The Value Of Customary Law Refactoring

In a pluralism global situation, transplantation of western legal system in China is forming a Huntington’s confliction of civilization, and this confliction demonstrates by the China’s legal system. As a carrier of local legal culture, Customary Law is a legal source with traditional culture, and it is a bridge that makes a fusion of Chinese and Western values in the judicial process. And it also makes people convinced in law. So application of Customary Law establishes rule of law system.This thesis mainly describes values of Customary Law and ways of it to play the role under nowadays law environment of China, and discusses the possibility and necessity of Customary Law in the judicial process theoretically. Chapter1discusses the law environment. In different culture, customs are different, the difference of custom form different cultures of law. Customary Law is a direct viewing of a legal culture, and it is contained in a society’s legal culture as a main part. In Chinese society, the fusion of legal culture means that it needs to bring customary law that represent eastern values into existing western legal system, and it is vital in establishing rule of law system in China. In the last part of chapter1, the author defines the Customary Law. Chapter2describes the history and development of Customary Law both in eastern and western cultures, and the effect of Customary Law in Chinese traditional society. Chapter3describes the theory of application of Customary Law in judicial process in this situation. Chapter3also discusses the effect of Customary Law in discovery of law, assessment of legal value and argumentation of law. It explained that Customary law is an important source in judicial process that in application of law by the judge. Customary law resolves the problem that mechanized application of law under the influence of strict legalism and it is also a restriction of judicial activism. In the last part of this chapter, it discusses application of Customary Law in judicial process. In last chapter, it discusses the value of Customary Law for Chinese society, and explains that a society cannot establish a uniform legal system in dual structure of urban and rural. Application of Customary Law is a solution in this confliction of multi-culture, and a solution in establishing a uniform environment of law.