On The Custom As Source Of Law In The Chinese Legal System

Custom, as a source of law, exists in the background of all different cultures oflaw. Many legal rules originate from customs. Legislative organs have the right todraft legal rules according to customs; judicial organs sometimes derive principlesfrom customs, which are then applied to deal with particular cases. Undoubtedly, thisadaptation of customs in law is universally recognized. However, when it comes toChina, the influence of custom on legislation and the judiciary is not as normalizedand systematized as people imagine. In contrast, customs have given rise to issuesthat emerge during the legislating and juridical process. It is worthwhile to furtherstudy and analyze these questions. Although most countries have adopted theircustoms into law when drafting legal codes, customs in most countries only act asprinciples of law or as preconditions. The nature of the civil law system in China hasbarricaded the adoption of custom into the juridical practice. Not only does theproblem exist at the legislative level, but also at the judicial level, where problemsseem even more significant. Through the perspective of a nationwide investigationreport, scholarly analysis of related cases and a detailed analysis of individual cases,three concepts can be determined: the understanding of customs is not uniform, thejudicial standard is not consistent, and judicial technology is not mature. The reasonfor this phenomenon is that customs as inherent tradition are usually neglected by the state when they are introduced into the civil law system. Meanwhile, due to thestate’s stipulations regarding social influences, it is difficult for the courts to decidewhether the legal influence or social influence should be considered more vital. Thiscauses further uncertainties regarding the status of customs in the judicial process.It is worthwhile to examine the adoption of historical experiences into thejudicial system in foreign countries, especially as it compares with China’s socialistlaws. In foreign countries, the focus on customs began after the Enlightenmentperiod. Customs were regarded as the factual basis for the legitimacy of the law andthe rational for compliance. However, customs were not limited to facts only.Customs include not only the anticipation of people’s behaviors, but also people’sinner beliefs. These two factors became the two criteria for identifying the customsof judicial practices of foreign countries. The development of the concept of customsis accompanied by the formation of the western legal system, which is also theprocess of modernization. In Unger’s theory of the legal order, custom is regarded asa type of law that is compatible with the modern legal order. However, during aperiod of constant change, customs gradually infused the legal order withcharacteristics such as publicity, substantiality and autonomy, through recordingsfaithful to history, reinterpretation of custom and through the support fromgovernmental power. In nature, law requires a standardized system. If custom isgoing to be a source of law or if it will be adapted into the juridical practice, then thesystematization of custom is required. Bohannan thought that customs and law areclosely related with each other, both of which can be expressed as rules; meanwhile,the boundary between them is also strict: law is more admissible, namely, the doubleinstitutionalization of law. In order to adopt customs into juridical practice, it mustfirst experience the before-mentioned process.In China, the argument about customs has been concentrated on determining“what category of sources of law do customs belong in?” This indicates that in thejuridical practice of China, the content of custom is relatively weaker whencompared to the rich practical experience of customs as a source of law. Theuniversally recognized theory is that Custom is an Informal Source of Law Theory. This theory is closely related to the solid background of the statutory law system ofChina and the context of introducing legal theories from western countries.Eventually, some scholars were seeking breakthroughs on issue such as:(1) Customas the Formal Source of Law Theory which is based on the concept thatconstitutional law validates the improvement of custom, and (2) Custom as theSource of Law under Special Conditions Theory, which is based on existing laws.This process illustrates that since1980, the theories on the legal sources of China hastransferred from the legislative point of view to the judicial point of view. The legalsource theories in China have been broaden to focus more on judicial techniques.From a pragmatic jurisprudence perspective, customs shall play the same role asstatutory laws in nature. Thus, the “Custom as a Formal Legal Source Theory” shallbe applied.To optimize the practice of using customs as a source of law, the application ofthe before-mentioned historical experience and theories shall be with respect to twoaspects: legislative and judicial practice. The initial problem encountered is todiscover and determine the formal definition of custom. The solution to the problemis found in a process that is similar to legislating, collecting and classifying thecustom rules, which have legal connotations, into articles of law. In order todetermine the subject to be investigated and the screening criteria to be used inaccessing customs, three factors-the multi-ethnic condition, the regional unevendevelopment and the status of the political system of China-shall be taken intoconsideration. First, on a macro scale, the overall program shall be made by theStanding Committee of the National People’s Congress (“SCNPC”). The ProvincialPeople’s Congress shall then investigate, collect and classify customs. Finally, theresults shall be issued by the SCNPC. A legislating-liked method can, on one hand,attach customs with substantiality and autonomy, while on the other hand, validatesuch customs through the use of legislative bodies, which have an authoritativenature, while providing the issue with publicity. In judicial practice, the measuresshall be aimed at solving the issue of the disunity of adaptation, which is actually aprocess of double institutionalization. In practice, when a party claims to adapt custom, the relevant proofs shall be brought to court through standardizedprocedures. When there is disagreement regarding the recognition of relevant factors,the judge has the right to further investigate the issues in accordance with its power.Furthermore, in view of the current conditions of the judicial practice in China, thecourts shall further standardize the adaptation of custom through issuing guidingopinions by local courts and through issuing judicial interpretation by the SupremeJudicial Court, and through the use of other methods.