The Difference that Religion Makes: Transplanting Legal Ideas from the West to Japan and India

Abstract

What is the fate of legal transplants when they arrive from one culture, the Western culture, which is religious, to another culture that has no religion? Using the theoretical framework of legal transplantation developed by Masaji Chiba and the theory of religion developed by S.N. Balagangadhara the problem is tested with two different types of indigenous law, drawn from cultures - Japan and India. Dysfunctional effects result when certain kinds of legal ideas, embedded as norms within the Western culture, which is constituted by a religion, Christianity, are transplanted into those non-Western cultures that do not have religion. Religion and the ideas linked to it (such as the freedom of religion and the separation of religion and state) break down, and become distorted, absurd or nonsensical, and potentially conflict-inducing when placed in a culture without religion. This occurs as the secular state engages in the process of suppressing what it implicitly regards as false religion or idolatrous practices existing within the indigenous culture of a people. As Chiba foresaw, this process can even lead to the identity postulate of a legal culture being altered or destroyed.