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On The Value Of The Customary Law In Our Rule-of-law

Posted on:2011-03-20Degree:MasterType:Thesis
Country:ChinaCandidate:J F DaiFull Text:PDF
GTID:2216330338472128Subject:Legal theory
Abstract/Summary:PDF Full Text Request
China's rule-of-law is a systematic project, which involves all aspects of social life. The order of national law and the order of customary law are important parts of rule-of-law. Because the law is multivariate, the standard resources of rule-of-law practice is also multivariate, both national law and customary law. The research of the relationship between the customary law and national law seems more can let us clearly realize the obstruction problem of rule-of-law, which advocates realizing the docking and communication of national law and customary law in the process of rule-of-law, properly excavated the value of customary law. This paper is to explore the problem and significance in it.It must be first to have a clear understanding to customary law before exploring its value. The definition of customary law is always discussed as an academic topic, this paper discards the traditional point of legal with the view of legal multiple, and gives explanation in a broader sense. Law is a series of regulation-systems, so the concept of customary law may be put forward. For its characteristics, customary law is different from habit and national law. As primary rule, the customary law and national law that is created rule coexist, where is conflict and complementary and fusion between them. At present, customary law has dual properties in China, it is specific social organization of social order, also is regional supporter of rule-of-law.The significance of the research to customary law not only shows the national culture of law, but also provides a feasible reference and guidance for rule-of-law. The way of our rule-of-law has been an important subject of law. A view is "spontaneous order way" or "independent" rule, another is "legal transplant way" or "modernization" way. But their limitations of the two ways let us have to rethink the way for rule-of-law. Due to the special conditions of the historical reason and the real reason in China, the combination of two ways in rule-of-law practice becomes an inevitable choice. In the mixed way, the achievement of "legal transplant way "made great contribution to rule of law practice, but the potential capacity of "local resources" has to further develop. There is the value of customary law in the law-making, judicial practice, the mentality of abiding by law and social management, and it provides a good social environment for rule-of-law.
Keywords/Search Tags:Legal Pluralism, Rule-of-Law, State Law, Customary Law, Value
PDF Full Text Request
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