I. Main Implications of Each Report
The report from Egypt, a typical Sunni-Islamic country, by El Sayed Yassin presents a representative process of the transformation of the whole structure of law of the non-Western country which received Western law in modern times in the development of its own indigenous law.
Egypt had established in ancient times her own official law based on the Pharaonic principles with some influence from Roman law. Unofficial law must also have prevailed in the form of custom though its differentiation from official law may have been obscure. A drastic change took place when Egypt first received Islamic law as a result of the “Islamic conquest” of the country. The reception of Islamic law was so far-reaching that it totally replaced the former official law, and the received law became assimilated to such an extent that it may itself now be called indigenous law. At the same time, however, various traditional non-Islamic customs were so deeprooted as to have survived the dominant official jurisdiction of Islamic law, some of them even having been incorporated into the official law while others continued as unofficial law outside of the official domain. The whole structure of Egyptian law from that time was a process of developing interaction between the assimilated official Islamic law and the continuing unofficial indigenous laws. The second major change began with the proposal of Napoleon to apply his Napoleonic code to Egypt. While the proposal was not successful as such, the reception of French law went on rapidly in various fields of law. Seen from a formal point of view, contemporary Egyptian law might be said to form a representative example of a received system. From the substantial point of view, however, the official law, to say nothing of the unofficial law, includes, especially as to personal status, various religious laws and traditional customs, that is, indigenous law in the broader or narrower sense. Based on the descriptions of the author, the whole structure of contemporary Egyptian law cannot be viewed as a simple received system, but rather as a complex of integration, conflict, and interaction between indigenous law and received law at both official and unofficial levels. While the author does not mention which law is dominant, his characterization of Islamic law as “ever-changing” strongly suggests that the reception of Western law has not resulted in the latter's conquest of Egypt, as implied by Jhering,2 but rather in a function of “everlasting” Islamic law – in other words, a transformation of Egyptian law itself.The historical development of law in Iran, the only Shiah-Islamic country, seems to have been by and large similar to the Egyptian process. Iranian received official law was first established when Shiah Islam won domination over the country, perhaps either reclassifying the existing official law into unofficial law or simple custom, or adopting some of it as well as other customs into the official Islamic law. Long since that time, the everlasting nature of Islamic law has kept its dominance persistently, even with all the formal reception of Western law for the purpose of modernizing the country. In this sense, the process is similar to the Egyptian. On the other hand, there are some evident contrasts between the histories of Iranian law and Egyptian law found in the descriptions of each of the authors.
First, judging from the descriptions, contemporary official law in Iran appears to have incorporated various factors of indigenous Islamic law into its system in both civil and criminal law though with some minor differences, while that in Egypt has incorporated mainly factors of personal status. Second, the initiative in such an apparently active reception of Western law seems in Iran to have been always displayed by political leaders in a “top-down” way – major political decisions and constitutional principles first being declared, and supporting statutes then being legislated.
Third, and perhaps most remarkable, legislative and administrative tactics were devised in the Iranian process of Western-oriented legislation in order to mitigate, compromise, or rather evade contradicting requirements of Western law as evidenced by “experimental legislation” or “evasive practices” which, in fact, are to undermine the modern constitutional principles of received Western law. Finally, the resistance of the Iranian traditionalists, led by ulamas, to the policy of reception of Western law has been so severe and effective as to make the author complain of the failed policy of the reception, as the received law was no more than a superfluous copy without the intended revolutionary development of the whole structure of Iranian law.The above contrasts between Iran and Egypt might be not entirely valid, as the descriptions on which they rely are written from the different viewpoints and concerns of each of the authors.3Still, it would be reasonable to conclude that the reception of Western law in Iran has met with considerably more conflict from the rejecting Islamic law than has been the case in Egypt, where integration has been emphasized, even if partially. It would be interesting to explore to what extent the differences in religion, Shiah and Sunni, have affected the differing results in the reception of law.
The first two reports from Islamic countries are made from the perspective of pursuing the transformation of Islamic law, which had long been the exclusive official law through periods of reception of modern Western law, with lesser emphasis on unofficial laws and underlying legal postulates coexisting inter-actingly, conflictingly or indifferently. The next two reports from countries of Indian culture are made, in contrast, with greater emphasis on legal postulates or unofficial law functioning to support or oppose official law.
Neelan Tiruchelvam presents a report from Sri Lanka, a multi-religious country with an intricate history in reception of law.4Generally speaking, every legal institution is supported by one or more ideologies in the author's term, which include legal postulates in the editor's term, and cannot therefore be free from more or less criticism from opposing ideologies.
Such an institution was the Sri Lankan Conciliation Board, which worked for no more than 20 years after its institutionalization in 1953. It was devised for the benefit of the general public unfamiliar with official legal procedure, as a special measure to improve the lagging administration of justice soon after the independence of the country. At its institutionalization, reference was made to three existing models: the revived people's council in India, the created people's court in communist countries, and the traditional village council in Sinhalese society. The discussion of the author is focused on disclosure of the ideologies maintained by the advocators of the three models. Several facts are particularly noticeable in the author's description. First, the Conciliation Board had to take difficult steps during its lifetime which were far from the rose-coloured efficiency visualized at its birth. Second, the Board was finally suspended in 1973, after twenty years of such difficult steps, when all of its members were discharged and no successors were appointed. Third, the difficulty was apparently caused in the main by the persistent opposition of lawyers to the deprofessionalized nature of the Board. Finally, curious but true, the official law which institutionalized the Board remains valid even though the Board is suspended in practice. These facts must be related in a complex way to various social, economic and political backgrounds. It is in consideration of these backgrounds that a problem is specifically raised in terms of our purpose. That is how the unusual destiny of the Conciliation Board is relevant to the basic attitudes of Sri Lankan people toward official law and institutions, as a complex reflection of the different consciousness of law, received or indigenous, official or unofficial.The report by Upendra Baxi aims mainly to disclose the contemporary state of “people's law” in India, the typical Hindu country, which has been one of the important subjects of his recent studies. He begins his discussion with an examination of the profound concept of Dharma, which has formed the basic indigenous legal postulate for the Hindu society to give unity to the whole range of working customs and written law in a higher level.
According to the author, such a unifying postulate is required, considering the plurality of Indian law, constituted as it is of people's law and state law or, more exactly, a multi-legal structure including both various group regulatory systems and Anglo-Hindu high-culture law. People's law, that is unofficial law in our terminology, is best represented by the regulations of Panchayat, which has been practised among people in Hindu society and which has been adopted into the official legal system since World War II. The whole structure of Indian law, which had kept its totality through the unification of Dharma although it included various types of law of both official and unofficial character, underwent a remarkable metamorphosis when it received English law in modern times. While some rare parts of it have remained without influence from the reception, others have fully or partially yielded to English law to form a new system of official law, which now features a mixture of indigenous Hindu law and received English law. Besides this official law, the whole structure includes still other types of law, among which two are specifically remarked on: originally received Islamic law on both official and unofficial levels, and indigenous tribal law of the mountain peoples in the North.5 The official state law is formally, or rather theoretically, guided by modern Western principles, but because of the striking difference between Western principles and Hindu principles, the official state law is not so efficient in practice as to totally replace unofficial people's law. At the same time, the author notes an interplay between the two theoretically different systems of law, which is ideationally made possible by the functioning of Dharma. In this connection, special attention should be paid to the fact that the interplay between state law and people's law, and the existence of a unifying factor, are emphasized through all the multiplicity of the whole structure of Indian law. The identity of Indian law is assumed here as having been maintained through its apparent metamorphoses and multiplicity and, without any basic legal postulate presupposed, the survival of such an identity through history would be unable to be theoretically elucidated.Those who take Western law and jurisprudence for granted as the only authentic law would be astonished by reading the next report by Preedee Kasemsup from Thailand, a typical Buddhist country. The author wants at the outset to formulate a theoretical framework for his following arguments with high regard to suggestion of German theorists and data from Western legal history. He then attempts to apply that devised framework to his analysis of Thai law in its historical development through the reception of Western law in modern times. Frankly, his attempt might be seen as less than successful. The failure may in a minor part be caused by the insufficiency of the author in formulating and/or applying the framework. But, I strongly feel that the major cause is a fundamental difference in the inherent nature between the framework, obtained from Western models and used as an analytical tool, and the Thai law to which the tool was applied. His descriptions suggest just such a difference. For instance, the Thai people have cherished their own indigenous law since its first appearance in history. Some of it was embodied in the level of official law sanctioned by Kings of the succeeding Kingdoms. But the official law was never the kind that would be understood by Western models. It was written law classified into two main types: Dharmasastra, which expressed the sacred and immutable principles of Thai law, and Rajsastra, which was the revised compilation of Royal Ordinances issued by the Kings to enforce the principles. These types of written law were furthermore accompanied in the whole structure of Thai law by the unwritten laws of the “autonomous legal domains”, which, except for those few specifically adopted into official law in judicial judgements, remain unofficial. The whole structure, then, is found to be composed of the hypothesized three levels of law: legal postulates of the principles of Dharmasastra, official law of positive provisions in Rajsastra and Royal Ordinances, and unofficial law of autonomous legal domains. The boundaries between the three levels are not as rigid as in the case of Western law. Rather they are so flexible that the time-honoured Rajsastra could be elevated into Dharmasastra, and, as exemplified by the noted Uttalum case, positive official law could be revised in serious consideration of the autonomous legal domain. Remarkably enough, furthermore, the reception and administration of modern Western law has been undertaken with full recognition of its different nature from Thai indigenous law.6Based on these facts and with reference to the “everlasting” Islamic principles and unifying Indian Dharma concept, I would suggest as a hypothesis that some basic legal postulate has been working throughout the historical development of the whole structure of Thai law to confer it with an indigenous identity, although the author does not manifestly state so in his report. If this is true, his presentation of the nature of Thai law as different from Western law should be appreciated as a success for our purpose.
The reason why I specifically emphasize the possible functioning of a basic legal postulate for Thai law is that a similar postulate is suggested in my own report from Japan, the unique Shinto country. Japan is often said to be perhaps the only non-Western country to have smoothly accomplished required modernization (or Westernization) in many phases of society, including industrial development and legal systematization. On the other hand, the Japanese are also noted for their characteristic culture, whether praised for an elegant refinement in their traditional sense of beauty, humane attitudes and hard-work ethic, or criticized for their insular narrowness or economic egoism. As far as law is concerned, it is well-known that the Japanese tend to prefer a peculiar attitude toward it which is difficult for Western people to understand and which cannot be reasonably explained by Western conceptions of law and legal theory. In my report, I have attempted to elucidate the basis for such ambivalent Japanese attitudes by presenting the whole structure of Japanese law, comprising official state law systematized in a received form, and indigenous unofficial laws ideationally supported by their corresponding legal postulates. The unofficial laws identified may appear to be less conspicuous than those reported from the other countries, with the exception of Sri Lanka,7 and the legal postulates may not be as manifestly established as those in Islamic and Indian cultures. Scientifically reliable methods must be further elaborated to accurately identify and classify such indigenous unofficial laws and legal postulates. But it is an evident fact that Japan has preserved its indigenous law along with such an apparently successful modern legal system. The problem is this seemingly well adjusted parallelism of official law and unofficial law, or received law and indigenous law. While it would be methodologically easy to assume one phase or the other as the only one justifiable, the whole structure of Japanese law still covers both phases in reality. In order to elucidate the parallelism reasonably, it would be useful to presuppose a basic legal postulate which has permitted the Japanese to maintain their identity in terms of law through their entire historical development, including the reception of foreign law.