习惯自在调整与习惯的法律化

传统习惯在社会制度构造中一般有"习惯自在调整"和"习惯法律化"(包括"认可式""嵌入式"两模式)两种形态。基于国家法调整的限度,"习惯自在调整"模式拥有充实的社会基础。传统社会向来重视"习惯自在调整"模式对民间社会秩序的维持作用。这一模式饱含着诸多有益于当代社会主体私权保护的优异品性,蕴涵着"法律伦理主义"的价值取向。当然,中国古代依赖血缘组织的特有社会结构表明,社会调整既需要习惯自在调整,也需要习惯的法律化。"习惯法"和"嵌入式"的"习惯成文法"等两种习惯法律化模式,既能够表彰习惯的法律意义,使得法律制度认同、融会优异习惯规则,又符合现代社会的快节奏行动模式和法治化的体制要求。

The Customary Self-adjustment and the Legalization of Customs

Customs manifest themselves in the structuring of a social system in two forms,that is,"customary self-adjustment" and "the legalization of customs"(including approval and embedding).The adjustments of customs within the constraints of national law have solid social foundations,and great emphasis has been placed on the role of 'customary self-adjustments' in maintaining the social order of a traditional society due to the fact that such adjustments are conducive to the protection of individuals' rights and that they follow the principle of "legal ethics".The unique social structure of traditional Chinese society,which relies heavily upon consanguinity,requires that social adjustments occurs in the form of both customary self-adjustments and the legalization of customs.The legalization of customs,which manifest itself in the form of customary law and written customary law,helps to make legal implications of customs more salient,and facilitates the identification with and the incorporation of some customary rules in the legal system,and ultimately meets the requirements of rule by law and the fast pace of modern society.