Why Buddhism Matters in Constitutional Reform
The religion is playing a growing role in constitutional practice in parts of Asia. A first-of-its-kind Law School course created new paths for studying it.
It was a Law School course born of COVID-19 cancellations and complicated by time zones.
But the winter quarter seminar, Buddhism and Comparative Constitutional Law, was also pure UChicago: an interdisciplinary trek into an emerging subfield that was aching for study. What’s more, the class—believed to be the first in the world devoted to Buddhism’s relationship with constitutional practice—may well owe its existence to pandemic restrictions. It grew from a postponed conference and flourished on remote platforms that allowed its professors to combine the seminar with a virtual workshop series in which leading scholars of anthropology, political science, religion, and law presented works-in-progress to a global audience that included as many as 70 outside participants per session. In addition to their weekly class, the seminar’s two dozen Law School, Divinity School, and Social Sciences Division students gathered online with those participants—researchers, professors, government workers, and graduate students from Sri Lanka, Myanmar, Thailand, Russia, Brazil, India, Turkey, Norway, Australia, Singapore, Japan, and about a dozen other countries.
“On so many dimensions, this course collapsed space—it brought scholars together without them having to be in each other’s physical presence, it brought disciplines together,” said Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law, who co-taught the course with Lecturer Benjamin Schonthal, professor of Buddhist Studies at the University of Otago in New Zealand. “And it brought audiences together that otherwise would not be in conversation. All of those things have been really exciting.”
In recent years, constitutional reform efforts in majority-Buddhist Asian nations have sparked new questions about the religion’s interplay with public law while also highlighting a striking gap in the academic literature. Although scholarship exists on secular, Islamic, and Christian constitutional thought, the body of work on Buddhist constitutionalism is surprisingly thin—despite the religion’s extraordinary influence in countries like Sri Lanka, Thailand, and Myanmar. That deficit could be a product of misguided narratives about the religion or the fact that it lacks an equivalent to Islamic shariah, Christian canon law, or Jewish halakha; it could even be that scholarly interests are only now shifting in this direction. (The broader study of Buddhism and public law is itself relatively new.)
“Of the many subfields within the study of Buddhism and law that have not received adequate attention, the subfield of Buddhism and constitutional law stands out as acutely overlooked—a hole within a hole,” Schonthal wrote in a 2018 volume of the Asian Journal of Comparative Law. “In the last few decades, there have been no more than a handful of studies that engage in a sustained, direct way with the question of how Buddhism informs constitutional practice and how constitutional institutions influence Buddhism.”
That is changing, in part because the field of comparative constitutional law has boomed, with legal scholars like Ginsburg pushing into new, increasingly interdisciplinary, directions, and religion scholars like Schonthal embracing modern questions of law and politics as well as those rooted in classical study.
Ginsburg—who has lived and worked in Mongolia, Thailand, and Japan, all countries with large Buddhist populations—is a leading expert on comparative constitutionalism whose interest in Buddhism stretches back decades to an early job working for the publishing house of the famed Vietnamese Buddhist monk, Thích Nhất Hạnh. Ginsburg, who is also a professor of political science, co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation, and he has worked on legal and constitutional reform in numerous countries. Schonthal, who earned his PhD in the History of Religions at the University of Chicago, focuses on the intersection of religion, law, and politics in South and Southeast Asia. He is the author of Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge University Press 2016) and has written several pieces on Buddhism and constitutional law.
The two met when Schonthal was studying at UChicago, and their shared interest in Buddhist constitutionalism grew from conversation to collaboration. The topic has never been more relevant: In recent decades, nearly all Buddhist-majority countries in South and Southeast Asia have pursued constitutional reform, and Buddhist voices and ideas have played a prominent role. Buddhists have also influenced constitutional politics in Japan and Mongolia.
“Nearly one-fifth of the world’s population live in countries where Buddhism has played a major role in shaping culture, politics and—yes—law,” Schonthal said. “Scholars have long written about the important role that Christian ideas and actors played in the development of American constitutional law, and Buddhist actors and ideas did the same thing in many parts of Asia."
“Of course, the influence doesn’t run only one way,” he added, “Changes to public law in Asia have also profoundly affected modern Buddhism. All of this means that if we want to understand some of the big issues facing the region—questions of democracy, nationalism, legal and religious reform—legal studies and Buddhist studies need each other. I think it was that instinct that initially brought Tom and I together. We’re now fully convinced of that!”
The scholars were intrigued by a variety of questions: How do the roles of Buddhist monks affect constitutional changes? How do constitutional reform projects affect the practice of Buddhism? Do existing models in the study of religion and constitutional law adequately explain the dynamics of Buddhism and constitutional law in Asia?
The two began looking for opportunities to bring experts from across the world into conversation. In 2016, the Ginsburg and Schonthal co-edited a special issue of the Asian Journal of Law and Society on Buddhism. And in 2020, they planned to hold conference on Buddhism and constitutional law—one that would bring together scholars from around the world who were charting new paths into the subfield.
Then, of course, COVID-19 hit.
First they postponed the conference. Then they decided to launch a virtual workshop series, which was funded by the National Science Foundation.
“And then I thought, ‘You know what? I bet some students would probably be interested in this,’” Ginsburg said.
Ginsburg and Schonthal created a University of Chicago course that would include weekly seminar discussions, as well as mandatory attendance in the workshop sessions, which included scholarship examining Buddhism’s interaction with constitutional law at various points in history in Thailand, Sri Lanka, Tibet, Bhutan, China, Japan, South Korea, and Mongolia, as well as a roundtable that offered perspectives on Hindu, canon, and Islamic law. (Richard H. Helmholz, the Ruth Wyatt Rosenson Distinguished Service Professor of Law and an expert in canon law, participated in that discussion).
The seminar drew students with a range of interests and perspectives. Some of the Law School students, drawn by the focus on international law or constitutionalism, knew little about Buddhism. One of the Divinity School students was a Buddhist nun.
“One thing that was really great about the class is that it wasn’t just law students—there were all these different voices,” said Rachel Lebowitz, ’21, who was drawn to the class by an interest in constitutional interpretation and international law. “There was also a professor whose specialty is Islamic law [Clark B. Lombardi, a professor of law and Islamic legal studies at the University of Washington] who sometimes sat in and contributed. Between him and Professor Schonthal and Professor Ginsburg and all the non-law students, it was just a really rich discussion.”
The workshop component allowed students to have a front-row seat as a scholars hammered out the parameters of an evolving subfield and engaged with one another despite differences in geography and specialty.
“One of the nice things about Zoom is that you can bring people from all over the world together, and that part was really cool,” said Susan Li, ’21, who chose the class in part because she appreciated the non-Western perspective and the unusual structure. “It also was interesting to be able to read the first or second drafts of people's works before they were published. I’d never taken a workshop class in law school so it was a chance to see scholars in conversation with one another.”
Scheduling was complicated: the workshop presenters came from all over the world—Sri Lanka, Scotland, Thailand, and more—and Ginsburg and Schonthal themselves were on opposite sides of the planet.
“On our syllabus, the workshop times were listed in what was sometimes five different time zones,” Lebowitz said.
The class challenged students to consider not only the ways in which the religion and constitutional practice have intertwined but the reasons behind the dearth of scholarship in this area.
“Some [of the scholars] theorized that there was a misconception that Buddhism is so lofty that [its practitioners] have more important things to do than create constitutions and think about politics and, really, that's not true,” Lebowitz said.
The fact is, Ginsburg said, Buddhists have played an increasingly vocal role in constitutional law and politics—and with a range of effects, good and bad. In Myanmar, for example, some Buddhist monks came out against the recent military coup, while earlier some nationalist monks participated in stirring up violence against the Muslim minority Rohingya. In general, the Buddhist monastic community (or sangha) has played an important role in society in many South and Southeast Asian countries—their voices often carry a lot of weight even though, in some countries, they are forbidden from voting, Ginsburg said.
“In order to understand [this part of] the world, you have to understand what the Buddhists are thinking,” Ginsburg said. “And I think, by the way, that some of the students might have been surprised to learn that Buddhists are not always about peace and love—they can be political actors and even regressive ones.”
The role that the sangha play in majority-Buddhist countries like Myanmar (also called Burma), Thailand, and Sri Lanka runs contrary to how many westerners think about secular constitutionalism.
“Concepts that we like to think about in constitutional law—separation of church and state for example—really don't make sense in a lot of cultures, they're just totally unintelligible,” Ginsburg said. “So one of the things we’re trying to do—I’m using a trendy term here—is decolonize comparative constitution law by inductively understanding the experiences of Southeast Asian peoples from their own perspective.”
Li noted that many of the scholars who participated in the workshop portion “seemed very excited” by the opportunity to gather not just around topics of law and Buddhism but specifically around questions of constitutionalism. Rebecca Redwood French, a law professor at the State University of New York at Buffalo who has been a leader in the broader study of Buddhism and law, referred to the workshop series as “such a joy” while serving as a commentator during a panel on Himalayan Southern Asia.
“You’re really pushing Buddhism and law—it’s just exhilarating,” French, the founder and editor of the journal, Buddhism, Law & Society, told the presenting scholars.
“Buddhism is the last great frontier in the study of religion and law,” she added later. “Due to several historical twists and turns, the Law Code of the Buddha, the law codes of monasteries, and legal practices related to Buddhism as they relate to the law of the governments in which they operate, have only really been studied in the last few decades. Now, with workshops like this that bring real experts together, Buddhism is being introduced into Comparative Law and Religion and Law scholarship.”
For Li, the class highlighted how intellectually stirring a new topic—and a less conventional class—can be.
“Exposing yourself to something new, you never know what connections you might make,” she said.
At one point, during a discussion on secularism, the topic veered toward the concept of the ministerial exception to employment discrimination laws, which had been the subject of her 1L brief. She hadn’t expected to connect a topic from her first year to a niche seminar in her third year. It was interesting and felt “full circle,” she said.
But even more, it hammered home just how much there is to study and learn.
“Buddhism is one of the biggest religions in the world, and yet in all the [study] about religion and law, this area hadn’t been [well-explored],” she said. “It’s a good reminder that there are a lot of topics that haven’t yet been mined.”