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.
Notorious definitional debates have characterized the anthropology of law, and scholars have not reached consensus over how ‘law’ is to be distinguished from other social phenomena. This article suggests that light can be shed upon this issue by combining the insights of anthropologists and historians. Careful comparison among empirical examples highlights the importance of texts and the legal form. Case studies from Tibet are used to illustrate these points and draw attention to the phenomenon of legalism, that is, the use of generalizing rules and abstract categories to describe and organise the world. This provides a basis for exploring the nature and significance of law, both in the modern world and societies of the past.
ISBN: ISSN 2105-0929
Chapter (18)
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.
Journal Article (12)
Notorious definitional debates have characterized the anthropology of law, and scholars have not reached consensus over how ‘law’ is to be distinguished from other social phenomena. This article suggests that light can be shed upon this issue by combining the insights of anthropologists and historians. Careful comparison among empirical examples highlights the importance of texts and the legal form. Case studies from Tibet are used to illustrate these points and draw attention to the phenomenon of legalism, that is, the use of generalizing rules and abstract categories to describe and organise the world. This provides a basis for exploring the nature and significance of law, both in the modern world and societies of the past.
ISBN: ISSN 2105-0929
The concept of trimnyi, two laws, emerges in the series of historical narratives created in Tibet’s medieval period, between the eleventh and seventeenth centuries. But what these laws were supposed to consist of is never made clear. This paper explores the origins of this pairing—of religious and royal laws—in early post-imperial texts and the ways in which the narratives developed up to the fifteenth century. I suggest that the concept of two laws was used to express the idea that Tibet’s Yarlung dynasty kings had based their political activities, including their law-making, on Buddhist principles. This allowed the authors to create an account of Tibet as a historic Buddhist polity, in whcih religious principles had provided the basis for the early kings’ practices of law and government. More than just an idealistic representation of Buddhism’s influence at the Yarlung court, I suggest that the account was probably also rooted in historical fact, reflecting events that unfolded when a new set of religious ideas was incorporated into established political structures.
ISBN: ISBN-13 : 9782855391786
DOI: 10.1017/jlr.2017.42
Tibet is distinct within the Buddhist regions of Asia for its claims to have developed religious laws. The rulers of its early empire—or so it is claimed by the writers of Tibetan historical narratives—civilized their people by creating laws on the basis of Buddhist principles. In fact, the earliest Tibetan laws were not linked in any significant way with Buddhist principles, even after the religion had been firmly established in the region. The more ideological account of Buddhist law found in later narratives was only developed as the structures of the empire were collapsing. The paper asks why and how the idea of Buddhist law first emerged, examining its development through a number of texts from the empire (sixth to ninth centuries) and the immediate post-imperial period (tenth to twelfth centuries). Their accounts of law-making were far from consistent, but they do seem to have resonated with at least one, tenth-century ruler. These narratives set the scene for a long series of historical accounts, in which the idea that Tibetan law was based on Buddhist principles took hold, and which was maintained well into the twentieth century.
Among the diverse approaches to comparison in socio-legal studies, those that employ qualitative research, richness of detail and attention to context are the focus of this special issue. The Introduction draws on comparative law and social science literature to argue that comparison amongst studies of laws in contexts can follow different trajectories: the comparison may start from an assumption of similarity – in form, purposes or context – in order to identify significant differences; or it may identify significant similarity across social and cultural divides. What unites many of the projects of comparison undertaken by qualitative empirical researchers is that the points of relevant comparison are identified within the complexity of the empirical studies at hand; and they are allowed to emerge, or change, as the researcher comes to understand the facts and issues more deeply.
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Research Interests
Anthropology of law; Tibetan law and legal practices; Global legal history; The English Bar
