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by Dr. H. S. S. Nissanka (An evaluation of a treatise by the late Professor K. N. Jayathilleke)

In 1967, at the Hague Academy of International Law, the late Prof. K. N. Jayathilleke, delivered five lectures entitled "The Principles of International Law in Buddhist Doctrine". What the writer proposes to do here is not to subject this treatise by Prof. Jayathilleke to a critical analysis but to find out what he precisely meant by "a Buddhist Theory of International Law and International Politics". These Hague lectures were published in "Recueil des Course" Vol. II, 1967. The references to pages in the text of this evaluation are according to the pages of this publication.

"In the strict sense of the word, there is no Buddhist law; there is only an influence exercised by Buddhist ethics or changes that have taken place in customs. No Buddhist authority... has ever created or promulgated any law." Professor Jayathilleke began his first lecture with a reference to this quotation from Hastings, Encyclopedia of Religion and Ethics, S. V. Law (Buddhist) and stated, "I would maintain on the contrary that the monastic code consisted of laws in so far as it consisted of enforceable rules of conduct, precisely stated and codified, there being a set procedures laid down in the constitution for trial and conviction in case of infringement."

Prof. K. N. Jayathilleke

Prof. Jayathilleke built his argument in his usual scholarly fashion and brought to light so many primary and secondary source materials relevant to the task in hand. To understand his treatise, at this point it is necessary for us to consider precisely what we do mean by the term "international law".

"International Law" is a name given to a body of rules and traditions that has grown since the 16th century in the Western Europe. An authority on International Law, L. Oppenheim makes the following observation:

"International Law, in the meaning of the term as used in modern times, did not exist during the antiquity or the first part of the Middle Ages. It is in its origin essentially a product of Christian Civilisation, and began gradually to grow from the second half of the Middle Ages."

The above quotation supports the view that modern International Law grew in Christian civilisation, nurtured by Christian ethics. The term "International Law" was first coined by Jeremy Bentham in 1780. According to the generally accepted definitions of International Law by the jurists of the West, it is a body of rules which determines the conducts of civilised states in their mutual dealings. At a certain period of history, it was a common belief in the West that the states in the East were uncivilised. Therefore some Westerners seemed to have believed that there was nothing in the East which could have been called International Law.

There was a number of sovereign states in Asia which had diplomatic relations with each other and their external affairs were guided by certain rules based on certain Buddhist principles suited for all times and climes. On evidence such as those of the Asoka edicts, Prof. Jayathilleke based his argument that Asiatic states had diplomatic relations not only with sovereign states in Asia, but also with those in Eastern Europe, the Middle East, and North Africa. The Emperor Asoka had diplomatic relations with five Greek kings, and with the rulers of Chola, Sri Lanka, and Pandyan kingdoms. (p. 556). Prof. Jayathilleke refers to an ambassador from Lanka to Rome of whom Pliny states that he was in Rome during the reign of the Emperor Claudius.

Referring to the Kautiliyan and Machiavellian political philosophies, Prof. Jayathilleke makes the following remark:

"It is evident in this work that all respect for moral values was subservient to the ends of power and expediency. The quest for power as an end in itself and the employment of any means whatsoever to gain these ends were against the principles of Buddhist ethics. At the same time the political philosophy of Buddhism develops partly out of a criticism of the Machiavellian political realism of the doctrine of the Arthasastras." (p. 471).

The Buddhist texts have accepted much of the political wisdom of the Arthasastras including the need for efficient administration and vigilance on the part of the king or the state in regard to both home and foreign policies. As to the question of power, there is an essential difference according to Arthasastra, the moral values are subservient to power and according to the Buddhist texts, power is ultimately subservient to the rule of righteousness. (p. 472). to substantiate this point, Prof. Jayathilleke quotes a line from Mahavastu (A Mahayana Buddhist text):

"Bala cakram hi nisraya

Dharma Cakram pravartate"

("The wheel of power turns In dependence on the Wheel of Justice.")

One of the greatest rulers of the world, Asoka, at the beginning of his reign followed the Arthasastra and this led him to carry on an aggressive foreign policy (dig-vijaya). He change this policy to one of dharma-vijaya (conquest by righteousness). Prof. Jayathilleke has given a number of instances where rulers in the Buddhist texts were admonished to give up their aggressive policies and to cultivate friendship and co-operation in the sphere of foreign affairs. (p. 473).

It is a generally accepted point that any state makes use of international law and international politics to achieve ends beneficial to itself. Although Prof. Jayathilleke did not, in detail, differentiate between the home policy and a foreign policy of a state, he did not fail to show that both home and foreign policies of a state should be based on the Dharma. We cannot expect a state to follow foreign policy based on Dharma while following a home policy devoid of it.

In international politics a state is the most important unit. Therefore, according to the Buddhist political philosophy, a state should possess the following features:

i. A government elected by the people - the ruler should be the servant of the people (Gana dasa) (p.512). The people have a right to overthrow a corrupt regime by non-violent means. (p. 528).

ii. A legal system which is capable of meting out justice and equity (p. 488) which upholds the equality of man (Pp. 515-517). (Prof. Jayathilleke has referred to the seven arguments advanced by the Buddha to establish the truth of the equality of man).

iii. A constitution based on righteousness where fundamental human rights are protected (p. 558).

iv. A plan (programme) to implement the following (a) An insurance system which will protect persons and property (b) Elimination of crimes (c) Just distribution of the wealth of the country and full employment (d) A mechanism to formulate the right policies. (Pp. 540-541).

v. A foreign policy based on the following principles: (a) Promotion of friendship. (b) Non-aggression and co-operation. (c) Promotion of the welfare of the entire human community. (P. 557).

vi. Administrators who possess the following qualities: (a) Selflessness (parichhaga) (b) Rectitude (Ajjava) (c) Mercy (Akkhoda) (d) Political wisdom (Pragnabala) (p.530).

A Buddhist theory of international politics will be meaningful only if there are states implementing the ideas given above.

There are three ways of implementing the Buddhist theory of international politics. They are as follows:

1. Existence of states which have the six features mentioned earlier.

2. Emergence of a world ruler (Chakkvatthi raja) who, having established a just state and following a foreign policy of Dhamma-vijaya brings the whole world under his rule and rules according to the Ten Rules of Righteousness (Dasaraja-Dhamma) (p.538).

3. The establishment of a kingless world government (Arajakacakka) which functions according to a constitution based on the Dhamma. (p.539).

The writer feels that it would have been very useful if Prof. Jayathilleke compared the concept of "Arajakacakka" with the system of the United Nations Organization. The UNO is in a sense, a world government without a raja or a ruler. Like the third form of universal state (Chakkavatthi rajaya) the UNO is based on its charter (constitution). It is this document which is the life force of the UN. The charter of the UN has two primary objectives (see the Preamble to the UN Charter).

1. Maintenance of world peace.

2. Welfare of the entire human community.

By comparing and contrasting the concept of the Chakkavatthi rajaya and the UN Charter, one could see that the concept of the UN Charter, is very close to the Buddhist theory of international politics. In short, it is a systematic view of a method with which the material and spiritual progress of mankind can be achieved.

The Buddhist state system - the Chakkavatthi rajaya - aims at the prosperity and happiness of the entire world. For this, well-promulgated home and foreign policies are essential. The home and foreign policies of a state should realize, according to the Buddha, the following four objectives. (p.494).

1. Attha Sukha (Economic security)

2. Bhoga Sukha (Abundance of food and other essentials)

3. Anana Sukha (Freedom from debt)

4. Anavajja Sukha (Blameless moral life)

For the Buddhist theory of international politics, the importance of economic stability is stressed by the Buddha. The Buddha, in a number of discourses, revealed the importance of just distribution of wealth as a necessary step for the welfare and the happiness of humanity. To support this. Prof. Jayathilleke gives the following quotation from the Digha Nikaya. (p.536).

"..... Thus from goods not accruing to those devoid of goods, poverty becomes rampant. From poverty being rampant stealing becomes rampant.... violence... killing.... lying...... sexual misconduct..... false view of life..... lack of regard for authority..... be comes rampant".

Under a system of world government or in a set up of states following the Buddhist principles, international law has a significant role to play. The modern international law has proved itself unequal to the task of solving the problems of the world. Further he observes that the newly emerging nations have "found it difficult to agree wholly with the international law of the Western nations as it neither stands for nor rejects the need for international law as a binding force for the good and the happiness of all nations".

(p.561). Prof. Jayathilleke agrees with J.H.G. Syatauw who in 1961, remarks at the Hague Academy that the nations have begun to claim the right to select rules to suit their interest only. International law should not be placed on a selfish and petty nationalist basis. It should be improved and geared to the realization of the welfare of mankind as a whole.

In formulation and implementation of international law, the jurists should turn to the Buddhist texts of the Discipline (Vinaya Pitaka) for inspiration and guidance. The Buddhist system of jurisprudence is international in character and is based on fundamental human rights and the theory of democracy. (p.534).

Professor Jayathilleke does not specifically discuss the two accepted theories of the basis of International law. But in his references to 'Vinaya Pitaka' it has been made clear that the Buddha, in promulgating the rules for the community of the international Sangha (Buddhist priesthood) has given due consideration to these two theories, i.e. Theory of "Fundamental Rights" and the "Theory of Consent".

The laws promulgated by the Buddha were utilitarian and pragmatic. He has listed the following ten purposes for enacting laws: (1) For the well-being of the community (2) For the convenience of the community (3) To curb miscreants (4) For the ease of the well-behaved (5) To restrain misbehaviour in the present (6) To check misbehaviour in the future (7) That those who have no faith (in the Dhamma) may acquire faith (8) That those who have faith may further strengthen their faith (9) That the Good Doctrine (Sad-dhamma) may last long (10) For the promotion of discipline. (p.451).

Unless one gives one's express (not tacit) consent, one is not allowed to be a member of the community of the Sangha. When once he enters the community, he is bound by the rules of the Disciplines 'Vinaya'. In the case of infringement, the wrong-doer is dealt with by a democratically-established court of elders where every effort will be made to convince the wrong-doer (if he is proved by evidence to be the culprit) that he has committed an act against the Vinaya rules. The Buddha has recommended psychologically very effective forms of punishment. The punishment of Brahma-danda (severing all communications) and banishment from the community have been recommended for grave violations of Vinaya rules.

According to the Statute of the International Court of Justice, the principles of law recognised by the civilized nations can be applied to decide international cases (Article 38 of the Statute). It could have been fruitful if Prof. Jayathilleke's attention had been drawn to the principles of law accepted by the international jurists and publicists. It is true that there are no principles of law accepted by all the jurists and publicists without dissent. However several of Western international jurists have accepted the following principles: (1) Principle of Justice (2) Principle of equity (3) Principle of convenience (4) Principle of reason and (5) Principle of rights.

According to the Communist ideological thinking, Russian International law experts have accepted the following principles: (1) principle of sovereignty (2) non-intervention (3) territorial inviolability (4) equality of states (5) non-aggression (6) self determination (7) peaceful co-existence.

The International Law Commission appointed by the General Assembly of the United Nations has accepted the following (1) Independence (2) equality in law (3) jurisdiction over their territories (4) self-defence (5) peaceful settlement of disputes (6) human rights.

At this point, the writer wishes to observe that fundamentally there is no contradiction between the principles listed above and the political philosophy of Buddhism. It is accepted that there was no codified law of nations that was in use among the Buddhist states of Asia. However, the fact remains that those rulers of the Buddhist states maintained international relations, and that such relations were governed by a set of principles of law. The rulers of Buddhist states governed their external affairs by principles such as justice, equity, and rights. (p.457, p-558).

The principle of convenience has been given due consideration in promulgating and implementing the Vinaya rules by the Buddha. (p.451). In order to make international law into a safeguard for justice, there should be a set of principles accepted without dissent by every state in the world.

Prof. Jayathilleke, in his treatise has referred to the principles of justice, equity, human rights and equality as accepted by the Buddhist political philosophy. The writer feels that the principle of common good (Bahujana Sukhaya) too should have been included as a principle of law. The idea of the common good of the mankind has been touched upon by Professor Jayathilleke several times in his treatise. Acceptance of this Buddhist principle as a principle of international law may lead to a change in the narrow and selfish outlook of modern international law.

The writer feels that Prof. Jayathilleke has been able to put before the international jurists at the Hague a case for the Buddhist theory of international politics. He was able to show that the principles of international law are not something new to Buddhist political philosophy. At this point the writer wishes to remark that the origins of democracy and International Law are traceable, not to the West but to the East (Asia) where Buddhism has had a great impact.

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