Reincarnation, policy and the law

When I read about the “first American law to address the process of Buddhist reincarnation” (see below, from The Economist), I had to know more: does the US state really believe in reincarnation? This is what I found out.



Although the Tibet Policy and Support Act of 2020 (TPSA) may be the first US law to address reincarnation, it is not the first time that American lawmakers have done so: as the TPSA itself recognises, “On June 8, 2015, the United States House of Representatives unanimously approved House Resolution 337 which calls on the United States Government to “underscore that government interference in the Tibetan reincarnation process is a violation of the internationally recognized right to religious freedom”.

One might, I think, reasonably infer that a government can only interfere in something that actually exists, which entails that the “Tibetan reincarnation process” is a real thing. But that is just a Resolution of one House of Congress; what of US law?

Sure enough, TPSA has plenty to say about reincarnation. For example, it amends Section 620(b) of 22 U.S.C. 6901 note to add the words “, including with respect to the reincarnation system of Tibetan Buddhism” after “it is the sense of Congress that representatives of the United States Government […] should call for and otherwise promote the cessation of all interference by the Government of the People’s Republic of China or the Communist Party in the religious affairs of the Tibetan people”.

It also includes a section entitled “STATEMENT OF POLICY REGARDING THE SUCCESSION OR REINCARNATION OF THE DALAI LAMA”, which notes that Congress has found various matters, including the sort of thing quoted below, before setting out Congress’ policy.

The TPSA’s statement of US policy is a little more cagey on the subject: it starts out by referring to the “selection, education and veneration” of Buddhist religious leaders. Although it later goes on to refer to the “process of recognizing a successor or reincarnation of the 14th Dalai Lama and any future Dalai Lamas”, one might read that as granting the existence of a process of recognising reincarnation rather than believing in reincarnation itself.

But what of the first bit of TPSA that I mentioned, i.e. the desired cessation of all interference by the Government of the People’s Republic of China or the Communist Party in “the reincarnation system of Tibetan Buddhism”? I’m not a US-qualified lawyer so all I can offer is speculation, but my feeling is that choice of the word “system”, rather than (as in the Resolution) “process”, is intended to indicate a certain agnosticism as to what is ‘really’ going on.

The next question that struck me is: what does English law have to say about reincarnation?

My search found no primary or secondary legislation mentioning the topic. (The word “re-incarnation” does appear in the explanatory notes to a Scottish Act, namely the Defamation and Malicious Publication (Scotland) Act 2021. I was excited for a moment when I discovered this but, as is the way with devolution, the momentary excitement was quickly replaced with disappointment: the context here is the “re-incarnation” of common law wrongs in statutory form, which is much less exciting than choosing a new Dalai Lama.) Indeed, neither the Dalai nor any of the other Lamas appear to have been the subject of legislation in this country.

But one of the joys of our system of law is that the laws passed by Parliament are not the end of the matter. What of the common law? What of caselaw?

Here I had a little more luck. The first case I found was not about Buddhist reincarnation at all. Manchester University NHS Foundation Trust v Fixsler [2021] EWHC 1426 (Fam) is one of those terribly sad cases about withdrawing life support from a brain-damaged child. The family in question are Chassidic Practising Jews and the Court heard rabbinical evidence. At paragraph 52 of the judgment, the judge noted that Rabbi Goldberg had explained that the withdrawal of treatment would be a grave sin and that “the spiritual consequence of this is that there is a risk of reincarnation in this world, rather than passing to Heaven: "The soul can come down into another body, which generally happens if the previous soul didn't fulfil a full role and has things still to do to perfect before they can go to heaven"”.

As is sometimes the way with these sad cases (often? how often? I don’t know), the judge went against the parents’ wishes and beliefs. Secular legal system 1; reincarnation nil, I'm afraid.

There are also some less tragic mentions of “reincarnation” in the law reports. For example:

In the end, however, the Tribunal found the Applicant to be a truthful witness, so I would suggest that you take Ozzie’s words with a liberal helping of salt.

Strictly orthodox Buddhist reincarnation, by contrast, appears to have escaped legal notice. The only result for the words “Buddhism” and “reincarnation” that I can find is Fixsler itself, in which the judge mentions Buddhism in passing (in the context of explaining that he cares not for religious law but only for the law of the land). “Buddhist” and “reincarnation” returned no results at all.

I started above with a statement of policy by the US House of Representatives. What of British policy?

I cannot leave the subject of Buddhist reincarnation without telling you (or perhaps, I hope, reminding you) that the British Government was represented at the enthronement of the current Dalai Lama in 1940 by Sir Basil Gould, CMG CIE (1883–1956), the British Political Officer in Sikkim from 1935 to 1945. Gould wrote a rather enthralled and sympathetic account of the whole affair. Perhaps the best way in to it is the account of the changes made to Gould’s account when it was translated into Tibetan here, an article which is interesting in its own right and also gives you a good flavour of Gould's words. You can even see some of Gould’s films in the BFI archive (e.g. here, on YouTube). British policy has of course changed a good deal since 1940. But, if you read Gould and the Economist, you may well spot some continuities too. But, I’m afraid, there is little to tell us whether the Government of His Majesty, Defender of Faith, would echo the words of Gould were one of its representatives to attend the enthronement of a future Dalai Lama:

“Probably there is no ceremony in the Western world which is at all nearly equivalent, but there are affinities to many ceremonies which we know. There are elements of the assertion by all of their duty towards their God-King, and of the God-King’s duty towards his people; of a long drawn out “God Save The King. Long Live The King”; of mystical union and of mutual society help and comfort ; and most certainly of communion and of joy and thanks-giving. The scene carried one back also to the great Durbar at Delhi, when King George and Queen Mary sat to receive the homage of those who were already their loyal subjects and to uplift them by their presence. But it was inevitable that thought should travel also to another Child, already God incarnate when, lying in a manger, He was offered gifts of gold and frankincense and myrrh, or when he first visited the Temple which was already His.”