If natural law is seen essentially as “a way of thinking about law that is not just rule-focused and does not ignore morality” (Friedmann 1947: 61, in Menski 2000: 98), legal positivism can roughly be defined as the diametrically opposite in that it insists on an analytical separation of law from morality (Menski 2000:101-102). Jeremy Bentham (1748-1832) and his pupil John Austin (1790-1859) founded legal positivism (or the ‘analytical school’) in England and viewed law as the command of the sovereign (Menski 2000: 102). There are numerous positivist legal theories, many of which have distanced themselves substantially from the command approach, but overall, legal positivism attempts to analyse law outside of its social contexts and settings (Harris 1988: 4, in Menski 2000: 103) and sees law as limited to a tool for social engineering. It is thus in opposition to the historical school.
The historical school, emerging side by side with legal positivism in the 19th century, concentrates on the analysis of law as a social phenomenon and is in essence “a method of studying law in its specific socio-cultural, political and economic context” (Menski 2000: 105-106). This school emphasises the importance of interdisciplinarity in the study of law and focuses on the people and social groups as law making entities rather than just the state.
As I have already indicated, neither of the theories exists in total isolation, but rather the theories coexist in symbiotic awareness, each being defined partly by distinguishing themselves from the others. They all seem insufficient as independent approaches to comparative legal analysis. Relying solely on natural law will lead to difficulties in analysing the practical aspects of a legal system, while a purely analytic positivist analysis of law provides a scope more or less limited to the instrumental nature of law. Moreover, relying on a narrow positivist approach one would come to the conclusion that law is not a global phenomenon, as not all human societies have highly formalised laws that are laid down for them by a state (Menski 2000: 53). Although an ‘extreme’ historical approach might “fragment law-making processes by insisting on the superiority of small-scale entities” (Menski 2000: 107), and as a consequence lead to questions about the viability of national and global law (id.), the historical school is seemingly the most nuanced and useful approach for studying indigenous legal systems of Asia and Africa, where the state is often not the sole lawmaking force.
Amongst contemporaries who adhere to the historical school is Chiba (1986), who in the course of studying Asian indigenous law disqualified legal positivism (or ‘model jurisprudence’) as an approach and embarked upon developing a working hypothesis complex enough to be applicable to other legal systems than those of the West. Chiba was in particular interested in the interaction between Asian indigenous laws and received Western laws, and his theory has proved useful for analysing pluralistic legal scenarios (Menski 2000: 68). Chiba’s efforts were materialised in the ‘three-level structure of law’ (Chiba 1986: 5).
Chiba’s model is based on the view that the whole structure of law is composed of three levels: official law, unofficial law, and legal postulates. This three-level structure is not a static rigid model that can be neatly fixed in three sealed boxes, but is to a certain extend dynamic, as each level is a complex composition of interacting components. Each level is, moreover, subject to interaction with the other levels.
Official law is defined as the “legal system sanctioned by the legitimate authority of a country” (Chiba 1986: 5, in Menski 2000: 72). Not merely representing state law as would normally be the case, Chiba also includes into this level religious laws and potentially various aspects of customary laws and laws of land, farming, local organisations and ethnic minorities, insofar as they in one form or another are officially sanctioned by state law. Chiba’s concept of ‘official law’ is thus in itself a plural phenomenon.
Unofficial law is “the legal system not officially sanctioned by any legitimate authority, but sanctioned in practice by the general consensus of a certain circle of people” (Ibid.: 6, in Menski 2000: 73). Chiba limits unofficial law to those unofficial practices supported by the general consensus (defined as formal rules or patterns of behaviour) that influence the effectiveness of official law.
A legal postulate is a “value principle or value system specifically connected with a particular official or unofficial law, which acts to found, justify and orient the latter” (Ibid.: 6, in Menski 2000: 74). The value system, as Chiba defines it, consists of rules or norms created by forces outside of the state and social groups, dependent on the respective cultural context. For example, in model jurisprudence it may consist of established legal ideas such as natural law, justice and equity while it can take the form of sacred truths and precepts deriving from various gods in religious law.
Although Chiba, as stated earlier, conceptually belongs to the historical school, his theory also incorporates legal positivism and natural law. Hence, legal positivism can be seen as part of official law, and natural law as part of legal postulates. Chiba’s model is complex and comprehensive, allowing it to be made applicable to legal systems that normally, according to model jurisprudence, may not even be defined as ‘proper’ legal systems. Furthermore, it is especially relevant for analysing Asian and African legal systems, as many of these systems operate with co-existing received and indigenous laws. Chiba, through his levels of ‘unofficial law’ and ‘legal postulates’, stresses the importance of the influence of socio-cultural forces on a legal system and thus examines the roots and initiatives behind the official law. He opens the analysis up for interdisciplinarity, as many of the aspects in unofficial law and legal postulates are only approachable if equipping oneself with anthropological and sociological methods. Hindu law is a good example of why Chiba’s theory is relevant.
When analysing the genesis of Hindu law and its later developments, all the above-mentioned theoretical approaches are in fact relevant at different historical stages. While the three major theories outlined above are quite useful when analysing traditional Hindu law, Chiba’s tripartite model is ideal when looking at Anglo-Hindu law and modern Hindu law with respect to the relationship between received law and indigenous Hindu law. Analysing the stages of conceptual development within traditional Hindu law, one can see a chronological movement from natural law towards the historical school and to some extent legal positivism.
Accordingly, in the pre-dharmashâstric period, the macrocosmic universal Order (rita) in the Vedic system very much resembles the ancient Greek perception of Cosmos, and the emphasis on every individual being inter-linked within this Order seems to centre on a natural law approach.
Moving on to the idealistic microcosmic self-controlled order (dharma) of the dharmashâstric period, this can be analysed as a shift from natural law to a more historical approach. The shift is illustrated by the enhanced emphasis on the actions of every individual within a social context. At this point in time the new central concept of dharma, developed out of rita, concerns all levels of existence from microcosmic to macrocosmic and is defined by the sources of “Veda, smriti, customs of good people, and the individual conscience” (Manusmriti 2.6, in Menski 2000: 154). In reality, this meant that local practice was superior to the texts (smriti and Vedas), and that the state or formal sources of law played a peripheral role, while the individual had the right to participate in the law-making process.
Next, the introduction of danda (the punishing rod) and formal dispute settlement (vyavahara) indicates a progression towards the ‘state’ and criminal law, and the late classical and post-dharmashâstric periods are rooted in an assisted or supervised self-controlled order. Although the maintenance of dharma begins to involve more public agents, not least the ruler in possession of danda, order is largely still maintained at a local level and dispute settlement is similarly first of all social, and does not involve the state. The ruler, though in a position to punish, does not determine the rules, but is merely a guardian of dharma and the conceptual shift towards assisted self-control must therefore not be seen as a positivist legitimation of power (Menski 2000: 163). Hence, these periods still fall within the scope of the historical school.
The British intervention, and the beginning of the Anglo-Hindu law period, brought about drastic changes in the legal system. The early implementation of a new judicial system, based on English law, showed practical difficulties when dealing with the local population. As a result, “Hindu custom and customary authorities were increasingly, albeit reluctantly, recognised” (Banerjee, 1984: 9, in Menski 2000: 175). This phenomenon can be viewed as a co-existence of a ‘soft’ official and general law and concurrent personal laws of different communities (Menski 2000: 175). These personal laws were subsequently formalised in 1772. With Chiba’s theory in mind, this system of sorting out legal plurality can be seen as the result of an interaction between legal postulates and unofficial law and the subsequent state recognition and admittance of the latter into the level of official law.
However, this did not last. While the British promised to leave these personal laws untouched, the later vast codification of ‘general law’ and ‘over-legislation’ (Menski 2000: 177) eventually led to interference and the codification of certain Hindu personal laws. The results of this clear positivist intervention still have effect today, but reality reveals that the modern Indian state is reluctant to outlaw customs that according to the Acts ought to be outlawed. This “meaningful silence of non-co-operation” (Menski 2000: 185) quite clearly illustrates the continuing importance of old Hindu law and local customs, and indicates that concepts like dharma still form the axis of modern Hindu society. It is obvious that approaching this pluralistic legal scenario by relying solely either on legal positivism, the historical school, or natural law would be rather problematic. Applying Chiba’s three-level structure, though, gives a clearer image of how Hindu law operated, with particular respect to the interaction of the lower levels (unofficial law and legal postulates) and their impact on the official law.
Overall, as law is specific to time and space and because there is no global consensus on what ‘law’ is, more than one theory for analysing law is evidently necessary. In this essay, I have outlined the three major Western theoretical approaches along with Chiba’s theory of law. Being aware of these theories and understanding them is of great importance in embarking upon legal discourse analysis. While legal positivism seems somewhat dominating in Western jurisprudence, the historical school is increasingly visible as comparative legal studies are gaining popularity. The natural law school, too, with its ideal of equality is manifestly still relevant, for instance, as the ideological cornerstone in the human rights discourse (Menski 2000: 85).
As regards Chiba’s model, it has obviously filled a pre-existing theoretical gap and is a much-needed theory for approaching contemporary Asian and African legal systems, as illustrated by the developments in Hindu law. At the same time, I think, Chiba’s model should not be restricted to studying Asian and African legal systems only, as there are clear benefits of applying Chiba’s theory to modern Western legal systems as well - especially in times of increasing globalisation and ethnic plurality.
2385 words
Bibliography:
Chiba, Masaji (ed.) [1986]: Asian indigenous law in interaction with received law.
London and New York: KPI .
Menski, Werner F. [2000]: Comparative law in a global context: The legal systems of
Asia and Africa. London: Platinium.