The Conflicts And Integrations Between Folk Law And National Law

The conflicts between folk law and national laws seem an inevitable common issue during the process of legal modernization. As the national laws extend gradually to base cores, the original folk laws are discarded and integrated by them. In this process, two kinds of trend line often mutually. On the one hand, the national laws absorb constantly local knowledge which is marked by good morals and obtain the practical reasonableness. On the other hand, folk law gradually lost its dominant specification status and become a kind of optional rules. But two processes often appear disorder of time and technical intermittent, namely, the national laws often hastily expend without valid integration. It causes the legal functional anomie in the country life, which leads to the sectional disorder of rural governance. And the basic approach to overcome the disorder of the basic method is to face up to the value of the folk law, at the same time, explores the technical path of folk law. Thus, the principle of social conventions and good morals in private laws as well as the right of local legislation should be taken into consideration.This article selects samples from town of CheTian, county of LongChuan, HeYuan city, GuangDong province which is a field of hakka communities, and takes their marriage and funeral custom as the main point of view. The region is near the Pearl River Delta economic center, and complex terrain conditions contributed to its relatively closeness and retained a large number of effective folk rules. Powerful traditional hakka concepts give these rules continued vitality, and as a basis of traditional social ritual, marriage and funeral customs are the typical ones. These customs and the national laws conflicted in various aspects. As the hakka people don’t belong to the minority, they can’t own local legislative authority and the legislative level of flexibility. And local state organs haven’t integrated and concluded consciously in the process of law enforcement and judiciary, which makes the contradictions apparent.Folk law has clearly complement and balance function to national law and this function can be exerted on the basis of the open construction of law. Current legislature power like national regional autonomy can be only given according to nationalities whose standards are just languages or characters but not folk law. Therefore, this paper suggests that the national local legislature map should be delimited again on the basis of regional distinction of folk law so that some places which possess their own folk law can obtain cheap legislative power. Meanwhile, good morals and vulgar can be discriminated on the base of national law in the process of law enforcement and judiciary. Ways like mediation could be carried out effectively. Thus folk law and national laws can have benign interaction.