Research On Customary Civil And Commercial Law Of Hui Nationality

The customary civil and commercial law of Hui nationality is formed in the long-term production and life of Hui people. It embodies the will and interest of all members of the nationality and regulates the relationship of rights and obligations among the members of the nationality. It is the total universal behavioral norms abided by the members of the nationality and implemented and guaranteed by the social power accepted by them. This paper uses the perspective and the theory of sociology of law, making investigation of the customary civil and commercial law of Hui nationality in historical and realistic aspects through a great deal of field researches: on the one hand, in the static aspect, investigate the basic force in the formation and development of the customary civil and commercial law of Hui nationality and try to make framework-type description of the formation of its endogenetic power and spontaneous order; on the other hand, in the dynamic aspect, through the empirical analysis of the operational mechanism of the customary commercial law of Hui nationality, observe the condition, the process and the possible trend of the competition between "little tradition" and "great tradition", try to find the rule in the fusion and repulsion between the national law and the customary civil and commercial law of Hui nationality and discuss the way for the development of the customary civil and commercial law of Hui nationality.The contents are divided into seven parts. The introduction defines the concept of the customary civil and commercial law of Hui nationality and states the significance of the topic. The body includes five chapters. Chapter 1 makes the investigation of the historical evolvement of the customary civil and commercial law of Hui nationality. Through the four stages in the evolvement of the customary civil and commercial law of Hui nationality, the condition for the evolvement and the rule in the interactive relationship with the national law is searched for. Thus it can be found that the customary civil and commercial law of Hui nationality can be developed tremendously if the national law treats it with the attitude of containment and respect, conversely, it may develop slowly and even stop developing if the national law suspects and suppress it. Certainly, the customary civil and commercial law of Hui nationality is not adapted or accepts passively. From its historical process including germination, formation and development, it can be seen clearly the historical path of the control and anti-control, assimilation and anti-assimilation between the national law and the customary law.Chapter 2 investigates the religious and ethical foundation on which the customary civil and commercial law of Hui nationality has formed. Both the value orientation and the main norms of the customary civil and commercial law of Hui nationality is originated from the ethical norms of Islam. A majority of the regulations in the Koran and Hadith has become the behavioral norms to restrict the civil and commercial activities of Hui nationality. Islam is the social system and customs as well as the religious belief with the inseparable firm relationship with the development of Hui nationality. Thereby, the secularization of the ethical norms of Islam become the source of the formation of the customary civil and commercial law of Hui nationality and brings about significant influence in the life of the Muslim.Through the method of social demonstration, Chapter 3 discusses the contents, operational mechanism of the customary civil and commercial law of Hui nationality and its influence in the community of Hui nationality. With wide contents of the customary civil and commercial law of Hui nationality, based on the needs in the topic of this paper, the object investigated in this chapter is limited to the norms of the customary civil and commercial law which always regulated the behaviors of the members of Hui nationality and have importance impact on the social life of Hui nationality nowadays. The norms of the customary civil law include the customary law of marriage, diet, funeral and donation. The customary commercial law includes the customary law of dealing and loan.Chapter 4 makes the conclusion of the characteristics and functions of the customary civil and commercial law of Hui nationality from the perspective of the culturology of law. In operation, the customary civil and commercial law of Hui nationality shows different characteristics in different aspects. Its ideological form takes the notion of the legal culture of Islam as the core and is influenced by the Confucian legal culture, Western legal culture and the legal culture of other minority nationalities in our country. The operation of the customary civil and commercial law of Hui nationality also needs a certain form of organization. The community of Hui nationality with the mosque as the center becomes the organizational carrier of the customary civil and commercial law of Hui nationality and the important method to preserve it wholly. During the process of localization, Islam combines with other external legal cultures, forming the unique Order System in the northwestern area in China. The appearance of Order System makes the customary civil and commercial law of Hui nationality manifest the strong authoritarianism in the aspects such as the organizational system and managerial system. From the angle of sociology of law, as a system of social norms, the customary civil and commercial law plays the role of cultural transmission, social control, group integration and national unity besides the role of regulating the civil and commercial behaviors of Hui people in daily social life. The cultural transmission is the basic function of the customary civil and commercial law and the foundation for the other functions to work. The social control is the instrumental function of the customary civil and commercial law. The group integration functions as a way. All the functions of the customary civil and commercial law including the cultural transmission, social control and the national unity are working in a closely connected group.Chapter 5 takes the national law as a framework for reference and an object for comparison to discuss the current development of the customary civil and commercial law of Hui nationality. Under the impact of globalization, the applicable area of the customary civil and commercial law of Hui nationality is compressed continuously which will certainly influence the relationship between the customary civil and commercial law of Hui nationality and the national law. In the period of social transformation, the competition between the customary civil and commercial law of Hui nationality and the national law is revealed in three aspects, that is, conflict, fusion and the complement of the former to the latter. Efforts shall be made in three aspects including the coordination in the aspect of notion, the rule integration in the aspect of system, the diversification of the dispute-solving mechanism.At last, this paper puts forward the consideration about the modern transformation of the customary civil and commercial law of Hui nationality. It is believed that in the process of the modernization of the legal system, the modernization of the law brings about the unification and universality of the legal system on the one hand and has caused the trend of diversity between the national order and the civilian order. This trend is the key to solve the modern transformation of the customary civil and commercial law of Hui nationality and has formed the social organizational form with the coexistence of legal society led by national law and the autonomous society led by national customary law. Therefore, the substance of the modern transformation of the customary civil and commercial law of Hui nationality is to achieve the contractual interactive relationship between the national law and the customary civil and commercial law of Hui nationality.Through the research on the customary civil and commercial law of Hui nationality, three conclusions have been obtained: first, the formation of the customary civil and commercial law of Hui nationality is the outcome of the secularization of Islam ethical norms. For Hui nationality believing Islam universally, Islam ethics is not only the premise for the formation of this nationality, but also the key factor for Hui nationality to multiply and expand through more than 1,300 years. Although there is no independent church organization in our country or solid large-scale monk group, Hui people believe Islam firmly and fulfill each obligation in the doctrine strictly. The whole living process from birth to death bears the mark of Islam clearly. No matter where to live, Hui nationality always embodies distinct national character, keeping the intact traditional life style, rarely influenced by the living habits of other nationalities especially Han nationality. It is as a result of the support of Islam ethical spirit and the stability of the structure of the ethical norms. Because the nation insists on the legal principle of separation of religion from politics, the regulations in the doctrine about the civil and commercial activities such as marriage, inheritance, funeral, diet and business have evolved into a whole set of mature norm system of Hui nationality, regulating their psychology and behaviors in each step in life, modeling the social order of the community of Hui nationality and providing solid guidance and criterion for the nationality from the spiritual aspect to the material aspect.Second, the key factor in the effective operation of the customary civil and commercial law of Hui nationality lies in the stability of diversification of its nation form and the stability of the organizational form. The ideological form in the society of Hui nationality takes Islam ethical spirit as the core and is influenced by Confucian culture, Western culture and the culture of other minority nationalities with the feature of diversification. The distribution pattern of Hui nationality determines they must adapt themselves and blend into the local culture as soon as possible. Therefore, the diversification of the ideological form contributes to the accommodation and application of the norms of the customary civil and commercial law of Hui nationality conditionally. The society of Hui nationality constructed with the mosque as the center has built solid line of defence to avoid the dissimilation and corrosion of the cultural of other nationalities to the customary civil and commercial law of Hui nationality and thus to provide the organizational condition for the effective operation of the customary civil and commercial law of Hui nationality.Third, the historical evolvement of the customary civil and commercial law of Hui nationality indicates that the positive interaction between the national law and the customary civil and commercial law of Hui nationality must be realized in order to achieve the prosperity and stability in the habitation of Hui nationality. In history, Hui nationality has never established the regime and Islam has never become the national religion. Therefore, its rise and fall always closely relates with the allowable extent of the national law for its living space. Under the several large impacts of national regulation and policy, its survival and development owes to its intrinsic unique operational mechanism which is depended to compete with the great tradition of the national law. With the loose environment of national law, it attaches itself to the national law and expands rapidly with the help of the strength of national law; when the national law suppresses it, it can also survive by means of its inherent strength of the customary law. The dynamic relationship of interaction between the customary civil and commercial law of Hui nationality and the national law has a profound impact on the development of the society of Hui nationality.