2. INTERACTION BETWEEN RECEIVED LAW AND INDIGENOUS LAW
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.
Received law is, in a broad sense, that law which is received by a country from one or more foreign countries.
Reception may take place in a variety of forms or processes; for instance, partially or wholly, systematically or unsystematically, formally or substantially, rapidly or gradually, voluntarily or involuntarily, in one or more of the three levels, exclusively between Western or non-Western countries, or, finally, between Western and non-Western countries. Most crucial for our purposes, however, is the reception of Western state law by non-Western countries in modern times, which we might consider as the narrower sense of “reception of law”. It is crucial because it is the one in which the cultural conflict between received law and indigenous law is most conspicuous, and because the reception process, in the truest meaning, has not yet been completed. The modern reception has taken place rather formally and systematically in the level of official state law, whether imposed by Western countries or voluntarily accepted by non-Western countries, and some might see the reception as completed by the formal enforcement of received law. But in the actual process of the history of the receiving countries, it is only the beginning of their struggles to assimilate the foreign systems of law of different cultures with their own indigenous law. Notable is the fact that in this struggle process the foreign law originally received can be more or less assimilated with existing indigenous law so that it may assume a character of indigenous law, while it may still be discriminated as a different system of law.Indigenous law6 is, in a broad sense, law originated in the native culture of a people.
But in consideration of the general trend of cultural diffusion in human society, it would be next to impossible to find purely indigenous law in contemporary society. The available concept of indigenous law should be limited by relative features useful for our purpose, that is, meaningful in dichotomy against received law, especially in its narrower sense. 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. Whether and how indigenous law has developed in the struggles with received law in this process of reception is the most urgent problem to be here explored, as evidenced by the insistence of some scholars upon adopting the concept of “imposition” in place of “reception” (Burman & Harrell-Bond, 1979).The actual interaction between received law and indigenous law differs widely from country to country. Generally speaking of the reception in a narrower sense, state law is framed after Western models in its formal structure, adopting into its substantial contents various rights, duties, and legal institutions and procedures originated in Western law. However, it has also adopted various indigenous laws such as those relating to marriage, family, status, land, etc. into its formal structure, and furthermore, some indigenous institutions and procedures by reformulating their essence in accordance with that formal structure. But interaction is not limited to such a static structure. It takes place rather in a dynamic process of mutual influences between both types of law, whether through institutional revisions at a long range, or through individual authoritative judgements and peoples’ behaviour at a short range. It is a process of accommodation or conflict, with legal postulates for both types of law playing an important role as they ideationally encourage the peoples concerned to protect or reformulate the law they support against rivalling law. Official law other than state law may originate in indigenous law or in received law as in the case of established religious law, though generally assimilated as if indigenous. Unofficial law is mostly occupied with indigenous law, except in cases where new reformative ideas of rights, such as environmental or consumers’ rights, or legal institutions such as socialist ones in capitalistic countries, come to have certain effective influence as unofficial law. And finally, legal postulates constantly accompany all forms and cases of official and unofficial law, both received and indigenous.
Such are our initial working hypotheses: a frame of reference, against which the data in the following chapters should be considered and, where possible, verified.