IIAS | IIAS Newsletter Online | No. 25 | Theme Burmese Heritage
Pre-colonial Burmese Law
Conical hat and shoulder bag
Of all the pre-colonial Southeast Asian legal cultures, the Burmese ranks among the most fascinating. During the last twenty years, many new law texts have been published. They have answered some old questions and posed some new ones. I shall give an overview of scholarship since 1980 and explain its relevance to contemporary Burma's search for identity.
* By ANDREW HUXLEY
We lawyers just cannot help being Darwinian. We simply cannot shake off our assumption that some legal cultures are more developed than others. We prefer written law to oral law; we are happier with professional judges than with people's rough justice; and - need I say? - we just love cultures that have their own lawyers. By all of these measures, Burma's pre-colonial legal system was the most developed in Southeast Asia - arguably the most developed east of the Urals. Uniquely in Asia, Burma developed its own legal profession - the she-ne. Wearing colour-coded conical hats (green for the plaintiff's counsel, red for the defendant's counsel) and shoulder bag, the lawyers took charge of their client's case, argued it before the royal judge, strutted and stamped in front of opposing counsel, and read out selected passages from dhammasat and rajasat (Burma's main genres of law text). Some of the content of dhammasat and rajasat overlaps with the Pali Buddhist scriptures (particularly the Jataka and Vinaya). A few verses can be traced to the Sanskrit dharmasastras, but much of the content is distinctly Southeast Asian, reflecting practices that grew up in the irrigated rice fields before the advent of literacy. The lawyers were paid a standard fee, with a bonus, if they won, of a share in the goods in dispute. They were trained by pupillage: once the monks had taught a would-be lawyer how to read and write, he would take up an apprenticeship with an established lawyer.
This lively legal culture was at its height between 1752 and 1819, under the first five kings of the Konbaung dynasty. Well over thirty dhammasat and rajasat survive from this period. They can be supplemented by the accounts of law-in-action written by Persian and European visitors. Ryuji Okudaira has focused on these sources in several of his articles. Indeed, he rediscovered the most interesting source: a dhammasat written just after King Badon (1781-1819) came to the throne, which he and I believe was written specifically to instruct the new king in the rights and duties of kingship. Based on the same materials, I have sketched a Weber-inspired treatment of eighteenth-century legal history as a three-way institutional rivalry between monks, lawyers, and the king. It is a rich field that can support dozens of researchers. It is a pity, then, that for most of the last twenty years a Japanese and an Englishman have had the field pretty much to themselves: neither Britain nor Japan can be entirely proud of their interventions in Burmese affairs.
The earliest proven traces of dhammasat and rajasat are found in twelfth- and thirteenth-century Pagan. One or two dhammasats might be earlier, but the earliest verifiable text was written under Narapatisitthu of Pagan (1173-1210). Within a few decades came the first well-dated rajasat: Kyawza's Edict on Theft (1249) (a Buddhist sermon, which the king addressed to all potential thieves). Analysis of the ever-growing corpus of Pagan inscriptions could tell us a lot more about law in Pagan. Understanding their archaic language requires specialist skills, so it is gratifying when one of the specialists turns his attention to law. Tilman Frasch has done so with his reconstruction of a thirteenth-century lawsuit. I hope he will find the time to publish some of his other interesting thoughts on law and lawyers. It is unlikely that this Pagan legal culture sprang fully grown from nowhere. Unfortunately, there is a total lack of primary evidence for the period 800-1050, and only a few scattered secondary clues. On this scanty basis, I have speculated on the history of law, writing, and Pali Buddhism in Burma before the foundation of Pagan. Perhaps one day, when serious archaeology returns to Burma, we will find out more about the first millennium.
The Ava period (1300-1555) is also scant in legal evidence, though we do know that this was when the Nats took over from the Buddha as guarantor that the disputants were telling the truth. There is much more evidence from the Toungoo dynasty (1555-1753). Okudaira has studied two important dhammasats associated with King Thalun (1629-48), his Chief Monk and his Minister for Law around the time of the Burmese millenium in 1638. I have done some work on the legal portions of Burma's earliest literary history commissioned by the king in the 1680s. Returning to the Konbaung dynasty (1752-1885), its doctrinal legal history was expertly expounded in the 1950s by Judge E. Maung, the greatest twentieth-century expert on Burmese law. E. Maung has left little for later legal scholars of the period to do: this probably explains why Okudaira and I have tended to write more about eighteenth-century politics than law. In the Konbaung law texts, and also in the chronicles and the political works, certain lists reappear. The Ten Kingly Duties, the Four Solidarities and the Seven Ways Not to Make Things Worse are the most frequently found and form the kernal of Burmese political science. Okudaira is expanding his work on these lists into a full-length book on the Konbaung state. I plan an article a piece on the first two lists mentioned.
It is impossible to write about Burmese constitutional law in 1801 without being aware of Burmese constitutional law in 2001. Legal history is a sensitive discipline for two reasons. First, in Burma as in England, law is central to national identity. Second, the contestants for power in Burma today, like those in seventeenth-century England, do battle over national identity as expressed through legal history. By way of illustration, let us return to the career of Judge E. Maung. He was called to the bar at the Inner Temple in 1922 and appointed judge in 1946. He was Minister of Foreign Affairs in 1949, formed his own (conservative) political party in 1954 and was Minister for Home Affairs in 1962, at the time of Ne Win's coup. His 1951 lectures on The Expansion of Burmese Law are still the best introduction to Burmese legal history (Can someone please reprint them?). E. Maung was a better legal historian than the anglophone colonial historians because he was familiar with the whole pre-colonial literature, not just the law texts. The colonial historians had simply been wrong when they stated that the first Burmese law texts were written in the sixteenth century. They wrote in ignorance of the Pagan inscriptions, which clearly show that twelfth century Pagan had law texts. Their underestimation of the antiquity of Burma's legal tradition fitted colonial prejudice and policy. According to them, dhammasat and rajasat were both four centuries younger than the common law. In fact they are a few decades older. Did the British underestimation of the antiquity of Burmese legal culture allow them to feel less embarrassed about summarily disbanding Burma's legal profession in 1885?
Because E. Maung's legal history addressed a resurgent post-colonial national identity, it has its own contemporary ramifications: 'It can truly be said that the glory of Burmese law is that its roots are sunk deep in the soil of national history and that the law is the product of age-long growth of national law. It may properly be called the Common Law of Burma' (E. Maung 1970:5).
I have written a study of how E. Maung's legal history fed into his conservative politics and his minimalist stance on legal decolonization.
After Ne Win's coup, Burmese law underwent exactly the kind of radical decolonization that E. Maung had opposed. During the 1970s, Burmese legal historians disappeared from view altogether. The discipline, with its implicit comparisons of past and present, became too dangerous to pursue in public. Since the 1988 coup, the struggle for legal history has become more overt. The army's apologists explain that they are governing Konbaung-dynasty-style, while Aung San Suu Kyi extracts a Konbaung dynasty democracy from her analysis of the Ten Kingly Duties. This is why Okudaira and I have had the field much to ourselves: plenty of people resident in Burma know more than we do about Burma's legal history, but they have not been able to publish their knowledge.
In the last few years, expatriate Burmese lawyers have begun to write about their own legal tradition. Myint Zan, based in Australia, has published several articles on the development of doctrine over the last two hundred years. There are others whom I cannot name because I have read their work under terms of anonymity. I hope that in a few years this rising generation will have superseded Okudaira and myself. I hope they will have improved our conjectures and rejected our improvisations. But most of all, I hope for a political settlement that will allow Burma's expatriate talent to serve their country from within and the mute voices within Burma to be heard again. *
Maung, E., The Expansion of Burmese Law, a Series of Lectures, Rangoon: Royal Printing Works, (1951)
Frasch, Tilman, 'Some Reflections on the Burmese Dhammasats with special reference to the Pagan Period', presented at the Berlin Conference on 'Tradition and Modernity in Myanmar', May 1993
Huxley, Andrew, 'The Reception of Buddhist Law in S.E. Asia' in M. Doucet, and J. Vanderlinden, La Réception des Systèmes Juridiques: Implantation et Destin, Brussels: Bruylant (1994), pp 139-237
Huxley, Andrew, 'Buddhism and Law - The View From Mandalay' in Journal of the International Association of Buddhist Scholars, 18 (1995), pp 47-95
Huxley, Andrew 'The Last Fifty Years of Burmese Law: E. Maung and Maung Maung', LAWASIA (1998), pp 9-20
Myint, Zan, 'Of Consummation, Matrimonial Promises, Fault and Parallel Wives: The role of original texts, interpretation, ideology and policy in pre- and post- 1962 Burmese case law' in Columbia Journal of Asian Law, 13 (1999) p 2, [Http://www.columbia.edu/cu/ asiaweb]
Okudaira, Ryuji, 'A Comparative Study on Two Different Versions of the Manugye Dhammathat: A leading law book in eighteenth-century Burma (Myanmar)', in Journal of Asian and African Studies 59 (2000), pp 179-95
Andrew Huxley, MA is senior lecturer in Southeast Asian Law at the Law Department, SOAS, London. He specializes in the laws of mainland Buddhist Southeast Asia, particularly Burma and Thailand.
IIAS | IIAS Newsletter Online | No. 25 | Theme Burmese Heritage