a) Outline Chiba's theory of law as presented in 1986 and assess to what extent this theory is relevant for the present course. b) Analyse Chiba (1989) and his 'new' theory of legal pluralism. What is actually new here? How does it relate to your discussion in part a)? 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? Lecturer: Dr. Werner F. Menski
The concept that there is no such thing as one 'Western theory of law' is reinforced further by Masaji Chiba (1986:1), a Japanese law professor, who refers to the dominant, positivist orientation of western law as "traditional, model jurisprudence". This thereby, also underlines his awareness of other Western schools of law. Glenn (2000) similarly indicates that a large number of legal traditions continue to exist in the world. We see that the global study of legal systems, cannot avoid taking many culture-specific, 'extra-legal' factors into account, when analysing the concept of law.
Hence, it is too easy to classify European legal systems as proper 'law'. Firstly, we must realise that there is no 'clear-cut' definition of law, as a general term and as a result many scholars have established theories as to try and define law. However, Menski (2000:56) provides a useful insight into the global definition of law, if we broadly define law as a 'body of rules'. The most dominant model appears to be that 'law' is laid down by the state and applies to all those within the jurisdiction of that state.
However, we must consider those people belonging to particular social groups who adhere to the customs set by society, and those members of religious communities that abide by the laws laid down by God (religion). Despite the evidence that certain state laws have incorporated rules and customs of a religious origin into their system of legal regulations, there are still many lawyers who "emphasise the centrality of law" and have underplayed the role of non-state sources of the law and the potential for the co-existence of legal and non-legal rule systems (Menski, 2000:60).
Allott (1980:2), in his book, 'Limits of Law', tries to provide a 'simple' definition of 'law'; he introduces three ways of interpreting law. The first is 'LAW', which is the 'metaphysical understanding of law', for example, law of gravity. Secondly, there is 'Law', which is defined as a coherent legal system in a particular country, such as English law; and finally, we have 'law', which is a single rule or a norm of a given legal system.
Chiba (1986:v) established a complex way of looking at law, which has proved extremely useful for the deeper analysis of plural legal scenarios and is also very relevant to readings of global law. He acknowledges that Western law is often regarded as universal, since it has been received and utilised by non-Western countries as the basis of their own state legal systems. As a result, it is only natural that jurisprudence, between both Western and non-Western scholars, observes the development of a non-Western legal system as a history of received Western law.
He emphasises the value that people in non-Western countries have for their indigenous law, which has grown to become an "integral part of their cultural heritage". Hence, the reception of foreign laws, from a non-Western perspective, did not merely involve the replacement of one set of rules with another; it also included a "complex process of cultural interactions… " (Menski, 2000:69) Chiba (1986:1-2) particularly challenges the universalist claims of Western model jurisprudence.
He argues that the scholars of non-Western countries, despite cherishing their own jurisprudence and its differences to the Western, they have not attempted to present the achievements of their jurisprudence before the circle of legal science forcibly enough, to cause the proponents of Western jurisprudence to doubt their conviction of its universality "such a negative or passive attitude may be another reason why model jurisprudence has in general disregarded the jurisprudence of other culture".
Menski (1986:71) describes this 'negative or passive attitude' as "purposeful silence among Asian and African scholars". He argues that the 'native scholars' do not see the point in explaining their views on law and cultural perceptions to the Western scholars, as they are likely to be dismissed. Chiba (1986:4) places his own work within the wider framework of social science. "The whole structure of law as an aspect of culture should include all regulations, however apparently different from state law, which the people concerned observe as law in their cultural tradition, including value systems".
This describes the structure of law as plural, consisting of different systems of law interacting with one another "harmoniously or conflictingly". Here Chiba outlines his personal thinking on the nature of law, and introduces his informative model of the three-level structure of law. Chiba's model is not simply a theory, he aims to apply his theoretical concept to a number of national scenarios, including the laws of Egypt, India, Thailand and Japan. He continues to develop a set of working hypotheses for his three-level structure of law and for the interaction process between received law and indigenous law.
It is useful to note at this point, that law is always composed on three levels, for example, Allott's three definitions of 'law', and the concept of the 'body of rules' and its three components, state, religion and society and of course, Chiba's three-level model of law. Chiba (1986:5-6) illustrates the three major elements of his three-level structure of law, which comprises of official law, unofficial law and legal postulates. 'Official law' is defined as the legal system sanctioned by the legitimate authority of a country. This is commonly misinterpreted as purely state law.
However, in many contemporary countries, religious law may be partially included within state law. Other examples can be seen in the laws of marriage, family, land, local organisations, ethnic minorities and so on. An independent authority sanctions each of these official laws of a country first, but each of them must finally be sanctioned by the state. Chiba identifies religious law and people's customary norms as potential components of official law. This pluralistic angle of the composition of state law challenges the assumption that official must be made by the state.
He implies that a state may have to accept bodies of rules from other, non-state sources, which are then formally embodied into the official law, but were not necessarily made by it. Chiba's concept of 'unofficial law' is as diverse as his idea of 'official law'. 'Unofficial law' is defined not just as custom, as we have already seen, some aspects of custom may have already become part of the official law. Chiba (1986:6) defines 'Unofficial law' as the legal system that has not been officially sanctioned by any legitimate authority, but has been sanctioned in practise by the general consensus of a particular group of people.
This general consensus, "may be consciously recognised and expressed in formal rules, or unconsciously observed in particular patterns of behaviour… ". Unofficial law here, is limited to those unofficial practises, which have a distinct influence upon the effectiveness of official law, including state law. We can therefore, say that the effectiveness of the total system depends upon the structure of the unofficial law of the country concerned. Unofficial law is commonly found in societies as customary law, living law, primitive law, and folk law, to name a few.
The third and most crucial element of Chiba's model is 'legal postulates', which he defines as value systems of various types. He views these as bodies of rules or norms, which are neither created by the state or by a social group. They exist in their own right as elements of a specific cultural context, which are specifically connected to a particular official or unofficial law. Chiba (1986:6-7) identifies that a legal postulate may consist of established legal ideas such as natural law, justice, equity, for example, in model jurisprudence.
The legal postulates of a country are required to keep in agreement with one another, to some extent, whether official or unofficial; total agreement is not expected, firstly, because each legal postulate is in support of a system of official or unofficial law, the potential for conflict is high. Secondly, because the legal postulate may tend to upset the framework of it's supported official or unofficial law. The interaction between received law and indigenous law forms a vital element of Chiba's theory of legal pluralism.
Chiba (1986:7) illustrates that "the whole structure of law of a non-Western country, is seen from a cultural point of view, formed in the interaction between received law and indigenous law". Chiba broadly defines 'received law' as the law, which is received by a country from one or more foreign countries and 'indigenous law', as the law originated in the native culture of people. For our study, the most relevant, is the reception of Western state law by non-Western countries in modern times.
This is crucial, as the cultural conflict between received and indigenous law remains prominent, mainly because "the reception process" has not yet been completed. Chiba implies that 'reception' has taken place "formally and systematically in the level of official state law, whether imposed by Western countries or voluntarily accepted by non-Western countries". According to Chiba, it is extremely important to analyse how indigenous laws have developed in their interaction with received laws.