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Buddhism and Law
"We wanted to catch the rabbit, but instead we caught a cat" (Ma-Ba-Tha, 2015).
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Introduction
Myanmar is the only Buddhist-majority country in the world that has developed and maintained an official body of family law for Buddhists. Burmese Buddhist law is a construction of principles that apply to lay Buddhists and regulate matters of marriage, inheritance, and divorce. Burmese Buddhist law is a selective body of law that is not based on Buddhist religious texts and it is not "customary" in the sense of being a collection of customs passed down over time. 1The law does not apply to the monastic order, nor is it related to the vinaya2(the monastic code of conduct). In this article, I use the term "Burmese Buddhist law" to indicate that it is an area of law specific both historically and in its application to lay Buddhists in Myanmar. While the correct term for this body of law has been hotly debated in Myanmar, today it is generally referred to as "Myanmar customary law" ( Myanma dale tone dan ubade).3It is an area of law that is not codified, although it has been modified by legislation in relation to adoption, inter-religious marriage, women's inheritance, and divorce.4In particular, two new laws--the Monogamy Law and the Buddhist Women's Special Marriage Law--alter Burmese Buddhist law, although this has gone largely unnoticed in contemporary debates.
This article considers the construction of Burmese Buddhist law by legal practitioners and courts.5It focuses on recent legislative reforms, reflecting on both the influence of monks on the law-making process and the tension between the authority of the legislature and the courts. Unlike neighbouring Thailand, where the legal enforcement of monogamy in the 1930s was said to be the result of foreign condemnation and the forces of modernization, 6the enactment of a Monogamy Law in 2015 was at the initiative of monks based on the implicit presumption that it is Muslims (not Buddhists) who practise polygyny and that this practice needs to be eradicated. The enactment of this law has led to reports of criminal changes.
Several days after the Monogamy Law was introduced in Myanmar, the first criminal charges were laid.7A...