Given that there is no universally agreed definition of the concept of 'law' in our world today, the approach when trying to comprehend and analyse 'law' in different cultural settings is of great significance.

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Given that there is no universally agreed definition of the concept of ‘law’ in our world today, the approach when trying to comprehend and analyse ‘law’ in different cultural settings is of great significance. If it is accepted that ‘law’ is inevitably culture-specific to a certain extent, the perspectives from which lawyers attempt to analyse ‘law’ are similarly influenced by their cultural background, along with their theoretical adherence. In the field of comparative law, it thus becomes of crucial importance to adopt a suitable approach in order to appreciate the diverse nature of different legal systems.

The three major Western theoretical approaches to law which I will discuss in this essay are natural law, the historical school and legal positivism. While these conceptualisations each theorise law independently, it seems evident that relying exclusively on one of them will provide us with too narrow a scope for studying global law. For instance, the positivistic notion that “law is the command of the sovereign” (Austin 1832, in Menski 2000: 102) quite clearly implies a repudiation of the legitimacy of many legal systems. As a counter-reaction to the positivist approach, Chiba’s three-level structure of law might be the theory which best accommodates the needs of a comparative lawyer. Therefore, in this essay, I discuss to what extent Chiba’s theory of law is relevant for the study of Asian and African legal systems. In the last part of this essay, considering the influence of different perspectives related to the above theories, I focus on the historical development of Hindu law, and discuss which approaches are required to analyse its genesis and later development.

Chronologically, the theory of natural law precedes the historical school and legal positivism and dates back more than 2,500 years. However, this does not imply that natural law as a theory has been entirely replaced by the two more recent approaches, but rather it has co-existed and evolved over time till the present. Similarly, the awareness of the latter two theories already existed in some form along with the natural law theory, albeit not formulated or adhered to.

Often presented with an underlying Eurocentric bias as being rooted in ancient Greek philosophy, natural law has in fact developed rather independently around the world, not least in ancient India, as discussed later. A dominant characteristic of natural law is the “search of mankind for absolute justice” and thus the “search for an ideal higher than positive law” (Friedman 1947, in Menski 2000: 77). That ideal may be moral or religious, but in all cases it is in a source outside of the actual legal system. Accordingly, in ancient Greece, state law was treated as inferior to natural law. The universe was envisaged as a “Cosmos or ordered whole, governed by a creative force called by them Nature or God or the Universal Law” (Jones 1956, in Menski 2000: 78),  with which people should live in accordance and one of the ideal principles was that of equality (Gierke 1950: xxxvi, in Menski 2000: 84).

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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 ...

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