An anthropologist specialising in Tibetan societies, Fernanda uses both ethnographic and historical methods to study and compare legal practices and texts. She has argued for a new anthropology of law, which engages both with legal theory and legal history: The Anthropology of Law (OUP, 2013). This builds on themes and debates developed in the Oxford Legalism project, which brought together scholars from anthropology, history, and other disciplines to compare wide-ranging empirical examples (Legalism, OUP, 4 vols).
These themes form the basis for Fernanda’s research into Tibetan legal history and an AHRC-funded project on the legal history of medieval Tibet: Legal Ideology in Tibet: Politics, Practice, and Religion (2016–18) This has led to a series of publications and a web-site containing source material (www.tibetanlaw.org).
Fernanda has been commissioned by Profile (UK) and Basic Books (US) to write a global history of law, which is due to appear in 2021: The rule of laws: a 4,000-year quest to order the world.
Fernanda continues to publish on legal anthropology and Tibetan legal history, as well as related issues, such as comparison in law and anthropology and the relationship between empirical studies and legal theory.
Qualifications DPhil in Social Anthropology (Oxford) 2002, MSc in Social Anthropology (UCL) 1998, Called to the Bar 1988, BA in French and Philosophy (Oxford) 1986.
- This chapter analyses the authorship and origins of the earliest known Tibetan legal treatise, called The Mirror of the Two Laws. Although much reproduced in modern editions, the text has received surprisingly little scholarly attention and the analysis is based on my own recent translation. I conclude that it must have been written in the in the decades after the fall of the Mongols’ Yuan administration in China, by or for the Phagmodru family, which was then trying to retain and consolidate the power in central Tibet. The writer of the treatise anchored his text firmly in Buddhist precedent and doctrine, suggesting that the Phagmodru wanted to present themselves as guardians of Tibet’s legal tradition. The treatise could have been commissioned with a view to persuading the Ming, then in power in China, that the Phagmodru were suitable recipients of their seals of authority. It might also have been distributed, or intended to be distributed, within central Tibet, in order to encourage local officials and administrators that their practices of mediation were following ancient Tibetan patterns; that they were acting within a religious tradition of which the Phagmodru were now the guardians. As a description of mediation practices and principles, the text could be regarded as a first step towards judicial systematization.This chapter argues that the distinctive contribution of anthropology to legal scholarship stems from its methodology. Long-term immersion in a field site and participant observation allow anthropologists to understand the world from the perspectives of their informants, to uncover meanings, and to take account of diversity. This leads to rich ethnographic description, characterized by detail and nuance. But it also produces theory- and model-building, which are firmly rooted in detailed empirical observation. The result is that anthropologists often question the categories that other legal scholars use to frame and analyse the law and its social roles. They raise new questions about what law is and does. They also use comparison amongst qualitative empirical case studies, allowing the terms of the comparison to arise from the cases, themselves. In these ways, anthropologists not only contribute rich and detailed cast studies to the body of legal scholarship, but they also question familiar assumptions about such issues as the relationship between law and the state, its capacity to regulate social life, its use in the resolution of disputes, and its attraction as a tool to both impose and challenge power, often in unexpected circumstances. They contribute, in these ways, to debates about what law is and does.A treatise on law from medieval Tibet offers a rare opportunity to analyse historic processes of dispute resolution. The text makes provisions about the compensation due for death, injury, and divorce, and sets out procedures for resolving disputed allegations of theft. These indicate that social relations among Tibetans were shaped by principles of revenge and carefully negotiated social status, but the chapter argues that dispute resolution should also be understood as a cultural practice in its own right. In medieval Tibet, as the text makes clear, the parties to a dispute could use elaborate styles of rhetoric, appealing to obscure sayings and metaphors. Mediators negotiated justice, rather than looking to rules that define right and wrong. And the charisma of the mediator was fundamental. Like court room processes elsewhere, Tibetan mediation should be understood as a performance and an art, through which social relations were negotiated, established, and expressed.
Journal Article (12)
Edited Book (4)
Anthropology of law; Tibetan law and legal practices; Global legal history; The English Bar