Defining the word 'law' is an extremely complex and almost impossible task to accomplish. Therefore, it's very important to try to determine the relevant factors that in essence shape the law in order to make the law more plausible and abided by all. An automatic and general definition of law is described as a set of rules enforced by the government. Chiba combined this definition with Ehrlich (1936: 486-506) who established the concept of "living law" to determine that law is enforced and made by society and with Weber (1967: 233) who outlined that law is outlined by religious ethics.
Thus, Chiba concluded 'the three-level structure of law' or otherwise known as the tripartite, to emphasise that the whole structure of law is pluralistic, consisting of different systems of law interacting with one another whether in harmony or in conflicts. The three levels include official law, unofficial law and legal postulates. Chiba defined official law as the "legal system sanctioned by the legitimate authority of a country". This is typically understood to be state law.
This implies that official law carries the overall jurisdiction over the whole country. It is still important to remember that even official law may be influenced by the norms of the country as a whole including principles that are supported by religious law, family law, local law, ethnic law and so forth so long as they are officially sanctioned by the state. Unofficial law is law that is not sanctioned by the state but rather by a circle of people "whether of a country or within or beyond it".
Basically, all types of law other than state law are classified under unofficial law. Unofficial law can also have an influence on official law but this can produce negative or positive results such as the conflicting role of Hindu law within the state law of a Western country. Finally, Chiba defines a legal postulate as "a value principle or value system specifically connected with a particular official or unofficial law". A legal postulate may include legal ideas of justice, equity and natural law.
Overall, it's clear to see that Chiba believed that the law consisted of many aspects under the legocentricism of state, religion and society (Menski 2000: 35). Chiba's theory is relevant for our understanding of the legal systems of Asia and Africa as we can then distinguish that the legal systems are made up from official law, which are influenced from unofficial law and are connected through legal postulates. This enforces our understanding that it is not only the state, which makes the law, but the people of the country, their traditions and religions also make the law without them realising it.
There's an underlying principle of morality that is connected to upbringing and religion which consequently builds the law to make the law what it is today within every legal system even though some factors may override others. b) Analyse Chiba (1989) and his 'new' theory of legal pluralism. What actually is new here? How does it relate to your discussion in part a)? Griffiths (1986a: 38) highlights that "legal pluralism is a concomitant of social pluralism: the legal organisation of society is congruent with its social organisation".
Legal pluralism has been a concept that has been around for a considerable length of time. It involves social and cultural diversity that are entailed in the figuring of law. Chiba's 1989 theory is referred to the 'three dichotomies of law', which includes what Chiba calls the 'identity postulate of indigenous law'. Each of his dichotomies are concerned with contrasting terms of law in order to identify the relationship between them. The first dichotomy is official law vs. unofficial law, which are defined above.
This dichotomy relates to the different manners of legal authorisation. The distinguishing relationship between official law and unofficial law is that the different types of unofficial law function automatically in a systematic arrangement but may cause conflicts and this is where the different types of official law are needed to resolve the conflicts in order to establish a balanced society and to regulate a system where the state law provides the legal principles that are influences by unofficial law.
The second dichotomy is the contrast of legal rules vs. legal postulates. Legal rules are the "formalised verbal expressions of particular legal regulations" in order to be able to assign specific patterns of behaviour or the required patterns of behaviour, such as the Dharma in Hindu law. Legal postulates are values and ideas that are specifically related to a particular law, which are used to modify the existing legal rules. The relationship within this dichotomy is that both legal rules and legal postulates interact to coexist as a rule.
The third dichotomy is the contrast between indigenous law and transplanted law. Indigenous law is law that originated in the local culture of people. Transplanted law is defined as state law that is transferred by people from a foreign culture. This relates to the different origins of law in human society, for example, between the people of Western countries and non- Western countries. This third dichotomy is what is actually new in Chiba's legal pluralism theory.
This third dichotomy is an important extension to what was discussed in section a) above as it informs us that law is not necessarily something that is just made through the state and religion etc but it is also something that can be transferred to other countries whether it be state law or local law. This model further reinstates the point I made at the beginning of this assignment, that law is such a complex mechanism so it can be virtually impossible to define into a simple sentence. Chiba's theory thus helps us in understanding the foundation and body of law as a whole, that law is composed of official law vs.
unofficial law, legal rules vs. legal postulates, and indigenous law vs. transplanted law. The combination of these three dichotomies into a legal culture becomes a useful analytical tool for observing the structure of the law belonging to a group of people, to individuals or to the universe as a whole. Surely, if we were to disentangle the web of law, we might or could end up with laws that universally belong to us all. In essence, Chiba's new theory ultimately boils down to the most important three principles of the structure of law: state, religion and society, which influence one another and interact in the shaping of the law.
c) In the light of a) and b) above, and your reading of comparative jurisprudence, what sense do you make of the term 'ethno-jurisprudence' in relation to Hindu law? In your view, can Chiba's new theory be applied anywhere in the world? Literature is the true reflection of the culture of any religion. It treasures all the knowledge and history and delivers it from generation to generation. This great heritage cannot be reserved without reserving the language. Therefore, the learning of ethno-jurisprudence is very important for people so that they understand and enjoy the great literature we have.