The Erroneous Zone Of Customary Law And The Studies Of The Relationships Between The Customary Law And The State Law

Law is the sum total of adjusting the relations among human beings and their behavior standards, The formation of the law experiences a long process which can be divided roughly into three stages: there is no law in the early human society, The thing that adjusts the social relations among human beings is the usage and traditions which were established in the long-term social life, namely, custom, After entering the class society, the state law appears which embodied the benefits and requests of the ruling class, From the development of customs to the national legislation, in between, it is customary law, namely, the producing process of the law has experienced three stages: custom, customary law and state law, The authoritative dictionaries and standard books in our country have a consistent viewpoint about the times and traits of the generating of customary law, In other words, the customary law is formed after the class society, The state organs affirm the unwritten customs which are submitted by the ruling class, This is mentioned in "Chinese Encyclopedia · Legal Science Volume", "Ci Hai" and "The Historical Document of Chinese Legal System "(written by Xue Meiqing), According to the survey of the customary law in a global scale, to name a few: the ancient Hebrew, Wales, Latin America Masurium Ya, ancient Greek, some tribes in Papua New Guinea, Chinese Pan village Yao nationality, Jing Po nationality, etc, the customary law which possesses the traits of primitiveness, duality and transition is generated in the transitional time between the later period of the primitive society and the class society, And its law makers and performers are the social organizations and leaders in the patriarchal clan time (including the coexisting stage of its later period and region people's commune), The experts of our country believe that the customary law is produced in the later period of the patriarchal clan time in the primitive society (including the earlier period and the later period, later period coexists with the region people's commune), The customary law is a kind of unwritten law, However, usually, it has announced to the public in the form of the provisions, Some of which have been engraved in the wood or stones, These provisions are set by tribes, clans, families, villages or the chiefs (or certain conferences), These social behavior standards and contents reflect the characteristics of the time, Namely, this kind of customary law acknowledges blood relationship, ancient communist system and public ownership system, ancient democratic and fair relations with conditions, Meanwhile, approves and maintains some elements, which have emerged and are in the stage of growing, in the form of legal jurisdictions, These elements include region relations, personal production and...