Tradition And Modernization: Folklaw In The Local Society

Now the academe has a great urge to the folklaw research. But there is still an absence for a systemic and all-around analysis of this area. There is no books of historic messiness, high theory and fantastic study of positivism. This article used some point views and methods of legal sociology, legal anthropology. And basing on the fruit of research, it focus on the respect to the history, the combination of theory and reality, the communication of tradition and moderation, the innovation of idea and study, the return to the common sense, the very environment of China, and the living scene and experience of the villages. It dedicated to do some critical thinking on the role of folklaw, the function, and practice of it. What is folklaw? The point of this part is the analysis of why we are doing the research of folklaw. What is the meaning? How to define it among so many different points of views? And further more, a deeper discusses of the features of folklaw, the value of its existence and its relation with the national law would be developed. How to realize floklaw? In order to give a full understanding of foldlaw, this part focused on the thoughts of it from a muti-layer viewpoints, which concern the history, the relationship between nation and society and culture anthropology. It gave a specific analysis of the regulation system of local society, the reason for the departure from national law, and the development of folklaw indeed.It expounded the attention to the reasonable re-organization of society and the importance of folklaw. And at the same time, with the view of culture anthropology, it further on the survey of the status of folklaw and its influnce from the dicusion of the language entironment and the relationship of the upper and lower tradition. What can folklaw do? This part aimed at the negative influnce of the departure from the trditional legal culture in recent history. It claimed a resonable use of local legal resource. It explained the meaning of folklaw to the modernized law. At last, it set forth the important role of folklaw basing on the analysis on the influnce of clan to the locla society, the practice of local courts, and the practice of local regulations made by villagers themseleves. What is the foreground of folklaw? This part focused on the embodiment and reasons of the conflicts of national law and the folklaw. It addressed kinds of possibilities, types and mechanisms of the interaction of folklaw and national law.And it also gave a measurement on this issue. At the same time, it furthered on the analysis on the rationality of the existance of folklaw and pointed out its defects. An emphasis is put on the importance of national law in the future. And what is more, it also pointed out how the local soceity will adjust to the application of national law. The traditional society of China is a nation highly organized. The nation controlled the resources in a high degree. The order of society presented a strong color of public law. In the law, the nation is first, the society second, and the public law first, the private law second. This attitude led to the situation that a mass of laws occurred, but many folklaw were neglected. The goal of the modernization of law is to make a harmonious environment for the nation and the society, the public and private law. Now this article focused on the folklaw is of meanings. It would change the past thought that law had to be from the nation, and it must be uniform and exclusive. We have to know about that there are still anther regulations besides the national law. There is anther power too. In the course of the development of law, we need to find out some other resource, so that we can have a good grasp at the kinds of resource we have to use in the development of law. And this will help us to understand the law from a historic and social view. And we can connect the theory with certain environment. This will make for the positive interaction between national law and folklaw. And it also will be good for the research of the...