The Study On The Folk Law's Function Of Constructing The Legal Order In Contemporary China

Taking the construction of the rule of law order as the entry point of the article,it elaborates the function of folk law in constituting the rule of law order in China.The article hopes to differ from the traditional view and convert to the more extensive folk life,and we can demonstrate how to build a legal order that is born in China and has local characteristics.First of all,the paper starts with the theory of origin and concept definition of folk law;it lays a theory foundation and normative analysis vocabulary for the later writing and points.In this part,in order to clarify the connotation of "folk law",A careful cornbs is made for the development of the meaning of the "folk law" and language context.After this,from the sociology of law?legal anthropology and other jurisprudence on the cognition of folk law to clarify the discourse space and discourse context of the folk law,and put forward the meaning and characteristics of the folk law;Second,the article starts with the relationship between the folk law and the legal order,by reflecting on the practice mode of Chinese legal order construction,and it points out that there are endogenous tension and practical tension in the government-driven pattern and the path dependence of social evolution model and the logic expression of the folk law.Above these I elaborate to illustrate the potential of the folk law and its value of the legal order in our country;the next,from the specific analysis of the function of the folk law and With Hayek's theory of spontaneous order,the article believed that the folk law naturally has the derivation mechanism of spontaneous order.From the perspective of the legal method,this paper illustrates the function of supplementing legal loopholes and how to participate in the filling of legal loopholes.In addition,it clarifies that the folk law has the function of the judicial application,and points out that it can participate in the judicial argumentation activities.Based on the above the excavating of functions,we can conclude that national laws should respect the widespread application of the folk law in private contacts,scientific legislation and administrative acts.Finally,holding on rigorous attitude of academic research,Objectively analyzing the limitations of folk law,from history,procedure,form,region and effectiveness,we can understand that the value of the folk law in a comprehensive way,and by analyzing these limitations,this paper puts forward that we should exclude partial the folk laws that don't have it's particular features,which can be used to prove the integrity of the arguments.The conclusion part further clarifies the analysis skeleton of the article and put forward the basic conclusion of the article:Whether in academic or legal practice,the folk law does have the function of constructing the rule of law.The promotion of the rule of law in China should fully respect the local resources of the rule of law,focusing on the civil code,recognizing that order begins with basic facts of life,that is where the law comes from.On this basis,we hope embedding the folk laws into the formal system of the state,then constructing the ideal picture of the real rule of law.