Buddhist Litigants in Public Court: A Case Study of Legal Practices in Tibetan-ruled Dunhuang (786-848).

Author:Liu, Cuilan
Position:Essay
 
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INTRODUCTION

Conflicting claims to jurisprudence over clerical legal cases were a central battlefield in the interaction between the Buddhist clergy and the state. Buddhist canon law (Vinaya) of the Mulasarvastivada tradition, circulated in both China and Tibet, discouraged ordained Buddhists from litigating in public court when they were victims in legal disputes with lay people. The Buddhist Canon Law on Miscellaneous Matters (Vinayaksudrakavastu) of the Mulasarvastivada tradition records a story in which an ordained Buddhist monk (1) took the thief who had stolen his robe to the court of the king, which was literally expressed as "the palace of the king" (Tib. rgyal po'i pho brang\ Ch. wangjia [phrase omitted]). (2) When this was reported to the Buddha, the Buddha established a rule to prohibit monks from taking thieves to the king's court. Instead, the Buddha urged monks to retrieve their stolen possessions by preaching to the thief to persuade him to voluntarily return the stolen items, by paying the thief the price of the stolen items or half of it. Another story in the Explanation on Buddhist Canon Law for Nuns (Bhiksunivinayavibhanga) indicates that an ordained Buddhist nun was also attempting to litigate in the king's court. This story appears in the section discussing the eleventh of the thirteen rules (samghavasesa) whose infraction require penance and/or probation. In this story, nun Sthulananda obtained some promissory notes from a wealthy lay householder. When the householder died, she went to collect the debt from the debtor and threatened to take him to the king's court if he refused to repay the debt. When this dispute was reported to the Buddha, the Buddha promulgated a rule prohibiting nuns from taking debtors to the king's court. (3) The resolution alluded to seems to be that clerical legal matters should be handled in an alternative venue other than the king's court.

The same Buddhist canon law of the Mulasarvastivada tradition also indicated that ordained Buddhists who had offended the law of lay society were expected to be interrogated within the monastic community. A case concerning stealing was found in the section discussing the second of the four grave transgressions (parajika) on taking what is not given. (4) The offender *Danika was a Buddhist monk who used to be a potter before entering the Order. (5) He was charged with stealing King Ajatasatru's timber to build his monastic cell. When the city guard brought him to the King's court, the king summoned the monk to a private meeting. During this meeting with the king, the monk defended himself by saying that he did not steal because he took the timber with the king's permission. The king could not remember giving such permission and asked the monk to explain. The monk then reminded the king that on the day of his enthronement, he had declared that Buddhists and Brahmans could freely use any trees, flowers, or water in his kingdom as needed. The king then clarified that he only meant to allow them to freely use trees, flowers, and water without owners. Upon hearing this clarification, the monk commented sarcastically, "If you were referring to those not owned by anyone, what's the point of your permission?" The king was outraged by this comment and said: "Monk, you deserve to be killed today. But I can't kill. You'd better leave as quickly as possible." Some monks reported this case to the Buddha. Before interrogating monk Danika, the Buddha asked his disciple, the Venerable Ananda, to find out what kind of stealing would lead to the death penalty in this kingdom. Ananda spoke to various people in different public places and was told that the law in that kingdom would impose the death penalty on one who had stolen five Masas of goods. (6) After this was reported to the Buddha, the Buddha then summoned all the monks and interrogated Danika in front of them. The interrogation began with a verification of Danika's identify and a confirmation of what he had done. The Buddha then scolded monk Danika and laid down rules prohibiting monks from taking what is not given in the future. What happened to monk Danika later is not specified in the text. It is likely that he would not receive any punishment by the monastic community since his offence predated the establishment of the rule against stealing. This case also indicates a perception that open prosecution of ordained Buddhists should be avoided. Although King Ajatasatru questioned monk Danika, he did so in a private meeting and ordered specifically that the guard who had discovered Danika's crime and brought the latter to see him should not be brought in. Besides stating that he could not kill, the king forbore from imposing any other punishment on the convicted monk.

Another case introduced later in the section on the same rule against taking what is not given illustrates what could happen to an ordained Buddhist monk offender. (7) The alleged offender in this case was the Venerable Mahamaudgalyayana, who used magic to rescue Anathapindada's son from the bandit kidnappers. Monks in the group of six accused Mahamaudgalyayana of taking the kidnapped child by force and of terrifying the kidnappers. They requested Mahamaudgalyayana to confess but the latter refused. These monks then requested an ecclesiastical proceeding (Ch. shezhi jiemo [phrase omitted]; Tib. Gnas las dbyung ba'i las) to confront the unrepentant Mahamaudgalyayana. (8) This ecclesiastical proceeding was evidently not held; instead, it was suggested that they present the case to the Buddha for a judgment.

The cases discussed above may not necessarily represent how offences committed by ordained Buddhists were actually handled in legal practices in India; what they do illustrate is an Indie conceptualization of a venue within the Buddhist clergy where transgressions of its ordained members could be investigated. In their perception of their relationship with the state, Buddhists in Tang China seem to have shared a similar approach toward the jurisdiction of ordained Buddhists. Just as the state tried to have ordained Buddhist offenders investigated in public courts under the laws of the state, eminent monks in Tang China tried to restrict investigations of these transgressions to alternative venues other than the courts of the state. (9) Members of the Buddhist clergy insisted that for offences that required a lay offender to be interrogated in the public court, monastic offenders should not be interrogated in this state-operated court. Traditional literati and officials of Tang China, however, believed that this lack of adherence to state laws and courts threatened the foundation of the Tang society. (10) This competition for jurisdiction over the Buddhist clergy shows that the relationship between religion and the state in China between the seventh and early eleventh centuries cannot be fully understood without considering the legal aspects of their interaction.

PELLIOT TIBETAIN 1079

An examination of how clerical cases were actually handled in legal practices in Tang China is now made possible by the discovery of the archival records of legal cases from Dunhuang, an oasis town on the Sino-Tibetan border. Unveiling the legal procedures used to handle these clerical cases will provide invaluable insight for advancing our understanding of how agreements negotiated between the Buddhist clergy and the state were enacted in legal practice in Tang China from the seventh to the early eleventh century. The ruling power of Dunhuang had shifted from the Tang to the Tibetans in 786 and then back to the Tang represented by the Return to Righteousness Army (Guiyi jun [phrase omitted]) in 848. This article examines a legal dispute between a Buddhist monastery and three ordained Buddhists over the ownership of nine bondservants (bran) in order to understand how legal cases involving ordained Buddhists were handled in Dunhuang while it was under Tibetan control (786-848). (11) When combined with future studies on the handling of legal cases dated before and after the period of Tibetan control, findings in this article will contribute to a better understanding of how changes in governance in Dunhuang influenced the legal interaction between the Buddhist clergy and the state.

The legal dispute in question was recorded in Pelliot tibetain 1079, (12) a Tibetan manuscript that was discovered in the Mogao cave library in Dunhuang and is now preserved in the Bibliotheque nationale de France in Paris (see Fig. 2 below). The manuscript is 28 centimeters wide and 29 centimeters long, and contains a total of twenty-three lines written in a headed official style. (13) It is sealed with twenty-seven vermillion stamps. Lalou first catalogued this manuscript as Pelliot tibetain 1079 in the Pelliot tibetain Collection from Dunhuang and identified it as an official document that contained the names of many renowned religious and lay individuals of Dunhuang. (14) Some of these names could be recognized from the seals stamped at the end of the manuscript. Because a few Chinese characters were written on the back of the manuscript, it was also catalogued as Pelliot chinois 3522. (15) In 1983 Wang Yao [phrase omitted] and Chen Jian [phrase omitted] translated it into Chinese. (16) In 1991 Hugh Richardson published his transliteration and translation of Pelliot tibetain 1079 in the Journal of the Royal Asiatic Society. (]1) A summary of the case in this manuscript has also recently appeared in Brandon Dotson's survey of Tibetan legal cases. (18) This foundational scholarship on Pelliot tibetain 1079 has facilitated research on various aspects of the social and religious history of Dunhuang. (19)

The present article aims to understand a few key issues: when members of the Buddhist clergy broke the law or had legal dispute, where and how would their cases be tried? Would they be resolved at alternative venues under the influence of the Buddhist...

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