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.
