Interaction with received law

When analysing the genesis of Hindu law and its later developments, all the above-mentioned theoretical approaches are in fact relevant at different historical stages. While the three major theories outlined above are quite useful when analysing traditional Hindu law, Chiba's tripartite model is ideal when looking at Anglo-Hindu law and modern Hindu law with respect to the relationship between received law and indigenous Hindu law.

Analysing the stages of conceptual development within traditional Hindu law, one can see a chronological movement from natural law towards the historical school and to some extent legal positivism. Accordingly, in the pre-dharmashistric period, the macrocosmic universal Order (rita) in the Vedic system very much resembles the ancient Greek perception of Cosmos, and the emphasis on every individual being inter-linked within this Order seems to centre on a natural law approach.

Moving on to the idealistic microcosmic self-controlled order (dharma) of the dharmash stric period, this can be analysed as a shift from natural law to a more historical approach. The shift is illustrated by the enhanced emphasis on the actions of every individual within a social context. At this point in time the new central concept of dharma, developed out of rita, concerns all levels of existence from microcosmic to macrocosmic and is defined by the sources of "Veda, smriti, customs of good people, and the individual conscience" (Manusmriti 2. 6, in Menski 2000: 154).

In reality, this meant that local practice was superior to the texts (smriti and Vedas), and that the state or formal sources of law played a peripheral role, while the individual had the right to participate in the law-making process. Next, the introduction of danda (the punishing rod) and formal dispute settlement (vyavahara) indicates a progression towards the 'state' and criminal law, and the late classical and post-dharmashstric periods are rooted in an assisted or supervised self-controlled order.

Although the maintenance of dharma begins to involve more public agents, not least the ruler in possession of danda, order is largely still maintained at a local level and dispute settlement is similarly first of all social, and does not involve the state. The ruler, though in a position to punish, does not determine the rules, but is merely a guardian of dharma and the conceptual shift towards assisted self-control must therefore not be seen as a positivist legitimation of power (Menski 2000: 163). Hence, these periods still fall within the scope of the historical school.

The British intervention, and the beginning of the Anglo-Hindu law period, brought about drastic changes in the legal system. The early implementation of a new judicial system, based on English law, showed practical difficulties when dealing with the local population. As a result, "Hindu custom and customary authorities were increasingly, albeit reluctantly, recognised" (Banerjee, 1984: 9, in Menski 2000: 175). This phenomenon can be viewed as a co-existence of a 'soft' official and general law and concurrent personal laws of different communities (Menski 2000: 175).

These personal laws were subsequently formalised in 1772. With Chiba's theory in mind, this system of sorting out legal plurality can be seen as the result of an interaction between legal postulates and unofficial law and the subsequent state recognition and admittance of the latter into the level of official law. However, this did not last. While the British promised to leave these personal laws untouched, the later vast codification of 'general law' and 'over-legislation' (Menski 2000: 177) eventually led to interference and the codification of certain Hindu personal laws.

The results of this clear positivist intervention still have effect today, but reality reveals that the modern Indian state is reluctant to outlaw customs that according to the Acts ought to be outlawed. This "meaningful silence of non-co-operation" (Menski 2000: 185) quite clearly illustrates the continuing importance of old Hindu law and local customs, and indicates that concepts like dharma still form the axis of modern Hindu society. It is obvious that approaching this pluralistic legal scenario by relying solely either on legal positivism, the historical school, or natural law would be rather problematic.

Applying Chiba's three-level structure, though, gives a clearer image of how Hindu law operated, with particular respect to the interaction of the lower levels (unofficial law and legal postulates) and their impact on the official law. Overall, as law is specific to time and space and because there is no global consensus on what 'law' is, more than one theory for analysing law is evidently necessary. In this essay, I have outlined the three major Western theoretical approaches along with Chiba's theory of law. Being aware of these theories and understanding them is of great importance in embarking upon legal discourse analysis.

While legal positivism seems somewhat dominating in Western jurisprudence, the historical school is increasingly visible as comparative legal studies are gaining popularity. The natural law school, too, with its ideal of equality is manifestly still relevant, for instance, as the ideological cornerstone in the human rights discourse (Menski 2000: 85). As regards Chiba's model, it has obviously filled a pre-existing theoretical gap and is a much-needed theory for approaching contemporary Asian and African legal systems, as illustrated by the developments in Hindu law.

At the same time, I think, Chiba's model should not be restricted to studying Asian and African legal systems only, as there are clear benefits of applying Chiba's theory to modern Western legal systems as well – especially in times of increasing globalisation and ethnic plurality.

Bibliography:

Chiba, Masaji (ed. ) [1986]: Asian indigenous law in interaction with received law. London and New York: KPI . Menski, Werner F. [2000]: Comparative law in a global context: The legal systems of Asia and Africa. London: Platinium.