The Research On The Power Of Custom

The limitations of statue law have aroused extensive concern in both theory field and practice field and many achievements have been made in the relative exploration and research, such as the judicial application in civil custom including the exploration on Jiang Yan practice and the research on folk law, customary law, custom and some other non-national laws. However, some common problems that the concern about custom itself has been neglected exist in these researches in common. To be specific, they overlook the exploration on some custom problems, such as forming mechanism of custom, operating mechanism of custom and operating system, and focus little on the custom itself. Why does custom have power? What is the power of custom? What are the limitations of custom power? Why does custom power have the limitations? These questions on custom haven’t aroused enough concern. In the present research on the judicial application of custom, folk law and customary law, the problem of how to apply them has been brought into focus. In the present research on folk law, customary law and custom, the forms and the characteristics have been paid increasing attention. Therefore, in this paper, the study focuses on exploring the following problems: Why does custom have power? What is the power of custom? What are the limitations of custom power? Why does custom power have the limitations?On the research of custom, the single law research method based on the present law system is not feasible and the research methods from different perspectives should be adopted by the reference of the research achievements in institutional economics, epistemology and psychology. The reasons why custom has power are that custom is subconscious, custom is the invisible knowledge and the cost of custom application is low. However, the power of custom has limitations, which can be attributable to the limited group scale on its effective application, its non-universality, and its non-Pareto improvement.From the perspective of Jiang Yan practice, custom makes up the limitations of the law from two respects of maneuverability and public identity. However, it is not sufficient only to explore the problem between custom and law from the point of justice, and the problem should be studied in more extensive points. The problem between custom and law is an important issue in the legislation of civil code while custom has not been paid enough attention with regard to the present civil legislation and civil code draft.The power of custom reflects that custom should be taken seriously. Disregard of custom (custom nihilism) is wrong, considering the legislative research and the present legislative situation, we should pay more regard to the mistake of custom nihilism.