Former teacher at Boulder's Shambhala accused of sexually as

The impulse to believe the absurd when presented with the unknowable is called religion. Whether this is wise or unwise is the domain of doctrine. Once you understand someone's doctrine, you understand their rationale for believing the absurd. At that point, it may no longer seem absurd. You can get to both sides of this conondrum from here.

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Part 1 of 2

Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy
Canadian Journal of Law and Jurisprudence Vol. XXVII, No. 1 (January 2014)
by Liav Orgad

Introduction

Margaret Roper: God more regards the thoughts of the heart than the words of the mouth. Or so you’ve always told me.

Thomas More: Yes.

Roper: Then say the words of the oath and in your heart think otherwise.

More: When a man takes an oath, Meg, he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again.

-- Robert Bolt, A Man for All Seasons (New York: Vintage Books, 1990) at 140


The Article explores one manifestation of loyalty in liberal philosophy and political practice—loyalty oaths for immigrants. In many democratic states, immigrants seeking to become citizens must take a loyalty oath. Although the content and form of the oath varies, its common feature is that it is mandatory—a prerequisite for citizenship.

Loyalty oaths are particularly interesting because they are a unique platform through which to examine the interrelationship between constitutional law and immigration law. Oaths serve as a means for an immigrant to subscribe to the tenets of the community. However, before imposing an oath on newcomers, the community must define its tenets. The substance of the oath we demand of them is about us. Immigration policy, thus, echoes constitutional identity by mirroring not only the qualities that we value in others but also by reflecting what defines us.

At first glance, citizenship oaths do not raise serious problems of political philosophy. After all, an oath only entails reciting a few words in a public ceremony.

However, a closer review reveals forceful reasons against the use of loyalty oaths in liberal societies. First, the duty of loyalty, imposed on naturalized persons, seeks to influence one’s character traits, emotional attitudes, and internal beliefs; it requires more than just the liberal duty of conformity to the law. Second, the obligation to take a loyalty oath in order to secure citizenship appears to limit individual liberties of the oath-takers, infringe upon their freedom of conscience, and in fact discriminate against naturalized citizens as compared to natural-born citizens, who never must take the oath. In spite of these strong claims against loyalty oaths, the institution of the oath remains an understudied topic.

The Article argues that the use of loyalty oaths is a symptom of a genuine problem in the liberal theory. In some forms, liberalism means to obey the law and otherwise be left alone. But stronger forms of liberalism further require belief in liberal values and institutions. The justification for requiring it is grounded on liberalism itself—its being essential for upholding individual liberties.1 The challenge has always been how to preserve liberal values and institutions without crossing the liberal line into ‘indoctrination.’ However, when the benchmark of loyalty becomes belief rather than behavior, when it is faith rather than action, it gets close to the point of being illiberal, even if its goal is to keep liberalism alive. The more loyalty liberal democracies demand, the less liberal they become. When liberal democracies require “loyalty to the law” (allegiance)—and not just “conformity with the law” (obedience)—they challenge liberalism itself. The Article concludes that loyalty oaths yield high costs but have low benefits, and suggests abandoning them as a legal institution.

The Article proceeds as follows: Part I reveals a global trend in comparative immigration law—the growing appeal to loyalty oaths. Part II shows that modern law still embraces a duty of allegiance in addition to the general duty of obedience and explores the differences between them. Part III traces the function of loyalty oaths and demonstrates that, regardless of the oath’s historical purpose—being a form of social contract, political test, and nation-building symbol— its modern purpose is vague. Part IV presents three liberal problems raised by loyalty oaths: 1) they infringe upon the rule of law; 2) they violate freedom of conscience; and 3) they discriminate against naturalized citizens as compared to natural-born citizens. Part V concludes.

I. The Revival of Loyalty Oaths

In formal terms, a loyalty oath is a statement made by an immigrant acknowledging a duty of loyalty before becoming a citizen. It is often called an Oath of Allegiance, although other titles exist. Technically, stating “I swear” (pledge, affirm, vow, promise, etc.) constitutes taking an oath. In substantive terms, the immigrant is not required to pronounce the words “I swear” but, instead, to acknowledge a substantive duty of loyalty by other means, such as by signing certain immigration documents specifying a duty of loyalty.2

An analysis of loyalty oaths in different democratic states reveals the following. First, oaths are a popular legal institution. Second, they are the final step in the naturalization process. Democratic states do not usually demand a formal oath as a prerequisite for entry. Third, oaths ordinarily apply to all types of immigrants, including spouses of citizens and refugees. Fourth, the object of loyalty is varied—it can include the Queen or other sovereign, the Constitution, democratic principles, the Republic, human rights, and national culture. Finally, the essence of loyalty is diverse. In Austria, for example, the immigrant has three obligations: to “be a loyal citizen of the Republic,” to “conscientiously abide by the laws,” and to “avoid everything that might harm the interests and the reputation of the Austrian Republic.”3 In Ireland, the immigrant must declare “fidelity to the [Irish] Nation” as well as “loyalty to the State.”4 In France, new regulations (2012) demand every naturalized French to adhere to “the principles, values, and symbols of French democracy” and be loyal to “French values.”5 In Australia, the immigrant must take an interesting oath providing that: “From this time forward, I pledge my loyalty to Australia and its people; whose democratic beliefs I share; whose rights and liberties I respect; and whose laws I will uphold and obey.”6

In Britain, there have been two loyalty oaths. The traditional Oath of Allegiance requires every immigrant to “be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second, Her Heirs and Successors.”7 From 2004, every immigrant must also pledge loyalty to the United Kingdom: “I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfill my duties and obligations as a British citizen.”8 Recently, as part of the debate on the meaning of Britishness, a government committee headed by Lord Goldsmith suggested adopting a third oath, an American-style Pledge of Allegiance in public schools. The committee had found that there had been a diminution in British identity. To foster social unity, it turned back to the old means of the oath to the Queen.9 In Canada, new citizens should swear allegiance to Her Majesty Queen Elizabeth II in order to get Canadian citizenship. The oath declares:10

I, [name], do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.


The Canadian oath demands more than simply being an obedient citizen. It requires a person to be “faithful and bear true allegiance” to the Queen, the Head of the Church of England, and extends to her heirs and successors.

In Israel, the present oath of naturalization is minimal—non-Jewish immigrants should swear loyalty to the State of Israel.11 However, a new bill, suggested by the Israeli government, proposes that every immigrant shall swear loyalty to Israel as a “Jewish and democratic State.”12 Immigrants are not asked to accept the existence of a Jewish state but, instead, to swear loyalty to a Jewish state.

In the United States, the oath dates back to 1790. In one of its first acts, the Naturalization Act of 1790, Congress required every newcomer to the New World to take an oath of allegiance “to support the Constitution of the United States.”13 The Naturalization Act of 1795 added a pledge to “defend the Constitution and laws of the United States against all enemies … [and] bear true faith and allegiance to the same.”14 The oath has essentially remained the same ever since.15 In addition, the American oath requires not only loyalty to the U.S. Constitution but also to “entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty.”16 Demanding not just loyalty to the U.S. Constitution, but sole loyalty, presents a case of a “jealous” or “greedy” nation.17

The importance of loyalty oaths is also recognized in international law. The International Court of Justice held that “international law leaves it to each State to lay down the rules governing the grant of its nationality.”18 It further ruled that the process of naturalization involves both the “breaking of [the old] bond of allegiance” and the “establishment of a new bond of allegiance.”19 In fact, the Convention on the Reduction of Statelessness provides that states can refuse to grant citizenship and even deprive a person of his or her citizenship—including those situations in which the person would stay stateless—in cases of disloyalty to the state or “given definite evidence of his determination to repudiate his allegiance to the Contracting State,” or whenever the person has taken an oath of allegiance to another state.20

While countries place great importance on loyalty oaths, there is no underlying theory directing them as a group. Oaths are a grab bag: their diverse objectives, content, and form present a wide range of issues. However, there is a common denominator among them—the fact that nations require loyalty to an object implies that a difference exists between allegiance to the law and obedience to the law. Both citizens and noncitizens must obey the law, yet only citizens owe an additional duty of allegiance. What is the added value of allegiance upon obedience? It is essential to discuss the duty of allegiance before exploring the duty to take an oath of allegiance, because oaths presuppose the existence of a duty of allegiance.

II. Allegiance and Obedience

A theory of allegiance was first fully articulated in the Calvin’s Case by Chief Justice Edward Coke.21 Justice Coke did not elaborate on the distinction between allegiance and obedience, yet a glimpse of medieval England provides a better understanding of this distinction.

Common law demanded allegiance to the King and obedience to acts of Parliament. Allegiance was a natural duty “due from all men born within the King’s dominions immediately upon their birth.”22 The duty of allegiance was absolute, perpetual, and indelible.23 The duty of obedience, conversely, was not natural, but legal, and thus could be relinquished.
Another difference is related to the added value of allegiance. Allegiance was “a true and faithful obedience of the subject due to his Sovereign.”24 Allegiance thus was about faithfulness and devotion to an object. A subject had to legally obey the law of Parliament, yet show faithful devotion to the order of the King—for right and wrong, for better and for worse. Allegiance was more than blind obedience to all laws at all times. It implied a positive attitude, an affection or attachment toward the object of loyalty (the law, the Queen, the King). Further, it required the “subordination of one’s own private interest in favour of giving what is due, and perhaps also the exclusion of other legitimate interests.”25

The American colonies broke away from three fundamental premises of allegiance. First, the colonists showed that loyalty to the King was intertwined with recognizing the Parliament’s authority.26 The King and the Parliament were separate entities; yet disavowing the duty to one meant breaching the duty to the other. One cannot be loyal to the King when openly opposing the laws of Parliament (or vice versa). And yet, while the American Revolution blurred the distinction between allegiance and obedience,27 old theories of loyalty still exist. In Canada, for instance, naturalized citizens must pledge to obey the law and be loyal to Queen Elizabeth II. This formula creates a potential conflict between allegiance and obedience. If, albeit an extreme example, a war breaks out between Canada and Britain, a Canadian citizen must obey Canadian law yet be loyal to Queen Elizabeth II, who is nominally the Commander-in-Chief of the British Army.

Second, the American Revolution put an end to the doctrine of allegiance to the King in his personal capacity and replaced it with a theory of allegiance to a legal entity. The English concept of subjecthood was based on feudal ties between the King and his subjects. The modern notion of citizenship, however, presumes legal rather than natural ties between a citizen and a state. Allegiance is not owed to a natural person but to a corporate personhood representing the eternal interests of the Crown.28 Thus, one can be loyal to the legal entity of the King-in-Parliament even if one opposes the King’s order. The American rebels appealed to allegiance to the eternal interests of the Crown, although they opposed the rule of King George III. The United States recognizes this idea in its preamble by according sovereignty to ‘the People,’ a legal entity that exists regardless of a specific time/place.29

Finally, the American Revolution grounded allegiance in contract law theory rather than in natural law. In common law, every subject owed allegiance from the moment he was born. Allegiance was a matter of natural law and not a voluntary act of consent. William Blackstone noted in this direction that “natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth”; it was “a debt of gratitude” for being lucky enough to be born under the King’s protection.30 During the American Revolution, allegiance became a matter of consent. Allegiance turned into a contractual obligation that is defined by law and terminated by law.31 The rapid diffusion of Lockean theories of social contract and consent challenged Coke’s and Blackstone’s old ideas of indelible allegiance. The theory of perpetual allegiance gradually lost coherence and integrity. This development was dramatic since if the law, rather than nature, creates the duty of allegiance (and constitutes its source), then, as noted by John Locke, “[a]llegiance [is] nothing but an Obedience according to law.”32 Allegiance is due because it is required by law.

Contractual allegiance implied another conclusion—that allegiance is conditional. This idea was recognized long before. The pledge of allegiance taken by subjects of the King of Aragon signified it: “We, who are as good as you, swear to you, who are not better than we, to accept you as our Kind and sovereign lord, provided that you observe all our liberties and laws; but if not, then not.”33 In Ancient Greece, a mutual oath was the foundation of the Spartan monarchy. Even the King had to take an oath of allegiance as an expression of a mutual bond. The King swore: “I will exercise my kingship in accordance with established laws of the state;” in return, the people of Sparta swore: “so long he [the king] shall abide by his oath we will not suffer his kingship to be shaken.”34 The American rebels adopted this concept. They argued that allegiance and protection are the quid pro quo of a mutual contract, each given in return for the other. If the King does not protect his people, the people are not bound by allegiance. In fact, the breach of the bond of loyalty is what the American Revolution was all about. The American colonies did not consider the revolution to be treasonous since they believed King George III was the first side to break the mutual contract of loyalty.35

The modern concept of allegiance emerged from English roots. During the American Revolution, allegiance was gradually transformed from a natural duty into a legal duty, owed to a legal entity, rather than to a living person, and based on a mutual, rather than one-sided relationship. Nevertheless, allegiance is still different from obedience in at least two senses. It is broader, because it requires devotion to the best interests of the community even when there is no legal duty of obedience. A person is loyal when he or she unquestionably follows specific patterns of behavior.36 In addition, allegiance is narrower than obedience because allegiance calls for identification. It seeks to assure not only compliance with the law, but also commitment to the law. “Faith only, and inward sincerity,” John Locke observed long ago, “are the things that procure acceptance.”37 A person is loyal when he or she faithfully feels affection to the object of loyalty.38 “Loyalty,” as once held by the U.S. Supreme Court, “is a matter of mind and of heart.”39

To sum up, historically, allegiance and obedience were substantially different. This difference was seemingly blurred by the American Revolution. Modern law, however, sustains some aspects of the old difference, thereby raising the question about the essence of loyalty and its added value. In contemporary immigration law, it seems that the duty of loyalty has three additional burdens related to an immigrant’s character traits (good citizens), emotional attitudes (patriotic citizens), and level of conformity (devoted citizens).40 In order to maintain these added burdens, liberal democracies should suggest a theory justifying the duty of loyalty.

For the sake of this discussion, I assume that the concept of loyalty is justified and that some duties of loyalty can be justified.41 I further assume that the duty of loyalty calls for some level of compliance, either because it is a legitimate duty or because it is based upon other justifications (fairness, consent, friendship, gratitude, etc.). Given these arguable but plausible propositions, I explore the wisdom of one manifestation of loyalty—the oath—and its possible purposes.

III. The Function of Loyalty Oaths

This part explores different purposes of loyalty oaths by tracing their history: First, ancient oaths, which demonstrate the function of the oath as a contract; then, reformation oaths, which present the oath as a political test; and finally, American oaths, which illustrate the oath as a nation-building symbol. On the whole, this part shows that the oath holds no solid purpose and, even if it has a purpose, there is no evidence to indicate that it is rationally served by the oath. The oath, hence, has little benefit.

A. Oaths as a Contract

Oaths can be viewed as the most ancient form of contract. Their origin is rooted in an era in which people believed oaths possessed a magical power: mere words could kill or heal people. The oath’s power relied on faith in its magic and naturally implied a belief in God or other supreme being. Oaths acted as self-inflicted curses used to secure that a promise is fulfilled.42 They included a ‘curse clause’ to indicate the expected harm for violating the contract, and a ‘blessing clause’ to mark the expected gain for its fulfillment.43 Legal sanction was not essential since a breach of an oath was tantamount to breaking a contract with God; ‘Gods became the tools whereby the oath caused to operate.’44 The expression ‘so help me God’ is the invocation of God as a partner to the oath.45 The contractual power of the oath, as Daniel Webster observed, “is found on a degree of consciousness that there is a Power above us that will reward our virtues and punish our vices.”46

In Ancient Greece, the oath gained its political nature. Oaths acted as a contract between men and society.
The Ephebic Oath, required from every man before entering into College, provided a basis for the social contract in Athens and had to be taken by every Athenian as a prerequisite for having the status of a citizen.47 The shift in the function of the oath—from a religious appeal to the Supreme Being to a social contract—can explain why the oath is required. Membership in a community requires agreement with some rules. While existing members presumably agree to these rules by tacit consent—implied by continued residence in the host country or maintaining citizenship,48 a doubtful proposition49— new members are required to express explicit consent to the rules of a community. Oaths are thus an expression of a contractual loyalty. Here, too, the oath is founded on religious roots—acquiring new citizenship is tantamount to converting to a new religion. New members must explicitly consent to the rules.

The contractual nature of an oath may also be an act of specification of a legal obligation. At some law schools, students must sign a contract before taking an exam stating their awareness of the rules of ethics and promising to obey them during the exam. The purpose of these contracts is to increase the students’ awareness of the code of conduct during exams. But this raises some interesting questions: Does the contract add new obligations to those written in the student regulations? Is a student, who cheats on an exam after signing the contract, guiltier than a student who commits the same offence without signing the contract? Or does the contract not affect legal responsibility, but instead intend to have a psychological effect that deters fraud? In common law, the function of the oath as a contract intended to concretize the duty of loyalty—but also to add a contractual duty—as Blackstone noted: “The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason: but it does not increase the civil obligation to loyalty.”50 The oath, then, did not affect the scope of the duty of loyalty, but added a new legal obligation; an act of disloyalty was a violation of both natural law and contract law.

The function of the oath as a contract raises some queries, which do not relate to the oath as a contract but rather to its form and content. First, as for the oath’s form, why is it necessary to oblige people to state the words rather than sign a legal document? The oath can be a written contract—a legal document that one must sign in the immigration interview, similar to the procedure of opening a bank account. One may be willing to sign a contract, yet find it difficult to declare some words publicly. Second, as for the oath’s content, loyalty oaths create different classes of social contracts since the duties of loyalty taken by naturalized citizens in the oath are broader than those required of natural-born citizens. Most oaths do not only specify legal obligations, which are written in the law, but also intend to add new contractual obligations, which are not written in the law, thereby expanding the scope of the duty of loyalty. Third, in some situations a contract is inadequate. If an oath implies devotion, then X can agree to love Y but no contract can ensure true love. And finally, the scope of loyalty depends on the contract’s terms and the circumstances in which one promises to be loyal; it yields a confined duty of loyalty.

It may be that the oath is not a legal contract but a moral promise. The fact that one makes promises does not mean that one drafts a contract. Take wedding vows.51 The bride and the groom promise to be faithful partners and love one another from this day until death. Nobody goes to court to seek a remedy because her partner no longer loves her, even though he promised to love her “in sickness and in health” until “death do us a part.” The vow is a moral statement, not a legal contract. The ceremony serves important non-legal functions, such as reminding the couple of the seriousness of their choice and of the weighty obligation they undertake. Couples who follow the vow do it not because of a religious system of rewards and punishments (though in some religions, the vow is binding) but due to a good conscience. However, the analogy of loyalty oaths to wedding vows fails, because the oath is a legal promise followed by a legal sanction. An oath-taker who breaks the oath will not merely be morally condemned for false-swearing, but may be legally guilty for breaching a contract.

B. Oaths as a Political Test

The modern concept of allegiance was developed in medieval England. Fealty tied vassals and lords52 and obligated fidelity in return for protection. Oaths of allegiance were largely derived from oaths of fealty.53 Allegiance was the obligation that subjects owed to the King in return for his protection.54 The incorporation of the oath of fealty into the public sphere occurred in 1534 when Henry VIII’s hopes of reconciliation with Rome were exhausted. Henry passed The Act for Establishment of the King’s Succession,55 forcing recognition of the validity of his marriage to Anne Boleyn. Henry invoked the oath in defense against the Catholic Church to ensure that the loyalty of his subjects was to the new Church of England and not to the Pope. He knew that his subjects had doubts as to the validity of his marriage, which could consequently undermine the validity of the throne. The oath was a mechanism forcing subjects to recognize his marriage.56

Once established, oaths became a common means. After the end of his marriage to Anne Boleyn, Henry passed a new Act that substituted Henry’s new wife, Jane Seymour, for his previous wife.57 This time, the Act provided that a refusal to take the oath would be considered high treason. In 1544, the oath was replaced one more time to state:58

I, A. B., having now the veil of darkness of the usurped power authority and jurisdiction of the see and Bishop of Rome clearly taken away from mine eyes, do utterly testify and declare in my conscience that neither the see nor the Bishop of Rome nor any foreign potentate hath nor ought to have any jurisdiction power or authority within this realm neither by God’s law nor by any other just law or means … I shall bear faith truth and true allegiance to the King’s Majesty and to his heirs and successors.


Loyalty oaths were developed in a moment of instability in English history resulting from the break with the Catholic Church. Oaths were a political mechanism to test loyalty to the Crown by obliging subjects to recognize the superiority of the King as the only governor of the realm (an Oath of Supremacy), pledge loyalty to the King (an Oath of Allegiance), and declare against transubstantiation (an Oath of Abjuration).59 The emergence of oaths continued in the next centuries—and popped up especially in times of public hysteria60—until the passage of The Promissory Oaths Act of 1868, which reduced the English oath to its current version.61

The function of the oath as a political test raises a fundamental problem. Empirically, one can reasonably argue that loyalty oaths are a fallacy. If there is one nation that knows this well, it is the United States of America. The American Founding Fathers swore loyalty to King George, yet rebelled against him. Benjamin Franklin noted that “there could be no reliance on their oaths” as they are “the last recourse of liars;” James Wilson wrote that “a good government did not need them, and a bad government could not or ought not be supported.”62 In the most detailed review of oaths in America, Harold Hyman shows that, in an attempt to secure loyalty, oaths provoked disloyalty.63 The most stringent attack on loyalty oaths came from Noah Webster. “Ten thousand oaths” could not create a faithful subject, he argued; oaths of allegiance are a “badge of folly, borrowed from the dark ages of bigotry.”64 In referring to the wisdom of the oath, Webster declared:65

If the government of Pensylvania [sic] is better than that of Great Britain, the subjects will prefer it, and abjuration is perfectly nugatory. If not, the subject will have his partialities in spite of any solemn renunciation of a foreign power … I pray God to enlighten the minds of the Americans. I wish they would shake off every badge of tyranny. Americans!—The best way to make men honest, is to let them enjoy equal rights and privileges … No man will commence enemy to a government which [gives] him as many privileges as his neighbors enjoy.


The debate over the function of the oath as a political test continued in the First Congress. Congressman John Page strongly opposed adopting oaths in America. Loyalty oaths, he argued, do not create good citizens. “If we have good laws,” he said, newcomers “will find it in their interest to be good citizens.”66 Page considered loyalty oaths as an inquisition: “Indeed, sir, I fear, if we go on as is proposed now, in the infancy of our Republic, we shall, in time, require a test of faith and politics, of every person who shall come into these States.”67 Congressman Boudinot similarly stated that he “always had considered oaths of allegiance as an imposition. They might keep away men who had scruples, because they had principles; others would swear, and break off, when it suited them.”68 Congressman Hartley found oaths to be false and thought that only a long residency requirement can “assure us of a man’s becoming a good citizen.”69

The oath’s function as a political test is not just empirically false, but also normatively problematic. Oaths act as a bond of trust; taking a loyalty oath indicates that an oath-taker is trustworthy. While this requirement may be reasonable, history shows that oaths were carefully designed to intimidate and exclude non-conformists due to political reasons. In the United States, for instance, this was the case during the Civil War, World War II, and the Cold War. As Chapter IV presents, testing one’s mind and heart yields high cost in term of individual liberties.

One final point: To a great extent, the history of the oath is a history of fear. Oaths were a sign of weakness and were used by the side which perceived a threat to its power. “No loyalty oath is required when loyalty is not in question,” Cass Sunstein claimed.70 Loyalty oaths try to restore conventions that have either ceased to exist or have been seriously jeopardized. The revival of loyalty oaths mirrors exactly the opposite. It reflects the decline of loyalty to an object because it shows the need to protect it. The words of the oath are needed precisely since they have been called into question. Sunstein rightly argued that “sometimes the purpose of oaths is to delegitimate heterogeneity by asserting unity. When this is so, the very existence of the oath tends, ironically, to confirm the existence of the problem.”71

C. Oaths as a Nation-Building Symbol

Loyalty oaths have historically been viewed as one of the greatest forces of society— a nation-building symbol, similar to the flag and the anthem. Montesquieu attributed the strength of the Romans to their use of oaths: “the oath had so much force among these people that nothing attached them more to the laws. In order to observe an oath, they often did what they would never have done for glory or for the homeland.”72 The idea of loyalty as a nation-building symbol was further developed by Rousseau. For Rousseau, loyalty is instrumental; it is a means to an end. Loyalty is relevant only to the extent that it is essential to secure freedom. In order to secure freedoms, citizens must share a bond—its minimum level is controversial— which is based upon developing irrational attachments by appealing to national festivals and rites, not only through rational self-interest in freedom.73

Oaths of allegiance promote solidarity and a feeling of belonging. They aim to create in-and out-groups but, more importantly, to unify the in-group.74 According to this view, the words of the oath are less powerful without the rite. Signing a few words on a piece of paper cannot produce in itself the required sentiment of unity. Rather, the dramatic moment of taking the oath in a public ceremony is what makes the oath memorable. The ceremony usually includes patriotic rituals, such as saluting the flag, reciting the words of the oath in public, and swearing on the Bible—all of which add to the dramatic air of the event.

The success of the oath of allegiance as a nation-building symbol, however, is not self-evidently true. Social science provides some evidence to support the proposition that some people are more prone than others to be either loyal or disloyal. It offers two ways to identify these people. The first way is relative; it touches upon character traits. Some people are more likely to be loyal than others due to specific traits they possess. The second way is situational; it defines a social structure in which people are generally prone to be more loyal. And yet, social science provides no evidence to support the premise that an oath has a positive influence on one’s sense of loyalty.75 Aside from anecdotal evidence, there is no evidence indicating that stating words of loyalty can foster social cohesion. We do not know what transformation occurs in the hearts and minds of people taking a loyalty oath.76 In fact, one may reasonably claim that oaths are counterproductive: a student reciting the Pledge of Allegiance each morning in public school may develop negative, rather than positive, feelings toward the object of loyalty. Think about a man who asks his spouse to declare her love every morning (especially when he does not do the same). After a year, would she love him more or less? Do we really believe that repetition of words—say, “I, solemnly, sincerely, and truly declare, affirm, and swear,”—leads people to be more attached to the object of loyalty? And even if oaths are effective to foster social cohesion, their efficiency obviously depends on their content and context. Forcing a Scotsman or a Catholic Irish to swear allegiance to Queen Elizabeth II, or a non-Jewish immigrant to pledge loyalty to a certain ideology or religion (a Jewish State), can exacerbate social divisions, rather than create social unity. Moreover, unlike pledges in public schools, which are repeated daily, the immigration oath is a one-time event held for just a few minutes. It is naïve to assume that the oath has enough impact on the newcomer’s identity. Civic integration is a product of a long process indeed, not a one-time event.

To be clear: my claim is not against nation-building symbols—I accept the premise that liberal states must maintain a minimum bond holding people together to survive—or against the use of legal means to encourage loyalty. I entirely agree with Gerald Neuman’s statement that “a multicultural society must be held together by loyalty to constitutional principles.”77 My doubt is rather empirical— on the nexus between loyalty oaths and the promotion of social cohesion—and normative—on the coercive nature of oaths as a direct imposition of loyalty. The law can create social conditions that promote a higher degree of commitment and identification. But loyalty cannot be directly imposed by a legal order and cannot be created by the power of oaths alone; attempting to do so would be empirically false and normatively wrong.

To conclude, loyalty oaths played a significant role in human history. To a certain degree, oaths still serve important goals in the contemporary world, especially in ceremonial functions, and in particular among religious communities who have faith in the magical power of the oath.78 However, in a largely secular world, the rationale and justification of the oath is more elusive. It is not just that the benefits of the oath are unclear. Loyalty oaths yield costs. I turn to this now.

IV. Three Problems about Loyalty Oaths

Obviously, if oaths are taken lightly—as in the case of Margaret, who asked her father, Thomas More, to “say the words of the oath and in your heart think otherwise”— they may not raise serious problems. However, oaths exist precisely because we expect that they are taken seriously by the oath-taker. This part of the Article claims that there are three liberal cases against loyalty oaths: the rule of law, freedom of conscience, and equality. First, some oaths are phrased by vague terms that are utilized to incorporate new duties and sanctions. Next, some oaths include ideological terms that infringe freedom of conscience. And finally, oaths are only enforced on naturalized citizens while natural-born citizens are exempt.

A. The Rule of Law and the Loyalty Oath

Imagine that you declare “fidelity to the Nation,” or pledge to “avoid everything that might harm the interests and the reputation of the Republic.” Can you identify your legal obligations from this oath? What about loyalty to Queen Elizabeth II “from this day forward”? Does it make sense to you? While a central tenet in law is clarity in understanding what legal responsibilities are undertaken79—under some views of the rule of law principle, the law should be clear and unequivocal— the substance of oaths is vague.80 It is not possible to understand precisely who owes what and to whom.

Even though oaths in the immigration context have never been invalidated due to their vagueness, oaths in other contexts have. In numerous cases, the U.S. Supreme Court has invalidated loyalty oaths on the ground that the oath-taker could not understand the obligations specified. The Court held that oaths put the oath-taker at continued risk because the range of activities that may be forbidden by the oath is very wide. The Court found the oath to be unconstitutional since its language was “vague, uncertain and broad … a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning … violates due process of law.”81

The vagueness of the oath, struck down by the Court in the case of citizens, has been embraced by the same Court as long as noncitizens are concerned. The oath has traditionally been a means of incorporating unspecified requirements with no measurement allowing oath-takers to identify the forbidden behavior. In one case, the U.S. Supreme Court sustained the view of the U.S. Government that the ambiguous requirement to “support and defend the Constitution” must necessarily mean a duty to bear arms.82 The Court rejected the alternative interpretation that there may be other methods of defending the U.S. Constitution apart from bearing of arms.83


Vagueness of legal terms, one may observe, is not unique to loyalty oaths; think of terms such as proportionality, negligence, and good faith. In fact, vagueness may sometimes be an advantage. The fact that there is no clear consensus about all aspects of being loyal may reduce the cost in terms of freedom of conscience, since lack of consensus leaves room for individual interpretation. Morton Grodzins rightly observes that, unlike totalitarian regimes, “in democratic states it is easy to maintain loyalty because the meaning of national loyalty is ambiguous.”84 Loyalty as a legal standard, similar to negligence, provides a wide range of discretion. The fiercest critics of Israel, for example, including those who call to boycott Israel, argue that they are the most loyal to Israel since they save Israel from itself. This fact mutes the charge that vagueness has costs; it may yield benefit.

Nonetheless, as with other legal standards, the challenge of loyalty is in refraining from abuse of ambiguous terms against certain groups. The point is not vagueness, but abuse.85 Take the promise to “support the U.S. Constitution.” Does it mean supporting judicial interpretation on abortion, gay rights, and the death penalty? When one pledges allegiance to the Constitution, does he or she promise to support any outcome that would result from the amendment procedure? Can an immigrant pledge to support the Constitution yet advocate its repeal? In the United States, for example, immigration law provides that an immigrant is not attached to the Constitution if he or she “disbelieve[s] in the principles of the Constitution.”86 American immigration law holds that the right to advocate a constitutional change stands only to the extent that “the changes advocated would not abrogate the current Government and establish an entirely different form of government.”87 But if one supports the Constitution, it can be claimed that one also supports the possibility of its repeal in light of Article V.88

The argument for supporting the Constitution yet asking for its repeal was made by Charles Roach, who sought to become a Canadian citizen. Roach was legally admitted into Canada in 1955. He graduated from the University of Toronto School of Law and was admitted to the Bar. Roach had fulfilled all necessary requirements to become a citizen, but his application was denied.89 The reason was simple. Roach refused to take an oath to Queen Elizabeth II because he objected to swearing allegiance to a monarchy. Interestingly, the Canadian Court held that Roach could pledge loyalty to the Queen and still advocate fundamental changes in the structure of Canada as long as they are performed according to the amendment procedure.90 Justice Linden dissented. In Linden’s view, Roach could not advocate the abolition of the structure to which he pledged allegiance; he cannot act to replace the monarchy, yet remain loyal to the Queen:91

If the oath of loyalty permits one to demonstrate that loyalty to the Crown by advocating its abolition, what is the point of that oath? Is that loyalty or is it disloyalty? Is the oath merely a meaningless formality? Is there any commitment to its content required? … If all the oath of allegiance achieves is to get someone to promise not to violate the criminal law and to avoid subversive and illegal political methods, something they are already obligated to do, is it of any value?


There are three possible ways to make oaths less vague. The first is to distinguish between oaths of obedience and oaths of allegiance. In some oaths, the key component is legal obedience; one swears to obey the law and observe his or her (legal) duties as a citizen. Yet in other oaths, the key component is allegiance; one swears to bear “fidelity to the nation” and “hold faith to my country,” obligations that are not generally written in the law. Although most oaths combine these two requirements—obedience and allegiance—it is helpful to clarify which specific obligation the oath-taker takes. This distinction, however, does not clarify the very duty of allegiance, which remains vague. For this, further clarifications exist.

The second distinction is between loyalty to the fundamental constitutional structure of a country and loyalty to certain constitutional norms and values. In Constitutional Theory, Carl Schmitt asserts that an oath to a constitution “does not mean an oath regarding every single constitutional norm, nor does [it mean] … submission to everything that comes out by way of [the amendment procedure].”92 Instead, it implies one obligation—to accept, or at least not to undermine, a society’s fundamental structure. In the case of the Canadian Constitution, Justice Linden held that the oath demands “an acceptance of the whole of our Constitution and national life.”93 If one accepts Schmitt’s minimalist view of oaths, and further accepts that Canada’s basic structure is based upon, among other things, its status as being a Constitutional monarchy, Roach’s citizenship petition ought to be denied because Roach seeks to repeal Canada’s fundamental constitutional structure, and not merely to challenge (or amend) a single constitutional norm.

The third distinction is between loyalty to forms and loyalty to contents. An oath can require loyalty to substance (“democratic beliefs,” “culture and customs,” etc.) and it can require loyalty to a legal form—the method for the use of legal power and for amending the legal procedure to create laws (it can, of course, require both). Although form and content are interrelated, they are not the same. Take Roach: If the Canadian Constitution does not allow amending its status as a constitutional monarchy by a particular form, say, a referendum, and the oath requires loyalty to the existing form of decision making, Roach can be excluded as long as he seeks to act differently. But if the oath requires loyalty toward a more substantial matter, Roach can show loyalty to the Queen, even if he objects to a constitutional monarchy, by accepting that a constitutional monarchy is the form of government in Canada. We take this to be the acceptance of a fact, an empirical thing, similar to accepting that there are ten provinces in Canada. This view allows him to promote a change in the constitutional amendment procedure in a way that it will include the form of referendum as a form to change Canada from a constitutional monarchy to a republic.

These three distinctions do not entirely solve the vagueness of oaths but they make the legal obligations taken clearer than their current ambiguous terms. At the end, it would depend on the oath itself to clarify the type and the scope of the duty of loyalty.
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Part 2 of 2

B. Freedom of Conscience and the Loyalty Oath

Even when the language of the oath is clear, and perhaps precisely because of that, loyalty oaths often deny freedom of conscience.94 The story of Thomas More, who was executed by Henry VIII because of his refusal to take an oath of supremacy to the Protestant Church, is a well-known historical precedent. The story of Charles Roach, whose citizenship application was denied because of his refusal to take an oath to Queen Elizabeth II, is a recent example. Born in Trinidad, a previous British colony enslaved by the Crown, Roach asserted that swearing allegiance to the Queen is tantamount to asking a Holocaust survivor to take an oath to a descendant of Hitler.95 The Canadian Court, however, did not find an oath to the Queen as infringing upon freedom of conscience. It held that the oath is religiously-neutral. The Queen is the Head of the Church of England, a Christian Protestant Church, but the Court said that the head of the State could be anyone: “a Muslim, or an Atheist … [or] someone picked at random from a 6/49 kind of lottery.”96 The Court did not explain, however, how this statement fits the simple fact that the Queen must be Christian.

Thomas More and Charles Roach stand for two cases in which loyalty oaths involved an issue of freedom of conscience precisely because the oath was taken seriously. Plenty of other examples exist as well. The U.S. decisions in the flag-salute cases come to mind: Minersville School District v. Gobitis and West Virginia Board of Education v. Barnette. In Gobitis, two children were expelled from a public school because of their refusal to salute the flag and recite the Pledge of Allegiance. Their dedication to the Jehova’s Witnesses faith precluded them from pledging allegiance to the flag, believing that only God is the supreme authority. Justice Frankfurter found the flag and the pledge to be symbols of national unity.97 One may think that he only advocated loyalty as conformity—reciting the pledge and saluting the flag. Nevertheless, Justice Frankfurter emphasized that what is really required for national unity is “unconscious feelings” rooted in one’s mind and spirit.98 For Justice Frankfurter, the pledge is essential because it evokes the children’s “appreciation of the nation’s hopes and dreams … [and evokes the] unifying sentiment without which there can ultimately be no liberties.”99

Following the Gobitis case, West Virginia’s Board of Education adopted a resolution ordering that salutation to the flag would become a regular part of the curriculum. This time, however, Justice Jackson held that the pledge of allegiance is wrong exactly because the “pledge requires affirmation of a belief and an attitude of mind.”100 He agreed that national unity is a legitimate end and that states can foster patriotism, but he rejected the idea that the pledge is an effective means to achieve this aim stating that “those who begin [with] coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”101 Loyalty means the freedom to dissent, not just from minor issues but also from fundamental matters that touch the heart of the constitutional order. In a classic statement, the Court ruled: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”102 Loyalty to America cannot be derived from coercive adherence to non-American ideas such as “compulsory unification of opinion.”

The dispute between Justice Jackson and Justice Frankfurter is the core of the debate on the oath of allegiance. There is a difference between these cases and citizenship cases, but the question is essentially the same: Can an oath of loyalty legitimately interfere with a person’s state of mind? The answer to this, I argue, is largely “no.”

Generally speaking, loyalty oaths—not as such, but their specific form and content—raise five problems of liberalism. The first is related to the Kantian distinction between legality and morality. When “loyalty to the law” means a legal duty to have belief and faith in the law, rather than just obey the law, liberalism moves from a legal to a moral realm. The second is related to the content of the oath, which often requires not only loyalty to liberal values, but also to ideologies and religions, such as the Queen or a Jewish State. The third is related to the coercive element of oaths. The promotion of loyalty is not encouraged indirectly, by creating conditions in which it shall be developed, but is directly imposed by state power. The fourth is related to the absolute nature of oaths, which sometimes deal not only with the “public sphere,” such as political ties, but also with the “private sphere,” such as personal life of immigrants.103 The fifth is the perpetual element of oaths, which frequently ask loyalty “from this day forward.” When these problems are combined, the means (of loyalty) becomes the end (oath taking), and demands of loyalty may violate the very values that they seek to protect.

The illiberal aspect of oaths raises an issue of conscience. Loyalty is invoked to preserve liberal values. In Liberal Loyalty, Anna Stilz makes such a claim. Her argument is three-fold. The first premise is that the existence of just/legitimate states is morally relevant; it is a prerequisite for the existence of freedom. Only just/legitimate states can define and enforce conditions in which freedom is realized.104 The second premise is that some level of loyalty is essential for the existence of just/legitimate states.105 The third premise is that loyalty must have a particular meaning within a particular state.106 Her conclusion, then, is that some level of a particular state-based loyalty is justified as a means of securing freedom. Loyalty is instrumental. It stands only to the extent that it is essential to guarantee freedom.

Stilz advocates a liberal concept of loyalty. But even in her liberal loyalty, it is not enough to obey the law; one has to have faith in the law. Liberalism, to take the term of the British Prime Minister David Cameron, should be “muscular.” Unlike classical liberalism, which suggests that “as long as you obey the law, we will just leave you alone,” the concept of muscular liberalism demands one “to believe” in liberal values.107 Here rests the most problematic aspect of oaths.

In religious studies, God has two authorities—it tells one what to believe in and it tells one what to do. The first authority should not be coerced. It is analogous to a “good doctor who gives authoritative advice but no commands.”108 In most cases, if one has faith in the authority, its advice would be followed voluntary. But some grey areas exist. There are cases in which a command of what to do is a command to believe. A prevailing Jewish view of the First Commandment in the biblical Ten Commandments sees it as a command to “believe in God.” However, as Avishai Margalit observes, this is a closed circuit. “We accept the commandment to believe in God if we already believe in God and, moreover, already accept His authority to command us.”109 If one believes, one needs no command, and vice versa—if one does not believe, a command to believe, in itself, would end up with no belief. “Beliefs seem to behave like involuntary muscles” and cannot be commanded.110 Instead of a command to believe, we can order a person to adopt a way of life that would lead to a belief. In psychology, for example, if a person smiles enough—i.e., adopts the act of smiling—studies show that, in the end, the person will feel joy. A similar rationale applies to love—one cannot love on demand. Instead, X can command Z to date a woman and hope that, after a few dates, he would feel something toward her; this is an indirect way to encourage love. As Avishai Margalit states, “when we lack belief, we can manipulate ourselves into adopting a suitable way of life with the hope that eventually it will bring about, though indirectly, actual faith in what we want to believe. Adopting a way of life is grist for the mill of the will.”111

The distinction between a command of what to do and a command of what to believe in is important in the context of allegiance. From a liberal view, it is usually not legitimate to explore whether a person believes in the law or believes that the law is morally good. It is not belief (or the will to believe) that is important, but the will to adopt a way of life that would lead to believe. In other words, the trick is to check whether a will to adopt a new way of life exists. If, for example, a person says “I am willing to be loyal,” it would not be enough. It is like saying “I really want to love you.” The desire to be loyal does not in itself creates loyalty, but it is rather the will to adopt a proper way of life that, at the end, may lead to the attitude of loyalty. The law should create conditions and circumstances that encourage loyalty. At most, the law can explore whether a person is willing to fit in.

Should liberal democracies inquire into the reason for one’s willingness to be loyal to an object? The liberal response, I believe, is “no.” In The Concept of Law, H.L.A. Hart develops the idea of “internal point of view.” Hart’s denies the notion that people who accept legal rules should accept their moral legitimacy; people comply because they “accept” the validity of a legal rule, even if not its moral truth.112 Acceptance does not require a specific reason; people can accept a norm due to many considerations, among them self-interest.113 Thus, one may be loyal to the Queen because of moral grounds (one accepts her moral validity), epistemic grounds (one accepts the legitimacy of the framers of the norm and trust their wisdom), democratic grounds (one accepts that the norm reflects the will of the people), or self-interest grounds (one accepts the norm due to a desire for citizenship). One can show loyalty to the Queen, even if he or she disagrees with, or even objects to, a constitutional monarchy, by accepting that a constitutional monarchy is the form of government in Canada. In this view, the reason for one’s willingness to accept the object of loyalty ought not to be tested; as noted before, it is analogous to the acceptance of a fact, similar to accepting that there are ten provinces in Canada. This view may soften the cost in terms of one’s conscience since loyalty would merely mean a “declaration of acceptance” of the object of loyalty.

C. Equality and the Loyalty Oath

Even if the oath is not vague, and does not infringe upon freedom of conscience, it may be discriminatory. This is because the oath only applies to naturalized citizens. The historical reason for this practice is rooted in common law. In England, the duty of loyalty applied to all subjects in the King’s dominions. There were three categories of loyalty: natural (natural-born subjects), local (alien subjects), and acquired (denization or naturalisation).114 Natural-born subjects owed perpetual allegiance. Alien subjects owed temporary allegiance only during residence in the King’s dominions.115 Acquired allegiance emerged from the oath and was perpetual. However, the fact that only naturalized citizens had to take an oath did not mean that natural-born citizens were released from the duty of loyalty. Both groups had to be equally loyal.116

Natural-born citizens are not required to take the oath due to the premise that their sense of loyalty has been developed by being raised and educated in the country.117 The claim, thus, is that natural-born citizens and naturalized citizens each present a different case; wrongful discrimination exists only when the law does not treat like cases alike. Although there are grounds to distinguish between natural-born and naturalized citizens, we have no evidence to support the proposition that natural-born citizens are more loyal as a group than naturalized citizens.118

Moreover, the fact that only naturalized citizens must take the oath means that natural born citizens can hold whatever beliefs they desire—they can be pacifists, anarchists, or communists—while naturalized citizens cannot always hold similar views.
In Knauer v. United States, the U.S. Supreme Court discussed the case of a native-born German, Knauer, who in 1937 became an American citizen. In 1943, the U.S. government instituted proceedings to denaturalize Knauer on the ground that he did not entirely abjure his allegiance to Germany. Justice Douglas found solid and convincing evidence that Knauer was Nazi before his naturalization and that he continued to be a faithful follower of Hitler even after becoming a U.S. citizen.119 He then affirmed denaturalization on the grounds that the oath “relates to a state of mind and is a promise of future conduct.”120 Justice Rutledge dissented. He refused to take away Knauer’s citizenship because no native-born American could be stripped of his citizenship in a similar case. If Knauer committed a crime, the government should prosecute him, not strip him of his citizenship.121 In practice, still, a natural born citizen is prosecuted, while a naturalized citizen can be denaturalized; a natural born citizen is subject to one burden of proof and trial procedure in criminal law, while a naturalized citizen can be subject to a different procedure and burden of proof in immigration law.122 This is likely because the sanction imposed on naturalized citizens is based on a breach of the contractual promise, not the wrongdoing of the act.

The higher standard of loyalty required from naturalized citizens is visible in other fields as well. Thus, petitions for naturalization were denied because the applicants refused to promise in advance that they would fulfill civil duties that are not mandatory for natural-born citizens. For example, petitions of Jehovah’s Witnesses, who refused to take the portion of the U.S. oath regarding voting due to their religious belief, were denied. Even though voting is not mandatory for U.S. citizens, the Court held that “we must accept our natural-born citizens as we find them,” but “we can scrupulously select those aliens upon whom to confer” citizenship; “more is demanded of an alien than a native-born citizen.”123 The Court did not explain the rationale for its conclusion. On the contrary: it held that “ironically … many naturalized citizens become better citizens than those naturally born.”124

Conclusion: Time to Say Goodbye to the Loyalty Oath?

More than a hundred years ago, English anthropologist Edward Burnett Tyler wrote in Popular Science that oaths of allegiance belong to the low stage of civilization. Tyler predicted that, sooner or later, the oath will follow the concept of ordeals and leave the stage of history.125 Oaths are a relic of sanctity and do not reflect intellectual reason. Science, he anticipated, will make the oath disappear. About a century before that, Noah Webster predicted that the time will soon come when all “oaths of allegiance, abjuration, and partial exclusions from civil offices, will be proscribed from this land of freedom.”126 Webster preferred a country that generates loyalty through its laws and policies rather than by a coerced statement. For Webster, only “a good Constitution, and good laws, make good subjects.”127 Yet, more than four hundred years after Henry VIII required Englishmen take an oath of allegiance to the Protestant Church, loyalty oaths still play a key role in modern immigration law in liberal states. In fact, a broader examination reveals that we are a “land of oaths.” Loyalty oaths exist everywhere: oaths of office, military oaths, oaths at universities, judicial oaths, and oaths of witnesses. Liberal democracies have “an oath for all seasons.”

What does not exist, however, is a strong justification for the duty to take a loyalty oath. It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. It is neither clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to the loyalty oath as a legal institution.


_______________

Notes:

I am grateful to George Fletcher, Malachi Hacohen, Jeffrey Jowell, Christian Joppke, Avishai  Margalit, Dora Kostakopoulou, Michele Manspeizer, Barak Medina, Noah Pickus, Amnon  Rubinstein, Theodore Ruthizer, Peter Schuck, Adam Shinar, Anna Stilz, and Alexander Yakobson  for thoughtful discussions and excellent comments on previous drafts. Special thanks are due to  Richard Bronaugh for very helpful comments and suggestions as well as to Odette Simone Ansell  for excellent editing work. Earlier versions of the Article were presented at the Kenan Institute for  Ethics at Duke University, University of Miami School of Law, the Inaugural YCC Conference  of the American Society of Comparative Law at George Washington University, Texas A&M  University at Qatar, Bar-Ilan University, the Hebrew University, the Academic Center of Law &  Business, and the College of Management Academic Studies; I thank participants and commentators  for their comments. Thanks are also due to the Tikvah Center for Law & Jewish Civilization  at NYU, Rothschild Foundation, and Fulbright Foundation for their scholarship, which made the  research possible.
 
1. See generally Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State (Princeton:  Princeton University Press, 2009).
 
2. The Article refers to “loyalty oaths” as an umbrella category for oaths taken in the naturalization  process. Unless otherwise mentioned, it focuses on formal oaths.
 
3. Cited in Dilek Cinar, Country Report: Austria, Research for the EUDO Citizenship Observatory  (Italy: European University Institute, 2010) at 17 [emphasis added].
 
4. Irish Nationality and Citizenship Act, 1956, c 3, s 15(1)(f) [emphasis added].
 
5. French Civil Code, art 21-24.
 
6. Australian Citizenship Act, 2007, ss 15 and 27 [emphasis added].
 
7. Promissory Oaths Act, 1868, s 2.
 
8. British Nationality Act, 1981, c 61, Schedule 5 [emphasis added].
 
9. Lord Goldsmith, Citizenship: Our Common Bond (London: Ministry of Justice, 2008) at 84,  97-98.
 
10. The Citizenship Act, RSC 1985, c C-29, s 24, Schedule 1.
 
11. Nationality Law, 6 LSI 1952, s 5(c).
 
12. Approval of the Amendment to s 5(c) to the Nationality Law of 1952 (No. 2313), 2010.
 
13. Naturalization Act, 1 Stat 1790, c 3, s 1.
 
14. Naturalization Act, 1 Stat 1795, c 20, s 1.
 
15. Immigration and Nationality Act, 8 USC 1952 § 1427(f)(2). For the current oath, see 8 CFR  2010 § 337.1(a).
 
16. 8 USC 2011 § 1448; 8 CFR 2010 § 337 [emphasis added].
 
17. George P Fletcher, Loyalty: An Essay on the Morality of Relationships (New York: Oxford  University Press, 1993) at 40; Sanford Levinson, “Constituting Communities through Words  that Bind: Reflections on Loyalty Oaths” (1986) 84 Mich LR 1440 at 1464.
 
18. Liechtenstein v Guatemala (2005), ICJ Rep 4.
 
19. Ibid at 23-24.
 
20. 989 UNTS 1961, art 8(3)(b).
 
21. Calvin’s Case (1608), 77 Eng Rep 377 (KB) [Calvin’s Case].
 
22. William Blackstone, Commentaries on the Law of England 1765 (Chicago: University of  Chicago Press, 1979) at 357, 369-70.
 
23. John W Salmond, “Citizenship and Allegiance” (1902) 18 LQR 49 at 50.
 
24. Calvin’s Case, supra note 21 at 382 [emphasis added].
 
25. Cited in R E Ewin, “Loyalty in Virtues” (1992) 42:169 Phil Q 403 at 405.
 
26. Thomas S Martin, “Nemo Potest Exuere Partiam: Indelibility of Allegiance and the American  Revolution” (1991) 35:2 Am J Leg Hist 205 at 210. American theorists attempted to utilize  the traditional distinction between allegiance and obedience to justify their claims of independence  from Parliament. They claimed that they can be loyal to the King even when they  are not submitted to Parliament. James Wilson declared that “allegiance to the king and  obedience to parliament are founded on very different principles. The former is founded  on protection; the latter on representation.” Cited in James H Kettner, The Development of  American Citizenship 1608-1870 (North Carolina: The University of North Carolina Press,  2005) at 165.
 
27. American jurisprudence focused on the Constitution as the subject of both allegiance and obedience.  Every naturalized American should take an oath of allegiance to obey the Constitution  of the United States, as well as “bear true faith and allegiance to the same” [emphasis added].
 
28. Donald W Hanson, From Kingdom to Commonwealth: The Development of Civic Consciousness  in English Political Thought (Cambridge: Harvard University Press, 1970) at 62.
 
29. Martin, supra note 26 at 211.
 
30. Blackstone, supra note 22 at 369-70.
 
31. In re Stepney Election Petition, Isaacson v Durant, [1886] XVII QBD 54 at 55-56, 62.
 
32. John Locke, Two Treatises of Government, Peter Laslett, ed, (Cambridge: Cambridge University  Press, 1988) at 368 [emphasis in original].
 
33. Morton Grodzins, The Loyal and the Disloyal: Social Boundaries of Patriotism and Treason  (Chicago: University of Chicago, 1956) at ii.
 
34. Joseph Plescia, The Oath and Perjury in Ancient Greece (Tallahassee: Florida State University  Press, 1970) at 22.
 
35. Kettner, supra note 26 at 165. The U.S. Declaration of Independence explains that the reasons  for absolving from all allegiance to the King are rooted, inter alia, in the breach of the bond of  allegiance by the King. This interpretation contradicted common law in which allegiance and  protection were a reciprocal bond not in the sense that one is dependent on the other—allegiance  remains even when protection is lost—but in the sense of parallel existence; both were  rooted in natural law.
 
36. Henry S Commager, Freedom, Loyalty, Dissent (New York: Oxford University Press, 1954) at  141-42.
 
37. John Locke, A Letter Concerning Toleration (Minneapolis: Filiquarian Publishing, 2007) at 22.
 
38. Robert P Wolff, “An Analysis of the Concept of Political Loyalty” in Robert P Wolff, ed,  Political Man and Social Man: Readings in Political Philosophy (New York: Random House,  1966) 218 at 222-23 [hereinafter: Readings in Political Philosophy]; John Schaar, “The  Psychology of Loyalty” in Readings in Political Philosophy 149 at 164; James Connor, The  Sociology of Loyalty (New York: Springer, 2007) at 9-34.
 
39. Hirabayashi v United States (1943), 320 US 81 at 107.
 
40. Immigration law may examine loyalty as a character trait by the requirement of “good moral  character.” It may evaluate loyalty as an emotion due to the requirement of “attachment to  the principles of the constitution,” or the requirement to “bear true faith and allegiance.” And  it can assess the potential degree of conformity by exploring the immigrant’s willingness to  “perform service in the Armed Forces,” or perform other work of national importance.
 
41. Stilz, supra note 1 at 27-64.
 
42. Edward B Tyler, “Ordeals and Oaths” (1876) 9 Popular Sci 307 at 318.
 
43. Moshe Weinfeld, “The Loyalty Oath in the Ancient Near East” (1976) 8 Ugarit Forsch 387 at  398-99.
 
44. Helen Silving, “The Oath: I” (1959) 68:7 Yale LJ 1329 at 1331; Weinfeld, supra note 43 at  398-99. For religious oaths’ history, see Omychund v Barker (1745), 1 Atk 21, 26 ER 15.
 
45. In the Bible, invoking God in an oath is a sacred obligation followed by a sanction: “Thou  shalt fear the Lord thy God, and serve him, and shalt swear by his name” (Deuteronomy 6: 13).  See also John Witherspoon, “Of Oaths and Vows” in Varnum L Colins, ed, Lectures on Moral  Philosophy (Princeton: Princeton University Press, 1912) 130.
 
46. Daniel Webster, “The Christian Ministry and the Religious Instruction of the Young” in The  Works of Daniel Webster, vol 6 (Boston: Little, Brown, 1885) 168 at 175.
 
47. Plescia, supra note 34 at 15-17, 74, from the text of the Ephebic Oath. For the political functions  of oaths, see generally James E Tyler, Oaths: Their Origin, Nature, and History (London:  John W Parker, West Strand, 1834).
 
48. Locke, supra note 32 at 348.
 
49. Kent Greenawalt, “Promise, Benefit, and Need: Ties that Bind Us to the Law” (1984) 18 Geo  LR 727 at 737-38.
 
50. Blackstone, supra note 22 at 356-57.
 
51. For the wedding vows’ analogy, see Sanford Levinson, Constitutional Faith (New Jersey:  Princeton University Press, 1988) at 107-11. See also Leonid Sirota, “Ask Not,” Double  Aspect (July 2013), available at: http://doubleaspectblog.wordpress.com/2013/07/14/  ask-not//2013/07/14/ask-not/.
 
52. William S Holdsworth, A History of English Law (London: Methuen & co., 1944) at 73.
 
53. Frederick Pollock, Essays in Jurisprudence and Ethics, vol 9 (London: Macmillan, 1882)  at 179.
 
54. Blackstone, supra note 22 at 354-55.
 
55. 25 Hen VIII, c 22.
 
56. 26 Hen VIII, c 2.
 
57. 28 Hen VIII, c 7.
 
58. 35 Hen VIII, c 1.
 
59. See, e.g., 5 Eliz I, c 1, 7 Jac I, c 6, and 30 Car II Stat 2, c 1.
 
60. Marcy L North, “Anonymity’s Subject: James I and the Debate over the Oath of Allegiance”  (2002) 33 New Literary Hist 215; Pollock, supra note 53 at 185-86. The function of the oath  as a test can be seen in the title of the Act—The Test Act, 25 Car II, c 2.
 
61. 31 & 32 Vict, c 72. For earlier oaths, see 1 Will & Mar, c 1, 13 & 14 Wm III, c 6, 1 Geo I stat  2, c 13, 10 Geo IV, c 7, 21 & 22 Vict, c 48.
 
62. Harold M Hyman, To Try Men’s Souls: Loyalty Tests in American History (Berkeley: University  of California Press, 1959) at 1-23, 113-15.
 
63. Ibid at 343 (describing oaths of allegiance as a political test during the Colonial Era, the Civil  War. World War I, World War II, and the Cold War).
 
64. Noah Webster, “On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusion from  Office” in A Collection of Essays and Fugitive Writings on Moral, Historical, Political and  Literary Subjects (New York: Scholars Facsimiles & Reprint, 1977) at 151-53.
 
65. Ibid.
 
66. Joseph Gales, ed, Annals of Congress 1790, vol 1 (Washington: Gales and Seaton, 1834) at  1109-10.
 
67. Ibid.
 
68. Ibid at 1061.
 
69. Ibid at 1109-18, 1147.
 
70. Cass R Sunstein, “Unity and Plurality: The Case of Compulsory Oaths” (1990) 2 Yale JL &  Human 101 at 102-03.
 
71. Ibid at 111.
 
72. Charles D Montesquieu, The Spirit of the Laws, Anne M Cohler, Harold S Stone & Basia C  Miller, eds, (Cambridge: Cambridge University Press, 1989) at 122.
 
73. Stilz, supra note 1 at 117-30.
 
74. Sunstein, supra note 70 at 102.
 
75. Grodzins, supra note 33 at 79-97; Jeremy Bentham, Swear Not at All (London: Richard and  Arthur Taylor, Shoe-Lane, 1917) at 1-16.
 
76. There are studies on the effect of national symbols and ceremonies, yet none of them focus  on loyalty oaths, or other oaths. See, e.g., David A Butz, “National Symbols as Agents of  Psychological and Social Change” (2009) 30:5 Pol Psychol 779; Ran Hassin at el, “Précis of  Implicit Nationalism” (2009) 1167 Ann NY Acad Sci 135. Even within a broader examination  of oaths, no study indicates that people who take an oath in courtrooms are more likely to tell  the truth than people who testify without taking an oath. See, e.g., Dennis Kurzon, “Telling the  Truth: The Oath as a Test of Witness Competency” (1989) 11:4 Intl J Semiotics L 49.
 
77. Gerland L Neuman, “Justifying U.S. Naturalization Policies” (1994) 35 Va J Intl L 237 at 278.
 
78. Loyalty is taken seriously, particularly among religious immigrants. See, e.g., Immanuel  Wallerstein, “Ethnicity and National Integration in West Africa” (1960) 1:3 Cahiers D’études  Africaines 129.
 
79. Peter H Schuck, “Plural Citizenships” in Citizens, Strangers, and In-Betweens: Essays on  Immigration and Citizenship (Colorado: Westview Press, 1998) 217 at 243-44.
 
80. Lon L Fuller, The Morality of Law (New Haven: Yale University Press, 1969) at 33-38.
 
81. Cramp v Board of Public Instruction (1961), 368 US 278; Baggett v Bullitt (1964), 377 US 360  at 366-67.
 
82. United States v Macintosh (1931), 283 US 605 at 627-29.
 
83. The Supreme Court overruled the Macintosh case in United States v Girouard (1946), 328  US 61 [Girouard]. The court said that “[bearing of arms] is not the only way in which our  institutions may be supported and defended … the worker at the lathe, the seamen on cargo  vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains—these,  too, made essential contributions.” Grodzins at 64-65. Consequently, Congress amended the  oath requiring newcomers to pledge to “bear arms on behalf of the United States when required  by the law.”
 
84. Grodzins, supra note 33 at 75.
 
85. For abusing the oath’s vagueness see, e.g., United States v Schwimmer (1929), 279 US 644.
 
86. 8 CFR 2010 § 316.11 [emphasis added].
 
87. Ibid.
 
88. US Constitution, art V. For this dilemma, see Sanford Levinson, “Pledging Faith in the Civil  Religion; Or, Would You Sign the Constitution?” (1987) 29 William & Mary LR 113.
 
89. Francine Kopun, “He Says Nay to the Queen,” The Toronto Star (11 May 2007), online: The  Toronto Star http://www.thestar.com/news/article/212829—he-says-nay-to-the-queen.
 
90. Roach v Canada (Minister of State for Multiculturalism and Culture) (FCA), [1994] 2 FC 406  (CA) [hereinafter: Roach II]. See also Roach v Canada (Minister of State for Multiculturalism  and Culture), [1992] 2 FC 173 (TD) [hereinafter: Roach I].
 
91. Roach II, supra note 90 at para 56, Linden JA.
 
92. Carl Schmitt, Constitutional Theory, translated by Jeffrey Seitzer, ed, (Durham: Duke  University Press, 2008) at 81.
 
93. Roach II, supra note 90 at para 20, Linden JA [emphasis added].
 
94. The more abstract the oath is, the less it violates freedom of conscience, because abstract terms  allow discretion to individual interpretations. But the more abstract it is, the less legal meaning  it has, since it is unclear what one’s duties are.
 
95. Mark Steyn, “Windsor Hassle; What Kind of Country Will We End up with if New Canadians  are Allowed to Explicitly Reject the Constitutional Order?” Western Standard (4 June 2007) 54,  online: Western Standard http://www.westernstandard.ca/website/a ... 51&start=1.
 
96. Roach I, supra note 90 at para 17; Roach II, supra note 90.
 
97. (1940), 310 US 586 at 595-96.
 
98. Ibid at 600.
 
99. Ibid at 597.
 
100. West Virginia State Board of Education v Barnette (1943), 319 US 624 at 633.
 
101. Ibid at 641.
 
102. Ibid at 642. The Court did not rule that it is unconstitutional to require children to pledge allegiance  but, rather, that a child has a protected right not to pledge if it offends one’s conscience.
 
103. In Baumgartner v United States (1944), 322 US 665, for example, the American government  asked the Court to denaturalize a citizen based upon what he wrote in his diary—that Hitler’s  speeches are wonderful.
 
104. Stilz, supra note 1 at 27-64.
 
105. Ibid at 64-84.
 
106. Ibid at 113-36.
 
107. “PM’s Speech at Munich Security Conference” The Official Site of the British Prime Minister  Office (5 February 2011), online: The Official Site of the British Prime Minister Office https://  www.gov.uk/government/speeches/pms-speech-at-munich-security-conference.
 
108. Avishai Margalit, “Revisiting God’s Authority” (2013) 80:1 Soc Res 1 at 5.
 
109. Ibid.
 
110. Ibid.
 
111. Ibid at 6.
 
112. HLA Hart, The Concept of Law, 2nd ed by Penelope A Bulloch & Joseph Raz (Oxford:  Oxford University Press, 1994) at 88-91.
 
113. Ibid at 198, 110-17, 255-56. Hart focuses on officials, who work within the legal system,  and says little about private citizens. While officials must take an ‘internal point of view’ of  the law—it is a prerequisite for a legal system to exist—citizens may take such a view. This  is because officials work with the rules of recognition, and people in the citizen’s role do not.  For that latter role, in order to achieve stability, citizens must obey or have seen a duty to obey.  Ibid at 116.
 
114. Calvin’s Case, supra note 21 at 383. The option of naturalization was first created in 1350  by an act of Parliament. The Act, De Natus Ultra Mare, provided that an alien who becomes  a subject of the Crown shall have similar rights to those of natural subjects. 25 Edw III Stat  1350.
 
115. Salmond, supra note 23; Martin, supra note 26.
 
116. Blackstone, supra note 22 at 356-57; Calvin’s Case, supra note 21 at 389.
 
117. Citizens, however, are required to take a loyalty oath on various occasions, including upon  joining the military, taking on a governmental job, becoming a lawyer, and (in some countries)  getting a passport.
 
118. Levinson, supra note 17 at 1454. See also Schneider v Rusk (1964), 377 US 163 at 168 (some  distinctions between natural-born and naturalized citizens are invalid discrimination since they  “proceed on the impermissible assumption that naturalized citizens as a class are less reliable  and bear less allegiance to this country than do the native born”).
 
119. (1946), 328 US 654 at 662-68.
 
120. Ibid at 671.
 
121. Ibid at 675-77.
 
122. Patrick Weil shows that in the United States a breach of the loyalty oath is no longer a  ground for denaturalization. See Patrick Weil, The Sovereign Citizen: Denaturalization and  the Origins of the American Republic (Philadelphia: University of Pennsylvania Press, 2012).  While the practice has changed, formal law, however, remains the same.
 
123. In re Petition for Naturalization of Haesoon Kook Matz, [1969] 296 F Supp 927.
 
124. Ibid.

125. Tyler, supra note 42 at 321.

126. Webster, supra note 64 at 151-53.

127. Ibid.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

Postby admin » Fri Feb 22, 2019 1:19 am

Shambhala: Protect Meditation Students from Harm by Separating Local Centers from the Monarchy
by change.org
February, 2019

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Problem

In summer 2018, Osel Mukpo, the spiritual leader or “Sakyong” of Shambhala International, was first publicly alleged to have committed sexual misconduct, including assault, against several of his female students. Some of these assaults were further alleged to have been directly facilitated by Mukpo’s loyal senior students. These allegations were first made public by Buddhist Project Sunshine and while an independent review has been conducted to mixed conclusions, we recognize basic structural problems in that review. We find the lion’s share of these allegations credible. They affirm a longstanding pattern of misconduct by historical leaders of the organization. In light of this revelation, individual Shambhala centers must enact the end of the Shambhala monarchy and formally extricate themselves from Shambhala International and the Mukpo family so as to protect new and established meditation students from harm.

Solution:

Shambhala International was inspired by Chogyam Trungpa’s aspiration to make secular meditation training broadly available to the general public. The organization which ultimately resulted is a centralized hierarchical body. It boasts numerous local centers on several continents. Tens of thousands of people around the world had their first experience of meditation and encountered the Dharma at these centers, affording the organization a prevalence that is unique among Buddhist organizations.

However, Shambhala has also produced an unhealthy and untenable authoritarian organizational culture; all students have been funneled towards a single guru who now faces serious allegations of sexual misconduct. This problem was described well in Ethan Nichtern’s statement on resigning as a Shastri shortly after the allegations were made public.

In recent months, we have been deeply disturbed by the response of Shambhala leadership in two ways. First, by framing this moment as some kind of collective project of self-reckoning, it has obfuscated a clear and obscene abuse of power by the Sakyong and many complicit others. Second, by allying itself with the broader emergent social movement for racial, gender and economic justice, the organization has made a calculated attempt to avoid directly confronting and remediating those harms which have resulted from the dangerous merger of an accessible educational institution and an esoteric authoritarian body.

On the second count, we wholly support all processes of institutional self-reflexivity which genuinely reckon with real issues of cultural bias, social representation and inequality, but we see SI’s current actions as a cynical withdrawal from and evasion of the more immediate need to critically examine its own unusual institutional structure and accompanying philosophy which have together enabled and promoted a culture of harm and abuse. Osel Mukpo’s transgressions represent a kind of “third strike” following on the misconduct of former leaders Thomas Rich and Chogyam Trungpa. We are especially concerned that SI’s bad-faith appropriation of a social movement stands to taint the righteous work of those many actors who have, in good faith, devoted themselves to this righteous cause.

Despite these revelations, we continue to cherish the dharma and the Shambhala teachings. We aspire to preserve what has been good and indestructible about our experiences in Shambhala yet we cannot possibly remain in the current double bind of obligatory loyalty to what increasingly appears to be a dangerous cult simply so that we can maintain our connection to our own sanghas.


We call on Shambhala International (SI) to take immediate action to modify its unique institutional structure as the organizational center of both 1) an authoritarian esoteric tradition with a body of sworn devotee students loyal to Mukpo, and 2) a highly accessible public educational meditation institution. We do not hold high hopes.

Yet this is, in the end, our sangha, not theirs. We are Shambhala.

We believe the public (outer) Shambhala teachings are robust enough to support a non-hierarchical practice community.

To this end, we call on individual Shambhala centers to demand that SI facilitate the cleavage of the two aspects described above by recognizing and supporting the centers’ transition to full organizational and financial autonomy. We also hope that local centers will explore reinventing their own organizational structures on a model of consensus and direct democracy. We are encouraged to see some centers hosting teachers, like Lama Rod Owens and Lama Tsultrim Allione, from other lineages and traditions and hope this pattern will emerge as a viable future for these centers, perhaps bound together in an informal consortium.

Sign the petition here.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

Postby admin » Fri Feb 22, 2019 1:50 am

Mandatory reporting of child abuse and neglect in Colorado
by Colorado Department of Human Services
Accessed: 2/21/19

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Colorado law states the mandatory reporter shall immediately upon receiving such information report or cause a report to be made of such fact to the county department, the local law enforcement agency, or through the child abuse reporting hotline system. Knowingly making a false report is also punishable under law.

Frequently asked questions about child abuse and neglect mandatory reporting in Colorado

What is a Mandatory Reporter?


A mandatory reporter is defined as a professional who is obligated by law to report known or suspected incidents of child abuse and/or neglect. Mandatory reporters are part of the safety net that protects children and youth and have the ability to provide lifesaving help to child victims in our community. Any person specified in C.R.S. 19-3-304 is by law a mandatory reporter in Colorado. If a mandated reporter has reasonable cause to know or suspect that a child has been subjected to abuse or neglect, or observed the child being subjected to circumstances or conditions that would reasonably result in abuse or neglect, the mandatory reporter shall immediately upon receiving such information report or cause a report to be made of such fact to the county department, the local law enforcement agency, or through the child abuse reporting hotline system.

Who is a mandatory reporter?

State law C.R.S.19-3-304 outlines the persons required by law to report child abuse and/or neglect. The information on this page is meant to raise awareness and alert those who may unknowingly be a mandatory reporter. The list has been adapted from C.R.S. 19-3-304. To verify that you are a mandatory reporter it is recommended that you read C.R.S. 19-3-304, consult an attorney, or your employer.
More than 40 categories of professions are considered mandatory reports of child abuse and neglect in Colorado, including the following:

• Physician or surgeon, including a physician in training
• Child health associate
• Medical examiner or coroner
• Dentist
• Osteopath
• Optometrist
• Chiropractor
• Podiatrist
• Registered nurse or licensed practical nurse
• Hospital personnel engaged in the admission, care, or treatment of patients
• Christian science practitioner
Public or private school official or employee
• Social worker or worker in any licensed or certified facility or agency (e.g. child care providers and employees, foster parents, employees at residential care facilities, youth shelters, homeless shelters)
• Mental health professional

• Dental hygienist
Psychologist
• Physical therapist
• Veterinarian
• Peace officer
• Pharmacist
• Commercial film and photographic print processor
• Firefighter
Victim's advocate
Licensed professional counselors
• Licensed marriage and family therapists
• Registered psychotherapists
Clergy member
• Registered dietitian
• Worker in the state department of human services
• Juvenile parole and probation officers
• Child and family investigators
• Officers and agents of the state bureau of animal protection, and animal control officers
• The child protection ombudsman
• Educator providing services through a federal special supplemental nutrition program for women, infants, and children
• Director, coach, assistant coach, or athletic program personnel employed by a private sports organization or program.
• Person who is registered as a psychologist candidate, marriage and family therapist candidate, or licensed professional counselor candidate
• Emergency medical service providers
• Officials or employees of county departments of health, human services or social services.

Source: Colorado Revised Statutes 19-3-304

What information can be shared with me after I report my concern?

Statute requires the following information be provided to the specified mandatory reporter within 30 days: (60 days effective December 31, 2017).

(A) The name of the child and the date of the report;

(B) Whether the referral was accepted for assessment;

(C) Whether the referral was closed without services;

(D) Whether the assessment resulted in services related to the safety of the child;

(E) The name of and contact information for the county caseworker responsible for investigating the referral; and

(F) Notice that the reporting mandatory reporter may request updated information identified in sub-subparagraphs (A) to (E) of this subparagraph (II) within ninety calendar days after the county department received the report and information concerning the procedure for obtaining updated information.

Letters (C) and (D) may not be available up to 60 days. As a result, the information provided for letter (C) should reflect: The outcome of the assessment has yet to be determined. If you would like additional information regarding the outcome of the assessment, please contact the county caseworker within ninety calendar days from the date the county department received the report.

In addition, the information provided for letter (D) should reflect: Provision of services related to the safety of the child has yet to be determined. If you would like further information regarding whether the assessment resulted in services related to the safety of the child, please contact the county caseworker within ninety calendar days from the date the county department received the report. Visit PM-CW-2016-0002 regarding specified mandatory reporters for more information.

Why should I report my concerns?

First of all, it is the law and it is your job. Mandatory reporters are part of the safety net that protects children and youth, and they have the ability to provide lifesaving help to child victims in our community. Just as importantly, you should report suspicions and knowledge of child abuse and/or neglect in order:

• to protect the victim and other children in the home;
• to prevent harm to other children to whom the person responsible for abuse and/or neglect may have access;
• to prevent future abuse and/or neglect;
• to help provide services to families and children; and
• to promote positive changes in families.


The State of Colorado has child safety laws and policies, as well as agencies staffed with skilled professionals who can help keep children and youth safe when a report is made. Mandatory reporters play a critical role in helping keep Colorado children and youth safe. You are on the front lines and can identify children who may be abused or neglected.

Why mandatory reporters are uniquely positioned to make a report?

Any person in a community who knows or has reason to suspect child abuse and/or neglect can and should make a report. Individuals who frequently work with children are often the first adults to see signs of child abuse and/or neglect. The nature of their child-friendly professions makes them uniquely qualified to protect children from abuse and/or neglect. Since mandatory reporters are trained professionals, these reports are consistently more reliable than reports from the public, and provide the agency with the best leads to in need of children protection and services.

The majority of calls received by child protective services come from mandatory reporters. In fact, the Division of Child Welfare has estimated that 75% of reports in Colorado during SFY 2013 came from mandatory reporters, 15% came from family members, and only 10% came from the general public.

Am I liable if my concerns are not confirmed?

It is better to be safe than sorry – make the call. Colorado state law indicates that:

A report is required when a mandatory reporter has reasonable cause to know or suspect that a child has been subjected to abuse or neglect or has observed the child being subjected to circumstances or conditions that would reasonably result in abuse or neglect.

Individuals or institutions in Colorado who report suspected child abuse and/or neglect “shall be immune from any liability, civil or criminal, or termination of employment that otherwise might result by reason of such acts of participation, unless a court of competent jurisdiction determines that such person’s behavior was willful, wanton, and malicious” if they report in “good faith,” which means they have not reported recklessly or with no reasonable basis for making a report.

Colorado state law indicates that good faith is presumed unless challenged by the person claiming the report was not made in good faith. Making a child abuse and/or neglect report is your evidence that you fulfilled your mandate to report.

Source: C.R.S. 19-3-304 and C.R.S. 19-3-309

What exactly are my responsibilities as a mandatory reporter of child abuse and neglect?

It is your legal responsibility to immediately make an oral report of any suspected child abuse and/or neglect to child protective services.

Depending on the incident, you may be asked to follow up immediately with a written report or to contact law enforcement directly. The person who receives your call will instruct you if this is necessary.

If you work in an institutional setting, such as a school, hospital or behavioral health program, reporting suspicions of child abuse and/or neglect to your supervisor does not relieve your responsibility to report, nor does your reporting relieve the institution’s responsibility to report.

Are there consequences if I don’t report my concerns?

Yes, there are legal consequences for not reporting. You could be charged with a class 3 misdemeanor, receive a fine of $750 and/or imprisonment up to six months, and be liable for what the law terms “damages approximately caused” if you fail to report a suspicion of child abuse or neglect.

Can I remain anonymous?

Yes. Child protective services and its employees are required by law not to disclose the name of the mandatory reporter to the family. However, this confidentiality does not apply to reports made to law enforcement.

In addition, it is possible that as a reporter of child abuse and/or neglect, you may be called to testify at a civil or criminal trial regarding the allegations. The victim’s parent and/or family members may be present at that hearing. Remember, it is important that you act as the eyes and ears for the child protection safety net. If reports of maltreatment are not made, appropriate services will not be delivered to the children and families who need them. Without your call, the abuse and/or neglect may continue.

How do I report my concerns?

If it is an emergency, call 911. They can ensure the immediate safety of a child and get medical attention if needed. If it is not an emergency, call 1-844-CO-4-KIDS (1-844-264-5437).

I have more questions about child abuse and neglect, the new Colorado Child Abuse and Neglect reporting hotline system, and what happens after I call; how can I learn more?

Check out the additional FAQ's on the campaign website or take the online training for mandatory reporters of child abuse and neglect to learn more about signs of child abuse or neglect and what happens after you call.

Colorado Child Abuse and Neglect Hotline
1-844-CO-4-KIDS (1 844 264 5437)
Available 24 hours a day, every day. Don't hesitate to call and get help.
Anyone witnessing a child in a life-threatening situation should call 911 immediately.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

Postby admin » Fri Feb 22, 2019 2:05 am

Shambhala hires firm to investigate itself, leaves women who reported abuse picking up the pieces: "Pursuing this... destroyed my faith," one woman said.
by Joshua Eaton
February 5, 2019, 11:37 AM

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The head of the Buddhist group Shambhala International drunkenly kissed and groped a woman without her consent, pressured other women into sex, and sought sex from his female students for years, according to a report the group published Sunday.

That report doesn’t say whether Sakyong Mipham will face any consequences. Meanwhile, one of the women Mipham allegedly assaulted said her life has been shattered since she decided to come forward.

“Pursuing this, pursuing the truth coming out — that process has actually destroyed my faith and my health,” the woman, who asked not to be named out of concerns for her privacy, told ThinkProgress.

The investigation was carried out by Halifax, Nova Scotia, law firm Wickwire Holm, which Shambhala hired after the advocacy group Buddhist Project Sunshine published a series of four reports that detailed allegations of sexual assault against Mipham.

Wickwire Holm’s report found a pattern of Mipham seeking sex from his female students from 1995 until at least 2005, but it did not substantiate claims that Mipham and other senior Shambhala leaders gang-raped a woman who worked in his household, or that he raped teenage girls. Mipham has denied both of those allegations.

In a letter sent to the Shambhala community last Tuesday, Mipham did not address the allegations in the report directly or offer an apology. But he said that he has read and listened to many women share their stories over the past several months, including meeting with some women he had relationships with in the past.

“I have deeply reflected on how I handled these situations and my past relationships, and am becoming aware of how my behavior hurt others … Addressing and apologizing for these situations needs to occur at a personal level. I have started this process and intend to make every effort to continue doing so,” Mipham wrote.

A lawyer for Mipham did not return a request for comment. Wickwire Holm referred questions about the report to Shambhala, which did not respond to a detailed list of questions.

The Wickwire Holm report comes the week after police in Boulder, Colorado, arrested former Shambhala teacher William L. Karelis on a charge of child sex abuse. Karelis has denied that charge. Police in Larimer County, Colorado, opened an investigation last year into allegations of criminal sex abuse at Shambhala’s meditation center there.

According to a summary of Wickwire Holm’s findings by Shambhala’s interim board, the firm received 10 reports of sexual misconduct by Mipham and 20 by other Shambhala leaders. It only investigated three — two against Mipham and one against someone else in a leadership role. The latter claim was not substantiated.

Buddhist Project Sunshine’s lead investigator, Carol Merchasin, called those low numbers “startling.” Merchasin said she does not question Wickwire Holm’s neutrality, but she said many alleged victims she spoke with were concerned after Shambhala announced that the report would go to its long-time general counsel, Alex Halpern — a decision it later reversed.

“The perception was this [investigation] was not neutral,” Merchasin told ThinkProgress by phone.

The report did not touch on one of the most serious allegations to come to light — that Mipham locked a woman in a bathroom and forced himself on her during a drunken party in Santiago, Chile, in 2002.

There were other limitations to the report: Wickwire Holm set a deadline for accusers or witnesses to come forward, for example, and would only investigate a claim if the person bringing it agreed to be identified to their alleged attacker.

The interim board’s summary also said that “no one reported criminal behavior” by Mipham. Each of the two allegations against Mipham published in the report include behavior that could be criminal, including an allegation Wickwire Holm substantiated.

The report eventually went to an interim board set up after Shambhala’s original board, called the Kalapa Council, resigned en masse in July. Mipham temporarily stepped aside from his administrative and teaching roles during the investigation. But he didn’t leave the organization, and members of the interim board swore an oath to “propagate the vision and culture of Shambhala as proclaimed by … Sakyong Mipham Rinpoche.”

Shambhala sees itself as building an enlightened society with Mipham as its king, complete with royal titles, courts, and thrones. That makes him, in many ways, indispensable.

It’s not clear whether Mipham will seek to retake his throne now that the investigation is over. In a letter that accompanied the report, the interim board called on him to “find a path forward to carry his acknowledgement of these past actions in a way that reflects the honesty and bravery that are the hallmarks of the Shambhala teachings.”

“It is our strong wish that he express true sympathy and speaks from his heart on how he will proceed,” the interim board continued. The letter from the board did not call for any criminal investigation or concrete action against Mipham.

Mipham’s own letter to the Shambhala community Tuesday night was just as vague about his future, saying only that Shambhala members need to “clarify who we are” in order to “decide if we want to be together in this relationship.”

“Each of us has to find our path on our own,” Mipham concluded. “I am no different.”

The report includes detailed investigations by Wickwire Holm of allegations by two women who say Mipham sexually assaulted them.

The first of those two woman said Mipham drunkenly kissed and groped her against her will after a party at his home in Halifax in 2011.

The report found that Mipham “violated her personal and sexual boundaries in a manner to which she did not consent,” but it stopped short of calling the incident sexual assault, calling it “sexual misconduct” instead.

The report also found that people who saw the incident colluded to downplay Mipham’s actions and to discredit his alleged victim.

In an interview with ThinkProgress, the woman said the report’s findings are a relief after years of feeling dismissed by the other people she was with that night, whom she described as friends.

“I’m actually shocked by what she decided to say,” she said of the Wickwire Holm investigator. “I feel like she got it. She understood my story so well.”

The second woman said that Mipham tried to coerce her to perform oral sex in front of other senior Shambhala officials on two separate occasions, the he pressured her to “donate” her townhouse in Boulder to him, and that she saw parents bring their teenage daughters to Mipham’s room for what she believed were sexual encounters.

Wickwire Holm concluded that Mipham sought out this woman for sex and that this violated his responsibilities toward her as her spiritual teacher. It also found that Mipham likely asked her to give him her townhouse.

“I find there is an expectation, formally and informally, that community members will give generously and support [Mipham], his family, and his spiritual pursuits,” the report said. “Indeed, the entire organization seems to be centered around supporting [Mipham] and his ability to teach.”

The report did not substantiate this woman’s allegations that Mipham sexually assaulted her, that he assaulter her in front of others, or that he had sex with teenage girls.

Thousands of Shambhala members around the world are gathering Tuesday to celebrate Shambhala Day, which marks the start of a new lunar year. Meanwhile, one of Mipham’s alleged victims who is featured in the report said she has had to leave the community, and her faith, behind.

“The act of speaking up, instead of remaining silent, you’re almost excommunicating yourself,” she said.

Do you have information about sexual misconduct in Shambhala or another religious organization? Contact reporter Joshua Eaton by email at jeaton@thinkprogress.org or by Signal at 202–684–1030.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

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Introduction to Buddhism
by Khan Academy
Accessed: 2/22/19

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Understanding Buddhism

Buddhism is one of the world’s great religions, and has deeply influenced the character and evolution of Asian civilization over the past 2,500 years. It is based on the teachings of a historical figure, Siddhartha Gautama, who lived around the fifth century B.C.E. As it moved across Asia, Buddhism absorbed indigenous beliefs and incorporated a wide range of imagery, both local and foreign, into its art and religious practices. Buddhism continues to evolve as a religion in many parts of the world.

Buddhism is a complex subject, a philosophy that has evolved in many different ways and various regions of Asia, and is still a living faith today. Providing simple definitions for the beliefs and art historical developments of Buddhism is therefore difficult, because so many variations occur. The student of Buddhism should be aware of these variations and points of view. Here we provide a very general overview as a foundation for looking at historical Buddhist arts, focused on the art of India.

Who was the historical Buddha?

The historical Buddha-to-be, Siddhartha Gautama, was born around the 6th century B.C.E. into royalty at Kapilavastu, which lay in the foothills of the Himalayas near the present day Nepalese-Indian border. For most of his youth, the prince led a sheltered existence within the palace, where he enjoyed court life, married a princess, and had a son. Venturing forth from the palace, he finally witnessed disturbing sights he had never before experienced: sickness, old age, death, and a mendicant ascetic. Deeply unsettled by what he had seen, the prince finally renounced his worldly life, and set out on a quest for truth, to confront human suffering and the continuous cycle of birth, death, and rebirth (samsara). Along with other thinkers who lived during this era, the Buddha was also troubled by the caste system, which denied many the possibility of salvation, as well as by the exclusivity and abuses of the brahman priestly caste who controlled religious practices at that time.

What did the historical Buddha preach?

The Buddha sought to find an end to human suffering. He first engaged in extreme austerities as practiced by mendicants and ascetics of his time. After several years of these practices, Siddhartha concluded that this extreme path was not the correct route to perfect understanding (enlightenment). Rather, he proposed that a middle way between extreme austerity and extreme indulgence was the path to wisdom and freedom from suffering. The Buddha declared that he would meditate under a banyan tree until he achieved enlightenment. This phenomenal event occurred at Bodh Gaya in the contemporary state of Bihar, which is one of Buddhism’s great pilgrimage sites.

As a result of his attainment of enlightenment, the prince Siddhartha Gautama was now truly the Buddha, the Enlightened One. He was also commonly referred to as Shakyamuni, the sage of the Shakya clan. The Buddha distilled the principles of enlightenment into a doctrine known as The Four Noble Truths. These are:

• Life is suffering.
• Suffering is caused by desire, and by clinging to the notion of self.
• It is possible to end suffering. To end the suffering caused by desire and ego, one must eliminate the cause.
• Suffering can be ended by following the Noble Eightfold Path, a set of resolutions characterized by a concern for morality, concentration, moderation, positive action, and wisdom.

Though it evades easy definition, and it varies according to the particular branch of Buddhism, the ultimate goal of most Buddhists is to reach nirvana, a state of bliss in which human desire, ego, and suffering are extinguished.

How did Buddhism begin?

As a collective faith, Buddhism first developed in northeastern India with the historical Buddha’s own followers, who formed a community of monks and laypersons during his lifetime. Those wishing to join the monastic order renounced family and worldly ties, and proclaimed their faith in the “three jewels”: the Buddha, the doctrine (dharma), and the monastic community (sangha).

After the Buddha’s death, concerns arose regarding the interpretation and survival of the order and doctrine. A first council established a set of beliefs on the basis of those surviving monks who could remember what the Buddha had said. Subsequent councils added to these sayings. Debates arose over the apparent contradiction between no-self and rebirth (how could one be reborn if there was no self?), and over the questions of who could be enlightened and whether enlightenment was gradual or spontaneous. By the beginning of first millennium, there were approximately eighteen different schools of Buddhism in India.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

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Part 1 of 2

On the auspiciousness of compassionate violence
by Stephen Jenkins
Journal of the International Association of Buddhist Studies Volume 33, Number 1–2, 2010 (2011) pp. 299–331
© Copyright 2011 by the International Association of Buddhist Studies, Inc.

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


In the Brahmajala Sutta we are told how the Buddha “refrains from killing living creatures, discards sticks and swords, and is considerate and full of concern, remaining sympathetic and well disposed towards all creatures and beings.” And a verse from the Suttanipata (394) states, “Laying aside violence in respect of all living beings in the world, both those which are still and those which move, he should not kill a living creature, not cause to kill, nor allow others to kill.” In the Cula-Kammavibhanga Sutta we are told of the results of killing living beings:

Some man or woman kills living beings and is murderous, has blood on his hands, is given to blows and violence, is without pity for living beings. Because of performing and carrying out such action, at the breaking up of the body, after death he reappears in a state of misfortune, an unhappy destiny, a state of affliction, hell.


The well known Metta Sutta or “discourse on friendliness,” a text frequently chanted in Buddhist ritual and considered one that brings protection or safety (paritta), sums up the positive corollary of not killing living beings as follows:

One should not wish another pain out of anger or thoughts of enmity. Just as a mother would protect with her life her own son, her only son, so one should cultivate the immeasurable mind towards all living beings and friendliness towards the whole world.


So, prima facie, the picture is clear: killing living beings — any living being — is a bad thing that leads to an unpleasant rebirth....

The Abhidhamma appears quite uncompromising here: it is a psychological impossibility, a psychological contradiction in terms that one should, when motivated by nonattachment, friendliness (and wisdom), intentionally kill another living being. The Abhidhamma and Theravadin exegetical tradition just do not seem to countenance the possibility....

Having considered the Abhidhamma and commentarial analysis of the act of killing a living being, it is perhaps worth briefly turning to a well known story where the bodhisattva is represented as killing a living being apparently out of compassionate motives. The Upayakausalya Sutra tells the story of how the bodhisattva in a life when he is indeed called “Great Compassion” kills a man in order to prevent him from killing 500 others — also bodhisattvas....

I think the evidence of the Abhidharmakosa is sufficient for us to conclude that it represents the mainstream approach of Indian Buddhist thought to the act of killing. The Upayakausalya Sutra thus perhaps represents a deliberate challenge to mainstream Buddhist ethics.

-- Can Killing a Living Being Ever Be an Act of Compassion? The analysis of the act of killing in the Abhidhamma and Pali Commentaries, by Rupert Gethin


In light of the overwhelming emphasis on compassion in Buddhist thought, Buddhist sources that allow for compassionate violence have been referred to as “rogue sources” and equivocations. A recent article states that, “Needless to say, this stance [that one may commit grave transgressions with compassion] is particularly favored by the Consciousness-Only school and in esoteric Buddhism.”1 However, the same stance is presented in the Mādhyamika tradition by Bhāviveka, Candrakīrti, and Śāntideva, as well as in a variety of sūtras.2 Allowances for compassionate violence, even killing, are found among major Buddhist thinkers across philosophical traditions and in major scriptures. It is also remarkable how broadly influential a singular source like the Upāyakauśalya-sūtra can be.

This paper reflects on the question of whether killing can be auspicious in Mahāyāna Buddhism with secondary reflections on the problems that arise in attempting to apply Western metaethical categories and modes of analysis.3 Studies so far have been reluctant to accept that compassionate killing may even be a source of making merit, choosing instead to argue that even compassionate killing has negative karmic consequences.4 If it is true that the compassionate bodhisattva killer takes on hellish karmic consequences, then it would seem that this is an ethic of self-abnegating altruism. Buddhist kings would seem to be in an untenable ideological situation in which even the compassionate use of violence and deadly force to maintain order and security will damn them to hell. Buddhist military and punitive violence, which has historically been a consistent feature of its polities, often including monastic communities, appears to be radically and inexplicably inconsistent with the values expressed by its scriptures and inspirational figures.

If there are negative karmic consequences to compassionate killing, then these acts must be read at best as necessary or “lesser evils.” However, altruism and negative karmic consequences rarely go together in Buddhist thought. A review of the remarkable spectrum of great Buddhist thinkers who have discussed this issue, many of them with reference to the Upāyakauśalya-sūtra, shows general agreement that compassionate violence can be an auspicious merit-making opportunity without negative karmic consequences.


Since I started working on this issue, which was integral to my doctoral dissertation, others have written on compassionate violence basing their thoughts primarily on Asangaʼs Bodhisattvabhūmi and Mahāyānasamgraha, and the Śiksāsamuccaya and Bodhicaryā vatāra attributed to Śāntideva. Building on the pioneering work of Mark Tatz, I am going to add examples from Candrakīrtiʼs commentary on Āryadevaʼs Catuhśatakam, and examine the views of Bhāviveka brought to light by David Eckel’s recent work.5 I also highlight some overlooked details of the Upāyakauśalya-sūtra, which has been misread on this issue, and take a fresh look at Asanga’s foundational work in the Bodhisattvabhūmi.6

Auspicious killing

Without question the writing of Asanga has been one of the principal sources on the ethics of compassionate killing both within Mahāyāna traditions and the academic study of religion. He describes a hypothetical situation in which a bodhisattva observes a thief about to commit a mass murder of persons of the highest moral status for the sake of a pittance. Although he does not directly cite the sūtra, Asanga is almost certainly referring to the Ship Captain Jātaka of the Upāyakauśalya-sūtra, the focus for most of the discussion of compassionate killing.7 Killing people such as arhats, bodhisattvas and pratyekabuddhas is the worst kind of murder, which results after death in immediate rebirth in a hell realm. There are no intermediate rebirths in which to moderate the effects of such terrible crimes. They are known in Buddhist traditions simply as the “immediates.” The bodhisattva, seeing this imminent tragedy, realizes that if he kills the thief then he himself may go to hell. But he decides that it is better that he go to hell than allow this person to suffer such a fate.8

With this attitude, the bodhisattva, having discerned either a neutral or auspicious mind; regretting and employing a mind of empathy alone, then takes that living being’s life. [That bodhisattva] becomes blameless and produces abundant merit.9


In the discussion of a variety of cases of compassionate ethical transgression, Asanga drives his point home by repeatedly closing with the final phrase expressing the bodhisattva’s faultlessness and generation of abundant merit, anāpattiko bhavati bahu ca punyam prasūyate, a total of nine times.

One aspect of his description is not entirely clear. He describes the bodhisattva, before the act of killing, as observing a mind that is either auspicious, kuśala, or neutral, avyākrta [often translated as “indeterminate”].10 This refers to a common abhidharmic classification that distinguishes between auspicious, neutral and inauspicious states of mind. Only the last are affected by the kleśas, attraction, revulsion, and delusion, and so have negative karmic outcomes.11 There is disagreement in both modern and classical scholarship about whether this represents a concern for the killer’s state of mind or the victim’s.12 Both interpretations have some merit. Regarding the thief, the concern would be to assure that the victim die in at least a morally neutral moment. Rebirth has a strong relationship to a person’s dying thought, maranacitta. Out of compassionate concern for the victim, one would attempt to take their life in a positive or neutral state, rather than in an inauspicious one. Killing a murderer while they are in a moment of homicidal rage would defeat the purpose, because death in that state of mind would lead to a bad rebirth.

On the other hand, if the compassionate killer did not maintain at least a neutral state of mind, they themselves would go to hell. By affirming that they generate abundant merit, Asanga makes clear that the bodhisattva acts with an auspicious intention.
One would not expect a neutral intention to result in great merit or for Asanga to advocate killing with a neutral, rather than auspicious, intention. The Upāsakaśīla-sūtra, though not cited by our sources, puts this in striking terms.

Someone may say that one commits an offense of killing whether one’s mind is good, bad, or neutral, just as anyone who is burnt by fire or takes poisons will die even if the mind is good, bad, or neutral. Such an argument is not true. And why is it not? Just as some people in the world do not die even if they are burnt by fire or drink poison, so one who kills without a vicious mind does not commit the crime.13


Jinaputra’s commentary on the Bodhisattvabhūmi, from several centuries after Asanga, indicates that the bodhisattva is concerned with his own state of mind.14 This suggests a concern for the compassionate killer’s own karmic well-being. This may seem inconsistent with the bodhisattva ideal, but all the treatments of compassionate killing show a strong concern for the protection and benefit of the killer. This is a crucial point for understanding what often appear to be acts of self-abnegating altruism. The benefit of both self and other is one of the strongest themes in Buddhist thought. In the “Benefit of Self and Other Chapter,” Svaparārthapatala, of the same text, Asanga explicitly rejects an intention that is strictly interested in benefiting others as inferior to one that benefits both self and others.15 Using an old model from the Nikāyas, he divides the possibilities into four: interest in benefiting nobody, only oneself, only others, and both oneself and others.16 Being interested only in others is superior to being interested in only oneself or being interested in nobody’s well being. But being interested in the benefit of both self and other is best, since developing oneself is necessary in order to have the ability to benefit others. This is simply expressed in the bodhisattva’s vow to attain the pinnacle of self-empowerment, buddhahood, for the sake of benefiting others. A circularity between the benefit of self and others is evident in the fact that it is only through helping others that a bodhisattva can accumulate the vast merit required to attain buddhahood. This relationship can become highly ironic, as the benefit of self and other are profoundly interrelated. As Śāntideva famously put it:

… upon afflicting oneself for the sake of others, one has success in everything. The desire for self-aggrandizement leads to a miserable state of existence, low status, and stupidity. By transferring that same desire to someone else, one attains a fortunate state of existence, respect, and wisdom. …All those who are unhappy in the world are so as a result of their desire for their own happiness. All those who are happy in the world are so as a result of their desire for the happiness of others.17


As I have discussed at length elsewhere, although compassion should be disinterested, it is also regarded throughout Buddhist traditions as highly beneficial to the agent, providing karmic and even physical self-protection.18

The passage above is naturally and correctly read as encouraging suffering for the sake of others. On the other hand, it presents this as a key to happiness, status, respect, good rebirth and wisdom for the agent. Self-benefit is based on benefiting others. This can easily lead to misreading, since the most dramatic examples of self-sacrifice, feeding oneself to a starving tigress or offering one’s head, are also incredibly beneficial to the apparent martyr. So when the bodhisattva-killer takes care to have only empathy, anukampā, as he performs the action, he is concerned to protect both himself and his victim from falling into the hell realms.19

The concern for states of mind also bears on another difficult point that bears on the attitude toward this action. I translate Asanga above as saying that the bodhisattva is “regretting” as he kills. The Sanskrit term here is rtīyamānah, and it has been previously understood either as “full of horror”20 or “feeling constrained.”21 The object of negative emotion is unclear, and surely the intention is to express that the situation is regrettable. Demiéville loosely, but elegantly, renders this as “full of both horror for sin and mercy for the sinner.22 But, in English at least, “horror” is too strong here and an equivalent for “sin” does not occur in the text. If the bodhisattva were experiencing horrific revulsion, then this could not be a merit-making, and therefore auspicious, action. Tatz apparently takes rtīyamānah/ʼdzem bzhin du” as “feeling constrained,” with the sense of moral constraint, or lacking options.23 There is no question that in all accounts the Ship Captain Jātaka is framed in a way that makes killing a last resort. So this does no violence to the meaning.24 However, I use “regret” with the purpose of relating a more literal meaning of the Sanskrit to the English idiomatic sense of regretting what one must do or that something is one’s painful duty.

All this emphasis on intention and states of mind sometimes leads to an exaggeration of its importance in Buddhist ethics to the point of claiming that killing is the mental intention to kill. In fact, all sources seem to agree that for there to be killing, there must be an actual living being, and the intention to kill must result in death. Unintentional killing is not murder, but the intention to kill alone does not entail the karma for murder.25

The moral status of the murder victim also has a crucial effect on the karmic repercussions. This is generally true in Indian thought. In the Manusmrti, for instance, killing an untouchable may have no more karmic cost than killing an animal.26 So Asanga presents this as an extremely dangerous situation for the bandit by describing the people he is about to murder as bodhisattvas, pratyekabuddhas, etc., i.e. persons of the highest moral quality.

The Buddha was also troubled by the caste system, which denied many the possibility of salvation, as well as by the exclusivity and abuses of the brahman priestly caste who controlled religious practices at that time.

-- Introduction to Buddhism, by Khan Academy


He notes that to kill such persons is one of the grave sins called “immediates.” [The moral calculus becomes even more complex when we consider that the killer’s relationship to the victim matters too. Killing one’s own mother is an “immediate,” but not killing someone else’s.] By the same logic, the situation is entirely reversed for the bodhisattva who is about to kill the depraved bandit. The karmic liability for killing such a person is the lowest possible. This is extremely important for understanding Buddhist penal codes, which have almost always included capital punishment, and Buddhist warfare.27 To give an extreme example cited by Harvey, the Mahāparinirvāna-sūtra describes killing the morally hopeless, icchāntika, as less than killing an ant.28 In any case, the more morally depraved or potentially harmful a person is, the less karmic demerit there is in killing them.

So military enemies or slanderers of the dharma are in a dangerous moral category. Even those who merely hold wrong views are destined to be reborn as animals or in hell. This should be taken into account in interpreting the famous case of the Sri Lankan King Dutthagāmani.29 According to the Mahāvansa, he marched to battle against the Tamils with a relic in his spear and a great company of monks, not for the sake of conquest, but to establish the dharma of the Sambuddha. Seeing that he took no joy in the bloody victory, eight arahants flew through the air to comfort him. They reassure him that having killed millions will be no obstruction to his entry into heaven, because his non-Buddhist war victims were accounted as being no more than animals.30 These people were active enemies of the Buddhadharma. The Buddhists he killed count for only one and a half persons. One who had taken refuge counted as half a person, while the other, who had taken precepts, counted as a full person. The story closes with a commitment by Dutthagāmani to never take a meal without offering to the sangha. The spear with the relic became the axis of a great stūpa. This emphasizes that the king also has an ability to make massive merit through his support of the sangha that helps compensate for his negative acts. There is no question that this is an exceptional text that seems shocking, but these are basic Buddhist arguments that particularly support the violence of kings.31


Bhāviveka, the great sixth century Mādhyamika, brought out another aspect of karmic causality, which ameliorates the karmic vulnerability of the compassionate killer and harkens back to the Nikākyas.32 A person of high moral quality may be affected far less by a grave sin than a degenerate may be affected by a minor one. As heavily salted water may be rendered undrinkable by just a little more salt, while pure water may take much more and still be drinkable, so a small crime could lead to bad rebirth for a degenerate, while a large one might not for a saint.33 This would also be important for kings, who are generally considered to have large stores of merit.

The points drawn out above only begin to explicate the complexity of the factors that condition the act of killing.34 The vulnerability of the compassionate killer is ameliorated by the fact that he has empathy, auspiciousness, and a reservoir of positive merit. Furthermore, his target is the worst sort of person, and the intention is to benefit both himself and his potential victims.35 The vulnerability of the villain, on the other hand, is enhanced by the fact that he is pitiless, has defiled inauspicious intentions, and has no reservoir of counterbalancing merit. Furthermore his targets are the best sorts of persons, and he seeks petty personal gain for himself alone.

A last point we should note from the Bodhisattvabhūmi is that it is also a moral downfall to refrain from engaging in various harsh actions, when they are called for to benefit others.
36 Candragomin, a seventh century Yogācāra remembered as a competitor of Candrakīrti, included this point when he famously and influentially summarized Asanga’s “Śīlapatala” in only twenty verses.37 Actions performed out of compassion or love with an auspicious intention are without fault. Indeed, even to refrain from harsh or threatening action when it is necessary to benefit others is a moral failure.38

Amputation with kindness

Āryadeva, who is considered the next great figure after Nāgārjuna in the Mādhyamika lineage, wrote in the third to fourth century C. E., “Because of their intention both bad, aśubham, and good, śubham, [actions] become auspicious for a bodhisattva.”39 Many cases of similar statements can be cited from both the sūtras and śāstras and all the figures considered here, Asanga, Vasubandhu, Śāntideva, Āryadeva, Bhāviveka, and Candrakīrti agree on the basic point that a bodhisattva may do what is normally forbidden or inauspicious, akuśala.40

Candrakīrti, in the early seventh century, first comments on Āryadevaʼs verse by defining the inauspicious as that which leads to lower forms of rebirth and the auspicious, kuśala, as that which reverses the process of samsāra. Auspicious actions result in good births and happiness, while inauspicious actions result in the suffering of birth, old age, and death etc.41 This is a general principle, but it is one which raises the level of ambiguity. Since, for Candrakīrti, any act that reverses the cycle of rebirth becomes auspicious, the possibility is opened that any action may be auspicious depending on a variety of factors. If an act of killing may make merit, then it is neither a necessary evil, nor merely value free, but is clearly auspicious.

In typical Buddhist fashion, he then proceeds to offer a catalogue of narrative case studies, rather than an abstract analysis. The first example is of a physician, certainly one of the most important and pervasive metaphors for a bodhisattva, amputating a finger that has been bitten by a poisonous snake, thus preventing the spread of greater suffering. Jinabhadra, a sixth century Jain, used the same example:

A doctor has to cause pain, but is still non-injuring and innocent because his intention is pure … There can be nonviolence even when an external act of violence has been committed.42


The awkwardness of this translation, in which there is no violence even when there is violence, is eased somewhat if we substitute “non-harm” for “nonviolence,” which is a misleading translation of ahimsā in Buddhist, Hindu, or Jain thought. Henk Bodewitz points out that the term “non-violence,” which was never taken before modern Indian times to forbid war or capital punishment, is absent in older English dictionaries and is strongly associated with Gandhi.43 With the use of this term, the Gandhian conception, inspired by Tolstoy, is projected onto the past. In many examples below, it is important to recognize that being harmless may actually require violent action and that restraint from violent action may be harmful.

Dictionary definitions of “violence” often include not only harmful physical force, but also the sense of being morally unwarranted or unjust. We would not normally describe surgery as violence, because it is neither harmful nor unwarranted. For this reason, Tibetan scholars I have worked with have sometimes objected that the compassionate killing of bodhisattvas is not violence. However, the interpretive problem in Indian thought in general is that warfare, torture, animal sacrifice, the horrific punishments of the dharmaśāstras etc. all may fall within the definition of ahimsā, since they are both warranted and beneficial.44 The same text from which one may pluck apparently unqualified statements of support for ahimsā may also advocate torture. This is not usually a failure of internal inconsistency. Therefore the word “violence” is being used in the context of this paper without any moral connotation, since the question is whether violent action, such as killing, may be moral. This also avoids a use of the term that would require one to call morally warranted killing, such as a bodhisattva stabbing to death a thief, nonviolent. A morally justified war would even have to be called nonviolent. My use of the term “violence” indicates injurious physical force, including killing, warfare, punishment and torture regardless of its moral character.

An authoritative Buddhist precedent for Candrakīrti is found in Nāgārjuna’s Ratnāvalī, an epistle by the foundational Mahāyāna figure to a Buddhist king. Citing the word of the Buddha from an unknown text,45 Nāgārjuna writes:

It is called beneficial to cut off a finger when it has been bitten by a [poisonous] snake. So the Buddha says to even cause extreme pain, if it will help another.46


Chopping off a finger is a painful and violent act that brings to mind the famous Buddhist criminal Angulimāla, “Finger-garland,” who decorated his neck with fingers cut from his victims. The simple act of cutting off a finger might be very similar, but, because of the differing intentions and outcomes, the moral implications are completely different. The action itself is morally neutral, even though we might assume that a compassionate doctor would perform such an amputation with a sense of regret and as a last resort, as described by Asanga. Candrakīrti emphatically states that the physician certainly does not accrue demerit for preventing the spread of even greater harm.

In the Majjhima-Nikāya, the Abhayarājakumārasutta uses a very similar analogy of saving a choking child to explain that the Buddha may sometimes use harsh speech. It was well known that the Buddha had spoken harshly to Devadatta and angered him by saying that he was incorrigible and destined for hell. Speech is a form of karmic action capable of causing harm. Most discussions of compassionate transgression include harsh speech and often begin with it. Here the Nigantha Nātaputta prompted Prince Abhaya to ask Gotama whether he would speak unwelcome and offensive words to others, a question which he predicted would be like an iron spike stuck in the Buddha’s throat. The Buddha explains his use of harsh speech as follows:

Now on that occasion, a young tender infant was lying on Prince Abhayaʼs lap. Then the Blessed One said to Prince Abhaya: “What do you think, prince? If, while you or your nurse were not attending to him, this child, were to put a stick or a pebble in his mouth, what would you do to him?” “Venerable sir, I would take it out. If I could not take it out at once, I would take his head in my left hand, and crooking a finger of my right hand, I would take it out, even if it meant drawing blood. Why is that? Because I have compassion for the child.” So too prince…Such speech as the Tathāgata knows to be true, correct, and beneficial, but which is unwelcome and disagreeable to others: The Tathāgata knows the time to use such speech. … Why is that? Because the Tathāgata has compassion for beings.47


This should not be taken as a general endorsement of compassionate transgression, but, for Mahāyānists, for whom harsh speech is a basic example, this would be very recognizable in terms of their own ideas. Compassion leads a person, who skillfully knows when it is appropriate, to cause pain in another when it has practical benefit. The Buddha makes use of the prince’s ordinary common sense ethics, rather than a supererogatory model, to illustrate his point. The sutta makes clear that, even if he is correct, the Buddha does not use harsh speech if it will not benefit others. To the degree that we can regard this as an earlier stratum of Buddhist thought, this appears to be a precedent for the basic type of thinking employed by the Mahāyāna.

Candrakīrti offers another example of a hunter who kills one of his sons to prevent both from dying. The two sons are arguing at the edge of a precipice and one of them grabs the other with the intention of hurling them both over. Since he cannot reach them, and so has no other option, the hunter shoots one son with an arrow to prevent them both from dying. This case shows a concern for reducing the proportional extent of harm, as in the example of amputation.

The Buddha is also often compared to a caravan leader, and in another example we find one whose fellow travelers are cornered by a lion. The caravan leader shoots the lion in the head to protect his company. Demiéville cites another caravan story, from the Mahā-Upāyakauśalya-sūtra, to be distinguished from the Upāyakauśalya-sūtra, which appeared very early in China and has had enduring influence.48 In this account a Brahmin is traveling with a caravan, which comes into proximity with a horde of five hundred bandits. The Brahmin kills the scout of the bandits, who was apparently his own personal friend, to prevent him from alerting the murderous band of thieves about his caravan’s location. Part of his consideration is that, if he tells his companions about the scout, they will kill the scout and become murderers themselves. In this way he prevents 999 people from becoming murderers, i.e. the 500 bandits and the 500 merchants minus himself, by taking on the karma of murder himself.49

Candrakīrti also relates the story of a bodhisattva born among lions who saves a large group of people caught in the coils of a huge snake. The bodhisattva frightens the snake by mounting the head of an elephant and releasing a great roar. In terror, the snake relaxes its grip and its captives are freed. This is an example of harsh speech as a violent act.

In another example, a father accidentally kills his own beloved son. His only son had returned from a long period abroad in a very fragile state of health. The father brings about his son’s death by strongly embracing him. This clever example illustrates the fundamental importance of intention by making deep affection result in killing. Most of these stories are told in just a few lines, as if he takes for granted that his readers know the tales.

The ship captain

Candrakīrti also uses one of the most famous and influential, yet often misread, passages in Buddhist thought from the Upāyakauśalya-sūtra of the ship captain who kills a bandit. This jātaka is cited by both Madhyamaka and Yogācāra sources and has continued to be important in modern times.50 It seems to be a combination of two older stories, one in which the Buddha under the same name, “Greatly Compassionate,” saved five hundred passengers at sea and another in which, as a king, he stabbed a man to death with a spear.51 In this example, Captain Compassionate is faced with the knowledge that a thief intends to kill the five hundred merchant bodhisattvas riding in his ship. He gives this long reflection. If he tells the merchants, they will kill the thief and so suffer the bad karmic results.52 So, forming the compassionate intention to take the negative results upon himself, the ship captain stabs the thief to death with a short spear. In this way, he skillfully benefits the potential mass murderer by saving him from eons in the hell realms. In fact, the thief is reborn in a heaven. [Perhaps this is an early source for the idea seen later in tantric contexts that a compassionate killer can direct the continuum of their victim to a heavenly rebirth.]

In the case of someone about to commit a heinous crime, not only is there less sense of negative consequence for the killer, there is even the sense that one is benefiting them by executing them before they can accrue more time in the richly described Buddhist hell realms. This raises the issue of what other crimes also have such bad karma that it would be better to kill the person rather than allow them to be performed. For instance, the “immediates” often include splitting the sangha and sometimes slandering the dharma. That would imply that enemies from both within and without Buddhism could merit the same violence as someone about to kill a parent or saint. The Mahāparinirvāna-sūtra, for instance, says that if oneʼs motivation is pure, it is possible to kill someone who is persecuting Buddhists or deriding the Mahāyāna without incurring karmic retribution.53

The captain also saves the bodhisattva-merchants either from being murdered or becoming murderers themselves by attacking the thief.54 This is highly double edged; the very motivation for killing is based on the devastating negative consequences of murder. One would be better off to be murdered, than to kill without compassion. All these sources agree that killing may be used to prevent others from taking on the karma of murder.

The entire story, like many in the Upāyakauśalya-sūtra, is framed as an explanation of a problematic event in the Buddha’s hagiography. Here the issue is that his foot was punctured by a thorn, which seems to suggest that the Buddha could be affected by karma. The thorn is homologous with the spear with which he stabbed the thief in a past life. As part of a general effort to show that compassionate killing remains an evil, albeit a necessary one, Harvey argues that the thorn shows that “the act had various bad karmic consequences, though not as bad as if it had been done without a compassionate motivation.”55 But the final word of the sūtra’s account explicitly rejects this interpretation. The Buddha merely shows himself to be punctured by the thorn as a skillful technique to teach the law of karma.56 In the process, he prevents another murder by demonstrating the law of karma to some potential killers. “For those reasons the Thus-Come-One has a thorn of Acacia stuck in his foot. That also is the skill in means of the Thus-Come-One; it is not an obstacle caused by past deeds.”57

In another episode from the Upāyakauśalya-sūtra, not long after the story of Captain Compassionate, the Buddha knowingly allows a non-Buddhist female ascetic to be murdered.58 Part of the explanation for this is based on the common idea that our days are numbered. The Buddha saw that her lifetime was exhausted in any case. But what about her murderers, who will certainly go to one of the fantastically horrific hells so elaborately described in Buddhist texts? Killing just anyone is not an “immediate,” but surely the killers of this ascetic will suffer a horrible fate in the hell realms. Shouldn’t they be protected by the Buddha’s compassion? The murderous death of the ascetic will also have a negative karmic effect, if she dies in terror. The sūtra argues that, in this case, bringing dishonor to the opponents of the dharma is a compensating benefit.59 It turns out that the killers were religious competitors of Buddhism. They are referred to as tīrthika, a name often erroneously translated as “heretic,” which probably refers to the antecedents of traditions we call Hindu today. The sūtra explains that the Buddha allowed the woman to be murdered, so that the discredit would fall on her tīrthika killers. Perhaps this should be read in the light of the fact that, since early times, holding wrong views is in itself sufficient to result in rebirth as an animal or in hell. The opponents of Buddhism, or a misguided Buddhist, would be understood to be leading others to such misfortune.

So, both allowing and preventing murder is validated. No specific outcomes or actions are essentially evil. Killing, preventing murder, and allowing a murder are all auspicious within one narrative context.

Making merit with murder and mercy sex

Like Asanga, Candrakīrti also says that the Ship Captain benefits himself as well by reversing samsāra by myriad ages.60 On this point, I suspect an old mistranslation has been influential. In his Śiksāsamuccaya, Śāntideva directly cites the Ratnamegha-sūtra on the allowance to kill someone who intends to commit an “immediate” [and also points out that the Śrāvaka Vinaya allows for the euthanasia of animals.] However a large part of his discussion of permitted transgressions is focused on the Upāyakauśalya-sūtra. He cites the jātaka of Jyotis, a Brāhmana youth who broke his vow of abstinence in order to save the life of a woman who threatened to kill herself, if he would not engage in sex with her. In his translation of the Śiksāsamuccaya, Bendall rendered a key phrase from the Upāyakauśalya-sūtra, cited by Śāntideva as “And so I myself young sir, by an impulse of pity, though vile, and full of desire, was set back for ten thousand ages.”61 He thus reversed the meaning and presented compassionate transgression as an enormous karmic setback. In his translation of the sūtra itself, Tatz rendered this instead, “Because I generated a thought that was endowed with great compassion but conjoined with transitory passion, birth and death was curtailed for ten thousand years.”62

Asaṅga says in the Mahāyānasamgraha that: “Even if a bodhisattva in his superior wisdom and skillful means should commit the ten sinful acts of murder etc., he would nevertheless remain unsullied and guiltless, gaining instead immeasurable merits.”63 Śāntideva, again quoting the Upāyakauśalya-sūtra, similarly says in the Śiksāsamuccaya, “Behold, son of good family, the very action which sends others to hell sends a bodhisattva with skill in means to the Brahmaloka” heaven realms, [a traditional result of generating compassion].64 There is no question of the compassionate bodhisattva killer going to hell in these sources. This is consistent with a general pattern in Mahāyāna thought wherein the more pure a bodhisattvaʼs intention is to go to hell, the less likely she is to do it. The bodhisattva dramatically shortens the path to buddhahood, precisely because of being willing to sacrifice hiser own spiritual progress. The motivational conception and its actual results can be completely different. In fact the motivation can produce the opposite of what is intended; those who intend to endure hell realms do not, precisely because they are willing to do so.

I have not yet located an example where a compassionate killer suffers negative karmic consequences. Bhāviveka may offer a highly qualified exception. In arguing that even great evil, pāpa, can be overcome, he points to the famous cases of the mass murderer, Angulimāla, the patricidal King Ajātaśatru, and the wicked King Aśoka who turned their lives around by subsequently forming positive intentions.65 As with the thorn in the Buddha’s foot, Bhāviveka argues that it is only taught that they were reborn in hell to generate confidence in the law of karma, in fact their negative karma had been completely eliminated. They were born there, he then says, “like a silk ball that falls down and rises up. They were not touched by the flames of hell. In this way evil can be uprooted without denying the laws of karma.”66 The objection is then raised that even the Buddha suffered negative karmic consequences, such as his foot being pierced by a thorn. Bhāviveka specifically rejects this, referring directly to the Upāyakauśalya-sūtra. He then follows with a discussion of killing with compassion.

Others see someone on the verge of committing a heinous crime (ānantarya), know that this action will cause suffering for a long time, and kill that person out of compassion. They certainly know that they will be born in hell, but they adopt a wholesome or indeterminate (avyākrta) motivation (citta) and kill in order to protect [others]. They accept their own rebirth in hell, but their wholesome [motivation] is sustained by wholesome thoughts like: “This is great suffering, but it will not last long.” This [motivation] is wholesome, because it is like a thought that is free from desire and so forth.67 … A bodhisattva who commits murder out of compassion, cannot be reproached for this action, because it is not generated by hatred, …68


Bhāviveka’s exposition, including the reference to wholesome [auspicious] or neutral motivation, is very close to that of the Bodhisattvabhūmi, with which he was familiar. He does not say whether the killer actually goes to hell. Nothing would prevent this more than the intention to do so. However, his description of how the compassionate killer considers that the hell experience will not last long may be related to the description of bouncing in and out of hell without being touched by the flames. We can be certain that, if Angulimāla is untouched by the flames of hell, that a bodhisattva would have at least as positive an outcome. It would seem incongruous to even correlate the karmic outcomes for a reformed mass murderer and a compassionate bodhisattva killer. But if we take these two together and assume that Bhāviveka is indicating that even such a bodhisattva bounces in and out of hell, it would explain the broadly held view of contemporary Tibetan scholars that compassionate killers have an extremely brief experience of hell.69 The great Tsong-kha-pa cites Bhāviveka here with approval.70 However Bhāviveka does not emphasize the production of great merit as do Asanga, Śāntideva and the Upāyakauśalya-sūtra itself, instead focusing on overcoming karmic negativity.71

Some qualifications

Candrakīrti clearly realizes the possibilities for exploitation in this idea. Later in the same commentary he launches into a jeremiad against a king who seeks to justify violence for the sake of maintaining moral order.72 For Candrakīrti, the reason bodhisattvas are not destroyed by such violence, while others are, is that they possess a controlled mind with compassionate intent.73 The opposite is also obviously true. Those who do these things without these qualities face fantastically negative consequences. The tension between these two is perfectly expressed in the Upāyakauśalya-sūtra itself, where the express purpose of the story is to actually discourage others from murder, rather than to validate compassionate violence. The Buddha demonstrates the power of karma to a group of potential murderers by showing himself to be pierced by a thorn as an outcome of spearing the thief in his earlier life as Mahākārunika the Ship Captain.74 So, even the portrayal of compassionate murder is used to discourage murder by malicious people. However, the sūtra has already shown, consistent with the later interpretations of Asanga, Śāntideva and Candrakīrti, that the ship-captain in fact made enough merit through this murder to reverse samsāra by one hundred thousand kalpas and the thorn is merely an upāya of the Buddha, not an actual karmic outcome.

Compassionate violence as common sense

In general, compassionate killing is a supererogatory ethic, not one of imitation. It is double edged in opening the possibility for murder precisely to prevent its horrific karmic outcome. Yet Candrakīrtiʼs earthy examples also suggest that there is something commonsensical about compassionate violence. Part of the power of Candrakīrti’s hypothetical cases is that they appeal to natural human responses to protect children and companions. They draw on issues and choices that doctors, leaders, parents or pilots may face in everyday life and derive their force from the fact that they make intuitive sense to people. If bodhisattvas are like ordinary folk, then ordinary folk may be like bodhisattvas. The possibility that this discourse merely elaborates a supererogatory ethic without general significance seems dubious. All the sources view compassionate killing as dangerous. But one would expect Buddhists to attempt, as far as they were able, to behave like bodhisattvas when faced with difficult moral choices. If a bodhisattva is like a physician cutting off a poisoned finger, then a physician is also like a bodhisattva. As in the teachings for bodhisattvas, a good doctor must know what she is doing, have a compassionate intention, and would regret the pain that she causes. Surely, as in the Jain understanding, a doctor performing an amputation need not be a great bodhisattva to avoid terrible karma. When Nāgārjuna uses the finger amputation analogy to advise a king that he may have to inflict great pain, he is not speaking to a bodhisattva, but to a very dangerous person. Kings routinely used amputation as a punishment in ancient India.

In the broadly cited Bodhisattvagocara-upāyavisaya-vikurvanana-deśa-sūtra, the same thinking is applied to penal codes and warfare.75 A king is encouraged to compassionately punish and even torture the unruly in order to discipline them and protect society, but he is not to kill or permanently damage them. He may go to war to protect his family and his people. He should try to avoid war in the first place and carefully consider how his policies are responsible for the creation of enemies. But even if he kills the enemy, as long as he avoids the destruction of life, infrastructure, and nature, he will be blameless and produce great merit. This is stated with almost the same phrasing as Asanga’s. There is no sense that the king, his warriors, or law enforcement officials must be bodhisattvas.

As we consider these sources, all of them framed within or focused on narrative, we should remember that even the early mainstream narrative traditions of Buddhism are full of stories of Buddhist warfare that feature the Buddha in past lives as a weapons master, king, warhorse, execution elephant, elephant mahout engaged in a siege etc.76 In Āryaśūra’s Jātakamālā, a Mahāyānist collection of birth-stories, the Buddha is described as being born as Śakra, i.e. Indra, in a past life. Indra is king of the devas and a model of the ideal king. The demonic daityas, another class of lesser deities, challenge him to battle. The battle is described in vivid dramatic detail.

Despite his scruples, everything inclined the bodhisattva to engage in the frenzy of battle: the enemies’ presumption; the fear people felt, which put an unpleasant curb on their amusements; his own dignity; and the course of action that prudence dictated. … There then took place a battle that shattered the nerve of the cowardly and in which armor splintered at the clash of weapon on weapon. … “Watch out!” “Now how are you going to escape me?” “Attack!” “That’s the end of you!” – such were the cries as the combatants killed one another.77


The devas broke ranks and fled under a shower of arrows, and finally Indra himself turned his chariot in retreat. But as he turned his huge chariot to flee the field, he saw that he was about to overrun some nests full of baby birds. “I would rather that the demon chiefs battered me to death with their terrible clubs than that I live on with my reputation ruined, under the reproach of having slaughtered these creatures who are distraught with terror.”78 In order to avoid crushing them and at the risk of his life, he turned directly back at the pursuing daityas. Shocked by this turn of events, the demonic forces broke rank in turn and were routed by the devas. Victory turned on the compassionate response to baby birds and once again karunā proved to be protective. The story is typically ironic in simultaneously validating both deadly warfare and that “all decent men should cultivate sympathy for living things.” The bodhisattva-king of the devas surely provides a model for the good Buddhist king here.

Closing reflections on metaethics

This paper has been an effort to begin to understand what Indian Buddhist texts say about compassionate killing. I think we are going to keep discovering a Buddhism very different than the one we think we know. Important sūtras and large bodies of narrative literature are in many cases untranslated. Even major figures such as Candrakīrti, Asanga, and Bhāviveka have only been partially translated, not to speak of the commentaries. I was fortunate to have the very recent work of David Eckel on Bhāviveka. Paul Harrison has recently shown that in many cases we do not even know when Śāntideva, who has been at the absolute center of the study of Buddhist ethics, is composing or quoting.79 It seems critical for the inherently comparative application of metaethical analysis to Buddhist thought to have a clear object of analysis or pole of comparison, but we have not yet clarified what we intend to analyze even in regard to individual thinkers.

The ethics of compassionate violence are a complex matrix of multiple interrelated and competing concerns, including proportionality, intention, virtue, situation, and consequences conceived from a multiple-life perspective. The basic principle that the auspicious is defined by that which leads to positive karmic outcomes only increases the level of ambiguity by removing the possibility that any action is essentially inauspicious. Although there are many warnings of hell and promises of heaven for specific acts in Buddhist ethical rhetoric, there are as many reminders that the workings of karma are ultimately inconceivable. If karma is inconceivably complex, then the auspicious is equally inconceivable, and so follows Buddhist ethics. I do not mean by “ambiguity” to say that Buddhists are befuddled or that they do not have clear moral principles. I mean this in the positive sense that lack of moral certainty, appreciation for narrative complexity, rejection of oversimplification, and a high toleration for the almost unfathomable complexity of moral situations can be positive things.

I suspect that Buddhist ethics constantly resort to narrative, because it is capable of maintaining tensions and ambiguities and representing diverse voices and multiple levels of concern.80 In Buddhist thought, narrative is as likely to be the commentary itself as it is to be the object of analysis.81
This makes the application of Western metaethics especially challenging, since it tends to function in the opposite way, that is, by clarifying narrative through systematic analysis.

The jātakas, avadānas, hagiographies etc. are at least as important for the understanding of Buddhist ethics as any subtle psychological or philosophical analysis, but these are the most neglected texts in modern studies. Legends of Śāntideva and Asanga may tell us more about how Buddhists understood their ethics than the Bodhicaryāvatāra or Bodhisattvabhūmi, at least in regard to the contexts that held those legends dear. Certainly, in my experience, relatively few Buddhists know the commentarial literature to which most of this paper is devoted, while the story of the ship captain is known throughout the Buddhist world. It is remarkable that Asanga, Vasubandhu, Bhāviveka, Candrakīrti, and Śāntideva all resorted to the same brilliant little story of Captain Compassionate, which holds the possibility of auspiciously killing with compassion in dynamic tension with the horror of killing without it. One gets the feeling that Buddhist thinkers are deliberately enhancing the ambiguity, as if only an ambiguous ethic could do justice to lived reality.
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Re: Former teacher at Boulder's Shambhala accused of sexuall

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Part 2 of 2
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Notes:
 
1 Kleine 2006: 80.
 
2 Nāgārjuna and Āryadeva do not explicitly allow for deadly violence,  but do allow for inflicting pain or performing normally inauspicious action  based on intention.
 
3 This is a preliminary report on one dimension of a long-term research  project, on compassionate violence. Other dimensions of this study of  Buddhist ethics of violence will include a reappraisal of Aśoka’s edicts, comparison  with the Dharmaśāstras, “mainstream” and abhidharmic traditions,  tantric ethics, and the violence of warfare. See also Jenkins 2010.
 
4 See Harvey 2000: 135–138.
 
5 Special thanks to David Eckel for directing me to Bhāviveka’s treatment  in his then unpublished translation.
 
6 Any merit of this work is largely due to Dr. Sangye Tandar Naga, of  the Library of Tibetan Works and Archives in Dharamsala, and the scholars  of the Central College of Higher Tibetan Studies, particularly Venerable  Lobsang Dorjee Rabling and Professor K. N. Mishra. Geshe Ngawang  Samten kindly granted me free housing during an extended research period  at what was then called the Central Institute for Higher Tibetan Studies. I am also indebted to Professor Premasiri Pahalawattage for guiding my reading  of many of the Pāli sources.
 
7 The commentator, Jinaputra, merely says that the argument is the same  as in the sūtra (Tatz 1986: 323).
 
8 My use of the masculine pronoun is based on the fact that Asaṅga speaks  in ways that assume the bodhisattva is male, for instance in discussing sexual  transgression.
 
9 BoBh 113.24–114.2. evam āśayo bodhisattvas taṃ prāṇinaṃ kuśalacitto  ’vyākṛtacitto vā viditvā ṛtīyamānaḥ anukampācittam evāyatyām upādāya  jīvitād vyaparopayati / anāpattiko bhavati bahu ca puṇyaṃ prasūyate /;  cf. BoBh–Wogihara 166; Peking Bstan-ḥgyur, Sems-tsam, Shi, 100b3; Tatz  1986: 70–71; note that upādāya has a strong idiomatic relationship with  anukampācittam.
 
10 In a highly recommended article, Rupert Gethin elaborates the  Theravādin view that killing can never be based on auspicious, kuśala, or  neutral, avyākṛta, states of mind. Therefore killing can never be based on  compassion, nor can it be auspicious. The key example is of a king who  seems to take pleasure in ordering the execution of a criminal. On a subtle  level, the commentaries say his mind is still qualified by aversion. However,  all killing is not equally inauspicious; he also shows the broad range of conditions  that qualify an act of killing, including the moral status of the victim  (Gethin 2004).
 
11 See Rahula 2001: 149, n. 169, avyākṛta defined; see 49 on a mind neither  bad nor pure; Holt 1981: 80. Referring to this threefold division, he discusses  how actions which are not affected by the kleśas do not have karmic  outcomes; see Samyuktābhidharmahṛdaya i.153–154, on three types  of citta-samprayukta, i.e. avyākṛta, kuśala and akuśala. He says that “neutral  awarenesses [citta] are weak and only strong awarenesses can produce  bodily and verbal action.” The context is unclear and there is disagreement  on this theme, but if this point were generally agreed, then the concern for  avyākṛtacittasamprayukta could not be related to the compassionate killer,  since killing would not be possible from a neutral perspective.
 
12 Bhāviveka, discussed below, identifies the concern with the bodhisattva’s  state of mind (Eckel 2008: 188); Tsong-kha-pa notes disagreement, but  without identifying the sources, and states that it makes no sense to attribute  it to the bandit (Tatz 1986: 215); Paul Demiéville reads it as a concern for the  bandit’s sake, perhaps based on the Chinese (1973: 379); in an expansive article  that should be the starting point for all interested in these issues, Lambert Schmithausen also identified the concern with the bandit’s state of mind. He gives preference to manuscripts that support this, but without explanation (1999: 59 and n. 67); Tatz also notes differences in Sanskrit manuscripts, but follows the commentary of Jinaputra which appears to identify the concern with the bodhisattva’s state (Tatz 1986: 326 and n. 403).

13 Shih Heng-ching 1994: 171. For an extended discussion of killing see Chapter XXIV. The text was translated into Chinese in the early fifth century. Its origins are unclear, but Paul Groner takes it as an “authentic Indian source.” See Groner 1990: 244; for a similar discussion using the same metaphors in an abhidharmic source see Samyuktābhidharmahṛdaya i.188–189.
 
14 See Tatz 1986: 326.
 
15 BoBh 21–22; Jenkins 2003: 57–62.
 
16 AN ii.95; tr. Woodward 1933: 104. This is a common theme. For crossreferencing  and commentary see Jenkins 2003: 56–64.
 
17 Bca Chapter VIII, verses 126–9; Wallace and Wallace 1997: 105–106.
 
18 See Jenkins 2003, 2010. The Mahāvaṃsa gives an amusing example  from the Sri Lankan myth of origin. Sihabahu drew his bow to murder his  father the lion, progenitor of the Sinhalas. But, because the sight of his son  aroused affection in the lion, his arrows only bounced off. It is only after  he realized what was happening that: “Anger weakened his compassion and  made him vulnerable. The third arrow pierced his body and killed him” (tr.  Geiger 1986: 53).
 
19 Anukampā is a common substitute for both maitrī and karuṇā. When  specifically defined, it signifies emotional sensitivity to the suffering of others.
 
20 For extensive notes on this obscure and difficult term, see artiyati in  Edgerton 1985. It can be understood as meaning ‘grieved,’ ‘pained,’ ‘perturbed,’  ‘disgusted,’ ‘off ended,’ also, when used as a noun, as meaning  ‘shame,’ ‘humility,’ ‘distress’ etc., often in regard to morality.
 
21 Tatz 1986: 70.
 
22 “plein à la fois d’horreur pour le péché et de pitié pour le pécheur”  (Demiéville 1973: 379).
 
23 In this passage, Tatz translates “feeling constrained.” The same Tibetan  verb occurs twice more in the root text and in the commentary. There Tatz  first translates it as “embarrassed” and the second time as “feeling constrained.”  Tatz 1986: 72, cf. BoBh 115.22 and Tatz 1986: 75, 222, cf. BoBh  117.16. In both cases the meaning associated with the Sanskrit is more fitting.  The same Tibetan term is, however, used to render lajjā, shame, in Asaṅga’s  Mahāyānasaṃgraha. See Nagao 1994.
 
24 Jinaputra comments that this is because the bodhisattva has no other  means (Tatz 1986: 326).
 
25 For abhidharmic cross-referencing see Samyuktābhidharmahṛdaya  ii.171, n. 502; for Theravāda sources see Gethin 2004: n. 19.
 
26 tr. Olivelle 2004: 199–200.
 
27 Florida 2005: 57.
 
28 Harvey (2000: 138) cites Taishō 12.562b. He thanks Victor He.
 
29 Mhv 170–178.
 
30 The term used for “animals” here, pasu/Sanskrit paśu, is also the technical  term for a sacrificial animal. In the Hindu homologization of warfare  with sacrifice, this term is often used for victims killed in battle.
 
31 I do not see this story as being as inconsistent with normative Buddhist  values as it is often perceived to be. For a different perspective and a variety  of contrasting views, see Gethin 2007.
 
32 Eckel 2008: 186.
 
33 This seems to be a generally held idea. Loṇaphala Sutta, AN i.249, offers  the same analogy, except that the large body of water is the Gaṅga. Eckel  (2008: n. 327) directs us here to a rich note by La Vallée Poussin on the various  contingencies on karmic outcomes (La Vallée Poussin 1990: 730, n. 217).
 
34 For a detailed technical discussion in abhidharmic style see La Vallée  Poussin 1990: 642–666.
 
35 In Asaṅga’s case, we can say the ideal intention would also include benefiting himself.
 
36 bodhisattvo yena kaṭukaprayogena tīkṣṇaprayogena sattvānām arthaṃ  paśyati taṃ prayogaṃ daurmanasyārakṣayā na samudācarati / sāpattiko  bhavati[…] BoBh 116; Tatz 1986: 74, 221; following Tatz’s translation of  Tsong-kha-pa’s commentary, Harvey claims that such an assertion does  not occur in the Bodhisattvabhūmi (Harvey 2000: 140); however, both  Tatz’s translation of the root text and Tsong-kha-pa’s commentary contain  this statement. Yet, Tatz also reads Tsong-kha-pa a bit earlier, in commenting  on “With mercy there is no [deed] without virtue,” as saying, “[…] the  two commentaries on the Chapter on Ethics teach that there are occasions  when the seven of body and speech – murder and the rest – are permitted.  Aside from this, they do not state that to not engage in them for the sake of  others is a fault.” Tatz observes here that three Chinese translations of the  Bodhisattvabhūmi omit “this passage,” while that of Hsüan Tsang includes  it. The extent of the omission is not clear (Tatz 1986: n. 396).
 
37 For rich textual cross-references and commentary see Tatz 1985: 36–38;  for cross-referencing on compassionate transgression see Tatz 1982: 38, 64.
 
38 Tatz 1985: 28, v. 12, “not to give treatment even comprising affliction.”  See also 29, v. 20.
 
39 CŚ Chapter V, v. 105, pp. 249–250 (tr. Sonam 1994: 136): bsam pas byang  chub sems dpaʼ la // dgeʼam gal te mi dgeʼang rung // thams cad dge legs nyid ʼgyur te // gang phyir yid deʼi dbang ʼgyur phyir // Karen Lang has been  very generous in sharing her forthcoming translation (see Lang tr. 2011) of  this section of Candrakīrti’s commentary and has supported my work on this  text for years.
 
40 To cite some examples that do not otherwise occur in the text: “As long  as a Bodhisattva does not give up bodhicitta he has not broken the precepts”  (Upāliparipṛcchā-sūtra, tr. Chang 1983: 269); “Even that which is proscribed  is permitted for a compassionate person who sees it will be of benefit.” (Bca  Chapter V, v. 84; Crosby and Skilton 1996: 41)
 
41 dge ba yang bde ba dang bde ʼgroʼi rnam par smin paʼi ʼbras bu can yin  du zin kyang skye ba dang / rga ba dang ʼchi ba la sogs paʼi sdug bsngal sgrub  par byed pa nyid kyi phyir na dge legs ma yin no/ / (CŚ 250).
 
42 Dundas 1992: 140.
 
43 Bodewitz 1999: 17. He also notes that many scholars have misinterpreted  ahiṃsā as the desiderative of the verb root han, to kill. He suggests “noninjury”  as a translation, but this would not work with examples like killing.
 
44 See Jenkins 2010 on compassionate warfare and torture.
 
45 Bodhisattvagocaropāyaviṣayavikurvananirdeśa 111.a.1, cited in the  Sūtrasamuccaya attributed to Nāgārjuna, also uses the example of a doctor  inflicting pain in advising a king to discipline the unruly, but not in relation  to snakebite.
 
46 Ratnāvalī 181–182. Hopkins translates “mi bde ba yang bya bar” as  “One should even bring discomfort.” This accords with the literal Tibetan,  but seems mild for the example of cutting off a finger. For mi bde ba, Lokesh  Chandra’s Tibetan-Sanskrit Dictionary gives śūla or simply duḥkha, which  both seem stronger than discomfort; see Hopkins 1998: v. 264, 128; cf. the  Mahāyānasaṃgraha on bodhisattvas assuming the role of a king “even inflicting torment on sentient beings to establish them in the code of discipline”  (Keenan 1992: 88). It is also worth noting, in light of the fact that Nāgārjuna  is addressing a king, that amputation was a common form of punishment in  ancient and more recent Buddhist polities.
 
47 MN i.392, Abhayarājakumārasutta (tr. Ñāṇamoli and Bodhi 1995: 499).
 
48 He cites Taishō 156, vii, 161b–162a. Demiéville 1973: 379. According  to Lewis Lancaster, the Mahā-Upāyakauśalya-sūtra was fi rst translated into  Chinese in the third century (Lancaster 1979: 140).
 
49 It is not clear if the killer actually goes to hell. One would expect this  tale to be a jātaka or avadāna, but the Brahmin is not identified as a bodhisattva.  Demiéville does not give the karmic outcome of the story, except  to say that the bandits and travelers are all converted. If he does go to hell, it  would be a strong exception to my argument, and the first case I have found  of compassionate transgression resulting in karmic penalty. This would also  make it an irrational choice for motivating Chinese Buddhists to kill in war,  since the assumption would be that they go to hell as a result.
 
50 For examples, see Williams 2009: 152 and 340, n. 12; Welch 1972: 272–  288. Thanks to Chris Queen.
 
51 See n. 56 below.
 
52 The early sūtras have many examples of stupid and backsliding bodhisattvas,  even bodhisattvas who have forgotten they were bodhisattvas.  The fact that the text sees bodhisattvas as capable of killing in anger shows  that it does not just indicate near deities with this term. Texts on bodhisattva  ethics show a general concern for the fact that bodhisattvas make regular  mistakes that require confession and contrition.
 
53 Taishō No. 375, 12.676b5–6). Thanks to Jan Nattier. For more examples  see Schmithausen 1999: 57–58 and n. 60.
 
54 This is a very potent example in the age of terrorism. On August 11,  2000, the Associated Press reported that Jonathan Burton, a teenage passenger  who became combative on a Southwest Airlines flight, was killed by the  passengers.
 
55 Harvey 2000: 136.
 
56 Ap verses 21–22, gives another story in which the Buddha’s foot is hurt  as the result of a past life as a king in which he killed a man with a spear. “I  became a king and killed a person with a spear. By the ripening of that karma,  I was boiled vigorously in hell.” In the present life, the Buddha is shown  to still experience pain in his foot for that past killing and the karmic effects  are not yet exhausted. This Apadāna is a catalogue of past-life misdeeds of  the Buddha, including several murders. There is no sense that these were  compassionate or dharmic acts. A central purpose of the Upāyakauśalyasūtra  is to reread such tales, which seem to indicate that the Buddha could  continue to suffer karmic consequences, in terms of Mahāyāna buddhology  (Ap i.300).
 
57 tr. Tatz 1994: 77.
 
58 Ibid., 460.
 
59 In the Bodhisattvabhūmi, Asaṅga often makes allowances for more negative  behavior in the case of tīrthikas, for instance in terms of harsh speech  or returning abuse. See Tatz 1986: 221–223.
 
60 dge baʼi rtsa ba des kyang bskal pa stong phrag brgyar ʼkhor ba la rgyab  kyis phyogs par byas so // (CŚ 253.1).
 
61 Bendall and Rouse 1971: 163; So ’haṃ kulaputra mahākāruṇya cit totpādena-itvareṇa kāmopasaṃhitena daśakalpasahasrāṇi saṃsāram akārsaṃ;  Tatz 1994: 35, n. 49; Sikṣ 167.
 
62 Tatz 1994: 34; for a similar phrase, see Suvarṇaprabhāsottama-sūtra,  tr. Emmerick 1970: 31. Thanks to Mark Tatz for supplying me with the unpublished  manuscripts of his Tibetan editions of the Upāyakauśalya-sūtra.  Note that this also accords with Chang’s translation from the Chinese (Chang  1983: 456–457). Another translation of this episode from the Chinese can be  found in Welch 1972: 284–286.
 
63 Keenan 1992: 88.
 
64 paśya kulaputra yad anyeṣāṃ nirayasaṃvartanīyaṃ karma, tad upāyakauśalyasya  bodhisattvasya brahmalokopapattisaṃvartanīyam // (Śikṣ 167).
 
65 The fact that a thematic study of Angulimāla and Ajātaśatru could easily  comprise a book length study shows how important the issue of avoiding  the fruition of past inauspicious action was to Indian Buddhists. There are  entire sūtras and sections of others focused on them. The Mahāparinirvāṇasūtra  has an extensive discussion. The study of the theme of overcoming  the karma of murder will have strong implications for the understanding of  Buddhist ethics. This is particularly true for tantric texts, which, with their  claim to achieve liberation in the present lifetime, can even avoid the fruition  of the “immediates” which lead directly to hell on rebirth.
 
66 Eckel 2008: 185. The reference to either neutral or auspicious states of  mind still seems unclear to me, since he immediately follows by indicating  that the killer’s intention is auspicious.
 
67 According to Eckel, Vasubandhu presents the identical paragraph in his  Vyākhyāyukti. This seems remarkable, since this is not a citation of the sūtra  (Eckel 2008: 187, n. 333). Demiéville notes that the ship captain story is recited  in the commentary to Asaṅga’s Mahāyānasaṃgraha as an example of  gāṁbhīriya śīla (Demiéville 1973: 380). He cites Lamotte 1939: 215–216.
 
68 Eckel 2008: 188. The term “wholesome” is commonly used as a translation  alternative for “auspicious.”
 
69 As Eckel acknowledges, the comparison to the bounce of a silk ball,  which suggests a momentary contact, remains a difficult translation problem.  In a rich footnote, Eckel observes that Sthiramati uses a similar metaphor in  commenting on verse 3.8 of Asaṅga’s Mahāyānasūtrālaṃkāra (Eckel 2008:  185, n. 324); in any case, the passage commented on by Sthiramati asserts  that anyone possessing the bodhisattva-gotra, who takes rebirth in the lower  realms, has a brief stay and minimal suffering. The intention of the metaphor  is clearly to minimize either the extent or duration of suffering. For the purpose  here, the fact that they do not experience the flames of hell is sufficient.  Xuanzang offers a similar idiom of the time it takes for a ball of thread to  fall to the ground after being tossed up (tr. Li Rongxi 1996: 105). The repeated  closeness of Bhāviveka’s treatment to that of Asaṅga, Vasubandhu,  and Sthiramati, is remarkable. See also Mahāyānasūtrālaṃkāra, tr. Jamspal, L. et als. 2004: 27.
 
70 tr. Lamrim Chenmo Translation Committee 2000: 256.
 
71 The apparent contrast between Bhāviveka and his Prāsaṅgika opponents  raises the interesting question of the relationship between ethics  and ontology. Śūnyavāda traditions seem to be more ethically liberal than  abhidharmic ones. We would expect Bhāviveka, with his concern for firmly  establishing conventional norms, to perhaps be more conservative than  Candrakīrti. There is a striking correlation between tathāgatgarbha traditions  and vegetarianism that is based perhaps on their strong sense of a base  consciousness. Sources that validate killing on the basis of emptiness are  another further area of exploration.
 
72 See Lang 1992: 232–43.
 
73 gzhan dag la yang de ltar ciʼi phyir mi ʼgyur zhe na / sems la dbang thob  pa med paʼi phyir dang / sems kyi rgyud nyon mongs pa mkhrang zhing nye  bar sad pas bzung ba nyid kyi phyir ro // (CŚ 251.3).
 
74 Tatz 1994: 34–9; 73–4. cf. Chang 1983: 431–440, 456–457.
 
75 See Jenkins 2010.
 
76 Ibid.
 
77 trans. Khoroche 1989: 81–82. Pāli texts also refer to this battle. See for  instance SN i.221. Here Indra’s conduct toward the defeated and bound enemy  king is lauded.
 
78 trans. Khoroche 1989: 83.
 
79 Harrison 2007: 215–248.
 
80 I am indebted here to conversations with John Strong.
 
81 I acknowledge the influence of my dissertation advisor, Charles Hallisey,  on this point.

References

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Harrison, Paul. 2007. “The case of the vanishing poet: new light on Śāntideva and the Śiksā-samuccaya,” in Indica et Tibetica. Edited by Konrad Klaus and Jens-Uwe Hartmann. Vienna: Arbeitskreis für Tibetische und Buddhistische Studien, 215–248.

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Hopkins, Jeffrey. 1998. Buddhist Advice for Living and Liberation: Nāgārjuna’s Precious Garland. Ithaca: Snow Lion.

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_____ 2003. The Circle of Compassion: An Interpretive Study of Karunā in Indian Buddhist Literature. Cambridge Buddhist Institute Series, series ed. R. C. Jamieson. Ayrshire, Scotland: Hardinge Simpole Publishing. Currently out of print, but available under the same title as Harvard University Doctoral Dissertation, Ann Arbor: University Microfi lms International, 1991.

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Lamrim Chenmo Translation Committee. tr. 2000. Tsong-kha-pa, The Great Treatise on the Stages of the Path to Enlightenment: Lam Rim Chen Mo. Vol. 1. Translated by the Lamrim Chenmo Translation Committee. Edited by Joshua Cutler and Guy Newland. Ithaca: Snow Lion Publications.

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_____ 1992. “Āryadeva and Candrakīrti on the Dharma of Kings,” in Asiatische Studien: Zeitschrift der Schweizerischen Gesellschaft für Asienkunde Études Asiatiques: Revue de la Société Suisse d’Études Asiatiques. 46.1, 232–243.

de La Vallée Poussin, Louis. tr. 1990. Vasubandhu, Abhidharmakośabhāsyam. Translated by Louis De La Vallée Poussin. Translated into English by Leo Pruden. Berkeley: Asian Humanities Press, 1990.

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Part 1 of 2

Mindfulness Meditation Research: Issues of Participant Screening, Safety Procedures, and Researcher Training
by M. Kathleen B. Lustyk, PhD; Neharika Chawla, MS; Roger S. Nolan, MA; G. Alan Marlatt, PhD
ADVANCES JOURNAL, Spring 2009, VOL. 24, NO. 1

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M. Kathleen B. Lustyk, PhD, is a professor of psychology, in the School of Psychology, Seattle Pacific University, Washington, and an affiliate associate professor, in Biobehavioral Nursing and Health Systems, University of Washington School of Nursing, Seattle. Neharika Chawla, MS, is a pre-doctoral fellow at the Addictive Behaviors Research Center in the Department of Psychology, University of Washington, Seattle. Roger S. Nolan, MA, is a psychotherapist in Burbank, California. G. Alan Marlatt, PhD, is a professor of psychology and the director of the Addictive Behaviors Research Center, University of Washington

ABSTRACT

Increasing interest in mindfulness meditation (MM) warrants discussion of research safety. Side effects of meditation with possible adverse reactions are reported in the literature. Yet participant screening procedures, research safety guidelines, and standards for researcher training have not been developed and disseminated in the MM field of study. The goal of this paper is to summarize safety concerns of MM practice and offer scholars some practical tools to use in their research. For example, we offer screener schematics aimed at determining the contraindication status of potential research participants. Moreover, we provide information on numerous MM training options. Ours is the first presentation of this type aimed at helping researchers think through the safety and training issues presented herein.

Support for our recommendations comes from consulting 17 primary publications and 5 secondary reports/literature reviews of meditation side effects. Mental health consequences were the most frequently reported side effects, followed by physical health then spiritual health consequences. For each of these categories of potential adverse effects, we offer MM researchers methods to assess the relative risks of each as it pertains to their particular research programs.

The list of benefits associated with mindfulness meditation (MM) is growing. Interest in this ancient practice rooted in Buddhist philosophy seems to know no cultural or religious boundaries. Walsh and Shapiro write, “Meditation is now one of the most enduring, widespread, and researched of all psychotherapeutic methods.”1 Yet, while safety guidelines, participant screening procedures, and standardized researcher training exist for some behavioral medicine practices (eg, exercise per the American College of Sports Medicine [ACSM] guidelines2), these have yet to be developed and disseminated in the MM field of study.

To assist those planning studies of MM, our goals in this paper are to (1) define categories of side effects of meditation with possible adverse reactions raised in the literature and by clinicians with extensive experience in the therapeutic delivery of MM, (2) propose a procedure for screening potential research participants and suggest safety procedures within each category, and (3) reduce the risk of potential iatrogenic harm to research participants by offering suggestions for researcher training in MM. Together, the authors contributing to this paper cover a broad range of expertise, including clinicians who regularly employ MM in their practices, specialists in MM facilitation from the Theravada tradition, and senior research scholars skilled in intervention, laboratory, and behavioral neuroscience methods.

MINDFULNESS MEDITATION DEFINITION

Mindfulness meditation (MM) involves completely attending to experiences on a moment-to-moment basis in an effort to cultivate a nonjudgmental, nonreactive state of awareness.3 MM is rooted in the traditional Buddhist practice of Vipassana, which translates literally as “seeing things as they really are.”4 MM practice begins with sustained observation of the breath and expands to include awareness of physical sensations, thoughts, and emotional states as they arise in the present moment. This focus on present moment experiences trains attitudinal, relational, and cognitive capacities in practitioners with supporting changes in neurobiological substrates.5-7 According to Shapiro,8 this shift in focus from the breath to a variety of phenomena is what distinguishes MM from purely concentrative forms of meditation such as Transcendental Meditation (TM), which uses a mantra to centralize cognitive focus. Still, both MM and TM do involve concentrating on a specific object (eg, the breath); however, with MM this unified focus is then directed toward the entire field of awareness. Although meditation practices vary in the specific techniques employed, all involve a form of mental/attentional training.8,9

This overlap in meditation techniques has recently been addressed by Lutz et al,9 who offer the description of 2 meditation styles, namely focused attention and open monitoring, noting that with MM, practitioners may include both styles in their practices, whereas techniques such as TM primarily involve focused attention. We have considered this overlap in MM styles in our presentation of potential adverse effects by drawing upon MM studies as well as those reporting on related meditation techniques. We posit that when designing a study in an area of research where empirically tested safety procedures and standardized protocols are lacking, it is particularly important to consult the literature for reports of potential adverse effects attributed to the technique under investigation as well as any related techniques to maximize participant safety and facilitator awareness. As this is the case with MM, reports from small-n studies, secondary analyses, and the like involving MM-related forms of mediation warrant consideration. Beyond this, anecdotal evidence from clinicians who have observed negative consequences from MM with their patients is worth considering as well.

Please note: it was not our intent to evaluate the validity of the stated side effects reported in each of the articles cited herein. Such evaluations would require assessing how predictive each potential adverse outcome was from the meditation performed, how accurate the reporting author’s analyses were, and determination of mitigating circumstances. Our intent was simply to report the possibility of these outcomes so future study designers may be aware of them and plan accordingly.

MINDFULNESS-BASED THERAPEUTIC APPROACHES

MM has been incorporated into various therapeutic interventions. These interventions are associated with beneficial therapeutic effects in cases of chronic pain,10,11 substance use disorders,12-19 depression,20-23 anxiety,24,25 and binge eating disorder. 26,27 Therapeutic interventions that involve formal training in mindfulness skills include Mindfulness-Based Stress Reduction (MBSR),28 Mindfulness-Based Relapse Prevention (MBRP),29,30 Mindfulness-Based Cognitive Therapy (MBCT),31,32 and Mindfulness-Based Eating Awareness Training (MB-Eat).33 Other approaches that incorporate components of mindfulness into their therapeutic tenants include Dialectical Behavior Therapy (DBT)34 and Acceptance and Commitment Therapy (ACT).35

The developers of each of these therapeutic interventions are well-established scholars and skilled healthcare providers. As such, these developers and/or members of their research teams have specific training in patient/participant intake procedures and methods of responding to mental health–related adverse effects. Yet, with the favorable findings being reported with MM interventions, research interest is growing rapidly and, consequently, MM effects are being investigated by members of various guilds including neuroscience, cognitive, social and physiological psychology, medicine, and nursing under the supposition that MM is by-and-large a safe behavioral medicine practice. However, systematic evaluations of its safety have not been reported in the literature. One possibility is that the absence of reported adverse effects is taken as support for MM safety. We posit the following: (1) The absence of reported procedural cautions/warnings, side effects, or adverse events in well-controlled MM clinical trials does not necessarily mean that none exist. (2) Such reporting absence may simply represent the lack of a standard for reporting these issues/events within a new and rapidly growing field of study. (3) Moreover, consent and safety procedures do not routinely get reported in clinical trials, leaving open the possibility that new MM researchers who seek to replicate published procedures may not go into the study fully prepared for what may occur nor include adequate protection for participants. It is this third effect that is our major concern and, hence, the focus of this paper.

CATEGORIES OF POTENTIAL ADVERSE EFFECTS

As demonstrated in Table 1, side effects of meditation with possible adverse reactions do occur. In light of research reports cited in Table 1 and recent reviews that discuss potential negative consequences of meditation, we thought it important to categorize potential adverse effects into (1) mental, (2) physical, and (3) spiritual health considerations. Within each category, we offer examples of specific side effects, cite cautionary reports for potential adverse effects, and label each effect as an absolute contraindication, a relative contraindication, or an issue worthy of consideration. Similar to the rationale applied to assessing safety in exercise research,2 we define an absolute contraindication as a condition or circumstance under which it is inadvisable to include a participant in a research study or carry out the research altogether. With a relative contraindication, participation may be inadvisable under some circumstances but not others. Matters worthy of concern are so named due to the theoretical/anecdotal nature of support for their consideration. To assist researchers in determining contraindication status of potential research participants, we offer step-by-step sample screener schematics to guide researchers as they develop their own research screening protocols.

Category 1: Mental Health Considerations

As can be seen in Table 1, adverse effects on mental health are the most frequently reported negative consequences from meditation. Of those mental health consequences listed in Table 1, the reports of severe affective and anxiety disorders as well as temporary dissociative states and psychosis give primary cause for concern.36-38 One example of a severe anxiety disorder is Posttraumatic Stress Disorder (PTSD). PTSD is a diagnosis characterized by the aftermath of a traumatic event (eg, combat, sexual assault), during which a person experiences feelings of intense fear, helplessness, and horror. Symptoms include intrusive recollections and re-experiencing in the form of distressing memories and flashbacks; avoidance of thoughts, feelings and situations associated with the traumatic event; emotional numbing; and hyperarousal.39 Because the practice of MM is contrary to the avoidance that is characteristic of PTSD,40 when individuals initially engage in MM they may, thus, encounter avoided affect and experiences in a form that is extremely distressing (eg, flashbacks, intrusive thoughts and memories) and may put them at risk for potential retraumatization. In order to address contraindication status (eg, absolute, relative, matter worthy of consideration) for participants with a history of trauma or a diagnosis of PTSD, we must first identify the specific research purpose.41 To illustrate, we provide a sample screener schematic for PTSD in Figure 1.

Image

Table 1. Side Effects of Meditation With Possible Adverse Reactions

Source and Study Design / Adverse Effects / Category of Side Effects* / Meditation Type / Meditation Duration/Intensity Description


Castillo43: multiple case study / • In all cases there were reports of Depersonalization, Derealization. Note: 3 of the 6 cases experienced symptoms after extended residential courses / MH / TM / Individual practices (daily frequency/duration not reported) and extended residential courses.

Chan-Ob and Bonnyanarunthee 36: multiple case studya / • Case 1: Reports of psychotic symptoms, including Hallucinations, Fear of persecution, Disorientation, Poor insight and judgment, Reduced food intake (note: patient’s prior history of hypophagia not reported), Insomnia reported as complete sleep loss (note: patient’s prior history of insomnia not reported); • Case 2: Reports of psychotic symptoms, including Hallucinations, Delusions of grandeur, Thought disorder, Loss of appetite (note: patient’s prior history of hypophagia not reported), Inability to sleep (note: patient’s prior history of insomnia not reported) / MH, PH/MH, PH/MH, MH, PH/MH, PH/MH / specific type not reported / Case 1: symptoms reported after a 7-day intensive meditation retreat where it was suggested that one “…meditate all the time” (p 926); Case 2: symptoms reported after 3 consecutive nights of walking meditation throughout the night.

French et al79: single case study / • Feelings of anxiety, Feelings of intense dysphoria, Feelings of mania, including!euphoria/grandiosity, Reports of psychosis-like behavior / MH, MH, MH, MH / TM / Individual practice (daily frequency/ duration not reported)

Jaseja51: review / • Increased epileptogenisis susceptibility / PH / Various methods / This is a theory paper reporting EEG and neurochemical meditation effects.

Kennedy80: multiple case study / • Case 1: Reports of depersonalization and derealization, including Autoscopy, Double vision, Grandiosity/elation; Case 2: Reports of depersonalization and derealization, Feelings of anxiety / MH, MH / MM / Two cases with individual practices. Case 1: meditation described as awareness training and yoga (daily frequency/ duration not reported); Case 2: regular Arica practiceb (reports practice on most days of the week for an unspecified duration)

Lazarus81: multiple case summary / • Feelings of depression, including Attempted suicide following a weekend training course in TM (note: details of the attempt and patient’s history of prior suicide attempts not reported), Feelings of anxiety, including Tension, Restlessness/extreme agitation, Reports of severe depersonalization / MH, MH, MH, PH / TM / The author summarizes a collection of clinical observations precipitated by individual TM practice (daily frequency/duration not reported).

Persinger49: single case study / EEG revealed focal, temporal lobe, epileptic-like electrical changes recorded after 19 minutes of TM. / PH / TM / 10-year TM veteran observed during a 30-minute session

Persinger82: survey study / Significantly more complex partial epileptic-like signs (ascertained from an author generated inventoryc) observed in meditators compared to nonmeditators./ PH / TM / 1081 university students were surveyed; 221 of those surveyed were experienced meditators

Sethi and Bhargava 83: multiple case study / • Case 1: Reports of psychosis, including Delusions of persecutions/reference, Auditory hallucinations; • Case 2: Reports of religious delusions / MH, MH/SH / Type not specified / Case 1 participated in 4 days of intensive meditation in isolation; Case 2 participated in a 6-day residential retreat

Shapiro38: secondary analysis on a convenience sample / • Feelings of depression, including Decreased life motivation/boredom, Increased negativity/self-judgment, Feelings of anxiety, including Panic and/or tension, Feelings of dissociation, including Disorientation/confusion, Feelings of meditation “addiction”, Reports of pain / MH, MH, MH, MH, PH / Vipassana / Residential retreat; 2-week or 3-month duration with formal practice occurring a minimum of 10 hours/day.

VanderKooi84: multiple case study / • Case 1: Report of psychotic break with Hallucinations, Religious delusions; • Case 2: Report of psychosis, including Hallucinations, Intense fear and loneliness; • Case 3: Report of psychosis, including Hallucinations, Religious delusions / MH/SH, MH, MH/SH / Zen, TM, MM / Three cases of psychosis following residential retreats. Case 1: 7-day Zen retreat, Case 2: 10-day Theravada retreat, Case 3: weekend MM retreat.

Yorston85: single case study / • Feelings of mania, including Increased talkativeness, Overactivity/restlessness, Distractible, Sexual disinhibition, Reports of psychotic symptoms, including Thought disorder with flight of ideas, Grandiose delusions, Insomnia involving 5-days of reported sleeplessness (note: prior history of insomnia not reported). / MH, MH / Yoga and Zen (Sesshin) meditation / Yoga was described as a weekend class. Sesshin was described as an intensive weekend event. The patient also participated in a 2-month Zen Buddhist retreat (frequency/duration of daily practice not reported).

*MH=Mental Health, MM=Mindfulness Meditation, PH=Physical Health, SH=Spiritual Health, TM=Transcendental Meditation

aSymptoms for the third case are not reported due to the presence of a known psychotic illness prior to the meditation course. bArica is a multifaceted practice involving kath-channel breathing, mantrams, and yantras (see: http://www.arica.org for more information). cThe Personal Philosophy Inventory47,80 assesses 13 clusters of complex partial epileptic items, which identify temporal lobe phenomenology. In addition to the specific references listed, this table was compiled from the review articles of Arias et al68; Perez-De-Albeniz and Holmes36; Melbourne Academic Mindfulness Interest Group44; Lansky & St. Louis.48


As depicted in Figure 1, if the purpose of the study is to improve symptoms for a clinically diagnosed condition such as PTSD, then the study is classified as a clinical intervention. We posit that it is highly unlikely that such studies would receive Institutional Review Board (IRB) approval or extramural funding without the necessary safety precaution of including a clinician trained to treat PTSD on the research team; this is due to the fact that PTSD is an absolute contraindication under such circumstances. This is not to say that MM interventions for PTSD should not be performed. Support for the contrary comes from reports of beneficial findings from empirically validated treatments for trauma and PTSD that include a MM component.42 We address further positive MM outcomes in our discussion.

If, however, the purpose of the study is to investigate the effects of MM on a subclinical outcome (ie, not a diagnosable condition/illness) or to test an explanatory model (eg, a test of MM mechanisms of action), then including someone with PTSD in this example becomes a relative contraindication and screening at the outset of the study would assess inclusion: Basically, if conditions are met to provide adequate participant safety, such as inclusion of a trained clinician on the research team and obtaining informed consent, then inviting that participant to join the study may be appropriate if he or she meets all other inclusion criteria. For the researcher interested in exploring MM effects who is not clinically trained and does not have a member of their research team who is, we offer another option in our screening protocol (Figure 1) that will provide increased safety for potential participants. The option is to omit participants with mental health concerns such as PTSD in this example.

Image
Figure 1. Sample Screener Schematic for Posttraumatic Stress Disorder as an Example of a Mental Health Consideration for Studies of Mindfulness Meditation Effects

Finally, including a clinically trained person on the research team or having such a person available for consultation and referral throughout the duration of the study may achieve maximum safety in MM research. For each of the mental health consequences listed in Table 1, a screener schematic similar to Figure 1 could easily be generated by replacing PTSD with each condition of concern.

For example, another primary mental health concern associated with meditation as reported in the literature is temporary depersonalization, or feelings of being detached from one’s mental processes or body. Certain types of meditation (eg, concentration practices like TM) have been found to induce depersonalization, possibly due to the related sensory deprivation. 43 Shapiro38 reports on 2 incidences (i.e., 7% of the sample studied) in which attendees at Vipassana retreats experienced severe enough symptoms that they stopped meditating. One had practiced 2 years or less prior to attending a 10-day retreat, which left him “totally disoriented. . .confused, spaced out”38. The other had 7 years or more of practice experience prior to attending a 3-month retreat. In a narrative he provided to the researcher he wrote “the mind set values that the retreat cultivated felt out of sync with the world. [Symptoms included]. . .lots of depression, confusion…severe shaking and energy releasing”38. Still, a recent study by Michal et al44 found an inverse relationship between mindfulness, which was operationally defined by self-reports using the Mindful Attention and Awareness Scale and depersonalization. It is unclear whether this association would generalize to interventions that involve MM practice. Until such time as empirical evidence is available, we offer our screener schematic to guide researchers in assessing contraindication status associated with depersonalization.

Another primary adverse effect within this mental health category is psychosis, which represents a loss of contact with reality and is characterized by the presence of symptoms including delusions, hallucinations, disorganized speech, and/or disorganized behavior.38 The sensory deprivation and lack of sleep that are sometimes associated with intensive meditation practice may serve as triggers for psychotic episodes among those who are predisposed to such a condition. As can be seen in Table 1, several case reports of psychotic episodes precipitated by meditation exist in the literature. While this may be attributed to meditation intensity, such as participation in residential retreats, the limited and preliminary nature of this evidence warrants a cautious approach to using meditation with individuals predisposed to psychosis. Cautions seem particularly important for individuals with acute psychosis, mania, or suicidality and those noncompliant with prescribed antipsychotic medications. For example, as detailed in Table 1, most reported instances of postmeditation psychosis followed very intensive meditation practices. 36, 83,85 The one report of attempted suicide following an intensive TM training course81 presented in Table 1 is hard to interpret given that the details of the attempt and the patient’s history of prior suicidal attempts are not reported. Thus, the conservative approach to protecting research participants would be to adjust the screener schematic we provide in Figure 1 to assess acute psychosis, mania, or suicidality so that the contraindication status of such individuals can easily be determined.

If proposed study outcomes do not include assessment of mental health, the general consensus among MM investigators is to still screen for mental health concerns as precautions.45 However, we must underscore that no standard exists for this practice nor do all empirical reports published provide details on this screening, leaving open the possibility that an investigator new to this field of research may fail to exercise such precautions. In addition, the means by which researchers determine the current and/or past mental health status of potential research participants is with structured psychiatric interviews. There are a few types of structured interviews available for research purposes such as the Composite International Diagnostic Inventory.46 Interviewer training is a prerequisite to use, in part, because the administration of these interviews is potentially harmful to respondents in and of themselves. For example, to screen for clinical levels of anxiety, participants are asked to recall stressful or potentially traumatic events, and these recollections may produce negative emotional reactions symptomatic of the anxiety condition. As we propose in our screener schematic, adding appropriately trained clinical professionals to the research team would improve participant safety.

Category 2: Physical Health Considerations

As reported in Table 1, adverse effects on physical health are the next most frequently reported negative consequence of meditation; these involve neurological and somatic problems. Based on the extant literature, the neurological concern surrounding meditation is increased epileptogenesis (ie, risk of seizures). Seizures are sudden disruptions in the brain’s electrical activity that give rise to altered consciousness and/or behaviors. Epilepsy is the clinical diagnosis for a condition characterized by recurrent seizures. According to the Epilepsy Foundation of America, more than 3 million Americans suffer from seizure disorders, and it is estimated that 6% of the US population will experience a seizure in their lifetime.47 While often scary to observers, most seizures are not life threatening. Conversely, status epilepticus, or longlasting/ continuous seizure, causes unconsciousness and respiratory distress.48 Moreover, the burden associated with a seizure occurrence extends beyond the actual event in terms of lifestyle limitations (eg, loss of driving privileges).

As reported in Table 1, occurrences of seizures during meditation exist.49,50 An emergent body of literature evinces electroencephalographic (EEG) alterations from meditation including MM. According to Jaseja, meditation-induced neuronal hypersynchrony and neurochemical increases in glutamate and serotonin may decrease the seizure threshold.51 Given that increased cortical gamma wave synchrony has recently been observed during MM in both experienced practitioners52 and meditation novices,5 screening for seizure history in potential MM research participants is warranted to maximize participant safety. Furthermore, the work of Jha et al53 reveals that subsystems of attention including focusing components are implicated in MM. This is noteworthy given that focused attention is epileptogenic54- 56 and is listed by the Epilepsy Foundation of America as a seizure trigger.57

Therefore in Figure 2, we provide a screener schematic for this neurological concern in adults as an example for the physical health considerations category. In instances where the research question involves the use of MM therapeutically for epilepsy, we label this as a neurology study, which would be performed under the care of a physician.

Based on the evidence referenced in Table 1, another physical health consideration with meditation is somatic discomfort or pain. In the manualized mindfulness-based therapies previously mentioned (eg, MBSR), consideration of discomfort is addressed by providing postural options for MM practitioners (eg, the use of a chair rather than sitting on the floor). Furthermore, some forms of MM involve physical activity (eg, walking meditation) that prevents the muscle/joint strain of maintaining a single posture during a MM session. Yet some scholars have begun to consider the need to deconstruct mindfulness- based therapy options in order to systematically investigate efficacy-effectiveness and explanatory models of the meditation components.41 With this movement, new considerations for participant safety are warranted. If, for example, a researcher wishes to systematically investigate the effects of a body-scan form of MM compared to Hatha yoga (a movement form of MM) on an outcome, kinesthetic concerns arise warranting participant screening for neuromuscular/joint-related illnesses negatively affected by maintaining a particular posture through the duration of a MM session.

Image
Figure 2. Sample Screener Schematic for Seizure Disorder/Epilepsy as an Example of a Physical Health Consideration for Studies of Mindfulness Meditation Effects in an Adult Sample

One such neuromuscular/joint-related illness is arthritis, a collective term used to label painful joint diseases. Common forms include rheumatoid arthritis, an autoimmune disease causing chronic pain, inflammation, and stiffness in several joints: and osteoarthritis, which is due to a loss of cartilage between joint bones typically affecting fewer joints more intermittently than the rheumatoid form. Immobility exacerbates both forms of arthritis, while moderate-intensity exercise is associated with symptom improvements.58,59

Sedentary MM results in joints being held in a certain position for up to 30 minutes or more. This may result in uncomfortable kinesthetic sensations (Table 1) from inactivity or fatigue of postural muscles if a certain posture is held for the duration of the practice. This type of discomfort is exacerbated in persons with arthritis,60 so to provide maximum safety for arthritic research participants active forms of MM (eg, walking) are advised. However, if the research goal is to test sedentary MM effects on some other outcome than arthritis symptoms, arthritis should be treated as a relative contraindication and would follow that pathway for screening in our Figure 2 schematic.

As also pointed out in Table 1, physical health concerns included loss of appetite, reduced food intake, and difficulty sleeping. These findings must be interpreted with caution as the reporting authors cited in Table 1 do not provide information on participants’ prior history with hypophagia or insomnia. Moreover, such side effects may not be adverse events. For example, hypophagia may be health promoting if it is the result of reduced anxiety leading to reductions in stress-induced eating.

Category 3: Spiritual Health Considerations

In Table 1, we also reference studies in which negative consequences to spiritual health, specifically cases of religious delusions, have been reported. Spirituality can be defined as the subjective dimension of religious experience.61,62 As a measurable construct, spirituality is multifaceted with components, including a search for truth and meaning in life with some level of transcendence and personal transformation.63 Spiritual wellbeing has been operationally defined as one’s overall sense of life purpose and satisfaction and one’s sense of well-being in relationship to God or other deity.64 This interconnection between religious and existential well-being encompassing one’s spiritual health may serve as a point of concern in MM research given the references to religious delusions we include in Table 1.

Protection from harm in this category is not a matter of screening per se; rather, it involves obtaining informed consent. For example, to adequately inform participants of their involvement in a study where they will engage in MM, the meditative components would be disclosed and questions regarding meditation are likely. Therefore, initially, it may be necessary to discuss with participants any negative associations of MM borne out of misunderstandings from history in an effort to abate any fears participants may have of violating their own foundational religious tenants by engaging in meditation. Briefly, MM practices are deeply rooted in the Buddhist tradition and are practiced in Buddhist monasteries throughout Southeast Asia. It was to these monasteries that Westerners began to travel to in the 1960s and 1970s specifically to learn to meditate. Some of these Western practitioners returned to the United States and pursued careers in psychology and medicine, and out of this fusion of Eastern and Western practices, the mindfulness tradition was acculturated.65,66 What may still linger in laymen’s thinking are the associations of MM with the 1960s and the monastic lifestyle, which in Western culture may carry certain stereotypes and expectations. While researchers could point out that traditions other than Buddhism, such as Hinduism and Christianity, recommend meditation to their followers or incorporate meditation as a form of worship (ie, TM or centering prayer, respectively), further elaboration will require education on the part of the researcher. Therefore, there is no clear-cut schematic we can offer researchers to address these spiritual concerns. Instead, to maximally protect participants by facilitating the acquisition of informed consent, MM specific education would be helpful.

It may also be necessary on occasion to address unrealistically positive associations or expectations associated with meditation, such as the attainment of blissful states or an escape from one’s day-to-day experience. Although MM practices may lead to states of peacefulness and deep relaxation, these expectations are secondary to the goals of the MM, which are to encourage nonjudgmental openness and awareness of all phenomena, including those that are challenging or unpleasant. Thus, an understanding of these goals is extremely helpful in clarifying misconceptions. In Table 2, we provide the type, source, and contact information for numerous educational opportunities in MM. Even a trained clinician or other healthcare provider may lack the ability to address participants’ questions regarding the spiritual nature of MM if their training did not include such study. We are not suggesting that knowledge of the dogma of all religious practices is necessary, rather the simple understanding of how MM differs from or compliments other techniques and practices would allow one to address concerns that may preclude garnering informed consent.
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Part 2 of 2

Another issue related to research safety, and one that is actively being debated among MM experts, is MM training for researchers. Although the general consensus is that training is needed, no standard exists.45 In Table 2, we provide researchers with numerous training options. Formal training exists for the few mindfulness-based interventions developed thus far. For example, clinically-oriented researchers interested in investigating the effects of a mindfulness-based approach to preventing relapse related to depression or substance use have available to them course options for in-depth training in these therapeutic approaches (MBCT31,32 and MBRP,29,30 respectively). For researchers investigating MM effects using methods other than the formal mindfulness-based interventions, we list online courses and resources for informal training (Table 2).

Table 2. Sources for Mindfulness Training

Type / Source / Web Address

Formal Training* / -- / --


MBSR / --Center for Mindfulness in Medicine, Healthcare, and Society, University of Massachusetts Medical School (Jon Kabat-Zinn and Saki Santorelli) / http://www.umassmed.edu/cfm/index.aspx

MBCT / University of Toronto, Department of Psychiatry; University of Oxford, Department of Psychiatry (Zindel Segal, Mark Williams and John Teasdale) / http://www.mbct.com

MBRP / Addictive Behavior Research Center, University of Washington, Department of Psychology (G. Alan Marlatt) / http://depts.washington.edu/ abrc/MBRP.htm

MB-EAT / The Center for Mindful Eating, Indiana State University, Center for the Study of Health, Religion and Spirituality (Jean Kristellar) / http://www.tcme.org

MB-CP / The Professional Development and Teacher Training Program at The University of California San Francisco Osher Center for Integrative Medicine / http://www.osher.ucsf.edu

Informal Training Available Online / -- / --

eMindful.com / -- / http://www.emindful.com

Mindful Healing Series / -- / http://www.aliveworld.com

Dharmaweb / -- / http://www.dharmaweb.org

Other Organizations That Offer Seminars/Educational Opportunities

Insight Mediation Society / -- / http://www.dharma.org

Mind and Life Institute / -- / http://www.mindandlife.org

Dharma Ocean Foundation / -- / http://www.dharmaocean.org

Mindful Awareness Research Center / UCLA Semel Institute / http://marc.ucla.edu/

Omega / Institute for Holistic Studies / http://www.eomega.org

Mindsight Institute / Dan Siegel / http://mindsightinstitute.com

Other Organizations That Offer Residential Retreats

Plum Village Practice Center / Thich Nhat Hanh / http://www.plumvillage.org

Spirit Rock / Founded by Dharma Foundation / http://www.spiritrock.org

Shambhala Mountain Center / Founded by Chögyam Trungpa Rinpoche / http://www.shambhalamountain.org

Common Ground Meditation Center / Mark Nunburg / http://www.commongroundmeditation.org

ART / Awareness and Relaxation Training / http://www.mindfulnessprograms.com

Hollyhock / -- / http://www.hollyhock.ca/cms

Dharma Ocean Retreat Center / Reggie Ray / http://www.dharmaocean.org

Santa Barbara Institute for Consciousness Studies / B. Alan Wallace / http://www.sbinstitute.com

Other Resources

The Meditation Spot / Contains numerous resource links / http://www.aboutmeditation.com

The Institute for Meditation and Psychotherapy / -- / http://www.meditationandpsychotherapy.org

*MBSR=Mindfulness-based stress reduction, MBCT=Mindfulness-based cognitive therapy, MBRP=Mindfulness-based relapse prevention,M B-EAT=Mindfulness-based eating awareness training, MB-CP=Mindfulness-based Childbirth and Parenting, ART=awareness and relaxation training, UCLA=University of California, Los Angeles.


We stress again, that currently no prerequisite training standard for researchers exists. As such, MM interventions may be taught and investigated by well-intentioned but inadequately trained researchers creating another safety issue: iatrogenic harm. Another option for researchers interested in investigating the effects of MM but lacking the personal skills and expertise required to conduct these interventions is to hire an MM expert who can both deliver the intervention and guide the researcher in development and execution of the research protocol.

And finally, related to the subject of training is the issue of self-practice. While the popular opinion is that maintaining a MM practice is a necessary first step towards credible and safe MM instruction,45 again, no standard for this exists. We suggest that just as it would be unrealistic to expect someone who had never exercised before to have the cardiorespiratory endurance, physical strength, and simple know-how to instruct a group exercise class, it is also unrealistic for someone with no meditation experience to have the mental endurance, flexibility, and ability to model MM for research participants. In the Buddhist tradition, MM teachers were seen as experienced guides escorting individuals on a deep inward journey.67(p74) Keeping with this tradition then, if a MM researcher plans to conduct a research study without the guidance and support of an MM expert and has not visited this territory before, his or her ability to safely guide a research participant will be limited. The mindfulness- based interventions listed in Table 2 all consider modeling an attitude of openness and nonjudgement to be a foundational skill to teaching MM; these are skills that come from personal practice. Further, MM essentially involves private experience, and it is therefore quite difficult, if not impossible, to understand unless one has done it oneself. Therefore, an inexperienced researcher may be unable to answer participant questions, again preventing the acquisition of informed consent. Therefore in Table 2, we offer numerous resources to assist researchers in developing their own self-practice.

Furthermore, we suggest that those new to MM consult with a more experienced practitioner. Interestingly, this is how the practice of MM was shared historically within the Theravada tradition. Theravada means “way of the elders.” This tradition stresses the importance of passing foundational teachings along generational lines. The elders shared the guidelines regarding the training of teachers and students and the standards of safety built into this type of training. More advanced practitioners have years of personal experience from their own practice and instruction to draw upon in teaching novices. This leadership can help novices deal with their own insecurities or perceived barriers to MM such as feelings of skepticism, embarrassment, and self-judgment while offering tools to guide them on their paths.68 While it appears that rich training from spiritual teachers has informed a few of the developers of mindfulness-based methods (eg, in Coming to Our Senses, Jon Kabat-Zinn writes of his studies with Zen master Seung Sahn,69 and Alan Marlatt writes of numerous spiritual teachers including Pema Chödron in his Personal Journey68), this practice does not appear customary among MM researchers, which is curious given how common consulting and interdisciplinary collaboration has become in scholarly activities.

DISCUSSION

Our purpose was to address issues of participant screening, research safety, and researcher training in the MM field of study; it was not to evaluate the validity of reported adverse events in the studies cited. Rather, the studies cited herein were used for the purposes of creating guidelines and assessing potential areas of difficulty. We summarize research that supports 3 categories of health-related concerns that may be negatively affected by MM, namely, physical, mental, and spiritual health considerations. Drawing upon the extant literature, we provide examples of risks within each of these categories, and we provide step-by-step participant screening schematics or offer research safety procedures applicable to MM research. Given that no standard for prerequisite training or self-practice exists for MM researchers we provide many resources for MM training and education in an effort to reduce iatrogenic harm.

We recognize that limitations to safety assertions exist at this time. For example, the majority of the reports cited in Table 1 are case studies or secondary analyses reporting adverse effects in a post-hoc fashion. For example, the cited case reports of psychotic episodes precipitated by meditation occurred in participants attending intensive meditation retreats rather than brief mindfulness interventions.70 These retreats are not only rigorous in the intensity and duration of meditation practiced, but any adverse effects of MM are confounded by factors such as sensory deprivation, loss of sleep, and fasting, all of which may serve as precipitants for a psychotic episode. Thus, it is difficult to interpret the direct nature of the relationship between meditation and adverse outcomes based on these and similar reports.

The greatest limitation lies in the simple impracticability of directly and systematically investigating meditation-induced harm. Thus, as we posited earlier, a cautious approach to using meditation in research is warranted in the face of the limited and preliminary nature of current evidence in order to maximize participant safety.

It is important to note that MM practice is different from interventions such as MBSR that includes MM practices along with a discussion of the effects of stress or MBCT that is an integration of MM with cognitive-behavioral exercises and activities. However, the practices included in these interventions are traditional MM practices (eg, body scan, sitting meditation). Further, these practices are at the core of these programs and designate these programs as being “mindfulness-based.” Thus, it is our opinion that the considerations that exist for these interventions should be the same as those that exist for other MM practices.

As a show of our strong support for clinical investigations of MM therapeutic effects, we point out that an emergent body of research suggests therapeutic benefits for some of the risks we have listed here. To date, research evinces benefits from mindfulness- based interventions for several mental illnesses, including mood,71 psychotic,72 and anxiety disorders24 as well as prenatal stress and depression.73 Similarly, therapeutic benefits from mindfulness-based interventions exist for physical ailments including neuromuscular disorders,74,75 chronic pain10,76 and neurological conditions.77,78 Again we underscore that these clinical interventions are being carried out by those with specific training aimed at protecting the patients they serve. Furthermore, administrators of some mindfulness-based interventions (eg, MBSR), require that patients receive a complete medical examination prior to participating in the program.28 Yet it is because of our support for and our active involvement in MM research that we recognize a lack of reporting of safeguards. In this paper, we summarize research safety concerns, offer participant screening guidelines, and provide information on MM training and education, in an effort to reach the scientific community- at-large. For it remains of utmost importance that scholars protect research participants, especially those who belong to high-risk/special populations, by appropriately assessing risk and determining contraindication status until such time as empirical evidence proves the safe inclusion of all persons in general MM research.

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