2. INTERACTION BETWEEN RECEIVED LAW AND INDIGENOUS LAW

The relationships pointed out above, harmonious or conflicting, between official law and unofficial law may appear to overlap those between received law and indigenous law, insofar as official law is identified as received law, and unofficial law as indigenous law.

First, the originally received law often tends, as hypothesized in the Introduction, to be converted in a long course of assimilation into law which may reasonably be called indigenous. Islamic law in Egypt and Iran, Chinese law in Japan, and Indian law in Thailand evidence this tendency. Even Western law received in modern times may eventually come to be called indigenous law in the future; the leading lawyers of Sri Lanka are proud of their official law received from Holland and England, calling it, “Roman-Dutch law unique in the world.” The conversion tendency may be particularly remarked in a country which once received one foreign law and later received another. Second, the destiny of modern received law is variable. To emphasize some comparative features: in Iran, it was embodied in wide areas of legislation, but by and large mutilated in reality; in Egypt, it was accommodated to more indigenous laws; in Sri Lanka, it was compounded by the two main origins of Dutch law and English law; in India, it was apparently rejected by a persistent “people's law,” even under the formal supremacy of the English-law-based system; in Thailand, it was purposively codified, admitting some validity of indigenous law and legal postulates; and in Japan, its formal systematization has been distinguishably achieved.

The last point suggests a critical requirement for the accomplishment of our purpose; that is to observe and analyse reception of law within the whole course of historical development of a people's cultural heritage. Assessments of the results of the receptions of law may vary, ranging from most successful to least successful, with many degrees between the two extremes. But the whole process and outcome must be viewed with the total history of the people concerned – a history in which they have endeavoured to preserve their cultural identity in law against other peoples. Here, then, is hypothesized one or more basic legal postulates of a country functioning throughout its history to provide the people with the criteria with which they are enabled to determine, from among many possibilities, what kinds of law they should develop selectively and, especially related to our topic, what foreign law and to what extent it should be received or rejected, in order to preserve their cultural identity in terms of law. Such a postulate or postulates cannot be of a received nature insofar as each group of people concerned has preserved its national identity in history, but must be of an indigenous nature, however it or they may have involved or assimilated received law. The “identity postulate of indigenous law” may thus be an appropriate name for such a postulate or postulates.

The six countries here reported on have kept their legal independence, relying upon their respective legal identities, however their histories may appear to include various difficulties in that endeavour. In each of the countries, a basic legal postulate has been found functioning to maintain minimum integration within the whole structure of law. The question then arises of examining whether or not, or rather of demonstrating that, such a basic legal postulate forms the above suggested identity postulate of indigenous law of each country. Among the many related sub-questions, an especially important one is the nature of the relationships between the two types of basic legal postulates, indigenous and received. Theoretically, it should be possible to differentiate clearly one from the other. In reality, however, they may be inseparably related to each other to give consonant effects upon the whole structure of law of the receiving countries, even while they may be dissonant in various ways. It should then be questioned whether or how resonant effects are realized between the two types of postulates in order to form an identity postulate of indigenous law; this is, of course, a question which is deeply concerned with the relationship between official law and unofficial law.

The hypotheses of interaction between received law and indigenous law as stated in the Introduction are thus found to be basically verified, together with the definitions of received law and indigenous law, in both the broad and narrow senses. The next problem to be explored may be to identify accurately the entire picture of the reception of law in its interaction with the indigenous law of the countries concerned, together with elaborated reformulation of the major tool concepts, received law and indigenous law, and to theorize that picture into a consistent conceptual scheme applicable to other countries, Western as well as non-Western¹¹.