Chiba (1986:1-2) particularly challenges the universalist claims of Western model jurisprudence. He argues that the scholars of non-Western countries, despite cherishing their own jurisprudence and its differences to the Western, they have not attempted to present the achievements of their jurisprudence before the circle of legal science forcibly enough, to cause the proponents of Western jurisprudence to doubt their conviction of its universality “such a negative or passive attitude may be another reason why model jurisprudence has in general disregarded the jurisprudence of other culture”. Menski (1986:71) describes this ‘negative or passive attitude’ as “purposeful silence among Asian and African scholars”. He argues that the ‘native scholars’ do not see the point in explaining their views on law and cultural perceptions to the Western scholars, as they are likely to be dismissed.
Chiba (1986:4) places his own work within the wider framework of social science. “The whole structure of law as an aspect of culture should include all regulations, however apparently different from state law, which the people concerned observe as law in their cultural tradition, including value systems”. This describes the structure of law as plural, consisting of different systems of law interacting with one another “harmoniously or conflictingly”. Here Chiba outlines his personal thinking on the nature of law, and introduces his informative model of the three-level structure of law.
Chiba’s model is not simply a theory, he aims to apply his theoretical concept to a number of national scenarios, including the laws of Egypt, India, Thailand and Japan. He continues to develop a set of working hypotheses for his three-level structure of law and for the interaction process between received law and indigenous law. It is useful to note at this point, that law is always composed on three levels, for example, Allott’s three definitions of ‘law’, and the concept of the ‘body of rules’ and its three components, state, religion and society and of course, Chiba’s three-level model of law.
Chiba (1986:5-6) illustrates the three major elements of his three-level structure of law, which comprises of official law, unofficial law and legal postulates. ‘Official law’ is defined as the legal system sanctioned by the legitimate authority of a country. This is commonly misinterpreted as purely state law. However, in many contemporary countries, religious law may be partially included within state law. Other examples can be seen in the laws of marriage, family, land, local organisations, ethnic minorities and so on. An independent authority sanctions each of these official laws of a country first, but each of them must finally be sanctioned by the state. Chiba identifies religious law and people’s customary norms as potential components of official law. This pluralistic angle of the composition of state law challenges the assumption that official must be made by the state. He implies that a state may have to accept bodies of rules from other, non-state sources, which are then formally embodied into the official law, but were not necessarily made by it.
Chiba’s concept of ‘unofficial law’ is as diverse as his idea of ‘official law’. ‘Unofficial law’ is defined not just as custom, as we have already seen, some aspects of custom may have already become part of the official law. Chiba (1986:6) defines ‘Unofficial law’ as the legal system that has not been officially sanctioned by any legitimate authority, but has been sanctioned in practise by the general consensus of a particular group of people. This general consensus, “may be consciously recognised and expressed in formal rules, or unconsciously observed in particular patterns of behaviour…”. Unofficial law here, is limited to those unofficial practises, which have a distinct influence upon the effectiveness of official law, including state law. We can therefore, say that the effectiveness of the total system depends upon the structure of the unofficial law of the country concerned. Unofficial law is commonly found in societies as customary law, living law, primitive law, and folk law, to name a few.
The third and most crucial element of Chiba’s model is ‘legal postulates’, which he defines as value systems of various types. He views these as bodies of rules or norms, which are neither created by the state or by a social group. They exist in their own right as elements of a specific cultural context, which are specifically connected to a particular official or unofficial law. Chiba (1986:6-7) identifies that a legal postulate may consist of established legal ideas such as natural law, justice, equity, for example, in model jurisprudence. The legal postulates of a country are required to keep in agreement with one another, to some extent, whether official or unofficial; total agreement is not expected, firstly, because each legal postulate is in support of a system of official or unofficial law, the potential for conflict is high. Secondly, because the legal postulate may tend to upset the framework of it’s supported official or unofficial law.
The interaction between received law and indigenous law forms a vital element of Chiba’s theory of legal pluralism. Chiba (1986:7) illustrates that “the whole structure of law of a non-Western country, is seen from a cultural point of view, formed in the interaction between received law and indigenous law”. Chiba broadly defines ‘received law’ as the law, which is received by a country from one or more foreign countries and ‘indigenous law’, as the law originated in the native culture of people. For our study, the most relevant, is the reception of Western state law by non-Western countries in modern times. This is crucial, as the cultural conflict between received and indigenous law remains prominent, mainly because “the reception process” has not yet been completed. Chiba implies that ‘reception’ has taken place “formally and systematically in the level of official state law, whether imposed by Western countries or voluntarily accepted by non-Western countries”. According to Chiba, it is extremely important to analyse how indigenous laws have developed in their interaction with received laws.
Chiba’s 1986 theory of law is extremely relevant in relation to global studies of Asia and Africa, and it is therefore, very useful for our studies of the legal systems of Asia and Africa. As Chiba expresses himself (1986:378-394), his theory can be successfully applied to six Asian country studies and he emphasises that further research can illuminate the processes of continuous interaction.
Chiba (1989:3) became aware of many problems with his initial study of legal pluralism and established his new theory in 1989 in consideration of these problems. Chiba’s 1989 theory focuses on three main new points; firstly, “to examine the believed-in universality of the orthodox jurisprudence in order to make clear it’s particular nature originating in Western culture” (Chiba, 1989:5). Second, is to observe and specifically analyse Japanese culture, this is Chiba’s most serious example of legal pluralism. Third, is to hypothesise a general theory constructed out of these notions.
In Chiba’s tripartite model of legal pluralism, ‘official law’ is always seen as interacting with unofficial laws and legal postulates, such that it never exists alone. Chiba (1989:175) therefore, sought to verify these components, both in formulation and definition, and established; that the sub-systems of official law needed to be accurately classified and their mutual interaction systematically arranged. ‘Unofficial law’ needed additional data, after which it’s concept and nature, in relation to official law and legal postulates, had to be redefined. Similar requirements were necessary for the concept of legal postulates. In addition to the need to identify the whole mechanism of ‘legal postulates’, it was also necessary to distinguish the basic component, which contributes to the essential minimum amalgamation of the whole mechanism.
His model of the interaction between indigenous law and received law was also verified. The reported data showed that “the contemporary structures of law of the six countries are, respectively, the result of interaction between indigenous law and transplanted law” (Chiba, 1989:176). This suggested that the interaction had taken place within certain limitations, permitting preservation of the cultural identity of each people in law, therefore, leading to the assumption that a legal postulate was functioning during that interaction, creating the notion of the ‘identity postulate of indigenous law’.
Chiba’s 1989 theory was in a position to critically observe and improve on the original schemes. Chiba (1989:177) established the conceptual theme of the ‘three dichotomies of law’, consisting of the above schemes and the ‘new concept’ of the ‘identity postulate of indigenous law’. The first dichotomy relates to ‘official law vs. unofficial law’. While state law comprises typically of official laws, in many capitalist and some socialist countries, the state operates by a system of state law as well as officially taking into consideration religious laws. Other types of law regulate certain groups of people, and are often given official authorisation by the state, these include, local laws, family laws, and customary laws. Customary laws are originally unofficial, and remain so, until authorised. Other unofficial laws may function without any systematic arrangement. In contrast, different types of official law in a country are required to remain in accordance with a body of certain principles provided by the state. Therefore, customary laws as official law tend to develop differently from customary laws as unofficial laws.
The second dichotomy is the contrast of ‘positive (legal) rules, with legal postulates’. While legal rules can be easily isolated from the cultural formalities, legal postulates are extremely difficult to isolate. As Chiba (1989:178) emphasises, this is “with the exception of those specifically conceptualised, such as justice, equity, natural law in Western law, Dharma in Hindu law and Heaven in traditional Chinese law”. In these cases, both legal rules and legal postulates of a particular body of law coexist and function simultaneously, as a rule. However, there have been many cases where they may conflict, or where one has lagged behind the “socio-cultural development of the society concerned”. Among the many relationships, the most significant is the independent function of legal postulates when the supported legal rules disappear. In such cases, legal postulates have the potential of reactivating out-dated legal rules or even creating new ones.
The third dichotomy is vital to contemporary non-Western countries, but also applicable to those in the West. It relates to the different origins of law in human society. The contrast between ‘indigenous law’ and ‘transplanted law’ is a relative one. Transplanted law can be defined in two ways, that which is voluntarily received and that which is involuntarily imposed. Chiba (1989:179) argues the system of Western law is an integrated complex of indigenous laws and transplanted laws developed by Western proponents, while non-Western law is a working whole of indigenous and transplanted laws interacting in each country.
As Chiba (1989:179) concludes, the law of an individual country may comprise of different types of official and unofficial law, “each of which is constituted of legal rules and legal postulates as well as of indigenous law and transplanted law, received or imposed”. The combination of the three dichotomies varies from country to country; this will lead to diverse examples of the proportion of two factors in each dichotomy, together with transformation of those combination and proportion with time, which can result in extreme cases, such as total replacement of a state’s legal system. However, in those regions where people cherish their indigenous culture, their legal culture remains, this can be interpreted as the ‘functioning’ of the ‘identity postulate of a legal culture’, which provides a guideline for how to reformulate the structure of law within a state, including, the combination of indigenous and transplanted law.
Chiba (1989:180) states that the three dichotomies of law, as discussed above, combined into a ‘legal culture’ under the guidance of the identity postulate of a legal culture, “is a useful analytical tool for accurate observation and analysis of the working whole structure of law”. Chiba’s theories are often associated with the term ethno-jurisprudence; this implies that jurisprudence can be applied universally. However, this is not necessarily true, Chiba’s new theory cannot be applied ‘anywhere’ in the world. For example, it is not useful for the analysis of Hindu law. This is because within Hindu law, there is no ‘official’ text, hence, no official law. Hindu law functions on a system of dharma, which is equivalent to Chiba’s notion of legal postulates. They adhere to a set of ‘norms’, known as atmanastushti, which can be interpreted as ‘personal law’, the only text that exists, shruti, acts as a reference, they are merely ‘ideas’ on law. Therefore, Chiba’s theory consisting of ‘official laws’ and ‘unofficial laws’ is not applicable to this particular example.
BIBLIOGRAPHY
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Comparative Law in a Global Context: The Legal Systems of Asia and Africa, Dr. Werner. F. Menski, 2000, Platinum Publishing Ltd, London.
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Legal Pluralism: Towards a General Theory through Japanese Legal Culture, Masaji Chiba, 1989, Tokai University Press, Tokyo.
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Asian Indigenous Law in Interaction with Received Law, Masaji Chiba, 1986, KMI, London & New York
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Lecture Notes- Legal Systems of Asia and Africa
