Binary Construction And Interaction Of National Law And Civil Law Thinking

With the propulsion of the rule of law in China, the law system is consummating itself day by day and at the same time a series of thoughts are also aroused. The norm of law fails to gain its expectant effect; many laws can't operate effectively; evasion of law happens occasionally. Thus, the agreement between the national law which drawn up on the basis of foreign law experiences and the development of Chinese society is under doubt. It's safe to say that we have gained certain achievement in constructing the order ruled by law through using foreign experiences for reference, but it can't fit the development of Chinese society completely. The right saying"Every society has its law"presents the inner relationship between society and law. Therefore, this text, which setting out from the actual order ruled by law and judicatory practice, setting foot on the situation of China, using analytical method of sociology and anthropology, through many approaches like contrasting analysis and benefit analysis, is to study the relationship between national law and folk law on the basis of law pluralism and to construct an interactive prospect between the national law and folk law through contrasting analysis and benefit analysis.First, contributing to the method of comparative analysis, the text expresses on opinions about National law and Folk law。Under these opinions inclines to discuss Suli's Native Resources Theory, Masaji. Chiba's Non-national law, Tian Chengyou's opinion of folk law. Liang Zhiping's opinion of folk law is of the common law. Fei Xiaotong's folk law is a kind of educational power, etc. Through the study of these several typical folk law this text is to reach the conception of it.Then ,we want to coclude that why do so popolur folk law .At end ,cocluding the features of National law and Folk law.Second, discusses the relationship between the National law and the Folk law, including conflict, opposition and combine. At present, the popular theories about the relationship between the National law and the Folk law are binary relation, the supremacy of law and complementarity. Here we take complementarity as the most important one to discuss. The conflict and opposition between the National law and the Folk law explain the differences from the aspect of noumenon and operation. The combine between the National Law and the Folk law includes possibility analysis and actuality analysis. The actuality analysis between the National Law and the Folk law is the interactive analysis between them.In the end, we come to a conclusion that in practice traditional Folk law resource will continually achieve contractual transition. So will the National Law. This can achieve finer interaction. Contractual transition requires the Folk Law to absorb some advanced principles of the citizen′s society and to establish the modern nomocracy. The contractual transition of the Folk Law takes civil society as institutional basic point, establishing the reasonable tolerance to the Folk Law in the field of the law. This contractual Folk Law contains valued principles of liberty, equality and justice. This bases on the binary opposition of the civil society and political country. It changes the fixed communication mode into law. This can better expressing people's thoughts, enables the National Law and the Folk Law to coexist in the same law field.