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アジアにおける慣習法の現代的意義 : 「法の移植」との規範調整

Customary Law in Contemporary Asia : Legal Postulate in face of Legal Transplants

Japanese (日本語)

国際協力論集

31

1-34

神戸大学大学院国際協力研究科

2023-12-20

As the pressure of “legal transplant” increases toward the “conversion” to the global models, normative gap is inevitably enlarged between thus transplanted formal law and the existing legal regime in each society. When such a “legal pluralism” amounts to intervene the fundamental norms which constitute the living law of people, but social complaints are only suppressed by the government, social conflict will be triggered until jeopardizing the national order. Here it is noted that certain countries maintain social order despite the increasing normative gap, while other countries result in serious disturbance until giving a rise to an authoritarian regime aiming at the control of social order. A possible explanation of this difference may be the difference of what legal ethnographer Prof. Masaji Chiba described as “legal postulate,” or a unique attitude of each society in mitigating the risk of normative crash. As an attempt of comprehensive approach to comparative Asian law and society, through a focus on the land law and forestry law reforms rigorously led by the international donor agencies, we will be able to differentiate the modes of “compromise” between opposing norms in the course of critical dispute resolution, where the “customary law” in the sense of living law passed over through generations from the pre-colonial sui generis law in Asia can survive, and even call for certain modifications to the formal law to realize justice. After identifying a few categories of“ legal postulate,” including a strict formalism （e.g. Thailand）, a gradual formalism （e.g. Cambodia）, a legal pluralism by formal law reforms （e.g. Indonesia）, and an incremental legal pluralism by case law （e.g. Japan）, this paper concludes with an anticipation that an incremental modification of formal law through judicial recognition of costmary justice is a realistic way to bring about peacefulAsia through the perpetual attempt of democratic formation of law by the social actors from the bottom-up.

紀要論文