Reckon On The Customary Law

This is a rapidly changing times. the Chinese legal system in all aspects of society is undergoing rapid changes. In this process, contemporary China is still undergoing the pain and hope that the transformation of modern China has been experiencing. In this process, the rule of law are inevitably faced with China's national conditions and the ideals , localization and international, universal and local factors,and faced with the conflict of the cultural values,and the cost to the development.In contemporary China, customary law system as an important part of China , the main component of natural resources law. It is a typical embodiment of the impact of all these factors which are intertwined. Therefore,how to understand and treat the customary law will inevitably become a major issue yet to be solved in the process of the rule of law in ChinaIn this paper, we start with the concept of customary law and list the theoretical concept in china and abroad , at the same time ,in order to know the costomary law clearly and comprehensivly,we make a contrast with other concept, such as : "Living law" ,civil law, the state law . In this paper ,we introduce the role of customary law and the existence of a brief history of the exposition. Despite it play a vital role, because of the binding by legal positivism and the rule of law doctrine, and exclused the customary law in the context of formal situation,at the same time , and the state occupy the right to speak at the national situation, customary law has not been taken seriously and given more attention. In practice , we can see that the rule of law has not been fully developed in theory, In fact it is even at a retreat situation. People have to re-examine the value of the common law because of the shortcomings of the sate law. In real life ,customary law has not been completely ruled out making, Instead, the formal legal rules of customary law coexist with the state law , especially in today, at the atmosphere of building a harmonious society, the role of customary law has been increasing more people's attention.Lu Xun once said : "If people do not take the customs seriously and ignore the customs no matter thay are good or bad....... the reform will be crushed by the rock habit. "Order is not produced by legal ,but produce legal in any society. Then, in addition to the previous order contained in the legal system, it also has some customs which are more valuable in actual society. In fact ,only these informal system of support and cooperation, The formal legal system has a solid foundation ,and the fertile soil to develop.In this sense , we need to focus on more traditional customs,and explore the favorable factors in order to make the traditional produce creative transformation,and meanwhile make the modern law root in the traditions . Therefore ,we must take the customary law seriously and fully affirm the value of customary law in contemporary society. We should save the concept of legal from the shackles of positivism in theoretical ,and it has been properly developed.In this paper, we study the law from a sociological perspective ,from this perspective ,it may help us clarify the misunderstanding of customary law,and take the customary in a right attitude and perspective.