Custom And Law: A Study On The Basis Of Judicial Discretion Of Matrimonial Disputes In The Shenxi-Kansu-Ningsia Border Region

Custom has been existing in the folk for a long time,and remains a unique social phenomenon in human society.It regulates people's rights and obligations in a region,and has become the social norms for members of certain regions or societies.However,customs may play an important role in maintaining social order with national law while at the same time are likely to contradict or conflict with national law.Therefore,how to balance the relationship between customs and law became a major issue for the human society to address.The Communist Party of China legislated marriage laws in the legal construction of the Shenxi-Kansu-Ningsia border region.These marriage laws advocated equality of men and women as well as freedom of marriage,and opposed arranged marriage by parents.However,the realization of new legal concept can not be simply achieved by legislation.In such relatively-closed,traditional and backward border regions,traditional custom still maintained a strong vitality,and played an important role in adjusting people's relationship.Therefore,the collision of the new marriage legal system and tranditional custom made a great social transformation and a great revolution.This article focuses on the special historical background of the Shenxi-Kansu-Ningsia border region.Through collecting historical materials on marriage customs and laws,this paper analyzes the conflicts between marriage law and customs,and the practice of matrimonial disputes settlements from some aspects: the related concepts and theories,the specific marriage customs,marriage laws and historical cases.This paper discusses the border area government how to apply laws and customs to marital disputes,and how to regulate the relationship between customs and legal conflicts.Through the analysis of laws and customs in marital disputes from the Shaanxi-Gansu-Ningxia Border Region,this article expounds the importance of coordination between customs and laws in adjusting social relationship.And it emphasizes the role of customs in the social order maintenance.