On The Status And Judicial Application Of Folk Law

Research on folk law has increasingly received attention for long time. From the "living law" proposed by the social jurist Ehrlich’s, to various representative theories of the domestic scholars, all embodies the continuous development and progress of the research on folk law.But, how to define the concept of folk law, the status of source of law, the judicial application of folk law, such issues are still in the research and controversy, it is worth further exploration. In my opinion, the so-called folk law, is a set of rules which corresponding with the state law, and show the characteristics of normative, coercive and relative universality that of the basic characteristics of law, and with regional, effectiveness and personality characteristics such as historical heritage, in a certain geographical area actually adjust the rights and obligations between people, but not recognized by state law. The folk law consists chiefly of village regulation, commercial practice, religious norms and minority habits. Folk law is so important in people’s real life that it is the behaving rule of the local community, the important complementary regulation to the state law and a bridge for communication between transplantation and nationalization of law. But due to the own weakness of folk law and the conservatism in notion and system, the position of folk law in the state law system has not been recognized by state law and the status quo of judicial application of the folk law is not satisfactory. However, in the dynamic of justice, harmony and justice in the context of accreditation of folk law status and value, the role of folk law on the positive role of the judicial practice is imperative. The similarity between folk law and the state law in the culture and values and the existing legislation provides a possibility for the judicial application of the folk law. I start from the concept analysis of folk law, and thus demonstrate the status of folk law in the state law system, then offer an opinion that the folk law serve as supplementary source of law. Based on the analysis of the status of judicial application of folk law, I tried to find the main cause to the difficulties in judicial application of folk law, then proposed the formal judicial application of folk law and put forward conditions of applicable requirements and effective forms of judicial application of folk law. Methods of comparative study, methods of historical research and methods of sociological research are used in this paper to discuss the concept and judicial application of folk law. This article includes five chapters. Chapter1is the introduction which includes analysis on background of the topic, significance of this paper and the main method used in the paper. Chapter2explained the concept of folk law, primarily analyzed the academic theory,characteristics and the main forms of folk law, at last arrived at a conclusion that the so-called folk law, is a set of rules which corresponding with the state law, and show the characteristics of normative, coercive and relative universality that of the basic characteristics of law, and with regional, effectiveness and personality characteristics such as historical heritage, in a certain geographical area actually adjust the rights and obligations between people, but not recognized by state law. Chapter3analyzed the status of folk law in the state law system, then offered an opinion that the folk law serve as supplementary source of law. The main research in Chapters4and5is the judicial application of folk law, starting from the current situation and difficulties, to explore the possibility of judicial application of folk law, the basic conditions and effective forms.