Myanmar Customary Law as a Standard of Morality

Transcription

1 Universities Research Journal 2011, Vol. 4. No. 7 Myanmar Customary Law as a Standard of Morality Kyaw Thura Abstract This research paper is intended to point out the standard of morality that prevails in Myanmar Buddhist Society. The standard of morality that possesses normative as well as coercive force can be found in Myanmar Buddhist Society under the name of Myanmar Customary Law. In this law normative force can be seen as moral significance whereas coercive force can be viewed as legal significance. Based on them, Myanmar Customary Law is proved as the standard of morality in the maintenance of social order. Key words: Category-Discipline, Moral Significance, Legal Significance Introduction According to Titus, the author of Ethics for today, a standard of morality can be found in four areas. They are (1) in the customs of a society, (2) in law, (3) in the conscience of the individual, (4) in the authority of a particular religion. The term standard in this context means a level of behavior that is morally and legally acceptable in society. Myanmar Buddhist Society like other societies has its own standard of morality. But to maintain a standard of morality and see that it is adhered by people in a particular society coercive force is needed along with the normative force. This requirement is fulfilled adequately in Myanmar Customary Law. It is unique in that this law encompasses many areas of moral standard. It can be found that the authority of Buddhist religion and the conscience of Myanmar people in moral thinking have played an important role in shaping the age-old customs of Myanmar society to provide a standard of morality in Myanmar Customary Law as we know it today. Myanmar Customary Law clarified, organized and systematized the ancient habitual customs and traditions of Myanmar society into categorical disciplines. It brought forth clearly the basic moral concepts of Duty, Responsibility and Right. Based on its moral and legal binding force, Assistant Lecturer, Dr., Department of Philosophy, Mawlamyine University

2 64 Universities Research Journal 2011, Vol. 4. No. 7 Myanmar Customary law stands as the standard of morality for Myanmar Buddhist Society. The problem of this research is to prove whether Myanmar Customary Law can be termed as an organized standard of morality. In this paper (1) Descriptive method, (2) Analytical method and (3) Evaluative method are applied. Customary Law as a Category-Discipline of Customs and Traditions The Myanmar standard of morality is mainly based on the living customs and traditions in the Myanmar Buddhist society which may therefore be viewed as what Gilbert Ryle termed category-habits. They are category-habits in the sense that these customs and traditions arose according to the changing needs of society. As societies grew larger and more complex human relationships also changed. For instance human relationships in a primitive society where hunting is the main livelihood would certainly be simpler than those in a more developed agricultural society which produces a surplus of goods that needs to be bartered for other necessities. If hunting was the only means of livelihood all its members would simply share the spoils as fairly as possible among them. This would be their standard of morality for group survival. Whereas in a society where goods are bartered there would arise other standards such as to ascertain for example, how much grain would be a fair exchange for a piece of clothing. When agreement has been reached on how the meat should be shared and who deserves more or less in the hunter group or as what should be the standard of exchange in the more developed society where goods are bartered, these automatically would become the customs of a particular society. This applies to other social relations as to how marriages should take place or how children should be brought up, or what they should be taught. The hunters would teach their children to hunt; the farmers would teach their offspring to till the soil and plant crops; traders would teach the art of trade and so on. So in a manner of speaking depending upon the needs of each member as well as the group, customs and traditions would be agreed upon. Certain kinds of behavior would be allowed and others would be tabooed depending on what is beneficial or not for the group as a whole, and surely there would also be punishment for those who go against these customs and traditions. But as stated above, because such dos and don ts arises as and when there are needs, in this respect they differ from law. In this sense they are category-habits.

3 Universities Research Journal 2011, Vol. 4. No Law is a well thought out body of knowledge, which organizes and systematizes those customs and traditions as specific rules to be adhered to by all, whether leader or led. No one is said to be above the law. It is a codified body of knowledge which lays down as precisely as possible what a citizen can do and what he or she cannot do, as well as the penalties for infringing the provisions of the law. So generally a law consists of rules enacted and promulgated for the common good. No citizen can claim to have violated a law through ignorance. In other words a law is a categorydiscipline which lays down the rights, duties and responsibilities of the members of a society. No doubt, laws also change with changes in time and circumstance, but these changes are amendments based on experience gained in ministering the law. This point is that habits and customs are changed haphazardly whereas amendments in law are orderly and carried out after reflecting on the pros and cons. As to the question of who is responsible for drafting and enacting laws depends on the political system, but it is an issue that does not directly concern this dissertation. But there can be no question that laws, especially customary laws are based on customs and traditions. In other words, when customs and traditions, which are category- habits, are revised and organized into a category-discipline, they come to constitute a law. Moral Significance of Myanmar Customary Law Most moral philosophers do not regard customary morality as the standard of morality but they do regard reflective morality as the standard of morality. According to the late Professor K.N. Kar, Professor and Head of the Department of Philosophy, of Yangon Arts & Science University, the native man in different societies in the undeveloped stage depends on customary morality for moral guidance. At such a stage there is no distinction between what is right and what is customary, or between the moral and the social. But with the rise of reflective morality the distinction becomes unavoidable. 1 Titus, an ethicist also points out the reflective morality as the stage of moral development in which men formulate moral judgments on the basis of a reflective evaluation of principles and a careful examination of facts in their relation to human life. From his view we can understand the growth of law as distinct from customs and conflicts 1 K. N. Kar (1959) Ethics. Calcutta: The Pooran Press. p.48.

4 66 Universities Research Journal 2011, Vol. 4. No. 7 inevitably arise in this process. Such condition stimulates the growth of reflective criticism. It is clearly seen that the old customs are too rigid to apply to the guidance of conduct under new situations. As exceptional circumstances and new difficulties arise, men are subject to reflect upon the rules underlying custom, law, and conscience in general. Reflection is thus taken into account. It is also said that the conduct of most thoughtful men is guided to a large extent by convention and custom and by legal enactment, as well as by ideas which are contributed by the intellectual atmosphere of the day. Although Myanmar Customary Law is termed as customary law, its procedures and its thinking are mainly based on reflective considerations of morality. For this law is centered on the three primary moral concepts or ethical concepts of Duty, Right and Responsibility for application in daily life. Some ethical thinkers maintain that all practical questions of morality can be classified under three heads: What ought we to do? What ought we to have? What ought we to be? It is also suggested that the first question can be answered with the aid of the moral concept Duty, the second question with the help of the moral concept Right, and the last by means of the moral concept- Responsibility. The term primary in this context is used as being of principal importance and the most basic. It is said that the uppermost requirement in social control of whatever kind requires emphasis on Duty, but it is the concept of human rights that gets people s attention when they turn from the subjective to the objective, from the personal to the more social aspects of morality. Duty must be counter-balanced with rights. So in a manner of speaking basic duties can be described as respect for rights. A classification of duties would be but a classification of rights in another form. It is said that duties like rights are relative and functional, therefore it is impossible to determine their nature and scope except in their specific contexts, for example- property and the family. The concept Responsibility can be viewed as the subjective approach of the individual to the former two moral concepts. It can be said that every one has responsibility for the betterment of their respective societies. An individual should be a responsible person for the objective good of moral life which involves Duty and vested rights at the same time. Through these moral concepts we can say that we ought to be responsible persons in order to do our duties and claim our rights.

5 Universities Research Journal 2011, Vol. 4. No Myanmar Customary Law adjusts these moral concepts according to circumstances. Myanmar Customary Law is, in fact, a case law based on these moral concepts or in other words, it is the reflective morality based on the three primary moral concepts. Legal Significance of Myanmar Customary Law Myanmar Customary Law can be approached from morally as well as legally. There is an important question - what is the legal significance of Myanmar Customary Law? According to the Cambridge Dictionary of Philosophy, philosophy of law is the study of conceptual and theoretical problems concerning the nature of law as such, or common to any legal system. 1 From the western point of view, theoretical positions in the philosophy of law tend to group into three kinds. They are (1) legal positivism, (2) natural law, and (3) legal realism. The study of Myanmar Customary Law from moral point of view made in this paper is mainly related to natural law theory. This theory is concerned with questions such as, whether a legal system is morally and politically legitimate, or whether a legal norm grants a legal right etc. It also emphasizes the relation between a legal system and justice as determinative of the normative force. It is also said that the problems in the philosophy of law can be divided into two groups. The first contains problems internal to law and legal systems as such. The second group of problems concerns the relation between law as one particular social institution in a society and the wider 2 political and moral life of that society. Myanmar Customary law is more concerned with the second group of the above problems in which (a) the authority of law: whether it has political or moral or legitimacy, (b) the nature of legal obligation: why a man should obey law, (c) the relation between legal rights and moral rights (d) the legal concept of responsibility: comparative to its relation to moral concepts: duty and responsibility, (e) the role of a legal system in the maintenance of social justice, etc. can be studied. 1 Robert Audi (1997) The Cambridge Dictionary of Philosophy. United Kingdom: Cambridge University Press. p Ibid., p. 590.

6 68 Universities Research Journal 2011, Vol. 4. No. 7 Throughout the paper, efforts have been made to prove that Myanmar Customary Law is the standard of morality because its authority is mainly based on morality. This law also answers other questions by means of the three primary moral concepts; it is a man s duty to obey morally accepted law. Based on duty there is a close relation between legal rights and moral rights as well as legal responsibility and moral responsibility. With the help of case studies, attempts can be made to prove that the Myanmar Customary Law provides the maintenance of social justice in Myanmar Buddhist society. The Role of Moral Judgments in the Myanmar Buddhist Society Concerning moral judgments, Marcus George Singer points out that they are of many different kinds, and can be about many different things. He also points out that every moral judgment involves a generalization. A moral judgment possesses the characteristic of implicit generality. 1 This means that the action that is right for one person must be right for every similar person in similar circumstances. In other words, the judgment A ought to do x implies that everyone similar to A ought to do x in similar circumstances. Generally speaking this characteristic of implicit generality is possessed by any statement that is used as an explanation, or to give evidence or a reason for something. Explanations, evidence, and reasons are governed by general rules or laws, which establish a connection between the fact to be explained or established and the fact used to explain or establish it. It is undeniable that moral judgments play an essential role in every society and Myanmar Buddhist society is no exception. They can guide people to distinguish right from wrong also good from evil. In order to make moral judgments we need such standards of morality. Myanmar Customary Law can be said to provide such a standard of morality for Myanmar Buddhist society. As mentioned earlier, every society has its own mores and norms of behavior. Moral rules and prescriptions are mainly found in religious teachings and social mores in codes of etiquette. There, as explained earlier, were handed down and revised when necessary, from generation to generation, some in written and many in unwritten form. Then the principal moral tenets universally taught by all religions such as 1 Marcus George Singer (1961) Generalization in Ethics. New York: Alfred A Knope. pp

7 Universities Research Journal 2011, Vol. 4. No forbidding the taking the life of another, stealing what belongs to another, committing sexual misconduct such as adultery, telling falsehoods to the disadvantage of another and the taking of intoxicants to the detriment of society at large, have been embodied as law. They have been enacted as law for the stability and survival of society. Some of these proscriptions are so vital that almost every society has enacted them into criminal law. But so far as civil law is concerned there are vast differences due to differences in morality, culture and traditions. To give an obvious exampleat one time slavery was customary in almost every society. It was taken for granted that Might is right and that the weak would submit to the strong. This way of thinking changed slowly over the years. Yet as recently as the 18 th century, slavery was practiced in the United State of America legally. Any person could buy another human being as a slave and own him or her out right including the right to the life and family of a slave. So not all laws are grounded in morality. We have already known the famous German philosopher Immanuel Kant ( ) said so act as to treat humanity, whether in their own person or in that of another, in every case as an end, never only as a means. Yet in America about the same period the law permitted slavery. In ancient Myanmar slavery was practiced over certain periods of its history, but at no time was it legally justified. This, in my view is because Myanmar laws, especially Myanmar Customary Law have been guided by the Buddha s teachings which regard all human beings as equal. Any differences there are, are done to their Kamma- what they themselves have done. One is a slave and another a master due to their respective Kamma. It is not the law that made a person a slave. Moreover not every one knows the difference between right and wrong, good and bad and as stated earlier, standards of morality may be found in religious teachings but not in society at large. People only know vaguely the morals, customs and traditions of their society, for these are in the words of Gilbert Ryle category-habits. It is only when clearly embodied in law do they constitute category- discipline, and it is through this law that we come to be clearly aware of the moral standards and value that operate in society. We have already shown that Myanmar Customary Law is judgemade law based on Myanmar Dhammathas and previous legal decisions also known as rulings. These decisions of judges are no doubt legal judgments. But this law helps us to study and put into practice moral

8 70 Universities Research Journal 2011, Vol. 4. No. 7 judgments. In legal procedures one of the tasks of the judge is to explain the public why such and such judgment was passed. This can be regarded as legal education for the public. Focusing on the duties and rights we can learn the object of moral judgments from Myanmar Customary Law. This law recognizes the respective duties of the family members and provides the moral judgments connected with the certain rights of the family members. Conclusion In Myanmar Customary Law we can find the essence of reflective morality which is the ability and the willingness to weigh all relevant facts in moral conduct and to base choices upon the results of such reflection. Reflective morality consists not only in forming judgments but in setting forth the reasons for one s moral judgments. Through the study of some leading cases of this law Myanmar Buddhist people can learn how to make moral judgments in their daily life when faced with moral and social conflict. Furthermore, by abiding by the law, we come to appreciate and abide by the morality of Myanmar Buddhist society. Being as the provider of moral judgments based on three primary moral concepts this law can be called the standard of morality. Although Myanmar Customary Law as law is theoretical sound but it is important to note that it is administered by human judge who are fallible. If a judge is biased or ignorant of the moral implications he may pass wrong judgments. Therefore the judges should know moral and ethical aspects of this law and the public in the Myanmar Buddhist society should also understand the primary moral concepts of this law and apply them in their daily life. And it can be said that the ultimate goal of Myanmar Customary Law is to protect those who live in accordance with the moral values and teachings of Buddhism. If members of the Myanmar Buddhist family understand and follow the primary moral concepts- Duty, Right and Responsibility" they need not to go to Court for the settlement of family affairs. As it is a living law of society, it will always need to adjustment and refinement according to changing situations and customs of Myanmar. In this paper, I have tried to prove that Myanmar Customary Law provides a standard of morality for the betterment of Myanmar Buddhist society. If I have succeeded in providing adequate evidence Myanmar Customary Law that is a category-discipline that provides a sound standard

9 Universities Research Journal 2011, Vol. 4. No of morality I hope to have fulfilled two of the four social objectives of Myanmar (1) to uplift the national spirit and the morality of people and (2) to preserve national identity and cultural heritage. Concerning Myanmar Customary Law, the late Rector of Yangon University, Dr. Htin Aung gave concluding remarks in his paper entitled, Customary Law of Burma as follows; Burma has borrowed freely from the great cultures of her neighboring countries, but at the same time, she has been able to preserve her own national character and her own institutions. The Burmese people have evolved a system of law as fair and just as the Common Law of England which lawyers and jurists all over the world to admire and respect. 1 Based on the primary moral concepts Duty, Right and Responsibility Myanmar Customary Law can be defined as the cultural heritage of the Myanmar Buddhist people which serves as the standard of morality for the Myanmar Buddhist family and stands as a common ground for other religious practices. In conclusion, this law can be regarded as the chief guardian of Myanmar s national identity. References Audi, Robert (1997). The Cambridge Dictionary of Philosophy. United Kingdom: Cambridge University Press. Kar, K.N. (1959). Ethics. Calcutta: The Pooran Press. Maung Maung (1963). Law and Custom in Burma and the Burmese Family. Netherlands: The Hague, Martinus. Singer, M.G (1961). Generalization in Ethics. New York: Alfred A Knope. Titus, Harold H (1957). Ethics for Today. New Delhi : Eurasia Publishing House (Pvt) Ltd. (2007) Legal Traditions of Southeast Asia, Yangon: SEAMEO Regional Centre for History and Tradition. 1 (2007) Legal Traditions of Southeast Asia, Yangon: SEAMEO Regional Centre for History and Tradition. p. 146.