中西方关于习惯法含义的基本观点

在西方近代以来的法学界、社会学界以及文化人类学界,尽管有分歧,但基本上都承认与国家法多元并存的民间习惯法的存在。我国的文化人类学界和民族法学界,人们公认在某些民族地方有与国家法多元并存的地方民族习惯法体系。而传统的同时也是现在还居于主流地位的法理学,认为法仅仅是由国家制定或认可并由国家强制力保证实施的行为规范,不承认民族习惯法是法的表现形式。从田野调查的资料看,与国家法多元并存的地方民族习惯法体系确实存在。

The Essential Views on the Custom Law between the East and the West

Though there are some contradictions in the areas of laws,sociology and culture anthropology in the West,the co-existence of the state law has been widely accepted.In China where the cultural anthropology and the custom law co-exists,people hold that in some ethnic areas,the state laws try to co-exist with the local ethnic laws.And the traditional one,which is also the dominant one in law and science,holds that law is made by the state,or accepted by the state,and is enforced to be carried out by the state.It does not accept the view that ethnic custom law is part of laws.Based on the result of the field study there exists the local ethnic law with the state laws.