(2007) JLP 56: 33-65
Malcolm Voyce
Abstract
It is argued that in ancient India the Buddhist Vinaya (the rules governing Buddhist monks) were not a form of customary law, but a wider system of jurisprudence linked to principles and precepts in the Dharma§āstra (the sacred literature of Hinduism). The Dharma§āstra, as a dominant legal system, allowed groups such as the Sangha (the Buddhist order of monks) to make and amend their own laws, giving rise to a form of ‘juridical legal pluralism’. The concept of legal pluralism also assists an understanding of how the Vinaya, as a subservient legal system, both sought to deploy norms outside of it for business advantages but also had to conform to wider norms to achieve social respect and acceptance.
The monks were directed to obey the ‘outside dictates’ of the Dharma§āstra, since this brought material benefits. The Sangha, developing at different times and in different ways in various parts of Asia, became increasingly prosperous. Consequently in the Vinaya it developed procedures for commercial transactions such as pledges. These were designed to comply with the requirements of the Dharma§āstra. The Sangha was also compelled to adhere to wider notions of Indian society, emanating from Hinduism, based on notions of purity and pollution. Thus rules were developed as to the understanding of questions of pollution and purity in relation to death, and as to the appropriate funeral procedures for monks. In relation to the transmission of the property and debt liabilities of deceased monks, the Vinaya took account both of the Dharma§?stra, where inheritance was linked to the performance of funeral rights and carried the obligation to meet the debts of the deceased, and the popular notion that a failure to meet debts resulted in pollution through contact with the body of the debtor.