| In order to define the concept of customary law scientifically and make it clear that customary law plays an important part in legal modernization of China, Marxist dialectical materialism as a basic method of research is adopted in the article. In addition to it, lots of methods such as process analysis, historical analysis and comparative analysis are also applied. Generation, evolution and status of customary law, the relationship between customary law and national law, and role of customary law in the modernization of China are focused on in the article.Scholars in China differ from each other in customary law, but they have common on definition of it. Customary law is the rule that is independent from national law, gradually evolutes in the long run and adjusts rights and duties between clients. Reasonableness and legality of customary law is demonstrated in the article, too.As to the relationship between customary law and national law, the author of the article holds that since national law came into being, our society has been dominated by dual social orders—customary law and national law. In China today, with the development of socialist market economy, construction of socialist legal system country has become a fundamental principle of governing politics. On this occasion, customary law is almost in the status of being marginalized. Therefore, it's reasonable that the value of the fork custom is neglected. However, social complexity and social adjustment system diversity indicate that law is a fundamental social adjustment system. By making research in the relationship between customary law and national law, the author of this article argues that national law cannot simply announce customary law invalid or replace it in legal modernization. The author also holds that favorable factors to legal modernization of customary law should be absorbed, and at the same time, unfavorable ones which are against the Constitution and law spirit should be eliminated. |
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