| Usually, jurisprudence only pays attention to positive law, and jurists often keep some nationalistic opinion of law. Although this opinion has its rationality of some extent, it overlooks an important fact, that is, positive law is only one member of law life in any society, and no matter what a important role it plays, it can only establishes part of the legal order. In fact, either in the society of pre-nation age, or in different nations and periods of nation age, various norm patterns are needed to satisfy the needs of various social units, such as family, nation, patriarchal clan and community. They share with the same symbol of law and have the same effect of law in a way, and they are called "law" or "quasi law". We may say, customary law is such a kind of "law". Although it does not decided or approved by the government, it has the same affect as national law of directing, affecting and adjusting daily life of people. However, there are also some difference between customary law and positive law, such as the origin, the form, and the background, etc. Therefore, except cooperation, there are also strangeness, contradiction and conflict between customary law and positive law. During the course of rule-of-law in china, the enforcement of positive law has encountered with many difficulties, which relate to the conflict between customary law and positive law. In a sense, the bad relation between customary law and positive law has become an obstacle during the course of rule-of-law, and which arouse jurists to review the road of rule-of-law relying positive law. Then, the research of folk law becomes a hotspot of jurisprudence, in which customary law is the main object.The research of folk law has broken through or surpassed the law view of nationalism, and has significant meaning of paradigm. So-called folk law paradigm, could not only broaden and deepen the jurisprudence, but also develop legal system and advance the order of rule-of-law. Undoubtedly, the theory and the practice of rule-of-law have dual influences from Chinese legal tradition and western legal tradition. During the course of rule-of-law, a critical question is how to advance the communication, dialogue, and fusion? And a correlative question is how to connect the historic experience with current practice of rule-of-law? We can see, the research of customary law has special value to the questions, which could break through or surpass the nationalistic opinion of law, and become a practice area of fusion of different legal tradition and cultures. Therefore, with the theme of rule-of-law, this article will mainly discuss the theory and practice of customary law under the background of rule-of-law.The methodology of this article shows us an all-around character. Certainly, normative analytical method is the core method of jurisprudence. However, except normative analytical method, there are also some other important methods, such as philosophical method, legal culture analytical method, comparative law method, legal sociology method, and economic analytical method, etc. These methods are important supplement of normative analytical method. One side, without supplementary methods, the normative analytical method will become a pure one, and it cannot afford the duty of developing jurisprudence and directing the legal practice. On the other hand, without the normative analytical method, jurisprudence will lose its method character and its independence. Therefore, this article will discuss customary law under the rule-of-law background with various methods.Customary law, accurately customary law under the rule-of-law background, is the core object of this article. We can discuss customary law question from two sides, theory area and practice area. Therefore, this article is composed of four parts, introduction, theory of customary law (chapter 1-3), practice of customary law (chapter 4-6), and epilogue, in which:The first part is introduction. Introduction part will briefly explains the purpose of the study, meaning of the theme, research methods and main contents of this article, etc.The second part will discuss the theory of customary law. Firstly, we will discuss the theoretical basis of customary law (Chap1). Jurisprudence is base on the thought of legal phenomenon and its nature. It is the same for customary law research. This article discusses the customary law under the rule-of-law background, just because of some legal philosophical thought of the opinion of law and rule-of-law. The first chapter will start from phenomenological position and analyze legal phenomenon of norm. Through the analysis, we can find, the law has a nature structure composed of feeling norm, abstract norm and judicative norm, which decides the inherent contradiction between the universality and the particularity of law. However, because of various natural conditions, social conditions and free selection, legal phenomenon usually show themselves as certain legal cultures, which has the structure of order and meaning, accords with the order of nature and society, and satisfies the need of normative social life. In a sense, rule-of-law means a certain legal culture. It comes into being after long period of development, and shows certain idea of value,system culture and practice of law. For customary law comes from daily life of the people, it accords with the need of normative life of the people and is complied self-consciously by the people. Therefore, the customary law is very important to the construction of rule-of-law under certain social conditions.Discussion about the theory of customary law, there are also the conception analysis and the historical analysis (Chpter2-3), which can be called the ontology of customary law. By now, there are three kind of definition of customary law, customary law certificated by the Government, Non-Governmental customary law, and customary law as quasi-law. By comparison, we find the definition of quasi-law is more reasonable. With the comparison to the correlative phenomenon, such as habit, custom, convention, positive law, and moral, we can also find the character of customary law and give our definition of customary law. To our point of view, the customary law is such kind a social norm with four characters: firstly, it exerts its influence in certain communities; for the second, it has concrete contents of right and obligation; for the third, it comes into being and obtains its validity with experimental manner and by a long period; finally, it is a kind of behavior norm which regulates peoples' explicit behaviors. With various standards, we can divide different kinds of customary law. Except by conception method, we can also comprehend the customary law by historical method. The customary law has two possible origins, custom or convention, totem or taboo. Each explanation has its experiential materials, and show customary law also has the structure of order or meaning. In the west history or Chinese history, there is a great deal of useful experience of customary law. Above discussion of the ontology of customary law could clarify the phenomenon of customary law, further more, in a sense, it could prove theoretical judge about the nature of legal phenomenon.The second part will mainly discuss the practice of customary law. The discussion of the practice of customary law will start with the background of rule-of-law in china. Under the background of rule-of-law, there arc two correlative areas, governmental rule-of-law area and governance of civil society. Customary law is very important to the rule-of-law in china, which firstly embodies its value in the typical area of governmental rule-of-law-------judicial realm. In a narrow sense, customary law is such a kind of law that is certificated by legislation or judicature. Since customary law embodies the character of "local knowledge" to a certain extent, it could exert more functions to the governmental rule-of-law in the judicature area. The functions and vales of customary law could be embodied through various legal methodologies during the course of judicature. During the course of judicature, there are two important questions about customary law practice, one is the certification technique, and the other is the legal effect. There is no publicly practice of customary law in the judicature of china, but, actually speaking, the influence of customary law exists widely in the whole judicial practice. Therefore, it is necessary to analyze the application and the techniques of customary law from the angle of governmental rule-of-law or judicature (chapter 4-5).The other important practice area is governance of civil society (chapter 6). Surpassing the angle of governmental rule-of-law, we could find the governance of civil society, which is an important supplement to governmental rule-of-law. To the latter, customary law is a main system resource. Under the background of governmental rule-of-law and judicature, it is possible for customary law to enter into the judicial area and obtain the formal legal effect. Therefore, the practice of customary law in civil society could be thought as a special judicature in a wide sense. In china, it is limited for the function of positive law and judicature, and most disputes are solved by various inherent rules of communities, especially customary law. In a sense, the function of customary law to the social order is as important as the governmental positive law's. Further more, customary law shows the character of culture and local knowledge, and it could exert important influence to the value of the rule-of-law. Therefore, it is necessary to analyze the existence, practice, and application of contemporary customary law of china.The epilogue will discuss the ideal of rule-of-law and the vale of customary law. In the epilogue, we will briefly look back the main contents of this article, and point out that rule-of-law is an ideal picture to construct, and customary law could play an important role during the course of rule-of-law.
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