Major Theories of Law
This assignment will attempt to address the issue as to whether or not any of the traditional approaches to the study of law can adequately explain laws plural and global dimension. To explain this consideration will be given to the three major theories of the law and then Chiba’s theory will be considered in detail. Finally reference will be made to Hindu Law in order to demonstrate the applicability or otherwise of a single theory of law. It will be concluded that no single legal theory can adequately explain the global phenomena of law or indeed its plurality.
(a) How the Major Theories Contribute to the Study of Law
Legal Positivism and Natural law both make attempts to recognise the plurality in law but both take very different approaches and therefore it is argued that these views can not be considered in isolation. It is useful to begin with the natural laws approach.
Twining (2000: 61) depicts classical natural law as ‘a tradition which has claimed universality for its principles and which significantly antedates the rise of the nation-state’. Natural law does contribute to the understanding of legal pluralism and the globalization of law, however from a European perspective, by the 18th century; natural law had become explicitly Christianised and was unashamed about claiming global validity. The key issue for natural law theories of any description is ‘not whether law can be morally evaluated but whether its essential character must be explained in moral terms’ (Cotterrell, 2003: 119), and therefore many writers have taken the view that natural law ideas lack any convincing theoretical justification. Such
Positivism on the other hand seeks to separate law and morality. Positivist activities today can be identified by two central tenets (Freeman, 2001: 334): ‘the so-called “social thesis” (what counts as law in a given society is a matter of social fact); and the “separability thesis” (there is no necessary connection between law and morality)’.
This approach does not recommend itself as a useful tool for understanding law and ‘remains essentially an idealist search for absolute truth in the realm of values’ (Freeman, 2001: 215). Therefore this approach is not sufficient to explain law as a global phenomenon.
As is suggested no one theory can in isolation explain succinctly legal pluralism and its global element. Twining (2000: 24-5) considers the need to develop ‘a sophisticated conceptual apparatus’ for developing a legal theory that can respond adequately to the challenges of globalisation (p. 36). This becomes difficult when one considers that there is no agreement on the definition of law, let alone the pluralism of law. The usefulness of trying to define ‘law’ has been questioned by many writers (Lloyd, 1991: 11).
There are disagreements about how to theorise and apply ‘law’. Law’s constant demand for clearly defined categories has led to what Cowan et al. (2001: 10-11) call “the essentialising proclivities of law”. The discipline as a whole stands accused of misusing social categories and identities, claiming superior universal status for legal rules (p. 6) and ‘law’ itself has been essentialised in a reductionist manner (Griffiths, 2002: 293). In common parlance, the word ‘law’ itself immediately sets off all kinds of assumptions: “The mere word ‘law’ has an honorific ring” (Harris, 1980: 128).
Most writers actually accept the plurality and interlinkedness of law ‘it seems not improbable that the idea of law which will prevail among lawyers in the near future will be one which emphasizes not so much the self-contained character of law, but rather its function as an instrument of social cohesion and social progress’. (Lloyd 1991: 334, originally published in 1964) However, this said it does not seem that one single theory of law could sufficiently explain the plurality and interlinkedness that exists in law
(B) Chiba’s Theories of Law
Chiba (1989: 1-2) view of Legal Pluralism is that it is a phenomenon which is increasingly well-recognised, and he states that ‘[t]he conception of legal pluralism emerged when other systems of law were found working in reality together with the “law”, whether in harmony or in conflict, typically in non-Western society and in Western society as well’.
Chiba’s model of the legal system is a tripartite model with ‘official law’ ‘unofficial laws’ and ‘legal postulates’. Chiba’s theory supposes that none of these elements ever exists in isolation; they continuously interact in dynamic fashion. Therefore in Chiba’s view law is always plural. Chiba (1986: 1-9)
Chiba’s concept of “official law” shows that state-sponsored legal rules form only one of the possible components of an official law, Chiba introduces religious law and people’s customary norms as actual or potential elements of official law. This pluralising perspective on the composition of state law challenges and actually destroys the assumption that all official laws are made by the state. Chiba indicates instead that a state may have to accept (and in that sense receive) bodies or elements of rules from other, non-state sources, which may then be formally incorporated into the official law, but were not made or created by it. Indicating that such rules also interact with each other, and are likely to conflict, Chiba prepares his later discussion about interaction patterns between competing legal elements. This most important finding brings out the internally plural nature even of ‘official law’.
Chiba’s concept of ‘unofficial law’ is also diverse and he considers that ‘Unofficial law’ is not just custom, as much of custom has already become part of the official law. The third element of Chiba’s law is ‘legal postulates’, or value systems of various types. He views these less as bodies of rules, but rather as norms or values, which are neither created by the state nor by a social group. These “legal postulates” simply exist in their own right as elements of a specific cultural context, intimately connected to official law and unofficial law.
Chiba’s theory supposes interaction between received law and indigenous law and this is an essential concept in his theory of legal pluralism. Focusing first on the element of received law, Chiba (1986: 7) emphasises that ‘[t]he 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 (1986: 7)
‘Indigenous law’ is ‘law originated in the native culture of a people’ and ‘It may thus be defined as law existing indigenously in the native culture of a people prior to the reception of Western state law in modern times, although it may include some assimilated law which was originally received in earlier times’ (p. 8).
Chiba’s analysis of legal pluralism introduces the ‘three dichotomies of law’, building on the earlier ‘three-level structure of law’ (Chiba, 1986). The three dichotomies are:
- Official law vs. unofficial law
- Legal rules vs. legal postulates
- Indigenous law vs. transplanted law
The first dichotomy (Chiba, 1989: 177-8) reiterates the crucial distinction of different types of official law, basically state-made and state-acknowledged, interacting with different unofficial laws. It is evident that Chiba still does not say enough about the fact that state law is itself a social fact. The second dichotomy (Chiba, 1989: 178) focuses on the contrast and interaction between positive rules and postulative values, indicating that ‘legal postulates are by and large difficult to isolate’ but ‘have the potential of reactivating outdated legal rules or even creating new legal rules to embody themselves’. The third dichotomy (pp. 178-9) emphasises the complex interaction of these two major elements, which are themselves hybrid amalgams of different indigenous and transplanted elements.
(C) The Development of Traditional Hindu Law
It should be made clear from the outset that Hindu law is not the same as Indian law, although modern Hindu law in India also governs the Sikhs, Jainas and Buddhists.
In Hindu law, two major elements of continuity and pluralisation have been visible, both socio-cultural factors rather than legal elements. Traditional Hindu law has never taken the stance that human conduct can be totally regulated by external force or state-made laws. There has been from the start an anti-legal attitude inherent in the system and therefore the ideal of human self-controlled order within a higher, cosmic superstructure is placed in the centre of Hindu law as an early global vision.
On independence India inherited an extremely complex legal system characterised by remarkable plurality of laws. This law then had to be restructured to become a coherent set of rules. This restructured plurality included the system of traditional personal laws, with Hindu law as the majority personal law, but also Muslim, Christian, Parsi and Jewish laws as well as an optional secular family law. Buddhists, Jainas and Sikhs are now governed by the codified modern Hindu law.
A positivist summary of the main sources of official modern Hindu law would find that these are now legislation and precedent, and only to a very limited extent custom and the traditional textual provisions. But a deeper, plurality-conscious analysis of modern Indian law suggests a different hierarchy of norms in working out the ‘living law’ (Ehrlich, 1936). Furthermore Hindu natural law is still in evidence through the values and ethics permeating society.
The politician-lawmakers of modern India, as well as many judges, appeal more openly to the duty-consciousness of modern Indians at several levels at once. They are asking for greater moral integrity, dharma-sensitivity as well as obedience to the rules of modern state law. The new hybrid Indian legal system, like the old model, is manifestly still to some extent built on idealised cultural elements of legal relevance, rather than just positivist legal rules.
Indian legal realism, has managed to cultivate the customary plurality of Hindu family law, but by listening to ‘tradition’ it has not given up on reformist agenda. Its agenda are more focused on socio-economic aims than on intellectual dogmatisms. Indian law, as a matter of self-preservation in terms of retaining legitimacy, is desperately searching for practical justice and appropriateness, not for an ideal ideology. In the field of Indian family laws as a whole, this has become a little clearer in the past few years.
The universalistic foundations of India’s composite cultural traditions, dominated to a large extent but not exclusively by Hindu models (which are themselves internally hybrid), thus provide one culture-specific global model for sustainable legal development in the future.
Conclusion
It has been demonstrated through Chiba’s and other major theories that law’s plurality and global element can not be adequately expressed by one single theory. However Chiba’s attempt is admirable. Chiba recognises that there is interaction between received law and indigenous law and this is an essential concept in his theory of legal pluralism. Such a theory can be applied to the current state of Hindu Law and provides an adequate outline of the concept. Although as is suggested no one theory can in isolation explain succinctly legal pluralism and its global element. Postmodern challenges to understanding ‘law’ complicate the picture but also suggest constructively that deeper awareness of interlegality helps to understand how ‘law’ functions in a pluralistic global context. Law, from this perspective, is no longer neatly packed in tool boxes for easy transportation, application and consumption. Recent scholarship suggests that whole tranches of academic discourse about the relationship of ‘law’ and ‘society’ (Cotterrell, 2002), ‘rights versus culture’ (Cowan et al., 2001) and ‘universalism versus relativism’ (Renteln, 1990) are built on flawed premises.Twining (2000: 24-5) considers the need to develop ‘a sophisticated conceptual apparatus’ for developing a legal theory that can respond adequately to the challenges of globalisation (p. 36), such a concept, could never exist as theories of the law are subjective and will never reflect the legal reality as has been demonstrated one country’s legal reality is very different from another’s.Bibliography
- Chiba, Masaji (ed.). 1986. Asian indigenous law in interaction with received law. London and New York: KPI.
- Chiba, Masaji. 1989. Legal pluralism: Towards a general theory through Japanese legal culture. Tokyo: Tokai University Press.
- Cotterrell, Roger. 2003. The politics of jurisprudence. A critical introduction to legal philosophy. 2nd editionn London: Lexis Nexis.
- Ehrlich, Eugen. 1936. Fundamental principles of sociology of law. Cambridge, MA:
Harvard University Press. - Twining, William. 2000. Globalisation & legal theory. London: Butterworths.
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