A Study On The Customary Law Of Marriage And Family Of Miao Nationalities In Guizhou

After the mid-Ming Dynasty,with the increasing prosperity of timber trade in Qingshui River Basin and the strengthening of the control of Miao nationality by the imperial court,the contract documents surrounding the forest trade came into being.After nearly 500 years of long-term accumulation,a large number of original documents and folk stocks of Qingshuijiang documents have been formed.After careful inspection,comparison and systematic arrangement,it is found that Qingshuijiang documents are not limited to forest trade,but also contain many documents related to marriage and family,with detailed and reliable records.Customary laws of marriage and family of Miao nationality in Qingshuijiang River Basin can be seen from specific individual and family cases.Qingshuijiang marriage and family documents have made a great breakthrough in the study of Miao nationality’s marriage and family customary law,and surpassed the previous generation’s literature records in terms of data possession,reliability,systematicness and standardization,and became the central data of this studyAs far as the customary law of marriage and family of Miao nationality is concerned,the conclusions formed by previous researchers coexist in various ways,and the relevant disputes have continued until today,when consensus has been reached.Some scholars believe that the customary law of Miao nationality is a pile of primitive vulgar and irrational cases,which is very different from the written law.With the progress of the times,it should have been sent to the museum of history long ago,so there is no need to carry out in-depth research Some scholars believe that the customary law of Miao nationality originates from folk practice,and is recognized and accepted by Miao people,which has rich social foundation and historical reference for its in-depth study Some scholars believe that the customary law of Miao nationality is disorderly and lacks cultural rationality in the sense of legal anthropology,so it is a vulgar and primitive early customary law.Although it has high historical value for providing the evolution of marriage and family of Miao nationality,it can enrich and improve the understanding and understanding of the primitive marriage and family system,and its scientific value cannot be underestimated,but its application value cannot be discussed.It is the above research conclusions that provide enlightenment,reference and reference for the research of this paper,and at the same time provide the space for further expanding and deepening the research.On the premise of focusing on using Qingshuijiang marriage and family documents as the original data source,this paper also collects the advantages of the data provided by Chinese classics in previous dynasties,compares them through systematic field investigation and evidence collection,and compares them with the marriage and family system or customary law of Han nationality and other ethnic minorities,thus concluding that the following fundamental questions deserve in-depth study and discussion: Is there cultural rationality in the customary law of marriage and family of Miao nationality which has been recognized and accepted by Miao people and has been in effect for thousands of years? The research focuses on this fundamental issue,which is analyzed and discussed in order to make reliable and evaluable responses,supplement and correct the deficiencies and contradictions of previous studies,and improve the understanding of customary law.The full text consists of six chapters,focusing on marriage and family documents of Qingshuijiang River,taking historical document analysis,comparative study and field investigation as important means,and discussing the customary law of Miao nationality’s marriage and family in Qingshuijiang River Basin from Qing Dynasty to Republic of China from the perspective of micro-knowledge.The first chapter focuses on marriage and family documents of Qingshuijiang River,and preliminarily observes the existence of legal cultural rationality of customary law of marriage and family of Miao nationality in Qingshuijiang River Basin.Miao people in Qingshuijiang River valley are located in the remote mountains,which can be described as "the mountains are high and the emperors are far away".Since ancient times,they have received less interference from the central interest groups of the Central Plains,and the Miao people have got a space for natural development,and they have completely retained their own habits and customary laws.The Ming and Qing Dynasties to the Republic of China are the periods when Miao people’s social life in Qingshuijiang River Basin has undergone great changes,and when Miao people use customary law to balance the contradictions and coordinate the interests of all parties,the application of Chinese characters in Miao society is the preferred period to observe Miao people’s customary law in Qingshuijiang River Basin.The customary law in this period not only continued the essence of Miao traditional marriage and family customary law,but also reflected the timeliness and flexibility of the adjustment of customary law to social life.The Qingshuijiang marriage and family documents which appeared from Qing Dynasty to the Republic of China are just a response to this phenomenon.The documents not only cover the inheritance clues,legal cultural rationality and specific rules of Miao nationality’s marriage and family customary law,but also highlight the contradictions in cross-cultural conflicts and the ways to solve them,which is of great benefit to the in-depth study of customary law,and also enlightens the relationship between customary law and national law.The second and third chapters respectively discuss the marriage customary law and family customary law of Miao nationality in Qingshui River Basin,and show that the marriage customary law of Miao nationality is a kind of social customization with rules and laws and rationality.Early classical evolutionary studies tend to think that the human society before the civilized era is a primitive,ineffective and ignorant barbaric era,which belongs to the gestation period of marriage and family.Therefore,the focus of the study lies in the discussion of its origin,which is similar to Morgan,Bachofen and Westermarck.There are traces of aunt and uncle’s marriage in the records of the book of the Later Han Dynasty,which was written more than 1,000 years ago in China.There are many symbolic traces of marriage circle,matchmaker,having children and getting married in Qingshuijiang marriage and family documents,which further systematically,concretely and fully reflects that the customary law of Miao marriage and family is a non-written law with a long history.Even from the Qing Dynasty to the Republic of China,it still played an active role in the stable continuation of the Miao society and the coordination of personal interpersonal relationships,which was recognized and accepted by the Miao people for a long time,and the social foundation was extremely solid.Previously,it was obviously biased to understand customary law as the legacy of vulgar and disorderly primitive culture,so this study will clarify and sort it out accordingly.The fourth and fifth chapters respectively discuss the operation of customary law and the ethics of customary law order,justice and people-oriented contained in documents and inheritance,which not only emphasizes the regularity and standardization of customary law,but also lays a solid foundation for the legal cultural rationality of customary law.According to the theoretical logic of survival of the fittest and survival of the fittest,some previous studies concluded that the customary law formed in the early stage,including the customary law of marriage and family of Miao nationality,should become the object to be eliminated when the written law came out and was widely popularized,and it is not necessary to send it to museums for sealing up.However,the multi-line evolutionary theory of anthropology clearly points out that even though the cultural facts and rationality formed in ancient times still exist today,and there are many cultural facts and rationality in ancient times,including the operation mode,which may continue to this day.Therefore,the study of the old customary law can also play a practical value that cannot be underestimated.Miao customary law and national law in judicial practice are still applied in parallel not only in Ming and Qing Dynasties,but also today.When Miao people encounter disputes,they should try them in the family first and then in the people’s court.The two conclusions apply in parallel,and both aspects should be considered.The fair ethics of caring for women,children and the elderly in the culture of customary law is also implemented in the form of customary law rules.Instead of killing customary law with a stick,we consciously use customary law to stabilize social order,coordinate interpersonal relationships and play a certain role,which just proves that the historical rationality of customary law in pre-civilization era produced in historical practice,the coexistence of new and old legal culture will not be simply eliminated,and in-depth study of customary law can effectively exert its influence and effectiveness in contemporary times.The sixth chapter further verifies the actual operation of Miao marriage and family customary law in today’s Miao society in Qingshui River Basin by field investigation data.Some scholars believe that the rationality produced in the pre-civilization era is very random and non-normative,and the parties are forced to accept it helplessly.With the advent of civilization,the shortcomings of customary law,such as lack of human concern and lack of logical norms,have been effectively improved and promoted in modern national law.Studying such customary law has only reference and circumstantial evidence value,but no application value.If the relevant records of Qingshuijiang documents are taken as a guide,it is not difficult to find out that the contemporary application value of customary law should not be underestimated.For example,local officials in Qingshui River Basin acquiesced in the combination of customary law residues and national laws,such as applying for a marriage certificate from the Civil Affairs Bureau after the marriage contract with children as the boundary came into effect,which was used as the basis for judicial judgment.From this point of view,not only the customary law of Miao nationality,but also the customary law of other non-written ethnic minorities must have similar situations.In the framework of national law,it is beneficial and harmless to implement regional legal adaptation,which is worth popularizing.Therefore,the study of customary law has not lost its application value until today.Therefore,the customary law of marriage and family of Miao nationality is a long-standing unwritten law that can be inherited and studied.This customary law has strict rationality and no lack of concern for human nature,and the fairness and justice of the parties can be fully guaranteed,so it can be recognized and practiced by Miao compatriots in different times.The customary law has played an important role in social stability and interpersonal coordination in both primitive society and Miao nationality from Qing Dynasty to Republic of China.Therefore,even today,the customary law of marriage and family of Miao nationality has been live transmission and applied to a certain extent,which has been used not only in Qingshuijiang marriage and family documents,but also in contemporary judicial practice.Therefore,in-depth study of marriage and family customary law of Miao nationality not only has profound theoretical value,but also has contemporary application value.Therefore,taking the historical background as the background,taking the evolution,reconstruction and re-integration of Miao nationality’s marriage and family customary law as the latitude,supplemented by Qingshuijiang documents and other historical documents,this paper systematically combs and verifies the evolution and internal rationality of Miao nationality’s marriage and family customary law on the basis of previous studies,which has both theoretical value and application value..