The Relativity About The Folk Law And The Legal Interpretation

It is the request to the study of the folk law according to the direction of the justice. That is the folk law can be used in the activity of justice. And in the establishment of the country's order, the folk law is assistant .The first part of this paper explain that it is a realistic question to the folk law is used in the course of the legal interpretation. About the concept of the folk law the writer thinks it is a general designation about the custom and tradition depending on social organization or the public faith in some section or callings .It is available to the people's mundane living. Its form is written or anxious. Its main character is regional, spontaneous and internal restraining. Why the legal interpretation needs the folk law, the writer thinks that have two reasons. The direct reason is the leak of the positive law. And the deep-seated reason is the pluralism of the law order. It includes three aspects the law regulation,the behavior of the main body and the law organization.The object of the legal interpretation is text and fact. In fact the legal interpretation is the social interpretation. The legal interpretation must according to the social development. The legal interpretation must be flexible to avoid the abuse of the legal lag. In the activity of justice the folk law is used as a kind of fact. The interpretation of the folk law is the interpretation about the fact virtually. The interpretation of the fact is the interpretation about the social fact in the cognizance by the judge and other correlative people. The aim of the interpretation of the fact is formatting the reason of the justice. This is the main content about the second part.In the third part the writer reviews the justice history of three different legal traditions in order to study the method of the folk law used in the interpretation. They are the Common law, the Rome law and the Chinese law. Through the reviews, the writer sum up several methods of the method of the folk law used in the interpretation. They are the text interpretation, the fact interpretation, the sociology interpretation, the typology interpretation and the complementarities of the leak. From these methods we can see that the judicial process is a process full of the judge's wisdom .The legal interpretation is one of the forms of the wisdom. The legal interpretation is not only a judicial interpretation but also a cultural interpretation. In the process of the modern law perfect law is our goal, but the life is complex and the need of the human being is multiplex. In that the implement of the law must in its culture. It is easy to repot the advanced foreign law, but it needs the judge wisdom if it can be actualized in judicial practice. And it especially depending on the legal method based on the homeland culture. The Chinese society is in a conversion time. The pluralism of the law order is the foundation of the folk law used in the judicial practice. It is a researching problem to how it applies.