The Legal System on the Roof of the World

Melanie Shaffer

 

I.  Introduction

                  The High Plateau of Tibet, often called the "Roof of the World," is considered the highest region on Earth, covering 1.5 million square miles and averaging more than 12,000 feet above sea level.  It is completely surrounded by mountains, including Mount Everest in the Himalayas.  It has also traditionally been one of the most isolated places on Earth.  Tibet has a complicated history with its powerful and much larger neighbor China.  After many decades of independent rule and a long history of cultural and religious independence, the Chinese entered Tibet in 1951.  In 1959, after a Tibetan resistance movement failed, His Holiness the Fourteenth Dalai Lama and many other Tibetans fled from the country, and the Chinese officially took control of Tibet.  Today the Fourteenth Dalai Lama and more than 100,000 Tibetan refugees have established the Tibetan Government-in-Exile in Dharamsala, India, located in the foothills of the Himalayas.

                  For the two thousand years leading up to 1959, Tibet was almost completely populated by ethnic Tibetans, with the population variously estimated at 3 to 6 million people.[1]  Tibet's isolation and rigid social structure allowed it to maintain its legal system for three hundred years under the rule of the Dalai Lamas, with relatively little major changes.  This paper will focus on Tibet's society and legal system as it existed in the decades leading up to 1959, a time during which Tibet sought to maintain its centuries old traditions in the midst of the modernizing and tumultuous world around it.

A.  Sources for this Paper

                  While I found some useful information in historical and cultural books on Tibet, my primary source on the legal system was The Golden Yoke: The Legal Cosmology of Buddhist Tibet, written by Rebecca French.  Ms. French is an American law professor and one of the first in the West to attempt a comprehensive study of the Tibetan legal system as it existed before 1959.  Her sources include many primary Tibetan law codes and books which she helped translate into English after learning various forms of the Tibetan language.  She also interviewed several hundred Tibetans, including many former lay and monk officials, along with persons who acted as ³legal representatives.²  As always, there is the potential for the authorıs labor of love to be somewhat biased in favor of the positive aspects of her subject, but her inclusion of many verbatim portions of interviews from previous government officials, along with excerpts from law codes, provide a good basis for an introduction to the Tibetan legal system as it was viewed by the Tibetan people.  Of course, many of the Tibetan people whom Ms. French interviewed were also living in exile, and the interviews were done in the 1980s and 1990s. So, their memories were likely affected by nostalgia for the past and the passage of time.  However, the book seems well researched and provides a comprehensive starting point for understanding the Tibetan legal system.

II.  The Role of Religion in Tibetan Society and Politics

                  The importance of religion in both the lives of average Tibetans and the legal system cannot be underemphasized.  Buddhism was the religion of the vast majority of Tibetans, and, during the rule of the Dalai Lamas, Tibet was essentially a country whose purpose was to advance the State religion.  In the 1600s the Dalai Lamas headed the Gelugpa sect of Buddhism, a reformist group that emphasized celibacy and scholasticism and saw themselves as returning to ³pure² Buddhism.[2]  The views of the Gelugpa sect placed them in conflict with the older and then dominant Red Hat sects, especially the Karmapa, which advocated ³instantaneous² practices to achieve enlightenment.[3]  The patron of the Karmapa, the king of Tsang, sought to suppress the Gelugpa sect, and, in response, the Fifth Dalai Lama enlisted the army of Gushri Khan, his Mongol patron, to defend his sect and unify Tibet under his rule.[4]  This was accomplished after a brief war with the Tsang king, and in 1642 the Fifth Dalai Lama became ruler of Tibet.[5]

                  The Dalai Lama ruled Tibet as both political and spiritual leader.  The system that existed during the rule of the Dalai Lamas can be seen has one whose main purpose was to advance the religious practices and beliefs of the Gelugpa sect of Buddhism.  When the Fifth Dalai Lama gained control of Tibet, he attempted to create the ideal environment in which to practice Buddhism.  He established new monasteries and gave some existing Gelugpa monasteries large manorial estates for their economic support.[6]  He also established government subsidies in barley, butter, and tea for monasteries without large estates and set up government funding for major ritual prayer ceremonies.[7] 

                  The Dalai Lama is believed to be the reincarnated Bodhisattva of Compassion who is reborn into a new body after the death of the previous Dalai Lama.  Thus, the ruler of Tibet had to be discovered while he was still a child, not yet able to rule the country.  Also, many Dalai Lamas either died as children or as young adults.  As a result, there were many periods during the 300 years that the Dalai Lamas ruled in which regents were in charge of the country.  The regents that ruled in the twentieth century were lesser incarnate lamas who were selected to rule by the National Assembly, a periodic governmental body that included government officials, abbots from the three great Gelugpa monasteries, and representatives of several incarnate lamas and other monasteries.[8]  Although theoretically the regentıs authority was the same as that of the Dalai Lama, because the regents ruled by selection rather than divine inheritance, they tended to be less willing or able to rule autocratically.[9]  They also usually lacked the ability to draw broad support for their rule, since they would be associated with one of the three great monasteries, thus fostering rivalries with the others.[10]  However, even strong rulers among the Dalai Lamas were more of an exception than the rule.  The Thirteenth Dalai Lama was unique in his long and prolific rule from 1895 until 1933.  He was the most powerful and effective Dalai Lama to rule Tibet since the Fifth Dalai Lama.  The current Dalai Lama, His Holiness the Fourteenth Dalai Lama, had little chance to rule Tibet before it came under Chinese rule, but he has proven to be a strong religious and political leader in his own right during his years in exile.

                  A final important aspect of the role of religion in Tibetan society was the role of monks and monasteries.  It is estimated that 15 to 20 percent of the male population in Tibet were monks.[11]  There were also nuns, but in much smaller numbers.  Thus, the Tibetan system supported a mass monk ideology based on the underlying belief that monks were, in general, superior to lay people, and so the spiritual development of the country was fostered by making monkhood available to the largest number of people possible.[12]  The three great Gelugpa monasteries, which were all located in or near Lhasa, were the Drepung, Sera, and Ganden monasteries.  They were an extremely powerful political force in the country and were known as the "Three Seats" since they acted as the main monasteries for hundreds of smaller branch monasteries throughout Tibet.[13]  These three monasteries were each like cities themselves, with Drepung having 10,000 monks, Sera having 7000 monks, and Ganden having 5000 monks in 1951.[14]  An important aspect, in terms of the legal system, was that these monasteries were treated as semiautonomous regions with complete jurisdiction over all legal disputes and crimes occurring within them, with the exceptions of treason and murder.[15]

III.  Tibet and its People

                  Traditionally, Tibet was divided up into five geographic regions with its capital Lhasa, home to 60,000 people, in the center of the southern region of Tibet.  Ninety percent of the Tibetan population was made up of peasants, nomads, and monks and nuns.[16]  The other 10 percent of the population was made up primarily of nobles, civil servants, soldiers, traders, craftworkers, and merchants.[17]  The peasants, who were mostly serfs living on large secular or monastic estates, were by far the largest group, making up the majority of average Tibetans.  The next biggest group were the nomads who were scattered across the Plateau.  They had their own legal system, favored monogamous marriage, and centered their lives around the yak.[18]  As discussed above, monks and, to a lesser extent, nuns also made up a large portion of the population.  The high number of celibate adults in the population is one factor that kept the overall birthrate in Tibet relatively low.  There was also a very high rate of child mortality in Tibet, and thus there was often much uncertainty about whether children would even make it to adulthood.[19] 

A.  Social Ranking

                  Social ranking in Tibet was an important aspect in both the legal system and daily lives of Tibetans.  The clearest evidence of the importance of social ranking was the tong payment table listed in the law codes.  The table described the compensation that had to be paid when a homicide occurred.  The amount of the tong was based solely on the victim's level in society.[20]  The highest level was the Dalai Lama for which no payment was listed.[21]  Presumably, no amount of money could compensate for the loss of the Dalai Lama nor was it imagined that such a murder would occur, but the authors of the code wanted to be sure to list him at the top of the social hierarchy.  The next highest levels included members of noble families (200 sung), high monks and officials (100 sung), and lower government officials and tax collectors (80-90 sung).[22]  The average Tibetan fell in the middle (40-60 sung) and, at the lowest level, were the blacksmiths, executioners, and butchers (5-20 sung) who occupied an "untouchables" outcaste class.[23]  One sung equaled approximately one ounce of gold or silver.[24]  The amounts listed in the tong table had not been updated since they were written three hundred years earlier.  Therefore, this table, which continued to be used until 1959, served more as a guide for determining the relative values of various social groups.

                  The two most powerful groups in Tibetan society were the traditional noble families that had existed for hundreds of years and the large monasteries that had gained power during the rule of the Dalai Lamas.  There were about 150 to 300 families of noble rankings.[25]  Though this is a fairly small number, they were very powerful and maintained a hereditary monopoly on the fixed number of lay officer positions available in the central government.  The power of the noble families was rivaled by the three great monasteries which were both politically powerful and large in their numbers.  The monasteries had an advantage in the fact that the ruler of Tibet was also a monk from one of their monasteries.  Though these two groups sometimes came into conflict with each other, they often sought to find ways to appease each other and maintain the social order.  For example, government official jobs were divided up equally between the groups.  Also, both the noble families and the great monasteries held large estates.  Thus, when the Fifth Dalai Lama decided to base the wealth of the great monasteries on land ownership, just as the traditional noble families had held their wealth, these two groups became united in their dependence on the serf system.  In fact, the largest of the Three Seats, the Drepung monastery, was said to have held 185 estates, 20,000 serfs, 300 pastures, and 16,000 nomads.[26] 

                  On the opposite end of the spectrum, Tibetan society traditionally included a small outcaste category, whose members were considered polluted and polluting.  Members included fishermen, butchers, executioners, corpse carriers, blacksmiths, and some painters and metal workers.[27]  These groups were considered to have a hereditary social trait inherited from their father, and so all offspring were considered polluted and the sons were expected to follow in the career paths of their fathers.[28]  The outcastes were considered to have violated Tibetan Buddhist proscriptions of not killing other sentient beings and not violating the earth, and so were not allowed to share food or cups with anyone outside their group and could only marry within their group.[29]  These professions typically had guilds in which they decided their own internal disputes and did not participate in the formal legal system.[30]  Not even wealth could raise the status of members of this group, nor were they allowed to become monks.[31]

                  The bulk of the Tibetan populations was made up of peasants.  The exact status of these peasants is a somewhat controversial subject, with some, notably the Chinese, claiming that they were slaves and others claiming they were more like free tenant farmers.  It seems, from most accounts, that they were serfs in the sense that they were tied to the land of their lords on noble or monastic estates or in government owned villages.[32]  They were given land in exchange for their labor on the lord's estate, and they also typically required the lord's permission to leave or, sometimes, even to marry.[33]  However, the picture is more complex in that there were different classes of serfs.  While some serfs were essentially indentured servants on monastic or lay estates, almost half were a wealthier group of "taxpayer serfs."[34]  These families held title to hereditary land that could be taken away from them only if they failed to meet their heavy burden of taxes and labor-service obligation, known as a corvee tax.[35]  Thus, taxpayer serfs had the right to do anything with their land that they wanted, with the exception of selling it, as long as they met their tax burden.  In fact, some taxpayer families had substantial amounts of land and were quite wealthy by Tibetan standards.[36]  They could have their own hereditary servants and numerous tenants who provided agricultural labor in return for the lease of some of their land.[37]  As a result, these families often had an influential say in village matters and were sometimes elected as headmen.[38]  There was also another group of serfs that had no hereditary land, but held the taxpayer status of the wealthier class of serfs.  As a result they were compelled to pay taxes and perform corvee.[39]  This group had little power and usually rented land or worked as hired hands for the taxpayer serfs.[40] 

                  In general, the serf-type system that was used in Tibet was fundamental to the political and monastic system.  The system provided the countryıs religious and secular elites a permanent and secure labor force to cultivate their lands, thus freeing the monks up for the practice of Buddhism and allowing the aristocrats to maintain their status and power in the society.[41]  However, the system was also flexible enough to allow some groups of serfs to gain wealth and large holdings of land, giving them a measure of power and status in the society as well.   

B.  Marriage and Divorce in Tibet

                  Marriage patterns in Tibet varied according to social ranking.  For the poorest Tibetans, monogamy was the usual practice, since no economic interests were involved and couples could simply marry for love.[42]  The preferred marriage arrangement for the taxpayer serfs was between a woman and two or more brothers, fraternal polyandry, in which the woman would produce one set of children who would inherit the family's property.[43]  The goal of such a system was to conserve the scarce land and wealth of the typical Tibetan family.  If a family had just enough land to support itself, it did not make sense for each brother to set up a separate household dividing up the land and requiring separate tax and corvee payments.[44]  In addition to polyandry, there were also many other acceptable forms of marriage.  In fact, Tibetans had great flexibility in choosing whatever arrangement best suited their needs at various times, especially since it was common for these patterns to change throughout an individual's lifetime.[45]  Some of the other common arrangements included father-son and unrelated male polyandry, mother-daughter and unrelated female polygamy, and monogamy.[46]  It was also not uncommon for one partner in a marriage to end up in a monastery or nunnery at some point in his or her life.[47]

                  For the nobility, monogamy was the general rule, although polygamy was not uncommon.[48] There were two forms of polygamy practiced.  One was the common practice of a wealthy man marrying multiple wives.[49]  The other had to do with inheritance.  If a wealthy family had no male heir, a male from outside the family would be brought in to marry all the daughters and become the heir.[50]  He was required to cut all ties to his biological family and assume the name of his adopted family.[51]

                  The traditional arranged marriage for the economically better off serfs and the nobility was typically by contract between two families.[52]  Matters such as the dowry and gifts from the bridegroom were topics for negotiation.[53]  Before entering into a marriage contract, the parents of each family would spend time investigating each other's character until the four parents agreed to an "unchangeable contract," meaning it was supposed to last a lifetime.[54]  The contract required that all the parents be happy about the arrangement and that the future husband like the future wife.[55]  The contract included provisions for what was to happen if either side breached the contract.  If the husband violated it, he had to pay double the value of the articles brought into the marriage by the wife.[56]  If the wife violated it, she was not given any property.  All parties, including the four parents, had to sign the contract.[57]  However, owing to the great flexibility in marriage patterns, this arrangement was open to change throughout the lives of the participants.  Brothers might enter or leave the marriage at various times.  The death of a spouse might lead the remaining partner, if a woman, to marry one of her deceased husbandıs relatives or, if a man, to enter into a marriage with his brother and sister-in-law.[58]  The poorest serfs simply moved in together to be married, since there was no religious element to marriage and wedding ceremonies were expensive.[59]

                  There was no moral proscription against divorce.  It usually occurred by mutual consent of the parties.[60]  On the condition that the wife was not responsible, the dowry was returned to her and she was given custody of the children and a share of the wealth accumulated during the marriage.[61]  When disputes arose about dividing up the property or when there was an accusation of blame on one side, divorce could involve formal court proceeding.[62]  In such cases, the judge would look at the causes leading to the divorce and allocate property accordingly.[63]  Presumably, any clauses in the marriage contract relating to the dissolution of marriage or breach by either side would also be considered by the judge.  The poor simply divorced by parting company, the wife in most cases taking the children.[64]

                  An example of Tibetan marriage patterns is provided in the story of a women named Amala.  Amala was first married by arrangement to her first husband, but after a few years he left to live in another part of the country (remaining married to her), and so she married is younger brother and had two children with him.[65]  Then, this second brother left for a non-celibate monastery, and so the third brother came to be married to her, and they had three more children.[66]  Since the third brother traveled frequently, she also openly maintained a relationship with another man whom she was not married to.[67]  The five children grew up viewing all three husbands and the lover as father figures.[68] 

                  An interesting aspect of this case is the open acceptance of the lover.  Due to the lack of religious sanctioning of marriage and the celibacy of much of the male population, promiscuity was apparently common in Tibet.[69]  However, among the wealthy, a double standard existed; men were free to have affairs, while women were expected to be faithful.[70]  Promiscuity in Tibet often resulted in children being born out of wedlock.  However, due to the low birthrate and the high child mortality rate (from 40 to 74%), having children in Tibet was desirable regardless of legitimacy.[71]

                  One question that arises when considering Tibetan society and marriage patterns is whether there was an overabundance of available female partners as compared to males.  If 15 to 20 percent of the male population was in monasteries, most of which required celibacy, and polyandry was practiced in at least some social groups, it seems that there would have been a great many women unable to find marriage partners or have children.  There were nunneries in Tibet, but they accounted for only about 15,600 nuns compared to the hundreds of thousands of monks.[72]  Thus there appears to have been many more eligible women in the society than men.  One answer is that the acceptance of promiscuity and children born out of wedlock, discussed above, allowed some unmarried women to have children despite being unmarried, and these children would simply be raised as part of the woman's family.  Another possible answer, suggested by some sources, is that the practice of polyandry was actually not that common, or at least not any more common than polygamy, and so did not have as large an impact on the balance of available males and females as one would think.[73]  It also appears that it was acceptable for women to remain unmarried and that women could own businesses and manage their own family lands.[74]  A final possibility is that in a society without modern medical practices, many women of childbearing age died in childbirth, and so there was not as much of an imbalance between the numbers of males and females as the numbers would suggest.

                  C.  Land Ownership, Inheritance, and Wills

                  The underlying right to land ownership lay in the Dalai Lama and his government.  In general, land grants were very stable and lasted many generations as long as taxes were paid.[75]  All landowners had a deed to their land describing the tax that was due on it, mainly a certain portion of grain or produce.[76]  The typical pattern was large estates granted by the government that were either monastic or private and then various plots on these estates further deeded to serfs who actually worked the land.[77]  Though required to remit a certain amount of what they produced on the land in the form of taxes in order to keep their land, taxpayer serfs enjoyed specific legal rights of ownership and had legal recourse to the central government when problems arose.[78]  It is generally believed that monasteries and lay nobility owned more than 50 percent of the arable land.[79]  In fact, recent Chinese accounts state that manorial estates accounted for 62 percent of the arable land-37 percent religious estates and 25 percent aristocratic estates.[80] 

                  Tibetans distinguished between real and personal property for purposes of inheritance.[81]  Personal property consisted of all moveable material wealth of a person or family, including animals.  Real property was the family fields.[82]  The typical inheritance pattern when a person died intestate, were as follows:

1. To the oldest son, if not a monk, particularly if he and his brothers formed a polyandrous union with one female, all of whose children were presumed to be the eldest brotherıs.[83]

2.  If the noneldest son could not take the land, then preference was for another brother, in order of seniority, who was willing to take over management of land, payment of taxes, and care for the family, preferably in cooperation with other brothers and in a polyandrous marriage.[84]

3.  If no sons, then the son of a daughter who would occupy the house and work the lands.  If there were several grandsons, then a younger son who was not eligible to inherit other lands was favored.[85]

4.  If no sons or grandsons, then the eldest daughter not in nunnery.  If she was unwilling to marry, then there was preference for a daughter who would marry, though she remained owner of the land when she married and it would pass from her to her eldest son.[86]  Alternatively, an uncle of the daughter who was a sibling of the father could make a claim to the land at this point.[87]

5.  If none of the possibilities above were available, then a son or daughter who could not occupy the land or house could inherit, and the non-occupying family member could then either keep title and rent it out or dispose of the land.[88]

6.  If no heirs, then the land reverted back to the government.[89]

                  Essentially, the issue with inheritance was who the new head of the family would be.  The preference was for a male figure who would take the fatherıs place and ensure the cultivation of the land and maintenance of the family home.  Presumably, the eldest brother, or whoever took the fatherıs place, was also responsible for taking care of the wife of the deceased father and any sisters or other dependants left on the family land.

                  A will could alter inheritance from the typical pattern.  Tibetan wills superceded the general inheritance rules unless they disowned obvious male heirs without good cause, in which case the male heir could object in court.[90]  Normally, the father would make his will when he knew he was terminally will.  He would call together several of his closest friends and choose one to act as executor.[91]  In their presence, he would divide up his land and property.[92]  The provisions of the fatherıs will were committed to writing by the appointed executor and copies were given to all those present.[93]  Those who acted as witnesses to the will all signed it, and were responsible, out of their sense of friendship, to see that its provisions were carried out.  Inheritance cases could be brought into the civil court process if disputes arose between relatives, but in most cases the parties sought to work these disputes out through informal processes.

IV.  Organization of Tibetıs Central Government

                  There were two types of civil servants in the Tibetan system, lay officers and monk officers.  Usually there were 340 officials to run the entire country divided equally between monk and lay officers, though in the 1930s and 40s there were 200 lay officials and 230 monk officials.[94]  The ecclesiastical wing of government was served only by monk officers, while the secular wing was served by both monk and lay officers.[95]  The lay officers were sons of the traditional Tibetan nobility who jealously guarded their hereditary positions in the central government.[96]  Lay officials received little or no formal salary, but in exchange for government service by one son in a noble family, the family was able to keep ownership of their manorial estates and their place in the social hierarchy.[97] 

                  Monk officials were all from the predominant Gelugpa sect and usually came from one of the three great monasteries.[98]  However, aside from their celibacy, they were really monks in name only, since they typically had only few weeks of religious training at their monasteries before going to train as government officials.[99]  Monk officers could theoretically come from any economic class, and so a promising young monk had a chance to raise his social status if chosen to train as an official.[100]  However, in reality, most monk officials came from Tibet's middle class, and by the 1940s and 50s, their positions were usually treated as hereditary.  Since monk officials were celibate, they had to adopt an heir, usually a nephew.[101] 

                  There were five basic levels in the Tibetan governmental bureaucracy.  At the lowest level was the district office which usually administered several villages or estates or a section of a city.[102]  Lhasa, for example, had two districts.  The staff of a district office usually included one or two district officers, two representatives of the local peasant population chosen by the headmen, two clerks, two helpers, and one caretaker.[103]  The two district representatives usually stayed in their position for ten to fifteen years and were a source of information about the local community for the district officers who often only served in a district for a few years before moving to a new post.[104]  District officials were responsible for the collection of taxes and acted as judges when a dispute or crime required formal court proceedings in the district.[105]  The disputes they handled typically involved inheritance of property, monastic disputes over real and personal property, land disputes between the monastery and the peasants, theft involving substantial property, robbery, and disputes that occurred on noble or monastic estates.[106]

                  The next level up consisted of governors' offices that were responsible for the administration of several districts.  Some regions had both a lower governor and an overgovernor.[107]  The power and independence of governors varied greatly in Tibet.  Some governors that were located in areas that were essentially independent principalities or semi-autonomous states had a great deal of power and independence.[108]  In these areas, even murder, which normally had to be handled by the High Court in Lhasa, could be settled by the governor.[109]  By contrast, governors close to Tibet were often lower ranking government officials that had little power.[110]    

                  The three highest levels in the Tibetan central government, in ascending order, were the various administrative offices; the Ecclesiastical Office and the Cabinet; and the Office of the Dalai Lama.[111]  The Tibetan government was divided into separate ecclesiastical and secular wings. The ecclesiastical wing was headed by the Ecclesiastical Office (the Yigtsang) and its four Great Monk Secretaries.[112]  Issues that involved monks, nuns, monasteries, or other religious issues where dealt with by the Ecclesiastical Office.[113]  The secular wing was headed by the equally powerful Cabinet (the Kashag[114]) which had authority over all secular administrative agencies and the secular law courts.[115]  Both wings of government ultimately reported to the Office of the Dalai Lama.[116]  The administrative offices, of which there were at least twenty, included the Finance Office, the High Court of Tibet, the Office of the Army, the Storage Office, the Agricultural Office, the New Investigation Office, the Foreign Office for Nepalese, and the Municipal Office, among others.[117]  Any of these administrative agencies could potentially act as a court if the Cabinet referred a case to it.[118]  Almost all non-ecclesiastical cases that came up to the central government in Tibet had to be processed through the Cabinet.  From there, they were referred to one of the administrative offices, the Office of the Dalai Lama, or the High Court of Tibet.[119]

                  The Cabinet appears to have been a very important governmental body in Tibet.  It acted as a general clearinghouse for all non-ecclesiastical government petitions and, as a result, it was the gatekeeper to the Dalai Lama and High Court, determining which petitions they saw.  The Cabinet also could act as a court itself for cases of a more political nature, though this was rare.[120]  The Cabinet was headed by four Shapes, three of which were lay officials and one of which was a monk official.[121]  The four officials had equal authority and made decisions by consensus.[122]  All secular petitions from the governors and district officers, unresolved disputes between parties, cases of murder or other very serious crimes, appeals from parties who felt their local government official was not dealing with them fairly, and legal matters addressed to the Dalai Lams arrived at the Cabinet Office in Lhasa.[123]

                  The High Court of Tibet, which was the highest court in the country, could only be reached through the Cabinet.  The Court handled almost all murder cases and was the last and highest court of appeals in both civil and criminal matters in Tibet.[124]  It typically heard legal cases at the rate of two or three per day and was also responsible for the physical punishment of criminals.[125]  There were typically two judges present to hear a case.[126]  Once their decision was made, more important cases were sent back to the Cabinet for approval, who then sent them to the Office of the Dalai Lama for final approval.[127]  If a case was not approved, it was sent back to the Court with instructions for reconsideration.[128]  At the conclusion of the case, the High Court was responsible for seeing that any punishments were carried out.[129]

V.  The Tibetan Legal System

                  An important starting point for understanding the Tibetan legal system is to understand how Tibetans viewed conflict in general, and the use of the formal legal system in particular.  With the Dalai Lama as ruler and the vast majority of Tibetans being practicing Buddhists, it is not surprising that religious principles pervaded every aspect of Tibetan life, including the legal system.  According to the Tibetan Buddhist view, conflict was seen as being the result of ³incorrect vision² due to the one or more of the six root afflictions that human beings suffer from.[130]  These include desire, anger, pride, ignorance, doubt, and incorrect view.[131]  From the Tibetan point of view, someone who was involved in a legal dispute was acting with one or more of these mental afflictions and so formal litigation reflected negatively on ones religious piety.[132]  Therefore, Tibetans preferred to speak of "rectifying an error without anger."[133]  There was also a sense among Tibetans that throughout the process of litigation one was accumulating bad karma, since the process essentially involved a lengthy fight with another party.  One challenge that Ms. French faced when she began this project was getting Tibetans to talk about the legal system, since, to them, it was not a subject worthy of in-depth study.

A.  Dispute Resolution Outside the Formal Legal System

                  For several reasons, Tibetans had a very strong preference for dispute resolution outside of the formal legal system.  These reasons included the cost and more lengthy and complicated process required in the formal system, as well as the less private and more shameful nature of it.  As one Tibetan explained:

"Tibetans work very hard to avoid disputes, even over crimes, and do anything they can to stay out of court.  Before they go into formal government courts, they will talk with their relatives, neighbors, and friends nearest to them.  If a lama can come to conciliate, he will advise them to stop fighting.  This approach placed great emphasis on the significance of good opinion and position within the community and consensus and agreement between parties to the disputes."[134]

Therefore, Tibetans used internal dispute settlement far more than they used the formal legal system, either employing various informal practices or using conciliation.  Examples of internal dispute settlement that took place between relatives or between parties to a small dispute, and only rarely resulted in written documents, include rolling dice, drawing lots, and consultation conferences with important people.[135]  However, there were also a great many legal conflicts that were resolved through the use of the local legal bodies that existed outside of the formal system.

                  Two examples of local legal bodies that existed outside the structure of the formal legal system were the various associations that many Tibetans were members of and the local committees that developed the ³Green Rules² in farming communities.  Associations in Tibet could be based on ethnic, religious, occupational, or social similarities.[136]  Examples of associations include the Nepalese-Tibetan Traders Association, which established business practices and dealt with Tibetan officials through the Nepalese Foreign Office, and the Tibetan Muslim Association, which helped meet the needs of a distinct subgroup of Tibetans.[137]  The Muslim Association, which included many Muslim businessmen, also had their own dispute resolution procedures.[138]  However, if there was a dispute between a Muslim Tibetan and a Buddhist Tibetan, the dispute was handled by the Lhasa Municipal Office which had jurisdiction over all such matters.[139]  There was even a Lhasa beggars association which acted to settle disputes internally between its members and assumed tasks such as the daily raising of the flag at the local monasteries.[140]  Other important associations were the guild-like associations such as the Committee of Stone Masons and Carpenters, which regulated the affairs of their craft, arranged tax payments and loans, and provided conciliators or representatives in court for disputes between its members and between members and non-members.[141]

                  The other local legal body that was common in Tibetan farming communities throughout Tibet was the committee that enacted and enforced the Green Laws.  These laws were enacted to ensure that human activity did not create a cosmological imbalance that would upset the gods and harm the harvest.[142]  Essentially, the rules prohibited socially improper practices believed to cause negative energy that could result in bad weather or other negative consequences.[143]  In early spring each year, one of the headmen of the district would call a meeting of ten to thirteen monastic and secular representatives from the region, including heads or members of local monasteries, irrigation workers, headmen from various regions, and representatives from large estates in the area.[144]  The assembled committee, which remained a legal body for the duration of the growing season, would draft a long agreement setting out all the prohibitions for the region during the growing season.[145]  The final document was read to all  present, stamped with a seal by each representative, and then communicated to the farmers in the various regions of the district.[146]  The Green Rules would typically include some variation of the following prohibited actions: Crying or yelling in the fields; Fighting or arguing anywhere in the district but particularly in the fields or between women; Women loosening their hair in the fields; Wandering naked in the fields; Taking red meat in the fields; Taking a red clay pot, a black animal, a black tent, or a yak into the fields; Digging in the ground; and Constructing a building anywhere in the area.[147]

                  If any of the Green Rules were violated, a meeting of the committee was called to consider the matter.[148]  When the committee heard cases, it would hear testimony from the parties involved and witnesses that observed the violation.[149]  Also, sometimes when a violation of the rules occurred, the committee would send out two or three committee members to investigate the violation who would then report back to the committee.[150]  In one case, which involved public arguing about a land dispute, the committee decided how to allocate the property at issue and required certain religious offerings to be made in the hope of preventing damage to the crops.[151]  It is not clear whether the parties could have refused to resolve the dispute or not.  Luckily in this case, no hail or bad weather followed, and so the people felt that they had successfully dissipated the negative energy from the dispute and restored the proper order.[152] 

                  In another case where a party brought a black animal into the fields, there was a penalty of a cash payment and a requirement that ritual offerings be made.[153]  It is not clear who the cash payment was given to, though it may have been given to the witness that observed the animal being brought into the fields and reported it.  However, if this was the case, it would provide perhaps too much incentive to report such violations, and could lead to false reports against others.  In any event, the committee only retained jurisdiction over such disputes during the months of the growing season, and if the same offense occurred during another time of the year, it was considered socially incorrect but was not thought to have cosmological consequences.[154]

                  Aside from these local bodies which handled disputes without involving the formal legal system, the general preference for handling disputes was through conciliation.  Conciliation was a very common private dispute resolution practice in Tibet which involved use of a conciliator chosen by the parties and usually resulted in a formal written agreement that could be used as evidence by either side in case of a future dispute over the issue.[155]  Conciliators were usually headmen, estate stewards, government officials, monks, or other respected and relatively educated men in the community.[156]  If a government official acted as a conciliator, he was doing so in an unofficial capacity.  Sometimes, after formal legal proceedings had begun, the parties or the judge might suggest conciliation, instead of continuing with the case, if it appeared that conciliation was likely to be more successful.  In such a situation, conciliation acted as a settlement procedure which ended the litigation.  In most cases, however, conciliation was used in an attempt to prevent entrance into the formal legal system at all.  Tibetans preferred conciliation to governmental legal proceedings because it allowed for more flexible agreements and did not require the detailed point-by-point delineation of the conflict that was required in courts.[157]  It was also much cheaper than legal proceeding since it only required payment of a small gift for the conciliator, and it saved the reputation of the family.[158]  The disadvantages to conciliation were that the resulting decision did not carry as much weight as an official decision and was sometimes more difficult to enforce.[159]

B.  Formal Court Proceedings in a Civil Case

                  A formal court proceeding involving a civil case was usually initiated by either a written petition or an oral statement made to the local district officer.[160]  A civil suit could not be addressed in most forums without the consent of both parties.[161]  Sometimes a conciliation would be unsuccessful and the parties who may already been using the district officer as a conciliator would then submit a petition to begin former proceedings.  The district officer would then become the judge in the case.  Some civil cases were presided over by more than one judge, especially in larger districts or higher courts. 

                  In a civil case, the petitions of the parties listed the complaints point by point and acted as the basis for the judgeıs investigation, as well as a limitation on the subject matter of the dispute.[162]  The judge would use the delineated points as the basis for his questioning of the parties and witnesses.[163]  There was no process by which the parties could question each other, especially since there was a preference not to have both parties in court at the same time.  However, any new issues brought up in a questioning session could lead to further questions for the other side when their turn came.  Thus, the process went back and forth between the parties and the goal was to come to agreed statement of the facts.  For Tibetan judges, truth in a case meant factual consonance.[164]  Thus, the parties had to agree with each other, though not necessarily with reality.[165]  In fact, judges were reluctant to go forward with a case, except to continue questioning the parties, until factual consonance had been reached.[166]

                  The judges in a case also sought to determine the veracity of the parties and witnesses, especially when no factual consonance had been reached.[167]  Oath-taking and rolling of dice were two procedures sometimes used to determine the truth the parties.[168]    Tibetans accepted the outcomes of these procedures because they were thought to be karmically determined.[169]  Throwing dice to settle a law dispute was used as a legal device if both parties were unclear about the case or if there was not sufficient evidence for resolution.[170]  One case in the 1930s involved parties who disagreed about a land lease and decided the dispute by rolling dice.[171]  The winner got possession of the land and a payment from the other party.[172]

                  Oath-taking was used commonly in Tibet in cases where parties to a dispute were willing to take an oath to clear themselves of allegations or if authorities determined someone was lying.[173]  Oath-taking had to be agreed upon by both parties and the non-oath-taking side would agree to accept the other sideıs statement as the truth and also might pay an ³oath cushion² to compensate the party in case of false accusation.[174]  Sometimes oath-taking was used for just one aspect of the case and other times it ended the case.  Oath-taking involved wearing particular clothing or items, performing certain rituals, and swearing the truth of oneıs statement in front of a powerful god who was then presumed to take responsibility for reward or punishment.[175]  In one case recorded in the 1930s, a women who took an oath to prove her veracity had her nose start bleeding after the procedure and died a week later.[176]  Evidence discovered after her death showed her to have lied, and, thus, people viewed her death as punishment from the goddess she had sworn her oath to.[177]  Oaths were also used in criminal cases when the accused was a person, who, due to sex, age, or health, could not be whipped or subjected to other methods sometimes used to extract "the truth."[178]  Usually these were cases where the accused criminal insisted that he was innocent.

                  If there was no settlement or dispute resolution through oath, dice throwing or other method, the next step after factual consonance had been reached in a civil case was a decision by the judge written up into a final decision document which was then presented to the parties.[179]  In civil cases, no district court decision was binding on the parties unless both agreed.  If one or both parties refused to sign the document, the district court could send the case to a higher administrative body or one of the parties could appeal to a higher body.[180]  If the parties agreed to the decision, then the parties signed the document and payments and punishments were carried out in court.  There was also a formal reconciliation procedure that had to be carried out after every dispute.  It involved the two sides exchanging white scarves and saying to each other ³From now on, we shall be as relatives.²[181]  Also, sometimes the parties would have a formal get-together to share drink and food and put the dispute behind them.[182]

                  One cost that the parties could not get out of paying, even if the dispute was withdrawn in favor conciliation or if no resolution resulted form the legal proceeding, was the court costs.[183]  The court costs were typically paid by both parties, but this was open to judicial discretion.[184]  Court costs were decided in one of three ways.  The first way was to use a court costs table that was in the appendix of some law codes and which required adjustment for inflation since the codes had not been changed since the 17th century.[185]  The second and most common method was to assess the court costs as a percentage of the monetary compensation owed in the case.[186]  The third method was for the judge to base the amount on his own evaluation of the circumstances in the case, and, if the parties were not satisfied, they could request that the judge use one of the other methods.[187]  In addition to these costs, the judges and secretaries still had to be paid.  The judge usually got one-fourth of the amount of the court costs and the secretaries got one-fourth of the amount given to the judge.[188]

                  A further cost was the controversial and disliked practice in the Tibetan legal system of obligatory visits to judges' homes.  Home visits were meant to show respect and to determine the judge's thoughts about the case in a less formal setting.[189]  The required practice was to bring a gift to the judge.[190]  While a gift of anything more than a white scarf could be officially punished as bribery, larger gifts were expected, leading to a great deal of potential bribery.[191]  However, since there could be more than one judge in a case, persuading one judge did not guarantee that a party would win their case.[192]  When the cost of gifting judges, court costs, judge and secretary costs, and payments to the other side were added up, it is easy to see why Tibetans favored informal dispute resolution practices.

                  While Tibetan society never developed a formal legal profession, there was a class of people who acted as legal representatives.  The idea was that ³weaker² parties should be allowed representatives in court to speak for them.[193]  Presumably anyone could act a legal representative, but there were men known by reputation to be ³knowledgeable about doing the law ² who were regularly involved in the system.  Such men could provide help in influencing judges and navigating through the intimidating bureaucratic process.  It is not clear how much or in what manner representatives were paid for their services.  The practice of using representatives became more formalized in the major cities, but it never resulted in a distinct profession.[194]

                  An interesting aspect of the Tibetan legal system, and one which Tibetans were very proud of and liked most about their system, was that decisions in civil cases were never truly final.  A decision consented to by both sides was no longer final at any point when one party decided they no longer agreed with it.[195]  Thus, there was no concept of res judicata in the Tibetan system.  A case could be reopened at any time in the future, and Tibetans credited this with making it easier for parties to agree to decisions that they knew they were not really bound to forever.[196]  There was no inconsistency for Tibetans in the idea of a final decision not really being final, since they simply believed a reopened case meant that the true answer to the conflict had not yet been found.[197]  Tibetans never mentioned there being a downside to this principle.  One might expect a lack of finality would leave the parties feeling vulnerable to future lawsuits, but rather it seems to have left the parties feeling more empowered. 

C.  Laws, Causation, and Evidence

                  The starting point for the Ganden Podrang Code of the Dalai Lamas, which was used for the 300 years leading up to 1959, was the Tsang Code written in the early 1600s.[198]  The Tsang (gtsang) Kingdom was the third and last of three secular Tibetan dynastic lines, known as the Three Kingdoms, that ruled Tibet beginning in 1354.[199]  The Tsang Kingdom began in the 1560s and its fourth king, Karma Tenkyong Wangpo, established the Tsang Code after he came to power in 1623.[200]  There had previously been numerous law codes in Tibet going back at least a thousand years, including the oft cited and poetically written 14th century Neudong law code, but the Tsang Code was the first real administrative law code and the first to be widely distributed.[201] 

                  The Tsang Code remained influential even after the Mongolian Gushri Khan came into Tibet and put his religious sage, the Fifth Dalai Lama, in control of the country in 1642.[202]  The Code of the Dalai Lamas clearly borrowed heavily from the Tsang Code, and included large sections of text almost wholly unchanged.[203]  After the Fifth Dalai Lama was placed in charge of Tibet, he established the Ganden Podrang Code and a central administrative bureaucracy that lasted until 1959.[204]  Although the earlier Tsang code which the Ganden Podrang Code was based on was secular, it was imbued with Buddhist elements since Tibet had been a Buddhist country long before being ruled by the Dalai Lamas.[205]  As a result, religion was heavily present in the law codes. 

                  The Tibetan system was very different from most other legal systems in its use of the law.  There was no concept of precedent in the Tibetan system and no interpretation of legal codes.  Law codes did not supercede earlier laws, nor did they include commentaries or sets of illustrative cases.[206]  Also, their language was often merely advisory rather than commanding.[207]  Law codes were viewed as resources for reliable suggestions, advice on decision-making, and statements of traditional ideas.[208]  In addition to law codes, Tibetans often cited legal phrases and proverbs that were commonly known among average people.[209]  These were meant to be persuasive during arguments in court proceedings and many of the phrases and proverbs still in use in the 1940s and 50s were from fifteenth and seventeenth century law codes.[210]  Examples are: "When the words of the document are not stable, when the record is not adhered to, what is left of our contract?"  and "Don't allow your things to be stolen; don't investigate for stolen articles.  What happens when you call a man a thief?  The thief will be empty-handed."[211]  Tibetans also used rhetoric and appeal to Buddhist principles to persuade judges of their position.[212]

                  There were no precedents cited to in the Tibetan legal system, nor was there any concept of stare decisis.  Thus, previous cases were never referred to as being similar or setting a rule which judges were bound to follow in subsequent cases.[213]  Instead Tibetan judges employed the process of factoring all the relevant issues in each case, believing that no two cases were the same.  For example, the issues that might be factored in a theft case included the ³size of the action taken, the type and cost of property stolen, the owner of the property stolen, where the property was stolen, was it done in day or night, done secretly or not, breaking into a building, the thief himself as a person, the number of times he has stolen, where the thief comes from, why he stole the articles, his degree of contrition, and many other things.²[214]  Since all these factors would never be the same in any two cases, a judge could not simply look to what punishments thieves in previous cases were given.  While there surely were community expectations as to what type of punishments were expected in a certain crime, since specific punishments were not tied to specific crimes in the law codes, judges had much discretion in deciding on punishments.  In civil cases, judges had a great deal of flexibility in considering which remedies were likely to be acceptable to both parties. 

                 In addition to legal codes and principles, two other factors that judges had to consider in ruling on cases were causation and evidence.  In the Tibetan legal system there was both a root cause, the historical dispute between the two parties, and the immediate (or secondary) cause, the recent event that precipitated the current dispute between the parties.[215]  An example is provided by a divorce case in which the root cause was considered to be the wifeıs adultery many years earlier, and the immediate cause was considered to be the physical fights between the couple leading to the divorce proceedings.[216]  The root cause was considered more significant, and thus the wife was held more responsible for the divorce than the husband.[217]  Adultery was considered a particularly bad crime, at least among nobles families in Tibet, because it was so often the root case of fighting.[218]

                  The use of evidence in the Tibetan system was much the same as in our system.  In a civil case, it was the duty of the petitioner to make sure he or she had sufficient evidentiary proof before entering the formal legal system.[219]  Thus, the plaintiff had the burden of proof.  Since Tibetans typically avoided the formal court system at all costs, usually by the time they were forced to enter it, they had sufficient proof of their grievance.[220]  Both physical evidence and oral evidence were equally valuable in court.  For example, in less serious crimes, such as minor stabbing, the petitioner was expected to produce the knife and the wound on his body as physical evidence and the story of his injury as oral evidence.[221]  However, in more serious criminal cases, the government took on an investigative role, collecting evidence for use in the formal proceedings.  Thus, the government official acted as both judge and prosecutor, though the victim or his family was still considered a party in the process and would provide any evidence they had in the case.

D.  Criminal Cases

                  Tibetans claimed that criminal offenses, with the exception of banditry, were infrequent in Tibet due to both religious devotion and strict punishment of crime.[222]  As with civil cases, Tibetans sought to avoid the formal legal system when a crime happened.  In fact, an interesting element of the Tibetan system was that less serious crimes could be dealt with through conciliation or other forms of internal dispute resolution and the government need never be involved.[223]  Of course, there was also a negative aspect to this, since often the government could not be counted on to get involved in minor crimes until the victim had located the offender and gathered evidence of the crime.[224]  However, in most cases Tibetans preferred to avoid the formal system for criminal cases whenever possible, since they viewed government punishments as harsh and the formal system as less flexible.[225]  Furthermore, local conciliators were more likely to be able to find solutions that would restore peace to the community.

1.  Murder and Other Serious Crimes

                  There were, however, certain crimes that were considered serious and had to be reported to the central government through the district office.[226]  These included poisoning, murder, treason, arson, theft (including burglary and robbery of significantly valuable articles), rioting, severe injury to another, and significant sorcery or black magic.[227]  Formal criminal cases were very similar to civil cases.  A criminal case was initiated by a petition as in civil cases, and, in fact, in Tibet there was a duty on the victim, his family, witnesses, the landowner, and any police or watchmen in the neighborhood to report a serious crime to the district office as soon as possible to initiate formal government proceedings.[228]  In the case of homicide, liability for the murder could lie as easily with those who did not report the crime as with the murderer, and therefore notices often came immediately from both the victim's family and other persons in the form of written petitions.[229]

                  Unlike a civil case or minor criminal case where the petitioner was responsible for producing evidence, in the case of a murder or other serious crime, the district officer would send out a personal representative to investigate the scene of the crime, gather physical evidence, and question witnesses.[230]  The investigator might also go to the home of the accused criminal to question his family, seize valuables that could be used for victim compensation, and bring the suspect back to the court if he was not already in custody.[231]  Once a homicide had occurred, a representative from the court would be dispatched to seal off the area where the crime happened until the investigator was able to conduct his investigation.  The sealed off area was stamped with the wax seal of the court, but one case reported the husband of a tavern owner breaking the seal to retrieve some of his wife's valuables and then bribing the court representative to reseal the room before the investigation occurred.[232]  Therefore, there was certainly no guarantee of untainted evidence.  Despite this, in most serious criminal cases the judges seemed to have had little doubt about the identity of the criminal and his guilt.  This confidence about the presumed guilt of the suspect allowed Tibetan judges to feel justified in the various whippings of the suspect that occurred throughout the trial.

                  During the trial, the judge would investigate the petitions and evidence, question the parties, and seek out factual consonance just as was done in a civil trial.[233]  He would also entertain numerous petitions and requests brought on behalf of the criminal or the victim.[234]  However, this proceeding was only the first stage in the criminal process for serious offenses.  After his investigation was complete, the district officer had to write out a complete description of the case in formal legal document style detailing the results of his investigation, any physical punishments given, and his conclusions about the case.[235]  The district officer then forwarded the case to the governor, who usually reviewed the case without taking any action on it.  The governor then forwarded it to the Cabinet in Lhasa.  In the case of homicide, the case would then be forwarded to the High Court of Tibet, unless it concerned a military officer, in which case it would go to the Office of the Army.[236]  Within a month or two of the case reaching Lhasa, a government official would come to the district where the crime occurred to retrieve the criminal and all the evidence and documents in the case.[237]

                  Just as in the civil cases, visiting judges at home in a serious criminal case was expected and commonly practiced.  Both the families of the victim and of the criminal defendant would often go to Lhasa once the criminal case had moved to the capital city, if they could afford to make the journey.[238]  By visiting judges, or even their wives or other court officials, the parties sought to influence the their decisions about compensation and punishments in the case.[239]  Petitions or visits also might come to the judges from other people seeking to influence the decision such as the criminalıs relatives, employer, or landlord; a monk or lama close to family; a person of influence known to either family; the owner of the house or land where the incident took place; the relatives, friends, employer, or landlord of the victim; and members of the community or association where the incident took place.[240]  A criminal who had no one to make such visits for him was obviously disadvantaged in this system, as were poorer families not able to make the trip to Lhasa or provide large gifts to the judges.

                  Essentially the process in the High Court was the same as the District Court.  It included questioning of the parties, examining of the evidence, searching for factual consonance, and factoring all the elements to determine the correct punishment and compensation.[241]  There were also whippings of criminals either in the courtroom or out in front of the courthouse for the public to observe.  These typically included an initial whipping, a questioning whipping if the criminal insisted he was innocent, and a departing whipping once the trial was over.[242]  With respect to factual consonance, if the criminal insisted he was innocent even in the face of a mountain of evidence against him, the court was reluctant to go forward with the case except to continue questioning all the parties until all the stories were in harmony.[243]  However, since questioning of the criminal defendant could include whipping the defendant, it seems likely that judges were usually able to achieve factual consonance.  However, even if consonance was not reached, presumably the court would sometimes have to decide cases in which the criminal had not confessed.  Apparently, an oath-taking procedure, if accepted by all parties, was also a possibility in such cases.[244]

2.  Punishments

                  In determining the correct punishment for a crime, Tibetan judges had a great deal of latitude.  The Tibetan law codes, for the most part, did not connect specific crimes with specific punishments.  Rather, the judges would look at all the factors of the case and decide on a suitable punishment.[245]  Factors considered were the seriousness of the crime, any injury that occurred during the crime, the circumstances of the crime, the social positions of both parties, the quality and amount of evidence, mitigating factors (eg. self defense or good character), motivation and intent, competency (age and mental ability), root cause and immediate cause, and the general placement of fault.[246]  At first, this lack of mandatory punishments appears distinct from other systems such as Imperial China in which the law code described the exact punishment for almost every conceivable crime. Yet, in practice, the Tibetan system likely did not look so different.  Just as the Chinese system was much more flexible than it appeared to be from reading the law codes, it is likely that the Tibetan system was much more predictable than the law codes would suggest.  Tibetan judges must have had guidelines in their own minds about the typical punishments accompanying various crimes, and then adjusted them up or down depending the circumstances.

                  The judge in a criminal case had to determine the correct punishment while keeping in mind the purposes of criminal punishment and karmic considerations.  The first main purpose of punishment was to restore the community, the victim, and the gods to a position of balance.[247]  This was achieved through economic payments meant to rectify social and economic harms.  The second main purpose was to dissuade the criminal and the public from committing crimes in the future.[248]  This was accomplished through specific physical punishments, often done publicly to impress upon society the serious consequences for criminal actions.  However, Tibetans also sought to rehabilitate the criminal and karmic concerns were always a consideration.  Thus,

a punishment allowing the person to remain in the world so that he would have time to improve his karma was definitely preferable to a death sentence that would almost certainly result in a lower, karmic rebirth.[249]

                  The most common type of punishments given in criminal cases were monetary compensation, whipping, and labor punishment.[250]  The victim compensation payment in a murder case was calculated with the help of the tong payment tables according to the victim's social status.  Though the victim's family was the usual recipient for tong payments, other relatives, landlords, employers, and members of the victim's community could petition for them.[251]  The court, judge, and secretary fees typically came out of the tong payment, with the rest being distributed to the victim's family or other recipients.[252]  In addition to the tong payment, the court could require "heart-press payments" for loss to the spouse, food for the children, and replacement of the bloody clothing and mattress; "income for the corpse" in cash, grain, and butter to the family for funeral rites; payments to the local temple for religious rituals; and "getting together" costs for a reharmonization ceremony.[253]  In this sense, the purpose of compensation was the same as in a wrongful death tort case where the goal was to make the victim's family whole again. 

                  Both the criminal defendant and the victim's family were considered parties in the criminal proceedings, and so both parties were consulted about compensation payments and required to sign the court decision indicating their consent to the amounts.[254]  In general, the criminal paid the entire sum, and the government was entitled to seize his household goods and other valuables for this purpose.[255]  However, if the criminal was poor, his extended family, employer, or landlord might be pressed for payment, thus extending the net of social responsibility.[256] 

                  In Tibet, landowners were generally responsible for acts committed and disputes arising on their property, and in the case of an unsolved murder, the owner of the land where the murder happened was held responsible for payment of the tong in full.[257]  Several Tibetans commented that this possibility made Tibetans more weary of having dangerous or drunk people on their property.[258]  In one case, an unsolved murder occurred and the two landowners of the courtyard where the murder happened failed to report it and denied owning the land in the hope not having to pay the tong.[259]  As a result, a third landowner near the courtyard volunteered to pay the tong and subsequently had the courtyard land deeded to him.[260]  Since the other two landowners had failed in their duty, they were powerless to stop the third party from getting their land.  Thus, failing to take responsibility could result in real penalties for landowners.  Tavern owners, in particular, appeared to a have an especially high level of responsibility, since they were legally responsible for preventing any disputes or crimes from occurring on their premises.[261]  If any did occur, the tavern owner was answerable, along with the offending parties, to the judge in court.[262]  The punishment for the tavern owner in such cases usually involved the payment of a fine, but it could also include a whipping.[263]

                  In addition to the monetary compensation, there were physical punishments and rehabilitation devices that were often handed down to criminals.  For example, murderers were usually whipped at least three times during the case with a whip constructed of a flexible bamboo handle with three leather thongs attached to it, and then, at the conclusion of the case, given a labor punishment as a means of rehabilitation.[264]  Mitigation of whipping was possible if pled as a separate issue for reasons of sex, age, health, or special circumstance and brought up early in the case.[265]  A labor punishment usually required the criminal to move to a district far from his home and work the land of a private family for a few years.[266] 

                  Other Tibetan punishments were employed in the legal system as well.  These included fetters on the hands and feet for a number of years or for life, and the wooden neck cangue developed by the Chinese.[267]  When the cangue was used for a short term punishment, it was large, heavy, and square and carried a printed notice of the person's crime in order to humiliate him.[268]  Imprisonment was typically reserved for the period during court proceedings rather than given as a punishment for crime, because of lack of facilities and staff.[269]  Other post-trial punishments included ostracism by the criminal's community or town, publication of the criminal offense in a document or edict, reduction of rank for an official, and loss of occupational status.[270]

                  One punishment that had been employed in Tibet before it was outlawed by the Thirteenth Dalai Lama was called talion.  This punishment, which was used in only the most serious crimes, included gouging out the eyes, cutting the Achilles tendon, and cutting off the tongue and the hands of the criminal.[271]  Apparently, there was still evidence of the use of these punishments seen in Lhasa in the twentieth century in the people who bore their scars, but it does not appear to have been used much in the last few decades of Tibetan independence.[272]  One case involving such a punishment was remembered by a former Tibetan official who had observed it, but it is not clear when it took place.  The case involved a group of notorious bandits who had murdered a soldier. The court decreed that the offenders should have their legs cut off from the knees down.[273]  However, a lama from a local monastery intervened, and the punishment was reduced to cutting one ankle tendon on each man leaving the foot useless thereafter.[274]  Once the punishment was completed, all the people who has observed the event brought offerings of food, blankets, clothes, and money to demonstrate forgiveness and show compassion for the criminals' suffering.  Thus, the brutal nature of this punishment and the fact that it was done publicly, may have acted as a strong deterrent when it was still employed.  Yet, it was certainly was a cruel and unusual punishment from a western perspective.  The Thirteenth Dalai Lama also outlawed capital punishment during his reign.

3.  Criminal Enforcement

                  Tibet had only a small number soldiers and police officers in comparison to the size of its population.  While Lhasa and some other cities had a police force, in the countryside there were essentially no police.[275]  The Tibetan system depended greatly on the manorial estate system in which the estate steward, who was in charge of running the estate, was also charged with handling disputes and minor crimes which arose on the estate.[276]  This freed the central government from having to provide a police force in these areas and also accounts for why the central government was able to administer the vast plateau and its millions of people using only several hundred government officials.[277]  

                  Soldiers sometimes were involved with criminal enforcement.  In one reported case in which a band of notorious robbers had killed a soldier, the governor of the area where it occurred ordered members of the army to go out and find the robbers.[278]  The army in Tibet was not very large.  In 1951 there were only 1000 to 1500 soldiers in Lhasa, where the bulk of the army was located.[279]  The police and army had the same general forms of recruitment, military ranks, land ownership, housing, food and basic training.[280]  In general, they also had the same basic role of maintaining internal peace.[281]  The Thirteenth Dalai Lama sought to open recruitment of both to the general public, upgrade both the police and army, and distinguish them from one another, but his attempts appear to have not been particularly successful, and there were many scandals that involved both groups.[282]

                  The duties of the Lhasa police, the main police force in the country, included patrolling streets and working in the courts to move prisoners and carry out punishments.[283]  A former Lhasa police officer claimed that the police rarely arrested people in the streets unless they were urinating or defecating in street, throwing garbage in street, acting belligerent, or stealing from shops.[284]  However, if the police went and talked to the person and the problem was taken care of, then they wouldnıt be brought into the station.[285]  In fact, the person usually had to be troublesome for a few nights in a row for the police to arrest him.  If the police arrested someone on a small offense against another person, then both persons were brought to the station and asked what happened.[286]  If the accused offender admitted to the offense, he was punished and released, but if there was a disagreement about what had happened and who was at fault, then the perpetrator was kept locked up at the police station and the case was written up for the Lhasa City Court.[287]   The police were not allowed to perform whippings without court approval, but, for small offenses, they could hit the offender with a bamboo stick when he was brought into the police station.[288]

VI.  Questions about the Tibetan Legal System

                 Three questions about the Tibetan Legal system concern ways of gaming of the system, the efficiency of criminal punishments, and the incentives for prosecution.  The first question is what sorts of methods did Tibetans use to game the system?  An obvious answer is that there was a great deal of bribery or, at least, attempted bribery in the system.  The visiting of judges, in both criminal and civil cases, was an expected practice, and one which was likely to be detrimental to a party that failed to do it.  There was also a clear advantage to the wealthier party in a case, since they were more able to give impressive ³gifts² to the judges and hire an experienced legal representative.  Also social status was a factor in criminal cases since gaining access to officials or having a local highly respected persons visit a judge or submit a petition on your behalf was very beneficial.  Interestingly, there was no mention of any penalties for judges who were caught accepting bribes, only for those who did the bribing.  Thus, the judges certainly gained a great deal through this process, and were not bound to provide anything in return.

                  Another possibility for gaming the system was by taking advantage of the judicial quest for factual consonance and the right of the parties not to accept judgments in civil cases.  The search for factual consonance by the judges led some cases to become bogged down in the process of questioning the parties for months.  Such cases were known as ³thick² cases.[289]  In one famous civil case, the Case of the Smelly Toilet, there was a dispute that involved a monastery that sought to prevent a wealthy family from adding on to their house, since the familyıs plans required the monks to pay for the sealing up of the their toilet that was in the shared courtyard.[290]  The family had apparently provided the judge in the case with larger ³gifts² in their home visits, and even after upping the amount of their gifts each time they visited the judge, the monks found the judge to be biased toward the family.[291]  So the monks took to the tactic of stalling the questioning process by refusing to answer the questions in court, and instead taking the questions home for discussion and then coming back the next day with the answers.[292]  This resulted in the questioning phase being stretched out for several months, and, in the meantime, the family got so frustrated they began construction on their house in violation of the judgeıs order not to.[293]  When the judge was finally satisfied that no more questioning was needed and drafted his decision, the monks refused to agree with it.  Actually, the judge had sought to take advantage of the monks and have them sign the agreement before reading it, but the monks knew that this was not the custom, and that they had the right to read the decision first and to refuse to sign it.[294]  This aspect of the case demonstrates how someone in the legal system could easily be taken advantage of if he did not know the rules.

                  Since the monks refused to sign the decision document, this resulted in another month of questioning, more stalling by the monks, more construction by the family, and a second decision by the judge which the monks again refused.[295]  The case was also delayed by the monks having to go back to their monastery for two months of training, which was not uncommon in court cases.[296]  When the monks came back to finish the case, they found that a rotation of officers had taken place and the new judge was a young monk officer who favored the monksı view of things, especially since the family had constructed the addition and walled off the toilet against the courtıs ³preliminary injunction.²[297]  So, in the end, all of the delaying greatly favored the monks who finally agreed to a judgment drawn up by the monk officer that favored them over the family.[298]  However, to make sure that the family would agree to the final decision, the monks negotiated with the monk officer to make the decision more equal to both sides.  In this case, both parties sought to manipulate the legal process in various ways, the family by bribing the judges and the monks by delaying the case.  Yet, in the end both parties had to agree the decision, and, so, in some sense, this ensured a relatively fair outcome.  However, it was only fair in this case because the parties both knew enough about the legal system to use it to their advantage.  Someone less knowledgeable certainly would have lost out in this system 

                  The second question concerns the efficiency of the criminal punishments in Tibet.  Of particular interest is the tong payment required in murder cases.  It is not clear exactly what the true value of the tong payments were in this system.  The payments clearly increased as the victim went up the social latter, but its not clear that they really compensated the recipients of the payment for the lost life and labor of the victim.  In one reported case where two monks were killed, the payment was 9 doste (1 doste equaled approximately four pounds of silver in bar form) for each monk, and the recipients of the payment were community friends who used the payment for the funeral and religious rights.[299]  One wonders whether the payment was only enough to pay for a funeral, but, perhaps, in this case, since the money did not go to the monksı family, the friends felt obligated to use the money toward religious rites rather than for their own comfort.  In todayıs dollars, 9 doste would be roughly $2304 assuming silver is about $4.50 an ounce.  Itıs unclear whether such a sum of money, which would have been around $400 in 1959 dollars, could have provided for a family in Tibet during that time.  It was a very poor country and so perhaps the tong payment was enough to provide for the victimıs family.  In any case, a fine is certainly much more efficient then spending money to imprison a criminal as is done in our system.  It both punishes the criminal, by taking something away from him, and then provides tangible benefits to the harmed party.

                  Finally, the issue of incentives for enforcement brings up some interesting questions in the context of Tibetıs system.  Clearly, Tibetans felt motivated by the costs and requirements of the formal legal system to avoid it whenever possible, and thus the incentives to enforce laws in the formal court system were relatively low, while incentives to resolve disputes informally were much higher.  The informal methods of resolution were cheaper, less intimidating, and had the benefit of preserving the reputations of the parties while still resolving the dispute.  Thus, theoretically, this would lead to a less costly formal legal system which resulted in only the larger and more contentious civil disputes entering the system.  In the criminal realm, only more serious cases had to go into the formal system.  In fact, less serious crimes would only be enforced in the formal system based on the ability of the victim to make his own case in court.  In this sense, incentives for enforcement of lesser crimes, in which the victim was responsible for obtaining evidence and pursuing the defendant, were probably low. 

                  By contrast, the systemıs treatment of serious crimes provided many incentives for prosecution in the formal system.  One rather coercive incentive was that there was a legal duty upon all parties affected by a serious crime to report it and prosecute it.  Even the fact that property owners were liable for unsolved murders on their property, which in some cases clearly acted as a disincentive to report crimes, could act as incentive since landowners could lose part of their land or be punished if they failed in their duty.  Also, this duty was an incentive for property owners to find the murderer or prevent such events, when possible, so that they would not have to pay the tong.  However, it also could have led to false accusations by landowners in an effort to get out of paying the tong.  For the victimıs family, there was a clear incentive to prosecute because they would receive the tong payment and perhaps other expenses.  There was also the general incentive in all these cases to restore peace in the community and make things right with the gods. 

VII.  Conclusion

                  Perhaps the most striking aspect of Tibetıs legal system is that it functioned in the 1950s much the same as it had in the 1600s.  Through citation to centuries old law codes, poetic legal proverbs, and religious reasoning, cases were argued and decided.  Judges, without the use of precedents or criminal sentencing guidelines, would repeatedly question the parties, consider the evidence and then, after factoring all the elements, make their judgments.  In civil cases, the parties were free to disagree with the judgment, whereas, in criminal cases, defendants were considered guilty from the moment they entered the courtroom.  Tibetans struggled with the religious implications of conflict and sought to avoid the formal legal system whenever possible.  There was great potential for corruption and inconsistencies in the system, and yet it functioned fairly well for the Tibetan people until its end in 1959.  Certainly more research is needed to gain a complete picture of how Tibet functioned before it lost its independence to China, yet what we see so far provides a good starting point for understanding its legal system and its people.


[1] Rebecca Redwood French, The Golden Yoke:  The Legal Cosmology of Buddhist Tibet, 25 (Snow Lion Publications, 1995)

 

[2] Melvyn C. Goldstein, A History of Modern Tibet, 1913-1951: The Demise of the Lamaist State, 1 (University of California Press, 1989)

 

[3] Id.

 

[4] Id.

 

[5] Id.

 

[6] Id. at 2

 

[7] Id.

 

[8] Id. at 11

 

[9] Id. at 11

 

[10] Id. at 12

 

[11] Id. at 21

 

[12] Id.

 

[13] Id. at 24

 

[14] Id. at 25

 

[15] Id. at 23

 

[16] French, supra note 1 at 26

 

[17] Id.

 

[18] Id.

 

[19] A. Tom Grunfeld, The Making of Modern Tibet, 20 (East Gate Books, 1996)

 

[20] French, supra note 1 at 114

 

[21] Id.

 

[22] Id.

 

[23] Id.

 

[24] Id. at 126

 

[25] Grunfeld, supra note 18 at 9

 

[26] Goldstein, supra note 2 at 34

 

[27] French, supra note 1 at 111

 

[28] Id.

 

[29] Id. at 112

 

[30] Id.

 

[31] Id.

 

[32] Grunfeld, supra note 18 at 12-13

 

[33] Id. at 13

 

[34] Id.

 

[35] Id.

 

[36] Goldstein, supra note 2 at 5

 

[37] Id.

 

[38] Grunfeld, supra note 18 at 13

 

[39] Id.

 

[40] Id.

 

[41] Goldstein, supra note 2 at 5

 

[42] Grunfeld, supra note 18 at 13

 

[43] Id. at 21

 

[44] Id.

 

[45] French, supra note 1 at 38

 

[46] Id.

 

[47] Id.

 

[48] Id.

 

[49] Id.

 

[50] Id.

 

[51] Id.

 

[52] Grunfeld, supra note 18 at 19

 

[53] Id.

 

[54] French, supra note 1 at 39

 

[55] Id.

 

[56] Id.

 

[57] Id.

 

[58] Id. at 38

 

[59] Grunfeld, supra note 18 at 19

 

[60] Grunfeld, supra note 18 at 20

 

[61] Id.

 

[62] French, supra note 1 at 143

 

[63] Id.

 

[64] Grunfeld, supra note 18 at 20

 

[65] French, supra note 1 at 38

 

[66] Id.

 

[67] Id.

 

[68] Id.

 

[69] Grunfeld, supra note 18 at 19

 

[70] Id. at 19-20

 

[71] Id. at 20

 

[72] The Tibetan Administration in Dharamsala, India, Tibetan Women:  Oppression and Description in Occupied Tibet (http://www.tibet.com/Women/twdiirrpt.html, 1995)

 

[73] Id.

 

[74] Id.

 

[75] French, supra note 1  at 119

 

[76] Id.

 

[77] Id.

 

[78] Id. at 120

 

[79] Grunfeld, supra note 18 at 10

 

[80] Goldstein, supra note 2 at 3

 

[81] Id. at 172

 

[82] Id.

 

[83] Id.

 

[84] Id.

 

[85] Id.

 

[86] Id. at 173

 

[87] Id.

 

[88] Id.

 

[89] Id.

 

[90] Id.

 

[91] Id.

 

[92] Id.

 

[93] Id.

 

[94] Grunfeld, supra note 18 at 10

 

[95] French, supra note 1 at 46

 

[96] Grunfeld, supra note 18 at 10

 

[97] Id.

 

[98] Id.

 

[99] Goldstein, supra note 2 at 8

 

[100] Grunfeld, supra note 18 at 10

 

[101] Goldstein, supra note 2 at 8

 

[102] Id. at 233

 

[103] Id. at 237

 

[104] Id.

 

[105] Id. at 170

 

[106] Id. at 240

 

[107] Id. at 170

 

[108] Id.

 

[109] Id.

 

[110] Id.

 

[111] Id. at 169

 

[112] Goldstein, supra note 2 at 16

 

[113] French, supra note 1 at 46

 

[114] Goldstein, supra note 2 at 16

 

[115] French, supra note 1 at 46

 

[116] Id.

 

[117] Id. at 265

 

[118] Id. at 153

 

[119] Id. at 153

 

[120] Id. at 265

 

[121] Goldstein, supra note 2 at 13

 

[122] Id. at 14

 

[123] French, supra note 1 at 265

 

[124] Id. at 295

 

[125] Id.

 

[126] Id.

 

[127] Id. at 267

 

[128] Id.

 

[129] Id. at 305

 

[130] French, supra note 1 at 73

 

[131] Id.

 

[132] Id.

 

[133] Id.

 

[134] Id. at 316

 

[135] Id. at 121

 

[136] Id. at 166

 

[137] Id. at 166-167

 

[138] Id. at 167

 

[139] Id.

 

[140] Id.

 

[141] Id. at 166-167

 

[142] Id. at 203

 

[143] Id.

 

[144] Id. at 199

 

[145] Id.

 

[146] Id. at 200

 

[147] Id.

 

[148] Id. at 201

 

[149] Id. at 202

 

[150] Id.

 

[151] Id.

 

[152] Id.

 

[153] Id.

 

[154] Id. at 203

 

[155] Id. at 122

 

[156] Id.

 

[157] Id.

 

[158] Id. at 127 and 122

 

[159] Id. at 123

 

[160] Id. at 124

 

[161] Id. at 138

 

[162] Id. at 124

 

[163] Id.

 

[164] Id. at 137

 

[165] Id.

 

[166] Id.

 

[167] Id. at 126

 

[168] Id. at 129

 

[169] Id.

 

[170] Id. at 134

 

[171] Id. at 134-135

 

[172] Id.

 

[173] Id. at 132

 

[174] Id. at 134

 

[175] Id. at 130

 

[176] Id. at 132

 

[177] Id.

 

[178] Id.

 

[179] Id. at 126

 

[180] Id.

 

[181] Id. at 139

 

[182] Id.

 

[183] Id. at 127

 

[184] Id.

 

[185] Id.

 

[186] Id.

 

[187] Id.

 

[188] Id. at 128

 

[189] Id. at 123

 

[190] Id.

 

[191] Id.

 

[192] Id.

 

[193] Id. at 245

 

[194] Id.

 

[195] Id. at 139

 

[196] Id.

 

[197] Id.

 

[198] Id. at 43

 

[199] Id. at 42-43

 

[200] Id. at 43

 

[201] Id. at 43 and 44

 

[202] Id. at 43 and 45

 

[203] Id. at 44

 

[204] Id. at 45

 

[205] Id. at 46

 

[206] Id. at 101

 

[207] Id.

 

[208] Id.

 

[209] Id.

 

[210] Id.

 

[211] Id.

 

[212] Id. at 145

 

[213] Id. at 144

 

[214] Id.

 

[215] Id. at 142

 

[216] Id. at 143

 

[217] Id.

 

[218] Id.

 

[219] Id. at 144

 

[220] Id.

 

[221] Id.

 

[222] Id. at 315

 

[223] Id.

 

[224] Grunfeld, supra note 18 at 23

 

[225] French, supra note 1 at 315

 

[226] Id. at 316

 

[227] Id.

 

[228] Id. at 298

 

[229] Id.

 

[230] Id.

 

[231] Id.

 

[232] Id. at 275

 

[233] Id. at 298

 

[234] Id.

 

[235] Id.

 

[236] Id. at 297

 

[237] Id. at 299

 

[238] Id.

 

[239] Id.

 

[240] Id.

 

[241] Id. at 302

 

[242] Id.

 

[243] Id.

 

[244] Id. at 303

 

[245] Id. at 317

 

[246] Id.

 

[247] Id. at 319

 

[248] Id.

 

[249] Id.

 

[250] Id.

 

[251] Id. at 303

 

[252] Id. at 321

 

[253] Id. at 303

 

[254] Id.

 

[255] Id.

 

[256] Id.

 

[257] Id. at 166 and 304

 

[258] Id. at 304

 

[259] Id. at 165

 

[260] Id. at 166

 

[261] Id. at 275

 

[262] Id.

 

[263] Id.

 

[264] Id. at 322 and 304

 

[265] Id. at 322

 

[266] Id. at 325

 

[267] Id. at 323 and 325

 

[268] Id. at 325

 

[269] Id.

 

[270] Id.

 

[271] Id. at 323

 

[272] Grunfeld, supra note 18 at 24

 

[273] French, supra note 1 at 323

 

[274] Id.

 

[275] Id. at 260

 

[276] Goldstein, supra note 2 at 5

 

[277] Id.

 

[278] French, supra note 1 at 323

 

[279] Goldstein, supra note 2 at 25

 

[280] French, supra note 1 at 260

 

[281] Id.

 

[282] Id.

 

[283] Id. at 262

 

[284] Id. at 261

 

[285] Id.

 

[286] Id.

 

[287] Id.

 

[288] Id. at 262

 

[289] Id. at 138

 

[290] Id. at 279

 

[291] Id. at 280

 

[292] Id. at 280-281

 

[293] Id. at 280

 

[294] Id. at 281

 

[295] Id. at 283

 

[296] Id. at 284

 

[297] Id. at 285

 

[298] Id. at 286

 

[299] Id. at 320-21