I. Problem
There has been a long-established belief among both specialists and laymen that law is a special mechanism for social control isolated from other social mechanisms and, for this reason, that the scientific study of law should be confined to the special capacity of traditional, model jurisprudence.
But since the beginning of the twentieth century this common belief has been challenged by new ideas concerning both the objectives and methods of the study of law. As a result it has become evident that law is so inseparably rooted in society as to be approachable by sociological methods. Furthermore, it has also become accepted that law must be recognized as an aspect of the total culture of a people, characterized by the psychological and ideational features as well as the structural and functional features of each fostering people, and may therefore be approached by anthropological methods.The popular negligence of the cultural factor of law may have been partly caused by the alleged universal nature of traditional jurisprudence, prevailing as in the model science of law in the world. Contemporary model jurisprudence is indeed established on a universal basis. Its overwhelming prevalence in the world seems to leave little room either for serious consideration of its cultural specificity or for doubt as to its applicability to the different cultural specificities of other countries. But the Western conception of law, created and supported by model jurisprudence, has been bereft of its cultural specificity when comparatively analysed with the conceptions of law in other cultures (cf. David, 1975; Sawer, 1975). Truly, contemporary model jurisprudence is a product of long Western history and is coloured by a Western culture based on the Hellenistic and Christian view of man and society. While we acknowledge the universalistic achievements of Western jurisprudence as the most advanced science of law ever accomplished by man, we cannot disregard its cultural specificity.
That specificity may have been in some cases diffused by or assimilated into different specificities of different cultures, but in other cases it has conflicted with or been rejected by them. In all cases, model jurisprudence, convinced of its universality, will not pay due attention to the cultural problems which accompany such diffusion or conflict between Western specificity and non-Western specificities (Chiba, 1984).At the same time it is true that the peoples and scholars of non-Western countries who have cherished their own jurisprudence with specificities quite different from the Western, have not succeeded nor even attempted to present the achievements of their jurisprudence before the world circle of legal science forcibly enough to cause the proponents of Western jurisprudence to doubt their conviction of its universality. Without presenting the achievements of their own jurisprudence before world bodies specifically aimed at self-reflection of model jurisprudence, they would be disqualified from criticizing the ethnocentricity of the latter, as recently pointed out by some Western scholars (Chiba, 1980: 37), and insisting upon the raison d’être of their own jurisprudence. Such a negative or passive attitude may be another reason why model jurisprudence has in general disregarded the jurisprudence of different cultures – jurisprudence with due respect to indigenous law in non-Western countries. Vital to the proper understanding of law in non-Western culture is, firstly, for native scholars to present their own data and views positively in order not to negate the significance of model jurisprudence, but to maintain a sound understanding of its nature when utilized in different cultures.
We, the authors, from six countries with traditional cultures of Asian origin, want here to present the results of our joint project initiated by the above aspiration. Our purpose is, after all, accurately to identify the structural position and function of the indigenous laws of the countries concerned in terms of the state laws which are, by and large, based on received Western law.
Asian cultures have yielded a variety of philosophies and religions comparable to Western ones. Some of them have survived to our time with far-reaching influences upon the culture and society of various peoples. When they were confronted with the different systems of law received from Western countries, they must have struggled with that received law at the risk of their cultural identities. The general state of law found today in Asian countries is nothing but the result of those struggles. In some cases, the struggles may have ended earlier with happy or unhappy results; in others, the struggle may still be continuing. We wish to take a step forward in establishing how such struggles developed, or are developing, whether harmoniously or with conflict, and also to determine whether the results should be judged as successful or unsuccessful. We know that the answers to such questions cannot be given in an instant. We want to try, however, to begin our approach to the problem encouraged by the above aspiration, overcoming some admitted difficulties arising from our own different cultural and personal backgrounds. The countries here included are India, the Hindu society; Thailand, a Buddhist society; Egypt, a Sunni-Islamic society; Iran, an Islamic society; Sri Lanka, multi-religious society; and Japan, the peculiar Shinto society.2