Methodology and legal theory

"Law is a plural phenomenon, so we require a plurality conscious-legal methodology and legal theory to analyse all of its dimensions" There is "no universally agreed definition of law itself" (Menski, 2000:52), instead the word 'law' is used to refer to various concepts ranging from state law to custom law; it also includes the realm of morality, religion and society. Law reflects different values in different cultures, this shows precisely the reason for adopting a plurality- conscious legal method when analysing law as a plural phenomenon.

There are various theories which attempt to address the characteristics of 'law'; the three major approaches include natural law theories, positivist theories of law and the historical school of law. Natural Law theory explains law as a phenomenon which is rooted in 'higher law' that is beyond mankind. This perspective links law with religion, as well as with principles of morality. Natural Law is based on 'value judgements' which derive from some absolute source and these judgements coincide with nature and reason, the 'value judgements' establish the principles of behaviour for every individual.

One of the key features of Natural Law theory is it takes the view that law is a fundamental requirement of human life, this is because law is a device which promotes 'goodness'. Law provides a guide for those working towards the 'common good' and also guides those individuals who may deviate from morality. During the medieval period St. Thomas Aquinas divided law into four categories; eternal, natural, divine and human. Aquinas captured the various aspects of law, including higher order and the individual.

Harris (1980:7) states that Natural Law is both "universal and immutable", in that such ideas are everywhere in the world. The 18th and 19th centuries saw the decline in Natural Law theory due to Enlightenment thinkers such as Montesquieu, Bentham and Austin who preferred positivism. Positivist theories of law regard the law as the central feature, and believe a "proper description of law is a worthy objective" (Bix 1996:35). Therefore, the question of 'what is law? ' is essentially a question of fact, and can be answered through science.

Although there are many positivist thinkers with differing ideas, there are three fundamental beliefs in positivism. Firstly, law is a fact and should only be identified in a concrete form, such as case law and statute law. Secondly, law is a set of rules made by a ruler, so is made by a political authority, implying law is made by the state, which is supported by Austin "law is the command of the sovereign". Thirdly, law should not depend on morality, because there is no connection between law and morals.

Legal positivism adopts the view that "law is simply law because it is seen to be law" (Menski 2000:101). The positivist school of thought heavily criticise Natural Law particularly the relationship between law and morality, principally because positivists believe the law and morality are distinct from each other; therefore one should not determine the other. Thus laws can be valid because they are legitimate regardless of how the law affects people's moral sensibilities.

In addition, morality is a subjective judgement, which changes in varying circumstances and so morality cannot be a basis for law, because it lacks certainty and predictability. The belief of 'higher law' is opposed by positivists because it is not an observable fact. On the other hand, the major flaw in legal positivism is that it proposes every legal system has certain universal values and so disregards culture, which could partly explain the reason why certain legal problems arise, particularly in Western law systems in relation to ethnic minorities (Menski 2000:101).

Alternatively, the historical school of law seeks to study the law in specific socio-cultural, political and economic context, as stated by Menski (2000:106). The historical approach perceives law as a set of rules that have developed over time in a social and historical context, thus law is a set of rules for a social entity. This is supported by Carl von Savigny, whereby he stated that any type of legislated law should always consider "popular consciousness". This approach is very much linked to sociological approaches, whereby the emphasis is on society.

Nevertheless, earlier thoughts from the historical school tend to be prejudice and Eurocentric as expressed by Evolutionism, which takes the stance that primitive societies have no law, because they are not civilised. The three major approaches demonstrate the various methods that have been adopted in order to analyse law as a plural phenomenon, but each approach is flawed in that they do not recognise law as a cross-cultural phenomenon. 'Menski's Triangle' accommodates the three approaches, by doing so it also highlights that an ideal equilibrium is only reached through legal pluralism.

Thus, the study of law requires a globally conscious perspective, because law within a global framework needs to analyse the various political, social, historical and religious contexts. Masaji Chiba takes a more global perspective in viewing law as a social phenomenon which is "inseparably rooted in society" (Chiba 1986:1), as opposed to the legal centralist view. Chiba rejects the approach that 'law' is simply 'law' because the state says so. He strongly criticises Western jurisprudence for claiming universality.

Although non-Western countries adopt Western legal systems, it does not represent universalism because those legal systems could have been imposed or involuntary, consequently indigenous law is eradicated. Chiba suggests that non-Western patterns of law need to be researched in their own context and perspective. Law therefore should be studied through sociological methods, whereby culture and the structure of society are taken into consideration. This is in accordance with the historical and sociological school of thought, which emphasises the social dimension of law and highlights the close relationship between legal and social rules.

By taking a sociological perspective, Chiba challenges the universal claims of Western model jurisprudence on the grounds that it is based on Western culture and the Christian view of man and society. Chiba believes that Western legal analysis overlooks socio-cultural factors and specific experiences, resulting in a legocentric and positivistic perspective. Chiba proposes the Tripartite Model of Law, which is a pluralistic approach to law, consisting of different systems of law that interact with each other, either harmoniously or conflicting.

'Official Law' refers to the legal systems which are permitted by the legitimate authority of the country, for instance state made law is regarded as official law, but, religious law can also be included. As Chiba takes a pluralising perspective, he suggests religious law and customary law can be seen as potential elements of official law. 'Unofficial Law' refers to the legal systems that are not permitted by the legitimate authority, but is practiced by a large number of people/groups. Unofficial law can at times be formal rules and non-formal rules.

'Legal Postulates' are value systems of different types; they are rules or norms which are not created by the state or a social group, but are elements in their own right and are culture-specific. Legal postulates may include sacred truths, concepts of justice, political ideologies etc. The relationship between official and unofficial law is fluid because society allows for both to operate simultaneously. Legal postulates are fundamental since they form the basis of official and unofficial law.

In addition to the Tripartite Model of Law, Chiba discusses native law and reception of foreign law. 'Indigenous Law' is law that originated from the native culture of the people. On the other hand, 'Received Law' is any form of law that is received by a country from another foreign country. Reception of laws can take places in many forms; it could be voluntarily or non-voluntarily received, or the process could gradual or rapid. Chiba focuses on the reception of Western law by non-Western countries, which can lead to cultural conflict.

He emphasises the fact that people in non-Western countries have "cherished their indigenous laws as an integral part" of their culture. The receiving of foreign laws, whether voluntary or not, has either led to peaceful assimilation or has led to conflicts between native and foreign law, this varies from country to country. As a result, sometimes indigenous law does not survive, and other times foreign law is rejected to preserve cultural identity. Thus, it is a process of adaptation or conflict, with legal postulates playing a vital role (Menski 2000:75).

Chiba's theory is relevant when analysing legal theory because Chiba offers a pluralistic global model of law, whereby taking into account the whole rule system, rather than focusing on official or state made law. Chiba divides the legal field and shows the intricacies of legal systems and challenges Western model jurisprudence. By viewing the law as a social phenomenon, Chiba provides a broader legal method by which law as a global phenomenon can be analysed. In addition, Chiba highlights cultural specificity, whereby each culture has its own experiences and traditions, therefore law needs to be studied in context, not from a Western model.