2.1. Tracing the origins of the theory and its three dichotomies

Masaji Chiba’s theory of legal pluralism did not emerge from abstract armchair speculation. It was deeply rooted in his relentless empirical inquiries into concrete social phenomena and his extensive experience in fieldwork over more than half a century. At the outset of his academic career, Chiba expressed discomfort with the dominant Germanic legal theory of the time, which was characterized by its precision and formal rigour. What he sought was a “place for the human being” within legal theory—an image of law imbued with the lived realities of people in society (Chiba, Reference Chiba2015, p. ii).

This foundational concern resonates deeply with Eugen Ehrlich’s classic notion of the “living law” (Ehrlich, Reference Ehrlich1936). Ehrlich distinguished between “state law,” legislated by the state, and the “living law,” or the normative order to which people actually adhere in daily life. He insisted that the true centre of social order lies not in codes and statutes but in the everyday practices of social life. Chiba took up this insight and sought to develop it in the complex context of non-Western societies (Chiba, Reference Chiba1998).

Chiba’s inquiry began with the identification of normative practices in Japanese society that diverged from state law. His early studies of local school district systems (Chiba, Reference Chiba1964) and Shinto shrine customs (Chiba, Reference Chiba1970) revealed how official institutions “transplanted” from above were transformed through interaction with traditional local norms. These fieldwork experiences vividly illustrated the dynamics of contested modernities.

Through these experiences, Chiba empirically recognized that no society is sustained by a single legal system, but rather by multiple normative orders. In this respect, Chiba’s perspective resonates with Sally Falk Moore’s concept of the “semi-autonomous social field” (Moore, 1978). Moore conceptualized society as a network of semi-autonomous fields—such as corporations, universities, or local communities—that maintain their own internal normative orders. Chiba’s notion of “unofficial law” can be understood as arising and persisting within such fields.

The breadth of Chiba’s theoretical scope becomes even more evident when compared with John Griffiths’s distinction between “weak” and “strong” legal pluralism (Griffiths, Reference Griffiths1986). Whereas weak pluralism considers only those customary laws officially recognized by the state, and strong pluralism acknowledges the existence of unofficial legal orders independent of the state, Chiba’s framework integrates both into a single analytical perspective, enabling inquiry into their interrelations.

Within these currents of legal pluralism, the work of Franz and Keebet von Benda-Beckmann holds a particularly important position. They have made significant contributions by constructing a rigorous analytical framework for the comparative analysis of different societies and historical periods, a framework that analytically detaches law from the state (von Benda-Beckmann and Turner, Reference Benda-Beckmann and Turner2018). Franz von Benda-Beckmann, in particular, conceptualized law as “objectified cognitive and normative conceptions” and proposed a method for systematically describing the complex differences between state and non-state law by focusing on “dimensions of variation,” such as the degree of institutionalization and the basis of legitimacy (von Benda-Beckmann, Reference Benda-Beckmann2002, pp. 48–50). This provides a powerful perspective for classifying and organizing the conditions of legal pluralism at a macro-level.

2.2. Conceptualizing the three dichotomies as an analytical framework

Out of this empirical and theoretical struggle, Chiba articulated the three-dimensional structure of plural legal conditions through his “three dichotomies of law,” which capture the pluralistic structure of law from three distinct but interrelated dimensions (Chiba, Reference Chiba1988, Reference Chiba1989):

First Dichotomy: Official Law vs. Unofficial Law

This dichotomy distinguishes legal norms based on their source of legitimacy and mode of sanction. “Official law” refers to legal norms authorized by the state’s legislative, judicial, or administrative organs. In contrast, “unofficial law” refers to norms not formally sanctioned by the state but recognized as authoritative within specific social groups, constraining members’ behaviour and even influencing the effectiveness of official law (Chiba, Reference Chiba1988, p. 55).

Second Dichotomy: Transplanted Law vs. Indigenous Law

This dichotomy focuses on the cultural origin of legal norms. “Transplanted law” refers to laws that are intentionally or unintentionally introduced from a dominant or foreign culture. “Indigenous law,” by contrast, refers to laws that originate in the traditional culture of the society in question (Chiba, Reference Chiba1988, p. 55).

Third Dichotomy: Legal Rules vs. Legal Postulates

This dichotomy concerns the mode and level of normative formulation. “Legal rules” are clearly articulated behavioural standards expressed in language, especially in written form. “Legal postulates” are underlying core cultural value, principles, or worldviews that justify, supplement, or revise legal rules. Though not necessarily linguistically explicit, they work as normative guides for behaviour (Chiba, Reference Chiba1988, p. 55).

To give coherence and cultural identity to this pluralistic and dynamic legal structure, Chiba introduced the key concept of the “identity postulate of law.” This postulate represents the value principle—that is, the core cultural values and worldview—derived from a given legal culture’s underlying worldview. It determines which elements will be accepted or rejected when a legal culture undergoes transformation due to external influences (Chiba, Reference Chiba1988).

It is noteworthy that while this fundamental framework of the three dichotomies remains consistent across Chiba’s major works from the late 1980s (Chiba, Reference Chiba1988, Reference Chiba1989) to the early 2000s, its emphasis and method of application evolve—from an analysis of Japanese legal culture (Reference Chiba1991) to a general theory for non-Western law (Reference Chiba1998), and ultimately to a comprehensive tool for global comparative analysis (Reference Chiba2002).

2.3. Critically reappraising Woodman’s critique of Chiba’s theory

While Chiba’s theory constituted a powerful and innovative framework that significantly advanced the study of legal pluralism,Footnote ² it has also been subjected to important questions—perhaps precisely because of its acknowledged importance for law and society theory. Among them, Gordon R. Woodman, a legal anthropologist, raised four fundamental criticisms that collectively posed a serious challenge to the core of Chiba’s framework (Woodman, Reference Woodman1991).

First, Woodman criticized Chiba’s theory for its state-centrism. Because “official law” is defined in terms of state recognition, it privileges the state as the ultimate arbiter of legal legitimacy. This approach risks overlooking alternative normative systems—such as religious legal orders, mafia rules, or international commercial customs—which operate with their own forms of legitimacy and coercive power, independent of state recognition. Lumping all such systems under the label “unofficial law” obscures their own “official” status and ends up hierarchizing legal orders from a state-centric viewpoint (Woodman, Reference Woodman1991, p. 145).

Second, he pointed to the ambiguity of the concept of “a people”. Chiba’s theory tends to treat “a people” as a homogenous and unproblematic unit, overlooking the internal diversity of populations and the fact that individuals may belong to multiple groups simultaneously (Woodman, Reference Woodman1991, p. 145).

Third, Woodman cautioned against the risk of ethnocentricity. He expresses concern that concepts rooted in Japanese cultural experiences—such as Chiba’s notion of the “amoeba-like way of thinking”—might, when applied to other non-Western societies, inadvertently impose a new kind of cultural essentialism (Woodman, Reference Woodman1991, p. 145).

Fourth, and most relevant to the present article, is Woodman’s critique of the rigidity of dichotomies. He argued that the clearly drawn distinctions Chiba makes—such as legal rules versus legal postulates or transplanted law versus indigenous law—do not adequately reflect the fluidity, complexity, and gradational nature of legal reality. For instance, the boundary between legal rules and postulates may not be essential, but instead a matter of degree. Similarly, transplanted and indigenous laws often mix in practice, making their distinction blurred (Woodman, Reference Woodman1991, p. 146).

These critiques are particularly sharp when Chiba’s theory is used as a static tool for classifying legal systems at the macro-level. In the following sections, this article will respond to these fundamental questions from a completely different perspective. First, it will re-examine the very “view of rules” on which these critiques are based (Section 2.4). Then, through a concrete analysis of micro-level social interaction (Section 4), it will attempt to overcome these critiques by empirically demonstrating how the categories deemed “rigid” are, in fact, flexibly accomplished within the participants’ own practices.

2.4. Reorienting the epistemological foundation: Contrasting analytical projects

Woodman’s critiques are sharp and understandable when Chiba’s theory is used as a static classificatory tool at the macro level. To respond to these critiques, however, this article does not engage them on their own terms. Instead, it seeks to reorient the very epistemological foundation upon which they rest. This endeavour is not an isolated one; it is situated within a significant intellectual current in the sociology of law often termed the “praxiological turn.” Leading figures in applying this turn to legal pluralism include ethnomethodologists like Baudouin Dupret (e.g., Dupret, Reference Dupret2005, Reference Dupret2011; Dupret, Lynch and Berard, Reference Dupret, Lynch and Berard2015).

Dupret’s work is particularly relevant here, as it is built upon a “critical inheritance” of Brian Tamanaha’s realist approach. He highly appreciates Tamanaha’s decisive break from essentialism, especially his thesis that “what law is, is determined by the people in the social arena through their own common usages, not in advance by the social scientist or theorist” (Tamanaha, Reference Tamanaha1997, p. 314), a position he developed through a critique of conventional legal pluralism (Tamanaha, Reference Tamanaha1993) and later refined into a non-essentialist version of it (Tamanaha, Reference Tamanaha2000).

However, Dupret also identifies a crucial limitation. He argues that Tamanaha’s approach, for all its merits, remains rooted in an “observer’s epistemology,”Footnote ³ where the analyst describes the normative map of society from the outside (Dupret, Reference Dupret2005, p. 13). The truly radical turn, for Dupret and for this article, is to re-specify the very question that legal sociology should ask, shifting the focus from the “why” to the “what” and “how” (Dupret, Reference Dupret2005, p. 14).

This very reorientation allows us to re-examine Woodman’s critique from a new vantage point. To understand the depth of this turn, we must first examine the epistemological foundation of Woodman’s critique, which is based on two interrelated, implicit premises common to conventional social science.

The first premise is the “observer’s epistemology.” Woodman’s analytical project is rooted in a central question: “How can we, as researchers, construct analytical concepts that are flexible and unambiguous enough to match a complex reality?” (Woodman, Reference Woodman1991, p. 145).

The second, and more fundamental, premise is a specific “view of rules” that is inextricably tied to such an epistemology—one that treats rules as static entities separable from the practices of following them. As Woodman suggests, behind the seeming ambiguity of members’ reality, there must exist an objective, “real” rule to be discovered and described by the diligent researcher (Woodman, Reference Woodman1991, p. 146).

This view of rules as external, objective facts is epitomized by the structural-functionalist model of Talcott Parsons, where actors are presumed to internalize shared value-norms and act accordingly. However, Harold Garfinkel sharply criticized this view for portraying actors as mere “cultural dopes” (Garfinkel, Reference Garfinkel1966)—over-socialized actors who blindly follow the programme of social norms. This model, he argued, black-boxes the practical process through which rules actually come to have normative force in concrete situations.

To break this impasse, Garfinkel proposed a fundamental “respecification” of the problem. This involves shifting the analytical focus from the pre-existing entity of the “rule” itself to the ad hoc “practical methods” that members use to make their own and others’ actions recognizable as meaningful and orderly. The key to this is the practice of “formulating as-a-rule” (Garfinkel, Reference Garfinkel1966). This refers to the work members do when, faced with a particular event, they consult their background expectancies of “what is typical” or “how things normally are.” Crucially, members treat this “typicality” itself as-if it were an objective, context-free “rule” governing the situation. Through this practice, a complex and indexical (context-dependent) event is ordered and made accountable as either an “action in accord with the rule” or a “deviation from the rule.”

Therefore, properties such as a rule’s “exteriority” and “constraint” are not inherent qualities of the rule itself. Rather, they are the “achievements” of members’ ceaseless, interactional work. It is not that “we follow rules because they exist externally and objectively.” According to Garfinkel, the reverse is true: it is because we, for our practical purposes in the here and now, treat rules as-if they were external, objective entities that they take on such an appearance. This causal reversal is the radical insight that ethnomethodology offers.

Grounded firmly in this Garfinkelian insight, this article, following Dupret, undertakes a fundamentally different analytical project. We do not critique Woodman’s question—“What is a better category for the researcher?”—but rather set it aside. Instead, we take up the question forged by Garfinkel: “How do members, in the very sites of practice that Woodman deemed ‘rigid,’ make categories work as practical resources for accomplishing an orderly reality?”

The aim of this article is therefore not to argue that Woodman’s critique is “wrong.” Rather, by shifting Chiba’s theory from the epistemological ground on which Woodman stood (the observer’s epistemology and the static view of rules) to the entirely different ground of EMCA—the theory as a resource for analysing “members’ practical accomplishments”—we aim to present a new theoretical perspective in which Woodman’s critique itself ceases to be relevant. This epistemological turn is the central endeavour of this article.

2.5. Discovering the implicit seeds of micro-level practice in Chiba’s theory

Interestingly, the potential for shifting Chiba’s theory towards the analysis of micro-level practices was not introduced from the outside. Rather, it was already embedded within the theory itself. Central to this latent possibility are Chiba’s concepts of “law in subjectivity” and the “amoeba-like way of thinking,” which suggest internal responses to the critique of rigidity.

This concept of “amoeba-like thinking” can thus be interpreted as a manifestation of the potential, already embryonic within Chiba’s own empirical observations, to overcome the very premise of the “separability of rule and action” on which Woodman’s critique would later rely.

The notion of “law in subjectivity” views law not merely as an objective set of norms, but as something recognized and given meaning by legal subjects themselves. Chiba did not see individuals in plural legal contexts as passive recipients of legal norms. Instead, he portrayed them as active agents who, when confronted with competing norms (e.g., state law vs. community rules), “may be aware of their legal right to choose one of the conflicting legal rules and reject the other” (Chiba, Reference Chiba1989, p. 12). Such choices can impact, reproduce, or transform macro-level legal structures.

Chiba characterized this subjective mode of choice and judgment as the “amoeba-like way of thinking” in the context of Japanese culture. This concept refers to “the ability to act flexibly to adapt to changing situations and to maintain individual personality/identity” (Chiba, Reference Chiba1989, p.116). It highlights legal subjects—understood not merely as passive addressees of law but as active agents—as dynamic practitioners who reinterpret and switch between norms depending on the context.

This article repositions the concept of the “amoeba-like way of thinking” not as a uniquely Japanese trait, but as a culturally specific manifestation of a universal phenomenon—namely, the ad hoc application of rules and the reflexive relationship between rules and action found in all legal practices.

As EMCA has demonstrated, such ad hoc rule use and the mutual reflexive elaboration between instruction and action are not culturally bounded, but constitute universal features of rule use in human societies (Garfinkel, Reference Garfinkel1967, Reference Garfinkel2002). Even the most detailed legal codes cannot cover the infinite diversity of real-life situations. Legal practice always requires interpretive and practical work between general rules and particular cases. Flexibility is not a defect of law, but an essential condition for its operation.

2.6. Recasting Chiba’s three dichotomies as heuristic devices for micro-analysis

To respond to Woodman’s foundational questions, this article presents its central theoretical contribution: a reinterpretation of Chiba’s three dichotomies not as static classificatory categories, but as an analytical perspective for analysing the practical accomplishment of plural legal orders. This re-conceptualization is key to unlocking Chiba’s theory for the frontier of contemporary micro-level analysis.

The key to this approach lies in the dual character of the conceptual distinctions that Chiba theorized. On the one hand, the tensional relationships that Chiba’s dichotomies suggest—distinctions that we might gloss as “official positions vs. unofficial opinions” or “rules from the outside vs. our way of doing things”—are practical categories and resources that members themselves routinely use to justify their actions and make sense of their social world. The analytical power of Chiba’s dichotomies stems from the fact that they are not merely an analyst’s abstract invention, but are deeply resonant with the practical reality of members.

On the other hand, this article transforms these members’ resources into a set of “heuristic questions” for us, the analysts, to see and describe the precise “methods” of orderly accomplishment by members.

What, then, is the relationship between this (hypothesized) “generic structure” and the “heuristic questions” used in our analysis? The relationship can be described as that between an object of inquiry and the analytical perspective for elucidating it. The generic structure is the very object our analysis seeks to illuminate. It is the practical format itself through which the foundational tensions suggested by Chiba’s dichotomies take concrete shape and emerge within members’ interaction. The heuristic questions, in contrast, are the analytical perspective we as researchers adopt to make that accomplishment visible and describable. Guided by the insights of Chiba’s theory about the generic structure, we can formulate specific heuristic questions that direct our attention to discovering the practical methods through which that structure is brought into being.

It must be stressed that the following framework is not proposed as a set of pre-defined boxes for classifying members’ utterances. Such an approach would merely lead us back into the analytical pitfall of imposing an external analytical scheme, which this article seeks to avoid. Rather, inspired by Chiba’s insights, which resonate with members’ reality, we can formulate a set of analytical questions. These questions help us to see and describe how members, through their methodical practices, produce the very distinctions that Chiba’s macro-theory sought to capture. The objective here is not to state that these “dimensions” exist, but to describe the practical work through which normative reality appears as-if it were structured along these lines.

Let us now examine each dimension in turn:

Heuristic Question 1: How do members, in practice, treat the negotiability of a norm? (Official/Unofficial)

Instead of asking whether a norm is “official” or “unofficial” by its source, we ask: How do members, in practice, treat the negotiability of a norm? We can observe practices where a norm is handled as non-negotiable. This is achieved, for instance, by presenting the norm as an external, objective constraint (e.g., “The law states…”) that closes down further debate on its validity. Through such practices, members accomplish the norm as-if Footnote ⁴ it were “official” for the practical purposes of the interaction.

Conversely, we can observe practices where a norm is handled as negotiable. This is achieved by presenting it as a proposal whose very validity is subject to collective agreement (e.g., “Shouldn’t we…?”). Through these practices, members accomplish the norm as-if it were “unofficial,” and its binding force is treated not as something pre-determined, but as contingent on the achievement of local consent in situ.

Heuristic Question 2: What is the practical mode through which members justify their claims? (Transplanted/Indigenous)

We ask: What is the practical mode through which members justify their claims?

We can identify practices of justifying a claim by “bringing in” a resource that is treated as pre-existing the interaction. This resource can be a social maxim, a legal theory, or a scientific fact. Through this practice of “bringing in,” members accomplish the justification as-if it were “transplanted.”

Alternatively, we can identify practices of justifying a claim by “creating” a resource within the very process of the interaction, such as through a physical demonstration, a non-verbal expression, or a collectively achieved feeling in the moment. Through this practice of “creating-in situ,” members accomplish the justification as-if it were “indigenous.”

Heuristic Question 3: What inferential work is a norm being made to do? (Normative Rule/Premise-setting)

Finally, inspired by Chiba’s distinction between “legal rules” and “legal postulates,” we ask: What inferential work is a norm being made to do?

We can observe practices where a norm is made to function as a specific guideline for judging or classifying a particular action. This practice aligns with the function of what Chiba calls a “legal rule”—that is, to present clear standards of behaviour. In this practice, members are using the norm as a “Normative Rule.”Footnote ⁵

On the other hand, we can also observe more foundational practices that justify and orient the application of such a guideline. These practices construct the very perceptual ground on which a judgment is made, setting a particular interpretation as the self-evident starting point. This practice is one that accomplishes in situ the foundational function performed by what Chiba terms a “legal postulate”—the underlying values that ground, justify, or revise legal rules. In doing so, members are using the norm as something “Premise-setting.”

While these questions resonate with the foundational principles of ethnomethodology, such as the indexicality of norms and practical reasoning, deriving them from Chiba’s theory offers a unique advantage. Chiba’s framework was specifically designed to grapple with the tensions inherent in plural legal conditions. Therefore, these heuristic questions are particularly attuned to revealing how actors navigate the complex interplay of competing normative orders in their moment-to-moment interaction. They provide a specific lens through which to apply EMCA’s general machinery to the particular phenomenon of legal pluralism, demonstrating how Chiba’s macro-level map of “what” to look for can be translated into a micro-analytical guide for seeing “how” it is accomplished.

The next section, therefore, embarks on building this “bridge” to a micro-level analysis. It will demonstrate how the rich empirical findings of legal consciousness studies and Ishida’s process analysis can be re-read as powerful evidence for the generic structure of Chiba’s theory, before finally establishing EMCA as the ultimate methodology for explicating how that structure is interactionally accomplished.

3.1. Moving from Griffiths’ “fact” to “phenomenon”

The study of legal pluralism in the sociology of law entered a new stage with John Griffiths’s famous declaration: “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion” (Griffiths, Reference Griffiths1986, p. 4). He critiqued “legal centralism”—the long-dominant ideology that posits law as the exclusive product of the state, superseding all other norms—as a fundamental misrepresentation of social reality. He argued that by defining law as the exclusive product of the state, legal centralism renders invisible the rich diversity of normative orders embedded in everyday life. Churches, families, corporations, and unions all possess their own rules, procedures, and sanctions, which function independently of, alongside, or even in opposition to state law, thereby constituting the actual fabric of legal order. Griffiths’s statement urged sociology of law to shift its analytical focus away from state institutions and towards the lived practices of normative order in people’s everyday lives.

This declaration was a landmark in the sociological study of law. However, our perspective, established in Section 2.6, allows us to take this declaration a step further. Viewed through our lens, legal pluralism is not merely an objective “fact.” It is a “phenomenon” that is continuously accomplished by people in interaction. People negotiate the binding force of various norms by treating them, at times, as non-negotiable (thereby making them “official”), and at other times as negotiable (making them “unofficial”) (Heuristic Question 1). Furthermore, they justify their claims by, at times, “bringing in” social common sense (as something “transplanted”), and at other times by “creating” an in situ understanding (as something “indigenous”) (Heuristic Question 2). The objectivity of the “fact” that Griffiths pointed to is the very product of this orderly accomplishment of work by members.

3.2. Re-evaluating legal consciousness studies: Uncovering the “implicit deployment”

The field that has been the most vigorous in pursuing Griffiths’s challenge has been legal consciousness research. Legal consciousness studies investigate how people experience, understand, and act in relation to law. As Chua and Engel emphasize, “Consciousness in this context refers not only to cognition but also to behavior – the practices of people who are involved with situations in which law could play a role.” (Chua and Engel, Reference Chua, Engel, Chua, Engel and Liu2023, p. 139).

From our perspective, these studies, in their detailed descriptions of “the practices of people involved with situations in which law could play a role,” have implicitly documented how the three generic domains formulated by Chiba are actually operative in people’s lived worlds.

The First Dimension (Official/Unofficial): Qian Liu’s study on “legal collusion” under China’s one-child policy reveals the practice of individuals who, when subjected to the overwhelmingly “official” (i.e., non-negotiable) legal norm, mobilize alternative “unofficial” (i.e., negotiable) norms grounded in relational ethics such as zìjǐrén (“self-persons”) to contest the law’s legitimacy (Liu, Reference Liu2024). This vividly illustrates their practical methods for dynamic negotiation between dual normative orders.

The Second Dimension (Transplanted/Indigenous): Nielsen’s concept of “relational rights” offers important insight here (Nielsen, Reference Nielsen2024). She critiques the dominant legal tradition that sees individuals as isolated bearers of rights—a vision whose justification relies on the practice of “bringing in” pre-existing legal theory (“transplanted”). In contrast, the emphasis on maintaining and repairing relationships, found in many Asian legal cultures, often relies on the practice of “creating” resources such as care and empathy within the interaction itself, reflecting an “indigenous” mode of justification.

The Third Dimension (Legal Rule/Legal Postulate): The Third Dimension (Normative Rule/Premise-setting): Hsiao-Tan Wang’s research on family conflict in Taiwan can be re-read as a struggle over different modes of reasoning (Wang, Reference Wang2019). In the family dispute she analyses, the parties are engaged in different inferential work. One party engages in a “Normative Rule” practice, using the “inheritance law” as a specific guideline to determine who inherits what. In response, the other party attempts a “Premise-setting” practice by raising the question of “what makes a good mother.” By doing so, they challenge the validity of the mechanical application of the inheritance law itself and attempt to reconstruct the perceptual ground of the judgment. Viewed this way, the conflicts described in legal consciousness studies can be understood more deeply, not merely as conflicts of normative content, but as struggles over how to make norms function—that is, a conflict between different modes of practice.

As these findings demonstrate, the “facts” of legal pluralism described in legal consciousness research are not random or ad hoc. They are structured along the lines of the generic tensions mapped by Chiba’s three dichotomies. However, while these studies offer rich descriptions of normative “content” and “process,” they do not thematize how those processes are achieved through specific interactional methods. That is the task to which Ishida’s research, and ultimately EMCA, must turn.

3.3. Appraising the significance of Ishida’s research: Turning Chiba’s theory towards the analysis of practice

If legal consciousness research has “implicitly used” the generic structure of Chiba’s theory, then the research of Shinichiro Ishida can be positioned as a decisive “bridge” that has more clearly “empirically discovered” that structure in the analysis of concrete disputes.

Ishida argues that while Chiba’s theory was conceived as a model for macro-level legal systems, its true value is better confirmed empirically when “utilized in the micro-analysis of the process of disputes or trials—especially the process of norm formation driven by the parties’ expression of their claims” (Ishida, Reference Ishida, Tsunoda and Ishida2011, p. 156). He advocates an approach that focuses on the strategic practices of how disputants “invoke” various norms in society to justify their claims, selecting them as their “paradigm of claim-making” (Ishida, Reference Ishida2006, pp. 207–8).

From this analytical standpoint, Ishida attempts to turn Chiba’s dichotomy of “legal rule/legal postulate” into a more operational tool based on his analysis of marital disputes in Gusii society in Kenya: “formal regulation/substantive understanding” (Ishida, Reference Ishida2006, p. 206). In a civil dispute over the requirements for the establishment of a marriage, particularly where the status of a cohabiting man and woman as spouses is at issue due to non-payment of bridewealth, one party will bring forward a “formal provision.” This is a perspective that defines the legal significance of marriage based on “formal indicators” such as the payment of bridewealth or entries on an identification document (Ishida, Reference Ishida2006, p. 204). In opposition, the other party will counter with a “substantive understanding”—a perspective that understands the legal significance of marriage based on its “substantive content,” such as cohabitation and financial support (Ishida, Reference Ishida2006, p. 204).

From the perspective of this article, the conflict between “formal provision” and “substantive understanding” that Ishida identified is not merely a horizontal, competitive one. When one party brings up “formal provisions” such as the payment of bridewealth or entries on an identification document, they are engaging in a “Normative Rule” practice, using the norm as a verifiable guideline to determine the validity of the marriage.

In response, when the other party invokes “substantive understanding” such as cohabitation and financial support, this is nothing other than a “Premise-setting” practice. It attempts to shift the basis of judgment from “form” to “substance,” thereby seeking to alter the very ground on which the marriage should be evaluated.

Therefore, while Ishida’s analysis was groundbreaking in empirically discovering that parties mobilize different rhetorics of claim-making, our framework allows for a deeper explication of the dynamics at play. It reveals the asymmetrical and hierarchical relationship between these two rhetorics: a struggle between different levels of practice—the application of a guideline versus the subversion of the very premise for that guideline’s application.

Nevertheless, Ishida’s analysis plays a vital role in our argument. This is because it intentionally focused on reframing the theoretical frameworks presented by Chiba’s dichotomies—as dynamic resources that people actually utilize in the midst of interaction. It is this very shift in analytical perspective that opens a path towards EMCA.

3.4. Establishing a methodology for elucidating phenomena: Ethnomethodology

Here, the ethnomethodological perspective, which has so far been discussed as a reinterpretation of Chiba’s theory and a response to Woodman’s critique, will be more systematically organized as the analytical approach of this article.

If legal consciousness studies have implicitly utilized Chiba’s generic structures and Ishida’s conflict process research has empirically discovered them, then the role of EMCA, as introduced in this article, is to elucidate how and by what practical methods these structures are ultimately accomplished in specific social situations through members’ own practical work.

This shift in perspective parallels a major transformation in the history of sociological theory. Whereas Émile Durkheim urged sociologists to “treat social facts as things,” Harold Garfinkel insisted that the task is to analyse how members make social facts “thing-like” in the first place; the objective reality of social facts is itself the fundamental, ongoing practical accomplishment. As he famously stated, EMCA’s central claim is to re-specify Durkheim’s aphorism: social facts are not merely external constraints, but are the ongoing, practical accomplishments of members’ ordinary activities (see Garfinkel, Reference Garfinkel2002, e.g., pp. 93–105).

Similarly, while Griffiths’s declaration that legal pluralism is a “fact” rightly shifted the attention of socio-legal studies to normative complexity and plurality, this article builds on his insight by performing a parallel re-specification: How is that “fact” of legal pluralism achieved as a “phenomenon” within concrete interaction? The methodological key to addressing this question lies in ethnomethodology.

4.1. Situating deliberation as the site of “contested modernities”

The Lay Judge System in Japan, introduced in 2009, was designed to try serious criminal cases. A panel consisting of three professional judges and six ordinary citizens determines not only the guilt or innocence of the accused but also the sentence in cases of guilt. One of the purposes of the introduction of the system was, in the words of the Justice System Reform Council that led the institutional design, to “reflect its sound common sense in the content of trials” (Justice System Reform Council [JSRC], 2001). However, deliberations by people with asymmetric knowledge and experience of the law constantly face the dilemmatic challenge of the institutional goals: (1) “reaching an appropriate conclusion based on the law and evidence” and (2) the institutional goal of “promoting and respecting the free expression of opinions by lay judges” (Kitamura, Reference Kitamura2019). This institutional context is precisely the stage on which the pluralistic legal conditions that Chiba speaks of emerge as a concrete problem in social interaction.

The deliberation excerpts analysed below are from a recording of a full-scale mock trial and deliberation that was broadcast as a television documentary programme (Figure 1).Footnote ⁹ The transcription uses standard conventions in CA (see Table 1). In each line, the original Japanese is followed by its natural English translation.

Figure 1.

Scene from the deliberation (©NHK General Television, “Can You Impose the Death Penalty?,” on 6 December 2008). Used with permission. (The Japanese characters mean “deliberation”)

Table 1.

Selective transcription conventions (see Hepburn and Bolden, Reference Hepburn and Bolden2017 for the full system)

4.2. Accomplishing “unofficial law”: The practice of using typicality as a rule

First, let us examine how lay judges establish “common sense” as a valid norm—as “unofficial law”—within the deliberation setting. This process resonates deeply with the practice that D. L. Wieder (1974) called “telling the code.” As Wieder’s study demonstrated, members use norms (codes) as practical resources to justify their own reasoning and persuade others. The following conversation, which this section analyses, is a classic example of how “unofficial law” is accomplished in situ: it shows a lay judge, L5, presenting a piece of common-sense knowledge (a code)—that “a thief would normally run away”—and interpreting the defendant’s actions in light of it.

[Context] This scene is from the middle of a deliberation on a robbery-murder case. The main point of contention is whether the defendant had the intent to kill. In prior discussions, it was established that the defendant, after being discovered, “confronted” the victim instead of fleeing. The following conversation is a moment where the participants attempt to interpret the meaning of this “confrontation.”

This exchange can be analysed as a fundamental practice of order production that Garfinkel discussed in “Study of Norms,” as detailed in Section 2.4: namely, “formulating as-a-rule” (Garfinkel, Reference Garfinkel1966). According to Garfinkel, the phrase “as a rule” has a dual aspect: “as a rule/as is typical” and “as a rule/according to a rule.” People refer to an event in light of their background understanding of “what is typically the case” and treat that “typicality” itself as a normative “rule” for judging the meaning of the event. Through this practice, the meaning of complex and ambiguous (indexical/context-dependent) events and actions is accomplished as an orderly thing, either as an “action that follows the rule” or as a “deviation from the rule.”

The scene from the deliberation captures this very practice in action. The utterance by Lay Judge L5 (lines 01–03) is a perfect illustration. He presents the typicality of the common-sense behaviour associated with a specific membership category (Sacks, Reference Sacks and Sudnow1972a; Sacks, Reference Sacks, Hymes and Gumperz1972b) (“a thief”)—a shared background expectancy that “if a thief is found, he normally runs away.” He then points out that the defendant’s action (“confronting”) constitutes a breach of this expectancy. This breach becomes an accountable matter, for which L5 offers the presence of “some kind of intention” (i.e., intent to kill) as an inferential solution.

In response, the utterance by L2 (line 4), as indicated by the conjunction “でも” (but), is produced as a clear challenge to L5’s inference. L2 employs the very same practical method. He introduces another common-sense rule associated with another category—“a person who really intends to kill”—(“I would go ahead at the stage when the light was turned on”). He thereby shows how, in light of this new rule, the defendant’s action can be reformulated. While from L5’s rule the act was a “deviation” indexing the presence of homicidal intent, from L2’s new rule it is reformulated as a “deviation” that now indexes its absence. L3 (lines 5–7) then aligns with L2’s claim and reinforces its rationality by mobilizing another fact (“because he knew that the wife was sleeping upstairs”).

How, then, is this analysis using our three heuristic questions justified? The warrant is found in the participants’ subsequent responses. L2’s challenge to L5’s inference (line 4), initiated by the conjunction “でも” (but), is the very interactional move that empirically grounds our analysis on all three levels.

This practice is accomplished through the members’ own orientation to all three dimensions that our heuristic tools illuminate.

Heuristic Question 1 (Official/Unofficial): Both L5 and L2 present their respective common-sense norms in a way that invites agreement. This shows that these norms are being treated as negotiable, as their validity is open to collective assessment. Through this practice, the norms are accomplished as “unofficial.”

Heuristic Question 2 (Transplanted/Indigenous): To clarify our analysis, let us first consider what an “indigenous” norm might look like by way of contrast. For example, if a participant were to say, “No, as we just confirmed earlier, let’s hear everyone’s opinion first.” In this case, the warrant for the norm’s validity is explicitly sought not in the common sense of the wider society (external), but in a specific, historical event indigenous to this deliberation (“as we just confirmed earlier”). This is the practice of using what we call an “indigenous” norm. In contrast, the norm L5 uses in our example has a clearly different origin. He brings in a piece of general social knowledge from outside the deliberation—“what a thief would do”—as a resource for his reasoning. The validity of this reasoning relies not on the internal history of the deliberation, but on the common sense of the external world that the participants presumably share. And what is decisive here is L2’s response. He does not question the procedure of bringing in external knowledge itself. On the contrary, he too brings in another piece of external knowledge—“what someone with intent to kill would do”—to counter L5 solely on its content. This demonstrates that the method of “transplanting” external knowledge to advance an argument is being mutually acknowledged by both parties as legitimate in this context. Thus, that they are treating this norm not as “indigenous” but as “transplanted” is empirically evident in the interaction itself.

Heuristic Question 3 (Normative Rule/Premise-setting): Both L5 (“a thief would run away”) and L2 (“someone with intent to kill would act sooner”) are presenting their common-sense knowledge as a specific guideline for classifying and judging the defendant’s action. Therefore, this scene is a clear example of two competing “Normative Rule” practices.

Thus, our analysis using the three dichotomies is not based on the analyst’s arbitrary interpretation, but on the interactional orientations displayed by the participants themselves in situ.

【Sub-conclusion: Answering Woodman’s Critique ①】

What this entire conversational sequence shows is that common-sense knowledge—which, from our reinterpreted Chibaean analytical perspective, is none other than the practice identified as an “unofficial legal rule”—does not have a fixed meaning in itself. Rather, it is a dynamic process in which its meaning is negotiated and accomplished in the highly ordered interactional sequence of claims, challenges, and reinforcements. This empirically demonstrates that the “Legal Rule/Legal Postulate” dichotomy, which Woodman questioned as “rigid,” is not a static classification but a set of categories whose function and boundaries are achieved by participants in the course of their practical reasoning.

4.3. Performing boundary work as transformative formulation: Accomplishing the pluralistic legal order

Section 4.2 demonstrated that the generic structure of Chiba’s theory empirically exists as the orientation of the participants themselves. In this section, let us examine how these “unofficial” norms brought in by the lay judges are connected to or managed by the “official” legal order. The following continuous sequence from the final phase of the same mock deliberation demonstrates magnificently how all three of Chiba’s dichotomies are accomplished simultaneously, sequentially and interdependently within a single interaction. This analysis reveals how the different normative dimensions are not only co-present but are intricately woven together and are dynamically “accomplished” through the participants’ interactional practices.

[Context] This is the final phase of the deliberation on the same robbery-murder case. Participants are discussing the dangerousness of the stab wound while viewing a photo of the victim’s wound in the groin area (Figures 2 and 3). Crucially, in a preceding phase of the deliberation (not shown in the transcript), the professional judges had explained to the lay judges a key point of law: to legally establish “intent to kill” (satsui), a “strong will” to kill is not required; an “awareness of the danger” of one’s actions (a form of dolus eventualis) is sufficient. They had also explained that proving a “strong will” would be difficult in this particular case. The following exchange unfolds against the backdrop of this prior judicial instruction. The sequence begins with one of the associate judges (J2) standing up with a model knife in his hand.

Figure 2.

Photo of the stab wound. Used with permission

Figure 3.

L2 viewing the wound photo. Used with permission

【Excerpt 2】 01 L2：((手に持って見ていた傷の位置図をテーブルの中央に置く))

((L2 places the diagram of the wound location, which he had been holding and looking at, in the centre of the table))

01 J2: ((立ち上がって模造ナイフと指で傷の位置を指し示しながら))

((J2 stands up and points to the location of the wound with a model knife and his finger))

02(3.5)

03 J2: ((正面に座るJ3に視線を向けて)) 真下に2センチですか？

((Looking at J3 sitting opposite)) Is it two centimetres straight down?

04 J3: え::, 真下に9センチ, 右に2センチ=

Uhm::. Nine centimetres straight down, two centimetres to the right=

05 J2: = 9センチで：，右に2センチ．

= Nine centimetres:, two centimetres to the right.

06 J2: これぐらい，この辺．(1.6)この辺 (.)この辺から傷がはじまっている．

About this much, around here. (1.6) Around here (0.4) The wound starts from around here.

07 J2: 刃物の 幅以上にね， 傷ってできますから，こう皮膚を刺して ::

A wound can be wider than the blade, you know, so stabbing the skin like this::,

08(3.5)

09 L2: すいません。僕は自説は撤回します．

Excuse me. I retract my previous stance.

10 J1: ん：：

Mm::

11 J2: やっぱり、今、客観的なものにたちもどってみると,

Well, now, looking back objectively,

12 L2: ((うなづきながら))ええ

((Nodding)) Yes，yes

13 J2: イメージ以上に： やっぱり[体の中心部で [ あったということですか?

more than you imagined:: it was indeed [the centre of the body, [is that right?

14 L2: [ええ：：   [はいはいはい.

[Yes:: [yes, yes, yes.

15 L1: ((J2を向いて)) 強い意思を持って：,

((Facing J2)) With strong intent::

08 J2: 強い意思を持って、そうです.

Strong intent, yes, that’s right.

09 L1: で，被告人は強い意思をもって刺したと？

So, the defendant stabbed with strong intent, right?

10 J2: はい，危険性を認識していた, (.)そうです．

Yes, he was aware of the danger, （.) that‘s right.

11 L1: ((小さくうなずく))

((nodding))

This excerpt illustrates a sequence of interaction in which an embodied action is structured into an institutional judgment. This process can be analysed in three distinct stages, illuminated by our heuristic questions.

Stage 1: The Embodied Instruction and its Uptake

The sequence is initiated by the non-verbal demonstration with a model knife by J2. This is not merely a visual aid but a robust institutional act. As Charles Goodwin (Reference Goodwin1994) notes in his work on “professional vision,” such embodied actions can operate by “highlighting” specific visual information and thereby structure the perceptual and interpretive process within interaction. Here, J2 is not simply verifying the “objective” diagram of the wound location but, by physically enacting the bodily motion that could have produced the wound, is dynamically reconfiguring the very “way of seeing” the static photographic evidence. By gripping the knife with both hands and forcefully thrusting it downward, J2 nonverbally conveys to the other participants a specific interpretation: the wound was not accidental but deliberate and extremely dangerous.

The sequence that unfolds below presents a phenomenon of a different order from the members’ practice of “telling the code” analysed by Wieder (1974). Whereas the lay judges in the previous Section 4.2 used pre-existing codes, that is, common-sense typicality, as a resource, here we witness an institutional authority—the judge—creating a new interpretive framework (“awareness of the danger”) in situ through bodily practice and connecting it to the logic of official law. This captures the dynamism of a boundary practice through which an unofficial norm is transformed into an official judgment.

This practice can be analysed from the perspective of our heuristic questions. This analysis is grounded in how the participants themselves, in a way that is observable within the interaction in situ, produce actions, how they treat those actions, and how they make them mutually intelligible and accountable.

Heuristic Question 1 (Official/Unofficial): The act, performed by a professional judge, is produced as something that concludes the debate on its meaning. By being produced not as a personal opinion but as a demonstration designed to be seen as judicial fact, it is designed to close off the possibility of negotiation. This act treats counter-arguments or negotiations as (sequentially) inappropriate. Through this practice of powerfully constraining the next possible response, it is accomplished as “official.”

Heuristic Question 2 (Transplanted/Indigenous): The basis for the judgment here, “dangerousness,” is not “transplanted” from an external text such as a legal code or past precedents. Rather, it is “created” as an observable and self-evident fact for the members present, through the very physical demonstration by Judge J2. In that the source of the norm lies not outside the interaction but within the practice of that very moment, this is a quintessentially “indigenous” practice.

Heuristic Question 3 (Normative Rule/Premise-setting): The practice of Judge J2 here is entirely different from a Normative Rule practice. He is not providing a specific guideline for judgment. Instead, through his physical demonstration, he constructs the very perceptual ground upon which the act is to be seen as “dangerous.” By manipulating the very “way of seeing” the phenomenon and setting a particular interpretation as the self-evident starting point, this is a quintessential “Premise-setting” practice.

L2’s subsequent statement, “I retract my previous opinion” (line 9), provides the empirical warrant for this analysis. His retraction, though seemingly spontaneous, is in fact an “instructed action” (Garfinkel, Reference Garfinkel2002; Lynch and Lindwall, Reference Lynch, Lindwall, Lynch and Lindwall2024), interactionally organized by the judge’s demonstration. This very reaction from L2 provides the empirical evidence that he himself oriented to J2’s physical demonstration not as a mere opinion, but as a locally “created” (“indigenous”), non-negotiable (“official”) “premise” powerful enough to make him reconsider his own stance.

Stage 2: The Verbal Reformulation and its Ratification

Following L2’s sudden and unreasoned opinion change—an interactionally accountable matter—J2’s question, “So, it was at the centre of the body, right?” (line 13), exemplifies a powerful form of “reformulation” (Heritage, Reference Heritage1984). This practice works by proposing a candidate reason for L2’s otherwise unaccounted-for shift in position.

Crucially, this is not a neutral summary of a shared understanding. The judge’s choice of the phrase “the centre of the body” is a strategic linguistic upgrade. It replaces a more concrete and colloquial term reportedly used by the lay judges in prior talk (not in transcript)—“the groin” (足の付け根)—with a more abstract and institutionally potent one.

This upgrade does significant interactional work. While “the groin” points to a specific anatomical location, “the centre of the body” evokes a zone of vital organs and critical danger. The reformulation thus transforms the lay members’ concrete observation into a phrase that carries a heavier weight of legal and medical seriousness. In doing so, it translates their shared understanding into an institutionally meaningful and accountable reason that is already oriented towards establishing the “dangerousness” of the act.

Heuristic Question 2 (Transplanted/Indigenous): The judge’s reformulation does more than just “bring in” pre-existing anatomical knowledge. By strategically selecting the phrase “the centre of the body” over the lay term “the groin,” he skillfully transforms the “created-in-situ” (“indigenous”) resource from Stage 1. This new formulation is not merely a neutral, objective label (“transplanted”); it is a hybrid resource, forged in the moment to imbue the shared embodied experience with a heightened sense of institutional danger.

Heuristic Question 3 (Normative Rule/Premise-setting): Through this reformulation, the embodied “premise” from Stage 1 is converted into a verifiable and institutionally potent guideline. “The centre of the body” now works as a specific criterion for judging the act’s dangerousness. This marks a crucial transition from a Premise-setting practice to a Normative Rule practice.

This interactional accomplishment is not a one-sided instruction but a collaborative construction of shared understanding, ratified by L2’s subsequent agreement (line 14). L2’s emphatic agreement (“yes, yes, yes”) provides the empirical evidence that he himself ratified J2’s reformulation. He endorses it not just as a translation into objective knowledge, but as a legitimate and powerful reframing that connects their shared embodied experience (an “indigenous” resource) to an interpretation loaded with legal consequence (a strategically “transplanted” resource).

Stage 3: The Final Transformation into a Legal Category

The sequence culminates when another lay judge (L1), still operating within a common-sense framework, offers his understanding using the category of “strong intent” (15 L1). In response, Judge J2 first aligns with this (line 8, “Strong intent, yes, that’s right”). However, in his final turn (line 10), he completely omits the lay term and replaces it with the expression he had previously instructed as the legally sufficient standard: “he was aware of the danger.” This replacement is legally precise because it shifts the standard for judging intent from the lay concept of “strong intent,” which corresponds to direct intent (dolus directus), to the correct legal doctrine applicable here: dolus eventualis, for which “awareness of the danger” is the core component. This is a quintessential example of what Kitamura (Reference Kitamura2019) terms a “transformative formulation.”

Questions 1 & 2 (Official/Transplanted): The final conclusion, “he was aware of the danger,” is derived from the criminal law framework, a non-negotiable system (“official”). Its legitimacy is established by “bringing in” this pre-existing legal theory (“transplanted”).

Question 3 (Rule): And it functions as the ultimate “Normative Rule” for making the final legal judgment.

The lay judges’ sensory and common-sense understandings are progressively transformed and ultimately integrated into the official legal framework through this series of “transformative formulation” practices. This interactional accomplishment powerfully illustrates that institutional boundaries, categories, and the legitimacy of judgments are not fixed but are sequentially negotiated and constructed within interaction.

【Sub-conclusion: Answering Woodman’s Critique ②】

This series of “transformative formulation” practices brilliantly shows how all three of Chiba’s dichotomies are accomplished simultaneously and in interrelation within a single interaction. And it responds to two of Woodman’s critiques—“state-centrism” and “rigidity”—at the same time.

First, what counts as “official” and “unofficial” is not determined by an external criterion of state recognition, but is accomplished as authoritative on the spot through the judge’s interactional practice of formulation, whereby a norm is treated by members as either negotiable or non-negotiable.

Second, the boundaries between the categories of “official/unofficial,” “transplanted/indigenous,” and “rule/postulate” are not fixed, but are flexibly and strategically redrawn and managed through this practice of formulation. The “ambiguity” of the categories that Woodman identified as a problem is not a flaw in the theory, but is precisely the ingenious practice that participants use to accomplish order.