Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia

Hugo Grotius

(1583-1645),

Dutchjurist

and

author

ofDe

Jure Belli

ac

Pacis

(The

Law of War and

Peace)

INTERNATIONAL

LAW

One of the

most important parts

of

inter-

national

law

concerns extradition. Because

na-

tions wish

that

those

who

break their

own

laws

be

held accountable

to

their courts, they agree

with other nations

to

surrender

an

alleged crimi-

nal

to the

jurisdiction where

the

crime took place.

The

basis

for

extradition

is

treaty, usually

a bi-

lateral agreement between

two

nations

for one

to

extradite

to the

other wanted alleged crimi-

nals.

Originally,

the

treaties

specified

the

crimes

for

which

one

could

be

extradited,

but

this

method

did not

work very well since some

im-

portant crimes were

often

accidentally

omitted;

therefore,

the

usual

way is to

specify

extradition

for

crimes that carry possible sentences

of, for

example,

two

years

or

more.

In

modern times,

nations

will extradite alleged criminals only

if

they

are to be

tried

on the

charges

for

which

they

are

extradited (and

not

some other

new

charges),

only

if the

alleged

offense

is a

crime

in

both nations,

and

only

if

sanctions

are

relatively

congruent.

This

allows

the

extraditing nation

to

make

sure that

the

individual extradited

is

tried

more

or

less

in

concert with

its own

laws

and

morals.

For

example, Canada, which

has no

death

penalty,

will

not

extradite U.S. citizens

to the

United States

if

they

are to

face

the

possibility

of

the

death penalty once

in a

U.S. court.

Na-

tions also sometimes give preference

to

their

own

citizens; Germany, Italy,

and

France,

for

example,

will

not

extradite their

own

citizens

to a

foreign

country.

As a

further

protection

for the

rights

of

the

accused, modern nations will

not

extradite

an

individual

if

they determine that there

is in-

sufficient

evidence

to

take

the

case

to

trial.

Following

is an

actual treaty

of

extradition

between

the

United States

and

Norway

(Trea-

ties

and

Other

International

Agreements

of

the

United

States

of

America,

(n.d.) Vol.

10,445-449).

NORWAY

EXTRADITION

Treaty signed

at

Washington June

7,1893

Ratified

by

Norway July

10,1893

Senate advice

and

consent

to

ratification

No-

vember

1,1893

Ratified

by the

President

of the

United States

November

3,1893

Ratifications

exchanged

at

Washington

No-

vember

8,1893

Proclaimed

by the

President

of the

United

States November

9,1893

Entered into

force

December

8,1893

Amended

by

treaty

of

December

10,1904

Supplemented

by

treaty

of

February

l

y

1938.

28

Stat. 1187; Treaty Series

262

The

United States

of

America

and His

Majesty

the

King

of

Sweden

and

Norway,

be-

ing

desirous

to

confirm their

friendly

relations

and

to

promote

the

cause

of

justice, have

re-

solved

to

conclude

a new

treaty

for the

extra-

dition

of

fugitives

from

justice between

the

United States

of

America

and the

Kingdom

of

Norway,

and

have appointed

for

that

pur-

pose

the

following Plenipotentiaries:

The

President

of the

United States

of

America,

W.

Q^

Gersham,

Secretary

of

State

of

the

United States,

and

His

Majesty

the

King

of

Sweden

and

Norway,

J. A. W.

Grip,

His

Majesty's

Envoy

Extraordinary

and

Minister Plenipotentiary

to

the

United States,

who,

after

having communicated

to

each other

their respective

full

powers,

found

in

good

and

due

form,

have agreed upon

and

concluded

the

following articles:

Article

I

The

Government

of the

United States

and the

Government

of

Norway mutually agree

to de-

liver

up

persons who, having been charged with

or

convicted

of any of the

crimes

and

offenses

specified

in the

following article, committed

within

the

jurisdiction

of one of the

contract-

ing

parties, shall seek

an

asylum

or be

found

within

the

territories

of the

other: Provided,

in

INTERNATIONAL

LAW

that this shall only

be

done upon such evi-

dence

of

criminality

as,

according

to the

laws

of

the

place where

the

fugitive

or

person

so

charged

shall

be

found, would

justify

his or her

appre-

hension

and

commitment

for

trial

if the

crime

or

offense

had

been there committed.

Article

II

Extradition shall

be

granted

for the

following

crimes

and

offenses:

1.

Murder, comprehending assassina-

tion, parricide, infanticide,

and

poisoning;

attempt

to

commit murder; manslaughter,

when voluntary.

2.

Arson.

3.

Robbery,

defined

to be the act of

felo-

niously

and

forcibly taking

from

the

person

of

another money

or

goods,

by

violence

or

put-

ting

him in

fear;

burglary.

4.

Forgery,

or the

utterance

of

forged

pa-

pers;

the

forgery

or

falsification

of

official

acts

of

government,

of

public authorities,

or of

courts

of

justice,

or the

utterance

of the

thing

forged

or

falsified.

5. The

counterfeiting,

falsifying

or

alter-

ing of

money, whether coin

or

paper,

or of in-

struments

of

debt created

by

national, state,

provincial,

or

municipal governments,

or of

coupons

thereof,

or of

bank notes,

or the ut-

terance

or

circulation

of the

same;

or the

coun-

terfeiting,

falsifying

or

altering

of

seals

of

state.

6.

Embezzlement

by

public

officers;

em-

bezzlement

by

persons hired

or

salaried,

to the

detriment

of

their employers; larceny.

7.

Fraud

or

breach

of

trust

by a

bailee,

banker,

agent,

factor,

trustee,

or

other person

acting

in a fiduciary

capacity,

or

director

or

member

or

officer

of any

company, when such

act

is

made criminal

by the

laws

of

both coun-

tries

and the

amount

of

money

or the

value

of

the

property misappropriated

is not

less

than

$200

or

Kroner 740.

8.

Perjury,

subornation

of

perjury.

9.

Rape; abduction; kidnapping.

10.

Willful

and

unlawful

destruction

or

obstruction

of

railroads which endangers

hu-

man

life.

11.

Crimes committed

at

sea:

(a)

Piracy,

by

statute

or by the law of na-

tions.

(b)

Revolt,

or

conspiracy

to

revolt,

by two

and

more persons

on

board

a

ship

on

the

high

seas

against

the

authority

of

the

master.

(c)

Wrongful sinking

or

destroying

a

ves-

sel

at

sea,

or

attempting

to do so.

(d)

Assaults

on

board

a

ship

on the

high

seas

with intent

to do

grievous bodily

harm.

12.

Crimes

and

offenses

against

the

laws

of

both countries

for the

suppression

of

sla-

very

and

slave-trading.

Extradition

is

also

to

take place

for

participa-

tion

in any of the

crimes

and

offenses

men-

tioned

in

this

Treaty,

provided such

participation

may be

punished,

in the

United

States

as a

felony,

and in

Norway

by

impris-

onment

at

hard labor.

Article

III

Requisitions

for the

surrender

of

fugitives

from

justice shall

be

made

by the

diplomatic agents

of the

contracting parties,

or in the

absence

of

these

from

the

country

or its

seat

of

govern-

ment,

may be

made

by the

superior consular

officers.

If the

person whose extradition

is re-

quested shall have been convicted

of a

crime

or

offense,

a

duly authenticated copy

of the

sentence

of the

court

in

which

he was

con-

victed,

or if the

fugitive

is

merely charged with

a

crime,

a

duly authenticated copy

of the

war-

rant

of

arrest

in the

country where

the

crime

has

been committed,

and of the

deposition

or

other evidence upon which such warrant

was

issued, shall

be

produced.

The

extradition

of

fugitives

under

the

pro-

visions

of

this

treaty shall

be

carried

out in the

United

States

and in

Norway, respectively,

in

conformity

with

the

laws regulating extradi-

tion

for the

time being

in

force

in the

state

on

which

the

demand

for

surrender

is

made.

112

INTERNATIONAL

LAW

Article

IV

Where

the

arrest

and

detention

of a

fugi-

tive

are

desired

on

telegraphic

or

other infor-

mation

in

advance

of the

presentation

of

formal

proofs,

the

proper course

in the

United

States shall

be to

apply

to a

judge

or

other

magistrate authorized

to

issue warrants

of ar-

rest

in

extradition cases

and

present

a

com-

plaint

on

oath,

as

provided

by the

statutes

of

the

United States.

When,

under

the

provision

of

this

article,

the

arrest

and

detention

of a

fugitive

are de-

sired

in the

Kingdom

of

Norway,

the

proper

course

shall

be to

apply

to the

Foreign

Office,

which

will

immediately cause

the

necessary

steps

to be

taken

in

order

to

secure

the

provi-

sional

arrest

or

detention

of the

fugitive.

The

provisional detention

of a

fugitive

shall cease

and the

prisoner

be

released

if a

formal

requisition

for his

surrender,

accom-

panied

by the

necessary evidence

of his

criminality,

has not

been produced under

the

stipulations

of

this

Treaty,

within

two

months

from

the

date

of his

provisional arrest

or

detention.

Article

V

Neither

of the

contracting parties shall

be

bound

to

deliver

up its own

citizens

or

sub-

jects

under

the

stipulations

of

this Treaty.

Article

VI

A

fugitive

criminal shall

not be

surren-

dered

if the

offense

in

respect

of

which

his

surrender

is

demanded

be of a

political char-

acter,

or if he

proves

that

the

requisition

for

his

surrender has,

in

fact,

been made with

a

view

to try to

punish

him for an

offense

of a

political character.

No

person surrendered

by

either

of the

high contracting parties

to the

other shall

be

triable

or

tried,

or be

punished,

for any po-

litical crime

or

offense,

or for any act

con-

nected therewith, committed previously

to his

extradition.

If any

question shall arise

as to

whether

a

case

comes within

the

provisions

of

this

ar-

ticle,

the

decision

of the

authorities

of the

gov-

ernment

on

which

the

demand

for

surrender

is

made,

or

which

may

have granted

the ex-

tradition, shall

be

final.

Article

VII

Extradition

shall

not be

granted,

in

pursuance

of the

provisions

of

this Treaty,

if

legal proceedings

or the

enforcement

of the

penalty

for the act

committed

by the

person

claimed

has

become barred

by

limitation,

ac-

cording

to the

laws

of the

country

to

which

the

requisition

is

addressed.

Article

VIII

No

person surrendered

by

either

of the

high contracting parties

to the

other shall,

without

his

consent,

freely

granted

and

pub-

licly declared

by

him,

be

triable

or

tried

or be

punished

for any

crime

or

offense

committed

prior

to his

extradition, other than that

for

which

he was

delivered

up,

until

he

shall have

had

an

opportunity

of

returning

to the

coun-

try

from

which

he was

surrendered.

Article

IX

All

articles seized which

are in the

pos-

session

of the

person

to be

surrendered

at the

time

of his

apprehension, whether being

the

proceeds

of the

crime

or

offense

charged,

or

being materially

as

evidence

in

making proof

of the

crime

or

offense,

shall,

so far as

practi-

cable

and in

conformity with

the

laws

of the

respective

countries,

be

given

up

when

the

extradition takes place. Nevertheless,

the

rights

of

third parties with regard

to

such articles shall

be

duly respected.

Article

X

If the

individual claimed

by one of the

high contracting parties,

in

pursuance

of the

present Treaty, shall also

be

claimed

by one or

several

other powers

on

account

of

crimes

or

offenses

committed

within

their

respective

jurisdictions,

his

extradition shall

be

granted

to the

state whose demand

is first

received:

Provided, that

the

government

from

which

113

INTERNATIONAL

LAW

extradition

is

sought

is not

bound

by

treaty

to

give preference otherwise.

Article

XI

The

expenses incurred

in the

arrest,

de-

tention, examination,

and

delivery

of

fugitives

under this Treaty shall

be

borne

by the

state

in

whose name

the

extradition

is

sought: Pro-

vided,

that

the

demanding government shall

not be

compelled

to

bear

any

expense

for the

services

of

such public

officers

of the

govern-

ment

from

which extradition

is

sought

as re-

ceive

a

fixed

salary: And, provided, that

the

charge

for the

services

of

such public

officers

as

receive only

fees

or

perquisites shall

not ex-

ceed

their customary

fees

for the

acts

or

ser-

vices

performed

by

them

had

such acts

or

services been performed

in

ordinary criminal

proceedings under

the

laws

of the

country

of

which they

are

officers.

Article

XII

The

present Treaty shall take

effect

on the

thirtieth

day

after

the

date

of the

exchange

of

ratifications,

and

shall

not

operate retroactively.

On the day on

which

it

takes

effect

the

Con-

vention

of

March

21,1860,

shall,

as

between

the

governments

of the

United States

and of

Norway,

cease

to be in

force

except

as to

crimes

therein enumerated

and

committed prior

to

that date.

The

ratifications

of the

present Treaty

shall

be

exchanged

at

Washington

as

soon

as

possible,

and it

shall remain

in

force

for a pe-

riod

of six

months

after

either

of the

contract-

ing

governments shall have given notice

of a

purpose

to

terminate

it.

In

witness whereof,

the

respective

Pleni-

potentiaries have signed

the

above articles,

both

in the

English

and the

Norwegian lan-

guages,

and

have hereunto

affixed

their seals.

Done

in

duplicate,

at the

city

of

Wash-

ington this seventh

day

of

June,

one

thousand

eight hundred

and

ninety-three.

Walter

Q^

Gersham [Seal]

J. A. W.

Grip

[Seal]

Another

field of

international

law

deals with

domestic courts

that

are

called upon

to

make

decisions concerning companies

that

do

busi-

ness

in

more than

one

nation.

The

laws

regulat-

ing

business activities

differ

from

nation

to

nation,

and one

branch

of a

business

in one na-

tion

may be

forced

by law to do

things

that

are

forbidden

by law in

another nation.

For

example,

German bank secrecy laws prohibit

the

disclo-

sure

of

some types

of

bank documents.

But in

the

case

of

U.S.

v.

First National

City

Bank

(U.S.

Second Circuit Court

of

Appeals,

1968),

the

court subpoenaed documents

in the

possession

of

the

German branch

of the

First

National

City

Bank.

The

bank protested

that

it

could

not re-

lease

the

documents, because

to do so

would

re-

sult

in

their prosecution

by

German authorities.

The

U.S.

court said that

the

bank must comply,

because

whatever liabilities

the

bank

suffered

were

insufficient

to

excuse

its not

releasing

the

document.

The

courts have generally said

that,

in

this

and

similar cases, local

law

always pre-

cedes

the law of

other

nations.

In

reading studies

of

international law,

one

will almost always

see

authors referring

to the

tradition

of

Western

law as the

only source

of

international law. Many

will

claim

that

interna-

tional

law did not

exist

before

a

point

in

time

shortly

after

the

turn

of the

twentieth century,

when Western philosophical

and

social move-

ments came together, prompted

by the

carnage

of

World

War I, to

begin

to

build institutions

to

dispense

international law. Others have said that

international

law

only came about

after

the de-

velopment

of

modern nation-states,

and

could

not

have preceded them.

This

is not

true.

Inter-

national

law has

been observed

in

several tribal

and

band societies, though there probably have

been

more societies

in

which international

law

existed

but for

which

we

have

no

evidence.

We

find

international

law in

band

and

tribal societ-

ies

where

we find

efforts

to

improve relations

between

adjoining societies.

114

INTERNATIONAL

LAW

The

Choctaw

Indians

of

what

is now the

Mississippi

region,

for

example, concluded

a

treaty

with

a

group

of

Cherokee

Indians

to the

effect

that

if a

Choctaw

murdered

a

Cherokee,

or

vice versa, only

the

offender

could

be

killed

in

revenge,

and

that

any

other

person, even

a

member

of the

family

of the

killer, could

not be

harmed

in

revenge.

The

Choctaw also made

a

similar

treaty with

the

nearby Chickasaw

Indi-

ans. After much

of the

population

of the

Choctaws

and of

other Indian peoples

of the

Southeast were

forced

to

move

to

Oklahoma,

the

Choctaws,

along

with

other relocated

peoples,

the

Cherokees, Chickasaws, Creeks,

and

Seminoles, made

a

code

of

international

law

in

1859

to

govern their relations.

This

code pro-

vided

for

extradition

of

accused criminals,

for

the

trying

of

criminal acts (including

the

har-

boring

of

escaped slaves) according

to the

prin-

ciple

of

territoriality,

for the

changing

of

tribal

citizenship,

and for

intertribal cooperation

in

reducing

the

sale

of

alcoholic beverages.

Other

societies also came together

to

regu-

late their intergroup relations through

the use

of

international law.

The five

Iroquois tribes

of

what

is

now

New

York State (the Mohawk, Sen-

eca,

Cayuga,

Oneida,

and

Onondaga) united

in

the

Iroquois Confederacy, well

before

European

contact,

in an

effort

to end

their hostilities

with

each

other.

This

confederacy

was

similar

in

struc-

ture, function,

and

purpose

to the

much-later

League

of

Nations

and

United Nations.

This

confederacy

also served

to

coordinate interna-

tional military activities, just

as the

present-day

United

Nations does

in

fighting

its

common

enemies.

In

fact,

a

group

of

Indians

further

to the

northeast,

the

Penobscot,

the

Passamaquoddy,

the

Maliseet,

and the

Micmac,

who

were

long-

time enemies

of the

Iroquois, also came together

among themselves

in the

Wabanaki

Confederacy

in

order

to

coordinate their military resistance

to the

Iroquois

and to the

English;

in the

process, they

de-

veloped international

law

amongst themselves.

Perhaps

the

best described case

of

interna-

tional

law in a

tribal

society

is

that

of the

Kapauku

Papuans

of

New

Guinea.

The

Kapauku

live

in

villages

that

are

frequently united under

a

powerful

big man

into

confederacies.

In the

1950s,

when

their

society

and

legal system were

studied,

it was the

case that when members

of

the

same Kapauku confederacy

had

disputes,

most were handled legally

or in

accordance with

established legal principles. However, when dis-

putes involved

two

people

of

different

confed-

eracies,

the law

came into play

in

only

a

minority

of

disputes.

In

fact,

disputes between members

of

different

confederacies

sometimes became

the

basis

for war

between

the

confederacies.

Other

disputes were settled

peacefully

without

the in-

volvement

of

authorities.

In

cases involving

le-

gal

decisions

in

disputes between private parties

of

different

confederacies,

the

cases

were usu-

ally

decided

by an

authority

who was a

member

of

the

confederacy

to

whom

the

offender

be-

longs.

It was up to the

authorities

of the

same

confederacy

to

which

the

offender

belonged

to

punish

the

offender,

or to

require

him to pay

compensation,

in

order

to

maintain good

or

peaceful

relations with

the

confederacy

to

which

the

victims belonged.

The

authority

did so to

avoid

warfare

against

the

entire membership

of

the

village

or

even confederacy.

The

entire vil-

lage

was

considered

by the

victim

of an

offense

liable

for the

damages

or

thefts caused

by any

member

of the

village.

Thus,

a

group, usually

including

the

victim, would come

to the

village

of

the

offender

to

press

the

case

of the

victim,

or

to

take revenge

or

whatever compensation they

felt

was

just

from

anyone

in the

village,

and by

force

if

opposed.

This

is

seen

in the

following

case,

which occurred

in

1955

in the

village

of

Botu (and which

is

taken

from

Pospisil, 1958:

223-224).

A man of the

village,

named

Ij

Bun,

made

his

living

primarily

by

theft

and

fraudulent

115

INTERNATIONAL

LAW

transactions involving

the

buying

and

selling

of

swine, rather than

by

horticulture, which

was

the

normal

way of

making

an

honorable

living.

One

time,

Ij

Bun,

who

belonged

to the

Ijaaj-Pigome

Confederacy,

was

travelling

in

the

Tigi

region, where there

was

another

con-

federacy.

There,

he met

Ba

Amo,

who,

on Ij

Buns

promise

of

three large pigs, loaned

Ij Bun

a

considerable

sum of

money (pigs, being

the

major

source

of

wealth

in the

Kapauku world,

were

worth

a

good deal

of

money). Some

months

later, people

from

the

Tigi

region came

to

collect

the

pigs,

and

found

out

that

not

only

did Ij Bun

have

no

pigs,

but had

also spent

the

money

he had

received

from

Ba

Amo,

and

thus

could

not

return

it. The

people

from

Tigi

threatened

to

forcibly

take what

was

justly

due

them

from

the

other members

of the

village.

The

people

of

Botu

pleaded with them

not to

do

that,

but to

take

their

revenge upon

Ij

Bun,

who was

away

and

who,

when summoned,

refused

to

return. Some

men of the

Ijaaj-

Pigome

Confederacy

called

for Ij

Bun's death.

Then

a

large party

of

armed

men

from

the

Tigi

region returned

two

weeks later,

and

con-

fronted

Ij

Bun,

who had

returned

to

Botu.

After

his

promise

to pay his

creditor,

as

guar-

anteed

by the

village headman

and Ij

Buns

relatives,

the

armed

men

left.

Then

Ij

Buns trial began.

The

authori-

ties

included three village headmen,

a

lineage

headman,

and the

headman

of the

entire

Ijaaj-

Pigome

Confederacy.

At the

trial, which took

several

days

to

complete

and

which involved

much

public denunciation

of Ij Bun and

pub-

lic

speeches

by

members

of the

village,

the

authorities finally decided

on

leniency with

respect

to Ij

Bun.

He was not

killed,

but

merely

reprimanded.

In

addition,

the

authorities

col-

lected

from

Ij

Bun

s

kin the

amount

of the

debt

so

as to pay

off

his

creditor.

They

reprimanded

him by

warning

him

that

he

would come

to a

bad

end if he did not

change

his

ways,

and

that

he had

narrowly escaped such

a

fate

this

time.

See

also

CONSTITUTION.

Bishop,

William

W., Jr.

(1971)

International

Law:

Cases

and

Materials.

Debo, Angie. (1961

[1934])

The

Rise

and

Fall

of

the

Choctaw Republic.

Kratochwil,

Friedrich.

(1985)

"The Role

of

Domestic

Courts

as

Agencies

of the

Inter-

national

Legal Order."

In

International

Law:

A

Contemporary

Perspective^

edited

by

Rich-

ard

Falk,

Friedrich Kratochwil,

and

Saul

Mendlovitz,

236-263.

Maine, Henry Sumner. (1978

[1888])

Interna-

tional

Law:

A

Series

of

Lectures

Delivered

be-

fore

the

University

of

Cambridge

1887.

Pospisil, Leopold. (1958)

Kapauku Papuans

and

Their

Law.

Swift,

Richard. (1969)

International

Law: Cur-

rent

and

Classic.

Treaties

and

Other International Agreements

of

the

United

States

of

America,

1776-1949. (n.d.)

Vol.

10,

Nepal-Peru. Compiled under

the di-

rection

of

Charles

I.

Bevans, LL.B.

116

The

\exw\jurisdutwn

re-

fers

to the

authority

to

decide

a

legal case.

It is

derived

from

the

Latin

juris

dictio

(the

judge's

speaking).

Jurisdictional

issues

are

questions

as

to

which legal authority

is to

decide

any

par-

ticular case.

This

issue

is of

central importance

in

discussions

of the

subjects

of the

territorial

principle

of

law,

the

personality principle

of

law,

and

international law. Jurisdictional issues come

up

in

U.S.

courts

and in the

very similar Cana-

dian

courts more

frequently

than

one

might sus-

pect.

In

Canada,

the

wills

of

Canadian Indians

have

been probated

by

provincial courts, even

though

the

federal Indian

Act

gives jurisdiction

over

the

probate

of

Indian wills

to the

federal

Department

of

Indian

Affairs

and

Northern

De-

velopment.

We

might also take

as a

hypotheti-

cal

case

one in

which

a

Native American

who is

a

corporal

in the

army murders another Native

American

who is a

captain

in the

army while

both

are on the

Navajo

reservation

in

Arizona.

Because

they were

in

Arizona,

an

argument

could

be

made

for the

trial

to be

held

in an

Ari-

zona

state court. Because they were Indians

on

a

reservation,

an

argument could

be

made

that

the

trial should

be

held

in a

federal

court

be-

cause

the

reserve

is

federal

land

and

Indians

are

administered

by the

federal

government

and not

by

the

states. Because they were both active mili-

tary personnel

at the

time

of the

murder,

an ar-

gument could also

be

made

that

a

military court

should hear

and

decide

the

case.

Jurisdictional issues

in the

Tibetan

legal

system

were equally complex.

There

were nine

factors

that could influence

the

selection

of ju-

risdiction

in a

particular case.

The first of

these factors

was the

territorial-

ity

principle. Normally,

a

case

was

handled

within

the

territorial unit

in

which

the

offense

occurred. However,

if the

parties

to the

case

wanted their legal hearing

to be

conducted

in

another court,

the

local courts

of the

territory

could

not

prevent them

from

doing

so.

Further,

if

the

local courts wished, they could

refuse

to

hear

and

decide

a

case

that

occurred within

the

territory they represented.

The

type

of

offense

committed

was

also

a

factor

in

Tibetan

Jurisdictional issues.

The

ter-

ritorial principle,

as

noted above, could

be ne-

glected

if the

parties

to the

dispute

so

chose.

However,

this

option

did not

exist

for

cases

in-

volving serious crimes such

as

murder, rioting,

or

large-scale robbery;

it was

compulsary

for lo-

cal

courts

to

hear

and

decide such cases.

Consent

was a

third

factor

in

deciding

ju-

risdiction.

It was

required

in all but a few

types

of

cases

that

both

parties involved

in the

dispute

and

the

court itself agree

that

the

case

be

handled

by

the

chosen court.

If any of the

three (either

party

or the

court)

did not

agree

to the

choice

of

court,

the

legal hearing would

be

held elsewhere.

This

factor

was

operative unless

the

case

con-

cerned

the

serious crimes noted above

or a

gov-

ernment

official

commanded

that

he

himself

would decide

the

case

in his

court.

A

fourth

factor

was the

power

of the

gov-

ernment

to

refer

some

cases

to

particular courts.

It was the

Cabinet

and the

Highest Ecclesiastical

117

JURISDICTION

j

JURISPRUDENCE

Office

that

referred most

of

these cases,

and it

was

these governmental bodies that decided

the

appropriate court

for any

particular case.

For

example,

the

Cabinet

was

known sometimes

to

refer

relatively small property

cases

or

civil suits

to

the

High

Court

of

Tibet.

It was

also possible

for

those

who had

worked

for a

particular court,

or who had

rela-

tives

who

worked

for a

particular court,

to

have

their

legal hearings

at

these courts.

Of

course,

the

likelihood that

the

court would decide

in

favor

of

someone related

to or on

friendly

grounds with

the

legal authorities

was

consid-

ered,

and the

opponent

in the

case

always

had

the

right

to

refuse

his or her

consent

to the use

of

that

court. However,

the

opponent

might

al-

low the

court

to be

used, especially

if he or she

had a

strong

case,

because

the

party with rela-

tives

or

friends

in the

court would

be

more likely

to

accept

that

court

s

verdict.

Jurisdiction also depended

on the

factor

of

the

social rank

of the

individuals involved.

Those

of

very

high

rank were

not

brought

before

ordi-

nary

courts.

The

father

of the

Thirteenth

Dalai

Lama once beat

a man in the

city

of

Lhasa,

and

he

could

not

even

be

arrested

by

ordinary

po-

lice;

his

case

was

dealt with

by a

specially

as-

sembled

group

of

governmental

officials.

The

Dalai

Lama himself

was a

legal authority

for at

least some disputes among royalty. Some

of the

disputes

involving

the

highly ranked were treated

in

political rather than legal

forums,

including

the

National Assembly

and the

Cabinet.

On the

other hand, disputes among

the

lowest social

ranks, including blacksmiths, beggars, butchers,

and

executioners, were almost never tried

in the

courts.

Such people

often

settled their disputes

by

means

of

self-redress.

They

were

further

un-

likely

to be

taken

to

court

by a

plaintiff,

since

they rarely

had any

money that could

be

taken

from

them

in a

legal settlement.

Foreigners frequently

had

court systems

of

their

own in

Tibet.

Cases involving Nepalese

in

Lhasa were handled

by the the

Office

for

Nepalese, while those

in the

rural hinterlands

were

handled

by the

local district courts. Legal

disputes involving

all

other foreigners were

de-

cided

by the

Office

for

Foreigners, located

in

Lhasa.

Tibetan

monks also

had

their

own

courts,

which dealt

with

cases involving disputes

be-

tween

monks that occurred within

the

monas-

tery. Disputes

that

occurred outside

the

monastery,

involving either

two

monks

or a

monk

and

someone

who was not a

monk, were

usually

resolved

by

secular courts.

Finally, military

men

also

had

their

own

courts

that

decided disputes between military

personnel.

If a

member

of the

military

was a

defendant

in a

case involving someone

who was

not in the

military,

the

case

was

also decided

by

the

military court system.

On the

other hand,

if

the

military

man was the

plaintiff

or

victim

of a

crime,

the

case

was

decided

by the

ordinary

Ti-

betan courts.

See

also

INTERNATIONAL

LAW;

PERSONALITY

PRINCIPLE

OF

LAW;

SELF-REDRESS;

TERRITORIAL

PRINCIPLE

OF

LAW.

Barton,

Roy F.

(1973

[1949])

The

Kalingas:

Their

Institutions

and

Custom

Law.

French, Rebecca.

(1990)

The

Golden

Yoke:

A Le-

gal

Ethnography

of

Tibet

Pre-19

59.

Jurisprudence

may be

defined

in two

ways.

One

commonly used

meaning

for the

term

is as a

synonym

for

law.

Legal scholars,

on the

other hand,

use the

term

to

refer

to the

science

of

law.

As a

science,y&ra-

prudence

refers

specifically

to the

lawyer

s

study

of

legal precepts

and

technique

in

light

of

infor-

118

JURISPRUDl-XCK

JURISPRUDENCE

mation

supplied

by

disciplines other than law.

Much

of

what

is

called jurisprudence

in

mod-

ern

U.S.

legal

journals

is not

this,

but

rather

simple

discussions

of

recent trends

in

legal

decision

making.

The

noted legal scholar Roscoe Pound

proposed

four

Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia

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