| Book Review | Law and History Review, 17.2

Book Review

The Golden Yoke: The Legal Cosmology of Buddhist Tibet.

This pioneering work is to be warmly welcomed. It makes an important contribution to historical and comparative legal studies by opening up a perspective on the little-known legal system of the Buddhist state of Tibet. The author provides a fascinating account both of the processes utilized in Tibet prior to 1959 for the settlement of disputes and the components of the Tibetan "world view" (the "cosmology" of the title) that furnishes the context for the proper understanding of the law and its operation. In the course of her research French spent some years in field work among the Tibetan communities of Nepal and India as well as in Tibet itself. In Dharamsala, the center of the Tibetan government-in-exile, she was able to work in close cooperation with a Tibetan scholar who was a specialist in the law codes.

The book has three main sections. The most lengthy is that which dissects the underlying assumptions and operative principles of the legal system, as well as the general conditions governing the settlement of disputes. Then there is a section that presents examples of disputes handled by different jurisdictions, the landed estates, the local authorities, and the central government. Finally, there is a brief section on the processes for the handling of criminal cases. Interspersed at intervals are excursuses on particular points of substantive or procedural law, including discussions of land ownership and inheritance. A great deal of the information contained in these sections has been derived from answers to questions put by the author to Tibetan informants. This procedure entails a certain risk as to the accuracy of the data so obtained. For example, the author notes (without resolving) a discrepancy in the views of individual informants on the treatment by the police of the drunken sons of noble families (116).

There is an emphasis throughout the book upon the procedure rather than the substance of the law. One of the reasons for this lies in an important fact, noted by the author, concerning the nature of the Tibetan law codes. These appear to have consisted more of moral injunctions than the detailed specification of offenses and punishments, so providing a fundamental contrast with the great dynastic Chinese penal codes. In particular, the Tibetan codes identified the factors a judge was to take into account when dealing with an offense. No specific punishment was prescribed (with few exceptions, such as for the case of murder). Rather, the judge, in coming to a decision, was directed by the codes to consider a number of different aspects of the offense, the emphasis being upon the "uniqueness" of the case

Tibetan law can be considered as being in essence a religious law, but it is so in a double sense. On the one hand, the whole of the law is permeated and strongly influenced by Buddhist beliefs and values. On the other, the law is divided into two separate sets of rules, one relating to the conduct of monks and the affairs of monasteries ("religious law" in a strict sense), the other to the behavior and transactions of lay persons ("secular law"). The author says little of the former set of rules; it is not entirely clear whether monks were subject in any respect to the prescriptions of the "secular law" as where, for example, they had committed a major crime (compare the excursus on the ecclesiastical office at 305-10). Most of what the author has to say relates to the "secular law," but she demonstrates the way in which this was also a religious law. The Buddhist religion influenced the "secular law" at many levels: the strong moral element contained in the law codes with their emphasis upon the "uniqueness" of each case; the attention paid by the judges to the motives and good or evil intention of persons involved in disputes or crimes; the relevance of an individual's karma, his existence in a previous life and his future life, both in understanding his acts and in fixing the appropriate legal response to them; measurement of the standard of conduct expected of a person in terms not of the reasonable man but of a moral being exercising moral self-regulation; the designing of legal procedure to elicit the truth through a process by which all parties agreed on the facts; and the use of apparently "irrational" means, such as recourse to ordeals, oracles, or rolling dice, to ascertain facts or reach a decision. The notion of predicating a decision upon an act of chance or a lottery is explicable in light of the significance placed upon a persons's karma. On one point we may question an assumption apparently made by the author. She assumes without discussion that performative utterances (which many legal formulae are) should be regarded ipso facto as "magical" (compare her observations at 104).

A special value in the settlement of disputes was attached to agreement and conciliation, though this does not seem to have been a direct consequence of the people's Buddhist faith. A similar value is found among many peoples, being especially prominent among the tribal communities of Africa. Tibetans preferred to avoid the formal legal process for the settlement of disputes. If they could not resolve them within the circle of family or relatives, they sought the services of a conciliator, a respected member of the community, who would endeavor to get them to agree upon a solution. Only as a last step would the disputing parties have recourse to a court. In the court the emphasis again was upon the production of an agreed solution. So much importance was attached to agreement that it was always possible for the parties, even after an initially successful conciliation, to change their minds and reopen the case.

The Tibetan concept of punishment also has a number of interesting features. Although death and mutilation were punishments authorized by the codes, they seem to have been imposed only rarely even for the most serious crimes. In cases of murder emphasis was placed upon the payment of compensation by the offender not only to the victim but also to other persons or agencies affected by his crime. Where punishment was imposed in addition to payment of compensation, it tended to be a public whipping and/or a period of forced labor.

There are numerous points of great interest in a book that altogether provides a good insight into the traditional Tibetan legal system. The author herself frequently and rightly draws attention to the ways in which we can make a fruitful comparison between our own Western legal systems and that of a remote Buddhist state.

Geoffrey MacCormack

University of Aberdeen

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