Customs And Law-Two Social Rules Systems And Their Relationship

Abstract: My thesis focuses on the study of the relationship between two social rules systems, i.e., Customs and Law, especially the internal regulation of Customs' evolution into law. I have also extended my study into the Chinese Dual- Social- order governing practice in order to provide a theoretic support for the resolution of conflicts between customs and Law."Customs" is a comprehensive system of the rules beyond the law of the state that a community or the whole society shall follow, which was formed in the daily life and manufacture process of the subjects and existed among the citizens for a long period of time. "Customs" include citizens' habits, social habits and market customs, etc, which are divergent from the different individuals' habits formed in the daily life and manufacture field. "Customs" is a social rule system that is divergent from law, which is indicative of the legal requirements of the subjects and consequently satisfies the interests' requirements of the subjects. As a result, the subjects shall recognize these acting rules. The formation of the customs was decided by the subjects' economic life and is the reflection of the economic life in the social system level, and at the same time was influenced by the early beliefs, political control and natural environment. The evolution from customs into law is a main indication of the development of the human's civilization and is a direct result of the transformation of the social rules' system. In my thesis, I think that the evolution from customs into law includes three types: adoption, transfer, and division. In terms of the characteristics of the process, I have put forward five characteristics, i.e., progressiveness of the process, mutuality of the advance progress, multiplicity of the forms, divergence of degree, and expansion of the scope. Although the concrete processes of the evolution in the world have different aspects, they have several points in common: first, the evolution from customs into law is decided by the development of the internal contradictions; second, the evolution from customs into law should comply with the development trend of the society; third, the evolution should be recognized expressly or implied by the authority; fourth, the recognition of the general public is the premise of the express or implied recognition; finally, the customs that will transfer into law must be generally conformed by the social subjects.The social order after the formation of law is a dual- social- order, which is divided into two types based on different social economic foundations, i.e., dual- order under single- economic- mode and the dual- order under the dual- economic- mode. Chinese traditional economy is single agriculture economic mode, which has decided that plenty of contradictions of interests can be resolved by customs, instead of law, and this preference seems to be more advantageous for the traditional society stability. After the opium war, the transformation of the Chinese society did not start from the economic transformation, but from the politics, which resulted in a development state in which multiple elements simultaneously exist in Chinese post- modem- era society. The co- existence of the traditional economy and modern economy led to the special type of the social order. From the perspective of the social rule, traditional customs and modern law assume the task of governing the social order together. However, under a unified political power, the state political idea was to establish a single- economic- infrastructure and a dual- social- order oriented by the market order, consequently the state tended to establish a system-constructing- mode to implement the legislature by force. From the perspective of the relationships between types of social rules systems, this is a substitutive rules inter- active idea, which is believed to be a main reason that led to the internal contradictions in social order in my thesis. As a result, I have put forward a practicing plan of contemporary Chinese dual- social- order governing, which is based on the common- governed rule model that developed from the conscious- governing rule. In order to utilize this model in the Chinese traditional- contemporary dual- social- order, we should emphasize on the following aspects: multiple legislature; flexible judicial activities; regional rules common ruling; and a multiple dispute settlement mechanism.