1. THE THREE-LEVEL STRUCTURE OF LAW
The definition of official law offered in the Introduction is to be maintained as “the legal system sanctioned by the legitimate authority of a country.” So, too, is the definition of state law as the official law “directly sanctioned by the legitimate authority of the government of a state to have overall jurisdiction over the country.” However, some undeniable suggestions are seen to crop up concerning classification of the subsystems of official law as well as arrangement of the relationships between them.
For instance, religious law is demonstrated as a typical official law other than state law after modern reception of law. But its position, character and seriousness in the whole system of official law differ from country to country. Islamic law in Egypt and Iran can be classified into the same category, but each retains remarkable characteristics of its own; Hindu law in India is also religious law, but contains far fewer official provisions than Islamic law; Buddhist law in Thailand seems to be more obscure in the official system;8 and religious law for the minorities in a country, such as the Copts in Egypt and the Moslems in India and Sri Lanka9 may be rather regarded as incorporated into state law. Such variations of religious law at the official level should be further accurately identified to obtain a more systematic classification of official religious law. Little mention is found of official laws other than religious law. The facts and systematic arrangement of others should also be explored:The given definition of unofficial law was “the legal system not officially sanctioned by any legal authority, but sanctioned in practice by the general consensus of a certain circle of people, whether within or beyond the bounds of a country” functioning with “a distinct influence upon the effectiveness of official law; in other words, those which distinctively supplement, oppose, modify, or undermine any of the official laws, including state law.” The importance of unofficial law as defined in such a way is most emphatically argued in the report from India under the name of “people's law”, in the report from Thailand by the “autonomous legal domains”, and in the report from Japan by various examples.
The reports from the other countries seem not to pay direct attention to unofficial law, but their descriptions are understood to suggest its influence, judging from the fact that their systems of official law have adopted so many unofficial legal practices. The existence and function of unofficial law as defined above are thus verified. On the other hand, it is clearly evident that further steps are necessary before the concept of unofficial law can be finalized. First, the number of collected facts is severely limited, considering those supposed to actually exist; related facts should be systematically collected from not only the six countries concerned, but from widely throughout the world. Second, classification and reclassification of the different types of unofficial law should be repeatedly attempted in collating the feedback of facts collected as suggested above. Third, as a result of such reclassifications, or, as we might have to say theoretically, as a methodological premise of such collection and classification, unofficial law should be redefined to be operationally used for empirical investigation of its referent. Such redefinition would necessitate differentiating unofficial law into various subtypes in accordance with the variations of the facts. Thus, finally, it is necessary to evolve a systematic arrangement of various unofficial laws functioning in a country, as well as a general theory of unofficial law in human society.The definition of a legal postulate as “a value principle or value system specifically connected with a particular official or unofficial law which acts to found, justify, and orient the latter” is found basically verified, although the related descriptions may refer to it under different names and note different ways of its functionings. The official legal postulates are here of secondary importance, for there is nothing to mention beyond that established in model jurisprudence. Rather, the unofficial ones are our primary concern.
Here again, it is found that further steps are needed similar to those for unofficial law cited above. First, systematic collection of the related facts; second, classification and reclassification of the collected facts; third, redefinition of the concept; and finally, systematic arrangement and general theorization. In addition to these, two problems are raised specifically concerning legal postulates. One is the mode of their mutual relationships in forming, more or less, the integration necessary to preserve national identity in a country, as suggested in the Introduction. The basic legal postulate identified in subject individual countries may be reasonably hypothesized to make an indispensable contribution to such integration, although in different ways and under different names, as seen by the everlasting Shari'a in Egypt and Iran, Dharma or Dharmasastra in India and Thailand, and the “amoeba-like way of thinking” in Japan. The possible integrating function of the basic legal postulate should be the first problem to be pursued. The other specific problem is the function of the indigenous legal postulates in relation to official law. Their function may appear at a glance to be confined to unofficial law, with the exception of those few adopted into official law. However, it is thought that some of them, including basic legal postulates, also exert some influence on official law, insofar as they function in the whole structure of law including official law.Supposing that the whole structure of law of a country is composed of the three levels of official law, unofficial law, and legal postulates, the systematic relationship between them should be thoroughly examined. Such an examination has never been undertaken in model jurisprudence in the serious manner implied here. Indeed, model jurisprudence may have, in its own way, a perspective of the three levels, for it does admit some legal postulates supporting its positive provisions and obviously involves some provisions of unofficial origin; but the legal postulates and unofficial law considered by model jurisprudence are rigidly confined to those sanctioned by the legitimate authority of a state.
Others which may compete and conflict with official law are predestined to be rejected as irrelevant to law. Our perspective, on the contrary, is to recognize the whole body of unofficial laws, regardless of the apparent insignificance of some or many to official law, as an independent system equal to official law, at least in formal classification. In Western countries, official law may in reality be so dominant as to justify the rejection of unofficial law in our sense; however, generally in non-Western countries, and specifically in the six countries reported on herein, the situation is quite different. The influence of unofficial law upon the whole structure of law may vary from country to country, but seen overall it is surely so extensive and serious as to threaten the formal structure and effectiveness of official law. Truly, as seen by the proponents of model jurisprudence, official law may have the capacity to reject unofficial law at its command, but that rejection never results in the annihilation of the unofficial law in reality. The reality is nothing more nor less than a continuous struggle between the two, with coexistence as the best, and the undermining of the official law as the worst possible cases.
One of our first problems, then, is to clarify the relationship between official law and unofficial law, each supported by its own legal postulates – in other words, to probe deeply into the interrelationships and interactions between them. Although model jurisprudence has, unfortunately, rarely presented reliable achievements in this respect, there are some suggestions to be found. For instance, Henry Maine early pointed out three agencies to bring official law into harmony with society: fiction, equity, and legislation (1917: 15). As referred to in the Introduction, contemporary comparative lawyers take for granted differences in the conception of law by different cultures. Recent scholars, having sociological or anthropological perspectives, are expanding such suggestions in various ways: searching for means of conflict management developing out of the domain of official law (cf. Blankenburg et al., 1980; Nader, 1980); disclosing the in reality flexible boundary between official law and popular practices (cf. Kadish and Kadish, 1973; Allott, 1980); emphasizing differences in symbolic acceptance of official law (cf. Podgorecki et al., 1973; Gusfield, 1981); and presenting a variety of examples of unofficial laws adopted into official judicial procedure in non-Western countries.10 There are found invaluable data concerning the mutual channelling and influencing between official law and unofficial law, among which not only overt but also covert examples should be carefully observed. Covert relations are specifically noted here because they have been hitherto neglected, and because unofficial law has been hidden or ignored despite its actual influences as a friend or rival of official law.