1. INDIGENOUS LEGAL POSTULATES FUNCTIONING IN SOCIETY
Some social norms are seen as indigenous unofficial law because of their actual influences upon the state law as described above, but still another indigenous factor is found which can exert similar influences upon the state law.
Behaviour in accordance with this factor may not necessarily be established in society so tangibly as to be defined as “customarily sanctioned by a certain circle of people in popular conceptions and actual behaviour patterns,” but it is approved and supported by a circle of people for its ideal or ideological embodiment of, or dependence on, any specific principle, value, ideal or authority so firmly established as to influence application of social norms and legal rules. Such specific principles, values, ideals or authorities are called here indigenous legal postulates, as far as they are significant to the validity and effectiveness of both the official state law and unofficial laws. They function to justify any official or unofficial law in idea or ideology and, at the same time, to disqualify other official or unofficial laws opposing them.63It may be desirable first to define more clearly the concept of the indigenous legal postulate sufficiently for it is to be applied as an analytical tool; but this is difficult at present for lack of necessary data. Furthermore, what is required is not to delineate the concept hastily or too rigidly but rather to maintain it as broadly as possible, so as to collect the important materials which are to differentiate the Japanese situation of law from Western and non-Western varieties. M. B. Hooker recently concluded convincingly:
“The texts discussed in this brief survey... show the variety of reference which the term law’ bears in South-East Asian cultures, but despite this variety the texts as a group have a number of features in common.
First, they all describe both a social system and an ideal moral or ethical order conceived as a unitary whole. Second, the foundation of these orders is not the principle of legality but rather the implementation of an ethical order. Third, all texts omit a number of areas of legal obligation in whole or in part.” (1978: 108)In other words, “the concept of law that the texts present is a regulation of human behaviour that is a part of the nature of things” (ibid.: 98) and therefore implies moral or ethical postulates, whether called principles, values, ideals, authorities, or any other. However it might seem, the concept of an indigenous legal postulate is operationally useful to collect related materials in Japan, to acquire detailed facts, and to elaborate a more precise view of it.
To undertake a difficult task, it seems useful to differentiate between the two ideal types of the postulates. The first includes those with a particular applicability to any specific indigenous law, being thus inferrable from the observed practices. The other type has a wider, more general applicability to different indigenous laws as well as to other social norms. The former may be called the “specific indigenous legal postulate,” while the latter the “diffuse indigenous postulates.”64