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Introduction

Family Law and Customary Law in Asia: A Contemporary Legal Perspective,

intro.htm

by David C. Buxbaum, Assoc. of Southeast Asian Institutions of Higher Learning, Springer Netherlands, Jan 1, 1967, pp288.

Downloaded and edited, by U Kyaw Tun (UKT) (M.S., I.P.S.T., USA) and staff of Tun Institute of Learning (TIL) . Not for sale. No copyright. Free for everyone. Prepared for students and staff of TIL Research Station, Yangon, MYANMAR :  http://www.tuninst.net , www.romabama.blogspot.com

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UKT 180505: The Introduction by the author, David C. Buxbaum, is comprehensive, and is necessarily long for a casual reader like me. I have therefore no recourse but to read (piecemeal) the work and have divided into smaller sections for my own comprehension. The following TOC is therefore mine.

0.1. How this book came about
0.2. East is East, and West is West, and never the twain shall meet
0.3. Those who are affected

1.0. The Nature of Customary Law in diverse Asian Societies

 

Author's footnotes
UKT 180506: Footnotes in the middle of a seamless narrative are a source of confusion. In TIL format, they are given only at the end of the HTML page.

 

Contents of this page

0.1. How this book came about

(p.roman15)
The Conference on Family Law and Customary Law in Asia, of which this book is a product, was initiated in the hope that scholars and law practitioners in Asia could - with the help of social scientists - begin a theoretical and practical analysis of some of the problems involved in administering law in communities where custom and customary law exert important influences upon dispute resolution. The conference focused primarily upon problems of family law in view of the particular perseverance of customary influences in this area of the law.

The problem of the interrelationship between the formal legal organs and indigenous customary law is  of course only a small portion of a larger problem, i.e., the role of law in modernizing societies.

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0.2. East is East, and West is West, and never the twain shall meet

UKT 180505: The above is from:
"The Ballad of East and West" is a poem by Rudyard Kipling. It was first published in 1889, and has been much collected and anthologised since.
" Oh, East is East, and West is West, and never the twain shall meet,
" Till Earth and Sky stand presently at God's great Judgment seat;
" But there is neither East nor West, Border, nor Breed, nor Birth,
" When two strong men stand face to face, though they come from the ends of the earth!"
- https://en.wikipedia.org/wiki/The_Ballad_of_East_and_West 180505

One result of the conference was a classification of some of the legal problems which are common to most modernizing societies, both in Asia and elsewhere [UKT the West must be included], where the formal legal institutions are often modeled after European institutions* while the social institutions reflect patterns quite different form those that gave birth to the common law or civil law.

*UKT 180505: "European institutions" implies those which value Judeo-Christian ideas, such as "an eye for an eye" of the Judaism and "turn the other cheek" of the Christianity, and which value only on surface the socialistic and idealistic humanitarianism".
(I am writing this note on the 200th birthday of Karl Marx. See an interesting article with which I don't see eye-to-eye in many places)
- https://www.independent.co.uk/news/long_reads/karl-marx-anniversary-a8334241.html   180505))

In the East, we value the Buddhist and Confucian ideas overlaid upon the more primitive folk beliefs including Astrological, and Sacrifice of various kinds to unseen entities such as the spirits of dead ancestors. The colonialists who had overpowered the natives with superior arms thought that their beliefs are superior than those of the Buddha and Confucius, and tried to impose their institutions backed by their armed forces.

During the colonial period, all of the countries of Asia were subject to the impact of Western law. Not only did the Asian peoples come to know of the workings of Western law through study at home and abroad, but also the Western-dominated governments of Asia established courts and promulgated codes and statutes that were based upon Western law - and in fact were often duplicates of such laws. Despite the enactment of these law codes, the traditional customary law of the Asia societies was, and generally is, the primary legal force for dispute resolution in most Asian countries. [UKT ¶]

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0.3. Those who are affected

Westernization and Western law only affected a relatively small group of people in most Asian countries, to the extent that they found the Western style law courts and codes a congenial arena for settling legal disputes. This is not to suggest that traditional customary law remained static. It too was undergoing change, particularly as the result of modernization and the Western intrusion into Asia - but the change was and is not so extensive that the "Western" law codes have come to fill the hiatus between law and society comfortably. This particular problem, i.e., the hiatus that exists (p.roman15end-p.roman16begin)  between Asian society, and the family law and legal institutions promulgated by the government, is one that was made obvious and elucidated by the conferees. The conference focussed particularly on the manner in which the legal institutions have addressed themselves to this question.

The conference was concerned initially with the nature of customary law, thereafter dealt with the interaction and conflict between the formal legal institutions and customary law, and finally dealt with some specific problems of customary law and the family in a modernizing society.

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1.0. The Nature of Customary Law in Diverse Asian Societies

UKT 180505: How do you define "Societies", on the basis of:
  1. political boundary
  2. geographical boundary
  3. linguistic (both speech and script, or just speech alone)
Unless the conferees can think in terms of culture, reflected by language, for example, the inhabitants of a Naga village becomes Indians, and village on the next hill slope becomes Myanmar, though nobody understands a single word of Hindi-Devanagari nor any of Burmese-Myanmar.

Eugene Ehrlich said: "At the present as well as at any other time, the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself. "1 (fn-roman16-1) [UKT ¶]

Ehrlich, however, recognized the element of command or "state norms" although he did not foresee the extensive role this aspect of the law was to play in industrialized society. Nevertheless he helped to show that the norms, or "customary law," observed by the family, commercial institutions and religious bodies are of substantial importance in determining people's behaviour, and in fact in determining what he called law. [UKT ¶]

In pre-industrial society, where political power and authority are generally relatively weak, Maine has shown that there was heavy reliance upon customary and religious law and institutions. 2 (fn-roman16-2)

UKT 180506: H. Maine was writing in 1888, when the Westerner's knowledge of the East was minimal at its best. Most of the Sanskrit (Hinduism), and Pali (Buddhism of Ceylon) were still being studied by Christian scholars, and when the knowledge of Pali-Myan (Buddhism of Myanmarpré was almost unknown. Myanmar society, both of Bur-Myan and Mon-Myan were thought to be just borrowings from Ceylon).

I must summarily dismiss what "Maine had shown". The period he was speaking about was when the ideas of socialism was yet to be misused by persons like Stalin and Hitler. It was also long before the Americans had tested their nuclear bombs upon the civilians of the cities of Hiroshima and Nagasaki.

Most Asian societies (with the possible exception of Japan), 3 (fn-roman16-3) although in stages of rapid social change, retain strong characteristics of simpler technological societies, i.e. pre-literate societies, and peasant societies* of the pre-modern tradition. A major distinction between these preliterate societies and peasant societies  is that the latter have for centuries been in "constant contact with the centers  of intellectual thought (p.roman16end-p.roman17begin) and development..." 1 (fn-roman17-1) [UKT ¶]

*UKT 180506: The majority of Myanmar peasants (both sexes) were literate, and the case of Myanmarpré before the British Annexation was exceptional. It was because of the strong monastic education which the colonialists and their erstwhile modern followers had and are still uprooting. They have no idea that Myanmar script is phonetic (a major advantage over Eng-Latin), and that Bur-Myan language uses a very simple grammar (a major advantage over Skt-Dev and Hindi-Dev). See: Burmese Grammar and Grammatical Analysis , by A. W. Lonsdale, Rangoon, 1899. - BG1899-indx.htm (link chk 180506)
"The Burmese language is constructed on scientific principles, and there is no reason why its grammar should not be dealt with also from a scientific standpoint. But it may be safely said that Burmese grammar as a science has not received that attention it deserves."

Thus Redfield noted that in peasant societies two interdependent traditions, i.e., that of the reflective few and that of the unreflective many, are constantly interacting. 2 (fn-roman17-2) [UKT ¶]

Of course both preliterate societies and peasant societies have some common characteristics, but this general distinction is useful for our discussion. In the legal field we can, for purpose of convenience, identify the " great tradition" with the august religious-ethical codes and the secular legal codes often formed under the influence of these religious- ethical codes and the secular legal codes often formed under the influence of these religious ethical codes. The customary law of the common people might properly be identified with the "little tradition." Yet if must be borne in mind, as Redfield states, that there was continuous contact between the "great" and " little" traditions, and thus mutual influences; " The two traditions are interdependent."

In the institutional field it is possible, although perhaps less precise, to identify the formal law courts - at least at the highest levels of traditional Asian peasant society - with the  "great tradition"; while identifying the social institutions such as lineages and clans, which also administered the law, with the "little tradition." Perhaps the lowest courts and/or the gentry ( who performed legal services such as conciliation), as Redfield suggests, form the hinge between the local institutions of the people and those of the state in the legal arena. Both these traditions are of course presently in contact with Western technological society.
    Customary law is of substantial importance in both pre-literate and peasant societies, but it has certain differentiable characteristics in each. 3
    In the pre-literate societies, groups tend to be smaller, there is  generally less contact with wider groupings, and thus "... a greater degree of conformity is psychologically necessary. " 4 Thus in Sarawak, customary law is the basis for settling many disputes. 5 The headmen of (p.roman17end )

 

Introduction XVIII
the long-houses, farm-chiefs and other leaders settle disputes in accord with animistic beliefs. The long-house is " ... an independent unit relying for its continued existence upon the creation and maintenance of a relationship with the 'unseen powers' .... By the proper conduct of ritual, from the major and minor 'festivals' (gawai) to the provision of offerings, the exercise of 'magic' and utterance of words of power, the people and their possessions must be kept in a satisfactory state of balance which must be maintained. " Any disturbance of the balance be corrected without delay." 2 "Restoration of the balance..." is accomplished "...by furnishing a 'fine'... [i.e.] by making good the loss with something of equal ritual value." 3 These customary fines generally enforced by public opinion.: 4
    Thus in the pre-literate societies the institutions for administering law are generally less formal and less "rationalized" or "rational." Perhaps R. Schmidt's and Weber's terminology is useful here in that we can associate " Kadi-justice" predominantly with pre-literate society; while "empirical" and even perhaps on occasion "rational" justice may be more readily associated with certain aspects of peasant  society. 5 "Kadi-justice" is " primarily bound by sacred traditions," or "revelation" in its system for settling cases. it employs techniques such as divination, ordeal, prophetic dicta and other religious, magical crafts as adjudicatory techniques. Weber also suggests that in "Kadi-justice" there may also be " ... informal judgments rendered in terms of concrete ethical or other practical valuations." However, I would suggest that this latter aspect of justice can be more properly associated with "empirical" justice. At any rate, "Kadi-justice" tends to be predominant in the legal systems of pre- literate society, which may also have aspects of "empirical" and perhaps even a little "rational " justice.
    In peasant society, " empirical" justice, i.e., "... formal judgments... rendered, though not by subsumption under  rational concepts, but by drawing on 'analogies' and by depending upon and interpreting concrete 'precedents' '' is of substantial significance especially in the

 

 

1 A. J. N. Richards, Dyak Adat Law in the Second Division (Sarawak, 1963) at p. 1.
2 Ibid., at p.2.
3 Ibid.
4 These customary fines must be distinguished from laws imposed by authorities outside the longhouse.
5 See From Max Weber: Essays in Sociology (ed. and trans. by H. H. Gerth and C. Wright Mills) (New York, 1958) at p.216. See also Max Weber on Law in Economy and Society, ed. by Max Rheinstein, trans. by M. Rheinstein and E. Shils (Cambridge, 1954)

 

 

Introduction XIX
"great tradition." As Weber notes, this "empirical" jistice is not unknown in industrial societies. 1 Weber attempts to separate "empirical" justice from "rational" justice. He associates the latter with the feature that " ... in principle a system of rationally debatable 'reasons' stands behind every act of bureaucratic administration, that is, either subsumption under norms or a weighing of ends and means." He associates rational administration in law and government with bureaucratization, experts and scientific administration. 2 Conceptually systematized rational law is associated with bureaucracy and modern society. While Weber's knowledge, and thus understanding, of certain aspects of traditional Asian law was seriously incomplete, 3 and his categories not always as relevant as one might wish, they are nevertheless of substantial use for our purposes, for they help us classify certain aspects of law in different types of society.
    In summary, "Kadi-justice" especially as being bound by sacred tradition is particularly characteristic of adjudication in pre-literate society. The second feature of "Kadi-justice, " i.e., informal judgments rendered in terms of concrete ethical or practical values, is quite characteristic of the conciliation so predominant in the " little tradition" of peasant societies as well as in pre-literate societies. 4 The "great tradition" is characterized by " empirical justice, " i. e., formal judgments rendered by drawing on analogies and interpreting concrete precedents. "Rational justice" can be primarily associated with contemporary Westernized legal institutions and some aspects of the legal institutions of the "great tradition: of peasant society.
    Not only is the nature of legal administration different, but explicit in the above classifications of law are certain institutional characteristics for administering law. Thus "empirical" or "rational" justice would generally require formal legal machinery of a complicated nature to administer the law.

1 Essays in Sociology, op. cit., p. 217.
2 For example, one of the qualities which he rightfully attributes to the bureaucracy is: " The management of the office follows general rules, which are more or less stable, more or less exhaustive, and which can be learned. Knowledge of these rules represents a special technical learning which the officials possess. It involves jurisprudence, or administrative or business management." Ibid., p. 198.
3 For example he states re: traditional Chinese law, " ... in spite of the traditionalism, there was no official collection of precedents because legal formalism was rejected and, above all, because there was no central count as in England," -which are two largely erroneous assumptions. Max Weber, The Religion of China, Confucianism and Taoism; Hans H. Gerth, translator and editor (New York, 1951) at P. 102.
4 Conciliation of a sort is also an important legal procedure in pre-literate society. See for example Lucy Mair, Primitive Government (Maryland, 1962) at p.41, where she describes a "professional mediator" with special ritual powers" who can perform the " rite of reconciliation in Nuer society.

 

 

Introduction XX
    In Ch'ing China (1644-1911) for example, local customary law ( which we may associate primarily with the "little tradition ") operated within an idealized framework of rites (li) and under a code that was national in scope. The li and code, along with the collection of cases and the hierarchy of official courts - all of which were part of the "greater tradition"- administered what we may primarily designate 'empirical" and in part "rational" justice. The lineages, clans, elders, gentry, pao-chia and li-chia leaders may be said to have generally administered " Kadi-justice." In Sarawak on the other hand, it was predominantly " Kadi-justice" administered by the heads of the long house that prevailed. Leaders of lineages and clans, tribal chieftans, family elders, etc., are generally  the administrators of "Kadi-justice" in peasant or pre-literate society.
    The legal machinery in Ch'ing times was extensive, the bureaucracy complicated and elaborate, and the body of precedents, statutory material, ehtical codes, collected cases, handbooks, etc., were imposing. Traditional Chinese peasant society, with its elaborate bureaucracy, may represent one extreme of peasant society, while Sarawak is a more typical pre-literate society. Malay society and the society of the Dyaks of Sarawak insofar as legal institutions are concerned.
    The traditional society of the Malays was composed of the "...individual, the family, then the tribes, who constitute the components of the State. "1 In the

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contents of this page

Author's footnotes

UKT 180506: Footnotes in the middle of a seamless narrative are a source of confusion. In TIL format, they are given only at the end of the HTML page.

Footnotes on p.roman15 - NIL

 

Footnotes on p.roman16

1 fn-roman16-1 Ehrlich, Eugene, Fundamental Principles of the Sociology of Law ( Cambridge, 1936), Walter Moll, translator, Foreword. - fn-roman16-1b

2 fn-roman16-2  H. Maine, Early History of institutions (1888) 26, 38-40. See also Julius Stone, The Province and Function of Law (Cambridge, 1961) P. 457 ff. fn-roman16-2b

3 fn-roman16-3  But see von Mehren, A. T., "The Legal Order in Japan's Changing Society: Some Observations, " 76 Harvard Law Review 1170 (1963) at p. 1193-4, and related literature which indicates that despite the fact that " ... postwar Japanese family law destroys much of the legal structure that supported the hierarchical and collectivist concept of the family..." nevertheless, "[t]he collectivist tendency - the emphasis on the group's good - still remains strong..." fn-roman16-3b

 

Footnotes on p.roman17

1 fn-roman17-1  Robert Redfield, Peasant Society and Culture: An Anthropological Approach to Civilization (Chicago, 1956) at p.69, where he quotes George M. Foster, above, with approval. Redfield soil, a reverent disposition toward habitual and ancestral ways, a restraint on individual ation  of town life, a sober and earthy ethic." at p. 140. fn-roman17-1b

2 fn-roman17-2  Ibid., at p. 70-72. fn-roman17-2b

3 This is not to discount its importance in modern legal systems where as H. S. Morris noted, in a personal correspondence, modern factories are small social systems having a whole array of norms or customs, some of which may become incorporated into rules and regulations and others of which are examined by the courts.

4 Edward Sapir, " Custom," III Encyclopedia of the Social Sciences ( New York, 11 th printing, 1954)E. R. A. Seligman, editor; p.658, at p. 661.

5 Benedict Sandin, "Some Iban (Sea Dyak) Customary Law in Sarawak, " infra.

 

 

 

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