The prominent term of "Law" is used in many different circumstances, and in many different circles, including in the political, commercial, social, as well as the judicial worlds. I feel it is important to state however, that there is not a single agreed definition of the term Law, thus making any discussion of the term difficult from the offset. It is because of this reason that there are many differing approaches to the study of law, and it is my aim in this assignment to briefly outline the major theoretical approaches that we have studied in class, and then to compare them.
The first theory I'd like to discuss is known as the natural Law theory. It is important to state that this approach has many different branches, and has changed with changing social and political circumstances. This approach is completely nature based in its origin, and views Law coming from below, not from above as the positivist approach assumes. Natural law is unwritten, and is made from a body of moral principles for the whole of mankind to follow. The approach has a somewhat omnipresent ambiance, where Law is simply there.
The fore fathers of this philosophical approach are the ancient Greeks, like Pythagoreans and stoics for example. To them, state law was seen in an extremely negative light, which is in direct contradiction to the positivist school of thought, most probably because the rulers of the time were often corrupt and unjust, whereas natural law was seen as good and acceptable to follow. In fact, Natural law was seen as higher or superior to state law. There is a clear believe in a system of Macrocosmic order within this theory.
A belief of a superior order governing all mankind, and the human race as being subordinate to "nature". The concept of Themis, or "natural order" is central to the natural law school of thought. It is an order system for the whole universe, which aims for decency and righteousness. The Greeks categorised what we term as state law as "Nomos" which is law in the positivist sense. They recognised that this type of Law could easily be abused, whereas Natural law was seen as untouchable and impossible for Man to violate. Also, Stoics argue that the universe is governed by rational thought, or reason.
According to this understanding, individuals should naturally be acquainted with and comprehend the law, and if they abide by it, they will be following nature. Another approach to the study of Law is the Legal positivist approach, also known as the analytical school. According to this approach, the only legitimate legal system is that of the state. In essence, it is a legal system dominated totally by the state and its institutions. This philosophy of jurisprudence treats law as some kind of political apparatus, a body of rules laid down by the state.
Most legal positivists would go as far as to say that the existence of the state is imperative to the existence of a valid legal system. There is no law other than the law of the state. Also according to the positivist school of thought the law (state law) is central to each and every individuals life, and that every aspect of our lives is affected by our legal system. To emphasise the importance of the role of the state to positivists, the founding father of positivism, John Austin has written, "Law is the command of the sovereign" Thus reinforcing the superiority of the state in the positivist paradigm.
It is also apparent that positivists aim for the separation of morality and ethical principles from Law. Legal positivism doesn't concern itself with morals and questions of justice, but more as a science, or an observable fact. I believe this feeling is summarised very well by Menski when discussing legal positivist: "not concerned with the law as it ought to be. " In other words, positivists see law separately from issues linked with what's right and what's wrong. Another school of thought which arose at approximately the same time as the positivist approach, is the historical school of jurisprudence .
The historical approach is a means of studying law not only as a political phenomenon as the positivists, and not only from a moral point of view, as the naturalists, but from a socio-political sphere. This approach focuses on the way laws change over periods of time. Its origins can be related back to the study of Roman law. Scholars compared Roman law rules with their laws with were around them. As Menski says: "In this way, a richer, historically rooted understanding of roman law developed, creating conflicts between practising lawyers and academics of the law"
Its followers perceive law differently from the above explanations for it views law as a social phenomenon, as well as a political one. It is also apparent that the historical school was a result of historical events. As Friedmann explains (1947:119-120): "The historical school represents a determined reaction against two powerful forces of the time: (1) the rationalism of the 18th century with its belief in natural law… (2) The beliefs d the spirit of the French revolution, with its revolt against authority and traditions. "
The Legal scholar Ehrlich has also claimed from his study of the subject that Law grows and develops over periods of time. Another eminent thinker in this field was Savigny. Savigny came up with the term 'Volksgeist', or spirit of the community, which reinforces the point that law is intimately related to society, and that they are impossible to separate. Having outlined this approach, I feel it is appropriate to introduce the second part of the assignment, as Chiba's view follows on from this school of thought. The eminent Japanese intellectual, Masagi Chiba has his own theory concerning law.
Chiba strongly criticises western assumptions about the reliance on western legal models of non-western legal systems. He also greatly criticises the positivist school of thought, which he terms as "model jurisprudence". He claims that it is far too narrow in its definition of law, as it totally excludes any idea of the plurality of law. Chiba's model has great similarities with Menski's model where religion, state and society have a role to play. For Chiba therefore, for one to gain an accurate view of what law is, one needs to analyse it in a pluralistic sense, with close reference to social issues as well as political issues.
Chiba believes that law and social issues are innately connected, and that it is impossible to separate the two. In 1986, Chiba came up with a specific theory of law. Within his theory, there are three main concepts. The first of these concepts is that of official law. Chiba used this to signify the laws made by the state. The second of his concepts is unofficial law. This term signifies a legal system that is practised by a certain group of people within as state or a country, but is not officially recognised or set down by the state itself. And finally, Chiba recognises a less straightforward legal system that he terms as legal postulates.
These are value systems, which aren't created by official, or unofficial law, but Chiba claims are intimately related to them. Legal postulates are a kind of legal ambiance, legal ideas that exist in a given society. It is clear by looking at Chiba's model that he believes that one Cannot restrict law to a single legal system, thus emphasising Chiba's insistence on plurality. He justifies this by: Chiba (1986:4) "Thus the whole structure of law is plural, consisting of different systems of law interacting with one another harmoniously or conflictingly.
" It becomes apparent that Chiba dissects the vast subject of law by using a more social science approach, as many others before him, thus giving the impression that he is more an adherent towards the historical school rather than the two alternatives. Chiba's study is essential to our current course of study because as it is made clear above, Law is an extremely diverse and plural subject, and in my opinion Chiba's theory is indeed relevant as it shows a clear and genuine attempt at making sense of this complex phenomenon.
Chiba's model incorporates everything, He recognises that law isn't simply cases and judicial decisions; it is indeed an important part of the social spectrum. However, Chiba didn't stop there in this 1986 study . He goes on to recognise two other interesting concepts. These are of Received law, and indigenous law. It is the subject of the interaction between these two concepts that makes up the second part of Chiba's theory. By received laws, he means the laws that have been adopted by a certain country from another country, and by indigenous law he means the law that derived in the resident culture of a people.
Chiba's main line of interest here is how indigenous laws have developed and their response with received laws. It seems to my very humble understanding of the subject, that Chiba, unlike others provides an extensive, and very specific way of viewing law that isn't hindered by a narrow theory of law. His study is essential for our present course mostly because he emphasises the pluralism of law today, which is essential in our current field of study.