Chiba’s theory is relevant for our understanding of the legal systems of Asia and Africa as we can then distinguish that the legal systems are made up from official law, which are influenced from unofficial law and are connected through legal postulates. This enforces our understanding that it is not only the state, which makes the law, but the people of the country, their traditions and religions also make the law without them realising it. There’s an underlying principle of morality that is connected to upbringing and religion which consequently builds the law to make the law what it is today within every legal system even though some factors may override others.
- Analyse Chiba (1989) and his ‘new’ theory of legal pluralism. What actually is new here? How does it relate to your discussion in part a)?
Griffiths (1986a: 38) highlights that “legal pluralism is a concomitant of social pluralism: the legal organisation of society is congruent with its social organisation”. Legal pluralism has been a concept that has been around for a considerable length of time. It involves social and cultural diversity that are entailed in the figuring of law.
Chiba’s 1989 theory is referred to the ‘three dichotomies of law’, which includes what Chiba calls the ‘identity postulate of indigenous law’. Each of his dichotomies are concerned with contrasting terms of law in order to identify the relationship between them. The first dichotomy is official law vs. unofficial law, which are defined above. This dichotomy relates to the different manners of legal authorisation. The distinguishing relationship between official law and unofficial law is that the different types of unofficial law function automatically in a systematic arrangement but may cause conflicts and this is where the different types of official law are needed to resolve the conflicts in order to establish a balanced society and to regulate a system where the state law provides the legal principles that are influences by unofficial law.
The second dichotomy is the contrast of legal rules vs. legal postulates. Legal rules are the “formalised verbal expressions of particular legal regulations” in order to be able to assign specific patterns of behaviour or the required patterns of behaviour, such as the Dharma in Hindu law. Legal postulates are values and ideas that are specifically related to a particular law, which are used to modify the existing legal rules. The relationship within this dichotomy is that both legal rules and legal postulates interact to coexist as a rule.
The third dichotomy is the contrast between indigenous law and transplanted law. Indigenous law is law that originated in the local culture of people. Transplanted law is defined as state law that is transferred by people from a foreign culture. This relates to the different origins of law in human society, for example, between the people of Western countries and non- Western countries. This third dichotomy is what is actually new in Chiba’s legal pluralism theory.
This third dichotomy is an important extension to what was discussed in section a) above as it informs us that law is not necessarily something that is just made through the state and religion etc but it is also something that can be transferred to other countries whether it be state law or local law. This model further reinstates the point I made at the beginning of this assignment, that law is such a complex mechanism so it can be virtually impossible to define into a simple sentence. Chiba’s theory thus helps us in understanding the foundation and body of law as a whole, that law is composed of official law vs. unofficial law, legal rules vs. legal postulates, and indigenous law vs. transplanted law. The combination of these three dichotomies into a legal culture becomes a useful analytical tool for observing the structure of the law belonging to a group of people, to individuals or to the universe as a whole. Surely, if we were to disentangle the web of law, we might or could end up with laws that universally belong to us all.
In essence, Chiba’s new theory ultimately boils down to the most important three principles of the structure of law: state, religion and society, which influence one another and interact in the shaping of the law.
- In the light of a) and b) above, and your reading of comparative jurisprudence, what sense do you make of the term ‘ethno-jurisprudence’ in relation to Hindu law? In your view, can Chiba’s new theory be applied anywhere in the world?
Literature is the true reflection of the culture of any religion. It treasures all the knowledge and history and delivers it from generation to generation. This great heritage cannot be reserved without reserving the language. Therefore, the learning of ethno-jurisprudence is very important for people so that they understand and enjoy the great literature we have.
To my understanding, the term ethno-jurisprudence involves the science and the philosophy of human law and the relations between different races of mankind. With regard to Hindu law, it is assumed that the actions of an individual have implications for the world at large (karma). This is reinforced by Chiba’s theories, which aim to demonstrate that law is inseparably rooted in society.
Model jurisprudence is the idea that law is so inseparably rooted in society and is indeed established on a universal basis. Conceptions of Hindu law bereaves the cultural nature of the Western conception of law which is thought of to be the ultimate model jurisprudence in that it is the law which is followed to an almost universal extent. Hindu law scholars have not even attempted to present to the world the model of their jurisprudence, which consequently reinforces the universality of Western jurisprudence. Thus this passive attitude has resulted in Hindu jurisprudence being disregarded in terms of model jurisprudence with due respect to their indigenous laws.
In Chiba’s tripartite model of a legal system, official law is always seen as interacting with unofficial laws and legal postulates and never exists in isolation. This idea is comparatively similar to the concepts in Hindu law. The Dharma in Hindu law (derived from 700 B.C) is a sense of duty, obligation or appropriateness, which is there to enforce the ideal form of behaviour at the right time. It is a natural law in that it upholds individuals and guides them to do the right things. However, as time progressed and India became more and more under the British influence, the British intervened every time they perceived there to be a social problem and applied their state law within India. This is where Chiba’s official law interacts with the unofficial laws and legal postulates of the people of India and their supposedly dominating Hindu law.
In my view, Chiba’s new theory can be applied to any legal system in the world, as every legal system is somehow constituted of official laws, unofficial laws and legal postulates. As expected contrasts always occur within legal systems which is supported by Chiba’s 1989 theory. This can be applied to Hindu law where British intervention contrasts with the Dharma (official law vs. unofficial law), legal rules and the Dharma again (legal rules vs. legal postulates) and Varna in contrast to British transplanted law (indigenous law vs. transplanted law).
At the end of the day, law is always infused with cultural and historical meanings where it becomes a process that is shaped by rules and cultural associations, which is labelled by Chiba [1986; 1989] as a legal postulate. Legal “postulates are found in the form of firmly established religious principles” [Chiba 1986: 42] such as the Dharma among Hindus. The Dharma allows the role of the ‘identity postulate’ to become operative in enabling people to maintain their cultural identity in law and it is this which relights the ethno-jurisprudence of Hindu law, not universally but more locally and within its circle of society. In still being able to maintain their identity and individuality without the influence of any Western interaction, Hindu people can choose official or unofficial law alternatively so as to adapt themselves to any changing circumstances around them.
Over the years, the Dharma has been misinterpreted as being the one and only law although it is not. Hindus have made their legal system very complicated and generations have tended to believe and not dispute whatever their parents or guardians tell them which has drowned the true values of Hindu law which once existed during the ancient times. Their legal system has lost its historical edge which actually forms a very good foundation for the making of law and as Menski [2000] nicely summarises:
“Although… Dharma may be regarded by orthodox jurisprudence as simply customs and practises… these religious precepts and ethical imperatives influence official law, unofficial law and society. Transplanted state law does not exist as a separate system but coexists with unofficial laws peacefully or conflictingly. As a result, in some cases, a radical reform attempt in the legal arena may well fall far short of bringing the assumed crucial transformation”.
BIBLIOGRAPHY:
-
Chiba, Masaji [1989]: Legal Pluralism: Towards a General Theory through Japanese Legal Culture. Tokyo: Tokai University Press.
-
Chiba, Masaji (ed) [1986]: Asian Indigenous Law. London and New York: KPI.
-
Menski, Werner [2000]: Comparative Law in a Global Context. London: Platinum Publishing Limited.
Words: 1858
