Pārājika

1. Should any bhikkhu — participating in the training and livelihood of the bhikkhus, without having renounced the training, without having declared his weakness — engage in sexual intercourse, even with a female animal, he is defeated and no longer in affiliation.

As we noted in Chapter One, the first formulation of this rule followed on Ven. Sudinna's having had sex with one of his former wives. His motives, by worldly standards, were relatively noble: He was complying with his parents' desire that he provide them with an heir. However, in the incident leading to the second formulation of this rule — in which the Buddha added the phrase "even with a female animal" — the instigator's motives were considerably less so.

The full offense here is composed of four factors: effort, object, knowledge, and consent.

Effort. The term sexual intercourse refers to all kinds of sexual intercourse involving genitals (literally, the "urine path" (passāva-magga) — i.e., a woman's vagina or a man's penis); the anus (vacca-magga); or the mouth (mukha). The Vibhaṅga summarizes the various possible combinations of these orifices, and concludes that this rule covers all of them except for mouth-to-mouth (which is treated separately under Saṅghādisesa 2, below). Unfortunately, its summary is couched in technical terminology, using magga (path) to mean either the genitals or the anal orifice, and amagga (not-path) to mean the mouth. The Commentary, in discussing the summary, mistakenly classifies the mouth as a magga as well, and so has to invent a different meaning for amagga: a wound bordering on one of the three maggas. Because the Commentary's discussion of this point is based on a misunderstanding, there is no need to pursue it in further detail.

Sexual intercourse has been performed when, in any of the possible combinations covered by this rule, one organ enters the other even if just to "the extent of a sesame seed." This means that a bhikkhu engaging in genital, oral, or anal intercourse is subject to this rule regardless of which role he plays. The question of whether there is a covering, such as a condom, between the organs is irrelevant, as are the questions of whether the bhikkhu is actively or passively involved, and whether any of the parties involved reaches orgasm.

Object. The full penalty under this rule applies to any voluntary sexual intercourse with a human being, a "non-human" being (a yakkha, nāga, or peta), or a common animal, whether female, male, neuter, or hermaphrodite.

Performing sexual intercourse with a dead body — even a decapitated head — also entails the full penalty if the remains of the body are intact enough for the act to be accomplished.

In addition, the Vinita-vatthu lists two examples of "self-intercourse": A bhikkhu with a supple back takes his penis into his mouth, and a bhikkhu with an unusually long penis inserts it into his anus. Both cases carry the full penalty.

Knowledge & consent. For sexual intercourse to count as an offense, the bhikkhu must know that it is happening and give his consent. Thus if he is sexually assaulted while asleep or otherwise unconscious and remains oblivious to what is happening, he incurs no penalty. If, however, he becomes conscious during the assault or was conscious right from the start, then whether he incurs a penalty depends on whether he gives his consent during any part of the act.

Strangely enough, neither the Canon nor the Commentary discusses the factor of consent in any detail, except to mention by way of passing that it can apply to the stage of inserting, being fully inserted, staying in place, or pulling out. From the examples in the Vinita-vatthu, it would appear that consent refers to a mental state of acquiescence, together with its physical or verbal expression. Mere physical compliance does not count, as there are cases where bhikkhus forced into intercourse comply physically but without consenting mentally and so are absolved of any offense. However, there is also a case in which a woman invites a bhikkhu to engage in sexual intercourse, saying that she will do all the work while he can avoid an offense by doing nothing. The bhikkhu does as she tells him to, but when the case comes to the Buddha's attention, the Buddha imposes a pārājika on the act without even asking the bhikkhu whether he consented or not. The assumption is that complying with a request like this indicates consent, regardless of whether one makes any physical or verbal movement at all.

Taken together, these cases imply that if one is sexually assaulted, one is completely absolved from an offense only if (1) one does not give one's mental consent at any time during the act or (2) one does feel mental consent during at least part of the act but puts up a struggle so as not to express that consent physically or verbally in any way. (As the Commentary notes, drawing a general principle from the Vinita-vatthu to Pr 2, mere mental consent without physical expression is not enough to count as a factor of an offense, for there is no offense simply in the arising of a thought or mental state.) If one puts up no struggle and feels mental consent, even if only fleetingly during the stage of inserting, being fully inserted, staying in place, or pulling out, one incurs the full penalty. This would seem to be the basis for the Commentary's warning in its discussion of the Vinita-vatthu case in which a bhikkhu wakes up to find himself being sexually assaulted by a woman, gives her a kick, and sends her rolling. The warning: This is how a bhikkhu still subject to sensual lust should act if he wants to protect his state of mind.

The Vinita-vatthu contains a case in which a bhikkhu with "impaired faculties" — one who feels neither pleasure nor pain during intercourse — engages in intercourse under the assumption that his impairment exempts him from the rule. The case is brought to the Buddha, who states, "Whether this worthless man did or didn't feel [anything], it is a case involving defeat." From this ruling it can be argued that a bhikkhu indulging in intercourse as part of a tantric ritual incurs the full penalty even if he doesn't feel pleasure in the course of the act.

Derived offenses. The only thullaccaya directly related to this rule is for the unlikely case of a bhikkhu who attempts intercourse with the decomposed mouth, anus, or genitals of a corpse. To attempt intercourse with any other part of a dead body or with any part of an insentient object, such as an inflatable doll or mannequin, incurs a dukkaṭa. (If this led to an ejaculation, however, the case would be treated under Sg 1.)

The Vibhaṅga states that if a bhikkhu attempts intercourse with any part of a living being's body apart from the three orifices, the case falls under the saṅghādisesa rules — either Sg 1 for intentional ejaculation or Sg 2 for lustful bodily contact. As we shall see below, the penalties assigned in the latter case are as follows: if the partner is a woman, a saṅghādisesa; if a paṇḍaka (see Sg 2), a thullaccaya; if a man or a common animal, a dukkaṭa. We can infer from the Vibhaṅga's ruling here that if a bhikkhu has an orgasm while attempting intercourse with the decomposed mouth, anus, or genitals of a corpse, with any other part of a dead body, or with any part of an insentient object, the case would come under Sg 1.

The Commentary disagrees with the Vibhaṅga on these points, however, saying that the derived offenses under this rule can include only dukkaṭa and thullaccaya penalties. In its explanation of Sg 1, it sets forth a system of eleven types of lust in which the lust for the pleasure of bringing about an ejaculation, lust for the pleasure of bodily contact, and lust for the pleasure of intercourse are treated as completely separate things that must be treated under separate rules. Thus, it says, if a bhikkhu aiming at intercourse takes hold of a woman's body, it is simply a preliminary to intercourse and thus entails only a dukkaṭa, rather than a saṅghādisesa for lustful bodily contact. Similarly, if he has a premature ejaculation before beginning intercourse, there is no offense at all.

These are fine academic distinctions and are clearly motivated by a desire to draw neat lines between the rules, but they lead to practical problems. As the Commentary itself points out, if a bhikkhu commits an act that falls near the borderline between these rules but cannot later report precisely which type of lust he was feeling in the heat of the moment, there is no way his case can be judged and a penalty assigned. At any rate, though, there is no basis in the Canon for the Commentary's system, and in fact it contradicts not only the Vibhaṅga's ruling mentioned above, but also its definition of "lustful" under Sg 2, 3, & 4, which is exactly the same for all three rules and places no limits on the type of lust involved. All of this leads to the conclusion that the Commentary's neat system for classifying lust is invalid, and that the Vibhaṅga's judgment holds: If a bhikkhu attempts intercourse with any part of a living being's body apart from the three orifices, the case falls under the saṅghādisesa rules — either Sg 1 for intentional ejaculation or Sg 2 for lustful bodily contact — rather than here.

Blanket exemptions. In addition to bhikkhus who do not know they are being assaulted or do not give their consent when they do know, the Vibhaṅga states that there are four special categories of bhikkhus exempted from a penalty under this rule: any bhikkhu who is insane, possessed by spirits, delirious with pain, or the first offender(s) (in this case, Ven. Sudinna and the bhikkhu with the monkey) whose actions prompted the Buddha to formulate the rule. The Commentary defines as insane anyone who "goes about in an unseemly way, with deranged perceptions, having cast away all sense of shame and compunction, not knowing whether he has transgressed major or minor training rules." It recognizes this as a medical condition, which it blames on the bile. As for spirit possession, it says that this can happen either when spirits frighten one or when, by distracting one with sensory images, they insert their hands into one's heart by way of one's mouth (!). Whatever the cause, it notes that insane and possessed bhikkhus are exempt from penalties they incur only when their perceptions are deranged ("when their mindfulness is entirely forgotten and they don't know what fire, gold, excrement, and sandalwood are") and not from any they incur during their lucid moments. As for a bhikkhu delirious with pain, he is exempt from penalties he incurs only during periods when the pain is so great that he does not know what he is doing.

These four categories are exempted from penalties under nearly all of the rules, although the first offender for each rule is exempted only for the one time he acted in such a way as to provoke the Buddha into formulating the rule. I will only rarely mention these categories again, and — except where expressly stated otherwise — the reader should bear them in mind as exempt in every case.

Lastly, the Vinita-vatthu to this rule includes an interesting case that formed the basis for an additional rule:

The bhikkhu incurred no penalty, but the Buddha gave formal permission to close the door when resting during the day. From this permission, the Commentary formulates a prohibition — that a bhikkhu incurs a dukkaṭa if he does not close the door when sleeping during the day — but if the Buddha had intended a prohibition, he surely would have stated the rule in that form himself. In other words, one may sleep during the day without being penalized for whether the door is open or not.

Summary: Voluntary sexual intercourse — genital, anal, or oral — with a human being, non-human being, or common animal is a pārājika offense.

2. Should any bhikkhu, in what is reckoned a theft, take what is not given from an inhabited area or from the wilderness — just as when, in the taking of what is not given, kings arresting the criminal would flog, imprison, or banish him, saying, "You are a robber, you are a fool, you are benighted, you are a thief" — a bhikkhu in the same way taking what is not given also is defeated and no longer in affiliation.

This rule against stealing is, in the working out of its details, the most complex in the Pāṭimokkha and requires the most explanation — not because stealing is a concept especially hard to understand, but because it can take so many forms. The Canon treats the issue in a case-by-case fashion that resists easy summary. To further complicate matters, the Commentary's discussion of this rule is extremely prolix and deviates frequently from the Canon's in both major and minor ways. Because the deviations are so numerous, we will focus solely on the major ones.

The Vibhaṅga defines the act of stealing in terms of four factors.

Stealing under any circumstances is always an offense. However, the severity of the offense depends on another factor, which is —

Object. For an object to qualify as what is not given — the rule's term for anything that may be the object of a theft — it must belong to someone else: "not given, not forfeited, not abandoned/discarded; guarded, protected, claimed (§ — literally, 'viewed as "mine"'), possessed by someone else." In all of the Vibhaṅga's cases under this rule, that "someone else" is either an individual human being or a group of human beings. The question of property belonging to the Saṅgha logically fits here, but because the topic is fairly complex we will discuss it as a special case below.

Because items that have been given away or discarded do not fulfil the factor of object here, there is no offense for a bhikkhu who takes a discarded object — such as rags from a pile of refuse — or unclaimed items from a wilderness. The Commentary, in some of its examples, includes items given up for lost under "abandoned," but this interpretation has to be heavily qualified. If the owner retains a sense of ownership for the lost item, it would fall under the term claimed, and thus would still count as not given. Only if the owner abandons all sense of ownership would it genuinely count as abandoned.

The Vinita-vatthu mentions an interesting case in which the groundskeeper in an orchard permits bhikkhus to take fruit from the orchard, even though he was not authorized to do so. The bhikkhus committed no offense.

The Commentary adds that if people are guarding an object as the property of a location — for example, an offering to a Buddha image, cetiya, or other sacred place — the object would also qualify as "not given" under this rule. Although the Vibhaṅga mentions property of this sort under NP 30 and Pc 81, for some reason it doesn't mention it here. Nevertheless, the Commentary's judgment on this point reflects a custom that had become widespread by its time, that of giving valuable items to a cetiya (this includes Buddha images) and dedicating them not to the Saṅgha but to the cetiya. Some medieval Indian Buddhist inscriptions express the idea that the cetiya or the Buddha relics (if any) within the cetiya actually own such objects, but the Commentary states that these objects have an owner simply in the sense that human beings are watching over them for the purpose of the cetiya. The jewels decorating the reliquary of the Sacred Tooth in Kandy or the offerings to the Emerald Buddha in Bangkok, for example, would fall under this category. According to the Commentary, the Saṅgha is duty-bound to care for such items but has no rights of ownership over them. In its discussion both of this rule and of Pv.XIX, it states that items given to the Saṅgha may be used for the purpose of the cetiya — for example, to contribute to its decoration or upkeep — but items given to the cetiya may not be used for the purpose of the Saṅgha.

From the Commentary's discussion of this type of ownership, it would appear that if there are no longer any human beings watching over a cetiya, the items donated to it would no longer count as having an owner and thus could be removed for safekeeping, preferably to another cetiya. Any bhikkhu who took such items for himself, however, would be risking the wrath of the devas who might be guarding the cetiya. This is why it is traditional in such cases to conduct a ceremony formally requesting the permission of any guardian devas, at the same time promising not to take such items for one's own use.

Items belonging to common animals or petas are not covered by this rule. On this point, see the discussion under Non-offenses, below.

Perception. For the act of taking what is not given to count as theft, one must also perceive the object as not given. Thus there is no offense if one takes an object, even if it is not given, if one sincerely believes that it is ownerless or thrown away. Similarly, if a bhikkhu takes an object mistaking it for his own or as belonging to a friend who has given him permission to take his things on trust, there is no offense even if the assumption about the trust proves to be a misperception. Also, a bhikkhu who takes things from the Community's common stores, on the assumption that he has the right to help himself, commits no offense even if the assumption proves false.

The Vinita-vatthu contains a case in which a bhikkhu, spotting some objects during the day, returns to steal them at night. However, instead of taking the objects he spotted, he ends up taking some possessions of his own. He earns a dukkaṭa for his efforts.

None of the texts discuss the possible case in which one might be in doubt as to whether the object in question is not given, perhaps because the compilers felt that the factor of intention, discussed next, would not apply in such cases. Thus it would not be an offense under this rule. However, the wise policy when one is in doubt about an item's ownership would be not to take the item for one's own, or at most to take it on loan, as explained below.

Intention. The act of taking what is not given, even when one perceives it as not given, counts as theft only if one's intention is to steal it. Thus, as the non-offense clauses say, a bhikkhu incurs no offense if he takes an object temporarily or on trust. On these points, see the discussion under Non-offenses, below. Also, the Vinita-vatthu rules that a bhikkhu who, seeing an article left in a place where it might be damaged, puts it in safe keeping for the owner, commits no offense.

The Commentary discusses two cases of taking an item with a conditional intent (parikappāvahāra): placing a condition on the article, and placing a condition on the place. It illustrates the first case with the example of a bhikkhu entering a dark storeroom and taking a sack full of items, thinking, "If the sack contains cloth, I'll steal it; if it contains just thread, I won't." In this case, if the sack does indeed contain cloth, then it was stolen the moment the bhikkhu moved the sack from its place (see below). If it contains just thread, and he returns it to its place, he commits no offense. If, however, the bhikkhu takes the sack thinking, "I'll steal whatever is in the sack," the Commentary maintains that he is not guilty of stealing until he finds out what the sack contains and then picks it up again, but this case does not really fit under this category, as the bhikkhu has actually placed no condition on the article and so stole it when he first picked it up.

Placing a condition on the place means thinking, "If I can take this item past such-and-such a place (such as a gateway), I'll steal it; if anyone sees me beforehand, I'll pretend that I'm just looking at it and will return it to its place." Because one has not definitely decided to steal it when first picking it up, the theft is committed only when one takes the item past the determined place.

Effort. Assuming that all of the above conditions are met — the object belongs to someone else, one perceives it as belonging to someone else, and one intends to steal it — if one then takes it, that constitutes stealing. The question then arises as to precisely what acts constitute taking.

The Vibhaṅga, instead of giving a systematic answer to this question, provides a long list of possible situations and then defines how taking is defined in each case. Simply reading through the list can require some patience, and it's easy to sympathize with the bhikkhus in the past who had to memorize it. Here, to shorten the discussion, we will reverse its order, listing first the actions that qualify as taking and then the situations to which the actions apply. Actions requiring only minor clarification will be explained in the list; those requiring extended discussion will be explained below.

Moving the object from its place: objects buried in the ground; sitting on the ground; sitting on another object sitting on the ground; hanging from a place above ground, such as a peg or clothesline; floating, flying, or dropping in mid-air; sitting in a boat; sitting in a vehicle; an object that one has caused another person to drop; footless animals, animals that one might pick up or push from their place (according to the Commentary, this also covers larger footed animals that are lying down); objects that one has been asked to guard. The Vibhaṅga makes clear that items in a vehicle also count as taken when the vehicle is moved from its place.

"Cutting off" a fistful: objects inside a container. According to the Commentary, this means reaching into the container and grabbing, say, a fistful of coins in such a way that the coins in the fist do not touch any of the other coins in the container. In this case, the taking would be accomplished before the object was removed from the container.

Sticking a vessel into a pool of liquid or pile of objects and causing some of the pool or pile to enter the vessel: objects inside a container; water or any liquid, whether in a container or not. Again, the Commentary states that the objects or liquid in one's vessel must not touch the remaining objects or liquid outside the vessel. And, again, in the case of taking objects or liquid situated in a container in this way, the taking would be accomplished before the objects or liquid were removed from the container.

Removing entirely from the mouth of a container: objects too long or large to be taken from a container in a vessel or fistful.

Drinking liquid from a container: This would apply to drinking from the container without moving the container from its place. If the container is moved from its place, that would constitute the taking. As with the fistful, the Commentary argues that the liquid is taken only when the liquid ingested does not make contact with the liquid not ingested. This can be done either by swallowing, by closing one's lips, or by removing one's mouth from the container.

Moving the object from one part of one's body to another: an object that one is already carrying before deciding to steal it. The Vibhaṅga recognizes five body parts here: head, upper torso, hip, and each of the hands. The Commentary defines head as anything above the neck; upper torso as anything below the head down, on the torso, to the level of the sternum, and on the arm, to the elbow; hip as the remainder of the body below the upper torso; and hand as the arm from the elbow on down. The Commentary notes that this definition applies only to cases where the owners have not asked one to carry the article for them. Neither the Commentary nor the Sub-commentary explains this condition, but a possible reason might be that if they have asked a bhikkhu to carry the article for them, without their intending for him to give it to someone else, it would count as guarded by him or deposited with him for safe keeping, and thus would fall under another category. If, on the other hand, they asked him to carry the object to give to someone else and he decided to take it for himself, the case would come under Deceit, discussed below.

Dropping the object: an object one is already carrying before deciding to steal it.

Causing the object to move a hairbreadth upstream, downstream, or across a body of water: a boat or any similar vessel floating in water.

Breaking an embankment so that water flows out: water in a lake, canal, or reservoir.

Causing an animal to move all its feet: two-footed (this includes human beings, i.e., slaves), four-footed, many-footed animals. According to the Commentary, this applies whether one touches the animal or simply lures it or threatens it without touching it. If the animal is lying down, simply getting it to get up on its feet counts as taking it. In the case of helping a slave to escape from slavery, if the slave follows one's order or advice to escape, one is guilty of taking; but if one simply informs the slave of good ways to reach freedom or offers food or protection along the way, one incurs no offense.

Cutting down: plants growing in place, whether on dry land or in a body of water. The Commentary states that once the plant is cut totally through, then even though it doesn't yet fall down — as when a tree is entangled in the branches of neighboring trees — it is nevertheless taken.

Causing the owner to give up efforts (§) to regain possession: pieces of land (fields, orchards, building sites), buildings, objects deposited with a bhikkhu for safekeeping. (According to the Commentary, items loaned to a bhikkhu also fall into this category.) According to the Vibhaṅga, if a case of this sort goes to court, this type of taking is completed when the owner finally loses the case. The Vinaya-mukha adds that if the owner appeals the case after the first hearing, the taking is accomplished when the owner loses in the highest court to which he/she makes an appeal.

The discussion in the Commentary and Sub-commentary indicates that the two categories of "objects a bhikkhu has been asked to guard," and "objects deposited with a bhikkhu for safe keeping" differ in that in the latter case the object has been handed to the bhikkhu, whereas in the former it hasn't. This, however, does not fit with the Vibhaṅga, which in defining "deposited" uses the word upanikkhitaṃ, which in NP 18 means "placed down next to." A way to distinguish the two categories more closely in line with the Vibhaṅga would be to say that, in the latter case, the object is in such a location that the owner, in order to retrieve it, would have to ask the bhikkhu's permission to do so, whereas in the former he/she wouldn't. For example, an item placed in the bhikkhu's hut or a monastery storeroom would count as deposited with the bhikkhu — regardless of whether it had been handed to him — whereas an item set by the side of a public road — with the bhikkhu simply asked to watch over it for a short period of time — would count as an object he has been asked to guard.

Shifting a boundary marker: pieces of land. The Vinaya-mukha notes that this contradicts the preceding definition of how one takes a piece of land, as the owner might not even know that the marker had been moved, and would not necessarily give up ownership even if he/she saw a bhikkhu moving it. The Sub-commentary tries to explain the discrepancy by maintaining that shifting a boundary marker fulfils the factor of effort here only if the act of shifting the marker, in and of itself, induces the owner to give up any efforts to reclaim the land, but that would make this category superfluous. A better explanation would be that this definition of taking applies to attempts to lay claim to Saṅgha land, for otherwise — if land can be stolen only when the owner abandons ownership — then Saṅgha land could not be stolen, because there is no one acting for the Saṅgha of the Four Directions who could renounce once and for all any efforts to reclaim the land.

Exchanging lottery tickets: See Swindling, below.

Taking a dutiable item through a customs area without paying duty: See Smuggling, below.

Of these various ways of taking, the Commentary devotes the most space to the first, "moving the object from its place." Its discussion is at odds with the Canon on many points, most notably in striking out the separate categories for taking large objects from a container (removing it entirely from the mouth of a container) and boats (causing them to move a hair-breadth upstream, downstream, or across a body of water), and simply subsuming them under this category. Although it may have regarded these separate categories as arbitrary, it introduces many arbitrary distinctions and inconsistencies of its own. Apparently its distinctions come from the ancient commentaries, for even Buddhaghosa expresses despair at trying to commit them all to writing. Here we will stick with the Canon's scheme for defining the act of taking, and focus on the parts of the Commentary's discussion that accord with the Canon. As for those that deviate from the Canon, only important deviations will be noted.

In general, the Commentary defines an object's place in terms of the directions in which it can be moved: up, down (as when an object sitting on sand can be pushed down into the sand), left, right, forward (toward the person taking it), and away. With reference to the last five of these actions, the place of the object is defined in three-dimensional terms: the space it occupies. Thus to take an object in any of these directions, one must push or pull it entirely outside of the coordinates of the space it initially occupied. However, with reference to lifting the object up, the place is defined in two-dimensional terms: the area of contact between the object and its support, whether that support is another object or the ground. Thus to take an object by lifting it, one only need lift it a hairbreadth from its support.

For example, a television set on a shelf is taken either when it is slid left along the shelf to the point where its right side is just left of where the left side used to be, or slid right to the point where its left side is just right of where the right side used to be, or lifted a hairbreadth off the shelf.

Because objects in the air have no support, the Commentary defines their space in three-dimensional terms no matter which direction they are moved. For instance, if one catches a piece of cloth being blown by the wind, its place is the three-dimensional space it occupies at the moment one catches it. If one stops a flying peacock without touching it, its place is the three-dimensional space it occupies at the moment it stops to hover. In either case, the object is taken when displaced any direction outside the coordinates of that space. In the case of the cloth, this could be done simply by dropping it. In the case of the peacock, it could be done by waving one's hands and getting it to fly in the desired direction. If the peacock happens to land on one's arm, it is taken when one moves it to another part of one's body or puts it down.

For animals swimming in water, it would make sense to define place in the same terms as birds flying in the air, but the Commentary insists that the entire body of water in which they are kept constitutes their place.

Objects on a living person — such as a bracelet on the person's arm — have the person's body as their place. Thus if, in trying to remove the bracelet, one pulls it up and down the arm, it is not yet taken. It is taken only when one removes it entirely from the hand. If one is stealing the person's clothes, they are taken only when removed from his/her body. If the person, stripped of the clothes, is still holding onto them, they are taken only when pulled from his/her hand.

For some objects, the Commentary defines place in terms that seem rather arbitrary. For instance, a robe on a line is taken when it is lifted a hairbreadth off the line, but for some reason if it is moved along the line it is not taken until it is ten or twelve fingerbreadths away from the area it originally occupied on the line. An object leaning against a wall has two places: the spot where it sits on the ground and the spot it touches on the wall. A vehicle's place is defined two-dimensionally: the spots where its wheels touch the ground (perhaps this is defined on analogy with the feet of an animal). An object tied to a post has that connection as an extra part of its place. Thus a pot tied by a chain to a post is not taken until it is removed from the area it occupied under the general definition above and either the chain is cut or the post pulled up. Although there is a certain logic to each of these cases, the added distinctions seem unnecessary complications added to an already complicated issue. For simplicity's sake there would seem every reason to stick with the general definition of place even in these special cases, although there is nothing in the Vibhaṅga to prove or disprove the Commentary here.

However, as noted above, several of the Commentary's definitions of place clearly contradict the Vibhaṅga. In some cases, the contradiction is simple, as when the Commentary insists that an animal kept in an enclosure — a cow in a pen, a peacock in a garden — is taken not when its feet are moved, but only when removed from the enclosure. In other cases, the contradiction is more complex, in that the Commentary tries to define taking as "moving the object from its place" in cases where the Vibhaṅga defines the act of taking in other terms. For example, with an object sitting in the bottom of a container, it says that the object is taken when lifted a hairbreadth from the bottom, there being no need to remove the object from the container before it is considered taken. In the case of a boat, the Commentary defines the place of the boat in modified three-dimensional terms: the entire space where the boat displaces water. To take it by pushing it down in the water, the top of the boat has to sink lower than the level where the keel originally was; to take it by lifting it up, one need only lift it a hairbreadth above the water, there being no need to lift the keel to a point higher than where the highest point of the boat was. However, because the Vibhaṅga does not define the taking of boats or objects in containers in terms of "moving the object from its place," the Commentary's analysis of these possibilities is beside the point.

Other special cases in the Vibhaṅga include the following:

a. Swindling: Objects are being distributed by lot to the Community, and a bhikkhu takes the portion rightfully going to another bhikkhu. The Vibhaṅga offers no further explanation, but the Commentary states that the taking can be accomplished in various ways. If, after the drawing of the tickets, X puts his ticket in the place of Y's ticket before picking up Y's, the taking is accomplished when he picks up Y's. If he picks up Y's before putting his own ticket in its place, the taking is accomplished when he lets go of his own. If both tickets don't appear (they've been concealed?) and X gets Y to take X's portion, the taking is accomplished when he then picks up Y's portion. The underlying assumption in all this is that Y's portion belongs to him as soon as he has drawn the ticket for it. The Commentary adds that this exchange counts as theft regardless of whether X's portion is worth more than Y's, less than Y's, or the two portions are of equal value.

The Commentary to Mv.I.62 adds that if a bhikkhu claims higher seniority than is actually his in order to obtain better donations, he should be treated under this rule when, through this ruse, he obtains donations that should have gone to another bhikkhu. However, this type of action would appear to fall under Deceit, discussed below.

b. Smuggling: A bhikkhu carrying items subject to an import duty hides them as he goes through customs. The taking is accomplished when the item leaves the customs area. The Vibhaṅga calculates the value of the object here, for the purpose of determining the seriousness of the offense, by the duty owed on it, and not its actual selling price.

The Vinita-vatthu states that there is no penalty if the bhikkhu goes through customs not knowing that he has an item subject to import duties among his effects. The Commentary adds that if a bhikkhu informs the customs official that he has an item subject to customs duty and yet the official decides not to collect the duty, the bhikkhu incurs no penalty. It also states that if a bhikkhu goes through customs with a conditional intent — "If they ask to see my belongings, I'll pay the fee, but if they wave me through I won't" — then if the officials do wave him through without asking to see his belongings, he incurs no offense. At present, when people entering a country are asked to choose different passageways through a customs area, marked "Goods to declare" and "Nothing to declare," a bhikkhu with goods to declare who enters the "Nothing to declare" passageway cannot take advantage of this allowance for conditional intent, as he has already indicated an unconditional intent through his choice of a passageway.

The Vibhaṅga states that if, to avoid paying an import duty at a frontier, one crosses the frontier in such a way as to evade the customs area (§), one incurs only a dukkaṭa. At present, the civil law judges this sort of behavior as more reprehensible than slipping an item through customs, but from the point of view of the Vinaya the lesser penalty still holds. The Commentary says that this allowance applies only in cases when one evades the customs area by a distance of more than two leḍḍupātas — approximately 36 meters. (A leḍḍupāta is a unit of measure that appears frequently in the Canon and is defined as the distance a man of average stature can throw a clod of dirt underarm.)

The Vibhaṅga's position here is important to understand, for it has implications concerning the extent to which the evasion of other government fees and taxes would fall under this rule. The underlying assumption here seems to be that a dutiable item carried into a customs area is impounded by the king (or government). The payment of the duty is thus an act of recovering full ownership of the item. An item carried across the frontier without entering the customs area would not count as impounded, even though the king would probably claim the right to impound or even confiscate it if his agents apprehended the smuggler. Translated into modern terms, this would indicate that the evasion of other taxes claimed by the government — such as inheritance taxes — would incur the full penalty here only if the item being taxed was impounded on government property, and one evaded the tax by taking the item out of impoundment without paying the required fee. Otherwise, the penalty for tax evasion would be a dukkaṭa.

None of the texts discuss the question of contraband, i.e., articles that a customs official would confiscate outright rather than allow into a country after the payment of a fee. Apparently, such goods smuggled through a customs house would fall into this category, although — as even the payment of a fee would not legally get them through customs — their selling value would be the determining factor in calculating the seriousness of the offense.

c. Malfeasance: The Vinita-vatthu includes an unusual case in which a wealthy man with two heirs — a son and a nephew — tells Ven. Ajjuka, "When I am gone, show the place (where my treasure is buried) (§) to whichever of my heirs has the greater faith." After the man's death, Ven. Ajjuka sees that the nephew has the greater faith and so shows the place of the treasure to him. The nephew awards the Saṅgha with a large donation; the son accuses Ven. Ajjuka of having wrongfully deprived him of his rightful inheritance. On hearing this, Ven. Ānanda first accuses Ven. Ajjuka of a pārājika, but when the wealthy man's wishes are revealed, Ven. Upāli convinces Ven. Ānanda that Ven. Ajjuka committed no offense.

None of the texts discuss the details of this case, which seems to have postdated the Buddha's parinibbāna. The apparent assumption underlying the ruling is that when X dies, the inheritance he leaves to Y belongs to Y from the moment of X's death. Otherwise, the items in question would be ownerless until apportioned out among the heirs, and thus would not fulfill the factor of object under this rule. Also, the taking in this case would be accomplished in line with the Vibhaṅga's standard definition for taking with regard to the objects involved — and not necessarily when the cheated heir gives up trying to reclaim the inheritance — for in Ven. Ajjuka's case Ven. Ānanda was ready to impose a pārājika even though the son had not abandoned his claim.

d. Destruction of property: The Vibhaṅga states that if a bhikkhu breaks, scatters, burns, or otherwise renders unusable the property of another person, he incurs a dukkaṭa. Thus the simple destruction of property does not fulfill the factor of effort under this rule. The Vinita-vatthu contains a case in which a bhikkhu intends to steal some grass belonging to the Community but ends up setting fire to it instead, thus incurring a dukkaṭa. The Commentary notes that this ruling applies only because the bhikkhu did not move the grass from its place. What this means is that if he had first taken the grass from its place and then destroyed it in any way, the factor of effort under this rule would have been fulfilled and — all other factors of a pārājika offense being present — he would have been guilty of the full offense.

Special cases cited in the Commentary include the following:

a. False dealing: A bhikkhu makes counterfeit money or uses counterfeit weights. The taking is accomplished when the counterfeit is accepted. This case, however, would seem to fall under the category of Deceit (see below), in that the counterfeit is a form of a lie. If the owner of an object accepts the counterfeit and hands over an object in return, the object cannot be described as stolen. However, the object obtained in trade in this way would have to be forfeited under NP 20, and the Community, if it felt so inclined, could impose a disciplinary transaction on the offender (see BMC2, Chapter 20).

b. Robbery: Using threats, a bhikkhu compels the owner of an object to give it to him. The taking is accomplished when the owner complies. This would not count as giving because the owner is not giving the item willingly.

c. Concealing: A bhikkhu finds an object left on the ground and, to deceive the owner, covers it with dirt or leaves with the intent of stealing it later. If the owner, after searching for the item, temporarily abandons the search and the bhikkhu then picks it up, it is stolen when removed from its base. If the owner, deciding that the item is lost, abandons it for good before the bhikkhu picks it up, the Commentary says that the bhikkhu is not guilty of theft but owes the owner compensation. We have discussed the topic of lost items above, under Object, and will discuss the topic of compensation below.

The value of the object. As stated above, any case of stealing counts as an offense, but the gravity of the offense is determined by the value of the object. This is the point of the phrase in the rule reading, "just as when there is the taking of what is not given, kings... would banish him, saying... 'You are a thief.'" In other words, for a theft to entail a pārājika it must be a criminal case, which in the time of the Buddha meant that the goods involved were worth at least five māsakas, a unit of money used at the time. Goods valued collectively at more than one māsaka but less than five are grounds for a thullaccaya; goods valued collectively at one māsaka or less, grounds for a dukkaṭa. As the Commentary notes, the value of the articles is determined by the price they would have fetched at the time and place of the theft. As stated above, in the case of smuggling the Vibhaṅga measures the value of the object, for the purpose of this rule, as the duty owed on it, not the value of the object itself.

This leaves us with the question of how a māsaka would translate into current monetary rates. No one can answer this question with any certainty, for the oldest attempt to peg the māsaka to the gold standard dates from the V/Sub-commentary, which sets one māsaka as equal to 4 rice grains' weight of gold. At this rate, the theft of an item worth 20 rice grains' (1/24 troy ounce) weight of gold or more would be a pārājika offense.

One objection to this method of calculation is that some of the items mentioned in the Vinita-vatthu as grounds for a pārājika when stolen — e.g., a pillow, a bundle of laundry, a raft, a handful of rice during a famine — would seem to be worth much less than 1/24 troy ounce of gold. However, we must remember that many items regarded as commonplace now may have been viewed as expensive luxuries at the time.

In addition, there is one very good reason for adopting the standard set by the V/Sub-commentary: It sets a high value for the least article whose theft would result in a pārājika. Thus when a bhikkhu steals an item worth 1/24 troy ounce of gold or more, there can be no doubt that he has committed the full offense. When the item is of lesser value, there will be inescapable doubt — and when there is any doubt concerning a pārājika, the tradition of the Vinaya consistently gives the bhikkhu the benefit of the doubt: He is not expelled. A basic principle operating throughout the texts is that it is better to risk letting an offender go unpunished than to risk punishing an innocent bhikkhu.

There is a second advantage to the V/Sub-commentary's method of calculation: its precision and clarity. Some people have recommended adopting the standard expressed in the rule itself — that if the theft would result in flogging, imprisonment, or banishment by the authorities in that time and at that place, then the theft would constitute a pārājika — but this standard creates more problems than it would solve. In most countries the sentence is largely at the discretion of the judge or magistrate, and the factor of value is only one among many taken into account when determining the penalty. This opens a whole Pandora's box of issues, many of which have nothing to do with the bhikkhu or the object he has taken — the judge's mood, his social philosophy, his religious background, and so forth — issues that the Buddha never allowed to enter into the consideration of how to determine the penalty for a theft.

Thus the V/Sub-commentary's method of calculation has the benefits that it is a quick and easy method for determining the boundaries between the different levels of offense in any modern currency; it involves no factors extraneous to the tradition of the Vinaya, and — as noted above — it draws the line at a value above which there can be no doubt that the penalty is a pārājika.

The Commentary, arguing from two cases in the Vinita-vatthu, states that if a bhikkhu steals several items on different occasions, the values of the different items are added together to determine the severity of the offense only if they were stolen as part of a single plan or intention. If they are stolen as a result of separate intentions, each act of stealing is treated as a separate offense whose severity depends on the value of the individual item(s) stolen in that act. This point is best explained with examples:

In one of the Vinita-vatthu cases, a bhikkhu steals ghee from a jar "little by little." This, according to the Commentary, means that first he decides to steal a spoonful of ghee from a jar. After swallowing the spoonful, he decides to steal one more. After that he decides to steal another, and so on until he has finished the jar. Because each spoonful was stolen as a consequence of a separate plan or intention, he incurs several dukkaṭas, each for the theft of one spoonful of ghee.

If, however, he decides at one point to steal enough lumber to build himself a hut and then steals a plank from here and a rafter from there, taking lumber over many days at different places from various owners, he commits one offense in accordance with the total value of all the lumber stolen, inasmuch as he took all the pieces of wood as a consequence of one prior plan.

Derived offenses. In addition to the lesser offenses related to the value of the object, the Vibhaṅga also lists lesser offenses related to two factors of the full offense under this rule: effort and perception.

With regard to effort, the Vibhaṅga states that the derived offenses begin when one walks toward the object with the intent of stealing it, with each separate act — and in the case of walking toward the object, each step — incurring a dukkaṭa, up to a point just prior to the actual stealing where the offenses turn into thullaccayas. Where this point occurs depends on the act constituting the actual taking, as follows:

Moving the object from its place: all steps up through touching the object: dukkaṭas. Making the object budge without fully moving it from its place: a thullaccaya.

"Cutting off" a fistful: all steps up through touching the object: dukkaṭas. Making the object budge without fully cutting off a fistful: a thullaccaya.

Sticking a vessel into a pool of liquid or pile of objects and causing some of the pool or pile to enter the vessel: all steps up through touching the pool or pile: dukkaṭas. Making the pool or pile budge without fully getting five māsakas worth separated from the pool or pile and inside the vessel: a thullaccaya.

Removing entirely from the mouth of a container: all steps up through touching the object: dukkaṭas. Lifting the object: a thullaccaya. Bringing it up to the level of the mouth of the container: another thullaccaya.

Drinking liquid from a container: all steps up through drinking one māsaka worth of liquid as part of one prior plan (§): dukkaṭas. Drinking between one and five māsakas' worth of liquid: a thullaccaya.

Moving the object from one part of one's body to another or dropping it: all steps up through touching the object with the intent to move it or drop it: dukkaṭas. Moving it but not to the point of putting it on another part of the body or dropping it: a thullaccaya.

Causing a boat to move a hair-breadth upstream, downstream, or across a body of water: all steps up through loosening the moorings and/or touching it: dukkaṭas. Making the boat rock without causing it to move a hair-breadth upstream, downstream, or across a body of water: a thullaccaya.

Breaking an embankment so that water flows out: all steps up through breaking the embankment and letting up to one māsaka's worth of water flow out: dukkaṭas. Letting between one and five māsakas' worth of water flow out: a thullaccaya.

Causing an animal to move all its feet: all steps up through touching the animal: dukkaṭas. Getting it to move any of its feet prior to its moving its last foot: a thullaccaya for each step.

Cutting down: all steps prior to the next to the last chop needed to cut the plant through: dukkaṭas. The next to the last chop: a thullaccaya.

Causing the owner to give up efforts (§) to regain possession of objects handed to one for safe keeping: all steps up through telling the owner, "I didn't receive (§) it": dukkaṭas. Inducing doubt in the owner's mind as to whether he/she will get the object back: a thullaccaya. If the case goes to court and the bhikkhu loses, he incurs another thullaccaya.

Causing the owner to give up efforts (§) to regain possession of land: all steps us to laying claim to the land: dukkaṭas. Inducing doubt in the owner's mind as to whether he/she will lose the land: a thullaccaya. Again, if the case goes to court and the bhikkhu loses, he incurs another thullaccaya.

Shifting a boundary marker: all steps up through removing the boundary marker from its original place: dukkaṭas. Any steps between that and putting the boundary marker in a new place: thullaccayas.

Taking a dutiable item through a customs area without paying duty: all steps up through touching the object with the intent of taking it out of the customs area: dukkaṭas. Making the object move without fully moving it from the customs area: a thullaccaya.

The commentaries state that when a heavier penalty is incurred in offenses of this sort, only that penalty is counted, and the preceding lighter ones are nullified. They derive this principle from a passage in the Vibhaṅga to Sg 10-13 and, using the Great Standards, apply it to all the rules. Thus, for example, if a bhikkhu trying to steal a book simply touches it, he incurs a string of dukkaṭas for each step in walking up to the book and taking hold of it. If he budges the book slightly but not so much as to move it completely from its place, the dukkaṭas are nullified and replaced with a thullaccaya. If he actually takes the book, that nullifies the thullaccaya and replaces it with a pārājika.

There is some question, though, as to whether the compilers of the Canon intended the passage under Sg 10-13 to be taken as a general principle. They don't mention it under any of the other saṅghādisesa rules or in the otherwise parallel passage in the Vibhaṅga to Pc 68. Thus, the principle seems intended only for those four rules. To be on the strict side, it seems best to say that, unless otherwise noted, a bhikkhu who completes an act must make amends for all the offenses incurred in leading up to it. Under the pārājika rules this is a moot point, for once the pārājika is committed the offender is no longer a bhikkhu. But under the lesser rules this principle is still relevant.

As for the derived offenses related to the factor of perception, these deal with the situation in which an article does not qualify as not given under this rule — e.g., it has no owner, or the owner has given it up or thrown it away — and yet the bhikkhu perceives it as not given. If he takes it with intent to steal, he incurs a dukkaṭa for each of the three stages of effort. In the case of an object that can be stolen by moving it from its place, these would be: touching the object, making it budge, moving it from its place. A similar set of offenses would apply in the stages appropriate for taking any of the other types of objects listed above.

Accomplices. A bhikkhu can commit an offense not only if he himself steals an object, but also if he incites another to steal. The offenses involved in the acts leading up to the theft are as follows:

If a bhikkhu tells an accomplice to take an object that would be grounds for a pārājika, he incurs a dukkaṭa. When the accomplice agrees to do so, the instigator incurs a thullaccaya. Once the accomplice succeeds in taking the object as instructed — regardless of whether he gets away with it, and of whether he shares it with the instigator — the instigator incurs a pārājika. If the accomplice is a bhikkhu, he too incurs a pārājika. If the object would be grounds for a thullaccaya or a dukkaṭa, the only penalties incurred prior to the actual theft would be dukkaṭas.

The Commentary insists that if the accomplice is sure to take the item, the bhikkhu incurs a pārājika as soon as the accomplice agrees to take it. However, as the Vinaya-mukha notes, this contradicts the Canon, and there is no way to measure whether a proposed theft is a sure thing or not.

If there is any confusion in carrying out the instructions — e.g., if the accomplice, instead of taking the object specified by the instigator, takes something else instead; or if he is told to take it in the afternoon but instead takes it in the morning — the instigator incurs only the penalties for proposing the theft and persuading the accomplice, and not the penalty for the theft itself. The same holds true if the instigator rescinds his order before the theft takes place, but the accomplice goes ahead and takes the object anyway.

According to the Vibhaṅga, an instigator who wishes to call off the theft before it is carried out but who for one reason or another cannot get his message to the accomplice in time, incurs the full penalty for the completed theft.

The Commentary also adds that the factor of the thief's perception does not affect the penalties. In other words, if Bhikkhu A tells Bhikkhu B to steal object X, and B takes Y, thinking it to be X, A is absolved of any responsibility for the theft. Conversely, if B takes X, thinking it to be Y, A is guilty of the theft.

The Vibhaṅga also notes that if an instigator tells his accomplice to take an item when he (the instigator) makes a sign — such as winking (§) his eye, lifting his eyebrow, or lifting his head — he incurs a dukkaṭa in making this order, a thullaccaya if the accomplice agrees to do as told, and the full offense when the accomplice actually takes the item at the time of the sign. If the accomplice takes the item before or after the sign, though, the instigator incurs no offense. The Sub-commentary, noting that the signs mentioned in the Vibhaṅga are so fleeting that it would be impossible to take the item at the very moment of the sign, interprets this last statement as follows: If the accomplice starts trying to take the item right after the sign, then regardless of how much time that takes, it counts as "at the time of the sign." Only if he makes an appreciable delay before attempting the theft does it count as "after the sign."

We can extrapolate from this discussion and say that any physical gesture that, from the context of events, is intended and understood as an order to take an item, would count under the factor of effort here. This extrapolation will be useful when treating the unauthorized use of credit cards, below.

The Vibhaṅga states that if there is a chain of command involving two or more bhikkhus (not counting the instigator) — for example, Bhikkhu A telling Bhikkhu B to tell Bhikkhu C to tell Bhikkhu D to commit the theft — then when D agrees to commit the theft, the instigator incurs a thullaccaya. Once D takes the object as instructed, all four incur the penalty coming from the theft. If there is any confusion in the chain of command — e.g., Bhikkhu B instead of telling C tells D directly — neither A nor C incurs the penalty for the theft itself. Bhikkhu A would incur a dukkaṭa for telling B, whereas C would incur no penalty at all.

The Commentary notes that the instigator in any of these cases incurs the penalty only if he gives an explicit command to take the item (although this statement has to be qualified to include signs meant as commands, as mentioned above). If he simply tells his accomplice that such-and-such an item is located in such-and-such a place and would be easy to steal, he incurs no penalty even if the accomplice actually commits the theft. This point applies to many of the rules in which giving a command to do an action that would break the rule would also fulfil the factor of effort: A statement counts as a command only if it is a clear imperative to do the action. Under the few rules where this is not the case, we will note the exception.

None of the texts mention the scenario in which Bhikkhu A tells Bhikkhu B to take an item for him without letting B know that he is committing a theft — for instance, telling B that the item belongs to him (A), that it is ownerless, or letting B come to either conclusion on his own. Nevertheless, it would appear that if B then actually takes the item as told, all of the factors for an offense would be fulfilled for A: He gives the command to take (the imperative the Vibhaṅga uses in illustrating commands to "steal" — avahara — can also simply mean to "take"), he knows that the item belongs to someone else, he intends to have it taken, and it is taken as a result of his command. As for B, he would not be committing an offense, as his state of mind would not fulfil the factors of perception and intention for a theft.

Cases of this sort would not fall under Deceit, discussed below, because that category covers only cases where one deceives the owner of the item, or his agent, into giving the item, and thus technically the item counts as given. Here the item is not given, for the person deceived into taking it is not responsible for it at all.

As with the extrapolation from the discussion of signs, this application of the Great Standards will also be useful when we discuss unauthorized use of credit cards, below. It will also prove useful in our discussion of the following rule.

Shared responsibility. If bhikkhus go in a group to commit a theft but only one of them does the actual taking, all still incur the penalty coming from the theft. Similarly, if they steal valuables worth collectively more than five māsakas but which when divided among them yield shares worth less than five māsakas each, all incur a pārājika. According to the Commentary, any bhikkhus who assist a bhikkhu in a fraudulent case also incur the same offense he does: a pārājika if he wins, a thullaccaya if he loses. This judgment, however, must be qualified by noting that the assistant incurs these penalties only if he perceives the case to be fraudulent.

Special cases. As mentioned above, the notion of stealing covers a wide range of actions. To delineate this range, the texts discuss a variety of actions that border on stealing, some of them coming under this rule, some of them not.

Belongings of the Saṅgha. According to the Commentary to NP 30, an item belongs to the Saṅgha when donors, intending for it to be Saṅgha property, offer it to one or more bhikkhus representing the Saṅgha, and those bhikkhus receive it, although not necessarily into their hands. Saṅgha property thus counts as "what is not given" as far as individual bhikkhus are concerned, for it has an owner — the Saṅgha of all times and places — and is guarded by the individual Community of bhikkhus.

Saṅgha property is divided into two sorts: light/inexpensive (lahu-bhaṇḍa) and heavy/expensive (garu-bhaṇḍa). Light property includes such things as robes, bowls, medicine, and food; heavy property, such things as monastery land, buildings, and furnishings (see BMC2, Chapter 7). The Buddha gave permission for individual Communities to appoint officials to be responsible for the proper use of Saṅgha property. The officials responsible for light property are to distribute it among the members of the Community, following set procedures to ensure that the distribution is fair (see BMC2, Chapter 18). Once an individual member has received such property, he may regard it as his own and use it as he sees fit.

In the case of heavy property, though, the officials are responsible for seeing that it is allotted for proper use in the Community, but the individual bhikkhus allowed to use it may not regard it as their own personal property. This is an important point. At most, such items may be taken on loan or exchanged — with the approval of the Community — for other heavy property of equal value. A bhikkhu who gives such items away to anyone — ordained or not — perceiving it as his to give, incurs a thullaccaya no matter what the value of the object (Cv.VI.15.2 — see BMC2, Chapter 7). Of course, if he knows that it is not his to give or take, then in appropriating it as his own he incurs the penalty for stealing.

The Buddha was highly critical of any bhikkhu who gives away heavy property of the Saṅgha. In the origin story to Pr 4, he cites the case of a bhikkhu who, hoping to find favor with a lay person, gives that person some of the Saṅgha's heavy property. Such a bhikkhu, he says, is one of the five great thieves of the world.

However, the Vinita-vatthu includes a case where bhikkhus visiting a monastery arrange for a lay person to pick and give them some of the fruit growing in the monastery. The Buddha, in judging the case, states that they committed no offense as they were taking the fruit just for their own consumption. This implies that if they were to take the fruit for other purposes — to have it sold, for instance — they would be guilty of an offense. The Commentary adds that visiting bhikkhus have this right only if the resident bhikkhus are not caring for the fruit trees, if the trees had not been donated to provide funds for a particular purpose in the monastery, or if the resident bhikkhus eat from the trees as if they alone were the owners and are not willing to share. In other words, the visiting bhikkhus, as a matter of courtesy, should ask the residents first. If the residents share, one may take what they offer. If they don't, and the trees are not dedicated to another purpose, one may take just enough for one's own consumption. The Commentary also adds that if the monastery is vacant, one may go ahead and take the fruit, for it is meant for all bhikkhus who come.

The Vinita-vatthu also notes that a bhikkhu who takes heavy property of the Saṅgha donated for use in a particular monastery and uses it elsewhere incurs a dukkaṭa. If he takes it on loan, he commits no offense.

Deceit. If a bhikkhu uses a deliberate lie to deceive another person into giving an item to him, the transgression is treated not as a case of stealing — because, after all, the item is given to him — but rather as a case of lying. If the lie involves making false claims to superior meditative attainments, it is treated under Pr 4. If not, it is treated under Pc 1. The Vinita-vatthu gives seven examples: five cases where, during a distribution of requisites in the Community, a bhikkhu asks for and is given an extra portion for a non-existent bhikkhu; and two where a bhikkhunī approaches her teacher's lay supporter and asks for medicines, saying that they will be for her teacher, although she actually ends up using them herself. In all of these cases, the penalty is a pācittiya for lying under Pc 1.

The Commentary, in its discussion of the bhikkhus taking an extra portion for a non-existent bhikkhu, insists that the penalty for lying applies only to cases where donors have already given the requisites to the Community. If, prior to their giving the requisites to the Community, a bhikkhu asks them directly for a portion for a non-existent bhikkhu, the Commentary says that he has committed a theft under this rule. This, however, contradicts the ruling in the two cases involving the bhikkhunī, who asks directly from the donor. Thus it would appear that in any case where a bhikkhu obtains an article from a donor through deceit, the penalty would be the pācittiya for lying.

The question arises, what about a bhikkhu who, given an item to take to someone else, originally plans to take it to the intended recipient but later changes his mind? It does not seem right to impose a heavier penalty on him than on a person who uses deceit to get the item to begin with, so it seems best to impose on him the dukkaṭa for a broken promise (Mv.III.14.1-14 — see the discussion under Pc 1). For the principles surrounding the courier's right to take an item on trust in the donor or the recipient, see the discussion of trust under the non-offense clauses.

Receiving stolen goods. Accepting a gift of goods or purchasing them very cheaply, knowing that they were stolen, would in Western criminal law result in a penalty similar to stealing itself. However, neither the Canon nor the commentaries mention this case. The closest they come is in the Vinita-vatthu, where a groundskeeper gives bhikkhus fruit from the orchard under his care, even though it was not his to give, and there was no offense for the bhikkhus. From this it can be inferred that there is no offense for receiving stolen goods, even knowingly, although a bhikkhu who does so would not be exempt from the civil law and the consequent proceedings, in the course of which the Community would probably urge him to disrobe.

Compensation owed. The Commentary introduces the concept of bhaṇḍadeyya, or compensation owed, to cover cases where a bhikkhu is responsible for the loss or destruction of another person's property. It defines this concept by saying that the bhikkhu must pay the price of the object to the owner or give the owner another object of equal value to the one lost or destroyed; if the owner gives up his/her efforts to receive compensation, the bhikkhu incurs a pārājika. The Commentary applies this concept not only to cases where the bhikkhu knowingly and intentionally destroys the object, but also to cases where he borrows or agrees to look after something that then gets lost, stolen, or destroyed through his negligence; or where he takes an item mistakenly thinking that it was discarded or that he was in a position to take it on trust.

To cite a few examples: A bhikkhu breaks another person's jar of oil or places excrement in the oil to spoil it. A bhikkhu charged with guarding the Community storeroom lets a group of other bhikkhus into the storeroom to fetch belongings they have left there; they forget to close the door and, before he remembers to check it, thieves slip in to steal things. A group of thieves steal a bundle of mangoes but, being chased by the owners, drop it and run; a bhikkhu sees the mangoes, thinks that they have been thrown away, and so eats them after getting someone to present them to him. A bhikkhu sees a wild boar caught in a trap and, out of compassion, sets it free but cannot reconcile the owner of the trap to what he has done. In each of these cases, the Commentary says, the bhikkhu in question owes compensation to the owner of the goods. (In the case of the mangoes, he must compensate not only the owners but also the thieves if it turns out that they had planned to come back and fetch the fruit.) If he abandons his responsibility to the owner(s), he incurs a pārājika.

In making these judgments, the Commentary is probably following the civil law of its day, for the Canon contains no reference at all to the concept of bhaṇḍadeyya, and some of its judgments contradict the Commentary's. As we noted above, the Vibhaṅga states that if a bhikkhu breaks, scatters, burns, or otherwise renders unusable the property of another person, he incurs a dukkaṭa. When the Vinita-vatthu discusses cases where a bhikkhu takes an item on mistaken assumptions, or where he feels compassion for an animal caught in a trap and so sets it free, it says that there is no offense. Thus it seems strange for the Commentary to assign a pārājika to an action that, according to the Canon, carries a dukkaṭa or no penalty at all. Of course, it would be a generous policy to offer the owner reasonable compensation, but it is by no means certain that a bhikkhu would have the wherewithal or liberty to do so. Because the Canon does not allow a bhikkhu to ask his supporters for donations to pay to another lay person — except for his parents (Mv.VIII.22; see BMC2, Chapter 10) — there is no way a bhikkhu could raise the needed funds. The Canon places only one responsibility on a bhikkhu who causes material loss to a lay person: The Community, if it sees fit, can force him to apologize to the owner (Cv.I.20; see BMC2, Chapter 20). Beyond that, the Canon does not require that he make material compensation of any kind. Thus, as the Commentary's concept of bhaṇḍadeyya is clearly foreign to the Canon, there seems no reason to adopt it.

Enforcement of rules. There is one important area in which even the Commentary does not require compensation, and that is when a bhikkhu sees another bhikkhu using an inappropriate object and arranges to have it destroyed. Here the Commentary draws its argument from the origin story to this rule, in which the Buddha orders the bhikkhus to destroy an inappropriately made hut — a "potter's hut," which was made from earth and then fired like a pot. From this example, the Commentary draws the following judgment: If a bhikkhu starts to build an inappropriate hut in a certain territory, the "owners" of the territory (i.e., the resident senior bhikkhus) should tell him to stop. If he does not heed their decision and actually builds the hut there, then when they are able to assemble a sufficient number of righteous bhikkhus, the resident senior bhikkhus can send him an order to remove it. If, after the order has been sent three times, the hut is still not removed, the bhikkhus are to dismantle it in such a way that the materials can be reused. The original builder is then to be told to remove the materials. If he doesn't, then the resident bhikkhus are not responsible for any loss or damage they may undergo.

The Commentary then derives a further principle from this example to say that if Bhikkhu X, who is knowledgeable in the Vinaya, sees Bhikkhu Y using inappropriate requisites of any sort, he is entitled to get them destroyed or reduced to an appropriate form. He is also not obligated to compensate Y for any loss or inconvenience incurred.

Court actions. As stated above, if a bhikkhu knowingly starts an unfair court case against someone else and then wins it in the final court to which the accused makes appeal, he incurs a pārājika. The Commentary to the Bhikkhunī's Sg 1, however, states that even if a bhikkhu is actually mistreated by someone — defamed, physically injured, robbed, etc. — and then tries to take a just court action against the guilty party, he incurs a pārājika if he wins. Again, this is an instance where the Commentary has no support from the Canon and, as the Vinaya-mukha points out, its assertion cannot stand. However, the training of a bhikkhu requires that he view all losses in the light of kamma and focus on looking after the state of his mind rather than on seeking compensation in social or material terms.

There is no question in any of the texts that if a bhikkhu is asked to give evidence in a courtroom and does so, speaking in accordance with the facts, he commits no offense no matter what the outcome for the others involved. However, Pc 9 would require that he first be authorized to do so by the Community if his testimony involves reporting the wrongdoing of others. See that rule for further details.

Modern cases. The modern world contains many forms of ownership and monetary exchange that did not exist in the time of the Buddha, and so contains many forms of stealing that did not exist then either. Here are a handful of cases that come to mind as examples of ways in which the standards of this rule might be applied to modern situations.

Infringement of copyright. The international standards for copyright advocated by UNESCO state that infringement of copyright is tantamount to theft. However, in practice, an accusation of copyright infringement is judged not as a case of theft but as one of "fair use," the issue being the extent to which a person in possession of an item may fairly copy that item for his/her own use or to give or sell to another person without compensating the copyright owner. Thus even a case of "unfair use" would not fulfill the factors of effort and object under this rule, in that — in creating a copy — one is not taking possession of an item that does not belong to one, and one is not depriving the owners of something already theirs. At most, the copyright owners might claim that they are being deprived of compensation owed to them, but as we have argued above, the principle of compensation owed does not rightly belong under this rule. In the terminology of the Canon, a case of unfair use would fall under either of two categories — acting for the non-gain of the copyright owners or wrong livelihood — categories that entail a dukkaṭa under the general rule against misbehavior (Cv.V.36). They would also make one eligible for a disciplinary transaction, such as reconciliation or banishment (see BMC2, Chapter 20), which the Community could impose if it saw the infringement as serious enough to merit such a punishment.

Copying computer software. The agreement made when installing software on a computer, by which one agrees not to give the software to anyone else, comes under contract law. As such, a breach of that contract would be treated under the category of "deceit," described above, which means that a bhikkhu who gives software to a friend in defiance of this contract would incur the penalty for a broken promise. As for the friend — assuming that he is a bhikkhu — the act of receiving the software and putting it on his computer would be treated under the precedent, mentioned above, of the bhikkhus receiving fruit from an orchard groundkeeper not authorized to give it away: He would incur no offense. However, as he must agree to the contract before installing the software on his computer, he would incur a penalty for a broken promise if he then gave the software to someone else in defiance of the contract.

Credit cards. The theft of a credit card would of course be an offense. Because the owner of the card, in most cases, would not be required to pay for the stolen card, the seriousness of a theft of this sort would be determined by how the thief used the card. NP 20 would forbid a bhikkhu from using a credit card to buy anything even if the card were his to use, although a bhikkhu who had gone to the extent of stealing a card would probably not be dissuaded by that rule from using it or having someone else use it for him. In any event, the use of the card would be equivalent to using a stolen key to open a safe. If the thief hands the credit card to a store clerk to make a purchase, that would count as a gesture telling the clerk to transfer funds from the account of the credit card company. Because such operations are automated, the clerk's attempt to have the funds transferred would count not as an act of deceit but an act of taking. If the credit card company's machines authorize the transaction, then the theft occurs as soon as funds are transferred from one account to another. The seriousness of the theft would be calculated in line with the principle of the "prior plan" mentioned above.

In a situation where the funds, if transferred, would entail a pārājika, then if the machines do not authorize the transaction, the bhikkhu trying to use the card would incur a thullaccaya for getting the clerk to attempt the transfer. If the clerk, doubting the bhikkhu's right to use the card, refuses to attempt the transfer, the bhikkhu would incur a dukkaṭa in making the gesture of command.

Similar considerations would apply to the unauthorized use of debit cards, ATM cards, phone cards, personal identification numbers, or any other means by which funds would be transferred from the owner's account by automated means.

A forged check drawn on a bank where the scanning and approval of checks is fully automated would fall under this category. If drawn on a bank where an employee would be responsible for approving the check, the entire case would come under false dealing, discussed above.

Unauthorized telephone or Internet use would count as theft only if the charges were automatically transferred from the owner's account. If the owner is simply billed for the charges, he/she could refuse to pay, and so no theft would have occurred. This would count, not as a theft, but as promise made in bad faith, which would incur a pācittiya. If, however, the case seemed serious enough, and the pācittiya too light a punishment, the Community could impose a disciplinary transaction on the offender.

Impounded items — such as a repaired automobile kept in a mechanic's shop — would apparently be treated in a similar way to smuggled goods.

Non-offenses. In addition to the blanket exemptions mentioned under the preceding rule, the non-offense clauses here list six exemptions to this rule. Two relate to the status of the object, two to the factor of perception, and two to the factor of intention.

Object. There is no offense if a bhikkhu takes an object belonging (1) to a peta (§) or (2) to an animal (§). Thus there is no offense in taking the remains of a lion's kill, regardless of how possessive the lion may feel, although the Commentary wisely advises waiting until the lion has eaten enough of its kill no longer to be hungry, for otherwise the bhikkhu may become lion's kill himself.

The Commentary classes devas under petas here and states that a bhikkhu may take a deva's belongings with no penalty. It illustrates this point with two examples. In the first, a bhikkhu takes a piece of cloth left hanging on a tree as an offering to a deva. In the second, a bhikkhu with clairvoyant powers gains a vision of Sakka, the king of the devas, who is wearing an expensive cloth. The bhikkhu takes the cloth with the intention of making a robe for himself, even though Sakka keeps screaming, "Don't take it! Don't take it!" This latter example may have been included in the Commentary simply for its shock value in order to wake up sleepy students in the back of the room. Although the bhikkhu in question would not incur an offense, there's no denying he's a fool.

The term peta also includes human corpses. In the early days of the religion, bhikkhus were expected to make their robes from discarded cloth, one source being the cloths used to wrap corpses laid in charnel grounds. (The bhikkhus would wash and boil the cloth before using it themselves.) However, they were not to take cloth from undecomposed bodies, and here is why:

The story gives no further details, and we are left to imagine for ourselves both the bhikkhu's state of mind while being chased by the body and his friends' reaction to the event. As is usual with the stories in the Vibhaṅga, the more outrageous the event, the more matter-of-fact is its telling, and the more its humor lies in the understatement.

At any rate, as a result of this incident the Buddha laid down a dukkaṭa for taking cloth from an undecomposed body — which, according to the Commentary, means one that is still warm.

Perception. There is no offense if a bhikkhu takes an object perceiving it (1) to be his own or (2) to have been thrown away (§). The Commentary states that if the bhikkhu finds out that the object does indeed have an owner, he owes the owner compensation and would be guilty of an offense when the owner abandons his efforts to gain that compensation. As we have already noted, the concept of compensation owed has no basis in the Canon, but if the object still lies in the bhikkhu's possession and he decides not to return it, that decision would count as a thieving intention. The theft of the object could then be treated under the category of a borrowed object, which in practice has the same effect as the Commentary's notion of compensation owed: The theft would be accomplished when the owner abandons his/her efforts to regain possession. However, if the object no longer exists (it was consumed by the bhikkhu or destroyed) or is no longer in the bhikkhu's possession (he lost it or gave it away), the resolution of the issue is purely a individual matter between the bhikkhu and the owner, although as we noted above, the Community, if it sees fit, could force the bhikkhu to apologize to the owner.

Intention. There is no offense if a bhikkhu takes an object (1) on trust or (2) temporarily.

To rightly take an object on trust, Mv.VIII.19.1 states that five conditions must be met:

The Commentary to this rule states that in practice only three of these conditions need to be met: the fourth, the fifth, and any one of the first three. As the Vinaya-mukha notes, there are good practical reasons for adopting the Commentary's interpretation here. There is also the formal reason that otherwise the first two conditions would be redundant.

Mv.VIII.31.2-3 discusses how an item can be rightly taken on trust if a bhikkhu, as courier, is conveying it from a donor to an intended recipient. The deciding factor is what the donor says while handing over the item, which apparently determines who exercises rights of ownership over the item while it is in transit. If the donor says, "Give this to so-and-so" (which means that ownership has not yet been transferred to the recipient), one may rightly take the item on trust in the donor but not in the recipient. If he/she says, "I give this to so-and-so" (which transfers ownership to the recipient), one may rightly take the item on trust in the recipient but not in the donor. If, before the courier can convey the item to the intended the recipient, he learns that the owner — as determined by the donor's statement — happens to die, he may determine the item as an inheritance from the owner.

In both cases where the item may be legitimately taken on trust, none of the texts discuss whether the factors listed in Mv.VIII.19.1 also have to be met or whether the allowances here are a special exemption to those factors granted specifically to couriers. However, because the allowances are so particular about who maintains ownership over the article while it is in transit, it would seem that the owner would have the right to express satisfaction or dissatisfaction over the courier's taking the item on trust. This further suggests that the courier would have to take the owner's perceived wishes into account, which implies that the factors listed in Mv.VIII.19.1 still hold here.

The Vinita-vatthu treats the case of a bhikkhu who takes an item mistakenly thinking that he had the right to take it on trust; the Buddha termed this a "misconception as to trust" and did not impose a penalty. The Commentary to this rule adds that if the original owner informs one that he is displeased because he sincerely wanted to keep the item for another use, one should return it to him; but, in line with the Vinita-vatthu, it does not indicate a penalty for not returning it. If the owner is displeased with one for other reasons, the Commentary says, there is no need to return the item.

As for taking an item temporarily, the Commentary says this means taking it with the intention that (a) "I'll return it" or (b) "I'll make compensation." There is support in the Vibhaṅga for including (a) here, but none for (b). If the Commentary included (b) to cover cases where a bhikkhu borrows an object but then happens to lose or destroy it, there is no need to include it, for as we have already explained, a bhikkhu is under no compulsion to compensate people for items lost or destroyed. If the Commentary meant it to cover cases where a bhikkhu takes ownership of an object belonging to a person with whom he has not established trust and with whom he plans to discuss compensation later, it doesn't really fit under this exemption, for one is taking permanent possession of the item. Given the strict conditions that the Canon places on the exemption for taking an item on trust, it seems unlikely that its compilers would have countenanced an exemption for a bhikkhu to go around imposing unilateral trades, taking possession of items on the unfounded assumption that the owners would gladly accept compensation at a later time. If there is any place for this sort of exemption in the Vibhaṅga's framework, it would be as a variant on taking on trust. Thus it would have to meet the following factors: The owner is an acquaintance or an intimate or has spoken of the matter; he/she is still alive; and one knows that he/she would be pleased if one takes the item and gives compensation later.

In addition to the exemptions listed under the non-offense clauses, the Vinita-vatthu contains ten other types of cases that involve no offense under this rule. Some of these have already been mentioned in the above discussions, but it is convenient to have them gathered in one place.

— A bhikkhu, seeing an expensive garment, feels a desire to steal it but does not act on the desire. The commentaries take this as a general principle for all rules, that the mere arising of a mind state does not constitute an offense.

— A bhikkhu, seeing a cloak blown up by a whirlwind, catches it to return it to the owners.

— A bhikkhu takes an item on trust but later discovers that the trust is misconceived.

— A bhikkhu goes through a customs house, not knowing that a dutiable item is among his belongings.

— Visiting bhikkhus, for the sake of food, take fruit from a tree belonging to the Saṅgha.

— Bhikkhus receive fruit from the guardian of an orchard, even though the guardian is not entitled to give the fruit away.

— A bhikkhu, seeing an item left lying about, puts it away so that it won't get lost. The owner comes looking for the item and asks, "Who stole it?" The bhikkhu, perhaps ironically, responds, "I stole it." The owner then charges him with a theft. The case goes to the Buddha, who says that the bhikkhu committed no offense, in that his answer was just a manner of speaking and not an actual acknowledgement of a theft.

— A bhikkhu, out of compassion, releases an animal caught in a hunter's snare.

— Ven. Ajjuka points out a bequest to an heir in line with the original owner's wishes.

— Ven. Pilindavaccha uses his psychic powers to retrieve a pair of kidnapped children. The Buddha states that this entails no penalty because such a thing lies in the province of those with psychic power. The Vinaya-mukha, in discussing this case, takes it as a precedent for saying that if a bhikkhu returns a stolen article to its legal owner, there is no offense. The Buddha's statement, though, was probably meant to discourage bhikkhus without psychic powers from getting directly involved in righting wrongs of this sort. If a bhikkhu without psychic powers happens to learn of the whereabouts of stolen goods, kidnapped children, etc., he may inform the authorities, if he sees fit, and let them handle the situation themselves. However, for safety's sake, a bhikkhu living in a wilderness frequented by thieves would be wise not to be perceived as siding either with the thieves or the authorities.

Summary: The theft of anything worth 1/24 ounce troy of gold or more is a pārājika offense.

3. Should any bhikkhu intentionally deprive a human being of life, or search for an assassin for him, or praise the advantages of death, or incite him to die (saying): "My good man, what use is this evil, miserable life to you? Death would be better for you than life," or with such an idea in mind, such a purpose in mind, should in various ways praise the advantages of death or incite him to die, he also is defeated and no longer in affiliation.

This rule against intentionally causing the death of a human being is best understood in terms of five factors, all of which must be present for there to be the full offense.

Object. The Vibhaṅga defines a human being as a person "from the time consciousness first becomes manifest in a mother's womb, up to its death-time." It follows from this that a bhikkhu who intentionally causes an abortion — by arranging for the operation, supplying the medicines, or giving advice that results in an abortion — incurs a pārājika. A bhikkhu who encourages a woman to use a means of contraception that works after the point of conception would be guilty of a pārājika if she were to follow his advice.

There is a series of cases in the Vinita-vatthu in which bhikkhus provide medicines for women seeking an abortion, followed by two cases in which a bhikkhu provides medicines to a barren woman who wants to become fertile and to a fertile woman who wants to become barren. In neither of these two latter cases does anyone die or suffer pain, but in both cases the bhikkhu incurs a dukkaṭa. From this, the Commentary infers that bhikkhus are not to act as doctors to lay people, an inference supported by the Vibhaṅga to Sg 13. (The Commentary, though, gives a number of exceptions to this principle. See the discussion in BMC2, Chapter 5.)

The pārājika offense is for killing a human being aside from oneself. A bhikkhu who attempts suicide incurs a dukkaṭa.

A bhikkhu who kills a "non-human being" — a yakkha, nāga, or peta — or a devatā (this last is in the Commentary) incurs a thullaccaya. According to the Commentary, when a spirit possesses a human being or an animal, it can be exorcised in either of two ways. The first is to command it to leave: This causes no injury to the spirit and results in no offense. The second is to make a doll out of flour paste or clay and then to cut off various of its parts (!). If one cuts off the hands and feet, the spirit loses its hands and feet. If one cuts off the head, the spirit dies, which is grounds for a thullaccaya.

A bhikkhu who intentionally kills a common animal is treated under Pc 61.

Intention & perception. The Vibhaṅga defines the factor of intention in three contexts — the word-analysis, the non-offense clauses, and the Vinita-vatthu — analyzing it with one set of terms in the first context, and another set in the last two. There are two ways of interpreting the discrepancy: Either the two sets differ only in language but not in substance, or they actually differ in substance. The Commentary, without seeming to notice what it is doing, adopts the second interpretation. In other words, it defines the factors of intention in markedly different ways in the different contexts, yet does not assert that one set of terms is more authoritative than the other or even take note of the differences between them. In fact, it takes one of the terms common to the non-offense clauses and the Vinita-vatthu and defines it in one way in one context and another in the other. All of this creates a great deal of confusion.

A more fruitful way of analyzing the two sets of terms, which we will adopt here, is to assume that they differ only in language but not in substance. We will take as our framework the set of terms used in the non-offense clauses and the Vinita-vatthu, as it is clearer and more amply illustrated than the other set, and then refer to the other set, along with some of the explanations from the Commentary, when these help to give a more refined understanding of what the non-offense clauses and Vinita-vatthu are saying.

The non-offense clauses state that there is no offense for a bhikkhu who acts unintentionally, not knowing, or without aiming at death. In the Vinita-vatthu, unintentionally is used to describe cases in which a bhikkhu acts accidentally, such as dropping a poorly held stone, brick, or adze; removing a pestle from a shelf and accidentally knocking off another one. Not knowing is used in cases in which the bhikkhu deliberately does an action but without knowing that his action could cause death. An example would be giving food to a friend not knowing that it is poisoned. Not aiming at death is used in cases where the bhikkhu deliberately does an action but does not intend that action to result in death. Relevant examples include trying to help a bhikkhu who is choking on food by slapping him on the back and inadvertently causing his death; telling a bhikkhu to stand on a piece of scaffolding while helping with construction work, only to see the scaffolding collapse; describing the joys of heaven to an audience, only to have a member of the audience decide to commit suicide in hopes of going there.

Thus, to fulfill the factor of intention here, a bhikkhu must be acting intentionally, knowingly, and aiming at death.

The word-analysis covers all the same points — although it shuffles the terms around — when it defines intentionally as "having willed, having made the decision knowingly and consciously." Without teasing out the differences in terminology, we may simply note the important point added in its analysis, which is that an act of manslaughter counts as intentional here only when the bhikkhu has made a clear decision to kill. Thus if he were to strike a person unthinkingly in a sudden fit of rage, without being clear about what his intention was, it would not qualify as "intentional" here. The Commentary seconds this point when it defines having made the decision as "having summoned up a reckless mind state, 'crushing' through the power of an attack." The Sub-commentary does not explain crushing or attack here, but apparently they mean aggressively overcoming, through a brute act of will, any contrary or hesitant thoughts in the mind.

The Vinita-vatthu contains a few cases where bhikkhus kill people in situations where they did not even know that there was a person there: throwing a stone over a precipice, not knowing that there was a person standing below; sitting down on a pile of cloth on a chair, not knowing that a child was underneath the cloth; and setting fire to a grove, not knowing that there were people in the grove. The Buddha dismisses the first two cases without explanation as not coming under this rule. The last he classifies as an example of not aiming at death. We can conclude from this example that aiming at death must include the perception that there was someone there who could die. The Commentary seconds this conclusion in its analysis of the phrase knowingly and consciously in the word-analysis's definition of intentionally. Although it again shuffles the terms around — using consciously to describe what the Vinita-vatthu describes as knowingly — the important point in its conclusion is that an essential element in the factor of intention is the factor of perception: In its words, one must be aware that, "This is a living being."

Note that, given this definition, one need not know that the living being is a human being for the factor of perception to be fulfilled. The Commentary illustrates this point with an example in which a bhikkhu who, seeing a goat lying down in a certain spot during the day, decides to return to that spot to kill the goat that night. In the meantime, however, the goat gets up and a man comes to lie down in its place. The bhikkhu approaches the man in the dark, still thinking him to be a goat, and kills him. The verdict: a pārājika.

Although this judgment may seem strange, there is nothing in the Canon to contradict it. The closest case in the Vinita-vatthu concerns a bhikkhu who digs a pitfall with the intention that whatever living beings fall into it will perish. The penalty, if an animal dies as a result, is a pācittiya; if a human being, a pārājika. In this case, the intention/perception of killing a living being is broad enough to include a human being, and so fulfills the relevant factors here.

In discussing this last case, the Commentary notes that if one digs the pitfall but then renounces one's intention to cause death, one has to completely fill in the pitfall in such a way that it cannot cause injury — even to the extent of causing someone to stumble — if one wants to avoid the penalty coming from any injury the pitfall might cause. If the pitfall is only partially filled in and a person stumbles into it and later dies from his injuries, the bhikkhu incurs the full offense under this rule. The same judgment applies to any other attempt to kill not aimed at a particular victim. For instance, if a bhikkhu harboring this sort of general intention builds a trap but then changes his mind, he has to destroy the trap so thoroughly that it cannot be reassembled. Similarly, when a bhikkhu writes a passage describing the advantages of dying (see below) with the thought that anyone who reads it might decide to commit suicide, if he then changes his mind he has to destroy the writing so thoroughly that it cannot be pieced together. If, instead of writing the passage himself, he simply picks up a pre-existing written passage of this sort and then — with a similar intention — puts it in a place where it might be easily seen, he can avoid any penalty simply by returning the passage to the place where he found it.

In discussing the topic of pitfalls, the Commentary also treats the issue of how much of an intention counts when setting up a situation that might cause death. Specifically, it asks whether — while one is digging a hole for another purpose — a passing thought that "this hole could kill anyone who fell into it" would fulfil the factor of intention under this rule, or whether this factor would be fulfilled only if the original purpose for digging the hole was to cause death. The Commentary notes that opinions are divided on this point, but it sides with the latter position.

The Vinita-vatthu contains an unusual case of a bhikkhu who uses a friend as a guinea pig for testing poison. The friend dies, and the bhikkhu incurs only a thullaccaya. The Commentary explains this by distinguishing two types of test: one to see if a particular poison is strong enough to kill a person; the other, to see if a particular person is strong enough to survive the poison. In either of these cases, the bhikkhu incurs a thullaccaya regardless of whether the victim dies. If, though, the bhikkhu gives poison to a person with the desire that it cause that person's death, he incurs a pārājika if the victim dies, and a thullaccaya if not.

The Vinita-vatthu also includes a case in which bhikkhus, out of compassion for an ill friend, hasten his death and thus incur the full offense under this rule. This shows that impulse and motive are irrelevant in defining the factor of intention here.

Effort. This factor covers four types of action: taking life, arranging an assassin, describing the advantages of dying, and inciting a person to die.

a) Taking life. The Vibhaṅga defines taking life as "the cutting off, the ending, of the life faculty; interrupting the continuity." The Vibhaṅga lists a variety of means by which one might try to do this, which the Commentary divides into four categories:

— One's own person: hitting with one's hands or feet; using weapons such as knives, sticks, clubs, etc.; handing poison to a person; giving a pregnant woman medicine that would cause an abortion; moving an ill person.

— Throwing: hurling a stone, shooting an arrow. At present, shooting a gun or hurling a grenade would come under this category.

— Stationary devices: setting a trap, digging a pitfall, placing a weapon in a place where a victim may fall, sit, or lie down on it; placing poison in food, etc. At present, setting out a land mine would come under this category.

— Commanding: telling another person to commit a murder. This category includes recommendations expressed in the imperative as well as express commands. A few examples:

Examples of commands and recommendations in the Canon, however, are all expressed as imperatives: "Do this!" "If you want him to die, do this." The only examples of indirect statements are those in which a bhikkhu expresses a wish, "O, if only so-and-so were murdered." According to the Vibhaṅga, this statement incurs a dukkaṭa regardless of whether it is made in public or private, and regardless of whether one knows that anyone else is overhearing it or not. There is no discussion, however, of what one's intention might be in making the statement, nor of the consequences for the speaker if anyone, inspired by his remark, actually kills the person in question. This implies that the authors of the Vibhaṅga did not regard statements of this sort as fulfilling the factor of effort under this rule. This may seem unduly lenient, but given that a bhikkhu whose express command to kill is followed but not to the letter would also incur only a thullaccaya, this judgment seems consistent with the Vibhaṅga's pattern of assigning penalties.

In addition to the four above categories of means of killing, the Commentary includes two of its own:

— Magical formulae: reciting passages that call on malevolent spirits to bring about a person's death, using voodoo, etc.

— Psychic powers: using the "evil eye" or other similar innate powers.

The Canon contains a number of passages — MN 56 is one example — describing people who, "developed in mind," use their powers to kill. The Commentary notes the existence of these passages and of "some teachers" who cite them as proof that meditative powers can be used in this way, but it dismisses the idea on the grounds that meditative powers are skillful and based on pleasant mental states, whereas the act of killing is unskillful and based on painful mental states. The Sub-commentary adds that the powers described in the Canon are actually based on magical formulae. Still, because the success of these formulae depends on a certain level of concentration, it would seem that using one's powers of concentration to kill would fulfil the factor of effort here.

b) Arranging an assassin. As the rule indicates, a bhikkhu may commit an offense under this rule not only by using any of the six above-mentioned means of taking life but also by "searching for an assassin." The Vibhaṅga explains this phrase in the rule simply with a list of weapons: a sword, a spear, a harpoon (§ — BD omits this item), a skewer/stake, a club, a stone, a knife, poison, or a rope. There are two ways of making sense of this list. One is that, because the Pali word for assassin is literally "knife-carrier" (satthahāraka), the Vibhaṅga is taking pains to explain that an assassin might also use other weapons aside from a knife. The other way of interpreting the list, favored by the Commentary, is to view the Vibhaṅga's list as an attempt to define the word satthahāraka — which, according to the Commentary, is a general term for a murderous weapon. The Commentary then goes on to say that the entire phrase searching for an assassin means setting up a stationary device, as described above. There are two problems with this interpretation, the first being that the word satthahāraka clearly means "assassin" in other parts of the Canon (see, for example, MN 145); the second being that this interpretation makes the phrase entirely superfluous: setting up a stationary device is already covered by another part of the rule. Thus we will follow the first interpretation of the Vibhaṅga's explanation of the phrase: It is indicating that an assassin may use any weapon at all.

The question remains, however, as to how this interpretation is not redundant with commanding under the explanation of the ways of taking life. The answer appears to be this: The word satthahāraka is most commonly used in the Canon in the context of an assisted suicide, in which a person who wants to die but cannot bring himself to commit suicide arranges for someone else, a satthahāraka, to kill him. This term may be related to a common phrase for committing suicide, "to take a knife" (see SN IV.33 — satthaṃ āharissāmi, "I will take a knife"). Thus