On Judicial Application Of Folk Customs

Folk customs are generated in a particular society in which people have been livingtogether and communicating for a long time. They refer to a set of norms universally receivedin such society to regulate the relationship of rights and obligations, to settle conflicts andattribution of interest, and to dominate the behaviors of people. Being behavioral norms ofhuman society, folk customs and statutes are in close relations. Folk customs are therudiments and sources of statutes, while statutes are conceptualization of folk customs. Asincreasingly powerful statutes are, folk custom will not be replaced completely by the former.Since the reform and opening up of China, the mere emphasis has been put on statutes ratherthan folk custom in the development of rule of law, with the function and significance of folkcustoms ignored. The experiential lesson is that the simple-rule doctrine fails to producedesirable results in rule of law. Furthermore, it impedes the smooth progress of rule of lawwhich is not only the rule of articles but also the rule of folk customs. Therefore, folk customsplay an important and indispensable role and should be given enough attention in thedevelopment of rule of law.As the last safeguard of rule of law, hearing of cases by the judicial department is aprocess of application of law. A judge’s job is to apply specific articles to different cases andsettle disputes. Generally speaking, statutes are the first choice for judges in resolvingdisputes. However, statutes are not enough as alternatives also include folk customs and otherrules. In cases involving folk customs, how should a judge approach folk custom? How toapply folk customs to resolve disputes? How to deal with the relationship between folkcustoms and statutes? In which manner should folk customs be applied? Judges are alwaysoccupied with these questions. The complicated relations and situations between folk customsand statutes come out in the wash in the course of hearing. Thus, it is of vital significance tothe development of rule of law by applying folk custom in hearing to explore its meaning,probe into its advantages and disadvantages, give full play to it, and standardize itsapplication.From the perspective of adjudication and based on China’s actual situation and judicialpractice, the present study is intended to examine the theoretical possibility and practicalimplications of applying folk customs, to analyze the situation and effect of folk customs in the current adjudicative practice, to investigate into the institutional obstacles and inherentreasons of insufficient application of folk custom, and to propose solutions to the fullapplication of folk custom by courts by promoting standardization, proceduralizaition, andsystematization. Therefore, the present study is dedicated to providing judges with a newperspective in resolving various types of disputes in the current transitional period of Chinaby addressing the official and folk as well as formal and informal norms. Besides anintroduction in the beginning and conclusion in the end, the main body of the present studyconsists of five chapters.Chapter One is devoted to the mechanisms of adjudicative application of folk customs incivil trials, discussing its theoretical foundation and possibility, expounding folk customs asan organic component of law and a positive factor in legal construction, addressing itsfeatures, historical origin and practical value. Firstly, folk customs are the origin of statues innature. There would not have been any development of statues without the support of folkcustoms. As rules, they regulate people’s behaviors and are faithfully observed by people.Secondly, statues are rooted in rituals (li in Chinese) which originate from customs. Folkcustoms can be the legal ground of judgment since they involve human relations and tend tosettle disputes. Last but not least, folk customs are a supplementary source of law. They canalso strengthen the effect of judgment, maintain civil order, and overcome the illness of ruleof law. Therefore, folk customs should be considered as a basis of legislation and source ofjudgment. Every effort should thus be made to coordinate legal logos and legal sense indispute settlement.Chapter Two depicts the current situation of application of folk customs in civil trials.With empirical investigation, we analyze the basic features, existing problems and reasons ofapplication of folk customs. It is believed that firstly there are only a few types of disputeswhich folk customs can be applied to, and the scope of application should be confined totraditional civil disputes. Folk customs are applied mainly in rural and ethnic minority areasby primary courts. Because of the flexibility of application, meditation is more likely thanjudgment when they are applied. Secondly, the application of folk customs carries a variety ofproblems, such as limited scope of application, vagueness of application process, inconsistentmethods of application, and different outcomes. Thirdly the reasons of application problemslie in insufficient emphasis, ambiguous positioning, absence of regulations and relevantsystems, and its inherent defects. Chapter Three probes into the standardization of application of folk customs. To regulateits application, it is suggested that effective measures should be taken in aspects of principles,emphases, means, methods, paths and boundaries. The principles of supplementary role,review, and effect should be followed in the application of folk customs. In the discussion ofthe scope of adjudicative application of folk customs, we suggest that folk customs be appliedto cases concerning private disputes heard by lower courts, as well as cases in ethnic minorityareas. The ways of applying folk customs include finding the facts of the case, determiningthe validity of adjudication, diversifying the forms of liability assumption, and providingjuridical reasons and grounds. Search for applicable laws, constitutional interpretation,sociological account, interest measurement, and benefit balance can be methods. As for path,mediation is strongly recommended. When applied, folk customs can be directly applied, usedas a reference, or applied after transformation.Chapter Four is dedicated to the proceduralization of adjudicative application of folkcustoms. This part studies the general rule and procedure of application in individual cases.As a premise, one’s rights as a litigant based on folk customs should be protected by law. Thischapter also covers the procedures of proof-providing, review, exclusion, andsupervision in the application of folk customs. Proof-providing procedure is about the objectof proof. Our view is that folk customs are factum probandum. After burden of proof beingdefined, it is the court’s duty to examine the folk customs in proof-providing procedure.Procedure of examination is an indispensable due process, in which authenticity, validity,relevancy and credibility of folk customs are examined by litigants and experts who may becalled to testify as witnesses. The methods of confirmation include admission, judicial notice,and rule of experience, and presumption of law. The procedure of review is illustrated fromsuch aspects as fact findings and value determination. The stability and certainty of folkcustoms are examined, and they should also be legitimate, rational, binding, and up to date.Procedure of exclusion means that folk customs should be excluded if they are abhorrent fromthe principles of law, harmful to the public interest, against the public policy, orself-contradictory. The exposition on the procedure of supervision covers openness ofprocedure, judicial justification, reasoning in decision and trial grades.Chapter Five elaborates on the systematization of adjudicative application of folkcustoms. We discuss the optimization and perfection of adjudicative application of folkcustoms in three aspects. Firstly, correcting our attitude towards folk customs means that they should be regarded as source of law, leaving enough room for application and taken intoconsideration in legislation. The applicability of folk customs needs to be regulated in generalprovisions. Secondly, it is necessary to integrate dispute solutions, expand the applicationchannels, amend the rule of evidence properly, intensify the effect of folk customs application,perfect the case guidance system, reach an agreement of folk customs application, adoptreasonable trial styles, and create a supporting environment for folk customs application.Thirdly, legality co-exists with rationality in adjudication. Adjudication may be more readilyaccepted when the rationality of folk customs is seldom challenged. Accordingly, a judge’sreasoning style needs to be changed from “purely legal” to “compressive” by enhancing theability in understanding social disputes, ideology of the public, and spirit of law.