Enforcing Rights
A good bit of our discussion about rights has been very abstract so that we have no idea of the contents of the rights we are supposedly talking about.
Much of the more practical discussion touches on real problems and suggests that rights need to be enforced. But, though the question has been raised, I do not think that it has been discussed: What do Buddhist teachings tell us about enforcing rights? Is punishment required? Is it permissible?
I do not propose to discuss those questions here; rather I intend to discuss a point that I touched on in my paper. Rights of the sort that the law recognizes are, except in unusual circumstances, self-enforcing, Or, rather, rights are simply recognized by the members of the community and do not need to be enforced.
In the societies that most of us--probably all of us--belong to, the rights to personal security, to peaceable possession of our homes, to freedom of speech (provided we say nothing too outlandish) and to not being beat up by the police (without a pretty good reason) are simply respected and we seldom have occasion to go to court to enforce them. (And when we have do have to go to court it is usually because there is a dispute about the underlying facts, not about rights.)
But such rights depend completely on the particular circumstances of the societies of which we are members. If with the passage of time the members of society cease recognizing one of those rights, then it will just disappear--or it will have to be enforced at great expense with state sanctified violance.
If we as Buddhists can waive a magic wand, or Manjusri's terrible great sword, and have rights suddenly appear, unless those rights that we have established are accepted by those who are supposed to respect them, we are going to have to come up with some means of enforcing them.
So I guess I am discussing the problem of enforcement after all. What are the punishments that the Buddhadharma prescribes for the violation of human rights? Can we seriously claim that there are universal human rights, if we do not have the military force to enforce them?
I tend to believe that the only way we can effectively have something like world-wide human rights is if those rights are actually recognized by most people throughout the world. And that is going to be a long time coming. And in the mean time we would probably do better to talk about ``allieviating suffering'' and ``enlightened self interest'' and ``common decency'' and things like that, rather than to talk about rights.
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Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu
>A good bit of our discussion about rights has been very abstract so that we have no idea of the contents of the rights we are supposedly talking about.
>Much of the more practical discussion touches on real problems and suggests that rights need to be enforced. But, though the question has been raised, I do not think that it has been discussed: What do Buddhist teachings tell us about enforcing rights? Is punishment required? Is it permissible?
>I do not propose to discuss those questions here; rather I intend to discuss a point that I touched on in my paper. Rights of the sort that the law recognizes are, except in unusual circumstances, self-enforcing, Or, rather, rights are simply recognized by the members of the community and do not need to be enforced.
>In the societies that most of us--probably all of us--belong to, the rights to personal security, to peaceable possession of our homes, to freedom of speech (provided we say nothing too outlandish) and to not being beat up by the police (without a pretty good reason) are simply respected and we seldom have occasion to go to court to enforce them. (And when we have do have to go to court it is usually because there is a dispute about the underlying facts, not about rights.)
>But such rights depend completely on the particular circumstances of the societies of which we are members. If with the passage of time the members of society cease recognizing one of those rights, then it will just disappear--or it will have to be enforced at great expense with state sanctified violance.
>If we as Buddhists can waive a magic wand, or Manjusri's terrible great sword, and have rights suddenly appear, unless those rights that we have established are accepted by those who are supposed to respect them, we are going to have to come up with some means of enforcing them.
>So I guess I am discussing the problem of enforcement after all. What are the punishments that the Buddhadharma prescribes for the violation of human rights? Can we seriously claim that there are universal human rights, if we do not have the military force to enforce them?
>I tend to believe that the only way we can effectively have something like world-wide human rights is if those rights are actually recognized by most people throughout the world. And that is going to be a long time coming. And in the mean time we would probably do better to talk about ``allieviating suffering'' and ``enlightened self interest'' and ``common decency'' and things like that, rather than to talk about rights.
>--
>Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu
Since the major thrust of buddhadharma has been soteriological rather than ideological and legalistic, your question poses a new koan.
In a practical vein, I feel we must look to particular Asian countries on a case by case basis as part of our discovery process. To what extent, if any, has buddhadharma impacted formation of laws and their enforcement?
I'm rather surprised that one sutra has thus far been ignored - or remained unknown. In English I believe its title is The Duties of A Buddhist King. It defines the role of king as dharmaraja, including regulation or steersmanship of the social order. By extension, those guiding policies and procedures for formation of laws and their enforcement follow.
Another case worthy of investigation is that of Shotoku Taishi's seventeen article constitution, alleged founded on Buddhist principles.
I believe our discovery process should begin by learning how buddhists have so far acted in the practical sphere, and their successes and failures. Otherwise, we easily lapse into our own cultural habits of defining and legislating what's good for everybody. What I mean to say is this: did the buddhists succeed in implementing the core spirit of shila in systems of law? What can we learn from their precidence, should there be one?
Gassho,
Ken O'Neill
Peter D. Junger wrote:
<..>
>In the societies that most of us--probably all of us--belong to, the rights to personal security, to peaceable possession of our homes, to freedom of speech (provided we say nothing too outlandish) and to not being beat up by the police (without a pretty good reason) are simply respected and we seldom have occasion to go to court to enforce them. (And when we have do have to go to court it is usually because there is a dispute about the underlying facts, not about rights.)
You obviously are not black and do not live in LA. While I understand what you are trying to say, this paragraph reeks of self-satisfied smugness and complacency. I count all the daily occurances of jobs denied due to one's sex and bails denied due to the color of one's skin as violations of right to 'participate on an equal footing.' Do you think that it's merely a coincidence that the participants of this conference and most human rights advocates appear to be 'white male?' What would Rodney King think about 'indivisibility of rights?'
<..>
>I tend to believe that the only way we can effectively have something like world-wide human rights is if those rights are actually recognized by most people throughout the world. And that is going to be a long time coming. And in the mean time we would probably do better to talk about ``allieviating suffering'' and ``enlightened self interest'' and ``common decency'' and things like that, rather than to talk about rights.
Human rights would be fully satisfied once all people agree and act according to them. However, at that point, there will still be SUFFERING since that is the condition of all unenlightened sentient beings. So 'alleviating suffering' is a far more general and long term principle than human rights will ever be.
Regards,
A. Chu
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>Peter D. Junger wrote:
><..>
>>In the societies that most of us--probably all of us--belong to, the rights to personal security, to peaceable possession of our homes, to freedom of speech (provided we say nothing too outlandish) and to not being beat up by the police (without a pretty good reason) are simply respected and we seldom have occasion to go to court to enforce them. (And when we have do have to go to court it is usually because there is a dispute about the underlying facts, not about rights.)
A. Chu:
>You obviously are not black and do not live in LA.
Me:
Or Native American living in Denver, where cops beat up Indians for fun -- with virtually NO accountability.
>Junger:
>>I tend to believe that the only way we can effectively have something like world-wide human rights is if those rights are actually recognized by most people throughout the world. And that is going to be a long time coming. And in the mean time we would probably do better to talk about ``allieviating suffering'' and ``enlightened self interest'' and ``common decency'' and things like that, rather than to talk about rights.
Talking about Human rights has occasionally been an effective instrument in allieviating suffering. (As, e.g. when a Native American was killed in the police station several years ago, rights talk was helpful in alieviating some further abuses). Nevertheless, the effectiveness of rights talk was enhanced because the //ideal// is there, even when the reality is lacking. Part of our job, as concerned scholars, is to educate: popularizing the notion of rights, or a Buddhist rethinking of it, making it palatable and convincing, a workable tool.
An aside -- one reason Native Americans are so abused is that they often have no sence of empowerment at all -- no sense of having rights //vis a vis// the mainstream society -- hense many accept abuse meekly, never even thinking to protest (with the consequent bottled up rage vented against other Indians, drowned in alchol etc.). Similarly, many Asians make little effort to protest abuse in their own countries. One contribution we might make is to integrate the notion of personal empowerment with Buddhist "resignation."
-- Santipala