Comparative lawyers like to divide the world’s legal systems into ‘families’, and very often the family resemblance which they chose as an organizing principle is that of religion. Thus we can read excellent descriptions of the development of ‘Islamic law’ over the last twelve centuries, or of ‘Hindu law’ over the last two millennia. The way in which western authors look at European legal history has been affected by this: it is becoming increasingly common to downplay the distinction between ‘common law’ and ‘civil law’ in order to emphasis the common identity of both as ‘Christian law’, With one exception, each of the world’s major literate religious is associated with a family of legal systems. The exception is Buddhism. Perhaps we do not speak of ‘Buddhist law’ because we are still under the influence of Max Weber, who portrayed Buddhism as an individualistic, rather than a social, religion. Or perhaps it is because ‘Buddhist law’ can mean different things in different religions: in pre-Moghul India it referred only to a special disciplinary code binding on the community of Buddhist monks. In china during the first millennium CE it referred to one among many foreign influences on traditional Han legal ideas. In Tibet during the second millennium CE it more usually describes a unique from of theocratic government rather than the legal regulation of daily behavior. But in S.E. Asia there does seem to be a ‘family of Buddhist legal systems’ – the predecessor kingdoms of modern Thailand, Cambodia, Laos and Burma drew heavily on Buddhism to produce an interrelated group of national law. My ambition is to write a legal history of Buddhist S.E. Asia from 500 BCE to the twentieth century in order to establish ‘Buddhist law’ on the world legal map. There are three respects in which evidence from Assam is crucial to my project. In this short paper I explain what Assam can teach us about ‘Buddhist law’.
Let us start with an outline of what such a legal history might look like. From 1000 BCE onwards some groups of S.E. Asians made immense progress in agricultural and metalworking technique. By 100 BCE they had mastered the techniques of irrigated rice cultivation and had built fortified villages large enough to qualify as ‘towns’ or ‘cities’. But they did not develop their own alphabet. Pre-literate S.E. Asia in 100 BCE was divided into two groups – the irrigated rice cultivators of rice plains, and the hoe cultivators and foragers elsewhere. Each group developed its own style of law: while the hoe cultivators retained a kinship-based customary law approach, the rice cultivators had to invent new legalistic concepts of land ownership and labour exploitation. When S.E. Asian began to absorb Indian influence from 100 CE onwards, it was the rice cultivators who welcomed the Indians brought (written records of land ownership and debt are so much more efficient than relying on popular acclaim) but in adopting the Indian medium, the rice plains inevitably adopted the Indian message. Indian books on religion, statecraft, astrology and mathematics began to change the basic beliefs of S.E. Asian rice plan. Between 100 CE and 600 CE the local leaders experimented with different Indian religions and different Indian scripts. These experiments produced the pre-classical mandala kingdoms, from the Pyu cities of central Burma to the Cham cities of the Vietnam coast. The legal aspect of India’s influence was very slight at this stage. The mandala kings began to pay lip service to three very broad Indian principles about law, but the irrigated rice farmers continued to settle their disputes according to the principles of ownership and debt which they had worked out previously. The three broad Indian principles that were influential were, firstly, that the best law was written law, secondly, that the king was the supreme legal authority by virtue of his exclusive powers of danda [punishment] and, thirdly, that legal knowledge could be classified into eighteen different topics.
By the end of the ninth century CE there is evidence that Indian legal influence is increasing. Just before the classical S.E. Asian states of Angkor and Pagan began their illustrious history, we learn that more legalistic modes of dispute settlement were being adopted. Up until then copies of Indian law texts (dharmasastra) may have been kept in the king’s palace, unread but on display. Now, as a result either of increasing literacy or increased population pressure on cultivable land, the texts are being used by litigants as a source of binding legal rules. The ‘Indianisation’ of S.E Asian law takes place five or six centuries after the ‘Indianisation’ of religion and scripts. It is tempting to see these legal developments as an immediate cause of the rise of the great classic emprise. Angkor and Pagan offer two rival models of Indianised S.E. Asian law. In Angkor the dominant religion is Saivite Hinduism, the classical language is Sanskrit and important law texts are Indian dharmasastras. In Pagan the dominant religion is Theravada Buddhism, the classical language is Pali and the important law texts are the locally written dhammathats. These texts take their general inspiration from the Indian dharmasastras, but are far from being slavish copies. Karma has replaced caste as the principle of social stratification. Rules on land, debt, adoption and marriage are drawn from the oral law of rice plain, rather than Hindu models.
After the collapse of the classic states, Pagan’s religion triumphes over Angkor’s: Theravada Buddhism becomes both the popular and the official religion in the emergent post-classical states of mainland S.E. Asia. But, in legal terms, Pagan’s triumph is not so complete. The dhammathat tradition spreads from Pagan into Laos. Thailand and Cambodia, but in the latter two countries it is mixed with an Angkrorian approach to judging and editing the texts. In Thailand, right up until 1880, a hereditary group of Brahmans were officially in charge of updating the Buddhist dhammathat. In describing post-classical Buddhist law between 1400 and 1920 I find it useful to distinguish three regions. In the west [Burma, Arakan and the Mon cities] the Pagan traditions continue to develop. In the east [central and southern Thailand and Cambodia] Pagan and Angkor traditions mixed to provide a distinctively bureaucratic legal system. In the north [the smaller Tai kingdoms of Lanna, Laos, the Shan States and the Sipsongpanna] the law is Buddhist in inspiration unmixed with the brahmanical elements found in the east, but it directly borrows less from the Pagan tradition of law-texts than we might expect.
This sketch of Buddhist legal history S.E. Asia is, I hope, plausible, but I confess that it rests on very little hard evidence. It is usually assumed, for example, that Indian influence reached S.E. Asia through the ports on the Bay of Bengal and the gulf of Thailand, and then slowly trickled inland. Archeology seems to confirm this, but the archeologists have done relatively little work on the inland sites of Laos, the Shan States and Northern Burma. Why do the northern traditions of religion and law appear to be more than just a pale provincial copy of the Pagan model? Here is the first respect in which Assam might provide an answer. I believe that in the First Millennium CE the overland route from India to China via Assam and Nanchao was far more important in cultural terms than is presently credited. It provided a route by which a specifically North Indian influence could enter S.E. Asia overland to supplement the specifically south Indian influence which entered by sea. There is evidence that Nanchao was cooking up its own brew of Buddhism in the eighth and ninth centuries with Mahayana and Tantric flavours predominant. Buddhism may have reached Burma and the Gulf of Thailand. Could this apply to legal traditions as well?
The second area on Assam provides useful evidence is that of the legal arrangements adopted by the pre-Buddhist Tais. There is almost no evidence of what law looked like in the pre-classical mandala kingdoms, and no evidence at all of what the unwritten law of the rice plains was like before Indian influence. We can use contemporary legal anthropology to fill some gaps: there is convincing evidence that irrigated rice powers, whenever and wherever they lived, need more detailed legal regulation than other farmers. And we can work backwards from the post-classical law texts: subtracting what is clearly Indian in these texts leaves a residue which we may presume presume represents survivals of pre-Indian law. This technique makes sense for the Khmers and Mons, who have been living in S.E. Asia for the last two thousand years, and it makes some sense for the Burmese: even if they arrived in Burma as late as the ninth century, they adopted the irrigation techniques, and presumably the legal arrangements, of their close relatives the Pyus, who had been resident in Burma for a thousand years before. But there are problems with applying these techniques to the Tai people. They, it is usually assumed, arrived in S.E. Asia in the tenth and eleventh centuries from a homeland on the borders of Vietnam and China. They seem to have known how to grow irrigated rice before they arrived. It is possible that they brought their own distinctive rice plain law with them and possible, as Edmund Leach argues2 ,that their law was extensively influenced by China. The Tai present a particular problem, which is not made any easier by the fact that we know far less about law in Thailand before the nineteenth century than we do about law in Burma, Cambodia and Laos. What was Thai law like before the Tais adopted Buddhism? In S.E. Asia the Tais started to leave written records only when they adopted Buddhism, so we cannot hope that newly discovered texts will shed light on this questions. The literature of Assam provides our only important clue in the shape of the Ahom Buranji 3 and specifically its passage describing the Ahom laws at chapter 2. Section 17.
In this passage Lengdon, the supreme God, instructs his two grandchildren, whom he is sending down to earth to rule over the Tai and other peoples. One recurrent motif is the emphasis Lengdon places on the poly-ethnic nature of the population and the importance of maintaining cultural separateness:
“There are people of various communities on the Earth. It is very thickly populated.
You must rule with a firm hand. I advised you to do justice.”
“No one lakes any notice of the origin of a girl whom he may take as his wife.
They speak an unintelligible tongue.”
The other prominent motif is the importance of preventing wrongdoing within the family unit. The specific crimes which Lengdon returns to several times are rape of a daughter-in-law or sister-in-law, incest with aunts and children robbing their parents: the crimes which threaten the unity of the family unit. Are we to read these provisions as addressed to all the ethnic groups ruled by the Ahom king, or is it addressed explicitly to9 the Tais? In the light of Condominas’ description of Tai rule over multi-ethnic populations in the Dien Bien Phu region of Vietnam4. I favour the latter interpretation. Lengdon is giving the Ahom kings two interconnected messages: firstly, the Tais must avoid intermarriage with other groups and, secondly, the greatest sins are those which threaten to disrupt the Tai family unity. Chapter 6, section 3, gives the names of seven chief families who came down from heaven with the founders of the Ahom dynasty. This suggests that the Tais of Assam saw themselves as a small group of families, outnumbered by the peoples over whom they ruled. Losing any one of these families would be disastrous to the Ahom state. The pressing duty on the Ahom king is to prevent family disputes from splitting the small elite of Tai families. If interpretation of the Ahom laws passage is persuasive, then we can compare it with the law texts produced in other ancient civilizations where one ethnic minority rules over a mixture of others. The Code of Lycurgus, produced in sixth century BC Sparta, was one such. And, if we can apply Ahom attitudes to the pre-Buddhist Tai in general, they demonstrate some of the strategies which made the Tai so successful in establishing their rule over mixed populations from thirteenth century onwards everywhere from the Upper Mekong to the neck of the Malay Peninsula.
The third area o b which we may hope Assam can shed some light relates to the period between the thirteenth centuries. Most of the northern Tai kingdoms, however small, produced law texts during this period. The ‘Code de Vietnam’ and some other Laotian dhammathat style law texts, have been known for most of this century. In the last ten years the extensive legal literature produced by Lanna, the kingdom centered on Chiang Mai, has been rediscovered. In the last five years Tai scholars in Kunming have published the law texts produced by the kings of Sipsongpanna, the Tai region of southern Yunnan. But no one has yet come up with evidence of written law in the Shan States. Did the Shans really organize their life without law texts? Or have we not been looking hard enough? When European travelers first visited the Shan States in the nineteenth century, they were struck by the high levels of literacy compared with Burma and Laos. Perhaps this interest in books was limited to religion, and the states were small enough to get by without written law. But Keng Tung has a long history as a medium sized state. And Mong Mao in the twelfth and thirteenth centuries had imperial claims. Even if the Shan chronicles exaggerate the importance and size of Mong Mao, there would still have been a sizeable confederacy of Shan states during the reign of King Chau Kam Pha extending from Mekong to the Chindwin river. Did this temporary empire do without written law? Or did it collapse partly because it lacked written law? One possibility is that the Buddhist Shan States developed their own written Buddhist law texts like the other Northern Tai kingdoms; such texts are unknown to European scholarship, we might argue, because the Burmese and eradicated them during their gradual assertion of control over the Shan States between the thirteenth and the nineteenth centuries. If such texts survived, it would have to be among the Shans who chose to flee from the advancing Burmese. The Khamti Shans, living in the headwaters of the Chindwin and Irrawaddy, were near enough to Burma to become Buddhist, but far enough away to retain their own social arrangements into the nineteenth century. In response to Burmese encroachment in the eighteenth and nineteenth century, when the Manipuri was taught the Burmese that their northern frontier was not impregnable, many Khamti Shans fled northwards over the hills to Assam. Could they possibly have taken some Shan law texts with them?
Hence my excitement when I read the following passage in Dr. Chowdhury’s ‘The Tribal Culture and History of Arunachal Pradesh’:
“It is, however, known that the Khamtis maintained some form of historical records,
called chyatuie [comprising of writings on law, social and political events], but these
sources still remain to be explored…Recently, the Arunachal government has appointed an archivist at Chowkam, the main concentration of the Khamti tribe in Aruanachal. 5
Readers of this journal are more likely than any other group in the world to be able to shed further light on what has survived. I would be grateful for any more information. If khamti law texts have survived, we can restore the Shans to the same level of legal development as the Tai-Lu, Tai-Khun and Tai-Lao. One aspect of the reputation of the Shans depends on what might turn up in Chowkam, Arunachal Pradesh!
• See, for example, Unger 1967 ‘Law and the Modern Mind’, and Smith & Weisstub 1983 ‘The Western Idea of Law’.
• Leach 1964 ‘Political Systems of Highland Burma’
• Baruah 1935 ‘Ahom Buranji’
• Condominas 1978 ‘L’Espace Social a propos de SE ASIA’
• Chowdhury 1990 op.cit. at p.136