Hostname: page-component-78c5997874-j824f Total loading time: 0 Render date: 2024-11-15T07:30:32.760Z Has data issue: false hasContentIssue false
  • English
  • Français

Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar

Published online by Cambridge University Press:  26 February 2016

Melissa CROUCH
Melissa CROUCH*
Affiliation:
Law Faculty, University of New South Wales
Get access Rights & Permissions [Opens in a new window]

Abstract

Myanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of Burmese Buddhist law by lawyers, judges, and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist law; a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems, but also potentially operating as a new source of revenge.

Keywords

BurmaMyanmarBuddhist lawcourtsIslamwomenmarriagepolygynydivorcepersonal law
Type
Buddhism and Law
Information
Asian Journal of Law and Society , Volume 3 , Issue 1 , May 2016 , pp. 85 - 104
Copyright
© Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Lecturer, Law Faculty, University of New South Wales. I would like to thank Professor Daw Khin Phone Myint Kyi of the University of Yangon for our discussions on Myanmar Customary Law. I would also like to thank Tom Ginsburg and Benjamin Schonthal as editors, Nyi Nyi Kyaw, and the anonymous referees for their very useful comments on a previous draft. All errors remain my own. Correspondence to Melissa Crouch, The Law Building, UNSW, Sydney NSW 2052, Australia. E-mail address: [email protected].

References

Aung Kyaw Min (2015) “First Monogamy Law Charge Hits Muslim Masonry Worker,” The Myanmar Times, 18 September.Google Scholar
Burma Legislature, Proceedings of the First Senate (1939) Vol. 5, sixth session, fifth meeting, Wednesday 6 September, Rangoon: Government Printing and Stationery.Google Scholar
Cheesman, Nick (2015) Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order, Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Crouch, Melissa (2014) “The Layers of Legal Development in Myanmar,” in M. Crouch & T. Lindsey, eds., Law, Society and Transition in Myanmar, Oxford: Hart Publishing, 33–58.Google Scholar
Crouch, Melissa (2015) “Constructing Religion by Law in Myanmar.” 13 Review of Faith & International Affairs (Special Issue on Religion in Myanmar) 1–11.Google Scholar
Crouch, Melissa (2016) “Personal Law & Colonial Legacy,” in M. Crouch, ed., Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging, India: Oxford University Press, 69–97.Google Scholar
Crouch, Melissa (forthcoming) “The Everyday Emergency: Between the Constitution and the Criminal Procedure Code,” in A. Harding, ed., Constitutional and Legal Change in Myanmar, Oxford: Hart Publishing.Google Scholar
Maung, E (1951) The Expansion of Burmese Law: Being a Series of Lectures Delivered by The Hon’ble Justice E Maung, University of Rangoon.Google Scholar
Maung, E (1970) Burmese Buddhist Law, Rangoon: Sapaylawka Printing Works.Google Scholar
Forchammer, Em (1885) The Jardine Prize (an Essay on the Sources and Development of Burmese Law), Rangoon, Burma: Government Printing Press.Google Scholar
Gaung, U. (1908–09) A Digest of the Burmese Buddhist Law Containing Inheritance and Marriage: Being a Collection of Texts from Thirty-Six Dhammathats, Vols. I and II, Rangoon, Burma: Government Printing Press.Google Scholar
Harriden, Jessica (2012) The Authority of Influence: Women and Power in Burmese History, Copenhagen, Denmark: NIAS Press.Google Scholar
Hla Aung, U. (1958) “Sino-Burmese Marriages and Conflict of Laws.” 1 The Burma Law Institute Journal 25–55.Google Scholar
Huxley, Andrew (1988–89) “Burma: It Works, but Is It Law?” 27 Journal of Family Law 23–34.Google Scholar
Huxley, Andrew (1995) “Buddhism and Law: The View from Mandalay.” 18 Journal of the International Association of Buddhist Scholars 47–95.Google Scholar
Huxley, Andrew (1996a) “The Legal Profession of Burma 1200–1880.” 58 Recueils de la Société Jean Bodin 155–187.Google Scholar
Huxley, Andrew (1996b) “Thai, Mon & Burmese Dhammats: Who Influenced Whom?,” in A. Huxley, ed., Thai Law: Buddhist Law Essays on the Legal History of Thailand, Laos and Burma, Bangkok: White Orchid Press Bangkok, 81–132.Google Scholar
Huxley, Andrew (1997) “The Importance of the Dhammathats in Burmese Law and Culture.” 1 Journal of Burma Studies 1–17.Google Scholar
Huxley, Andrew (1998) “The Last Fifty Years of Burmese Law: E Maung & Maung Maung.” LawAsia 9–20.Google Scholar
Huxley, Andrew (2001a) “Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law.” 143 Law and Social Inquiry 113–143.Google Scholar
Huxley, Andrew (2001b) “Pre-Colonial Burmese Law: Conical Hat and Shoulder Bag,” 25 IIAS Newsletter Online, online <http://www.iias.nl/iiasn> (last accessed 16 January 2016).+(last+accessed+16+January+2016).>Google Scholar
Huxley, Andrew (2004) “Gender and Power in Two 18th Century Burmese Dhammasats.” 47 Tenggara, Journal of Southeast Asian Literature 49–67.Google Scholar
Huxley, Andrew (2008) “Is Burmese Law Burmese? John Jardine, Em Forchhammer and Legal Orientalism.” 10 Australian Journal of Asian Law 104–209.Google Scholar
Huxley, Andrew (2014) “Is Burmese Law Buddhist? Transition and Tradition,” in M. Crouch & T. Lindsey, eds., Law, Society and Transition in Myanmar, Oxford: Hart Publishing, 59–75.Google Scholar
Ikeya, Chie (2006) “The ‘Traditional’ High Status of Women in Burma.” 10 Journal of Burma Studies 51–77.Google Scholar
Ikeya, Chie (2011) Refiguring Women, Colonialism, and Modernity in Burma, Honolulu: University of Hawai’i Press.Google Scholar
Ikeya, Chie (2013) “Colonial Intimacies in Comparative Perspective: Intermarriage, Law, and Cultural Difference in British Burma.” 14 Journal of Colonialism and Colonial History.Google Scholar
Jardine, John (1882–83) Notes on Buddhist Law, Parts I–VIII, Rangoon, Burma: Government Printing Press.Google Scholar
Khin Phone Myint Kyi (2006) “Inheritance under Myanmar Customary Law,” PhD dissertation, Department of Law, University of Yangon, Myanmar.Google Scholar
Lahiri, S.C. (1957) Principles of Modern Burmese Buddhist Law, Calcutta: Eastern Law House.Google Scholar
Lammerts, D. Christian (2010) “Buddhism and Written Law: Dhammasattha Manuscripts and Texts in Premodern Burma,” PhD dissertation, Cornell University.Google Scholar
Lammerts, D. Christian (2013) “Narratives of Buddhist Legislation: Textual Authority and Legal Heterodoxy in 17th–19th Century Burma.” 44 Journal of Southeast Asian Studies 118–144.Google Scholar
Law Commission of India (2009) Preventing Bigamy via Conversion to Islam: A Proposal for Giving Statutory Effect to Supreme Court Rulings, Report No. 227, August 2009, New Delhi: Government of India.Google Scholar
Leach, E.R. (1965) Political Systems of Highlands Burma, London: Luzac & Co.Google Scholar
Loos, Tamara (2006) Subject Siam: Family, Law, and Colonial Modernity in Thailand, Chiang Mai, Thailand: Silkworm Books.Google Scholar
Masuzawa, Tomoko (2005) The Invention of World Religions or, How European Universalism Was Preserved in the Language of Pluralism, Chicago: University of Chicago Press.Google Scholar
Maung Maung (1963) Law and Custom in Burma and the Burmese Family, The Hague: Martinus Nijhoff.Google Scholar
May, Oung, & Maung, E (1926) Leading Cases on Buddhist Law, Rangoon: British Burma Press.Google Scholar
May Oung, U. (1919) Selection of Leading Cases on Buddhist Law, Parts I–III, Rangoon: British Burma Press.Google Scholar
Mi Mi Khaing (1984) The World of Burmese Women, London: Zed Books.Google Scholar
Mootham, O.H. (1939) Burmese Buddhist Law, Oxford: Oxford University Press.Google Scholar
Mya Sein, Daw (1958) “The Women of Burma: A Tradition of Hardwork and Independence,” The Atlantic, February.Google Scholar
Mya Sein, Daw (1962) Myanma bokdabatha taya ubade [Principles of Burmese Buddhist Law], n.p.Google Scholar
Mya Sein, U. (2014) Myanma Dale-tone-tan Ubade [Myanmar Customary Law], December, first published 1955, 12th edn, Yangon: n.p.Google Scholar
Myint Zan (1999) “Of Consummation, Matrimonial Promises, Fault and Parallel Wives.” 14 Columbia Journal of Asian Law 155–176.Google Scholar
Newbigin, Eleanor (2013) The Hindu Family and the Emergence of Modern India: Law, Citizenship and Community, Cambridge: Cambridge University Press.Google Scholar
Nilar Soe (2007) “Matrimonial Rights of Buddhist Women in Myanmar,” PhD dissertation, Department of Law, University of Yangon, Myanmar.Google Scholar
Nu, U. (1975) Saturday’s Son, New Haven: Yale University Press.Google Scholar
Nyi Nyi Kyaw (2016) “Islamophobia in Buddhist Myanmar: The 969 Movement and Anti-Muslim Violence,” in M. Crouch ed., Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging, Oxford University Press, 183–210.CrossRefGoogle Scholar
Okudaira, Ryuji (1986) “The Burmese Dhammathat,” in M.B. Hooker, ed., Laws of South-East Asia, Vol. 1: The Pre-Modern Texts, Singapore: Butterworths & Co, 23–142.Google Scholar
Okudaira, Ryuji (2000) “A Comparative Study on Two Different Versions of the Manugye Dhammathat: A Leading Law Book in Eighteenth-Century Burma (Myanmar).” 59 Journal of Asian and African Studies 179–195.Google Scholar
Okudaira, Ryuji (2003) “How Judges Used Dhammathats (Law Books) in Their Courts in 18th–19th Century Myanmar (Burma) with Special Reference to Yezajyo Hkondaw Hpyahton.” 66 Journal of Asian and African Studies 319–329.Google Scholar
Reynolds, Craig (2006) “A Thai Buddhist Defence of Polygyny,” in C. Reynolds, ed., Seditious Histories: Contesting Thai and Southeast Asian Pasts, Singapore: NUS Press, 185–213.Google Scholar
Spiro, Melford (1977) Kinship and Marriage in Burma: A Cultural and Psychodynamic Analysis, Berkeley: University of California Press.Google Scholar
Spiro, Melford (1982) Buddhism and Society: A Great Tradition and Its Burmese Vicissitudes, Berkeley: University of California Press.Google Scholar
Tha Gywe, U. (1910–11) Treatise on Buddhist Law, Vols. I and II, Mandalay: Mandalay Press.Google Scholar
Tha Gywe, U. (1919–20) Conflict of Authority in Buddhist Law, Vols. I and II, Mandalay: Mandalay Press.Google Scholar
Than, Tharaphi (2011) “Understanding Prostitutes and Prostitution in Colonial Burma.” 19 Southeast Asian Research 537–566.Google Scholar
Than, Tharaphi (2013) Women in Modern Burma, New York: Routledge.Google Scholar
Toe Wai Aung (2015) “Second Monogamy Case Filed,” The Myanmar Times, 23 September.Google Scholar
Turner, Alicia (2014) Saving Buddhism: The Impermanence of Religion in Colonial Burma, Honolulu: University of Hawaii Press.Google Scholar
Yee Yee Cho (2007) “Marriage under Myanmar Customary Law,” PhD dissertation, Department of Law, University of Yangon, Myanmar.Google Scholar