On Relationship Between The Customary Law Of National Minorities And Positive Law In China

Chinese government is now promoting the rule of law in the process of modernization from top to bottom. On the level of modernization of the rule of law, one can say this is an era when the collapse of the old order and the establishment of the new order intersect. Under the circumstances that it has been profoundly impacted by customs and cultural traditions, chinese society is faced with some extreme complicated problems if it is about to move towards the completion of the whole process of modernization of the rule of law. One of the clear manifestations of this problem is that the positive law, in modern sense, can not yet cover every field of people's lives, during the complex political and legal transformation driven by the market economy. And often enough, the customary law would become the main normative system that regulates and controls people's behavior in places where the positive law can not involve.And that is because in the contemporary chinese political and legal system,"national minority"is still one of the key words. At the beginning of the foundation of our country, when establishing the modern china's basic political and legal framework, people already noticed the particularity of national minorities.This kind of particularity is reflected not only in the differences of cultural traditions, but more importantly, in the theory of existentialism.On the structure of the pluralism in modern society, the differences in cultural traditions alone are not enough to trigger dramatic change in social and politial laws. However, the particularity on the level of existentialism means the possibility of the existence of the world that holds an independent order. The legitimacy of the national minorities on the level of existentialism indicates a kind of existence that is diffenrent from the modern political order, which has been established by them in the reality for thousands of years. The particularity of national minorities on the level of existentialism is exactly expressed by using customary law, hence, in the research field of jurisprudence, the studies on valuing the customary law of national minorities have a great significance on the construction of the rule of law in modern china and the implementation of the political thought of"Harmonious Society". In modern sense, it is more than just a theoretical reflection issue that how the national law integrates a kind of survival order so as to transform the life order of national minorities to a part of pluralistic social structure of modern society; it is a major practical issue that our political realities have to deal with.From the of view of the research field of jurisprudence, the customary law of national minorities is an invaluable asset in china's traditional legal culture. It not only affected the thought and behavior of national minorities in history, but still affects us now.The legal and cultural pluralism has been a long-standing phenomenon in national minority areas,therefore, the national law has been a forein law for people there.In the context of State statutes, in real life, in addition to the requirements of national law in accordance with the acts and prohibitions, the people in national minority areas still abide by inherent customary law in terms of daily issues and resolve disputes in everyday life according to traditions and customs.Since there are some content in accordance with the State statutes in these customary laws and some other parts conflict with them, the research about how to solve the conflict and fusion between the customary law of national minorities and state statues has become one of the most significant projects in the process of building the rule of law, which has a great theoretical and practical significance to the development of positive law, re-understanding of traditional culture and national unity, construction of harmonious society.In this paper ,on the basis of a one-month-long investigation in Luoshitan Village,Hua Tang County, Longshan County Town, Tujia-Miao Autonomous Prefecture of Xiangxi, Hunan Prov, the author gave a thorough analysis of the the status quo and characteristics of the conflict and unity between the Tujia customary law and the positive law,and tried to analize how the Tujia customary law should interact with the positive law in reality and achieve unification at the same time, hoping it will take the road of government-led rule of law in the process of mutual adaptation, in order to achieve the harmory between the customary law of national minorities and State Nomocracy eventually.