Citation: 52 U. Cin. L. Rev.

136 1983

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TWO CONCEPTIONS OF SOCIAL ORDER

Rend David*
In 1938, in an oft-cited article,' the eminent British jurist, Lord
MacMillan, displayed no hesitation in affirming that two great legal
systems divided the civilized world between them: the system of code
law and the system of case law. These two systems, he explained,
corresponded to two ways of thought, one type seeking to elucidate
and apply principles, the other, imbued with a pragmatic spirit,
proceeding on the basis of precedents.
During the thirty years that followed, Lord MacMillan's article
continued to be cited frequently. 2 With the very considerable development of comparative legal studies, however, Europe is no longer
viewed as the center of the world, enjoying a monopoly of civilization.
Other intellectual forms, other conceptions of social order, claim our
attention. The difference between English law and continental (or
Scots) law now appears less fundamental than it did to Lord MacMillan. Today, civil law and common law appear as simply two variants
of a single way of thinking, that is, "Western," which conceives of law
3
in a particular way and assigns to law a specific role.
More important, it now seems, than any differences between the
two ways of thinking described by Lord MacMillan are the differences
that exist among diverse conceptions of social order. We no longer
view the civilized world as shared between the two systems of law
which alone were of concern to Lord MacMillan. In opposition to
these two systems, the "socialist legal systems" have achieved a major
place in the world. In a book on legal systems recently published in
England, 4 Roman law (considered as the prototype of "continental"
law) and English law occupy only two chapters out of seven; the
socialist legal systems are not dealt with, but the other five chapters in
the book are devoted to Jewish Law, Islamic Law, Hindu Law,
*The original French version of this essay was published in 1 Ius PRIVATUM GENTIUM 53
(1969). The present translation was prepared by Professor William Jeffrey, Jr., and is published
with the permission of Professor David and the original publisher, J.C.B. Mohr (Paul Siebeck).
1. Lord MacMillan, Deux mnanires de penser, in 2 INTRODUCTION k L'ETUDE DU DROIT
COMPAR : RECUEIL D'ETUDES EN LHONNEUR D'EDOUARD LAMBERT 5 (1938).
2. It has recently supplied the title for a work published in 1968 in Iran in the comparative
law series edited by Professor H. Afchar.
3. David, Existe-t-il un droit occidental? in TWENTIETH CENTURY COMPARATIVE AND CONFLIcTS LAW: LEGAL ESSAYS IN HONOR OF HESSEL E. YNTEMA 56 (1961), translated into English as
On the Concept of "Western" Law, 52 U. CIN. L. REV. 126 (1983).
4. AN INTRODUCTION TO LEGAL SYSTEMS (J. Derrett ed. 1968).

1983]

SOCIAL ORDER

Chinese Law and African Law. Even though the proportions thus
established among the different legal systems may not be completely
realistic, we nevertheless benefit from having our attention forcefully
directed to the fact that Western Christian modes of thought are far
from dominant among the peoples of the contemporary world.
We have been blinded for too long by the West's technological
superiority. We believed that our forms of thought and our modes of
reasoning, being so closely linked with our technical prowess and our
philosophical, political, moral and religious conceptions, would triumph throughout the world. The proliferation of code-law and common-law systems around the globe apparently confirmed this belief.
In most countries, a more or less rapid reception of Western ideas and
juristic techniques appeared to be under way. However, we should no
longer be mistaken regarding this matter.
The reality of the situation is rather more complex. Some societies
openly reject the Western concept of law; other societies have accepted Western views only superficially, and in these societies social
order remains essentially determined by modes of thought that do not
assign to law the same status it enjoys in the West. In a number of
countries nothing more than a facade has been erected; behind this
facade the application of Western law is met by considerable resistance and, even where this resistance is overcome, as it was in China,
nine-tenths of the population often continue to live completely with5
out making use of this Western veneer.
The repugnance toward Westernization felt by the peoples of these
countries, and sometimes their leaders, deserves our attention. This
repugnance in fact proceeds from a fundamental difference in the
conceptions underlying the social order. The point is not that some
specific rule of Western law alone is not suitable, nor that some
particular European institution cannot take root and acclimatize itself
in some African or Asian country. Rather, what is involved is the
rejection of the very idea of law as we understand it; and accompanying that, most importantly, the rejection of the notion of subjective
rights on which, in our own era, we have based our legal system.
This situation raises some questions of major philosophical import.
True, these questions are not novel, even though the nineteenth century, in its arrogance, thought it had answered them once and for all;
but today modern comparative legal studies and the renewal of the
5. This percentage has been stated by the Ministry of Justice of Madagascar and by a
Nigerian professor, in 1965 and 1966. Alliott, Les rdsistances traditionelles au droit moderne
dans les Etats d'Ajriquejrancophoneset h Madagascar,in ETUDES DE DROIT AFIUCAIN ET DE DROIT
MALGACHE 235 (J. Poirier ed. 1965).

CINCINNATI LAW REVIEW

[Vol. 52

bases of coexistence among nations have caused these questions to

reappear. What should be the role of law in the establishment and
guarantee of social order? Undoubtedly, everyone will agree that in
certain spheres a resort to law and the utilization of juridical techniques is the best and the most appropriate manner for regulating
conflicts. However, law has never been, is not now, and never will be
the sole technique which could or should be used for that purpose.
The reservations with which law is viewed in a number of countries
present the question of when it is fitting to make an appeal to law, and
on the other hand, in what circumstances recourse to other methods is
indicated, and what these methods may be. Indeed, the situation may
be that we have placed an excessive confidence in the law, pushed it
beyond its reasonable limits, and conceived of the principle of the
law's supremacy-the Rule of Law-in too absolute a fashion. The
ideas on this subject, which were useful and which triumphed in
Europe during the nineteenth century, do not necessarily have the
same value outside of Europe, or even within Europe in the twentieth
century. On this issue, have we anything to learn from non-European
peoples?
We in the West are "countries of law." Written law or case law, it
matters little: We exalt the role of law in its different forms, proclaiming the necessity of its reign; we honor our jurists; and students in
great numbers fill the classrooms of our law schools. To be an advocate, lawyer, notaire, or judge is to devote oneself to a noble, useful
and socially-esteemed task. Justice is not conceived of outside the law;
it is hardly a play on words to say that the "just" man is the "lawabiding" man. Law plays a fundamental role in society; one cannot
imagine a society without law. Ubi societas, ibi jus.
In different countries in the West we observe the word Law being
used in a variable sense and with varying contents; jurists, also, will
reason in one fashion here, another fashion there. Above this diversity, nevertheless, there exists an accord, a basic agreement: Everywhere in the West it is regarded as just and desirable that crimes be
punished, that disputes between particular persons be resolved, and
that the conduct of the administration be judged by the applicationof
a rule and by the authority of a judge. The rule may be more or less
flexible; in some countries it may be predetermined by doctrine or by
legislation, whereas in other countries the rule will be derived for the
occasion from particular precedents; in all situations, however, even
the latter, there will be a rule, in which a value may be recognized
independent of the specific litigation that gave rise to the rule. Having
been affirmed once, the rule will be utilized for assistance in the
resolution of other disputes. On the other hand, the lawsuit will be

1983]

SOCIAL ORDER

resolved by a judge: the latter will say which rule ought to be applied,
and the parties, with whatever grace they can muster, may only bow
before his decision.
The Western conception of social order is characterized by this
double element: to Western peoples it seems normal to have disputes
resolved by the authority of a judge, and just and necessary that the
judge decide with reference to a rule which he applies to the litigation. In the West, one cannot conceive that matters could be otherwise, and that a society could prosper, or even live, without judges
and without law. The law that governs us is undoubtedly imperfect;
we know that constant efforts are required to perfect it and adapt it to
circumstances; but one cannot, without imperilling society, imagine
the withering away of law. Anyone who actually believes the rule of
law is declining can only mourn. The ideal of the Western juristwhether he be French, English or German-is to assure, in the most
complete and effective fashion, the supremacy of the rule of law.
This conception is not characteristic only of "the Occident," in the
generally understood meaning of that term. In Islam, where legal
rules have their foundation in the religion itself, this conception is
anchored even more firmly than is the case in Christianity. It is true
that Muslims in different countries may often observe customs condemned by orthodox Islam; however, these customs are regarded
simply as facts of life, and the hope is that the wrath of God will not
come down upon persons who observe them. The pious Muslim
should follow the straight path; the well-ordered society should live
according to the law (Shar'ia).
In vivid contrast to this mode of thinking, the nations of the Far
East, under the domination of Confucian thought, entertain quite
different views and live according to quite different principles. In
these countries the idea that a person should resort to law is detested;
only contempt is felt for those who devote themselves to the study of
law or participate in its application. "Law is made for barbarians;"
honest men, good citizens, have no reason to concern themselves with
it and should not be subjected to it. An honest man keeps away from
courts; to come within their precincts, even as a witness, is a humiliation and a disgrace. When judges are called upon to resolve a dispute,
they seek by every means to avoid rendering judgment; when they are
absolutely compelled to make a judgment, they allow the major role
to circumstances, deciding on the basis of the equities in the case, and
do not apply what would, in terms of Western perspectives, constitute
a rule.
How is this attitude to be explained, and, given this attitude, how is
order maintained in the society? The fundamental idea dominating

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[Vol. 52

Far Eastern thought is a concept of the total harmony required by the

essential order of nature. If a crime has been committed, if a conflict
has arisen, the essential matter is not the punishment of the crime; it
would be unseemly to cut short the conflict. Social harmony cannot be
reestablished by pronouncing a sanction or by imposing a judgment.
To restore social harmony, it is indispensable that the guilty or interested parties accept the solution proposed to them by the mediators.
The thing that matters is that the criminal acknowledge his fault, ask
to be punished, and apologize in the presence of his victim, who
pardons him. The major necessity is that momentary adversaries be
reconciled, and celebrate together the concord they have regained.
Only on these conditions will harmony be reestablished, and the
incident disrupting the natural order be settled. In contrast, any
judgment that would have imposed a solution would have served
merely to give relief for that particular incident; it would have created
a "victim," fashioned a "winner" and a "loser"; and it would have
hardened and perpetuated a conflict which needed to be effaced
rather than regulated, dissolved rather than resolved.
The central figure in the Far Eastern conception is not the jurist or
the judge; instead, it is the mediator, who endeavors to obtain the
assent of the interested parties to a solution that settles the social
trouble. As the essential thing is to achieve this accord, he will not seek
to apply preestablished rules. Law constitutes only a final argument, a
threat to be brandished only as a last resort. The criminal will not be
"delivered to the secular arm," and judged and condemned by the
court, except after all other alternatives have been exhausted; if this
must be done, one must resign oneself to treating the criminal "like a
barbarian."
Westerners aspire to organize society by assuring the reign of law;
they demand that the citizens strive for the full effectiveness of law
(Kampf ums Recht); as they view the matter, the "common good"
presupposes that violations of law are the object of decisions, taken
without asking the assent of the persons involved, made in conformity
to rules which appear valid to society. This view is rejected in the Far
East. According to the prevailing view there, social order requires that
the guilty repent and that adversaries be reconciled. Disruptions of
social order cannot be settled by authoritarian pronouncements; each
person must consent to the sanction he has incurred. There is no need
for judgments, merely simple compromises. Resorting to law can only
add new trouble to an already deplorable situation; it is not an
effective remedy for the latter. To struggle for law, to make the law
reign-precepts like these go against the very grain of the basic principles of a society oriented around the search for harmony.

1983]

SOCIAL ORDER

The contrast between the West (understood here as including Islam) and the Far East is complete. Is the view we have just sketched
true for our time? Certain doubts may arise in this connection. Some
states in the West, those which adhere to Marxist doctrine, fight
against the idea that law and justice are closely linked, and extol a
new form of society that will have nothing to do with law. In contrast, it would appear that in the Far East, Western modes of perception have been implanted, and that there has been a conversion to the
idea that society should live according to law. What is involved in this
two-fold development, and what is its significance?
Let us consider first the case of the Soviet Union and other European "socialist" countries. Marxist thought on our subject is well
known. In law, Marxism perceives a simple apparatus of constraint,
rendered necessary by the "antagonistic contradictions" that exist between social classes as the consequence of a privileged minority's
appropriation of the means of production. Law is nothing but the will
of the rulers; its raison d'etre will disappear with the establishment of
a just social order, which will terminate the class struggle. By collectivizing the means of production and prohibiting every kind of exploitation of humans by humans, the U.S.S.R. and the countries that
follow its model believe they will succeed in creating a society without
law. In such a society, constraint will be useless, and there will be no
further need for judges. Whatever "nonantagonistic" conflicts may
remain will be due solely to misunderstandings or to the pathological
states of some individuals; these conflicts will be resolved, therefore,
by educational or correctional techniques and by conciliation procedures, through which the principle of social solidarity will triumph.
Legal scholars in nonsocialist countries of the West remain skeptical
about these predictions. Such predictions are easily attacked as being
merely utopian. Fifty years after the Communists seized power in the
U.S.S.R., considerable effort remains necessary to discover, other
than in official speeches and in propaganda utterances, the premonitory signs of any withering away of the state and law. Such a withering away may very well be the ideal professed by doctrinaire writers.
The reality, however, is quite different. For a "transitional" phase
(whose termination cannot even be faintly glimpsed) the state and law
in the U.S.S.R. will still retain a role of prime importance. A similar
situation obtains in the other socialist or people's republics of Europe.
Nor is the situation in the Federal Socialist Republic of Yugoslavia
fundamentally different, even though in that country the implementation of Marxist-Leninist doctrine was conceived of in a different
fashion. Here and there certain experiments have indeed been made to
regulate social conflicts otherwise than by the traditional techniques

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[Vol. 52

of law. Interesting though these experiments are, however, they have

no greater significance than those experiments in various areas that
have been made in a number of Western countries that do not adhere
to Marxist doctrine. The U.S.S.R. and the socialist or people's republics of Europe are still states where the social order is founded on law;
a "principle of socialist legality" is simply decorative bunting. In these
countries many people, in their inner consciences, do not expect any
substantial change in this state of affairs within any foreseeable future. Western legal scholars may see in this experience a confirmation
of their wisdom: a civilized society cannot live without law, and the
disappearance of law means unrelieved anarchy.
Thus in the final analysis the Soviet experience is hardly adequate to
convince us that the Western viewpoint about the role of law has been
repudiated. On the other hand, have nations in the Far East been won
over to the Western viewpoint? The situation requires examination in
terms of two distinct patterns, one for Japan, the other for China.
Heavily industrialized, and in the course of a great expansion at
present, Japan is classified today among the liberal democracies. It
has adopted a constitution, codes and laws, all of which are visibly
inspired by Western models. The initial impression is that Japan has
embraced the concepts, rules and institutions prevalent in the West;
Japanese jurists speak our language.
Japanese law has its full value as a jus gentium in international
commercial relations. But how far has law penetrated the conscious
minds of the Japanese? To what extent does law determine their
interpersonal behavior? These issues present a quite different question. Some recent works, written by both Japanese and non-Japanese,
enlighten us on this subject.' An evolution has occurred, and the idea
of law has made great progress in Japan. Many Japanese, however,
deplore this development; moreover, it seems a certainty that the mass
of the Japanese people, particularly in the rural areas but also in the
cities, continue to live without making use of the law, the idea of
which inspires among them only aversion, dread or scorn.
The normal mode of solving disputes in Japan continues to be
conciliation: conciliation effected by the intermediation of relatives or
mutual friends; conciliation brought about under a certain pressure
from leading citizens or from the police, entirely apart from any
recourse to courts; or conciliation obtained even within a judicial
6. See generally D.
ERN

Y.

(1964);

NODA,

HENDERSON,

CONCILIATION AND JAPANESE LAW, TOKUGAWA AND MOD-

A CIIANGING SOCIETY (A. von Mehren ed. 1963);

(1966), available in English as Y. NODA, INTRODUC(A. Angelo trans. 1976).

LAW IN JAPAN: TuE LEGAL ORDER IN

INTRODUCTION AU DROIT JAPONAIS

TION TO JAPANESE LAW

1983]

SOCIAL ORDER

framework, when the parties could not be dissuaded from resorting to

the courts. The courts are relatively rarely involved with litigation, in
comparison with the industrialized countries of the West; Japanese
judges at all levels, not excepting the Supreme Court, do everything
possible to induce the parties to reach a mutual understanding and to
desist from prosecuting their lawsuits. Lengthy delays, regarded in the
West as a functional vice of courts, find their explanation in Japan,
over and above the congestion of the courts and the formalism of
procedure, in the desire to arrange or induce the always preferable
accommodation between the parties. The arbitration clause is unusual
in practice in Japanese domestic commercial relations;7 it is replaced
by a clause providing that in case a difficulty arises, the parties will
undertake to reach an agreement on the basis of conciliation. This last
observation strikes me as important, for it tends to show that the
traditional attitude toward law prevalent in the Far East is by no
means irreconcilable with the complexity and dynamism of a highly
industrialized society.
"In an entirely different political context, the People's Republic of
China provides a similar example of attachment to traditional ways of
thought. It goes without saying that, as a sequel to the Communists'
accession to power in 1949, the codes fashioned on Western models,
adopted during the immediately preceding phase of China's history,
were repudiated. In that early period, meanwhile, the great Soviet
ally vigorously proclaimed the necessity for strict observance of the
principle of socialist legality. According to the teaching of Marx and
Engels, law is destined to disappear in the Communist society of
tomorrow; during its present phase, however, Lenin recognized the
necessity of laws, and Stalin far surpassed Lenin in demanding that
the state be stronger and the law more imperative and better respected than ever before.
In the initial period, the People's Republic of China did its utmost
to follow the Soviet model. Less than a decade elapsed, however,
before the regime repudiated a viewpoint so contradictory to Chinese
tradition, and adopted its own path, conforming much more closely
to the Chinese past. Not only has the perverse political line adopted by
the "revisionists" in the Kremlin been abandoned; beyond that, no

7. Kitagawa, ContractualAutonoinyin InternationalCommercial Arbitration, Including a

JapanesePerspective, in INTERNATIONAL ARBITRATION: LIBER AMICORuM FOR MARTIN DOMKE 133
(P. Sanders ed. 1967). For a particular reason, noted by the author, arbitration is nevertheless
practiced, in relationships between Japanese, in Japanese maritime commerce.

CINCINNATI LA W RE VIE W

[Vol. 52

matter what may be said by the Chinese, Stalinism itself is what

Peking has repudiated. Stalin exalted the role of the state and law
while professing that by the play of dialectical contradictions he
thereby accelerated their withering away. Faithful to Chinese traditions, Chairman Mao wishes neither laws nor judges.
Although it was once the common belief in China that a link existed
between human behavior and the phenomena of nature, the Chinese
Communists reject this. Their conception of social order, however,
inherited from their tradition, excludes the notions of rules, recourse
to judges, and the reign of law. For them, as for their predecessors,
law is good only for barbarians. Law may be applied to the unyielding enemies of society, but it should not be applied to the mass of
proletarians, the good citizens, if their dictatorship is not to be a
mockery. In those matters which are of concern to good citizens-the
immense majority of the people-it is enough merely that they recognize their errors and return to the correct path. The aversion to law
goes much further in China than in Japan. The preparation of codes,
undertaken in accordance with the Soviet example, has been abandoned; courts have been deprived of their functions, in favor of commissions of conciliation depending upon local soviets or unions; and no
system of state arbitration has been created. Even in relationships
with foreigners, the Arbitration Court of the Ministry of Foreign
Commerce, so we are told, has never handed down a judgment; 8 all of
the cases heard by the court have been terminated by an agreement
between the adversaries.
Despite revolutions and changes in regime, however deceptive
words or appearances may be, the West continues as before to conceive of social order as essentially founded on law; the Far East
remains faithful to a different conception which, putting the greatest
emphasis upon consensus and harmony, rejects the notion of law.
These two conceptions of social order, thus considered, are antagonistic. Should one, therefore, declare himself in favor of one or the
other without further discussion? Or rather, should one delimit two
domains in which one or the other conception should be given preference?
As a Western jurist, I find it difficult to repudiate our tradition, and
as a professor of law, I am hardly disposed to perceive law as unjust
and barbaric. On the other hand, the fund of wisdom to be found in
the Far East inspires great respect; and while I do not feel that we
8. Crespi-Reghizzi, Legal Aspects of Trade with China, 9 HARV. INT'L L.J. 85 (1968). The
author cites an article, published in East Germany in 1960, in which sixty-one cases are
analyzed. Id. at 124.

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SOCIAL ORDER

should adopt the Far Eastern conception as our rule, still, it seems to
me, it could serve us as a model.
The Far Eastern viewpoint is not completely foreign to us. In the
West, there has been no lack of minds to extol it on many occasions,
for the viewpoint is certainly alluring. At the beginnings of the Christian religion, Saint Paul, in his first Epistle to the Corinthians, counseled the faithful to let themselves be guided by the spirit of charity
and to renounce their rights rather than hale their opponents into
court, as their adversaries would continue to be their neighbors. Inspired by a greater preoccupation with harmony than with charity,
and therefore closer to the philosophy of the Far East, the Quakers
reject the idea that the majority can make law, and preach in all
circumstances the search for a consensus that commands unanimity.
However tempting this ideal of concord and human brotherhood may
be, the West has come to think not only that law is necessary-and
this point is admitted in the Far East-but also that as a general rule it
is advisable, in the interest of society, to prefer this technique to the
technique of conciliation.
The conversion to this viewpoint occurred in the twelfth and thirteenth centuries, with the renaissance of Roman law studies. Subsequent to that era, the Church itself, with Saint Thomas, distinguished
between the moral point of view (wherein the supreme values continue to be disinterestedness, love of one's neighbor and charity) and
the social point of view (which holds that the important thing is to
realize justice based on law). Society on the whole is best served when
law is made to reign; the very existence of the law, moreover, imparts
value to the virtue of charity.
Several centuries later, the Soviet regime, although preaching a
withering away of the state and law quite consonant with Far Eastern
views, has had to resign itself to admitting that this withering away
will occur only after a transitional period of indeterminate duration,
in the course of which people will have to live in conformity with
strict principles of legality.
It does not follow from all of this that the West has purely and
simply renounced, in the face of the imperfection of human nature,
an ideal which has remained the ideal of the Far East. The truth is
that, from a practical point of view as well as from a theoretical point
of view-and noting a reservation for Marxist doctrine-we in the
West believe in the virtue of law.
The techniques of conciliation should not be envisaged in an abstract manner. These techniques would unquestionably be preferable,
if the solutions to which they led were in truth always freely accepted.
Westerners themselves recognize this willingly, at least in civil mat-

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ters: a "makeshift" arrangement is preferable to a hard-fought trial.

In various Western nations, procedure often seeks, in its initial phase,
to effect a conciliation between the disputants, and to obtain an
abandonment of the litigation by the plaintiff's withdrawal of his suit.
Should we, nevertheless, insist on the search for conciliation to the
same degree as in the Far East? When we consider this Far Eastern
insistence on conciliation, our fear is that the conciliation will be in
large measure a sham; we fear that conciliation will, in fact, end up in
substituting for a decision by a third party, grounded on social interest
and on justice, a solution which the parties accept in appearances
only, having been constrained to an acceptance by various pressures
exerted by social forces possibly responding to arguments other than
the voice of justice.
The compromise to which an individual finally consents runs a
great risk of being in fact imposed by a mediator, whose moral
character, impartiality, and disinterestedness are not above suspicion,
unlike the situation, as a general rule, of our judges. Admitting that
the Far Eastern technique may be superior as a matter of theory, in
practice that technique may result in consecrating the tyranny of some
social group: family, village, class, feudal overlord or landowner in
ancient China or Japan; the Communist Party in present-day China.
Assuming for the moment its authenticity and unfeigned character,
we may ask whether conciliation, even in theory and in all situations,
is a technique superior to law. We in the West may feel some doubt
about this. In his celebrated satire on "the struggle for law," 9 Jhering
developed the thesis that society is ultimately better served when
citizens assert their rights instead of seeking peace at any price. Converging with this materialist point of view is another current, the
spiritualist current, which exalts the "natural rights" of the individual
and the human personality. The search for conciliation at any price
incurs the risk of sacrificing, in the final analysis, the individual to the
interests of the society. Now, if there is indeed justice in taking into
consideration the social interest and in subordinating private interests
to it, the Christian West, as does Islam, believes that this preponderance should bring with it a limit; this is one of the explanations for the
value our own era places on the law. Law, which for some is the result
of the divine will, and for others simply represents justice, has a value
in and of itself. In comparison with men in the Far East, the most
convinced "positivists" in our countries remain idealists, for they be-

9. R. VON J1EHING, DEH KAMPF UMS RECHT (1872).

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SOCIAL ORDER

lieve both in the moral value and the social utility of rules of law.' 0 No
Western jurist establishes any link between human behavior and natural phenomena similar to the links that have been set up by Far
Eastern thinkers from the standpoint of true materialism.
The West starts from the basic premise that rules, either adhering to
a religious doctrine or emanating from rulers, exist, or should exist;
the natural consequence is to confide to judges the application of these
rules, which express the commandments of morality or correspond to
a certain conception of society. In place of the notion of rule, the Far
East substitutes the notion of a simple model. The proposed models,
however, are closely patterned on the phenomena of nature. No claim
is made that they are connected to any divine will; no idea of good or
evil is attached to them; and thus those persons who deviate from
them are not condemned. Just their cooperation is required to avoid
the troublesome consequences to the cosmic as well as the social order
which can result from their conduct.
A Christian jurist of Japan, Professor Noda, has made a most
pertinent observation on this subject: Western law, he writes, will
never truly take root in Japan, unless Japan, like the West (and
Islam), accepts its basic premise, namely, the idea that humans are
equal before God."
From these observations, and as jurists of the Western world, we
are led to regard the Western conception as being in general preferable to that of the Far East, quite as much for moral as for social
reasons. The Western conception, with a moral foundation that the
Far Eastern conception lacks, appears to be better suited to guarantee
human values; furthermore, it appears to have been, and for the
future to be, decidedly more favorable to social progress.
This conclusion, however, cannot stand without some qualifying
nuances. We go too far, it seems to me, when we claim to subordinate
to law all the varieties of social relations, with no distinction or
discrimination. The idea of a rule, which for us is involved in the
notion of law, is not appropriate in all circumstances; there are some
types of relations with respect to which the most that law can do is to
set forth models for individuals and for judges. In these situations,
conciliation should be given a slight precedence over law.
Two broad categories of social relations must be distinguished.
Relations are sometimes established between individuals who are not
linked to one another by any permanent kind of relationship. Some
10. Naschitz, Le problime du droit naturel 6 la lunire de la philosophie marxiste du droit,
10 REVUE ROUMAINE DES SCIENCES SOCIALES (SUE DES SCIENCES JURIDIQUES) 19 (1966). Madame
Naschitz, firmly adhering to the Marxist-Leninist thesis of historical materialism, rejects the
conception according to which jurists of the socialist camp are positivists.
11. Y. NODA, supra note 6, at 188-89.

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strictness may, therefore, be required in the structuring of these relations; the social interest will be served by having these relations fully
subordinated to strict rules of law. In other cases relations are established between persons who, congruent with the natural order or in
consonance with basic conceptions of our society, are destined to
coexist and to cooperate with one another. The relationships between
these persons are intimately linked with the framework supplied by a
family, an enterprise, or a community-a framework to which we
attach a certain value, quite apart from its constituent individuals. In
these latter situations, the extreme individualism of our 4aw is no
longer appropriate. An individual's rights may not be considered
independently of the duties which are their counterparts; such individual rights are properly subordinated to the superior interests of the
group within which the individual's claim to their validity is asserted.
In these circumstances, a greater ambit must be provided for the
techniques of mediation and conciliation; individualism must be moderated. It appears desirable that the lawmaker establish simple models
for this purpose; he should not lay himself open to the charge of
ruining the community, which it appears desirable to maintain, by
sacrificing it to the interests of particular individuals.
The idea thus put forward is not completely lacking in our legal
systems. The "autonomy" recognized in some branches of law (administrative law, labor law) is largely explained by the importance assigned in those areas to certain principles of interpretation, and by the
preponderance which one desires to assure to certain considerations
and to a certain "spirit." Meanwhile, sufficient effort has not been
devoted to distinguishing in the clearest fashion the two categories of
situations that appear to require the two different modes of treatment,
one being more individualist, the other being more permeated by
community concerns, one comprising genuine rules, the other comprising only models. On many occasions, judges have sought to reestablish equilibrium, either by exercising their discretion or their
powers of appraisal or in equity, or by resorting to general formulas.
A bright line, nonetheless, has not been supplied for their guidance,
and in numerous cases the result has been a brand of chaos.
The Far Eastern example may be useful to us in the West. It alerts
us to be on our guard against the excesses of the "legal mind," and
counteracts our tendency to reduce all situations to a problem of
guaranteeing the individual's subjective rights. There are domains
wherein this attitude is legitimate, but there are also areas in which
this attitude is inappropriate. For some categories of relationships, the
advantage lies in affirming the primacy of law; on the other hand,
other conflict situations should be handled by conciliation, without
insisting on a strict legality that would be out of place in such cases.