Drupal blog posts http://tibetanlaw.org/blog en The problem of punishment in early Tibetan law http://tibetanlaw.org/node/21 <span>The problem of punishment in early Tibetan law</span> <span><span lang="" about="/user/16" typeof="schema:Person" property="schema:name" datatype="">Fernanda Pirie</span></span> <span>Fri, 01/13/2017 - 17:32</span> <div><p>By adopting Buddhism Tibetans adopted a jurisprudential problem: how were they to account for the use of physical punishments? This problem had already troubled Indic writers, who had developed different approaches to the role of the good Buddhist king, the <em>cakravartin</em>. As Zimmerman (2006) has described, these involved an extreme position, whereby it was said to be impossible to be a good Buddhist king; there was a theory of compassionate punishment, which advocated the avoidance of physical penalties, in favour of rehabilitation; and there was a pragmatic position that largely ignored the problem. Indic Buddhist texts translated into Tibetan, such as Nagarjuna’s <em>Precious Garland</em>, fell into the second category and made it clear that a Buddhist king should not mete out harsh physical punishments.</p> <p>Initially, this issue does not seem to have troubled Tibetan writers (see my earlier <a href="http://tibetanlaw.org/blog/khrims">blog post</a>). However, in the ninth and tenth centuries, as the structures of the empire began to crumble, writers began to construct more elaborate accounts of the Tibetan polity and this meant re-presenting the early emperors as Buddhist kings. In these histories we see the development of a distinctly Tibetan approach to the problem of punishment, which had the kings enacting horrific punishments on emanated people, in order to frighten their subjects into good behaviour. These ideas can be traced through distinct—and not entirely consistent—stands in four histories.</p> <p><img alt="Tri Song Detsen" data-entity-type="file" data-entity-uuid="a8c864c0-3368-4f48-9ea9-13bbb89df29a" height="383" src="/sites/default/files/inline-images/Blog%20punishment%201.jpg" width="274" /></p> <p>In the <em><strong>dBa’ bzhed</strong></em>, which probably dates to the 11th century, Songtsen Gampo is described as making laws on the basis of the ten Buddhist virtues. These involve compensation payments for killing and stealing, and mutilation punishments for sexual misconduct. We can assume that this must have reflected the penalties being imposed in at least some parts of contemporary Tibet. However, the same text also describes the later king Tri Song Detsen forbidding death and mutilation penalties. Thereafter, in Nyang ral’s <em><strong>Me tog snying po sbrang rtsi’i bcud</strong></em> and the <em><strong>Ma ņi bka’ ’bum</strong></em> (both compiled in the 12th century) Songtsen Gampo’s laws are presented as involving fines, but not mutilation. The fact of punishment is, in effect, denied.</p> <p>Another strand is found in the tale of the Khotanese monks, who visit Tibet searching for ’Phags pa sPyan ras gzigs. They find a land strewn with executed and mutilated bodies and lose their faith, until they are confronted by the king, who reveals himself to be the deity. In the <em>dBa’ bzhed</em> this is enough to restore their faith, but in the versions of the <em><strong>bKa’ chems ka khol ma</strong></em><em> </em>(also 12th century) and by Nyang ral, the novice monks question the king, who explains that these punishments have been meted out on emanations simply to frighten people. The problem of punishment has been pushed into another realm (see further Mills 2011)</p> <p>A related account emerges in a rather obscure passage in the <em>bKa’ chems ka khol ma</em>. After Songtsen Gampo has resolved to pin down the demoness by building the temple at Lhasa, he manifests 5,000 emanations. Of these, at least one thousand are unruly and need to be tamed through physical punishments, which the text describes in some detail. The <em>Ma ņi bka’ ’bum</em> has two passages that describe Songtsen Gampo and his queens presiding over punishments: in one case they are meted out by one thousand emanations, and in the other they are imposed on emanations, at a cliff outside Lhasa.</p> <p><img alt="Songtsen Gampo" data-entity-type="file" data-entity-uuid="6f89ed4c-3049-4d87-9d52-75eec78f2c87" height="403" src="/sites/default/files/inline-images/Blog%20punishment%202.jpg" width="267" /></p> <p>In these later texts, Songtsen Gampo no longer orders mutilation penalties, but the narratives do not abandon the idea of physical punishment altogether. If anything, the description of these punishments becomes more gruesome. It is just that they are now illusory.</p> <p>Why did Tibetan writers not follow the Indic example of abandoning physical penalties in favour of compassion and rehabilitation? In another passage in the <em>bKa’ chems ka khol ma</em>, Songtsen Gampo complains that his subjects’ intellect does not lean towards religious knowledge, and that they are not be suitable for religious training. However, they can, he says, be tamed by his religious and royal laws. Similarly, the <em>Ma ņi bka’ ’bum</em> recounts that:</p> <p><em>da nas dgung lo bcu gsum na/ sprul pa'i rgyal bu’i thugs dgongs la/ da ni kha ba can gyi rgyal khams ʼdi chos kyis ʼdul dgos pa la ʼdir skyes pa’i mi rnams/ pha spre’u dang ma brag srin gyi bu dud ʼgro’i rigs su song bas/ zhi bas mi thul te/ thabs drag pos nan gyis chad pas bcad nas ʼdul dgos par ʼdug/ de la dbang che ba zhig dgos pas/ </em></p> <p><em>At the age of thirteen, the emanation prince formed a resolution: ‘Now, this snowy kingdom must be civilized through the dharma. Since people born here are children of the father monkey and mother rock ogress, belonging to the class of animals, they are uncivilized; they must be tamed by being punished severely, using harsh methods. For that, a very powerful man is needed.’</em></p> <p>The relationship between ruler and subjects is here presented as one based on discipline and violence, not compassion, exhortation, and example. Harsh punishment is, that is, intrinsic to the political theory being developed by these writers.</p> <p>Of course, this left Tibetan rulers with something of a problem. It is not surprising that the Tshal pa Lama Zhang (1122–1193)—who felt he needed to use considerable violence to secure his dominions—should have had trouble justifying his activities as a ruler (Yamomoto 2015).</p> <p><img alt="Lama Zhang" data-entity-type="file" data-entity-uuid="f6175a7e-8a63-4f78-8423-ccf997ab2748" src="/sites/default/files/inline-images/Blog%20punishment%203.jpg" /></p> <p>It was a problem with which Tibetans continued to wrestle for centuries to come.</p> <p><strong>References</strong></p> <p><em>dBa’ bzhed.</em> In <em>rBa bzhed phyogs bsgrigs.</em> 2009. Beijing: Mi rigs dpe skrun khang, pp. 238, 240–41, 262.</p> <p><em>Me tog snying po sbrang rtsi’i bcud</em>. Nyang ral nyi ma’i ’od zer. 1988. <em>Chos ’byung me tog snying po sbrang rtsi’i bcud</em>. Lhasa: Bod ljongs mi dmangs dpe skrun khang, pp. 174–75, 266–67.</p> <p><em>Ma ņi bka’ ’bum</em>. <em>A Collection of Rediscovered Teachings Focussing upon the Tutelary Deity Avalokiteśvara (Mahākaruṇika)</em>. 1975. Trayang and Jamyang Samten (eds), New Delhi, pp. 204, 277, 374, 376, 407–08.</p> <p><em>bKa’ chems ka khol ma</em>. A ti sha, sMon lam rGya mtsho (ed.) 1989. Lanzhou: Kan su’u Mi rigs dpe skrun khang, pp. 235, 258, 302–05.</p> <p>Mills, Martin. 2012. Ritual as History in Tibetan Divine Kingship: Notes on the Myth of the Khotanese Monks. <em>History of Religions</em> 51: 219–20.</p> <p>Yamomoto, Carl. 2015. ‘Only Kingly Deeds: Zhang Tselpa and the Symbolism of Kingship’. In B. Dotson (ed.), <em>Cahiers d’Extrême-Asie</em> 24: 105–16.</p> <p>Zimmerman, Michael. 2006. Only a Fool Becomes a King: Buddhist Stances on Punishment. <em>In</em> M. Zimmermann (ed.) <em>Buddhism and Violence</em>. Lumbini: International Research Institute.</p></div> <section class="comments" > <h2>Add new comment</h2> <drupal-render-placeholder callback="comment.lazy_builders:renderForm" arguments="0=node&amp;1=21&amp;2=field_blog_comments&amp;3=comment" token="99KWcafILHKzzimelPVVtuDa5XZ3jjZyJ2-reyAbBAI"></drupal-render-placeholder> </section> Fri, 13 Jan 2017 17:32:52 +0000 Fernanda Pirie 21 at http://tibetanlaw.org http://tibetanlaw.org/node/21#comments Yeshe Öd the law-maker http://tibetanlaw.org/node/20 <span>Yeshe Öd the law-maker </span> <span><span lang="" about="/user/16" typeof="schema:Person" property="schema:name" datatype="">Fernanda Pirie</span></span> <span>Tue, 09/13/2016 - 09:04</span> <div><p>Lha bLa ma Ye shes ’Od, ruler of Western Tibet in the late tenth century, is well known for his efforts to promote Buddhism, suppress Bon, and stamp out inappropriate ritual practices. He was also a law-maker.</p> <p>Laws have not survived from his time, but a biography, written four centuries later, is shot through with references to <em>khrims</em>. [1] It indicates that for Yeshe Öd, law-making was a means to protect religious institutions, maintain peace, promote the moral conduct and happiness of his people, and ensure correct behaviour among monastics.</p> <figure role="group" class="align-left"><img alt="Yeshe Od" data-entity-type="file" data-entity-uuid="97f5c6e1-a0bf-4d56-a4aa-3af65796cc89" height="357" src="/sites/default/files/inline-images/Blog%201.jpg" width="268" /><figcaption>Yeshe Öd, Tholing monastery, © David Pritzker</figcaption></figure><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>As his biography describes, before resigning as king and taking religious vows, Yeshe Öd creates law and presents the <em>khrims gnyis</em>, two laws, to a great assembly. Later, he gives repeated instructions to his successors about how they should create and follow law. They should, for example, ensure that power is not fragmented and is exercised in accordance with the old royal laws (<em>rgyal khrims</em>); edicts should be made to ensure that religious establishments and their inhabitants are supported and the doctrine is spread;those who break the law must be punished appropriately; literacy and virtue must be promoted, and so on (fols 13a–14b, 31a–32a, 33b–34b, 35a–b). When they make new laws, he says more than once, rulers should respect the ancient laws of their forebears, the advice found in Indic texts, and his own, more recent, laws (fols 25a–b, 26a). Laws, that is, are the means by which rulers should govern. They are also supposed to enshrine moral principles.</p> <p>In a fine analysis of this text, Jacob Dalton (2015) describes the way in which it articulates (new) ideas about the relationship between religion and state. It emphasizes a distinction between the two, and indicates a supportive relationship, encapsulated in the idea of <em>lugs gnyis</em>, two systems. This reflects a long tradition in Indic writing, whereby the activities of king and priest are distinct, but complementary. In Tibet, this relationship becomes explicit two centuries later, in the ideas by which Tibetans represented their relations with the Mongolian rulers: the Mongol king as the patron of the Tibetan priest. As Dalton convincingly argues, a separation between the two realms of activity is already apparent in the biography of Yeshe Öd.</p> <figure role="group"><img alt="Tabo" data-entity-type="file" data-entity-uuid="30657ed1-6f6c-4624-a80f-121ed0051160" height="324" src="/sites/default/files/inline-images/Blog%202_0.jpg" width="532" /><figcaption>Assembly convened by ’Byang chub ’Od, successor to Ye shes ’Od, Tabo monastery<br /> © CPR Environmental Education Centre, Chennai</figcaption></figure><p>Looking even more closely at the references to law, I suggest, can add both support and nuance this view.</p> <p>Firstly, the reference to <em>khrims gnyis</em>, two laws, is reflected in two distinct types of rules. On the one hand, there are the <em>chos khrims</em>, <em>tshul khrims</em>, and <em>dge ’dun gyi khrims</em>. These terms are all used to describe rules for monastics, and they are presumably rules of discipline. On the other hand, there are the <em>khrims lugs</em> or <em>khrims yig</em>, in general. These terms seem to refer to rules that apply to the laity (see, for example, fol. 30b, for the distinction between the two). The domains of monastic and secular activity, that is, are distinguished by the different laws that apply to those within them.</p> <p>Secondly, both types of law have broadly moral and religious purposes. As the text makes clear, lay people are expected to engage in religious practice, and the <em>khrims</em> should guide them towards virtuous conduct (fols 30a–b, 33b–35b). This is very different from imperial laws (see original blog post).* In Dunhuang documents <em>khrims</em> were practical judicial and administrative rules; they specified amounts of compensation, distinguished types of offence, and made procedural rules for litigation. They were primarily directed towards the resolution of conflict and the management of commercial activities. For Yeshe Öd, <em>khrims</em> are tools of government, but they are firmly associated with the promotion of moral conduct. We should probably assume that by the time he came to power the management of conflict and disputes had become very localized, the centralized judicial system of the empire had disintegrated, and its complex rules had become anachronistic. Law is now the basis for the moral order that Yeshe Öd is seeking to establish in Ngari.</p> <figure role="group"><img alt="Tholing" data-entity-type="file" data-entity-uuid="6c927df7-6e8d-44ad-bb2d-8923ab644120" height="263" src="/sites/default/files/inline-images/Blog%203.jpg" width="582" /><figcaption>Tholing monastery, founded by Yeshe Öd © David Pritzker</figcaption></figure><p>Thirdly, in many respects, Yeshe Öd is collapsing the distinction between the functions of king and priest. He gives orders for the suppression of dubious ritual practices and the punishment of those who transgress these directions (fol. 28a–b, 34a). Religious activity is, to a significant degree, his responsibility. He also makes it clear that the monks need to respect the ruler’s <em>khrims</em> as well as their own rules of discipline (fols 25a–b). Dalton suggests that the king, himself, will be restrained by the ethics of the law. He must certainly act morally, but on this account he is also the supreme law-maker.</p> <p>The distinction between religion and state is, nevertheless, important and Dalton is quite right to highlight its emergence in this text. Here I have suggested that the distinction is reflected in two types of laws—for monastics and the laity. A similar distinction is made in later historical narratives, which refer to  <em>chos khrims</em> and <em>rgyal khrims.</em> It is central to the ways in which Tibetans later presented the nature of their polity.</p> <p><strong>Sources</strong></p> <p>Gu ge Pandita Grags pa rGyal mtshan, <em>Lha bla ma Ye shes ʼOd kyi rnam thar rgyas pa bzhugs so</em>. Do rgya dbang grag rdo rje (ed.) 2013. Lhasa.Bod ljongs mi dmangs dpe skrung khang.</p> <p>The manuscript can be found at TBRC: W1PD153537, v. 13, pp. 283–365.</p> <p><strong>References</strong></p> <p>Dalton, Jacob. 2015. Power and Compassion: Negotiating Buddhist Kingship in Tenth-Century Tibet. In O. Czaja and G. Hazod (eds), <em>The Illuminating Mirror</em>. Weisbaden: Dr Ludwig Reichert Verlag. pp. 101–18.</p> <p><strong>Notes</strong></p> <p>[1] <em>Lha bla ma Ye shes ʼOd kyi rnam thar rgyas pa bzhugs so</em> was written by Grags pa rGyal mtshan in around 1480. As a historical account, the content and style must have been influenced by the writer’s own background. However, it seems that he lived and worked in the monastery of Tholing, founded by Yeshe Öd, and probably had access to original sources (Dalton 2015: 102).</p></div> <section class="comments" > <h2>Add new comment</h2> <drupal-render-placeholder callback="comment.lazy_builders:renderForm" arguments="0=node&amp;1=20&amp;2=field_blog_comments&amp;3=comment" token="Tk3zaP2726_ZI8MqlLbML0HqaI7MDjD7WmCCTtyS-RM"></drupal-render-placeholder> </section> Tue, 13 Sep 2016 09:04:59 +0000 Fernanda Pirie 20 at http://tibetanlaw.org Imperial Amnesties. Or, did Tibetans use dice to decide legal cases? http://tibetanlaw.org/node/19 <span>Imperial Amnesties. Or, did Tibetans use dice to decide legal cases?</span> <span><span lang="" about="/user/16" typeof="schema:Person" property="schema:name" datatype="">Fernanda Pirie</span></span> <span>Fri, 08/12/2016 - 16:44</span> <div><p>Chinese emperors regularly granted amnesties. These were gestures of mercy, often announced at the beginning of a reign, or on other auspicious occasions. During the Tang dynasty there were 176 such amnesties. They generally applied to convicted criminals, but might also extend to cancel debts.1 Were Tibetan emperors inspired to do something similar?</p> <figure role="group" class="align-left"><img alt="Emperor Xuanzong of China, who granted a debt amnesty in 744." data-entity-type="file" data-entity-uuid="63079910-3fce-4bf5-b236-76a6425be6ec" height="402" src="/sites/default/files/inline-images/Blog%20dice%201_0.jpg" width="316" /><figcaption>Emperor Xuanzong of China, who granted a debt    <br /> amnesty in 744.</figcaption></figure><figure role="group"><img alt="Tri Song Detsen" data-entity-type="file" data-entity-uuid="a84a2b67-fb41-4a5e-824c-5a9d7a165d02" height="402" src="/sites/default/files/inline-images/Blog%20dice%202_0.jpg" width="318" /><figcaption>Emperor Tri Song Detsen</figcaption></figure><p> </p> <p>In this post I suggest that a legal document from Dunhuang (<em>The Replies Document</em>, ITJ 740.2) relates to the declaration of an amnesty (<em>bka’ sho</em>). The document, itself, records a series of requests made by local officials to central authorities. They were asking whether a legal case should be decided by the application of <em>sho </em>(<em>shos bcad</em>). In a detailed analysis of this document, Dotson (2007) has suggested that the <em>sho</em> were dice, and the officials were asking whether a liability or punishment should be decided according to the role of dice.</p> <p>Subsequently, several writers have referred to the ‘dice statutes’ of the empire. More recently, however, Dotson (2015) has expressed doubts about this interpretation and suggests that a <em>bka' sho</em> has the character of a royal amnesty. Here I add my own, more sociological, reasons for suggesting that dice are unlikely, and that the <em>sho </em>relates to a debt amnesty. </p> <p>As Dotson (2007) carefully describes, the <em>bka’ sho</em> were periodic edicts, supplemented by <em>sho tshigs</em>, rules which specified the way in which the edict was to be applied. The Replies document records details of petitions that were presented following the making of a tiger-year edict, together with the replies. The details of the cases suggest that the application of the <em>sho tshigs</em> would benefit those who would otherwise be under a liability, including penalties on unpaid loans, liability for the loss of property, or in the event of marital disputes, as well as obligations to monasteries or for the provisioning of troops. The use of dice, Dotson originally suggested, gave these debtors a chance of relief.</p> <figure role="group"><img alt="Tibetan four-sided dice" data-entity-type="file" data-entity-uuid="0d1ed868-48ee-4a1d-a05a-cd72a0bf3e41" height="249" src="/sites/default/files/inline-images/Blog%20dice%203_0.jpg" width="332" /><figcaption>Tibetan four-sided dice</figcaption></figure><p>Later records—from the nineteenth and twentieth centuries—indicate that Tibetans used dice in legal cases when basic facts were in dispute. In such cases, their use was akin to the conduct of an ordeal, for which there are other precedents in Tibetan texts.2 Such techniques have been used widely around the world to solve cases in which facts are disputed: they are often regarded as means by which the divine can indicate the right result.</p> <p>The queries raised by the Replies document are not of this nature. The basic facts in all the cases are not in dispute. Moreover, they all involve quite complex situations of debt and liability. Many indicate a sophisticated system of trade and property arrangements, in which fine distinctions are made between types of loan and ownership. It seems highly unlikely that an element of chance would be introduced into such relations by the throw of dice, particularly when the basic facts are not in dispute.</p> <figure role="group"><img alt="Merchants on the Silk Road" data-entity-type="file" data-entity-uuid="d4d7c4f6-412b-4d4e-98b2-f901deb94b9c" src="/sites/default/files/inline-images/Blog%20dice%204.jpg" /><figcaption>Merchants on the Silk Road. Dunhuang, Cave 45. © Dunhuang Research Academy</figcaption></figure><p>How, then, are the <em>sho </em>to be interpreted? In each case it is being argued, or it is presumed, that one party is under an obligation to another, and the presumptive debtor is asking that the <em>sho tshigs</em> apply. In one case (clause 4), a debtor argues that his unpaid loan has become a punishable offence (<em>nongs pe’i chad pa</em>) and asks for kindness in the application of the <em>bka’ sho</em> (<em>thugs dpag mdzad pe’i bka’ shos gcad par gsol ces</em>). The creditor, on the other hand, is claiming that the debtor’s obligation to pay a penalty (<em>gyur</em>)3 is not in the nature of a punishment (<em>khrin</em>). This indicates that the application of the <em>bka’ sho</em> would relieve the debtor of his obligation to pay the penalty. It suggests that the <em>bka’ sho </em>operated like a debt amnesty, cancelling an obligation that had become akin to a punishment. <span> </span></p> <p>A similar arrangement is evident in another Dunhuang document: S. 2228. This concerns a field donated to a monastery, which was due to be returned to the donor under an administrative arrangement (<em>mkhos</em>).4 The monastery was asking that the related provisions (<em>rtsis mgo</em> and <em>sho tshigs</em>) not apply to this particular field. The <em>sho tshigs</em>, in this case, seem to have been part of an arrangement<em> </em>whereby monastic property was being returned to its original owners. This would be consistent with the purpose of the <em>bka’ sho</em>, indicted by the Replies document, namely to protect debtors. S. 2228 may relate to a situation in which over-generous donations to—or the over-insistent demands of—a powerful monastery, had led to indebtedness among the surrounding farmers. The authorities might have decided that it was necessary to protect the peasants, and thereby the tax-base of the area, through an arrangement for the return of their property.</p> <p></p> <figure role="group"><img alt="Cave shrines at Dunhuang" data-entity-type="file" data-entity-uuid="803b89a6-1d29-4366-8dc9-284db9719595" height="286" src="/sites/default/files/inline-images/Blog%20dice%205_0.jpg" width="391" /><figcaption>Cave shrines at Dunhuang, photographed photographed by Aurel Stein<br /> © The British Library Board</figcaption></figure><p><span>It is entirely plausible that in areas like Dunhuang, full of merchants and trading activities, levels of indebtedness periodically rose to such levels that the authorities felt it necessary to intervene to protect debtors. Similar practices have been noted widely around the world—periodic debt amnesties are referred to in the Old Testament, for example.</span></p> <p>There are two references to <em>sho </em>in the Tibetan Annals. The entry for the year 692–93 records that the <em>sho tshigs</em> of Sum pa were ‘seized’ (<em>bzung</em>). This suggests that an amnesty might have been specific to a particular region, maybe one that had just been incorporated within the imperial domains. Even more significantly, and as Dotson (2015) points out, the Annals record that in 756, shortly after his enthronement, Tri Song Detsen made a <em>bka’ sho</em>. This is the clearest indication that the Tibetan emperors were emulating the activities of the Chinese. Tibetan emperors may well, that is, have granted periodic amnesties to protect peasants and debtors who were suffering at the hands of the rich and powerful in their expanding empire.</p> <p><strong>References</strong></p> <p>Dotson, Brandon. 2007. Divination and law in the Tibetan Empire. In M. Kapstein &amp; B. Dotson (eds) <em>Contributions to the Cultural History of EarlyTibet</em>. Leiden: Brill.</p> <p>__. 2015. Introducing Early Tibetan Law: Codes and Cases. In D. Schuh (ed.) <em>Secular Law and Order in the Tibetan Highland</em>. Andiast: IITBS.</p> <p>Iwao, Kazuchi, Sam van Schaik, and Tsuguhito Takeuchi. 2012. <em>Old Tibetan Texts in The Stein Collection Or. 8210</em>. Tokyo: The Toyo Bunko.</p> <p>Johnson, Wallace. 1979. <em>The T’ang Code</em>, vol. 1. Princeton: University Press.</p> <p>McNight, Brian. 1981. <em>The Quality of Mercy: Amnesties and Traditional Chinese Justice</em>. Honolulu: The University Press of Hawaii.</p> <p>Pirie, Fernanda. 2015. Oaths and Ordeals in Tibetan Law. In  D. Schuh (ed.) <em>Secular Law and Order in the Tibetan Highland</em>. Andiast: IITBS, 177–95.</p> <p>Schuh, Dieter. 2015. Synthetisches Geld in Tibet. Betrachtungen zu den Zahlungs einheiten in tibetischen Gerichtsverfahren. In  D. Schuh (ed.) <em>Secular Law and Order in the Tibetan Highland</em>. Andiast: IITBS, 159–75.</p> <p><strong>Notes</strong></p> <p>1 See, generally, McKnight (1981: 2) and Johnson (1979: 16).</p> <p>2 Ordeals are, for example, described in the <em>zhal lce bcu drug</em> (Pirie 2015).</p> <p>3 Schuh (2015) argues that <em>gyur</em> is a penalty.</p> <p>4 This document is presented in Iwao et al. (2012: 43–44) and discussed by Dotson (2015: 298–302).</p> <p></p></div> <section class="comments" > <h2>Add new comment</h2> <drupal-render-placeholder callback="comment.lazy_builders:renderForm" arguments="0=node&amp;1=19&amp;2=field_blog_comments&amp;3=comment" token="RWzhW49w2Ranf8cyf73ptbSAI2rTzCPypSc-MBKegxE"></drupal-render-placeholder> </section> Fri, 12 Aug 2016 16:44:47 +0000 Fernanda Pirie 19 at http://tibetanlaw.org Khrims: changes in the Tibetan concept of law http://tibetanlaw.org/blog/khrims <span>Khrims: changes in the Tibetan concept of law</span> <span><span lang="" about="/user/16" typeof="schema:Person" property="schema:name" datatype="">Fernanda Pirie</span></span> <span>Tue, 06/14/2016 - 21:08</span> <div><p>The Tibetan concept of <em>khrims</em> can generally be rendered as ‘law’. Examining early sources, however, suggests a subtle shift in the ambit and significance of this term towards the end of the imperial period. This was a time during which new ideologies about Tibetan history, kingship, and statehood were being worked out and the concept of <em>khrims</em> came to play a new, and prominent, role within them. In this post I trace these changes and consider their historical context.</p> <p>The earliest, datable, reference to <em>khrims</em> (<em>grims</em>) is found in the Old Tibetan Annals for 655–56 (below): the chief minister made a <em>bka’ grims kyi yi ge</em>, a legal code, the year after the emperor’s <em>rtsis mgo</em>, administrative plan.</p> <figure role="group"><img alt="Extract from Old Tibetan Annals. © Bibliotèque Nationale de France, PT 1288" data-entity-type="file" data-entity-uuid="1bb67a4c-c5cc-4152-8422-683815225c88" src="/sites/default/files/inline-images/1-extract.jpg" /><figcaption>Extract from Old Tibetan Annals<br /> © Bibliotèque Nationale de France, PT 1288</figcaption></figure><p>Among the documents found at Dunhuang there are copies of legal codes, which specify compensation for homicide, injuries, and theft. There are also records of individual cases, which refer to several sorts of <em>khrims</em>, including rules for guarantors (<em>gnya’ khrims</em>) and other procedural matters.<sup>1</sup> There are some references to <em>bka’ grims</em>, indicating (Tibetan) law, in general, but for the most part the <em>khrims</em> seem to have been specific laws or legal codes, which were referred to as guidance in legal cases.</p> <p>In other imperial sources, emperors are credited with the establishment and maintenance of peace, order, and good customs. The concepts of <em>chos </em>(<em>lugs</em>)<em> bzang</em><em> </em>(good customs and practices) and <em>gtsug lag</em><em> </em>(administrative order) are found in the inscription on Tri Song Detsen’s tomb, for example, in the Sino-Tibetan treaty of 822, scattered throughout the Prayers of Dega Yutsel, written at around the same time, and in the Old Tibetan Chronicle (from the 840s). </p> <figure role="group" class="align-right"><img alt="Pillar from Tri Song Detsen’s tomb, photographed by Hugh Richardson © Pitt Rivers Museum, Oxford" data-entity-type="file" data-entity-uuid="0b11f999-f962-4ae7-9e8c-3c0aa8eee658" src="/sites/default/files/inline-images/2-pillar_0.png" /><figcaption>Pillar from Tri Song Detsen’s tomb, photographed by Hugh Richardson<br /> © Pitt Rivers Museum, Oxford</figcaption></figure><p>In these, more ideological, accounts references to law are surprisingly sparse. The Chronicle has a single reference, attributing the making of a <em>gtsug lag bka’ khrims ched po</em> (a great legal and administrative edict) to Songtsen Gampo. During the last decades of the empire, then, the rulers were being credited with the establishment of <em>gtsug lag</em> (good order)<em> </em>and <em>chos bzang</em> (good practices), but law-making was not fundamental to these achievements.</p> <h2>Later texts</h2> <p>It is not until some time later that historical accounts begin to attribute the establishment of good order to the reception of Buddhism. The <em>Scripture from the Sky</em> (<em>Dharma from Heaven</em>), which van Schaik dates to some time after the turmoil of the mid-ninth century,<sup>2</sup> looks back to the rulers of an earlier era.</p> <figure role="group"><img alt="Extract of the Scripture from the Sky © British Library, IOL 370" data-entity-type="file" data-entity-uuid="4982c538-98e6-4023-986e-6168b85f4cf8" src="/sites/default/files/inline-images/image3_0.png" /><figcaption>Extract of the <em>Scripture from the </em>Sky<br /> © British Library, IOL 370</figcaption></figure><p>They are said to have received <em>bstan pa</em> (or <em>dar ma</em>, scriptures), on the basis of which they established <em>chos gtsug lag</em> (good order and customs). The result was a domain characterized by peace and moral behaviour. The text refers to law (<em>khrims</em>) as an activity of a protective king (<em>myi mgon</em>), but it is just one of the characteristics of a good kingdom, alongside the path of truth, the discipline of the ten virtues, and the teachings of wise forebears. Buddhist ideas are now shaping the account of Tibetan kingship, but law still only plays a minor role within it. </p> <h2>The dBa’ bzhed</h2> <p>The Chronicle of the Ba clan marks a further shift and a new emphasis on law. The early sections of the account concern the activities of Songtsen Gampo, after his ancestors have received scriptures from the sky. The king sends Tonmi Sambota to India to learn writing, so as to be able to understand these documents, and the minister also brings back the text of the ten virtues. After he has created a Tibetan script, Songtsen Gampo makes laws (<em>bka’ khrims</em>), on the basis of those ten virtues. These are announced to the people, along with a <em>rtsis mgo</em> (administrative plan) and the <em>chos lugs bzang po </em>(rules for good behaviour), and he gives strict instructions about the observation of the laws.</p> <figure role="group" class="align-left"><img alt="Fragment of the dBa’ bzhed found at Dunhuang © British Library, Or 8210/S.9498A" data-entity-type="file" data-entity-uuid="94a6da15-d420-40d4-9627-1dab398121c6" src="/sites/default/files/inline-images/testament-of-ba.jpg" /><figcaption>Fragment of the dBa’ bzhed found at Dunhuang<br /> © British Library, Or 8210/S.9498A</figcaption></figure><p>The references to the <em>rtsis mgo</em> and <em>chos lugs</em> recall the language of the Annals and the tomb inscription. However, in this text they are firmly associated with the <em>bka’ khrims</em>, laws, which are themselves based on the ten (Buddhist) virtues. In this account, then, the making of the laws has become a foundational act for the great imperial order. The <em>khrims</em> are said to concern compensation and punishment for homicide, injury, stealing, and sexual misconduct, but they are also associated with rules for the conduct of the subjects (<em>chos lugs bzang po</em>). Laws are no longer simply judicial instruments, then; they also guide the people towards good behaviour in accordance with the ten virtues. </p> <p>In a later section of the Chronicle, concerning the reign of Ralpachan, it is said that the <em>chos khrims</em> were ‘re-tied’, like a silken knot, indicating that practices of Buddhism were being re-established. This suggests a new type of <em>khrims</em>, relating specifically to religious practice. This sets the scene for later texts, which refer to both <em>rgyal khrims</em> and <em>chos khrims</em>, royal and religious laws. </p> <p>By the time of the dBa’ bzhed, then, the concept of <em>khrims </em>has come to replace the <em>gtsug lag</em> of the earlier texts as the foundation of imperial order. The term <em>gtsug lag </em>is now being associated with religious establishments (<em>gtsug lag khang</em>), while <em>chos</em> is more closely associated with religious practices.<sup>3</sup> The concept of <em>khrims</em> does not change so markedly, but it does widen from a sense of imperial edicts and judicial instruments to include more general rules for moral conduct and religious discipline. It has also become central to the account of the religious roots of Tibetan civilization. From this point onwards the historical narratives (including the <em>bKa’ chems ka khol ma</em> and the many others that follow it) almost always credit Songtsen Gampo with the creation of law based on the ten virtues.</p> <p>The dating of the dBa’ bzhed is uncertain: the Dunhuang fragments relate to a different part of the narrative, so the early section on Songtsen Gampo could date from any time up to the twelfth century. However, it does seem to mark a shift between the ideas of the Old Tibetan Chronicle and those of a later tradition of historical writing. It is in the period of imperial disintegration and its aftermath, then, that we find the emergence of new ideas about law, which would become central to later Tibetan ideologies of law and government.</p> <h2>References</h2> <p>Dotson, Brandon. 2015. Introducing Early Tibetan Law: Codes and Cases. In D. Schuh (ed.) <em>Secular Law and Order in the Tibetan Highland</em>. Andiast: IITBS.</p> <p>Pasang Wangdu and Hildegard Diemberger. 2000. <em>dBa’ bzhed: The Royal Narrative Concerning the Bringing of the Buddha’s Doctrine to Tibet</em>. Vienna: Verlag der Österreichischen Akademie der Wissenschaften.</p> <p>van Schaik, Sam. 2013. The Naming of the Tibetan Religion: <em>Bon</em> and <em>Chos</em> in the Tibetan Imperial Period, <em>Journal of the International Association of Bon Research</em> 1: 227–57.</p> <p>van Schaik, Sam and Kazushi Iwao. 2008. Two fragments of the <em>Testament of Ba</em> from Dunhuang, <em>Journal of the American Oriental Society</em> 128: 477–87.</p> <h2>Texts</h2> <p>The Old Tibetan Annals (PT 1288)</p> <p>Prayers of Dega Yutsel (PT 16/IOL 751)</p> <p>The Old Tibetan Chronicle (PT 1287)</p> <p>The Scripture from the Sky (Dharma from Heaven) (IOL 370)</p> <hr /><p><sup>1 </sup>These cases, which concern theft, land use and ownership, assault, injury, and ownership of women, are discussed by Dotson (2015).</p> <p><sup>2 </sup>earlytibet.com/2010/09/24/dharma-from-the-sky-iii/</p> <p><sup>3 </sup>As van Schaik (2013: 237–40) points out, in earlier texts it has the wider meaning of (prescribed) conduct or customs.</p> </div> <section class="comments" > <h2>Add new comment</h2> <drupal-render-placeholder callback="comment.lazy_builders:renderForm" arguments="0=node&amp;1=10&amp;2=field_blog_comments&amp;3=comment" token="5U6lnuxwWfDF85pIx7pLRXWTV9nP_6cSEhG4Zqu-1Jk"></drupal-render-placeholder> </section> Tue, 14 Jun 2016 21:08:20 +0000 Fernanda Pirie 10 at http://tibetanlaw.org