Given that there is no universally agreed definition of the concept of 'law' in our world today, the approach when trying to comprehend and analyse 'law' in different cultural settings is of great significance. If it is accepted that 'law' is inevitably culture-specific to a certain extent, the perspectives from which lawyers attempt to analyse 'law' are similarly influenced by their cultural background, along with their theoretical adherence. In the field of comparative law, it thus becomes of crucial importance to adopt a suitable approach in order to appreciate the diverse nature of different legal systems.
The three major Western theoretical approaches to law which I will discuss in this essay are natural law, the historical school and legal positivism. While these conceptualisations each theorise law independently, it seems evident that relying exclusively on one of them will provide us with too narrow a scope for studying global law. For instance, the positivistic notion that "law is the command of the sovereign" (Austin 1832, in Menski 2000: 102) quite clearly implies a repudiation of the legitimacy of many legal systems.
As a counter-reaction to the positivist approach, Chiba's three-level structure of law might be the theory which best accommodates the needs of a comparative lawyer. Therefore, in this essay, I discuss to what extent Chiba's theory of law is relevant for the study of Asian and African legal systems. In the last part of this essay, considering the influence of different perspectives related to the above theories, I focus on the historical development of Hindu law, and discuss which approaches are required to analyse its genesis and later development.
Chronologically, the theory of natural law precedes the historical school and legal positivism and dates back more than 2,500 years. However, this does not imply that natural law as a theory has been entirely replaced by the two more recent approaches, but rather it has co-existed and evolved over time till the present. Similarly, the awareness of the latter two theories already existed in some form along with the natural law theory, albeit not formulated or adhered to.
Often presented with an underlying Eurocentric bias as being rooted in ancient Greek philosophy, natural law has in fact developed rather independently around the world, not least in ancient India, as discussed later. A dominant characteristic of natural law is the "search of mankind for absolute justice" and thus the "search for an ideal higher than positive law" (Friedman 1947, in Menski 2000: 77). That ideal may be moral or religious, but in all cases it is in a source outside of the actual legal system. Accordingly, in ancient Greece, state law was treated as inferior to natural law.
The universe was envisaged as a "Cosmos or ordered whole, governed by a creative force called by them Nature or God or the Universal Law" (Jones 1956, in Menski 2000: 78), with which people should live in accordance and one of the ideal principles was that of equality (Gierke 1950: xxxvi, in Menski 2000: 84). If natural law is seen essentially as "a way of thinking about law that is not just rule-focused and does not ignore morality" (Friedmann 1947: 61, in Menski 2000: 98), legal positivism can roughly be defined as the diametrically opposite in that it insists on an analytical separation of law from morality (Menski 2000:101-102).
Jeremy Bentham (1748-1832) and his pupil John Austin (1790-1859) founded legal positivism (or the 'analytical school') in England and viewed law as the command of the sovereign (Menski 2000: 102). There are numerous positivist legal theories, many of which have distanced themselves substantially from the command approach, but overall, legal positivism attempts to analyse law outside of its social contexts and settings (Harris 1988: 4, in Menski 2000: 103) and sees law as limited to a tool for social engineering.
It is thus in opposition to the historical school. The historical school, emerging side by side with legal positivism in the 19th century, concentrates on the analysis of law as a social phenomenon and is in essence "a method of studying law in its specific socio-cultural, political and economic context" (Menski 2000: 105-106). This school emphasises the importance of interdisciplinarity in the study of law and focuses on the people and social groups as law making entities rather than just the state.
As I have already indicated, neither of the theories exists in total isolation, but rather the theories coexist in symbiotic awareness, each being defined partly by distinguishing themselves from the others. They all seem insufficient as independent approaches to comparative legal analysis. Relying solely on natural law will lead to difficulties in analysing the practical aspects of a legal system, while a purely analytic positivist analysis of law provides a scope more or less limited to the instrumental nature of law.
Moreover, relying on a narrow positivist approach one would come to the conclusion that law is not a global phenomenon, as not all human societies have highly formalised laws that are laid down for them by a state (Menski 2000: 53). Although an 'extreme' historical approach might "fragment law-making processes by insisting on the superiority of small-scale entities" (Menski 2000: 107), and as a consequence lead to questions about the viability of national and global law (id.
), the historical school is seemingly the most nuanced and useful approach for studying indigenous legal systems of Asia and Africa, where the state is often not the sole lawmaking force. Amongst contemporaries who adhere to the historical school is Chiba (1986), who in the course of studying Asian indigenous law disqualified legal positivism (or 'model jurisprudence') as an approach and embarked upon developing a working hypothesis complex enough to be applicable to other legal systems than those of the West.
Chiba was in particular interested in the interaction between Asian indigenous laws and received Western laws, and his theory has proved useful for analysing pluralistic legal scenarios (Menski 2000: 68). Chiba's efforts were materialised in the 'three-level structure of law' (Chiba 1986: 5). Chiba's model is based on the view that the whole structure of law is composed of three levels: official law, unofficial law, and legal postulates. This three-level structure is not a static rigid model that can be neatly fixed in three sealed boxes, but is to a certain extend dynamic, as each level is a complex composition of interacting components.
Each level is, moreover, subject to interaction with the other levels. Official law is defined as the "legal system sanctioned by the legitimate authority of a country" (Chiba 1986: 5, in Menski 2000: 72). Not merely representing state law as would normally be the case, Chiba also includes into this level religious laws and potentially various aspects of customary laws and laws of land, farming, local organisations and ethnic minorities, insofar as they in one form or another are officially sanctioned by state law. Chiba's concept of 'official law' is thus in itself a plural phenomenon.
Unofficial law is "the legal system not officially sanctioned by any legitimate authority, but sanctioned in practice by the general consensus of a certain circle of people" (Ibid. : 6, in Menski 2000: 73). Chiba limits unofficial law to those unofficial practices supported by the general consensus (defined as formal rules or patterns of behaviour) that influence the effectiveness of official law. A legal postulate is a "value principle or value system specifically connected with a particular official or unofficial law, which acts to found, justify and orient the latter" (Ibid.
: 6, in Menski 2000: 74). The value system, as Chiba defines it, consists of rules or norms created by forces outside of the state and social groups, dependent on the respective cultural context. For example, in model jurisprudence it may consist of established legal ideas such as natural law, justice and equity while it can take the form of sacred truths and precepts deriving from various gods in religious law. Although Chiba, as stated earlier, conceptually belongs to the historical school, his theory also incorporates legal positivism and natural law.
Hence, legal positivism can be seen as part of official law, and natural law as part of legal postulates. Chiba's model is complex and comprehensive, allowing it to be made applicable to legal systems that normally, according to model jurisprudence, may not even be defined as 'proper' legal systems. Furthermore, it is especially relevant for analysing Asian and African legal systems, as many of these systems operate with co-existing received and indigenous laws.
Chiba, through his levels of 'unofficial law' and 'legal postulates', stresses the importance of the influence of socio-cultural forces on a legal system and thus examines the roots and initiatives behind the official law. He opens the analysis up for interdisciplinarity, as many of the aspects in unofficial law and legal postulates are only approachable if equipping oneself with anthropological and sociological methods. Hindu law is a good example of why Chiba's theory is relevant.