ABSTRACT
Fernanda Pirie addresses, in Chapter 5, through the study of legalism in fourteenth-century Tibet, the passage “from custom to law”. Adjudication according to law creates stability, but laws are inevitably both under- and over-inclusive. If applying law does not always produce justice, as legal theorist Frederick Schauer points out, why have people the world over resorted to law-based adjudication? That question is sharpened if we consider the notorious expense and delays of most formal legal systems. In the contemporary world, where almost all states have introduced law-based systems of adjudication, it is hard to find a context in which to ask about who introduces law, and why. This paper turns to medieval Tibet and examines a text that appears to be a deliberate attempt to transform custom into law. In the fourteenth century, the Tibetan population was largely engaged in agricultural and pastoral activities, with little local administration and no centralized courts. Elders and mediators resolved disputes arising from revenge killings, thefts, divorce, debts and loans, truth-finding, and officials’ fees, according to local norms. These customs are carefully described in this text. But is also evident that the writer was attempting to systematise the relevant practices, for example by naming different types of offence and compensation. Pirie asks who created this text, in what context, and for what purposes, thereby addressing the question of why a law-based system of adjudication might seem to be worth the effort.
