Merely ideas on law

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.