アジア法の三類型
固有法•移入法•発展法
1982 年 1982 巻 34 号 p. 111-116,283
詳細
1982 年 1982 巻 34 号 p. 111-116,283
Legal pluralism is a striking feature of Asian legal system. It is commonly recognised that there are two types of law or legal system in this area. They are "indigenous law" and "recieved law".
The indigenous law has its origin in the pre-colonial society, and this type of law depends its basic value on the "community principle" or "reciprocity" (by K. Polanyi). In the course of colonization by the modern western countries, western law was introduced into these Asian countries (received law). The basic nature of this type of law may be characterised by the "market principle" or -"exchange" (by Polanyi), which is a key concept of western capitalism and also its political system. But this law has not been swept out the indigenous law especially in the rural area yet, although it was seen during the modernisation of the western socity. Therefore two types of law having different principle have been co-existing and often opposing each other in these countries. It shall be noted that this legal dualism is the reflection of economic and social dual stractureresulting from the colonial rule.
Since the independence of Asian countries, it seems that a new type of law has been emerging for promoting to build their national economies and reforming their economic and social system. These legislations may be called the "development law" laying stress on their aspiration for the development. For achivingthis aim, they commonly delegate a wide discrtionary power to the government, because it is essential for the government to channel or force the people to act for the national development goal. Thus the basic principle of this type of law can be summerised as the "control" or "redistribution" (by Plolanyi).
But these three types are not enough for analising the present legal situation in Asia. It seems essential to convert them into more functional conception. For this purpose, it is proposed to set up three types of legalprinciple, they are, "community law", "market law" and "control law".
Although the legal system as a whole is unified under a single legal principle in the western countries (market law) and in the socialist countries (control law), There are three types of principle whcich are co-existing and conflicting each other in Asian countries, and none of which can get a dominant status. This is the actual situation of legal pluralism in this area.
