition – now and in the past – points to these texts as foundational when discussing Tibetan law.⁹

We have always assumed that the various zhal lce works are individual and distinct texts, which borrow heavily from each other. Upon closer examination, it appears that any given zhal lce text bases itself on previous works, ultimately referring back to the presumed original version by the dharmarāja Songtsen Gampo. This is reminiscent of the Buddhist genre of commentarial literature (e.g., śāstras) that try to clarify, apprise, and make relevant the authoritative source, namely the words of the Buddha, the sutras. In a similar way, the deified ruler Songtsen Gampo’s legal visions – whatever those may have been – have not been and can never be changed or contradicted.¹⁰ However, they can be adapted to certain times and circumstances. A number of variations and adaptations exist, resulting in not only various numbers of pronouncements but also different contents among the recensions.¹¹ While the relatively early legal code (fourteenth century CE) studied by Pirie maintains the framework of a list of a set number of laws, “[i]t seems as if the writer has carried out, or commissioned, a survey of contemporary customs and recorded different practices” (Pirie 2020, 605). Not coincidentally, this is similar to how the monastery’s rulebooks were – and are still – composed (Jansen 2018, 21–22).

Confusingly, legal codes (zhal lce) that look like different editions of the same work (as they both have the same number of articles) may also be distinct works altogether. It is therefore better to speak of a genre of zhal lce texts, rather than of textual variations, which suggests that there was one Ur-text on which all others are based (despite what the Tibetan tradition itself may claim). To improve our understanding of this genre then, scholars should stop viewing and treating individual zhal lce texts as existing independently and start looking at the works as a corpus. In this way, we can see how the legal texts interact with each other. This philological approach to legal texts has been a desideratum for decades now.¹² Obviously, the format of the zhal lce genre is more or less fixed: there are to be a number (twelve, thirteen, fifteen, or sixteen) of “laws” on which the author then comments. Frequently, the works have long introductions, sometimes relating the “history” or origins of law in Tibet (see Jansen 2020a).

It appears that these pronouncements had a mainly symbolic function, nonetheless they were deeply engrained in what has been called the “legal consciousness” of the Tibetans (see Pirie 2013b, 239–41). The purpose of the main Tibetan legal codes, the zhal lce – in particular after the Ganden Phodrang government (headed by the fifth Dalai Lama) was established in 1642 – is seen by some to be pro forma, mere symbolic representations of juridical power (Pirie 2016, 241; Cassinelli and Ekvall 1969, 153). As Pirie has rightly remarked, “there is little evidence that the provisions of rules and agreements … were applied in any detail” (Pirie 2016, 232). Still, I have found that the different zhal lce texts draw upon each other: they cite, rework, and reinterpret earlier versions. Much like the way in which a Tibetan scholar would attempt to make an old Buddhist text from India fit the sensibilities of a much later audience, there appear to be instances in which authors seem to “update” and maintain the relevance of the previously existing zhal lce by explaining them in the terms of that day. While this is not evidence that they were applied in a court of law, the regular updating of these texts does suggest they were far from obsolete to those who dealt with legal matters.

6.3 Monastic Constitutional Law?

I have mentioned that monks and monasteries generally were not subject to “secular” laws. Stein argues that this is one of the reasons why monasteries should be seen as “independent overlords,” since “monasteries are exempt from tax and services, they can be regarded as independent overlords, for they own land and serfs yielding them taxes and services, and discharge all the functions of authority (justice, etc.)”( Stein 1972 [1962], 141). What is unknown, however, is exactly how this legal unit functioned. The question also arises: To what extent were monasteries autonomous in terms of jurisdiction? When considering Buddhist monasticism as an Asian phenomenon, in general terms and without relation to a particular cultural setting, some scholars have suggested that monks are only ever answerable to themselves (Carrasco 1959, 121): in other words, by taking his ordination vows, the monk is no longer subject to the secular authority and answers only to the Buddhist code of discipline, the vinaya (e.g., Vermeersch 2008, 151). The monastic legal code, the Mūlasarvastivādavinaya, that Tibetan monks adhere to makes it clear that the king must acknowledge that lay law does not apply to the monks and monastic law does not apply to the laymen (Schopen 1995, 117). Buddhist sutras, such as the Ākāśagarbha Sūtra, also reflect this notion. In this particular sutra the Buddha names five transgressions for a member of the kṣatriya caste who is due to become a ruler. One of these transgressions is the forcibly disrobing or punishing of Buddhist monks – regardless of whether they are innocent of their crimes and transgressions:

Taking by force the saffron robes of those who have shaved their heads and beards for my sake and donned the saffron robes – whether they uphold the precepts or not, whether they observe the discipline or not – thus making them householders; inflicting corporal punishment on them, imprisoning, or killing them: all of these constitute the third root transgression.¹³

Later on, this sutra prophesizes that monks will, in a future time, resort to plundering and stealing (even from temples) in order to pay the fines the ruler has imposed on them (D66, 277b), displaying an awareness of what a ruler’s strong juridical hold on monastics could lead to. From this, and other historically better attested instances, we can gather that the notion of the legally independent renunciant represents a mere ideal – one that in and of itself has value – but which is thoroughly ahistorical.

The very fact that various Indic Buddhist normative sources emphasize the Sangha’s legal autonomy is exactly because it was regularly being challenged. Throughout history, mass forced disrobements of monks, or “sangha purifications,” initiated by secular rulers were a regular occurrence in countries such as China, Mongolia, Burma, Thailand, and Sri Lanka. Naturally, this was more often than not a pretext for political gain and not necessarily done out of concern for the purity of the monkhood. It is perhaps significant that for the case of Tibet, the only time that Tibetan sources attest to such a thing happening is during the reign of Glang Dar ma (r. ?838 to ?841), an “anti-Buddhist” king who, as Tibetan historiographers report, forced monks out of their monasteries and made them wear lay clothes. Later historians suppose that the Glang Dar ma was not the villain he was made out to be and that he even restored Buddhist monuments during his lifetime (e.g., Karmay 2003; Yamaguchi 1996). The decline in monastic Buddhism in Central Tibet that followed Glang Dar ma’s reign was more likely due to the economic drain posed by the still relatively new phenomena of monks and monasteries during a time when the region was hit by multiple natural disasters. Clear parallels can be drawn with the large-scale laicization of monks under Emperor Wuzong (武宗 814–46; r. 840–46) in Tang dynasty China that took place around the same time (Gernet 1995, 14–25; Weinstein 1987). Perhaps the more pertinent question is how monks saw themselves, and the vows and monastic rules that they were bound to, in relation to secular laws, rules, and rulers. To put this in more abstract terms: What is the relationship between religious ideals and the secular space?

According to Ellingson, who was the first Western scholar to investigate the genre, monastic guidelines were based on “secular” law codes (Ellingson 1990, 205). A preliminary comparison of the bca’ yig and the extant legal codes of Tibet indeed indicates that – in particular, terminologically and linguistically – there are striking similarities between the two genres. One of the possible reasons for these similarities is the fact that the authors of the two types of texts were often one and the same. This is because the educated few were almost always heavily influenced by monastic training, in one way or the other. As mentioned above, there are even instances of law codes that were explicitly based on monastic guidelines, of which the code of conduct issued by the Bhutanese state (Sgrig lam rnam gzhag), which is in current use, is a case in point (Penjore 2011, 23).¹⁴ While the question as to how exactly monastic guidelines and legal documents are related requires further investigation,¹⁵ my research suggests that the one genre was not necessarily based on the other but that they were still strongly related and made use of each other. Answering this question involves a more in-depth philological study of legal texts and their “Buddhist and monastic” heritage, details of which are beyond the scope of this chapter.¹⁶

My research into legal texts from the mid-seventeenth century and later has so far revealed that the judicial independence enjoyed by many monasteries was not simply asserted by the monastic authorities themselves but was also deliberately awarded to them by the government or local ruler (or the authors of these texts). This notion is indeed clearly stated in many sets of monastic guidelines, as well as in legal texts. Both of these subsets of legal constitutional literature refer to each other. The monastic guidelines tend to stress that monks’ behavior should be in accordance with the “royal laws” (rgyal khrims), while legal texts issued by rulers emphasize that monastics are to live by their own rules. My research has shown that the latter works often display an acute awareness of the internal contents of the monastic guidelines, suggesting that the authors either were informed by monastic agents, or had a monastic background themselves. A legal edict issued in 1643 – possibly one of the very first to have been issued by the young Ganden Phodrang government – addresses all Tibetans, of high or low status, monk or layperson. Its authorship is contested, but there are indications that the fifth Dalai Lama was involved in composing it. The edict addresses the monk community separately, while at the same time also exerting authority over the monasteries (and other religious institutions) by stating the following:

People who have committed grave offenses such as murder may not be given refuge in the religious institutions. From now on, one is to be wise and successful [by] remaining in accordance with the Dharma, without disregarding the instructions established by the general monkhood (spyi mchod)¹⁷ who are [to behave] in accordance with their own monastic guidelines (bca’ yig). Whether one is high or low, no one is to go carelessly into the financial accounts¹⁸ of what is definitely the general monkhood’s.¹⁹

On the one hand, the decree forbids monasteries from taking in wanted criminals;²⁰ on the other it simply reminds the monks that they have their own laws to abide to. It is furthermore interesting that the language used in the text is very similar to monastic guidelines written around the same time.²¹

Another legal text, apparently written during the Tsangpa (Gtsang pa) dynasty (1565–1642), similarly views the monastery as a separate legal entity: it states how people guilty of thieving should be punished (by, for example, chopping off of the hand), but it also describes how monasteries generally dealt with their own monk-thieves: they were to be expelled under the sound of the gaṇḍi and be treated in accordance with the monastery’s own set of guidelines.²² It thus appears that monastic legal independence was not just condoned but also encouraged by the legal codes. If the periodization of the aforementioned legal text is indeed correct, this interdependence of monastic and secular law was not necessarily a result of the “unification of Church and State” that took place under the fifth Dalai Lama but existed prior to it. In other legal texts, the genre of bca’ yig, and by extension monastic law, are referred to numerous times. My previous research on this genre did not properly touch upon the political usage of the genre of monastic guidelines, but here we find that lawmakers read them, referred to them, and invoked their (religious) authority.

6.4 Constitutional Law and the Sangha

The liberties that monasteries and monks were meant to have had clearly existed in theory, as evidenced by Tibetan legal texts. By extension then, one would presume that monks and monasteries were not expected to pay taxes. A number of edicts, issued by various rulers, reinforce the exemptions monastics tended to enjoy. An edict issued by the fifth Dalai Lama in 1648 for the holy place La stod (also spelled Las stod) that forbids hunting in the region along with hindering monks from collecting alms, also explicitly warns that monastics living in the region were not to be harassed.²³ Another edict written for the abbot of Bsam grub dgon in ’Bar rta (situated in Ldan ma, Kham, currently part of Sichuan province) on behalf of the seventh Dalai Lama in 1748, similarly reminds the local rulers and inhabitants to allow monks of said monastery to move around freely; not to rob them; not to hinder their access to water and grass; and for the guardians of the roads, paths, and bridges not to harass them. The audience of the edict is furthermore reminded that the monastery should not be taxed in any way.²⁴ A much earlier but similar legal text written in 1267 by the famous Sakya (Sa skya) monk Phakpa (’Phags pa 1235–80) for all those “people included among the Sakyapa, big or small” requests them to exempt the monks of Chos sding monastery from military duty, taxes, and labor (dmag khral las gsum); from land and commercial taxes (sho dam kha);²⁵ and from giving foods and corvée labor (za ma ’u lag). Significantly, Phakpa writes this at the behest of the king (rgyal po lung gis) – presumably Kublai Khan.²⁶ It appears that since this legal note mostly concerns religious matters – that is to say, the sangha’s concerns – the authority lay with the “preceptor” rather than with the “donor,” in other words with the religious leader and not with the king.²⁷

These documents, of which there are many more, confirm the notion that monks and monasteries had their own legal systems, but also that they were perhaps better protected than their lay fellow countrymen by the laws that were upheld outside of their monastic boundaries. Scholars should, however, be cautious in how they interpret such texts. If indeed all monks and monasteries were and had always been “untaxable” and not to be harassed in any way, why would there be a need to confirm this in multiple legal documents? The presence of these prohibitions suggests that monasteries and their inhabitants were indeed occasionally subjected to taxes levied by local rulers – be it legally or illegally. This is further attested by the famous Mahāsiddha Tangtong Gyalpo (Thang stong rgyal po ?1361–1485), who in his biography, written by his disciple Mönpo Dewa Zangpo (Mon pa Bde ba bzang po, fifteenth century), is recorded to have addressed and criticized all the leaders of Tibet for their poor leadership, since kings in this “degenerate age”:

… monger for war, disallowing tantrikas and monastics to practice the Dharma

They pursue monasteries for inflated²⁸ taxes and corvée labor

They take delight in sinners and cheaters, saying they are “tough guys”

They accuse those who are innocent of breaking the law

When they are not eloquent enough²⁹

The protagonist of this biography is critical of local rulers of Tibet whom he calls self-centered. Clearly, Tangtong Gyalpo, who was not a monk, merely makes an appeal to the rulers’ conscience, since he had not much political clout beyond his charisma and immense popularity among the people of Tibet (and beyond). Significant here is the notion that raising taxes among the monks is presented as morally abject – nonetheless it is implied that these taxes were indeed levied. The issue of taxes directly addresses the tension between monastic juridical independence and the concerns of local rulers seeking to control the monks, possibly by limiting their income.

Along with the liberties and exemptions that monastic institutions enjoyed also came responsibilities. For monasteries, to remain legal sub-units was contingent on them remaining diligent with respect to specific religious matters. A legal decree issued by the fifth Dalai Lama, for example, states that the monastery of Bsam gtan gling (in Skyid grong, in southwestern Tibet) was to be left alone by local rulers, to be allowed to make use of the fields in the surroundings, and to be exempt from taxation – but only for as long as the monks would continue to perform rituals for the living and the dead, uphold the vinaya [ritual] cycle, make offerings at the temples, and take responsibility for repairs and leaks (of the monastic compound) in a proper manner.³⁰ This same document also warns that no one can hunt on the monastic grounds.³¹ Elsewhere, I have demonstrated that monks were often also burdened with the responsibility of policing their own monastery’s territory to prevent hunting and other untoward activities (Jansen 2018, 154–5). Indeed, when monasteries defaulted on their basic responsibilities, the local rulers or the government were allowed to intervene, which they did do not infrequently.³²

The monk-polymath ‘Jam mgon Mi pham (1846–1912) confirms to the king of Derge that the secular ruler is entirely justified to put monks in their place, despite the fact that Buddhist sutras advise against it:

In like fashion,

sutras such as the Ākāśagarbha and so forth,

state that our teacher, the Buddha,

prohibits the punishment of monks.

They state that if the followers of the Buddha

are subjected to legal punishments,

the power of the kingdom’s merit diminishes

and becomes the reason for its destruction.

However, in this degenerate age,

there are many monks who are exceedingly unruly,

When they cannot be disciplined

through the sangha council’s religious procedures,

then the king needs to do this.

(trans. by Cabezón 2016, 192)

This advice to the king of Derge (Bde dge, in Kham, current-day Sichuan province), which is self-consciously modeled upon Indic nītiśāstras (Cabezón 2016, 247), continues with the procedure of how the king needs to relate himself to the sangha in those instances. The prerogative of the king to purge the sangha of unwanted elements – occurring often in other Buddhist countries – may have been justified by Buddhist monastic scholars, but in practice there are very few historical instances that a ruler (even when a monk himself) actually managed to bring about large-scale changes among the sangha in greater Tibet. This is something attempted by the thirteenth Dalai Lama (1876–1933), with limited success: many reforms aimed at the monkhood were reversed after his demise (Bell 1998 [1946]; Goldstein 1989).

By contrast, we see that the power relations among monks and their rulers in Mongolia, for example, were very different. There, the rulers, who of course also claimed to uphold the dual system of “Church and State” (lugs gnyis), regularly “defrocked” and punished monks for minor transgressions (Wallace 2010). A Mongolian post-Qing era law code (“Laws and Regulations to Actually Follow,” M. Jinkhene Yavakh Dagaj Khuuly Dürem), which covers monastic, criminal, and civil law, in place between 1913 and 1918, states that monks caught gambling were to be punished with up to a hundred strikes of the whip – not dissimilar from the proscribed punishment for laypeople (Wallace 2014, 331). The difference between the legal privileges of Mongolian and Tibetan monks here is remarkable, more so since all monastics involved historically follow Tibetan Buddhism, but it may well lie in the fact that many Buddhist monasteries in Tibetan areas, especially from the seventeenth century onwards, were both politically and economically powerful on a local and translocal level.

In Tibet, when monks and monasteries were subjected to government intervention, it was more often than not for political or sectarian reasons – no large-scale sangha-purifications ever took place.³³ One famous instance of this is the incident that occurred in 1921 when monk managers of Drepung Loseling (‘Bras spungs Blo sel gling), a monastic college of the largest monastery in central Tibet, tried to repossess certain estates by force. Drepung Loseling had previously invoked the thirteenth Dalai Lama’s ire by siding with the Chinese during their brief takeover of Lhasa in 1911–12. The monks involved were caught hiding in the mountains behind Drepung monastery (Goldstein 1989, 104–5); they were beaten, and then officially expelled. According to a Tibetan minister Charles Bell spoke with about the matter, the ringleaders were then “made over to different officials with iron fetters on their legs and cangues (square wooden boards, each side three feet long) round their necks.” They were subsequently set to work in the stables (Bell 1998 [1946], 332). The government’s harsh treatment of these men resulted in violent protests by the Drepung Loseling monks, who marched to the summer palace to purposefully disturb the Dalai Lama’s retreat. In the end, 3,000 Tibetan soldiers had to be deployed to restore calm in the Tibetan capital (Goldstein 1989, 106–7). The relatively powerful political position the thirteenth Dalai Lama found himself in at the time – evidenced by his triumph over thousands of rebellious monks – was, however, something of a historical anomaly: throughout the roughly 300 years of the Dalai Lamas being the official heads of state, only the fifth, the thirteenth, and the fourteenth Dalai Lama held any significant power.

The monastic antipathy toward government intervention has become even more distinct in the last seventy years, during which Tibetan monasteries have had to deal with the highly repressive People’s Republic of China. When, in the 1980s, monasteries were rebuilt and monastic education was reestablished, the tendency toward monastic (legal) autonomy was also rekindled. Many of the current-day protests initiated by monks and laity alike arise fundamentally from structural repression but are initially set off by the government’s interference in monastic affairs. An example of this is the large-scale protest that resulted from the attempts by the Chinese communist government to reinstate the Great Prayer Festival (smon lam chen mo) in Lhasa in 1986.

This age-old festival had been traditionally used by the Tibetan government to strengthen its bond with the Buddhist clergy. During this three-week period, monks from the three large Geluk monasteries in and near Lhasa would flock toward the city to conduct prayers for the success of the Tibetan government. Monks, refusing to pray on behalf of a repressive communist government, protested the mandate to attend, which resulted in large-scale arrests. Subsequent boycotts and further arrests eventually sparked the riots that took place on March 5, 1988. Attempts to quell the riots with violence resulted in an unknown number of deaths (for the historical context of this see Jansen 2020b). Similar protests, in many cases relating to religious self-determination, crop up time and again in Chinese-ruled Tibetan areas. Understanding the historical precedent for these protests to be based in the long tradition of monastic legal autonomy is helpful in comprehending the regularity and vehemence with which they occur.

6.5 Concluding Remarks

The very basic function of monastic law as understood by monastic authors themselves is rather similar, if not identical, to law outside of the Tibetan monastery. Laws–and by extension justice–essentially serve to secure social order in both milieus. In Tibetan societies, where the government has traditionally been symbolically prominent yet functionally absent, the distinctions between law and custom (Ramble 2008, 41) – or for that matter law and morality – are less easily made. The same may be said for other Buddhist traditions in Asia.³⁴ Buddhist morality and secular law ultimately are both “normative social practices” and also “symbolic expressions of social values” (Wallace 2014, 332). Religion – and by extension Buddhism – is often viewed by scholars as providing a means of social control, which implies, to cite Gombrich, “a system of rewards and punishments, either internalized during socialization or externally supplied by institutions, or both” (1975, 218). The two kinds of legal codes thus existed symbiotically in order to support this social order.

What this chapter emphasizes is that monks – or to be more specific, monastic members of a monastery – had a special legal status that awarded them significantly more liberties than lay Tibetans. At the same time, monastic institutions were supposed to “pay” for those liberties by carrying out duties that were seen as essentially the responsibility of monks. When a monastery neglected these religious, ritual, and social duties, its special legal status was nullified, which could potentially have severe consequences. The bodies of rules that governed the monastery and its inhabitants, as well as those which governed the rest of the Tibetans, display an awareness and an acceptance of the status of the monastic institutions. These two sub-genres of legal works clearly influenced each other, not just because their authors were often one and the same but also because the inherently Buddhist value of putting the sangha first was shared among all legal actors.