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On The Transformation Of Original Habits To Original Customary Law

Posted on:2017-03-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:L B XiaFull Text:PDF
GTID:1106330488955059Subject:Legal theory
Abstract/Summary:PDF Full Text Request
A field of Anthropology and history has in the primitive society and customs, worship, witchcraft, religion, military system and so on a large number of studies, jurisprudence on the origin of law and customary law research is concentrated, but the habits of primitive society to the customary law into the process and principle of, but few people to conduct the research. Through the study of this problem, we found that the original customary law formed the basic principle, this principle also contains views on the origin and the nature of the problem.According to the previous collection of various historical literature and data, anthropology and Archaeology found, as well as some translations, books, articles,the author intends to special discussion on the habits of primitive society to the customary law transformation process, in addition to the introduction and conclusion, the text is divided into five chapters:The first chapter mainly analyzes the basic state of the primitive society and the main social contradiction. First, from the origin of human hands, introduces the process of human evolution and history, and points out the special significance of the development of people’s thinking ability in the course of human evolution; then introduces the four main forms of human evolution theory from the perspective of social organizations, including Morgan’s "ignorance- Savage- civilization" three stages of evolution Stewart, the "hunting and gathering- early agricultural- formed-four stages of regional prosperity- cycle of Conquest" five types of evolution, "Oberg organized with edge tribe- flange tribe- the political Chiefdom- Federal State- state- God right Empire" six types of evolutionary theory and service the tour group- tribe- Chiefdom nation "evolution theory, and on the basis of comparative analysis that the four stage evolution theory of service than the three stage Morgan’s theory more realistic in human history And will the as the foundation of the analysis of this paper. Finally according to the time sequence of human evolution, the primitive society "the principal contradiction in the group-- the tribal Chiefdom" tour were analyzed separately.The second chapter is based on the first chapter of the analysis of the main contradiction of the primitive society, the primitive society of the habit of processing and demonstrates the normative role of the original habit. First according to the specific form of primitive habits, divided into production habits, living habits, habits of marriage and family, funeral customs, inheritance custom, religious habit and custom of war, defense and security habits, voting habits and other types of ten, and analyze the original habit formation process and the principle of psychology. Then the author analyses the problems of primitive habits of human behavior is the "guidelines", "forecast", "evaluation" and other three normative role and its historical limitations.The third chapter mainly introduces the types of the primitive society, as well as the general understanding of the original judgment. According to the main contradiction of primitive society, combined with the data of history, archaeology and extensive anthropological fieldwork, the original social judgment are classified and described respectively from the referee, referee and referee the main form; on the basis of the original social judgment for the formation of a general understanding, including: the referee the position is a neutral third party, the referee is on the basis of the original moral habits and the gods, the refereeing process is simple, direct, open, procedural, common and finality characteristics, judge the main authority and judgment authority is unified, the subject and the parties contrast the disparity in power, with the referee strong local color, the referee has sanction and enforcement power, the referee does not distinguish between civil and criminal cases, the result has guide and evaluation And the role of norms, etc..On the basis of the first three chapters, the fourth chapter demonstrates the process and principle of the original judgment, which transforms the original rules(habits, morals, taboos, religion, etc.) into the original custom law. First demonstrated the precondition of the original referee can occur is primitive custom, morality and Witchcraft(taboo) and religion of the original rule and the original rules do a preliminary comparison and analysis; and then analyzes the formation of primitive customary law basic principle, this principle is: after the occurrence of social conflicts, in order to resolve the dispute, judge on the basis of the original rules of the referee, and ultimately the formation of the original customary law. Finally, it is further analyzed that the original judgment should be the only way to produce the original law.The fifth chapter is the re understanding of the formation process of the original custom law. The original first demonstrates the social background is not "two society" mode, but "three society" mode, on the basis of the argument in the primitive society, only when the original judgment is "original customary law in order to form a neutral third party evaluation; then analyzes the essence of the original customary law is the original social relations of production and life, and puts forward the logical process of original customary law is formed: the relations of production and life, the original rules, the referee, the relationship between the original customary law; it also analyzes the relationship and difference between the original customary law and national law early, that the original formation of customary law still exist and play an important role in future in the country, and an important source of the original customary law and early state law; but the original customary law and state law and a clear distinction, from the form and nature of law quality, the development of the subject, the implementation of the main body, content and scope of application are compared and analyzed. It can be seen that the early national law was stained with a lot of "evil" color, which is the inevitable result of the early national law deviate from the "neutral third party evaluation" of the formation of the principle of the principle of the law.
Keywords/Search Tags:the primitive custom, the judgment, the primitive custom law, the third party evaluation
PDF Full Text Request
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