On The Meaning Of The Customary Law

Mankind embodies its own sense in the aspects of manufacturing and using tools, language, diversed spirit pursue and aware of oneself, which exactly reflect the limitation of the ration. Cognition the continuous of the object and the form come to a decision of limited rational misty. Many unfixed factors in the process of knowing come to a decision the rational indetermination again. Mankind who has reason appears the sensitive orientation in the aspects of comeback instinct, pursuing material enjoyment, pursuing the inequality etc. For getting away from the fear made by the misty and indetermination of reasonableness, mankind produces the tendency for pursuing the clearness of the mind and determination. In the process of participating in social contacts, the individual has the above characteristics, and his mental state is sensitive, the society life is mostly cultural, and the behavior method is usually what mode turn.The customary law used as the "local knowledge" is come into being in acquaintance's society of certain regions. It is custom and cultural law substantially. It can determine their duties and rights respectively according to the accepted tradition, that is to make a reservation to the personal name, manage the "positive" to the matter. So, in this sense, the customary law is the status law. Then, it evaluates the body an emotion reasonableness, it calls also hierarchy law. In such society, everyone abides by his own status, not to "jump class", pursuing community which makes the society steady, order well arranged. For this reason, it is an order law at the same time. The customary rules express the mighty and inertial power domination to the person, causing customs the real life. The growing up child oradult who intrudes into another unfamiliar circle make the reasonableness misty and undetermined for lacking of relative knowledge. For the sake of dissolving their "ignorant feelings", they have the urgent will to study "local knowledge", such as customs and cultural habits.Under the customary law, everyone behaviors to predict the partner successfully by status "label", and so the status makes the reasonableness certain. The customary law recognizes the "status" more clear than reasonableness. The "grade" is the sensitive faculty to the reasonable 'status". So, the customary law can satisfy human's sensitive faculty need. The "order" characteristic of such law benefits to the social person's sensitive, cultural and mode turns.The state law seems to be enough in reasonableness but short in sensitive faculty, because of its strong writing, be professional, academic, logical, and its procedure complexity of making out & putting into practice, and the reasonableness value of exploiting subject. The state law who belongs to the "elite culture" makes people in the atmosphere of "public culture" feel unfamiliar, and makes the mind more undetermined. The state law claims its application throughout the country, which makes it belongs to the strange society. And so, it can't embody the mode and satisfy people's cultural need.The state law and the customary law are opposite, the reason is that, the customary law is keep with human nature in many respects, and the state law is against it in some ways. We should not worship the state law, not keep human reasonableness crazy for pursuing the absolute justice, but be "sensitive" in some fields for customary law, and make customary law kept its vitality that should have. We should make room for the self-developing "order" in people-to-people scope. In China, the level of the society is so low and be out of balance, we should value the exploitation of the customary law and make good use of it. In regulating the society, the state law should attain to have for and not for, which be beneficial to construct the ideal state form of "small government, big society'".