Japanese Legal Culture

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:

1. Chiba, Masaji [1989]: Legal Pluralism: Towards a General Theory through Japanese Legal Culture. Tokyo: Tokai University Press. 2. Chiba, Masaji (ed) [1986]: Asian Indigenous Law. London and New York: KPI. 3. Menski, Werner [2000]: Comparative Law in a Global Context. London: Platinum Publishing Limited. Words: 1858 RAWA HUSSAIN LLB Yr1 Assignment No. 1 October 2002