II. Method

How then is it possible to observe and analyse the whole structure of law of a people as a phase of their culture and as a result of the struggles between received law and indigenous culture, particularly of the six countries here included? In other words, what frame of reference is effectively available for our purpose? We are disappointed to note that there is no ready-made scheme or framework on which we can rely.

Happily, we have some forerunners who have left us invaluable suggestions as to the cultural nature of law. In the nineteenth century, we find such scholars as Wundt, Savigny, Hegel, Maine, Post, and Kohler. Early in the twentieth century, Ehrlich (1936: 486–506) established the concept of “living law” in every human group to include in law a certain type of conventional social norm; and Weber (1967: 233) typified ideally “the particular principles underlying the religious ethics” which limit the structure and function of secular law. Malinowski (1926: 46–49) found the social mechanism of “publicity” and “reciprocity” to be the essence of law in a society without government and formal law. Hoebel (1954: 97–126) collected data concerning the function of “jural postulates” of primitive peoples. Pospisil (1971: 71–126) emphasized “the multiplicity of legal systems within a society”. Some comparative scholars, derivating from model jurisprudence, noted differences in cultural factors among different peoples in discussing classification of different systems of law into the “families of law” (cf.

The above suggestions are invaluable. The point is that the whole structure of law of a people is not limited to the monistic system of state law as maintained by model jurisprudence in accordance with its methodological postulates. The whole structure of law as an aspect of culture should include all regulations, however apparently different from state law, which the people concerned observe as law in their cultural tradition, including value systems; the very cultural identity of a people demands that we include all of them in a whole structure. Thus, the whole structure of law is plural, consisting of different systems of law interacting with one another harmoniously or conflictingly. Our first methodological requirement then is to frame a new conceptual scheme sufficient to allow us to observe the relevant facts accurately and to analyse them into theoretical formulations. Thus we arrive at our first working hypothesis: The three-level structure of law.

Cultural problems in the three-level structure of law of non-Western countries may be found in great variety. But the most conspicuous among them are those related to the cultural origin of law and which are inevitably related to the problem of reception of law. Reception of law is one of the topics frequently discussed by the proponents and students of model jurisprudence. But their point of view is, generally speaking, limited to confirming how Western law has been adopted or permeated into the official legal systems of non-Western countries, with only occasional recognition of its conflict with or rejection by indigenous systems. In this view, main concern is given to the destiny of the received Western law rather than to the receiving indigenous systems. For the receiving peoples, in contrast, main concern must be given to the whole structure of their indigenous systems, with focus upon assimilation of the received law while firmly maintaining their cultural identities. Unfortunately, the point of view clearly centring on that concern has been neither established nor systematically attempted. This, then, would be second methodological requirement necessary for our purpose: Interaction between received law and indigenous law.³