Formal and Substantial Arguments in the Courtroom

A Review of Masaji Chiba's theory of Legal Pluralism

Abstract

The aim of this paper is to articulate Masaji Chiba's theory on legal pluralism to the empirical legal research on dispute processes. Examining Chiba's three dichotomies theory, the author attempts a partial modification. A revised model is illustrated with a case study of family disputes observed at Kenyan formal and informal courts.
According to Chiba, the legal pluralism is never simplified as dual construction of state and non-state laws alone. We can observe the accommodation of transplanted laws within both official and unofficial settings, and at the same time the penetration of indigenous customary laws into the official state law. Therefore, empirical descriptions of the intra-structure of legal pluralism require more than a single set of dichotomy. As is shown in his papers, Chiba aptly observes the intertwinement of three series of dichotomies in the plural structure of legal system: (1) legal postulate/legal rule, (2) indigenous/transplanted laws, and (3) official/unofficial laws.
However, concerning the first dichotomy of legal postulate and legal rule, there is a room for a methodological modification. The author of this paper recognises that a defect of the dichotomy consists in its limited applicability in empirical research on dispute processes, since it is modelled on the layer structure of official legislation. Thus, this paper proposes replacing the original dichotomy of legal postulate and legal rule by an alternative dichotomy of substantial understanding and formal prescription, which represents different modes of argument in the courtroom. When Chiba's theory is applied to the analysis of adversarial dispute processes, the empirical legal research requires an analytic scheme for characterising different paradigms of argument, namely an alternative dichotomy of substantial understanding and formal prescription.