Toward
A Buddhist Theory of Justice
James
Blumenthal
Department of Philosophy
102A Hovland Hall
Oregon State University
Corvallis, Oregon 97331
U.S.A
James.blumenthal@oregonstate.edu
Abstract
For more than twenty years key thinkers of Engaged
Buddhism have used terms like “justice”
and “social justice” quite freely. Yet
despite more sophisticated discussions of other philosophical
topics, Engaged Buddhists have not clearly defined
what they mean by the term justice.
Given that the term is one with a rich philosophical history in the
West and has no direct parallel in Buddhist thought, it is incumbent
upon Engaged Buddhist theorists to define what they mean when
they use this term if they are to engage in any sort of
meaningful dialog on justice and related issues in the international
community. In this paper, to illustrate how Engaged
Buddhists might begin this important line of work, I would
focus on two cases. First, I will discuss John Rawls'
theory of "justice as fairness" and compare that with some traditional
Buddhist ideas and explore potential Buddhist thinking, responses, and
adaptations. Second, I will discuss a relatively new
model known as restorative justice in opposition to the pervasive use
of retributive models implemented around the globe and consider the
ways that Buddhism seems to lend itself quite well to "restorative"
models, particularly with regard to criminal justice. Both
examples are merely beginning points for discussion used to illustrate
how and why Engaged Buddhists ought to participate more directly in
global philosophical discourse on justice.
Introduction
Theoretical developments in the Engaged Buddhist movement and scholarly
analysis of these have advanced substantially in the past ten
years. Sophisticated treatments of issues such as
non-violence, rights, and responsibilities have helped to shape
increasingly important developments in this area of Buddhist thought
(for example, King, 2005). For more than twenty years key thinkers in
the movement have used terms like “justice” and
“social justice” quite freely.(1)
Yet despite more sophisticated discussions of other philosophical
topics (2),
Engaged Buddhist thinkers have thus far not clearly defined what they
mean by the term justice.
Given that the term is one with a rich philosophical history in the
West and has no direct parallel in Buddhist thought, it is incumbent
upon Engaged Buddhist theorists to precisely define what they mean when
they use this term if they are to contribute to, or engage in any sort
of meaningful dialog on justice and related issues in the international
community or on the world stage. (3)
Obviously the topics of justice
and social justice
are enormous and ones that can only begin to be discussed in this
paper. Thus, my primary purpose here is simply to highlight
the need for further discussion among Engaged Buddhists on this
critical philosophical topic that lies at the foundation of socially
engaged Buddhism.
Rather than attempt to sketch a history of Western philosophical
treatments of justice, a project outside the scope of this paper, I
will take just two examples for exploration to illustrate how Engaged
Buddhists might begin this important work. First, I
would like to discuss some of the ideas of one of the most prominent
twentieth century American thinkers on justice, John Rawls, and suggest
potential preliminary Buddhist reflections on those ideas.
The specific aspect of Rawls' thought that I will highlight concerns
perspectives on distributive justice – the way to determine
just means for distributing the goods deemed valuable by society and/or
individuals in society. (4)
The second dimension of justice theory I will discuss as an example
concerns the form of justice employed by society or the state in
response to criminal activity. Here I will bracket issues
concerning legal systems, and focus on current conversations by those
advocating a relatively new model known as restorative justice in
opposition to the pervasive use of retributive models implemented
around the globe.
These entire discussions are not intended to draw conclusions about a
Buddhist theory of justice here, but are meant to help begin the
process of Buddhists entering the larger philosophical dialog on
justice – one that I think is critical for Buddhists in their
own internal thinking process on these issues. It is also one
that I believe Buddhists will have much of value to contribute to in
the larger global philosophical conversations in the future.
Given the rich heritage of thought on justice in the West tracing back
to Plato and Aristotle and running throughout Judeao-Christian
theological and philosophical discussions, this is really meant to be a
first step in opening dialog and an opportunity for Engaged Buddhist
theorists to begin to consider these issues in a more sophisticated
way.
I will begin this paper by reflecting a bit on the method one leading
Engaged Buddhist thinker has taken thus far and offer some comments on
that. I highlight Sulak Sivaraksa because he has probably
been the most explicit, but I think his method is reflective of that of
many major engaged Buddhist thinkers today. After some brief
comments on methodology, I will proceed to the two examples mentioned
above from Western philosophical discourse on justice for
consideration. First, I will briefly outline the highlights
of Rawls' notions of "justice as fairness," and his method for
achieving this fairness in the construction of society, from behind
what he calls the "veil of ignorance." I will use this as a stepping
off point to compare his ideas with the Buddhist principle of
"equanimity" to see what sort of parallels may be found, what
of utility may be construed in this comparative work, and
begin to consider if Rawls' ideas on the topic might be a fruitful
starting point for constructing a Buddhist theory of distributive
justice. I will then proceed to our second example,
the question of retributive vs restorative justice, and offer some
reflections on potential Buddhist responses and contributions to issues
that arise in such discussions on just response to criminal
activity. Finally, I will offer some concluding remarks.
Buddhist
Resources: Where to Start?
Though Buddhism has not formally discussed justice in the way that it
has been discussed in Western philosophical traditions, that is not to
say that ideas and principals are not present and that there is not
much to draw from in Buddhist literature, ethical discussions, Buddhist
descriptions about the nature of reality and its ways of functioning,
as well as our ways of knowing (that is, Buddhist
epistemology or pramaa.navaada
thought).
Much is explicit; other dimensions can be abstracted in fruitful ways.
In his book, Seeds of Peace:
A Buddhist Vision for Renewing Society,
leading Engaged Buddhist thinker and activist, Sulak Sivaraksa,
proposes a number of innovative ways Buddhists can think about and act
upon systemic problems that plague our contemporary societies and
situations. He is an intellectual hero for many Engaged
Buddhists, and his life's work is an embodiment of the Engaged Buddhist
ideals he espouses. Much of his theoretical work revolves
around the question of how we are to build a just society, one that for
him, by definition, embodies the basic principles of
Buddhism. What does a society that embodies, or at least
engenders, pursuit of Buddhism's highest ideals look like?
And how are we to go about attempting to create such a society, or at
least move in that general direction? His method is to begin
by going to traditional literature as our primary source of wisdom on
such topics. (5)
Sivaraksa writes:
To create a
Buddhist model of society, we must first look into
traditional Buddhist notions of social order and social justice.
It is worthwhile to begin by examining the Buddhist
scriptures. (6)
I
think this method of turning to ancient Buddhist texts and scriptures
has important virtues. Buddhist canonized literature and the
wisdom it contains can and ought to be a rich resource for this
project. (7)
That said, our reading of those traditional sources can be fruitfully
complimented by two methodological considerations that may not have
been fully utilized: a rigorous historical contextualization of the
sources, and a sophisticated understanding of broader discussions about
justice from outside of Buddhist traditions so as to see how Buddhist
ideas might fit or shape those found in extra-traditional (that is,
Western) sources. Historicism deepens our understanding of
meaning in context such that the ideas can be more fruitfully
translated into current situations. A broad and sophisticated
understanding of ideas about justice, including those outside of the
Buddhist tradition opens the possibility of gathering new insights and
new avenues for framing traditional Buddhist ideas that may not
otherwise occur to thinkers within the tradition. It also
makes a reciprocal global conversation about justice much more
viable. Though the first methodological consideration is
critical, in the interest of space, and because this has been discussed
exhaustively elsewhere, my focus in this paper will be on the second of
the methodological considerations, explorations of the long
philosophical discourse stemming from outside of the Buddhist
traditions.
Considering
Theories of Justice: Two Examples
1) Rawls on Justice as
Fairness: The Veil of Ignorance
With this in mind, I would now like to turn to discuss John Rawls'
notion of justice as fairness. John Rawls was one of the most
important political philosophers of the twentieth century. He
is perhaps most famous for his theoretical strategies for setting up a
just society and the distribution of goods in society (in other words,
"distributive justice"). (8)
The concern for constructing a just society is one that Rawls shares
with Sulak Sivaraksa and many other Engaged Buddhist thinkers, though
as far as I know, he has no Buddhist background. Perhaps
Buddhists can profit from considering the thinking of such a leading
figure, or others like him, who have inherited a tradition of
philosophical analysis on justice that spans more than two thousand
years. Rawls is interested in the guiding principals that one
could use to construct a just society. What are these
principles that can be used to construct a just society? Rawls begins
to describe them as follows:
They are the
principles that free and rational persons concerned to
further their own interests would accept in an initial position of
equality as defining the fundamental terms of their association.
The principles
so derived would then guide all further agreements in
the construction of society. This process of deriving and
utilizing principles of justice are referred to by his famous phrase,
"justice as fairness".
The question soon arises as to what it means to establish principles of
justice from "an initial position of equality". Rawls
proposes a hypothetical situation to do this where the free and
rational persons constructing fair principles of justice would do so
behind a "veil of ignorance". In other words, if one wants to
determine the principles of justice for constructing a just society
under Rawls' notion of "justice as fairness," then those involved in
determining these principles must reflect and contribute to notions of
what is fair and just from behind a veil of ignorance. Rawls
describes this veil of ignorance as follows in his A
Theory of Justice:
Among the
essential features of this situation is that no one knows his
place in society, his class position or social status, nor does any one
know his fortune in the distribution of natural assets and abilities,
his intelligence, strength, and the like. I shall even assume
that the parties do not know their conceptions of the good or their
special psychological propensities. The principles of justice are
chosen behind a veil of ignorance. This ensures that no one
is advantaged or disadvantaged in the choice of principles by the
outcome of natural chance or the contingency of social circumstance
(Rawls, 1971 and 1999: 10).
In
other words, what kind of basic principles for constructing society
would I advocate if I did not know whether I would personally be an
African-American male, or born into extreme poverty, or a CEO of a
multi-national corporation, or of extraordinary intelligence, or
physically handicapped, or lesbian, or Buddhist, or Christian, or
non-religious, etc.? If I stood behind a veil of ignorance
with regard to my own personal position in the kind of society I would
create, it is from this basis, that we can begin to discover the basic
fair principles upon which to construct a just society according to
Rawls. Thus, Rawls' notion of justice as fairness emerges
from behind a "veil of ignorance," with the stated goal of creating,
"rules [that] specify a system of cooperation designed to advance the
good of those taking part in it" (Rawls, 1971 and 1999: 4).
Obviously there is much more to say about Rawls' ideas, but I believe
this is a good starting point for some Buddhist reflection on justice.
Many Engaged Buddhists take as one of their basic premises that the
construction of a just society and/or work towards the
transformation/reconstruction of our current situation is and always
has been an indelible part of the Buddhist project. (9)
To quote Sulak Sivaraksa again,
To suggest that
Buddhism has been unconcerned with the organization of
society is to ignore history. Traditionally Buddhism has seen
personal salvation and social justice as interlocking components
(Sivaraksa, 1992: 67).
And Robert
Thurman, among the first important American Engaged Buddhist
thinkers wrote,
The primary
Buddhist position on social action is one of total
activism, an unswerving commitment to complete self-transformation and
complete world-transformation... [I]t is squarely in the
center of all Buddhist traditions to bring basic principles to bear on
actual contemporary problems to develop ethical, even political,
guidelines for action (Thurman, 1985: 120).
But how does one
determine the contents of a just society? It
seems that Buddhists are going to want to construct a model for a
society that embodies, engenders, and nurtures its most important
ideals – ideals such as compassion, wisdom, mindfulness,
patience, tolerance, and to as great a degree as possible –
freedom from suffering, among others. These are the sorts of
things that Buddhists might claim "advance the good," to borrow
Rawlsian language. An ideal Buddhist society it
seems would be one that encourages spiritual development and moral
courage, broadly construed. That does not mean everybody
being Buddhist, but perhaps everybody being encouraged to achieve their
highest potential, with complete and utter freedom of religion or lack
thereof. This is the sort of description we find in Engaged
Buddhist writings on an ideal society for which to strive. (10)
We see a great deal of application of these sorts of ideas,
but not as much serious work on the theoretical ground of such ideas
and the actions that ensue. This has the potential to lead to
dangerous consequences where the door of activities happening in the
name of Buddhism is thrown wide open. Other than appeals to
textual authority, there has not been a solid philosophical grounding
to these ideas presented. Much can be extrapolated from words
attributed to the Buddha in canonical sources, either directly, or with
a little molding, but even the Buddha said that we should examine and
question all his words and not just accept them on faith because they
was spoken by the Buddha. All the more so when ideas are
being molded to suit a new context. Dignaaga and
Dharmakiirti, the two most important Indian Buddhist thinkers on logic
and epistemology argue that scripture alone, while providing a basis
for faith and inspiration for practitioners, is not necessarily a
source of valid knowledge (pramaa.na),
though they would argue that at times it could be considered equivalent
to a logical inference (anumaana),
which is a form of valid knowledge. My point here is that
according to tradition, its ideas must be grounded in or supported by
reasoning.
So the question again arises: how do Buddhists determine the contents
of a just society? If the principles Engaged Buddhists want
to use to construct a just society are valid, they must be able to
stand the test of rational analysis or be defensible by reasoning
according to the Buddha and to Dignaaga and Dharmakiirti.
This seems to be what Rawls is attempting to do in some
respects. He wants to construct a just society on rationally
grounded principles that are fair and in the best interest of
individuals and society broadly construed - that they "advance the good
of those taking part in it." (Rawls, 1971 and 1999, 4). His method for
discerning those principles - utilizing the "veil of ignorance" with
free and rational people at the helm - seems to me to be an attempt by
Rawls to construct a society on the basis of a defensible rational
standard. And this method might be one with appeal to
Buddhists in a modified form.
I think that we can construe some conceptual parallels in the ideas
behind Rawls' method for discovering the fair principles of a just
society and the Buddhist notion of equanimity,
though admittedly they emerge out of quite different
contexts. For Rawls, the method of getting at those
principles is via free and rational people considering the construction
of society from behind a veil of ignorance with regard to their
particular positions in that society. The fairness that
emerges is ideally one of maximum benefit to the group without either
sacrificing consideration of the particular situation of any individual
or privileging any individual over another. This "fairness,"
to use Rawls' term, is maintained by one not knowing their own
particular position in society during the construction period, thus
guaranteeing that the principles are constructed in a context free of
bias.
The Buddhist ideal of equanimity is found throughout the tradition's
literature. In the Pali canon there are extensive discussions
of equanimity as one of the four divine abodes (bramavihaaras)
where the meditator trains in viewing and treating friends, neutral
persons, and enemies the same. (11)
The aim behind this practice is to generate an attitude of
loving-kindness extended impartially to all living beings - to avoid
favoritism or disregard for anybody. A profound compassion
develops through this contemplation of the circumstances of loved ones,
neutral people, and enemies. By seeing how they are all
similar in their suffering and that the basis of their actions
– even those we see as harming us - is largely ignorance (avijjaa,
avidyaa) and afflictive
emotions (kle"sa),
the result is a recognition that everybody would certainly want to be
rid of such obscurations that cause so much suffering if they knew the
way to do it. Thus, though the details may vary, the
fundamental dilemma we face and the causes behind it are quite
similar. The impartiality that is the ground of this
principle of equanimity seems to have many parallels with the notion of
fairness developed in Rawls' theory of justice. It aims to
ethically engage without personal bias.
In the Mahayana literature, discussions of equanimity are equally
pervasive, particularly in relation to generating the Mahayana
motivation of bodhicitta,
the altruistic wish to achieve enlightenment in order to benefit
others. (12)
This Mahayana aspiration is founded in part upon equanimity, the
utterly impartial mind that refrains from any bias towards or
discrimination between persons with regard to compassion for their
situation and the wish to personally be of maximum benefit to them,
which in Buddhism of course means benefit on the path to
enlightenment. The eighth century Indian master
Kamala"siila, for example, discusses the cultivation of compassion in
light of cultivating equanimity in the fourth chapter of his [Middle]
Stages of Meditation
(Bhaavanaakrama, bsGom pa'i
rim bar pa):
First I will
explain the stages of meditation on compassion.
Begin with meditation on equanimity. Cultivate
impartiality for all sentient beings by clearing away attachment and
hatred. All sentient beings want happiness and do not want
suffering. Consider how they have all been my close friend
hundreds of times since beginningless samsara.
Since there is no basis for attachment to some and hatred for others,
develop equanimity for all sentient beings.
Meditation on equanimity begins with contemplation of a neutral person;
then also contemplate those who are friends and enemies. (13)
The
fairness which seeks to advance the good for all members of society
striven for via
Rawls' veil of ignorance and the unbiased concern for others that the
Buddhist notion of equanimity embodies as it may be applied in a
socio-political context both have similar goals. They both
aim towards achieving maximum benefit to individuals in the world while
simultaneously keeping the big picture of either society as a whole or
the well-being of all sentient beings under consideration.
With that said, there are differences. Rawls' primary aim in
advocating for justice as fairness is not soteriological at its basis,
whereas the Buddhist notion of equanimity does encompass that salvific
goal at its foundation. Rawls seems to want to get at the
secular principles upon which one can construct a just
society. The principles themselves may or may not include
soteriological goals, though presumably they would be supportive of
them if there were members of society with such motivations.
The Buddhist notion of equanimity seems to start with the
soteriological goal and secondarily may find secular applications that
are also virtuous. It seems to me that the two start with
different presumptions. Rawls wants to begin on secular
ground but not neglect the spiritual aspirations of certain members of
society. A Buddhist application of equanimity to issues of
the creation of a just society would seem to begin on religious
grounds, but in social-political application would not want to neglect
the more secular needs and aspirations of both non-religious and
religious members of society or the particular aspirations of those of
other faiths.
Does Rawls' method here resonate with an adoption of the Buddhist idea
of equanimity as a principal ground for a Buddhist construction of a
just society? Can a Buddhist fruitfully adapt Rawls' method
so that it would be inclusive of the kinds of ideas and principles that
would be of central importance to Buddhists? Can Rawls' "veil
of ignorance" be "Buddha-ized"? If so, in what ways would
Buddhists want to use Rawls as a starting point? What sort of
changes would we want to make? Is there something contra-Buddhist if
the guiding principle for Rawls' method is self-interest, even if the
end goal is to use self interest to facilitate the interest of
all? If self-interest is utilized merely as a tool for coming
to conclusions that serve the wellbeing of others, is there still a
fundamental flaw? When combined with the veil of ignorance,
isn't it just a skillful way of approaching the construction of
societal rules with equanimity for the baring they may have on all
members of society? Might this be a particularly skillful way
for unenlightened people to go about this project?
If a Buddhist were to want to come up with an adaptation that would
appeal broadly to both Buddhists and non-Buddhists, then we need to
think things through very carefully. For example, I think
Buddhists would want to ground the Rawls' "free and rational" persons
who act behind a veil of ignorance in some virtuous predispositions or
considerations. Rawls seems to have confidence in an inherent
tendency among such persons to engage in such a way simply by virtue of
their intelligence, rationality, and freedom. I think a
Buddhist may want to be more explicit. Rawls' model tends to
rely on the enlightened self-interest of those behind the
veil. I would imagine that a Buddhist theory of justice would
want to ensure a profound and pervasive compassionate attitude as the
ground upon which a just society would be built. Enlightened
self-interest would be nice, but a Buddhist might have reason to doubt
that actual enlightened application, even given the parameters Rawls
has set up, would follow suit. Thus, perhaps in addition to
being free and rational, that those behind the veil might supplement or
replace the enlightened self-interest implicit in Rawls' account with
explicit imperative to consider the role compassion for the suffering
of individuals might play at every turn in constructing or adjudicating
just principles. Rawls may consider this to be implicit, but
making it explicit could be important for Buddhists. The
parameters of such an imperative would need to be thoroughly
considered. If there is one virtue that guides Buddhist
ethics more than any other, it would be compassion for the suffering of
living beings. Any Buddhist vision for a just society must
both be guided by compassion in its formation and nurture its further
cultivation in its application. Thus, perhaps one
modification of Rawls' theory for Buddhists might be that those free
and rational beings be explicitly required to consider compassionately
the potential suffering in various scenarios in working from behind the
veil of ignorance so as to explicitly consider ways that social
structures do or do not contribute to such suffering. This is
just one consideration among many. My purpose here is not to
solve the problem, but to raise some questions with this example.
2) Retributive vs.
Restorative Justice: A Buddhist Perspective
I would like to take a brief look at a second example and second
dimension to philosophical discourse on justice, that of criminal
justice. How might or ought a Buddhist or Buddhist society
deal with crime? What might Buddhism stand to gain from participation
in a larger global discourse on responses to criminal
activity? And what might Buddhism have to offer to a broader
global discourse on the topic? Generally speaking, the
approach of most nations today toward crime is to attempt to control
it, largely through dispensing punitive measures against those who
violate the state's laws. This is seen as fulfilling a dual
purpose: deterring future crime and enacting justice on the perpetrator
of the crime already committed. In the case of prison-time as
punishment, it may additionally be considered beneficial in that it
takes a potentially dangerous individual out of circulation from
society, thus making the society safer. This mode of justice
in its varying forms is what is known in philosophical discourse as
retributive justice; it enacts retribution on criminals for crimes
committed. Retribution, whether that be the death penalty for
murder, or extensive jail time for stealing or other crimes, is viewed
as enacting justice on the criminal. They get what
they deserve. Without extreme forms of punishment, its
effectiveness with regard to deterrence is highly
questionable. I believe that the ethics of this sort of
punitive or retributive approach to justice would, in most cases, be
equally questionable from a Buddhist perspective. I will
discuss this shortly below.
An emerging response to retributivist forms of justice, both in
philosophical circles and actual implementation in select cases, is a
growing movement with nuanced variations that is referred to with the
over-arching label of "restorative justice". I think that a
Buddhist approach might resonate well with many of the ideas and
approaches circulating in restorative justice discourse and that
Buddhists might have important contributions to make to this discourse
as well. Restorative justice aims to restore well-being and
heal the wounds inflicted by the crime through a variety of
means. Rather than view offenders and victims as adversaries
in criminal proceedings, open communication that sees them as partners
in a healing process tends to be a much more effective perspective
according to advocates for restorative justice. One of the
prime examples often cited for this process was the use of the Truth
and Reconciliation Commission in South Africa in the wake of Apartheid
which gave voice and ultimately greater comfort and healing to both
victims and perpetrators. Dullah Omar, former South African
Minister of Justice explained that the commission was a "necessary
exercise to enable South Africans to come to terms with their past on a
morally accepted basis and to advance the cause of reconciliation." (14)
There are a variety of shapes and forms restorative justice might take
in varied circumstances. No advocate of restorative justice
views it as a one-size-fits-all solution. While prison may be
a dimension to it in some cases for example, advocates of restorative
justice would want to see a wholesale prison reform in most
circumstances. Prison would become a place that not only
protects society from dangerous individuals, but would also be a place
where the incarcerated are given the opportunity and encouraged to use
the time for a healing and transformative process. It would
be seen as an opportunity rather than punishment.
Working out the details of the shapes this might take would be a major
project, but the end result would be a facility that fosters positive
rather than the sort of negative transformation of inmates, as is so
often the case in prisons around the world today.
Before proceeding further in discussion of restorative justice from a
Buddhist perspective, I would like to briefly summarize the plot of one
particular sutta,
the Angulimaala Sutta,
from which I believe much can be gleaned regarding Buddhist
perspectives on some of these issues. The sutta
recounts the story of the encounter between the Buddha and Angulimaala,
a serial killer who had been terrorizing the local countryside in the
state of Kosala by going on a murderous rampage, earning his name
(Angulimaala, Finger-Garland) by wearing a garland around his neck made
of the fingers of his victims.
One morning, as the Buddha went on his alms round, despite repeated
warnings about Angulimaala's presence in the area, he encountered him
on the road. The Buddha kept walking as Angulimaala ran after
him, intending to kill him. The Buddha continued to walk
calmly as he was chased, but due to his supernatural powers, no matter
how fast Angulimaala chased after him, he could not catch up.
Finally, Angulimaala shouted at the Buddha to, "Stop," to which the
Buddha replied, "I have stopped, Angulimaala, you stop too."
A confused Angulimaala goes on to question the Buddha's statement to
which he replies, "Angulimaala, I have stopped forever, I abstain from
violence toward living beings; but you have no restraint towards things
that live: That is why I have stopped and you have not." (Nanamoli,
Bhikkhu and Bhikkhu Bodhi [Trans.], 1995: 771). Upon hearing this,
Angulimaala was immediately struck by the Buddha's wisdom and became
his disciple, requesting and receiving ordination as a bhikkhu
at once.
Upon hearing that Angulimaala was with the Buddha in Jeta's Grove, King
Pasenadi led a cavalry of 500 men to go arrest Angulimaala.
When the king arrived, he had an audience with the Buddha and
respectfully asked about the whereabouts of Angulimaala. The
Buddha asked the king what he would do if Angulimaala were transformed
and now leading the life of a virtuous bhikkhu
of good character. The king replied that he would honor and
pay homage to him in an assortment of ways. The Buddha then
pointed out the transformed Angulimaala, former serial killer, to the
king who was amazed. The king, indeed, paid homage to
Angulimaala. It was not long after that, that upon further
teachings from the Buddha that Angulimaala achieved arhatship.
The following morning, when on his alms-collecting rounds, Angulimaala
was attacked by townspeople who, knowing of his previous deeds as the
killer of their kinsmen, threw various objects at him, drawing blood
and breaking his begging bowl. When he discussed this with
the Buddha, the Buddha told him to bear it, for he was experiencing the
results of previous karmic deeds. The sutta
closes with a verse recitation by Angulimaala rejoicing in his
transformation due to following the teachings of the Buddha.
Given my very cursory remarks about restorative justice, some basics of
Buddhist philosophy, and in light of some insights we might glean from
the Angulimaala Sutta,
I would like to make some very preliminary comments about Buddhism and
restorative justice. First, until we are all enlightened, there will
probably be a need for laws. How ought a Buddhist or Buddhist
society deal with crime, with the violation of laws? Most
nations, modern and ancient have utilized some form of retributive
justice – to exact some form of retribution on the violator
of the laws. Some have argued that it is just in
and of itself for people to be punished for violation of laws agreed
upon by the community. Others have argued it serves as a
deterrent. I don't think either of these are particularly
"Buddhist" ways of thinking or compelling arguments from a Buddhist
perspective. Punitive justice entails exacting harm on
criminals. Causing unnecessary harm for anybody, even a
criminal, seems to me to run utterly contrary to the most fundamental
ideas of Buddhism. After all, did the Buddha not leave the
palace in search for a cure for suffering? Are Buddhists not
charged with having compassion for all living beings, even the worst
among them? It is common at the ceremony for taking refuge in
the Three Jewels that new Buddhists are urged to do their best to avoid
causing harm or suffering to all living beings. It is hard to
imagine the Buddha advocating the overt execution of suffering on
individuals out of revenge or spite, or in the name of some notion of
justice. Even the utilitarian argument that claims that
punishment as deterrence to greater and more future crimes and
suffering seems to have logical holes if one were to presume some
Buddhist philosophical basics, like the notion of
dependent-arising. Nothing arises without dependence on
related causes and conditions. Effects have a direct relation
to causes. Just as it is counter-intuitive on a large scale
to bring lasting peace through war and violent means, so too is it
counter-intuitive, from a Buddhist perspective, to think that threats
of extreme punishment will undermine the root causes of law-breaking in
society. There may be relative or short-term success, but
since the root causes will not be destroyed, it would be deluded to
think that deterrence would actually be successful at eradicating crime
on a large scale. And given the millennia-long experiment
with this method and the lack of decline in crime, this Buddhist
analysis seems to be proven correct. Rather than retributive or
punitive justice, I think the Buddha would probably advocate a form of
this new model of justice known as restorative justice in this respect
and I think this can, in part, be gleaned from the Angulimaala
Sutta.
It does not seem that the Buddha, or the tradition as it represents
itself in the Angulimaala
Sutta, advocates a retributive
or punitive form of justice. King Pasenadi does not see any
reason to exact punishment upon Angulimaala for revenge, retribution,
to create a deterrent to future crime, or for any other
reason. This is due to Angulimaala's transformation into a
virtuous and sincere bhikkhu
who was fully reformed and posed no threat to society. Given
Angulimaala's present virtuous state as a contributing member of
society, to exact punishment would not only be unnecessary; but also be
an immoral cause of suffering. Buddhism is first and foremost
concerned with alleviating suffering and eradicating the roots of
suffering. I think that a Buddhist take on the issue of
societal responses to crime would be to advocate for some restorative
model that would aim to both create a resolution and peace between the
criminal and victim, and would aim to heal the root cause of the crime
and the damage inflicted in its wake. In a sense, Buddhism
would ideally like to see criminals transformed, as Angulimaala was.
This further dimension of reformation is perhaps an area where
Buddhists could both learn from those with more experience in
restorative models and offer unique contributions as well. (15)
Karma is, of course, a dimension to any Buddhist theorizing on justice
that needs to be considered. Doesn't karma, although meant to
be a descriptive doctrine aimed at explaining the effect of intentions
and actions of body, speech, and mind on our future experiences and
states of consciousness, also describe the negative consequences of
unethical behavior from a Buddhist perspective? One might ask
if there is any need for state imposed punishment at all if one holds
the idea of karma. Isn't karma the
Buddhist theory of justice? Teachings on karma have been used
successfully and probably ought to continue to be used as a motivator
and teaching device on ethical behavior. Its philosophical
function is to explain the causal relationship between our intentional
actions and our consciousness and its future experiences rather than
specifically to denote a form of reward and punishment. Technically it
is not at all about reward and punishment whether under the control of
a third party god , or not. It is simply an explanation of
one dimension of causality from a Buddhist perspective. If
karma were taken to be the beginning and end of discussion of a
Buddhist theory of justice, that karma takes care of everything with
regard to justice, then the Buddhist position would be a quite fatalist
or determinist doctrine. It would undermine attempts to
create a society that is better for the welfare of all (as is the
engaged Buddhists' overarching project) because karma would be the sole
factor determining outcomes. Perhaps more importantly, it
might even suggest that efforts towards one's own transformation and
efforts to become enlightened would be pointless. If future
experience is entirely determined by past karma, it would undermine any
real agency, which in turn would undermine karma doctrine
itself. I think this reflects a partial understanding of
karma that misses the key component of agency that really is at the
heart of karma theory in the first place.
Though there are teachings on the purification of karma (for example,
Tsongkhapa's Byang chub lam
rim chen mo [The
Great Treatise on the Stage of the Path to Enlightenment]),
generally speaking it is taught in texts like Vasubandhu's Abhidharmako"sa
(Treasury of Knowledge,
Chapter 4) that individuals will infallibly experience the fruits of
their karmic acts at some future point. We see this
illustrated in the Angulimaala
Sutta when, even after
achieving arhatship, Angulimaala is stoned by the townspeople and the
Buddha tells him to bear it, for it is the fruit of his previous
negative karma. But such a display of "justice" made manifest
is not, from the Buddhist perspective, reason not to engage in what
contemporary writers might refer to as restorative models of
justice. Angulimaala still strove for spiritual restoration,
despite the inevitability of his karma. His restraint at this
point was essentially an act of restorative work in that he was, in
affect, hearing the grievances of those who suffered in the wake of his
crime, an acknowledgement of his wrong doing, an expression of regret,
and an apology. A Buddhist might still aim to establish a
system to help to reform and heal the criminal as well as the victims
out of compassion for the suffering of all. Though it may not
have been called for in Angulimaala's case due to his rather remarkably
rapid transformation, that is not to say that prison, appropriately
conceived and implemented, might not be necessary for
yet-to-be-reformed criminals. (16)
Fundamental to a Buddhist approach to crime must be a recognition of an
individual's capacity to transform (as Angulimaala did). I
would think that the (Buddhist influenced [17]
) state would want to want to encourage some sort of transformation
through the implementation of various programs, etc.
"Punishment" ought to include measures that engender such
transformation. This Buddhist-type thinking is all in line
with restorative justice thinking as well.
It seems to me that to seek punitive retribution for a crime committed
is an intention and act grounded in anger, one of the three poisons
(greed, anger, and ignorance) that keep individuals rooted in the
sufferings of samsara
according to Buddhism. This is not to say that Buddhists
might not advocate for a form of imprisonment for some crimes for the
dual purpose of the safety of society and a period of
reformation/restoration/transformation of the prisoner. But
contrary to most prison systems today that are so horrendous that
criminals usually come out worse than when they went in, I believe a
Buddhist model would emphasize healing the root causes behind the
crime, some of which are related to material conditions in the world,
but more importantly for this aspect of our discussion, are
related to the mental and psychological states (or one might say,
'karmic predispositions') of the criminal. David Loy pointed
out quite insightfully that,
The Buddhist
approach to punishment, like any other approach, cannot
really be separated from its understanding of human psychology and its
vision of human possibility (Loy, 2001: 81).
For the
Buddhist, there is both a faith in the possibility of
transformation and a responsibility to work towards it. I
think this sentiment can be applied on secular grounds as
well. In most countries this would probably take the shape of
some sort of serious prison reform where the focus would be on the
psychological rejuvenation of the criminal and the creation of a
process for healing any antipathy between the criminal and the
victim. The particular details of what such a system would
look like in application are beyond the scope of this article.
When I speak about potential Buddhist approaches to criminal justice, I
am speaking to a large degree in the abstract. I am not
speaking about the ways specific Buddhist countries or countries where
the vast majority of the populations are Buddhist ought to implement
specifics, but more theoretically about the kind of ideals a Buddhist,
group of Buddhists, or Buddhist society might strive to
achieve. Restorative justice encompasses a variety of ideas,
perspectives, and methods (see Johnstone, 2003). As a general
designator for an over-arching approach to criminal justice, I think
quite a bit resonates with they type of approach Buddhists might want
to take. The details of the shape it might one day take are
the subject of lengthy and serious future considerations. I
imagine that even within Buddhism or a Buddhist approach to these
questions, the answers might take a variety of forms and
context-specific adaptations depending on cultures, individuals,
historical contexts, etc.
Concluding Remarks
Obviously these reflections here are merely preliminary. My
aim is not so much to draw conclusions, as to open
discussion. The primary point that I would like to make is
not that Buddhists ought to adopt a modification of Rawls' theory or
that we identify ourselves as advocates of restorative justice (though
I do think there are good arguments for the latter). I do not
think that Buddhists necessarily need to fit their ideas into the
structure – however modified – of philosophical
positions alien to the tradition. Rather, my primary point, with the
illustrations above, is that if we are going to engage in justice
discourse at all, we ought to do it well. For when we use the
term "justice," to some degree we already are attempting to fit into a
philosophical category not entirely indigenous to Buddhism. Buddhists
eager to take part in international dialog on social change,
ought to begin a serious consideration of these sorts of philosophical
topics, and we ought to equip ourselves to more fully engage in a
global discourse on these philosophical and practical
issues. It works to the benefit of the Buddhist
tradition, moving forward as a global religion in the twenty-first
century. When we isolate ourselves from a larger
conversation, we deprive both ourselves and our potential conversation
partners. (18)
When Buddhists use technical terms from traditions of thought
other than their own without clarity of its place in a larger
philosophical dialog, it looks as if we are making ungrounded or
unsubstantiated claims. Traditionally Buddhist philosophers
did not isolate themselves from larger pan-Indian philosophical
conversations, nor did they simply make unsubstantiated claims or
assertions without considered reasoning behind them. For
thinkers like Dignaaga and Dharmakiirti, ascent to scriptural authority
is simply not sufficient. As we begin a new century and a new
global Buddhism, it is imperative that Buddhists are able to articulate
their views and converse with others on the world stage. If
we are to have any meaningful impact in creating the sort of world we,
as Engaged Buddhists, envision, then it must begin with a thorough and
rigorous foundation.
Notes
1.
See for example
Buddhadhasa Bhikkhu (1989) Sivaraksa (1992, 1999), Winer (2003) on Maha
Ghosananda, Sangharakshita (1986) and Blumenthal (1995) on Ambedkar,
and His Holiness the Dalai Lama (2008). Dunne (1999) engages
the topic with some technical terminology that is familiar to
philosophers and religious studies scholars, though he does not engage
in comparative work. King (2005) articulates Buddhist ideas
about justice in some detail. See note 4, below.
2.
The philosophical foundations for Buddhist ideas on non-violence,
responsibilities, and a host of other ethical issues have been treated
extensively. See for example Sivaraksa (1992),
Cabezón (1996), Nhat Hanh (1987, 1999), Harvey (2000),
Samdong Rinpoche (2006), etc.
3.
King (2005) begins the important work of articulating an Engaged
Buddhist social ethics and ethical theory. In the process,
she insightfully begins to address and analyze the questions of justice
and social justice in the Engaged Buddhist context. She
interviewed some leading thinkers from the movement, such as Sulak
Sivaraksa and Samdong Rinpoche, on justice, and analyzes some important
comments made by Geshe Sopa and Ven. Dhammananda in Israel concerning
justice for Jews vis
á vis the Holocaust
and Israelis and Palestinians concerning their current
conflict. All of this is an important contribution to a
critical discussion, but it is largely carried out without reference to
long history of philosophical discourse on justice from the Western
canon from which the idea derives.
4.
"Goods" is construed broadly here. It is not limited to
material resources, but includes rights such as privacy, the right to
vote, etc., legal constructs, access to "goods" such as education,
medical care, etc.
5.
Christopher Queen (1996), drawing on theoretical insights
developed by Clifford Geertz (1968), discusses the process by which
Engaged Buddhists have engaged in a sort of "scripturalism" in
returning to traditional and canonical texts and sources of religious
authority, yet with innovative theological interpretations that render
them newly relevant for contemporary circumstances, particularly in
times of perceived crisis.
6.
Sulak Sivaraksa (1992: 103). Walpola Rahula (1985: 104)
echoes this sentiment when he writes: "The Buddha did not take life out
of the context of its social and economic background; he looked at it
as a whole, in all its social, economic, and political
aspects. His teaching on ethical, spiritual and philosophical
problems are fairly well known. But little is known,
particularly in the West, about his teaching on social, economic, and
political matters. Yet there are numerous discourses dealing
with these scattered throughout the ancient Buddhist texts."
Others such as Samdong Rinpoche, Thich Nhat Hanh, His Holiness the
Dalai Lama, and Buddhadasa exemplify this sentiment as they repeatedly
turn to scriptural sources as evidence to support their Buddhist ideas
about justice.
7.
Gregory Schopen (1997) has persuasively argued for the use of
non-textual sources in Buddhist Studies, particularly in attempting to
historically decipher the contours of Buddhism on the ground in India
in its earliest periods. There may well be good reason to
make use of non-textual sources to help make some philosophical
arguments regarding justice. However, my hunch is that sutta/sutra
sources and philosophical treatises by early masters will probably
prove to be more fruitful resources for this project since the explicit
purpose is not a historical deciphering of ancient Buddhism on the
ground.
8.
Any discussion of the just distribution of goods will also
entail implications for issues in criminal justice as well.
This will be discussed further in the following section.
9.
Some scholars and thinkers within the traditions have argued the
opposite, that the contemporary Engaged Buddhist movements represent a
dramatic shift in Buddhist thinking. See for example Queen (1996: 1-44,
2000: 1-29), the discussion of Joanna Macy in Kaza (2000 160), and
Litsch (2000: 423). Perhaps the clearest example of
this side of the question of whether Buddhism has always had an engaged
component or whether it is a new innovation (both recent and highly
influenced by Buddhism's recent encounters with the West) is summarized
by Christopher Queen (2000: 1-2) when he writes in his, "Introduction:
A New Buddhism," that, "I shall argue that the general pattern of
belief and practice that has come to be called 'engaged Buddhism' is
unprecedented, and thus tantamount to a new chapter in the history of
the tradition. As a style of ethical practice, engaged
Buddhism may be seen as a new paradigm of Buddhist
liberation. Invoking traditional terminology, Buddhists might
call it a "new vehicle" – or Navayana…
- or a fourth yana
in the evolution of the dharma." Thomas Yarnall (2003)
summarizes and critically analyzes both sides of this debate, while
infusing a degree of theoretical sophistication that has been lacking
in much engaged Buddhist scholarship. Among the many insights found in
his analysis, Yarnall, while recognizing important contributions made
in Queen's argument that Engaged Buddhism fundamentally constitutes a
new vehicle (yana)
of Buddhim, he criticizes the modernist and orientalist tendencies he
finds in the perspective of Queen and like-minded thinkers.
10.
See for example Hanh (1987), Sivaraksa (1992), Gyatso (1999a and 2008),
etc.
11.
The four brahmavihaaras
are loving-kindness,
compassion, sympathetic joy, and equanimity. See Buddhaghosa.
Visuddhimagga (The
Path of Purification).
Pp. 288-319.
12.
See for example, Tsongkhapa. Byang
chub lam rim chen mo (The
Great Treatise on the Stages of the Path to Enlightenment).
13.
Kamala"siila. Bhaavanaakrama
II.4. de
la snying rje bsgom pa'i rim pa de dang po 'jug pa nas brtsams te brjod
par bya'o/ thog mar re zhig btang snyoms bsgoms pas sems can thams cad
la rjes su chags pa dang/ khong khro ba bsal te snyoms pa'i sems nyid
bsgrub par bya'o/ sems can thams cad bde ba ni 'dod sdug bsngal ba ni
mi 'dod la/ thog ma med pa can gyi 'khor ban a sems can gang lan brgyar
dag gi gnyen du ma gyur pa de gang yang med do snyam du yongs su bsam
zhing// 'di la byed brag ci zhig yod na la la la ni rjes su chags/ la
la la ni khong khro bar gyur bas/ de lta bas na bdag gis sems can thams
cad la sems snyoms pa nyid du bya'o snyam du de ltar yid la bya zhing
bar ma'i phyogs nas brtsams te/ mdza' bshes dang dgra la yang sems
snyoms pa nyid du bsgom mo/
15.
One such unique contribution that immediately comes to mind
is the success of the Vipassana retreats held in prisons by S.N.
Goenke. For an excellent documentary on this, see Menahemi
and Ariel (1997).
16.
The specifics of what shape such a reform-oriented prison would take
is, of course, an enormous topic that is outside of the scope of this
paper.
17.
Ideally it would not require an explicit "Buddhist" influence
on the state. By participating in a global conversation,
Buddhists can have an impact without an exceedingly imposing use of
Buddhist language. The Dalai Lama is quite skillful at this
in his recent book, Ethics
for the New Millenium, which
discusses his views on ethics in purely secular language.
18.
This isolationism has been a longstanding problem of Buddhist Studies
within the larger disciplines of Religious Studies and
Philosophy. Those working in Buddhist epistemology and logic
have made great strides in this regard in the past ten to fifteen
years.
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