DATE DOWNLOADED: Wed Jan 27 22:04:48 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Berthe Jansen, Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet, 5 Buddhism L. & Soc'y 61 (2019-2020). ALWD 6th ed. Jansen, B. ., Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet, 5 Buddhism L. & Soc'y 61 (2019-2020). APA 7th ed. Jansen, B. (2019-2020). Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet. Buddhism, Law & Society, 5, 61-90. Chicago 17th ed. Berthe Jansen, "Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet," Buddhism, Law & Society 5 (2019-2020): 61-90 McGill Guide 9th ed. Berthe Jansen, "Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet" (2019-2020) 5 Buddhism L & Soc'y 61. AGLC 4th ed. Berthe Jansen, 'Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet' (2019-2020) 5 Buddhism, Law & Society 61. MLA 8th ed. Jansen, Berthe. "Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet." Buddhism, Law & Society, 5, 2019-2020, p. 61-90. HeinOnline. OSCOLA 4th ed. Berthe Jansen, 'Abolishment, Ambiguity, and the Abyss: Buddhists' Positions on the Death Sentence in Early Modern Tibet' (2019-2020) 5 Buddhism L & Soc'y 61 Provided by: Charles B. Sears Law Library -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Abolishment, Ambiguity, and the Abyss: Buddhists’ Positions on the Death Sentence in Early Modern Tibet1 BERTHE JANSEN Universität Leipzig and Leiden University Abstract: This article deals with the death penalty in pre-modern Tibet and how both legal works and Tibetan Buddhists displayed an ambiguous stance regarding this sentence. The main sources that speak of this practice examined here are the largely understudied Tibetan legal decrees and law texts, along with traveler’s accounts and other materials. Taking an explicitly historical perspective, this paper does not engage with the question whether capital punishment can ever be justified by Buddhists. It is argued that various sovereigns burdened with both secular and religious rule, have made ambiguous attempts to abolish the death sentence, with limited success. While rare, the death penalty was carried out but remained a problematic issue for a number of Tibetan Buddhist authors. The sources presented here attest to these ambiguities. Keywords: death penalty, capital punishment, Buddhist ethics, early modern Tibet, Ganden Phodrang, Tibetan Buddhism, history of law. INTRODUCTION I will now deal with the laws of Tibet which, as everyone knows, are barbarous and heartless. If you are offended by my frank words, I beg your pardon.2 1 The research for this article has been made possible by a NWO-funded VENI grant for a project on the relationship between Buddhism and Law in early modern Tibet. I am grateful to Arik Moran and Jonathan Silk for their willingness to read an earlier draft of this article and for their suggestions for improvement. I also thank the anonymous peer reviewers for their useful comments. 2 These are the words of Karma Sumdon Paul (Skar ma Sum dhon Paul), an ethnic Tibetan who grew up in the Darjeeling area in the early 20th century. Peter Richardus, 61 62 BUDDHISM, LAW & SOCIETY [Vol. 5 Buddhist societies have always had an ambiguous stance toward capital punishment. While the death sentence was indeed carried out—and still is occasionally carried out—in countries where Buddhism is prevalent, many scholars of Buddhist ethics have found the practice to be profoundly “unbuddhist”. There is a reasonably large amount of literature on the topic of Buddhism, crime, punishment, and violence. At best, these articles are “thought exercises,” which pick and mix citations from various Buddhist texts and then demonstrate what the Buddhist viewpoint(s) on issues such as the death penalty could or should have been.3 At worst, they are fundamentally a-historical and Orientalist, and essentialize both Buddhism and Buddhists.4 Not intending to pass judgment on the morality of capital punishment, this article examines various Buddhist ideas with regard to the death penalty from a historical perspective, paying particular attention to the varied stances that Tibetan Buddhists have taken toward this contentious issue in pre-modern times. Examining The Tibetan Legal Pronouncements (zhal lce), various writings by Buddhist authors, travel accounts, and decrees issued by the Dalai Lama’s government that indicate the ban on the practice of capital punishment, this article reflects on the arguments made against and for meting out the death sentence according to these texts. While this article is concerned with the history of Tibetan Buddhist thinking and ruling on the death penalty, very recent developments in Bhutan show that a discussion of this topic in relation to Tibetan Buddhism is relevant even today. It may come as a surprise for some that Bhutan only abolished capital punishment in 2004 (with its last execution having taken place in 1964).5 In reaction to this, the then king of Bhutan, Jigme Singye Tibetan Lives: Three Himalayan Autobiographies (London: Routledge, 2014 [1998]), 106. 3 I deliberately refrain from citing examples here, since a discussion of their contents would lead us too far from the subject at hand. 4 See Elliot Sperling, “‘Orientalism’ and Aspects of Violence in the Tibetan Tradition,” in Imagining Tibet: Perceptions, Projections and Fantasies, ed. Thierry Dodin and Heinz Räther (Boston: Wisdom Publications, 2001), an excellent essay that deals with violence, orientalism, and the Dalai Lamas. 5 Theoretically, the death penalty could be meted out for stealing from temples and stūpas in Bhutan. See Richard W Whitecross, “Signs of the Degenerate Age: The Desecration of Chorten and Lhakhang in Bhutan,” Journal of Bhutan Studies 2, no. 2 (2000): 189. This also appears to have been the case for Ladakh, where—according to “old Lamas”—the death penalty was rare, but when a sentence was given, particularly when someone was proven to have stolen or destroyed religious property, the con- 2019–20] Buddhists’ Positions on the Death Sentence 63 Wangchuck, said: “the implications of capital punishment, in Bhutanese law, is seen as a contradiction both from a religious and legal perspective…. Bhutan being a Buddhist nation, capital punishment is seen as a contradiction to the basic doctrines of Buddhism.”6 Be this as it may, in 2019 a member of parliament in Bhutan called to reinstate the death penalty for those found guilty of raping young children, a proposal that was not taken up.7 It is clear as day that throughout the Buddhist world, the juridical systems in Buddhist countries and regions were never completely inspired by the Buddhist canon(s),8 and at the same time it has been argued that law was too much of a secular matter for the Buddha and his followers to deal with. Looking more closely at the canons at our disposal, I would argue that, while there are no single sūtras that deal with law (as administered by a ruler) per se, there appears to be enough material for a ruler or government to base themselves on—in particular when it comes to criminal law. A case in point would be the Satyaka Parivarta (Bodhisattva-gocaropāyaviṣaya-vikurvaṇa-nirdeśa-sūtra, in Tibetan most commonly known as Bden pa po’i le’u) 9 —parts of which Zimmerman has found to be a Mahāyāna criticism of Arthaśāstra materials—a text that clearly and quite extensively explains how to rehabilitate criminals. For the current purpose, this text is significant in that it condemns the death penalty outright, without any ambiguity.10 While this sūtra is found in most versions of the victed was executed by tying a heavy rock around his hands and feet and throwing him into the Indus river. See Teg Bahadur Kapur, Ladakh, the Wonderland: A Geographical, Historical, and Sociological Study (Delhi: K.M. Mittal, 1987), 61. 6 Richard W Whitecross, “Transgressing the Law: Karma, Theft and its Punishment,” Revue d’Études Tibetain 13 (2008): 45. 7 https://thebhutanese.bt/govt-and-mps-not-in-favour-of-death-penalty-but-favour-stron ger-laws-and-policies-to-protect-children/ (viewed 10-03 2020) 8 I here mainly refer to Mahāyāna sūtras as preserved in the various Tibetan Bka’ ’gyurs, but I assume that the Pāli canon is not much different in this regard. 9 Jonathan Silk, “Review Article: The Proof Is in the Pudding: What Is Involved in Editing and Translating a Mahāyāna sūtra?” Indo-Iranian J. 56, no. 2 (2013): 157–78. 10 See Michael Zimmermann, “Only a Fool Becomes a King: Buddhist Stances on Punishment,” in Buddhism and Violence, ed. Michael Zimmermann (Lumbini: Lumbini International Research Institute, 2006), 213–42. A summary and analysis of the chapter on royal ethics based on all available versions in Chinese and Tibetan is provided in Michael Zimmermann, “A Mahāyānist Criticism of Arthaśāstra, the Chapter on Royal Ethics in the Bodhisattva-gocaropāya-viṣaya-vikurvaṇa-nirdeśa-sūtra,” Annual Report of the International Research Institute for Advanced Buddhology at 64 BUDDHISM, LAW & SOCIETY [Vol. 5 Kangyur (Bka’ ’gyur), with few exceptions, early modern Tibetan authors hardly cite this work and when they do, it is to lend authority about statements on the “one vehicle” (ekayāna) theory also propounded in the sūtra. By some exception, an early Tibetan author, ’Phags pa (1238–1280) in his writings on governance for Mongolian rulers (Kublai Khan’s sons Jingim and Jibik Temür), is inspired not just by the Indic text’s context but also by its structure. It is therefore not surprising that he discourages his audience from putting criminals to death, while not condemning all state-mandated physical punishments outright.11 A later author, the famous polymath ’Jam mgon Mi pham (1846–1912), in his explanation of the chapter on kingship in the Satyaka parivarta, advises the king of Derge in a similar way: [..] if punishments are deserved, and guilt has been established beyond mere accusation, even then you should not kill criminals, deprive them of their sense faculties, or severe their major limbs.12 Even with him, ambiguity remains, for elsewhere he references to a kingly tradition (rgyal po’i lugs), that states that when the king’s realm finds itself in an age of strife: “The kingdom becomes happy when those who perpetrate acts of violence on living beings are killed.” Even so, ’Jam mgon Mi pham insists, the king should still remain compassionate.13 The Soka University for the Academic Year 1999 3 (2000): 177–211. Also known as the Satyaka parivarta, this text criticizes the death penalty. One Tibetan and two Chinese translations of this sūtra are extant. The sūtra has been translated from Tibetan to English by Lozang Jamspal, “The Range of the Bodhisattva: A Study of an Early Mahayānasutra” (PhD diss., Columbia University, 1991). 11 Adam Krug, “Pakpa’s Verses on Governance in Advice to Prince Jibik Temür: A Jewel Rosary,” Cahiers d’Extrême-Asie 24 (2015): 129–32; Vesna Wallace, “Legalized Violence: Punitive Measures of Buddhist Khans in Mongolia,” in Buddhist Warfare, ed. Michael Jerryson and Mark Juergensmeyer (Oxford: Oxford University Press, 2010), 92, 93. 12 Jamgon Mipham, The Just King: The Tibetan Buddhist Classic on Leading an Ethical Life, trans. José I. Cabezón (Boulder: Shambhala Publications, 2017), 59. Rgyal po lugs kyi bstan bcos gzhi skyong ba’i rgyan, 37: gsum pa skyon brjod tsam gyis ni/ mi ’grub chad pas gcad ’os na’ang/ bsad dang dbang po ’byin pa dang/ yan lag nying lag gtub mi bya/ 13 Mipham, The Just King, 178. Rgyal po lugs kyi bstan bcos gzhi skyong ba’i rgyan, 113: bsad na rgyal khams bde zhes pa/ rtsod dus rgyal po’i lugs la yod/ ’on kyang snying rje’i bsam pa ni/ nam yang btang bar mi bya’o/ The kingly tradition he refers to may point to the legal advice recorded in The Feast for Scholars (Mkhas pa’i dga’ ston), where it says: [The king] subdues enemies [and thereby] makes the kingdom 2019–20] Buddhists’ Positions on the Death Sentence 65 Fifth Dalai Lama’s (auto)biography Du kū la’i gos bzang—partially written by Sde srid Sangs rgyas rgya mtsho (1653–1705)—contains a passage that cites the Satyaka parivarta regarding putting others to death. The caveat here is that the purpose of the citation was to emphasize the importance of sparing the lives of animals, not of humans.14 While the above-mentioned Indic text has been referred to time and again in discussions of the “Buddhist stance” on capital punishment by scholars of (Buddhist) ethics and philosophy, we still know little on how actual Buddhists in positions of power dealt with this issue. In this article I discuss Tibetan Buddhist attitudes toward the death penalty from a historical perspective as found in Tibetan legal texts and elsewhere. The information we have on capital punishment in Tibetan cultural regions is rather scant, to say the least. A diachronic examination of this phenomenon allows for—but does not guarantee—a better understanding of the ambiguous relationship Tibetans had with the concept of state-ordered death. I here present a selection of the materials and examine them. THE ABOLISHMENT OF THE DEATH PENALTY IN TIBET In contrast with how law in the West is divided into criminal, civil, and administrative law, we find that Tibetan legal normative texts are mostly concerned with criminal law (and to a lesser extent with administrative law).15 These texts note the crimes and the punishments that should be happy: dgra btul rgyal khams bde bar mdzad. See Brandon Dotson, “Administration and Law in the Tibetan Empire: The Section on Law and State and its Old Tibetan Antecedents” (DPhil, Oxford University, 2006), 326–7. 14 Du kū la’i gos bzang, 312. 15 While much work on these texts remains to be done, a number of scholars have made some progress in the last few decades. See for example: Christoph Cüppers, “Gtsang khrims yig chen mo: A Tibetan Legal Code Kept in the National Archives of Nepal,” Abhilekh: Journal of the National Archives, Kathmandu, Nepal 30, V.S. 2069 (2012): 87–106; Franz-Karl Ehrhard, “A Thousand-spoke Golden Wheel of Secular Law: The Preamble to the Law Code of the Kings of gTsang,” in Secular Law and Order in the Tibetan Highland, ed. Dieter Schuh (Andiast: International Institute for Tibetan and Buddhist Studies, 2015), 105–25; Fernanda Pirie, “The Making of Tibetan Law: the Khrims gnyis lta ba’i me long,” in On a Day of a Month of a Fire Bird Year: Festschrift for Peter Schwieger, ed. Jeannine Bischoff, Petra Maurer, and Charles Ramble (Lumbini: Lumbini International Research Institute, 2019), 599–618; Dieter 66 BUDDHISM, LAW & SOCIETY [Vol. 5 meted out and consists of various “layers,” i.e., certain strands appear very old, whereas others appear to have been updated by later authors and editors. They therefore sometimes contain very clear “Buddhist sentiments” and at other times they seem to refer to notions that we find reflected in some of the earliest Tibetan language manuscripts, preserved in the Dunhuang caves. With regard to the issue of punishment, more generally speaking, I think it is safe to say that the need for punishment, whenever Buddhist treatises (be they canonical or not) mention them, is always stressed. The ruler defaults on his duties when he neglects to punish crimes and likewise the Bodhisattva defaults on his vows when he refuses to punish wrongdoers thereby preventing them from doing harm to themselves or others.16 While punishment is clearly an important tool to correct others, prevent crime, and maintain social stability in (not just) Buddhist societies, more overtly Buddhist works authored by Tibetans are by no means homogenous when it comes to the death penalty. 17 This said, there is also no geographical homogeneity—legal practices differed from place to place and particularly significant differences can be noted between Central Tibet (Dbus gtsang) and Eastern Tibet (A mdo and Khams). 18 Unless noted otherwise the sources that I present here largely deal with the former Tibet: there where power was more centralized for a longer period of time and where most of the currently extant legal works appear to hail from. Schuh, “Recht und Gesetz in Tibet,” in Tibetan and Buddhist Studies: Commemorating the 200th Anniversary of Alexander Csoma de Kőrös, ed. Louis Ligeti (Budapest: Akadémiai kiadó, 1984), 291–311. 16 Berthe Jansen, The Monastery Rules: Buddhist Monastic Organization in Premodern Tibet (Oakland: University of California Press, 2018), 174. 17 For an overview of the punishments that Tibetans endured, see Peter Schwieger, “Criminal Law and Corporal Punishment in Tibet,” in Secular Law and Order in the Tibetan Highland, ed. Dieter Schuh (Andiast: International Institute for Tibetan and Buddhist Studies, 2015), 145–58. 18 This has been noted, in particular when it comes to the death penalty, by Siegbert Hummel, “Strafen und Torturen der Tibeter (Beitrag zur tibetischen Rechtspflege),” Geographica Helvetica 12, no. 1 (1957): 97. Eastern Tibet did not remain unaffected by the Central Tibetan legal works and their accompanying ideology—Oidtmann demonstrates that Belmang Paṇḍita (1764–1863) tried to implement them in certain areas in Amdo, arguing for the importance of not carrying out death sentences. See Max Oidtmann, “Between Patron and Priest: Amdo Tibet under Qing Rule, 1792–1911” (PhD Harvard University, 2013), 296–314. 2019–20] Buddhists’ Positions on the Death Sentence 67 We find Tibetan authors and scholars who make the claim that the 13th Dalai Lama (1876–1933) abolished the death penalty in 1912/13 after his return from India. Jamyang Norbu even claims that “Tibet was one of the first countries in the world to end capital punishment.” 19 While, if correct, Tibet was decidedly early in getting rid of the death penalty, Venezuela had already abolished this punishment in 1863, San Marino in 1865, and Portugal in 1867. Lobsang Rabgyay, writing in 1977, states: He was the first Dalai Lama to realise fully the importance of social and economic development of the country. He introduced quite a number of humanitarian and progressive reforms. He abolished capital punishment and amputation except in the cases of those who plotted against the Government. He made regulations to prevent exploitation of peasants by the upper classes. Every official was required to wear traditional Tibetan dress and identify himself with the people.20 The Tibetan historian Shakabpa writes that after the 13th Dalai Lama had returned from exile in India, on the eighth day of the first month of the water Ox Year (15th February 1913), he announced, in what Tibetans nowadays consider to be his declaration of independence, to put an end to the amputation of limbs as punishments—and Shakabpa adds that this was “in addition to his earlier abolishment of the death penalty.”21 The more recent translation of Shakabpa’s work on the history of Tibet, which is more literal and much more extensive than the earlier one, interestingly seems to omit this last statement. Of course, the proclamation of Tibet’s independence is well-known to us and has been translated several times. Here, reference is made, however, to an edict issued by the 13th Dalai 19 https://www.jamyangnorbu.com/blog/2009/05/17/from-darkness-to-dawn/ Bsod nams Tshe ring even writes that Tibet had abolished the death penalty more than a thousand years ago, see Bsod nams Tshe ring, “Bod kyi srol rgyun khrims srol gyi ngo bo dang da lta’i gnas stangs la dpyad nas spyi tshogs bde ’jags la phan nges pa’i thabs ’ga’ rags tsam gleng ba,” in Si khron bod rig pa’i zhib ’jug 10, 189. 20 Lobsang Rabgay, “The Thirteenth Dalai Lama,” The Tibet Journal 2, no. 3 (1977): 26. Italics added. The same information is given in Glenn H. Mullin, Path of a Bodhisattva Warrior: The Life and Teachings of the Thirteenth Dalai Lama (Ithaca, N.Y.: Snow Lion, 1988), 45. 21 Tsepon Wangchuck Deden Shakabpa, Tibet: A Political History (New Haven: Yale University Press, 1967), 520, 596; Tsepon Wangchuck Deden Shakabpa, One Hundred Thousand Moons: An Advanced Political History of Tibet, trans. Derek Maher (Leiden: Brill, 2010 [1967]), 760 (new translation). Copies of this proclamation were sent out throughout the whole of Tibet, and every district’s office had to maintain a copy of it, ibid. 1967, 248. 68 BUDDHISM, LAW & SOCIETY [Vol. 5 Lama that abolishes the death penalty in no uncertain terms. Unfortunately, I have not been able to find it—it may be the case that this document has not resurfaced or that the abolishment of the death penalty had not in fact been put in writing.22 Norbu, without giving any sources, states that the 13th Dalai Lama had abolished capital punishment around the year 1896.23 This would have been one year after the 13th Dalai Lama had reached maturity and was officially able to rule Tibet. If I am not mistaken, all historians who have written about this issue refer to Tibet: Past and Present, an earlier and more reliable eye-witness report with regard to this ban by Charles Bell, who was a contemporary of the 13th Dalai Lama and spent a fair amount of time in his presence. He writes: The Dalai informed me that he had not allowed any capital sentence to be inflicted since he assumed power. This no doubt is so, but the punishment for deliberate murder is usually so severe that the convict can hardly survive for long. Visiting a prison one day in the village below the Potala, we heard groans proceeding from a room, dark and airless. In this room a murderer was confined; he had been there day and night for three years. After leaving, I asked a Tibetan friend whether punishment of this kind did not kill a man. ‘Yes, it often does.’ ‘Does it not make him mad?’ ‘No, why should it?’ was the reply. And indeed it is true that in matters of this kind Tibetans have nerves of iron.24 22 I am acutely aware of the unevenness of official Tibetan documents available to us—there are likely to be a great many relevant manuscripts and edicts in Lhasa and Beijing, quite literally behind lock and key. 23 Jamyang Norbu, “The Lhasa Ripper: A Preliminary Investigation into the ‘Dark Underbelly’ of Social Life in the Holy City,” Revue d’Études Tibetain 31 (2015): 242. Assuming that the 13th Dalai Lama indeed abolished the death penalty around this time, it may be worthwhile to compare that to other Asian countries with a significant Buddhist presence: Bhutan: year abolished 2004 (last execution 1964, the last death sentence was given in 1974, which was subsequently commuted by the king); Mongolia: year abolished 2017 (last execution 2008); Myanmar: last execution 2016; Sri Lanka: last execution 1976 (tried to repeal moratorium in 2018); Thailand: last execution 2018; Laos: last execution 1989. 24 Charles Alfred Bell, Tibet: Past and Present (London: Oxford University Press, 1924), 142, 143. Death while in custody seems to have been far from uncommon. For a number of such cases in the early 20th century, see Melvyn C. Goldstein, A History of Modern Tibet, 1913–1951: The Demise of the Lamaist State (Berkeley: University of California Press, 1989), 42–43. 2019–20] Buddhists’ Positions on the Death Sentence 69 Elsewhere in the same work, Bell regards this treatment to be worse than death.25 Charles Bell was not the only foreigner to have given an eyewitness account of the workings of Tibetan law. Tsybikov, a Buryat who travelled in Tibet between 1899–1902, spent two years in Tibet proper (1900–1901) and wrote an extensive account of his travels. After he returned to Russia, it was decided in 1903 that he would write a description of his journey. The original Russian work was published in 1919 after significant delay.26 For this reason, and several others, the following account of the criminal justice system in Tibet is noteworthy: The greatest punishment is of course death, which is inflicted by drowning in the river (at Lhasa) or throwing off a cliff (at Shigatse). After the cancellation of the death penalty by the present Dalai Lama, I had occasion to witness only public 27 punishment by flogging. This could indeed confirm that the death penalty was already abolished when Tsybikov stayed in Tibet around the fin-de-siècle.28 Hummel notes that the 13th Dalai Lama occasionally did allow executions to take place, but that they were very rare.29 Without written sources, it is difficult to confirm this. Tsybikov’s account, however, is interesting for another reason, namely because he mentions that he conversed with avid supporters of the recently abolished death penalty: Lama philosophers explain the existence of the death penalty in a Buddhist country among people who even avoid killing the insects that bite them by saying that, for the sake of the good of many living beings, it is not a sin to kill evil-minded people. Execution is moreover extremely useful for the evildoer himself since it delivers him from further sins. Such is the justification of the 30 death penalty. This Buddhist justification of the death penalty should not come as a surprise to scholars of Buddhism. This kind of killing falls under the socalled “compassion killing” and is not primarily thought to restore justice, 25 Bell, Tibet: Past and Present, 236. Gombozhab T. Tsybikov, A Buddhist Pilgrim at the Shrines of Tibet, trans. Paul Williams (Leiden: Brill, 2017 [1919]), xv. 27 Tsybikov, A Buddhist Pilgrim, 144. 28 The title of a paper given by French at a conference in 1989 entitled By the Command of the Buddha: The Abolition of the Death Penalty in Tibet in 1900 suggests a later year. 29 Hummel, “Strafen und Torturen,” 94. 30 Tsybikov, A Buddhist Pilgrim, 144. 26 70 BUDDHISM, LAW & SOCIETY [Vol. 5 to get retribution, or to protect fellow citizens but to prevent the perpetrator from accumulating more bad karma. The above expressed sentiments debunk the idea of a scholar of Buddhist ethics that “the Buddhist theory of crime is first and foremost a theory of reconciliation and rehabilitation,” if we can even speak of something like the Buddhist theory of crime.31 Scholars of Buddhism will also know that there are also clear arguments against the death penalty, since after the convict has died, he no longer is able to purify his bad deeds. The 14th Dalai Lama is known for speaking out against the death sentence: Whatever method that society uses as a corrective means needs to be applied. However, the individual needs to be corrected in such as way that he or she learns to recognize that what they did was wrong; that it was a negative act. It is only on the basis of such recognition that correction can truly begin. From the Buddhist point of view, therefore, the death penalty is out of the question. Even the idea of life imprisonment is problematic, because it, too, fails to recognize the possibility of correction.32 Another problem with passing the death sentence—from a Buddhist perspective—lies with the person who passes the judgment. Ekai Kawaguchi, a Japanese monk who lived in Tibet between 1900 and 1902, noted this paradoxical situation and criticized policies implemented by the 13th Dalai Lama (here: the Grand Lama): Sometimes when a case of grave moment occurs it is submitted to the personal judgment of the Grand Lama himself. The Grand Lama is therefore placed in a highly anomalous position, [..] he is obliged to pass judgment and to sentence persons to exile or even to capital punishment. As head of a religion he is positively forbidden by its teachings to pass a decree of that nature, whether that decree is justifiable in the worldly sense or not. But the Grand Lama does issue decrees of this irreligious description.33 It appears that indeed the 13th Dalai Lama tried cases “while he was a novice,” which he might have done while Kawaguchi was in Tibet. He later gave this up, possibly indicating that there was a perceived incompa31 Virginia Hancock, “No-self at Trial: How to Reconcile Punishing the Khmer Rouge for Crimes against Humanity with Cambodian Buddhist Principles,” Wisconsin International Law Journal 26, no. 1 (2008): 87–129 [26 Wisc. Int’l L.J. 127 (2008)]. 32 Tenzin Gyatso, Illuminating the Path to Enlightenment: A Commentary on Atisha Dipamkara Shrijnana’s A Lamp for the Path to Enlightenment and Lama Je Tsong Khapa’s Lines of Experience (Long Beach, CA: Thubten Dhargye Ling, 2005), 92. 33 Ekai Kawaguchi, Three Years in Tibet: with the Original Japanese Illustrations (Madras: The Theosophist Publishing Society, Benares and London, 1909), 433. 2019–20] Buddhists’ Positions on the Death Sentence 71 tibility between maintaining bhikṣu vows and presiding trials.34 Be this as it may, there are a number of decrees by the hand of the 13th Dalai Lama that advocate violence (in the broadest sense of the word), largely in order to maintain and increase Tibet’s self-preservation.35 THE DEATH PENALTY ACCORDING TO TIBETAN PRIMARY SOURCES While the 13th Dalai Lama may have abolished the death sentence, he was certainly not the first Tibetan to have objected to it. The Tibetan sources presented here demonstrate that the death penalty has been seen to be problematic for centuries. The ambiguity with which religious authors depicted the rule of famed Buddhist kings, such as that of Srong btsan sgam po, is a case in point. While the Chinese Old Tang Annals (Jiutangshu, 舊唐書) that deal with a period roughly contemporaneous to the Tibetan empire, note the strictness of punishments in Tibet, 36 later Tibetan Buddhist apologists portray the executions ordered by the Dharmarāja Srong btsan sgam po (?569–649?) as being emanations to inspire adherence to the law among his subjects and the king himself as Avaloketiśvara himself.37 Stein cites a segment that occurs in both the The Testament of Ba (Sba bzhed) and the Feast for Scholars (Mkhas pa’i dga’ ston), that celebrates the reign of the Dharmarāja Khri srong lde btsan (r. 755–797), who is remembered as the instigator of the translation enterprise of Indian Buddhist sūtras into Tibetan and an overall champion of Buddhism. His reign was one, during which “the eyes of men were no longer plucked out, nor were the noses of women cut off, nor the guilty killed. The king called 34 Charles Alfred Bell, Portrait of a Dalai Lama: the Life and Times of the Great Thirteenth (Delhi: Book Faith India, 1998 [1946]), 157. Also see Jansen, The Monastery Rules, 151–52. 35 Federica Venturi, “The Thirteenth Dalai Lama on Warfare, Weapons, and the Right to Self-Defense,” Revue d’Études Tibétaines 31 (2015): 483–509. 36 Brandon Dotson, “Divination and Law in the Tibetan Empire: The Role of Dice in the Legitimation of Loans, Interest, Marital Law and Troop Conscription,” in Contributions to the Cultural History of Early Tibet, ed. Matthew T. Kapstein and Brandon Dotson (Leiden: Brill, 2007), 4. 37 Martin A. Mills, “Ritual as History in Tibetan Divine Kingship: Notes on the Myth of the Khotanese Monks,” History of Religions 51, no. 3 (2012): 226–27. This episode is found in the Mani Bka’ ’bum (Delhi, 1975), 406–07. 72 BUDDHISM, LAW & SOCIETY [Vol. 5 this the ‘Great Law of (Buddhist) Religion.’” 38 The mentioned punishments—cutting off women’s noses (in the case of adultery) and gouging out eyes out—in fact continued to be punishments of choice in Tibetan societies until well into the 20th century, despite the 13th Dalai Lama’s ban. Here the significant point is of course that the notion that criminals were no longer put to death was directly attributed to Buddhism, or rather, the king’s implementation of Buddhist ideology. Certain Tibetan legal texts, written, edited, or compiled many centuries later, mention the death penalty in passing—the favored method being throwing the convict into an abyss or into a body of water—along with a number of other possible punishments, such as banishment, heavy fines, and physical punishments. It is presented simply as an option and appears to leave the final decision at the discretion of the judge. An edict that I have been working on does exactly that. It has no author, but it does have a cycle year, which is in all likelihood 1643. This means it was issued less than a year after the establishment of the new Ganden Phodrang (Dga’ ldan pho brang) government headed by the Fifth Dalai Lama. The work has been ascribed to the Fifth Dalai Lama, his regent Bsod nams rab brten, or even to Gushri Khan and if the date is correct, it will have been one of the earliest decrees issued by the new government.39 It states: After having been handed over to their own district officer, [criminals] need to be heavily suppressed, considering their relative crimes, for example by throwing them into the abyss.40 While the above-mentioned edict has no author assigned to it, it is plausible that the Fifth Dalai Lama was involved in some manner in its compilation.41 Another legal document, issued not long after this edict was 38 Rolf A. Stein, Rolf Stein’s Tibetica Antiqua: with Additional Materials (Leiden: Brill, 2010), 217. 39 For a diplomatic edition and a translation into German see: Christoph Cüppers, “Ein Erlaß des Königs Gushri Khan aus dem Jahr 1643,” Zentralasiatische Studien des Seminars für Sprach und Kulturwissenschaft Zentralasiens 40 (2011). See Jansen (forthcoming, 2021), this article includes an extensive critical edition of this text and an annotated translation. 40 Bod kyi khrims srol skor gyi lo rgyus yig tshags phyogs sgrig: btsan po’i rgyal rabs skabs kyi khrims srol yig tshags, 2016. Rdo sbis Tshe ring rgyal and Rdo sbis Tshe ring rdo rje, eds, 316; rdzong mgo so sor rtsis ’bul bas g.yang bskyur sogs nyes byas la dpags pa’i dran ’dzin lci non gtong. I have located eight versions of this text, this is just one of them. 41 For a more detailed argumentation, see Jansen (forthcoming, 2021). 2019–20] Buddhists’ Positions on the Death Sentence 73 promulgated, presents us with quite a different and still ambiguous view on capital punishment. The Thirteen Pronouncements (Zhal lce 13), a vital law decree issued by the Ganden Phodrang government, contains no year and no author. In Tibet, its authorship tends to be ascribed to the Fifth Dalai Lama. Some estimate that this work is from around 1653.42 The genre of legal works that carry the name “zhal lce” (The Pronouncements), which exist in various numbers (12, 13, 15, 16), has not been sufficiently researched,43 but it has been noted that they do not appear to have much to do with Buddhism. In agreement with Schuh,44 van der Kuijp claims “the total absence of anything that might remotely be construed as Buddhist, except for their propagandistic introductions written for the purposes of legitimation and authority.”45 While it appears that the core of The Pronouncements hints to a legal “world” in which Buddhism had little influence, I would argue that these introductions, or preambles, are vital to understand how Tibetan rulers and their advisors conceived of the law in the light of their religious beliefs. In the preamble of The Thirteen Pronouncements, the author strongly condemns the death penalty: In the old legal texts of yore, it would say that an adulterer is to have part(s) of his limb amputated and then expelled to another region. Concerning banishment after eyes have been gouged out or minor parts of the body have been cut off: since these particular official laws (bka’ khrims) of the three, patron and preceptor (mchod yon)46 are guided by47 the Mahāyāna development of the mind,48 the 42 Yumiko Ishihama, “On the Dissemination of the Belief in the Dalai Lama as a Manifestation of the Bodhisattva Avalokitesvara,” Acta Asiatica: Bulletin of the Institute of Eastern Culture 64 (1993): 40. The author notes that Yamaguchi thinks it was written some five years earlier. See Zuiho Yamaguchi, Chibetto, vol. 1 (Tokyo: Tokyo daigaku shuppankai, 1987). The work is also called the Mchod yon nyi zla zung gi khrims yig. French dates it to 1650, see Rebecca Redwood French, The Golden Yoke: the Legal Cosmology of Buddhist Tibet (Ithaca: Cornell University Press, 1995), 323. 43 For an introduction into the genre see Rebecca Redwood French, “Tibetan Legal Literature: The Law Codes of the dGa’ ldan pho brang,” in Tibetan Literature: Studies in Genre, ed. Sopa Lhundup, José I. Cabezón, and Roger R. Jackson (Ithaca, N.Y.: Snow Lion, 1996), 438–57. 44 Schuh, “Recht und Gesetz in Tibet,” 299. 45 Leonard W. J. van der Kuijp, “The Yoke is on the Reader: a Recent Study of Tibetan Jurisprudence,” Central Asiatic Journal 43, no. 2 (1999), 288. Italics added. 46 The word ‘three’ is missing in some other versions. I assume the three to be the Dalai Lama, the regent Bsod nams rab brten and Gushri Khan. 47 lit. “preceded by,” since Bodhicitta is what one calls to mind before doing something. 48 i.e. Bodhicitta. 74 BUDDHISM, LAW & SOCIETY [Vol. 5 infliction of physical pain cannot be endured. And so, evil people [who do] great crimes, are [to be] immediately removed. But throwing them into an abyss or into the water, should in the future be stopped, since it is terrifying.49 By clearing away the debt (gtsang ba) of those evil bodies immediately (mod),50 there will be no need [for anyone] to ever again experience the suffering of becoming blind or cripple, and so on. Since, from among the ten non-virtues, killing—and in particular the desecration of a precious human life—is the worst, when the killing of a human being [occurs], all the household possessions of the perpetrator (lag dmar) should be thrown into the water along with the deceased body.51 The close reading of these two passages evoke a few questions and hypotheses: 1) While both texts are ascribed to the Fifth Dalai Lama—or at least his government—the two texts show some internal evidence that they were not authored by the same person: in the edict the death penalty is entertained as an option while in the pre-amble to The Pronouncements it is condemned outright.52 2) If this second legal text is indeed by the Fifth Dalai Lama and if this genre of texts should be indeed interpreted as constitutions,53 then it may well be that he was one of the first rulers to ever formally abandon the death penalty. 49 amending rngam zil to rngam brjid. Mod can also mean ‘profusely’. Another version reads mdo (sūtra) for mod. 51 Tā la’i bla ma sku phreng lnga pa’i dus gtan la phab pa’i khrims yig zhal lce bcu gsum, 22: sngon gyi khrims yig rnying pa rnams su byi byas pa’i yan lag (gi phran) bcad nas yul gzhan du spyugs pa’o zhes / mig sgyi yan lag dang / nying lag bcad nas rgya phud la gtong ba sogs yod ’dug na’ang / mchod yon ’di gsum gyi bka’ khrims kyi khyad par / theg pa chen po’i thugs bskyed mngon du mdzad nas / lus steng gi tshor ba’i sdug bsngal nyams su myong ba de / thugs kyis ma bzod par nag chen gyi lus ngan de rnams de ma thag gnas spar nas / g.yang dang chu la byugs te rngam zil (sngam gzil) gyis phyi lam (la ma) khegs shing / lus ngan de kha’i (ga’i) mod (mdo) la gtsang bas / slar long ba dang zha ba la sogs sdug bsngal myong mi dgos pa dang / mi dge bcu’i nang nas srog bcad pa dang / lhag par mi lus rin po che la ’bags pa ’di nag che ba’i dbang du mdzad nas / mi bsad kyi rigs la lag dmar gyi nang tshang rgyu nor thaMs cad ’das po’i ro dang mnyam du chu la bskyur dgos pa dang / For variant readings, see: Bod khrims yig gi skor, 51, 2; Zhal lce phyogs bsdud, 86, 7. 52 This does not necessarily need to be the case, since people do change their minds over the course of time. Still, this would constitute as a significant change of heart. 53 It would venture too far to entertain this question in this article, but it is an issue that I intend to address in forthcoming publications. 50 2019–20] Buddhists’ Positions on the Death Sentence 75 Of course, there are far too many “ifs” here for the above statement to be entirely acceptable. Significantly, while in the preamble the author strongly condemns putting criminals to death, or maiming them, the actual contents—i.e. enumeration of The Thirteen Pronouncements—condone, nay, support the death penalty: The fourth Pronouncement is the Pronouncement on great crimes [such as] drawing blood (nag chen khrag sbyor gyi zhal lce) …. In summary, when it is found that great misdeeds have been done, which harm the general image (i.e. which set a bad example), one needs to stop the evil [one] and prevent it further increasing by a system of physical punishments such as gouging out eyes, cutting off tendons, cutting out the tongue, cutting off the hand, throwing him into the abyss or in water, and slaughtering (dmar gsod) [the perpetrator], relative to what has been done.54 Clearly the statement given in the preamble that condemns putting criminals to death and this one that advocates the death penalty directly contradict each other. That this work contains an internal contradiction is a strong indication of the intertextual nature of this particular legal text. The author, at the behest of the Ganden Phodrang government, reworked existing legal works to make them their own—something a new ruler or new government tended to do to assert authority. Clearly, the actual contents were not reworked or edited extensively. The question remains, however, which assertion concerning the death penalty was actually held to be legally binding (if such a legal concept existed in the first place). Even though a later set of Pronouncements, written by Rdo ring tha’i ji (also known as Gung Paṇḍita or Rdo ring Paṇḍita, 1721–1792), does not mention the option of the death penalty, 55 there is evidence that the death penalty continued to be practiced. Unfortunately, while a fair number of documents that deal with civil law are currently accessible, 56 “detailed 54 Paraphrased. Khrims yig zhal lce bcu gsum 26: mdor na mig ltos la gnod pa’i khrims ’gal gyi bya ba byas par lus steng nas mig ’don / sgyid ’breg / lce gcod / lag ’breg / g.yang dang chur bskyur ba / dmar gsod sogs byed par dpags pa’i lus stengs nas bcad dras ’gel lugs phyis ’doms che ba ngan pa je ’phel du ma song ba dgos pa yin/ For variant readings, see: Bod khrims yig gi skor, 56, 7; Zhal lce phyogs bsdud, 92. See French, The Golden Yoke, for an alternative translation. 55 See Berthe Jansen, “The Origins of Tibetan Law: Some Notes on Intertextuality and the Reception History of Tibetan Legal Texts,” Revue d’Études Tibétaines 55 (2020): 221–44. A more elaborate investigation of this text is in preparation. 56 See for example Hanna Schneider, Tibetische Handschriften und Blockdrucke: Tibetischsprachige Urkunden aus Südwesttibet (sPo-rong, Ding-ri und Shel-Dkar), 76 BUDDHISM, LAW & SOCIETY [Vol. 5 written Tibetan sources or court records on crime and punishment as well as precisely fixed implementation rules for punishments are not at hand.”57 That the death sentence remained an option is something we know from later (traveler) accounts that mention people receiving the death sentence.58 THE DEATH PENALTY IN TIBET: A FAMOUS CASE Despite the fact that it has been written about elsewhere in some detail, a famous execution of this punishment deserves some mention here. It is safe to say that there was nothing exemplary about this particular case. The convicted man was an educated lama who had aided Sarat Chandra Das to travel in and out of Tibet at the bequest of the British government.59 Kawaguchi gives an elaborate description of the execution by drowning, the account of which he had heard from various persons—most significantly his Tibetan teacher in Darjeeling, who had been the disciple of the lama.60 Sengchen Lama (Seng chen skyabs dbyings ’Brong rtse ba blo bzang dpal ldan chos ’phel) was sentenced to death and executed in 1887 because he Staatsbibliothek zu Berlin—Preussischer Kulturbesitz. Band 1, Herrscherurkunden, Grundverordnungen und Generalerlasse, Konfirmationsurkunden, Rechtsentscheide, Handschreiben und schriftliche Anordnungen, Eingaben Bürgschaftserklärungen, Freistellungsbelege, Quittungen, Listen und Aufstellungen, Sonstige, vol. 16 (Stuttgart: F. Steiner, 2012); Hanna Schneider, Tibetische Handschriften und Blockdrucke: Tibetischsprachige Urkunden aus Südwesttibet (sPo-rong, Ding-ri und Shel-Dkar), Staatsbibliothek zu Berlin—Preussischer Kulturbesitz. Band 2, Verpflichtungserklärungen, Vergleichsurkunden, Schlichtungs- und Teilungsurkunden, vol. 17 (Stuttgart: F. Steiner, 2012). 57 Schwieger, “Criminal Law and Corporal Punishment,” 149. 58 A famous instance is the execution as part of the so-called “Demo affair” in which Demo Rinpoche was accused of trying to murder the 13th Dalai Lama through magical means. He appeared to have been killed at home, although the extent to which this was state sanctioned is unclear. See Goldstein, A History of Modern Tibet, 42–43. 59 It is somewhat ironic that Das later wrote a short article about punishments in Central Tibet (without mentioning what happened to his Tibetan mentor/collaborator): Sarat Chandra Das, “Tibetan Jails and Criminal Punishment,” Proceedings of the Asiatic Society of Bengal January to December 1894 (1895): 5–8. 60 Kawaguchi, Three Years in Tibet, 16–20. 2019–20] Buddhists’ Positions on the Death Sentence 77 had “given refuge to foreigners in his monastery and betrayed the secrets of lamaism to the envoys of a foreign power.”61 While monks and nuns tend to be judged and punished according to their own legal system, the main exception is when a member of the clergy has been found guilty of murder, forgery, or treason.62 Interestingly, Jagou has looked into contemporary Chinese sources as well as a few Tibetan works and has found no mention of this particular trial.63 Shakabpa remarks that Sengchen Lama, along with some others, was merely “severely punished” for his role (which eventually led to the government disallowing foreign pilgrims from traveling to Tibet).64 No mention of his execution is made. Another more recent Tibetan source, a history of Tibet in the 17th and 18th centuries, states that Sengchen Lama’s estates were seized, that he was banished to Rgya mda’ in Kong po (near the southern border) and that, eventually, he was killed there.65 No mention of a trial is made nor of a legally sanctioned death.66 As noted earlier, this case is exceptional in many ways: it concerned political intrigue on an international scale, a highly influential monk and incarnate lama, and a rather public execution—if Kawaguchi’s recounting of it is anything to go by. In his travel account he gives a more generalized description of how the death penalty is carried out. According to him, it is always death by drowning—either by dropping the convicted felon into a river after having put him in a bag or having tied his hands and legs to a heavy rock. They then cut his body up in many pieces, except for the head, and throw them in the water. The head is deposited in a head vase, either at once, or after it has been exposed in public for three or seven days, and the vase is carried to a building established for this sole purpose, which bears a horrible name signifying “Perpetual Damna61 Alex McKay, “The Drowning of Lama Sengchen Kyabying: A Preliminary Enquiry from British Sources,” The Tibet Journal 36, no. 2 (2011), 5. 62 Jansen, The Monastery Rules, 148–73. 63 McKay, “The Drowning of Lama Sengchen Kyabying,” 14, n. 2, based on McKay’s personal communication with Fabienne Jagou. 64 Shakabpa, One Hundred Thousand Moons, 631. 65 Phun tshogs Tshe ring, Bod kyi nye rabs lo rgyus tam+bu ra’i sgra dbyangs,19: [..] mkhar dbang gzhung bzhes dang grwa sa’i las gnas dbyung ste kong po rgya mda’ rdzong du rgyang ’bud btang/ mthar rgya mda’ rdzong du bkrongs/ 66 McKay further notes that it was decreed in Lhasa that Sengchen Lama’s incarnation would not be officially recognized. McKay, “The Drowning of Lama Sengchen Kyabying,” 269. 78 BUDDHISM, LAW & SOCIETY [Vol. 5 tion.” This practice comes from a superstition of the people that those whose heads are kept in that edifice will forever be precluded from being reborn in this world.67 It is not clear what he means by “perpetual damnation,” but he might refer to the crimes that cause one to get directly reborn into one of the hells (pañcānantarya, mtshams med lnga), sometimes translated as acts of immediate retributions, or “inexpiable acts.”68 The idea that even capital punishment is not enough to expiate a criminal’s sins appears to have violated Kawaguchi’s sense of justice: All these punishments struck me as entirely out of place for a country in which Buddhist doctrines are held in such high respect. Especially did I think the idea of eternal damnation irreconcilable with the principles of mercy and justice, for I should say that execution ought to absolve criminals of their offences.69 OTHERING THE DEATH PENALTY Tibetan punishments—including mutilations and the manner in which the death penalty was carried out—tended to be seen by outsiders as unusually cruel or unjust. It was not uncommon, however, for those who commented on Tibet’s legal system, to have a political motive for saying so—British and Chinese agents in particular. Das, the aforementioned British spy, notes a wide variety of cruel punishments.70 Furthermore, it was a common theme to discuss the cruelty of the Tibetans in Chinese language works from the Qing era. A mid-eighteenth-century commentary remarks that: “their laws are extremely cruel, and include such penalties as shooting a criminal full of arrows, putting him in a scorpions’ lair and letting the scorpions eat him alive, or gouging out eyes and cutting off hands.”71 In return, Tibetans were equally critical of Qing penal practices. In 1728, two ringleaders of a revolt against Qing rule were put to death by “a 67 Kawaguchi, Three Years in Tibet, 384. These involve, killing one’s father, one’s mother, killing an Arhat, causing a rift between the Sangha, and causing a buddha to bleed. See Jonathan Silk, “Good and Evil in Indian Buddhism: the Five Sins of Immediate Retribution,” Journal of Indian Philosophy 35, no. 3 (2007): 253–86. 69 Kawaguchi, Three Years in Tibet, 385. 70 Das, “Tibetan Jails.” 71 From Xining fuzhi (Gazetteer of Xining prefecture) 1762, as quoted in Timothy Brook, Jérôme Bourgon, and Gregory Blue, Death by a Thousand Cuts (Cambridge, MA: Harvard University Press, 2008), 36. 68 2019–20] Buddhists’ Positions on the Death Sentence 79 thousand cuts” (lingchi, 凌遲) in Lhasa, and Tibetan bystanders were dismayed by this most inhumane punishment.72 It is not uncommon either for later Tibetan authors to emphasize that certain harsh penalties were Chinese imports.73 Historically, Tibetan authors tended to be most critical of the so-called Hor laws (hor khrims), which usually are associated with the Yuan era, or more specifically the period of time the Mongols ruled over Tibet in the 13th century,74 but which may also more generally refer to the laws current among the Mongolian population. Specifically referring to the time right before Ta’i si tu Byang chub rgyal mtshan (1302–1364) is supposed to have revised the laws, the Fifth Dalai Lama, in his history of Tibet The Song of the Spring Queen (Deb ther dpyid kyi rgyal mo glu dbyangs), notes that when the (Sa skya) ministers (dpon chen) ruled, the law had come under the bad influence of the Hor. The laws had been sinful (sdig pa’i las), he writes, particularly that of “replacing life for life, in the case of murder.”75 The various versions of The Pronouncements refer to this “Hor” law of retaliation. The earliest version of these—while likely having been heavily edited in a later period—The Mirror of the Two Laws, gives advice on how to rule in the case of murder as follows: The first pronouncement is that of compensation [in the case of] murder. There are two systems, that of the Hor and that of Tibet. The Hor take blood revenge by replacing a life for a life. In Tibet the Dharma has spread and [we are] virtuous in Dharma, and therefore since replacing a life for a life would amount to double the roots of negativity, it is said that it is better to make [people] accept a compensation (stong ‘jal).76 72 Luciano Petech, China and Tibet in the Early XVIIIth Century: History of the Establishment of Chinese Protectorate in Tibet (Leiden: Brill, 1972), 149. 73 i.e. https://www.jamyangnorbu.com/blog/2009/05/17/from-darkness-to-dawn/ 74 For a recent overview of this period see Roberto Vitali, “Hor khrims and the Tibetans: A Recapitulation of its Enforcements in the Years 1240–1260,” Revue d’Études Tibétaines 51 (2019): 449–68. 75 Deb ther dpyid kyi rgyal mo glu dbyangs, 139: dpon chen rnams kyang tig mi chags par spo len mang ba gong ma’i khrims kyang hor gyi shan shor pa’i hang zom sogs la brten/ thang lhod dang mtho dma’ ci rigs pa dang/ khyad par hor khrims la mi bsad na srog tshab tu srog gtong bas mtshon pa’i khrims rnams sdig pa’i las shas che bar brten/ bod chos rgyal gong ma’i lugs srol bzang po dge ba bcus gzhi bzung ba ’di nyid/ ta’i si tus gtso bor mdzad par bzhed de/ 76 “Khrims gnyis lta ba’i me long.” In Bod khrims yig gi skor. 1985. Dharamsala: The Library of Tibetan Works and Archives: 19, 20: dang po bsad pa stong gi zhal che ni / hor lugs dang bod lugs gnyis las / hor srog tshab tu srog gtong bas mi sha len / bod chos dar zhing chos la dkar bas srog tshab tu srog btang na gnyis phung sdig pa’i rtsa 80 BUDDHISM, LAW & SOCIETY [Vol. 5 A very similar statement is made in The Twelve Pronouncements, which were composed during the lifetime of the Fifth Dalai Lama, where the pronouncement on murder is number 6.77 Most versions of The Pronouncements advocate to punish murder by ordering the perpetrator to compensate the victim’s family. The compensation is based on the social status of the victims, on which these legal works are elaborate.78 Interestingly, this system of compensating the murder victim’s families seems to have been in place during imperial times,79 which may be one of the reasons that the alternative punishment to murder—the death penalty—is viewed as a “foreign” import. CONCLUDING REMARKS In this article I have argued that—while primary sources are relatively scarce—from a historical perspective, Tibetan views on the death penalty are far from homogenous. Even though the 14th Dalai Lama is clearly against capital punishment, I suspect that contemporary Tibetans (most of whom will identify as Buddhists) are equally divided on the subject. While there is ample evidence that people, both the guilty and the innocent, have been put to death in Tibetan regions in the past, it appears that the practice remained rare. 80 Moreover, those who were convicted were regularly pardoned.81 All in all, pre-modern Buddhist texts written in Tibetan that bar ’gro bas / stong ’jal len byed pa legs zer nas/ Also see Fernanda Pirie, “Which ‘Two Laws’? The Concept of trimnyi (khrims gnyis) in Medieval Tibet,” Cahiers d’Extrême-Asie 26, no. 1 (2017), and Pirie, “The Making of Tibetan Law.” The translation is my own, but Pirie and Manson have translated this text, which can be found here: https://tibetanlaw.org/texts/mirror. 77 “Zhal lce bcu gnyis.” In Bod khrims yig gi skor. 1985. Dharamsala: The Library of Tibetan Works and Archives, 67. Interestingly, the later reworking of this (by a few years?), The Thirteen Pronouncements omits this passage. See Snga rabs bod kyi srid khrims gsal ba’i me long, Bsod nams Tshe ring, ed. (Beijing, Mi rigs dpe skrun khang, 2014), 317. 78 Rebecca Redwood French, “The Cosmology of Law in Buddhist Tibet,” Journal of the International Association of Buddhist Studies 16, no. 1 (1995), 110. 79 See for example, PT 1071. For a table that links the status of the victim to the extent of the compensation, see Dotson, “Administration and Law,” 225–26. 80 Schwieger, “Criminal Law and Corporal Punishment,” 147. 81 I am in the process of investigating the notion of amnesty and pardon as a (Tibetan) Buddhist practice from a historical perspective. 2019–20] Buddhists’ Positions on the Death Sentence 81 mention the death penalty, let alone argue in favor of it, are rare. A question that remains is whether the death penalty constitutes as violence. When imposing liberal Western notion of violence onto the Tibetan imaginaire, it can certainly be thought of as being a violent act. While this article has demonstrated that carrying out the death penalty was often thought of as “impure” or “defiling” in some way or another, when we look at emic notions of the death penalty—and harsh punishments more generally—it remains to be seen to what extent these are actually seen to constitute as violence, as conceived of by Buddhists of the past. This is one of the reasons why the article does not include a discussion of the issue of capital punishment through the lens of violence nor of the killings and executions by ritually invoking of protector deities and such-like, which are recorded practices in old Tibet. Sperling has convincingly argued that the Gandhian notion of non-violence (ahimsa) as a primary Tibetan Buddhist tenet is a relatively new phenomenon that came to the fore due to the efforts of the present Dalai Lama,82 which means that the historical idea of non-violence and its antonym are in need of careful treatment and further investigation. While I have not been able to locate pre-modern Tibetan tractates on how capital punishment is wrong and unbuddhist—probably because they do not exist—the sources I have presented here convey an ongoing ambiguity with regard to the practice. This is perfectly exemplified by the legal text that was written during the time of the Fifth Dalai Lama cited earlier: strong arguments against the practice are made in the preface while the “laws” in the main text maintain capital punishment as a possibility. Furthermore, while the 13th Dalai Lama has been regularly described as a someone who tried to reform and modernize Tibet83—occasionally drawing inspiration from Tibet’s neighbors—his early abolishment of the death penalty does not appear to have been a reaction to foreign influence or because he saw the political expediency of the ban on the death penalty. It is clear that there was historical precedent for his trying to strongly discourage, if not abolish, the death sentence—possibly even by his own 82 Sperling, “‘Orientalism’ and Aspects of Violence in the Tibetan Tradition,” 327. On these reforms see Goldstein, A History of Modern Tibet, 89–138. This work contains a letter (page 132) from the political officer in Sikkim to the Government of India, dated 27 August 1926, in which the 13th Dalai Lama, upon the suggestion that his political opponents be put to death, is quoted as saying that he would not “wish to be severe.” 83 82 BUDDHISM, LAW & SOCIETY [Vol. 5 previous incarnation, the Fifth Dalai Lama. While for now, the decree that announces this abolishment is not available (if it ever existed), it appears that 13th Dalai Lama’s abolishment of capital punishment intended to reform Tibet’s justice system along Buddhist lines. APPENDIX: A NOTE ON TERMINOLOGY The careful reader will have noted that there is no single term that is used in Tibetan language sources to denote the death penalty. In Bhutan, the term used is gzhung khrims, 84 a neologism which can be translated as “government law,” possibly indicating a reference to the fact that only the government can issue this punishment. The Tibetan term in use in modern works (i.e. post 1950s) is srog khrims,85 the literal translation of which is “life law.” An early use of this term is attested in a late military code (dmag khrims) written in 1958 promulgated by the Chu bzhi sgang drug, which contains the death penalty as a viable punishment (while the previous code, the Lcags stag dmag khrims, from 1950 did not include it). The text uses srog khrims (nyes chad) gtong, but also dmar gsod gtong, srog thog (nyes chad) gtong that all translate as “to give a death sentence.”86 Its synonym, srog nyes (possibly an abbreviation of srog thog nyes chad), translates as “life punishment.” 87 This neologism appears not to be a translation from, for example, Chinese, in which the contemporary term is sixing, 死刑, literally “death penalty.” Rather, the older Tibetan sources show the prevalence of the word srog (life) in this context. In the works cited in the main body of this article we see, for example, the phrase srog tshab tu srog gtong: to replace a life for a life, referring to the system of retribution of the Mongols.88 Another common term, which does not seem to appear in pre-modern sources is srog chad gcod pa—to mete out the death penalty (literally, to decide on the penalty of life).89 A nominalized 84 Whitecross, “Transgressing the Law,” 45. Bod rgya tshig mdzod chen mo, 2988. 86 Alice Travers, “The lCags stag dmag khrims (1950): A New Development in Tibetan Legal and Military History?” in Social Regulation: Case Studies from Tibetan History, ed. Jeannine Bischoff and Saul Mullard (Leiden: Brill, 2017), 116, n. 35. 87 Bod rgya tshig mdzod chen mo, 2989: srog thog gi nyes chad gtong ba’i khrims. 88 e.g, Khrims gnyis lta ba’i me long, 19. 89 This appears, among others, in Dung dkar rin po che’s commentary to the Deb ther dmar po, 288. 85 2019–20] Buddhists’ Positions on the Death Sentence 83 variant to the above is the post-1950s phrase srog thog khrims gcod: “the legal decision regarding life.”90 Just as the etymology of the English term “capital punishment” refers to the manner in which the death penalty most commonly was carried out (i.e. beheading), the term found in one of the earlier Tibetan-English dictionaries is chu skyur, g.yang skyur, glossed by Jäschke as “capital punishment in Central Tibet, when the delinquent, with a weight fastened to his neck, is thrown from a rock into a river.”91 As has been shown in this article, the two parts, the method of "throwing into the water" (chu(r) skyur ba) and “throwing into the abyss” (g.yang (la) skyur ba) appear separately and together—the latter then appears to be more of a blanket term for executing the death sentence. 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