The three major approaches demonstrate the various methods that have been adopted in order to analyse law as a plural phenomenon, but each approach is flawed in that they do not recognise law as a cross-cultural phenomenon. ‘Menski’s Triangle’ accommodates the three approaches, by doing so it also highlights that an ideal equilibrium is only reached through legal pluralism. Thus, the study of law requires a globally conscious perspective, because law within a global framework needs to analyse the various political, social, historical and religious contexts.
Masaji Chiba takes a more global perspective in viewing law as a social phenomenon which is “inseparably rooted in society” (Chiba 1986:1), as opposed to the legal centralist view. Chiba rejects the approach that ‘law’ is simply ‘law’ because the state says so. He strongly criticises Western jurisprudence for claiming universality. Although non-Western countries adopt Western legal systems, it does not represent universalism because those legal systems could have been imposed or involuntary, consequently indigenous law is eradicated. Chiba suggests that non-Western patterns of law need to be researched in their own context and perspective. Law therefore should be studied through sociological methods, whereby culture and the structure of society are taken into consideration. This is in accordance with the historical and sociological school of thought, which emphasises the social dimension of law and highlights the close relationship between legal and social rules. By taking a sociological perspective, Chiba challenges the universal claims of Western model jurisprudence on the grounds that it is based on Western culture and the Christian view of man and society. Chiba believes that Western legal analysis overlooks socio-cultural factors and specific experiences, resulting in a legocentric and positivistic perspective.
Chiba proposes the Tripartite Model of Law, which is a pluralistic approach to law, consisting of different systems of law that interact with each other, either harmoniously or conflicting. ‘Official Law’ refers to the legal systems which are permitted by the legitimate authority of the country, for instance state made law is regarded as official law, but, religious law can also be included. As Chiba takes a pluralising perspective, he suggests religious law and customary law can be seen as potential elements of official law. ‘Unofficial Law’ refers to the legal systems that are not permitted by the legitimate authority, but is practiced by a large number of people/groups. Unofficial law can at times be formal rules and non-formal rules. ‘Legal Postulates’ are value systems of different types; they are rules or norms which are not created by the state or a social group, but are elements in their own right and are culture-specific. Legal postulates may include sacred truths, concepts of justice, political ideologies etc. The relationship between official and unofficial law is fluid because society allows for both to operate simultaneously. Legal postulates are fundamental since they form the basis of official and unofficial law. In addition to the Tripartite Model of Law, Chiba discusses native law and reception of foreign law. ‘Indigenous Law’ is law that originated from the native culture of the people. On the other hand, ‘Received Law’ is any form of law that is received by a country from another foreign country. Reception of laws can take places in many forms; it could be voluntarily or non-voluntarily received, or the process could gradual or rapid. Chiba focuses on the reception of Western law by non-Western countries, which can lead to cultural conflict. He emphasises the fact that people in non-Western countries have “cherished their indigenous laws as an integral part” of their culture. The receiving of foreign laws, whether voluntary or not, has either led to peaceful assimilation or has led to conflicts between native and foreign law, this varies from country to country. As a result, sometimes indigenous law does not survive, and other times foreign law is rejected to preserve cultural identity. Thus, it is a process of adaptation or conflict, with legal postulates playing a vital role (Menski 2000:75).
Chiba’s theory is relevant when analysing legal theory because Chiba offers a pluralistic global model of law, whereby taking into account the whole rule system, rather than focusing on official or state made law. Chiba divides the legal field and shows the intricacies of legal systems and challenges Western model jurisprudence. By viewing the law as a social phenomenon, Chiba provides a broader legal method by which law as a global phenomenon can be analysed. In addition, Chiba highlights cultural specificity, whereby each culture has its own experiences and traditions, therefore law needs to be studied in context, not from a Western model.
Hindu law has developed historically as a family of laws that seem to be people’s law, rather than a strict set of rules which are to be obeyed, and is based on legal pluralism. Vedic literature revealed early Hindu beliefs about man’s place in the world, and referred to the earliest core concept of Hindu law as rita. Rita explains that “life is a complex experience”, whereby everyone and everything has a role to play within the macrocosmic order, thus all activity is interconnected. The roles and actions of people depend on factors such as age, gender and society (Menski 2000:144). “Rita is holistic, macrocosmic and focused on natural order” (Menski 2000:145), and is concerned with the protection of order, as illustrated by the Vedas. Both Natural law and Hindu law relate to working for the ‘common good’, particularly because both systems are concerned with ‘what law ought to be’, which reflects the idealism of both systems. There is a search for absolute ‘truth’ but Hindu law acknowledges that humans are intellectually flawed particularly because they cannot understand natural activities such as sunrise, floods etc. Resulting in the belief that the invisible mechanisms are controlled by gods, this is in parallel with the Natural law concept of a ‘higher order’. The concept of Natural law has a specific meaning in Hindu law; expressed by the ‘Laws of Manu’ and shrutis which are divine revelations expressed by the ‘Absolute’, highlight Hindu law and its concept of nature. The concept of rita was developed further into dharma during the classical period. Dharma puts the emphasis on individual action and refers to the microcosmic order. Karma and dharma require all individuals to behave appropriately in any situation; otherwise the individual faces spiritual and material consequences, highlighting the complex set of moral demands in Hindu law. The idea of dharma elaborates on the fact that man and universe are interrelated, thus ‘ritual action’ is converted into ‘good action’, and such ideas are found in the shastric texts. Dharma can be maintained by individual self control and by a process of prioritising higher concerns over personal desires. The social dimension of dharma is shown by the fact that actions depend on caste and stage of life. This shows how dharma relates to the historical/sociological approach, in that it operates within different contexts, taking into consideration the time and place of actions. During the post-classical period, the maintenance of universal order started to involve more “public agents” (Menski 2000:160) rather than just relying on individual consciousness and self control. The concept of danda demonstrates the shift from self-assisted control to supervised self control. Danda acts as a deterrent as it threatens punishment. The Hindu ruler, raja, carries out the appropriate punishment which must be in accordance with the crime. This may give the impression of a gradual positivist state but, the raja is the guardian of dharma. If disputes arise there is a process known as vyavahara, which attempts to resolve conflicts and uphold the cosmic order. It is evident that both natural law and the sociological approach coincide with Hindu law; a useful comparison tool of Hindu law is St. Thomas Aquinas’s categories of law. Whereby, eternal law refers to macrocosmic order or rita, natural law can relate to satya as ‘truth’, divine law links with shruti and human law can associate with sadacara or ‘model behaviour’.
Chiba’s Tripartite Model of Law does not apply to Hindu law fully, mainly because traditional Hindu law does not have Official Law. Chiba’s theory suggests that official law is generated by a legitimate authority, usually the state. However, during the developmental stages of Hindu law there was no state, thus no official law. Instead Hindu law and Hindu life involved being conscious of rita (later dharma). Hindu law does not lay down general applicable rules such as ‘thou shalt not kill’; this shows that official law in a structured format does not exist in Hindu law.
For a legally plural approach, the Three Dichotomies of Law (1989) introduced by Chiba can be seen as a solution. Chiba proposed ‘Official Law vs. Unofficial Law’; referring to the legal systems that are officially and unofficially recognised by a legitimate authority, this can include religious law and customs. This can be associated with Hindu law in terms of natural law vs. customary law. The concept of ‘Legal rules vs. Legal postulates’ makes a distinction between rules that are the formal expressions of particular legal regulations for specific behaviour and postulates which are the particular values and their systems connected to a particular law, thus takes into account dharma and karma. ‘Indigenous law vs. Transplanted’ law refers to the different origins of law in society and shows the different degrees of assimilation of foreign law. Law can be seen as either voluntarily received or involuntarily imposed, as shown by Hindu law receiving Muslim law and English law. In addition, the three dichotomies are guided by the ‘identity postulates’, these guide people on how to structure their law and what to do in changing circumstances. Therefore, the Three Dichotomies show different types of official and unofficial law, constituted by legal rules and legal postulates, as well as indigenous law and transplanted law. This is a plural approach as it recognises that the combination of the dichotomies varies from country to country, since it is situation specific. Chiba’s approach is not rigid and allows for a wider scope of understanding.
It is evident that law is a plural phenomenon, whereby different cultures and religions have specific rules and laws. A plurality conscious legal method is required in order for legal theory to be understood in various contexts. Diversity in religions, cultures and world-views is the essence of legal pluralism, and through this methodology ‘law’ can be studied in all its dimensions, without imposing Western jurisprudence. This can be shown through ‘Menski’s Triangle’ which transforms into ‘Menski’s Circle’, thus accommodating all legal systems. Legal pluralism is a significant tool for studying law in a global perspective, and can be seen as a post modern tool for studying law, since it takes various factors into consideration.
BIBLIOGRAPHY
Chiba, Masaji [1989]: Legal Pluralism: Toward a general theory through Japanese legal culture. Tokyo: Tokai University Press, pp. 171-180.
Glenn H. Patrick [2000]: Legal traditions of the world. Oxford et al.: Oxford University Press
Menski, Werner F [2000]: Comparative law in a global context: The legal systems of Asia and Africa. London:Platinium.
Tamanaha, Brian Z. [2001]: A general jurisprudence of law and society. Oxford University Press.
Zweigert, Konrad, and Hein Kotz [1998]: Introduction to comparative law. Translated by Tony Weir, 3rd edition. Oxford:Clarendon.
Name: Sarah Raza
Student ID: 151315
Year: First Year
Course: LLB LAW
Status: Undergraduate
Course Code: M100
Date: 8/11/2004
