Study On Li Minority Customary Law

Li was the aboriginal people of Hainan island. According to historical record, ancestors of Li people reached Hainan from provinces of Guangdong, Guangxi and the northern part of Vietnam around three thousand years ago, and their arrival became the first large scale inhabitation of Hainan island by human beings. Same as other minority peoples, Li has been maintaining its social order by obeying to its own customs and conventions in an isolated living environment on a tropical island. After the island had been conquered by the mainland feudal rulers, Li customs have been recognized by the state sovereignty, becoming the customary law and integrated into the Chinese legal family. Li customary law has since played a regulating role second only to the state law. Thus, Li customary law is an integral part of Chinese legal family, and the excavation, collection and study of Li customary law with its inherited value would further enrich the contents of Chinese legal culture and help its growth.Li customary law is concerned with several academic fields such as legal science, ethnology, anthropo-sociology, history, etc. Following a line of thought“a transformation from natural order to a unified legal order”, the author has employed multiple study methodologies of legal science, ethnology, sociology and history, and the study focuses on legal order and its transformation under a discourse of Li customary law in a bid to reveal the innate rule of development of Li customary law.A peculiar social environment of Li people created conditions for the forming and effective functioning of its customary law. Perplexity over natural phenomenon made Li people stand in awe of ghosts and spirits and led to various indigenous taboos that were regarded as ideological foundation of the legal customs. Low productivity in a primitive society made it a natural outcome of people’s co-habitation and cooperation. Bounded by blood and geographical ties, social units like family, He-mu, village, and Dong began to take shape. The senior members in such a social unit usually play a leading role in farming, living and religious activities. A stable autonomous order has been maintained by way of respecting senior authorities, following taboos, and believing in ghosts and spirits. A customary law was rooted in such an order, and has in turn helped to consolidate such a social order.We have found a common starting point of any particular legal rule, which is the marriage and family system. The marriage and family system of Li people was featured by freedom of marriage and gender equality that could be reflected by its singular practices like Wan-Gui-Long, or single girls dating or having sexual relationship with boyfriends in a fixed place near their homes, married women can live in their parents home instead of their husbands’, emphasized respect for the maternal family members, like the brothers of a girl’s mother; in terms of the property system, the Li people practiced preoccupation and He-Mu, or joint farming units, equal distribution among members in the same Mu, and family consumption; in civil and commercial transactions, Li people will help the disadvantaged member in their social group by way of zero-interest loans or loans with no prescribed terms, and they also conducted bartering with Han nationality to trade for living as well as production materials they needed. They have created a primitive form of contract featured by making marks on a wooden object or recording dealings with rope knots, showing their integrity and fiduciary ideas. In terms of maintaining public orders, Li people, bounded by their religious taboos and an awe towards ghosts and spirits, resumed a natural responsibility of keeping public orders, and they also followed a customary code of mutual assistance, no-stealing and no coveting. Li customary law in terms of autonomous order is instinctively followed due to a need of continuation and reproduction of a people, resulting in a lack of attention to individuals whose interests would be fulfilled by way of maintaining the public order of the whole people.The central government had been levying wars against the island since Han Dynasty, but the ruling strategy had been cautiously considered with an eye being paid to the respect for local customs and traditions. After Song Dynasty, with the strengthening of the central regime, social institutions here in Li’s society have been unified, which helped to speed up the transformation of traditional customary law to central uniform legal order based upon new social foundation. Local officers would be chosen by the central government from indigenous power people, and Li customs have been largely kept in place on the one hand, and on the other hand, a reforming of customs that were not in line of the central rule was underway. Li local legal system was a mixture of central ordinances and local customs. After the Song Dynasty, villages and Dongs consisting of Li people from the same ancestor have become administrative units at local level, Li Tou, or the head of the village, together with senior wit in a village became local officers under the authorization of central regime, idea of private property has been strengthened, normative written contract has been introduced to land transaction, leasing, pawning and lending businesses, and the freedom of marriage and gender equality have been faced with attacks by fedudal patriarchal ethnic law.Order was the foundation of continuation of the Li society, and social order regulated by Li’s customary law was put under a certain range, when being breached or obstructed, a punishment mechanism will be working. In Li’s customary legal orders, general civil disputes such as domestic disputes, family disputes, neighboring disputes, even conflicts between villages culd be settled by face-to-face negotiations; adultery, civil damages could be claimed for offenders committing adultery, stealing, personal injury, etc. The peculiar part will be that every member of the village would get a share from the rest of compensations after the victims have got their part. Meeting the need of basic survival, Li customary law emphasized a property compensation and the restoration of orders. Under the central legal order, traditional dispute settlement has been inherited and reformed with Li Tou and Dong Shou still acting as executive officers of law, and the dispute settlement would take a form of public discussion and negotiation. Joint liability and fighting with weapons between social units were commonly seen. A local case would be reported to the government only when it could not be dealt with by local Li officers, and primitive cruel punishment measures have been prohibited by written laws. The safeguarding and restoration mechanism of Li customary law has been improved with integration of law.In the process of reinforcing governance and ruling regime in Li region, the local Li customary law has been integrated with Chinese legal family. Such an integration was a natural outcome of tolerance and assimilation power of Chinese legal cultural, as well as the innate need of development of Li people. Within a big family of Chinese law, Li customary law saw development and improvement. Collectiveness, mutual help, integrity and honesty, being modest and sticking to one’s duty and obligations, those are the basic features of Li customary law, as well as the basic features of Chinese legal family. In addition, the Li customary law featured special ways of keeping and restoring orders, for example, a wide consciousness of obeying public orders, gender equality, marriage freedom, solidarity and mutual assistance, public trials, procedural fairness, respecting for mysterious heavenly powers, common sharing of damages, all of the above would be valuable experiences for today’s legal construction and local social management.