The Function Of Folk Law To Legal Argumentation In Judicial Process

Aristotle once said:unwritten law is actually more authority than written law and the matter it involves is also more importmant. Although in modern society, the written law does not have the former days' magnificent scenery already, but we also cannot deny that it still has special important legal status.In the era of Continental Law, we trade Legal equivalent to the Code, except this we didn't recognize that there are other trial basis.Because of this and also restrictions on the level of the rule of law in China,for a long time, judges in our country like seeking for legal regulations,they believe that they can judge the cases that only based on written law,if the cases weren't written in the law,they wouldn't use them at all. Judges believe for a long time that: if the Folk custom isn't formulated or approved by the country,it can't be the basis for the administration of justice,also trial work is serious, folk law can not go into the sacred halls of justice."But along with the improvement of legal awareness, changes of legal concepts, justices have also undergone a major change.The judges can apply unwritten law as basis, in judicial practice,unwritten law are playing a great role.As a informal source of law, the unite of Folk law and Legal argumentation is inevitaby.In China, we have two ways to lead Folk law to the State law, the first is legislation,the other is by judicial way.From a legislative point of view,once Folk law is introduced to the State law,it won't independent,but will be evolved in national law.Therefore it is not the focus of this paper stressed.This article is mainly on the relation between Folk law and the State law in the judicial domain.In part one ,we explained the definition of folk law and Legal argumentation , in part two,we explained that through Legal argumentation to achieve the aim of justice,in part three,we explained prerequisite when we use Folk law,in part four,we explained the channels that Folk law goes into Legal argumentation,in part five,we explained the significance that Folk law goes into Legal argumentation.