Buddhist texts must be one of the few things that P. V. Kane was not particularly interested in. References to Buddhist texts—or indeed to “Buddhism” or the Buddha—are rarely met in the thousands of pages of his enormous History of Dharmaśāstra , and when they are the references are overwhelmingly to Pāli texts: when Buddhist Vinaya or monastic “law” is cited or referred to, for example, it is always only the Pāli Vinaya , and often oddly enough, only in its English translation. This cannot be because the Pāli Vinaya was the only vinaya material that was easily available. In fact what is from the point-of-view of legal history one of the most important sections of another Buddhist Vinaya —the Cīvaravastu of the Mūlasarvāstivāda-vinaya —was published in Sanskrit in 1942 from Calcutta. But, here it is not impossible that Kane was the victim of his own assumptions. He seems to have assumed and certainly asserted that “Buddhists had hardly any independent set of juristic ideas or works different from those of the brahmanical jurists.…” 1 Since Kane was focused primarily on “juristic ideas or works,” Buddhist texts would have had little or no importance for his project.
Kane does not give any examples to support his claim here, and his terms of reference—“Buddhists,” “Brahmanical”—are entirely too broad: while “Brahmanical” might be twisted into Dharmasūtra/Dharmaśāstra , “Buddhists” could be located in a very wide range of texts. If anything has become clear in recent years, it may be, in fact, that there is no single monolithic “Buddhist” view of anything, and this appears to be especially true of vinaya or law, about which at least learned Buddhists argued endlessly. The multiplicity of vinaya or law traditions composed by Buddhists is certainly an obstacle to testing Kane’s assertion in his terms, and the difficulties are compounded by the fact that the various Buddhist Vinayas are unevenly preserved and have been even more unevenly studied. The Pāli Vinaya , for example, is by far the best known, and although what Kane says may—at least in part—apply to it, the evidence is accumulating that it is the least representative of the extant Vinayas (Clarke 2009 ). This, however, has only become visible when those other Vinayas —preserved largely in Chinese and Tibetan translations—have been taken into account, and this has rarely been done. Comparative vinaya studies, moreover, have been more consistently focused on finding similarities and have frequently passed over some sometimes startling differences.
But, if testing Kane’s assertion in his broad, global terms is neither practicable nor viable, a much more modest test might be. We might here put his assertion alongside one of the lesser known Vinayas and see if it can hold up. The Vinaya in question is the Mūlasarvāstivāda-vinaya , and in size, it is a work that makes even History of Dharmaśāstra look small. Significant parts of it have survived in Sanskrit in an early (seventh-century) manuscript from Gilgit, and lengthy excerpts from it—often clumsily done—are preserved in a much later Sanskrit anthology called the Divyāvadāna . But, the most complete version of this Vinaya appears now to be available only in its Tibetan translation and this translation can be a little daunting: it fills thirteen fat volumes and is more than 8,000 pages long. Much of its bulk, it is true, is made up of story or narrative literature, but even this cannot be safely ignored since such literature in India—as Sternbach (1964–7, part II ), for one, has clearly shown—very often deals with legal issues.
Size, however, is not the only difficulty involved in using the Mūlasarvāstivāda-vinaya to test Kane’s old assertion: chronology is most certainly another. Especially when similarities are encountered between this Buddhist Vinaya and the “juristic ideas or works…of the Brahmanical jurists,” it would be nice to determine their relative priority. But, this is doubly difficult. The dating of the dharma literature still is, in Richard Lariviere’s seemingly immortal words, a “chronological house of cards,” (1989a: ii.xx), and the dating of this Vinaya is almost equally uncertain or insecure. For a long time it was dated late. The great Belgian scholar Étienne Lamotte initially said it could not be dated earlier than the fourth–fifth centuries, and although, over time, he clearly changed his mind, and began citing this Vinaya as evidence for the first or second century ce , he never explicitly revised his initial date, causing a great deal of confusion. Gnoli placed the “compilation” of this Vinaya in “the times of Kaniṣka” (first/second centuries). 2 Schopen placed its redaction in much the same period, based on linkages between the contents of the Vinaya and what occurs in the pre-Kuṣāna and Kuṣāna archeological and epigraphical records, while acknowledging that some of this enormous code must be later (Schopen 2004 : 20ff.; Schopen 2014 : 74). More recently, Petra Kieffer-Pülz (2014 : 52, n. 45), citing a particular instance in support, says that the Mūlasarvāstivāda-vinaya was “redactionally closed in India probably around the fourth–fifth century ce ”; and Pagel (2014 : 17 n. 5) says that “Schopen’s attribution to the first or second centuries may well be correct,” and then adds the wholly unnecessary caveat that it, like others, “deals in probabilities linked to circumstantial evidence and calculation of plausibility—not chronological certainties.” No one I know has ever claimed otherwise.
If, however, dharma texts and the Mūlasarvāstivāda-vinaya are both hedged about with chronological conundrums and uncertainties, and if both bodies of material represent compilations that could be, and were, added to over time, there is still at least one more similarity: neither makes explicit reference to the other. There have, of course, been attempts to see references to Buddhist monks or Buddhist views in dharma texts but none is certain or has found wide acceptance, 3 and any explicit reference to a dharma text in our Vinaya has gone completely unnoticed. Commentators on dharma literature—both ancient and modern—have also seen references to Buddhists in terms like pāṣaṇḍa , “heretic,” but this is neither certain, nor particularly helpful. It might, perhaps, be more promising to take seriously the possibility that Buddhist communities were understood as, or taken to be, guilds by dharma writers. This is an idea worth pursuing, and one for which there appears to be some supportive evidence.
Even though the use of mercantile language and figures of speech in Buddhist literature is well known, still one of the opening verses to the Mūlasarvāstivādin Prātimokṣa-sūtra is at least a little startling. The Prātimokṣa-sūtra is a ritual formulary that announces and enumerates the more than two hundred monastic rules in descending order of importance. It is supposed to be recited aloud every fortnight in a formal communal gathering that every member of the Community is normally required to attend. One of the opening verses which would have been heard every fortnight describes the Prātimokṣa itself thus:
eṣa bhikṣuvaṇigrāmasya śikṣāpaṇyamahāpaṇaḥ (Clarke 2014a : 234, (1) r.4)
This is the great warehouse for the merchandise of rules for the mercantile guild of the monks.
Although striking, this could still be set aside as mere metaphor. It is more difficult, however, to do so with a significant number of other things, starting with the term the Buddhists themselves used to refer to their groups: they called them saṃgha s, and saṃgha is one of a string of terms used to refer to a guild. The terms ācārya and antevāsin, “teacher/master” and student/apprentice,” would have been at home in both guild and Buddhist saṃgha ; both made their own laws or regulations; both were involved in banking and lending money; and both had corporate seals and property. Unlike recognized religious renouncers, Buddhist monks, like individual merchants, were subject to tolls and taxes, and this may have to mean—at least in the narrow sense—that Buddhist groups were not considered to be primarily religious, nor did they claim to be. Buddhist vinaya itself provides the fullest details of a monk’s tax obligations, and, although it suggests occasional strategies for avoiding such obligations, the Buddha himself insists that if those strategies fail the monk must pay the tax. The Buddhists never call into question or argue against such tax obligations. 4
Admittedly very little is known about the specifics of guild law or the legal concerns of mercantile groups, but what little is might be equally suggestive. Two inscriptional charters have been cited for guild law: one from the sixth century and one from the eighth. The first, the charter of Viṣṇuṣena, is addressed to a Community of merchants and it contains, in Sircar’s words, “a long list of regulations which look like prevalent customary law.” 5 The very first regulation is āputrakaṃ na grāhyam . Here Sircar says āputraka means “the property belonging to a person who died without leaving a son. This seems to say that such property should not be confiscated by royal officials” (Sircar 1953 –4: 170), which theoretically is what should otherwise happen. Kosambi pads it out even further: “the property of one (who has died) sonless is not to be attached (by the crown, but disposed of according to guild rules).” The same regulation occurs in the second charter, also addressed to merchants by a king—the Cālukya Bhojaśakti: aparaṃ ca aputradhanaṃ nnasti , which Mirashi (1955 : i.158) renders “Besides, there is not (to be escheat to the crown of) the property of a person who dies sonless,” and Kosambi (1959 ) “Furthermore, there is (to be) no confiscation (by the crown) of property (of one dying) sonless”.
These two charters suggest that merchant groups or guilds were concerned with shielding the property of their members who died sonless from confiscation by the state, and they sought and received royal assurance in writing that that would not happen. But, the Buddhist saṃgha , all members of which would have theoretically died sonless, had the same concern and sought the same relief, at least according to the Mūlasarvāstivāda-vinaya . It is clear first of all that the redactors of the Mūlasarvāstivāda-vinaya were well aware of some version of a rule that stipulated that the estate of someone who dies sonless goes to the state. In fact, this rule is not infrequently expressed, even in narrative portions of this enormous Vinaya . In the Adhikaraṇavastu , for example, a childless man laments: anekadhanasamuditaṃ me gṛhaṃ na me putro na duhitā. mamātyayāt sarvasvāpateyam aputraka iti kṛtvā rājavidheyaṃ bhaviṣyati iti (Gnoli 1978 : 69.16): “my house is possessed of much wealth, but I have no son, no daughter. After my passing all my property, being declared sonless will come to be subject to the king.” This same lament is found again and again, with minor variants, in this Vinaya and literature related to it.
Our redactors, however, were not just aware of this rule, they—like the merchants of the charters—appear to have been concerned about its application to members of their group, and to have formulated an argument against it. The evidence here is the fact that this issue is treated not once, but twice, in this Vinaya in two long and legally sophisticated accounts. 6 In the first of these accounts, a monk named Upananda dies, leaving a very large estate: “three hundred thousands of gold.” The king is informed and he orders that the monk’s cell be sealed (gacchata asya layanaṃ mudrayateti ). The king’s men do so, and when the monks see Upananda’s cell sealed with the king’s seal (layanaṃ rājamudrāmudritam ), they report it to the Buddha, and he says to his attendant Ānanda:
Go, Ānanda! Ask after the health of King Prasenajit and speak to him thus in my name: “On any occasion when you had royal affairs (rājakaraṇīya ) did you then look to (avalokayasi ) Upananda the monk?”
“Or on any occasion when there was the bringing of a bride or the taking of a bride, did you then look to Upananda?”
“Or at any time during his life was Upananda provided by you with the necessities, robes, bowls, bedding and seats, and medicine for the sick?”
“Or did you attend to him when he was sick”
If he says “no,” this must be said: “Great King, the affairs of the house of householders are one thing, those of renouncers are quite another (pṛthaṅ mahārāja gṛhiṇāṃ gṛhakāryāṇī/ pṛthak pravrajitānām ). You must remain with little concern. This acquisition falls to his fellow monks (sabrahmacāriṇāṃ eṣa lābhaḥ prāpadyate ). You must leave off your involvement!”
Since the redactors are presenting the case, they, of course, get to have the king respond as they would want:
The King said: “Reverend Ānanda, as the Blessed One orders (ājñāpayati ) so it must be! I leave off my involvement”
Any number of things might be noted here, but the first thing must be this: the common elements and concerns that merchant groups or guilds and Buddhist saṃgha share do not prove that the saṃgha was considered—and considered itself—a guild. They do, however, suggest that this is a possibility worth pursuing, that it is at least possible that the Buddhist saṃgha was modeled on, and functioned as, a merchant guild, and that Buddhist Vinaya s, therefore, represent variant versions of a remarkably detailed and well-preserved early Indian guild law. A second thing might be that the Vinaya account of the death and estate of the monk Upananda presents what appears to be found nowhere else in dharma literature, and what might even be called an “argument for the separation of church and state.” This argument appears to be unique and—as we will see—its subsequent citation and use in our Vinaya certainly is. But a final point is one that anticipates a good deal that will follow here: it is possible—at least at first sight—to see in the Vinaya ’s numerous references to the rule of aputraka an example that confirms Kane’s assertion that “Buddhists had hardly any independent set of juristic ideas.” Indeed, it is easy enough to assume that this is a case of borrowing by the Vinaya from the dharma literature. But, being comfortable with this assumption will require ignoring a number of other points. First of all, it is not clear where this idea came from. It is not found in the Dharmasūtras , and the term aputraka does not seem to occur in any Dharmaśāstra. It is true that both Manu 9.189 and Nārada 13.48–13.49 have rules that say that in the absence of all other heirs the king gets the property of deceased non-Brahmins, but it is not yet clear that this is the same rule or concept as that expressed by the term aputraka , the term used by both our Vinaya and a good number of inscriptions, 8 and one that does not necessarily mean all heirs. Should it turn out that Manu, Nārada , and Vinaya are all referring to the same rule, that still will not change the fact that the rule is not well anchored in dharma literature, and not particularly early there. Olivelle (2010b : 57) has put Manu in the second century ce and Nārada in the fifth or sixth century: however sobering, the borrowing could then have been in the opposite direction! We arrive at much the same point, it seems, if we approach the issue from a different angle. Our Vinaya first argues that a distinction must be made between renouncers and householders with regard to property and inheritance. Then without actually making the claim that Buddhist monks are renouncers, it makes the further claim that the property of a deceased Buddhist monk should not go to the king, but to his fellow monks. This looks like it might well be a first tentative attempt to establish a contested principle, and is in marked contrast to what is found in Dharmaśāstra: by the time the issue appears in Yājñavalkya 2.137, what problems there might have been appear to have been resolved: “The heirs of a hermit, of a renouncer and of a perpetual student are in that order, the teacher, the virtuous pupil and the spiritual brother and associate in holiness.” 9 Moreover, since Olivelle (2010b : 57) puts Yājñavalkya in the fourth or fifth century, it is possible that the Vinaya passage predates it by more than one century. And, here again, even if Yājñavalkya and Vinaya turn out to be roughly contemporaneous, who borrowed from whom remains indeterminable: this may be a Buddhist contribution. Yet another similar case—also involving the Yājñavalkya —can be cited.
There is evidence that Buddhist monks in various locations and Śaiva ascetics too lent money on interest. 10 Our Vinaya not only authorizes such activity on the part of both monks and nuns but also gives explicit directions on how to write a loan contract:
…writing out a contract that has a seal and is witnessed, it (the loan) is to be given. In the contract the year, the month, the day, the name of the Elder of the Community (saṃghasthavira ), the Provost of the monastery (upadhivārika ), the borrower, the sum, and the interest must be recorded (Schopen 2014 : 106–7)
Yājñavalkya (2.86–2.89) is obviously similar:
For whatever business (artha ) is freely and mutually agreed upon, a witnessed contract should be made. The creditor should be put first with the year, the month, the fortnight, the day, place of residence, caste and gotra , with the name of a fellow student, his own and his father’s it is marked.
Yājñavalkya goes on to indicate that the debtor and witnesses must sign the document “in their own hand” (svahastena ), and to explain how payments should be recorded and a receipt written. It is, in fact, considerably more detailed or developed, and yet the two are basically similar: many of the minor differences are attributable to the fact the Vinaya is presenting a contract between an institution or corporation and an individual, but Yājñavalkya is presenting one between individuals.
Here again there appear to be basically two chronologically determined possibilities. It is possible that the Vinaya and the Smṛti are roughly contemporaneous—either second or fourth/fifth century—and may then simply be variant versions of a shared or common idea adapted to different circumstances. Any borrowing would again remain indeterminable. But if Vinaya is second century and Yājñavalkya fourth/fifth, then the rules for written contracts may have to be seen as another Buddhist contribution that was incorporated into Dharmaśāstra. There is also another consideration that might support this view.
The Buddhist rules on written contracts are not delivered in isolation but always in conjunction with another financial instrument that, while having wide currency in practice, is nowhere mentioned in Dharmaśāstra. Starting from the beginning centuries of the Common Era, Indian inscriptions—the early ones are predominantly, but not exclusively Buddhist—frequently record the gift of what are usually called akṣayanīvīs . 11 Since these same records often go on to specify what is to be done with the interest generated by these gifts, it is clear what they did. That, plus their name, allows for the conventional translation “permanent endowment.” These were funds that could not be spent, but were to be invested or lent out to generate interest. However, Derrett (1974 : 95), who already long ago noted “the absence of the term [akṣayanīvī ] from the abundant and versatile dharmaśāstra literature,” found it “odd that a word which plays so important a role in the legal practice of ancient and mediaeval India” was not found there (89), and said how “puzzling it remains that technical terms which had a great currency should be missing from the [dharmaśāstra ] literature” (90). Derrett saw in this situation an important “lesson” about “the nature of the śāstra ,” “viz. that the śāstra though strong on the jurisprudence…did not aim to be comprehensive when it came to its incidents” (90). That of course may be so, but, on the basis of material that Derrett did not know or have access to, a different lesson might also be learned. Derrett, it seems, may have been looking in the wrong place.
In contrast to its apparently complete absence in Dharmaśāstra, the term akṣayanīvī —sometimes simply akṣaya —is found repeatedly in the Mūlasarvāstivāda-vinaya and not just in one part of it. It occurs in its Cīvaravastu , in both its Bhikṣu- and Bhikṣuṇī-vibhaṅgas , and its Uttaragrantha ; it also occurs in several medieval handbooks of the Mūlasarvāstivāda-vinaya (Schopen 2014 : 103–13). These occurrences deliver the initial authorization and origin tale for these endowments; they explain their name—they are called permanent because they are not to be consumed or spent; and they indicate how they are to be used. Given all of this, there would seem to be good reasons for suggesting that not only might Yājñavalkya ’s rules on written loan contracts be dependent on a Buddhist model, but a word and financial instrument which “plays so important a role in the legal practice of ancient and mediaeval India” might well have been a Buddhist invention, or, if vinaya law be taken as a species of guild law, an instrument that was created by guilds. There is, not incidentally, ample inscriptional evidence to show that these endowments were often placed in the hands of guilds. The even larger lesson here, however, may be that if “the legal practice of ancient and mediaeval India” is ever to be fully understood, the legal contents of at least this Vinaya will, it seems, have to be taken into account.
If in this case of the written loan contract the chances are reasonably good that the Dharmaśāstra was dependent on vinaya , there are other cases where the direction of any dependence is much less determinable, or of no particular interest. There are, for example, a number of terms used by both vinaya and Dharmaśāstra, where this seems to be the case. In the Cīvaravastu of the Mūlasarvāstivāda-vinaya , to cite a first term of this kind, the division of the estate of the monk Upananda is announced in the following form:
asminn āvāse upanando bhikṣuḥ kālagataḥ / tasyedaṃ mṛtapariṣkāraṃ dṛśyam adṛśyaṃ cāvatiṣṭhate / sacet saṃghasya prāptakālaṃ kṣametānujānīyāt saṃgho yat saṃgha upanandasya bhikṣor mṛtadravyaṃ dṛśyam adṛśyaṃ ca mṛtapariṣkārikam adhitiṣṭhed ity eṣātra jñaptiḥ / (Dutt 1942 : 120.13)
In this residential area Upananda the monk has died. This estate of his, visible and invisible, remains. If the time seems right to the Community [or Corporation] the Community [or Corporation] should authorize it that the Community should take formal control of the property of the deceased Upananda the monk, both visible and invisible, as property belonging to an estate—this here is the motion.
The terms dṛśya and adṛśya applied twice to the property of the monk here are not common in this Vinaya , but they do occur—although rarely and late—in Dharmaśāstra and apparently only in the context of partition (YDh 2.122, 2.126; BṛSm 1.16, 1.40; KātSm 841–2). Another term that occurs in both vinaya and Dharmaśāstra in discussion of partition is avibhājya , and—like dṛśya and adṛśya —it is applied to property that is indivisible or “not subject to partition.” While the term avibhājya occurs already in Gautama (28.44), where it is applied to “sources of water, security measures, and cooked food…also women belonging to the family,” Kane (III: 587 n. 1107) has said: “the basic verse on things impartible from their very nature is Manu IX.129 (=Viṣṇu.Dh.S. 18.44),” which has a similar but expanded list adding “a garment, a vehicle, an ornament” (but for one addition Viṣṇu has the same). The longest list, however, occurs in our Vinaya . When it describes the division of a lay estate that comes to the Community, the first things it does is give a long list of things that it declares avibhājya , only some of which occur in Gautama, Manu , and Viṣṇu , although some others are added in later lists: land or fields, houses, shops, bedding and seats, a variety of vessels, female and male slaves, servants, laborers, food and drink, and grain (Dutt 1942 : 141.11; Schopen 2004 : 118–19). Even the one additional item found in Viṣṇu , books (na vibhājyaṃ ca pustakam ), which for Kane is “an indication of its posteriority to Manu,” occurs already as a separate item in the Vinaya .
In the cases of the terms dṛśya/adṛśya and avibhājya/vibhājya , it is almost impossible to detect even a vague indication of the direction of any dependence. It is not even clear that these are technical terms and not just elements of general vocabulary—the first pair is not even listed in the new dictionary complied by Olivelle (2015 ). There are, as well, a number of other terms or expressions, like daśaikādaśa or dviguṇa , which fall into this category or exemplify this pattern: here, too, the first of these is not registered in the new dictionary, and both terms could easily be part of the common vocabulary of accountants or scribes.
The passages cited so far represent only a few of the patterns of relationship that can be observed between dharma literature and vinaya . Several more are worth noting. There are instances, for example, where it is virtually certain, or highly likely, that a concept, idea, or rule that appears in this Vinaya had already appeared much earlier in dharma texts. Here one of the clearest examples is also one of the least noticed. The term āpad in the sense of “time of adversity or emergency during which normal dharma does not apply” (Olivelle 2015 : 83)—or some similar expression—occurs already in all four of the Dharmasūtras (ĀpDh 1.20.11; GDh 9.67; BDh 2.4.16; VaDh 2.22). It continues to occur in Manu (1.116, 9.56), and Yājñavalkya (3.35); it appears in the Arthaśāstra (6.1.10, 9.5.2) and in the Mahābhārata (XII.129–67). Both the idea and the term are deeply and firmly embedded in dharma literature from its beginnings and both, while not nearly so well anchored, are not, however, entirely rare in the Mūlasarvāstivāda-vinaya . They occur several times in its Poṣadhavastu , more than once in its Bhikṣuvibhaṅga , and again several times in the Uttaragrantha . The instances in the Poṣadhavastu have been preserved in Sanskrit. Typical is:
A monk on the day of the fortnightly gathering on the 15th day, must not go from a residential area (āvāsa ) with monks to a residential area without monks…except in adversities [or emergencies] or with the entire Community (sthāpayitvā āpatsu vā sarvasaṃghena vā ). (Hu-Von Hinüber 1994 : 492)
Here, simply put, the Vinaya allows a monk to do, during an emergency or a time of adversity, what is otherwise forbidden. Fuller still is a passage in the Bhikṣuvibhaṅga . This is a particularly good example because it allows not one, but two separate actions that are forbidden by specific Prātimokṣa rules in normal times to be undertaken in times of danger or adversity, and because it explicitly limits the authorization. The text has not survived in Sanskrit, but the Tibetan translation is clear. It says that when dangers arose, monks abandoned their vihāras or monasteries and fled, leaving the vihā ras to be looted by thieves. The Buddha is then made to correct the situation. He orders that before the monks flee, the “treasure and gold” belonging to the Community should be hidden. The monks, however, did not know who should hide it. The Buddha first says that this should be done by a monastery attendant or a lay brother, but when they themselves steal it—he modifies his order by first adding a qualification—it should be done by a trustworthy lay brother! In the absence of such an individual, it should be done by a novice, in the absence of a novice, it should be done by the monks themselves. To hide it, a hole had to be dug, and the same question arose. The Buddha responds again with the same sequence: it should be dug by a trustworthy lay brother; in his absence a novice; in his absence the monks themselves must dig it. This text, then, in effect, in certain circumstances abrogates or suspends the Prātimokṣa rules against monks “touching” gold and digging holes. But it puts firm limits on the suspension. The text ends with the Buddha saying:
Monks, what I authorize in times of adversity (or emergency) that must not be practiced in favorable circumstances! If practiced then one comes to be guilty of a transgression.
(dge slong dag ngas phongs pa’i dus dag tu gnang ba gang yin pa de bde ba’i gnas skabs dag tu spyad par mi bya ste / spyod na ’gal tshabs can du ’gyur ro/ ) 12
Although phongs pa is an attested translation of āpad , and āpad was probably the original here too, in the absence of the Sanskrit text that was being translated absolute certainty is not possible. The Sanskrit text could have read, for example, vipatkāla , which has been translated by phongs pa’i dus , or something very like that. But if the exact term used by the Vinaya here is not certainly recoverable, and if it is only highly likely that that term was āpad , still, there can be no doubt about the virtual identity between the idea or principle expressed by the Vinaya and the principle of āpad in the dharma literature. Given that identity, and given the chronological priority of the principle of āpad in the dharma literature, it must be extremely likely that the Vinaya was dependent on the dharma literature, and probably directly so, that it took over the principle and used it with little or no alteration or adaptation.
There are still other cases where the priority of the dharma literature is probable, yet less certain, but where the extent of the adaptation is considerably greater. One of the more interesting examples here is again one that has received little attention. It concerns what in the dharma literature is expressed in a variety of ways: property that is given as “a token of affection,” an “affectionate gift,” what is given “out of affection” (dattaṃ ca prītikarmaṇi, MDh 9.194; prītena yad dattaṃ, NSm 1.24; prasādo yaś ca paitṛkaḥ, NSm 13.6). Property that falls into this category belongs to the individual to whom it was given and it does not become a part of the joint family property, nor is it subject to partition. Our Vinaya has something very similar. In fact, it may be the same basic idea or principle that has been adapted to an entirely different situation. It is at least sometimes expressed in much the same language.
NSm 13.6 refers to property of this kind as a prasāda , “a mark of affection or favor,” and this is not a particularly common usage of the term, but its usage here allows—perhaps requires—a very different reading of a Buddhist passage than the one that passage might normally get. When Guṇaprabha condensed the canonical text we are about to see in his early medieval handbook of our Vinaya , he put it this way:
na prasādalābhasya vaihāratvam / (Sankrityayana 1981 : 111.2)
Since prasāda is almost axiomatically taken to mean “faith” or “devotion,” or something similar in Buddhist texts, and since Edgerton’s great dictionary, which only records peculiarly Buddhist usages, gives “faith” as its first meaning for prasāda , this would probably be rendered as:
There is no ownership by the monastery of a gift [made] from faith.
Such a translation could probably be made to make sense, but it is almost certainly off the mark—NSm 13.6 makes this likely, as does the canonical passage on which Guṇaprabha’s statement is based.
The canonical passage is from the Śayanāsanavastu , another section in this Vinaya that is rich in legal material, and it involves, in part, an area of law little touched by Dharmaśāstra but of considerable importance to vinaya and presumably any guild or corporation: the ownership and use of corporate property. In this case, that property was a Buddhist monastery, and the ownership of a Buddhist monastery is—at least in this Vinaya —far more complicated than had previously been thought (Schopen 2004 : 219–59). Here, for example, the donor continues to refer to the monastery he had built as “his” even though it is also referred to once as sāṃghika , “belonging to the Community.” When the donor promises further gifts, the monk Upananda gets the monastery assigned (uddiśita ) to him, but he lives elsewhere, leaving that vihāra empty. A pilgrim monk comes there and asks Upananda if he could stay there, and Upananda allows it—being “assigned to” him apparently gives him complete authority over the monastery. The pilgrim monk was “industrious and not lazy” (i.e., a good monk). Every day he cleaned and swept that monastery. When the donor saw this, he was extremely pleased (prāmodyam utpādayati ). He is also described as abhiprasanna , and because he is abhiprasanna , he gives that monk a gift of cloth. But, when Upananda hears about this, he rushes to the monastery and demands the cloth for himself. The pilgrim monk, fearing that Upananda will throw him out of the vihāra —which he apparently could do—gives him the cloth. All of this is then reported to the Buddha and he rules that:
yasya prasannaḥ prasannādhikāraṃ karoti tasyaiva sa / upanandasya tu vārṣiko lābhaḥ iti // (Gnoli 1978 : 38.12)
Like prasāda , the related abhiprasanna and prasanna might easily here be translated “devout,” “believing,” or something similar, but here that seems not to fit the context very well. The donor here is first described not as religiously impressed or moved but as “extremely pleased” and he appears to be expressing not his faith but his gratitude or appreciation. There is an almost exact parallel to our passage that is entirely secular in character and where the same phrase cannot possibly be expressing faith or devotion. This parallel occurs in the Vibhaṅga of our Vinaya and it is preserved in Sanskrit as an extract in the Divyāvadāna . Our phrase occurs in two instances in this long account. First, when a rich householder is having a house built, he hires a day laborer, who manages to get twice the normal work done, and, as a consequence, he starts to give the day laborer twice the normal wage. But, the laborer hesitates and asks why. The householder then says:
putra na dvidaivasikāṃ dadāmy api tu prasanno ’haṃ prasannādhikāraṃ karomi /
(Cowell and Neil 1886 : 305.6)
This would seem to mean something like:
Son, I am not giving you two days’ wages but, being pleased, I am doing what is required from gratitude.
The statement made here could easily be paraphrased: “I am giving you a token of my gratitude.” That is what the phrase means here and that is almost certainly what it means in the passage from the Śayanāsanavastu . There the Buddha rules:
He to whom a token of gratitude is given by one who is pleased, to that person alone it belongs. But any donation for the rains is Upananda’s.
The “token of affection” in Dharmaśāstra literature is then an exceptional category of property that belongs exclusively to whom it was given, does not become a part of joint ancestral property, and is not subject to partition. The Buddhist prasannādhikāra —however translated—is also an exceptional category of property that belongs only to the person to whom it was given, does not become a part of the monastery’s property, and is not to be distributed. The basic idea in both, it seems, is too close to be coincidental, and there is even some vocabulary overlap (prasāda, prasanna ). It might, therefore, not be unreasonable to suggest that we have here a case where Buddhist vinaya has taken over a legal notion that occurs in dharma literature in regard to one set of circumstances and applied it to a completely different situation. But, if nothing else, this case might provide an example of how reading vinaya in light of Dharmaśāstra opens up otherwise unnoticed possibilities.
Yet another case where Buddhist vinaya has adapted a legal principle to its own situation or institutional needs concerns the oral disposition of property or what might even be called a nuncupative will. Whether or not this is an element of Dharmaśāstra, or was an actual legal practice that did not clearly make it into Dharmaśāstra will depend on how one understands a father’s right to effect partition while still alive (cf. Lariviere 1989a: ii.172). But, our Vinaya , in any case, presents the “oral will” as a fact it had to deal with both internally and externally. The case starts—at least in narrative time—when a monk who knows he is going to die says to another monk:
For as long as I live, so long you should attend to me. When I am dead, my robe and bowl are for you to treat as you please.
(yāvad ahaṃ jīvāmi tāvad upasthānaṃ kuru / madīyaṃ pātracīvaraṃ mṛte mayi tava yathāsukham iti / Dutt 1942 : 124.2).
The second monk attends the first, but when the latter actually dies, a dispute arises in regard to his “robe and bowl,” a standard euphemism for a monk’s possessions. The case is presented to the Buddha, and he rules:
Monks, that deceased monk did not give it when still living, how now, he being dead, will he give it? This is not an act of giving when one says, “after I am dead, it will be for him.”
(jīvann evāsau bhikṣavo na dadāti / kutaḥ punar mṛto dāsyati / nāstīdaṃ dānaṃ mamātyayād asya bhaviṣyati / Dutt 1942 : 124.7)
As a provision of monastic law, this promulgation is unproblematic: it is clear and concise and it denies the validity of the oral disposition of property by one who is still alive. Context makes it clear in this case that the oral will was made by a monk and that the provision applies to the monks, but the wording is vague and too broad: it could easily be misinterpreted and put Buddhist monastic law in conflict with Dharmaśāstra or actual legal practice. That the redactors of our Vinaya either anticipated or experienced this would seem to follow from the fact that they present a second text that quotes or paraphrases the first, and it appears to recognize, and wants to remove, the potential conflict.
In the second text (Kṣudrakavastu, ’Dul ba , Tha 252b.3–254a.1; Schopen 2004 : 177–82), a householder who knows he is about to die calls together “friends, relatives, brothers, and neighbors” and declares, “I have three sons, these are the two older, the youngest has entered the Order of the Buddhist śramaṇas . Therefore, whatever property there is in my house, however small, all of that must be divided equally.” Notice that this may not be a partition strictly speaking—it does not appear to involve ancestral property like the house, but the father’s (movable) property that was in the house (bdag gi khyim na nor ). Note, too, that the father is presented as assuming that Buddhist śramaṇas could inherit, although late Dharmaśāstra rules that a renouncer “after renunciation…can no longer inherit property,” (Olivelle 1984 : 143); he also seems to assume that an oral disposition is valid and binding, and he is not the only one who is presented as assuming both. When the youngest son who is a Buddhist śramaṇa hears of his father’s death, he returns home to recite the dharma and console his family, but he also weeps. A neighbor woman observes his tears and says:
Son, do not lament! Since your father had done meritorious actions, he has gone to the land of the gods (lha yul du song ngo ). Moreover, your father, having assembled friends, kinsmen, brothers, and neighbors, has also given a third share of his property to you (nor gyi sum cha gcig kyang byin no ).
The neighbor woman is presented, then, as making the same assumptions as the dying father: Buddhist śramaṇas can inherit, and oral wills are binding. But, the returning son does not share these assumptions. He is made to say that she has misunderstood his tears—he was not expecting to inherit, and an oral will on the part of his father was invalid. He says this because he seems to think that monastic law applies to lay-household heirs. He says, quoting or paraphrasing our first text:
Moreover, the Blessed One forbids it declaring that, “saying ‘when I have died, this must be given to him’ is not giving” (yang bcom ldan ’das kyis nga ’das nas de la byin cig ces zer ba ni sbyin pa ma yin no zhes bkag go )
The young monk’s assertion reveals the problem in the original promulgation: it does not explicitly distinguish or differentiate between layman and monk and, therefore, can be misinterpreted or misapplied to the monastic Communities’ disadvantage. It could—and would—render all oral wills invalid, even those made in favor of a monk or the monastic Community, and it would put monastic law in conflict with Brahmanical law or actual practice. Our redactors’ remedy should look familiar and it represents, it seems, a second argument for what again might be called “the separation of church and state.” We have seen above in the monastic or vinaya response to “the law of sonlessness,” the assertion that “the affairs of the house of householders are one thing, those of renouncers are quite another”—that is to say, “the law of laymen does not apply to monks.” In the present case, however, the redactors do not repeat the assertion verbatim, but in effect reverse it: if the law of laymen does not apply to monks, then the law of monks does not apply to laymen. When the remarks of the returning son who is a monk are reported to the Buddha, he further rules:
The Blessed One said: ‘Monks, what I said [in the Cīvaravastu ] did not refer to householders (khyim pa=gṛhin ), but was said in reference to renouncers (rab tu byung pa =pravrajita ). When a householder would die having attachments this is not a renouncer. Therefore, then, when this householder thought “when I have died, this is given to him,” this indeed was an act of giving. Moreover, because he was not a renouncer it should be accepted.’ (’Dul ba, Tha. 253b.6) 13
If the initial promulgation denying the validity of oral wills was the original position of our Vinaya —and that seems highly likely—then the account of the returning son must represent a conscious revision in which monastic law is brought into line with Dharmaśāstra or actual practice by adopting their position, but explicitly adapting it to prior monastic law, and strictly limiting its application. The account of the returning son also presents a second example of this Vinaya ’s attempt to establish a clear separation between monastic law and lay law, and there is a third: the account discussed here occurs in the section of our Vinaya called the Kṣudrakavastu , but another version of this account, with only very minor variants, is also found in the Uttaragrantha , a completely different section. 14 The fact that the account is repeated in two different sections may point to how important it was to the redactors to promote this general principle, a principle that, in this explicit form, seems to be otherwise unknown in Indian law or Dharmaśāstra and is an innovation unique to Buddhist monastic law. Lingat long ago, in speaking about the lack of distinction between religious and penal sanctions in Dharmaśāstra, for example, lamented, “on this subject we seek in vain for a generalization,” and said “the religious law and the secular law thus interpenetrate each other. The two domains are never clearly distinguished” (Lingat 1973 : 78). The innovation we see here is not, however, the only one.
Two more innovations in law on the part of our redactors occur in a single text, and in a way, they bring us full circle. One of the first texts that was presented here in any detail was from the Cīvaravastu and it dealt with the large estate left by the monk Upananda and the problem of Buddhist monks dying “sonless” and, therefore, without heir. One of our last texts comes from the same Cīvaravastu and it explicitly refers to the case of Upananda and starts again from the problem of “sonlessness.” It introduces two things that appear to have been otherwise unknown, at least in Dharmaśāstra: true precedent and the written will.
Until recently, it was commonly maintained that “Hindu law…lacked a notion of precedent” (Davis 2007c : 47). Davis (2007c ) has challenged this view, but largely on the basis of late, even very late (seventeenth-century) traditional commentaries, and by expanding the scope of what the term precedent can refer to. Even he, however, says in regard to “the scholarly denials of precedent in Hindu law,” that they are “perhaps accurate when compared with systems of binding precedent such as modern Anglo-American law” (2007: 49). But without wanting to get tangled up here with definitional issues, it is possible to suggest that our Vinaya presents an instance of what is much closer to the common understanding of “precedent” than anything that has so far been noted in Dharmaśāstra, and at a comparatively early date. Similarly it has been said from the days of Colebrooke and Wilson, that a “last will and testament is unknown to the Hindu law” (Colebrooke 1801 : ii.516n.) Mukherjee and Wright challenged this view more than thirty years ago, but again on the basis of very late material (1979 : esp. 318–20), 15 and our Vinaya presents a very clear instance of a written testament.
The Cīvaravastu text (Dutt 1942 : 139.5–141.2) deals with a rich householder who—being sonless—decides to enter the Buddhist Order. He approaches a monk who shaves his head and starts to give him the rules of training, but the householder falls ill and, therefore, cannot be fully ordained. The monks, however, continue to attend to him even after he was taken back home. The householder realized he was about to die:
tatas tena maraṇakālasamaye sarvaṃ santa[ka]svāpateyaṃ patrābhilekhyaṃ kṛtvā jetavane preṣitam / sa ca kālagataḥ /
Although the language here may be a little crabbed and awkward, and although strictly speaking, there is no word for will , still there can be no doubt about what the passage is describing: it describes the conveyance in writing, in anticipation of death, of one’s property. It describes in other words what we would call a will. It might be rendered:
Then he, at the time of death, having put into a written document all of his property (rang gi nor thams cad glegs bu la bris te ) he sent it to the Jetavana [Monastery], and he died.
The king’s ministers (amātya ) report to him that a “shaven-headed householder” (muṇḍo gṛhapatir )—a liminal category, a layman in the process of becoming a monk—has died, and that he was sonless (aputra ), very rich, and that, “having put all that [wealth] into a written document, he sent it to the Jetavana to the Noble Monastic Community” (etac ca sarvaṃ patrābhilikhitaṃ kṛtvā jetavanam āryasaṃghāya preṣitam ). The king’s response is key.
āryopanandasantakam eva mayā apatrābhilikhitaṃ na pratilabdhaṃ prāg eva patrābhilikhitaṃ pratilapsye / api tu yad bhagavān anujñāsyati tad grahīṣye /
(Dutt 1942 : 140.21–141.2)
I did not obtain the property of the Noble Upananda for which there was no written document (=will). How much less will I obtain that for which there is a written document (=will). Moreover, what the Blessed One orders, that I will take.
At the very least, the king here is making a legal argument on the basis of a prior case, and this—by almost any definition—must be precedent. Read in light of this account, our earlier account of the returning son and the oral will also could be taken as another instance of precedent. When he says, “the Blessed One forbids it declaring that ‘saying “when I have died, this must be given to him,”’ is not giving,” the returning son is also making a legal argument, and in citing the Buddha’s words, he is in effect citing the prior case that produced them.
If the written will and the citation of precedent can both be found— and found early—in Buddhist vinaya , but not—or not until very late—in Dharmaśāstra, the same might be said of what is not so much a specific instrument or practice, but a broad concept. A good deal has been written on “the juristic personality of Hindu deities” (see Sontheimer 1965 ), but in all of what has been said, it has rarely been noted that this is a relatively late manifestation of an idea that had been around for a long time in India, that the concept of juristic personality was not new. If we knew more about early Indian guild law, we might be able to determine—rather than guess—that it originated there. If—as seems highly likely—early Indian guilds owned property or had assets, something like the juristic personality would seem to have been required in any case. And, if the idea originated there, and if vinaya law represents a species of guild law, the appearance of the concept of the legal person in vinaya law would not be a surprise. The fact that the concept appears in Vinaya very early and fully formed may support the suspicion that it was not developed there but borrowed, even if this cannot now be confirmed. Some things can, however, be confirmed.
Many scholars have argued that the Prātimokṣa-sūtra is the earliest part of Buddhist vinaya . Should this turn out to be so, it would mean that some idea of the juristic personality was present in Buddhist vinaya from the beginning. Already in the Prātimokṣa of our Vinaya —and in all others it seems—the Saṃgha or monastic community appears as a legal entity that owns property: it owns cushions, couches, and chairs (sāṃghikaṃ maṃcaṃ vā pīṭhaṃ vā vṛṣiko vā ); monasteries are repeatedly described as “belonging to the community” (sāṃghike vihāre ). There is a separate category of acquisition or profits that the community owns (sāmghikaṃ lābhaṃ ), which must be kept distinct from the personal property of monks (paudgalika )—all of this in the Prātimokṣa (Banerjee 1977 : 33 (nos.14–18); 32 (no. 9)). Elsewhere, to cite only a few examples, it is said that the community can accept and own real property —defined as villages and fields—and things like oxen, buffalos, etc., but individual monks cannot (Kṣudrakavastu , ’Dul ba, Da 15a.7–16b.2); it owns unspecified riches and gold (Vibhaṅga, ’Dul ba, Cha 149b.1–149b.7); property that belongs to it is subject to taxes (Vibhaṅga , ’Dul ba, Ca 76b.4–78a.4); it can borrow money through its officers, and it is liable for repayment, but it cannot be held responsible for the debts of its members (Schopen 2004 : 132–40). Even then, in most modern senses, the Buddhist Saṃgha was a legal person and—according to our Vinaya —it acted and functioned like one. Although it is presented in less detail, it is clear that in this Vinaya and elsewhere in Buddhist literature the stūpa was also a legal person that owned property, but it is not possible to pursue this further here. Suffice it to say that this conception of saṃgha and stūpa predated by centuries what came to be argued for the Hindu image.
* * *
What it has been possible to present here is in no sense comprehensive. It represents rather an unsystematic sampling of legal concepts, principles, and practices found in a single Buddhist Vinaya . Even such a sampling is, however, sufficient to show that Kane’s old assertion in regard to the relationship between Dharmaśāstra and “Buddhists” is not valid for this Vinaya : the Buddhists who wrote or compiled it most certainly had “independent…juristic ideas.” Even on the basis of this single Vinaya , it is already clear that the relationship between Buddhist vinaya and Dharmaśāstra could be—and probably always was—a complicated, if not convoluted one. It could be that in some cases, Dharmaśāstra had chronological priority and first developed an idea or concept that was taken over by Buddhist vinaya , sometimes with considerable alteration or adaptation and sometimes not. The reverse could hold; or priority might prove impossible to determine, and that in fact might be rather frequent. It may be, too, that something found in Buddhist vinaya and actual practice may not appear at all in Dharmaśāstra or vice versa, and there could be cases where both Dharmaśāstra and vinaya may have borrowed from another source, such as guild law. Clearly, the emerging picture is complex and it promises only to get more so. It should prove interesting.