two parties are more or less evenly matched in terms of strengths and resources.
But if you have, on the one hand, the all-powerful state and, on the other hand, a poor villager who complains of harassment by the police and then you expect to apply an adversarial system, it is obvious that the results will be far from impressive.
Today our approach is that the person who complains of an infringement of his fundamental rights must undertake the burden of establishing his case. He must collect all the necessary documents from the files, he must produce the necessary witnesses, he must make the necessary affidavits available to the courts and it is for him to establish in their entirety the elements of his case. That is obviously a futile undertaking.
It is not something that he is capable of doing at all because he finds himself pitted against the almost unlimited resources which are at the disposal of the state. So this whole tradition of adversarial jurisprudence which we have uncritically applied in all spheres is something that has deprived a great part of our judicial system of meaning and substance.
And that is certainly a deficiency that indigenous people have avoided consciously and studiedly in formulating the basis of their own legal and judicial system. If you examine the character of an indigenous legal system, you will find that the principles are very simple, unsophisticated, lacking in complexity.
In most indigenous legal systems the basis of the law of contract is simply the principle that your word is sacred. If you give the other person your word, you enter into a transaction on that footing, then you are liable if there is any infraction any violation or infringement of your promise. Later legal systems, especially the legal systems inspired by the Western tradition, took on a certain dimension that is entirely lacking in the traditional or indigenous legal systems.
For example, the English law adopted the criterion of consideration. I don't want to go into technicalities, but contrasting primitive and indigenous legal system said all that is necessary to make your promise enforceable is proof that you intended to be bound. You made a solemn promise by which you intended to be bound and without anything more that is sufficient to make you liable if you break your promise. That is all that is important. The intention to be bound by the promise that you have offered to the other contracting party. In the primitive legal system that is sufficient to make a contract enforceable.
Not so under English jurisprudence where a promise is enforceable only if it is buttressed by the concept of consideration. That is, if I give you a promise, you can sue me on that promise only if you have given me something of value in return for my promise to you That is the passing of consideration. The transfer of something that is of pecuniary or monetary value. That is intrinsically an English concept that is part and parcel of the English common law tradition. It has no equivalent, no parallel in an indigenous legal system.
So as you move away from nature, as you move away from basic morality, as you move away from the attributes of human nature, you find yourself embroiled in complexities which defeat the very purposes of the legal system. I think that is a reality that we need to be conscious of when we evaluate the character of indigenous legal systems in comparison with contemporary legal systems.
To my mind the fundamental concept that is embodied in traditional systems of law and morality is just this. The Roman jurists put it in a particularly convincing way when they spoke of the concept ex aequo et bono. That is an equitable jurisdiction English law in due course spoke of equity. That is the idea that you will do good, you will do no harm and this equitable doctrine was utilised to fill any gaps in the existing law.
Today take the traditional law of Japan. In regard to the whole of labour relations, Japanese labour law even today has this large equitable content. The whole relationship between the employer and employe