关于少数民族习惯法与国家法之冲突与互动的思考

人类已经进入了一个新的千年 ,中国的法治建设也翻开了崭新的一页。在我们大量移植外来法律文化“西为中用”时 ,中国本土的法治资源也开始进入我们的视野。作为有着深厚文化根基和历史传统的少数民族习惯法 ,长久以来在少数民族地区起着调整社会关系的功能和作用 ,但在现今的社会转型时期 ,它与国家法的矛盾和冲突日渐凸显 ,从而成为我们进行法治建设所不可回避的一个问题。少数民族习惯法与国家法的冲突究竟表现在哪里 ?两者如何构建才能形成良性的互动 ?本文试图针对这些问题进行理论的探讨。

Speculations on the Conflict and Interaction between the Customary Laws of Minor Nationalities and the National Laws

The construction of government by law in China turns over a new page with the coming of the new millennium. In adopting a lot of foreign legal cultures to Chinese use, we are also confronted with the indigenous resources of government by law. The Customary Laws of Minor Nationalities have solid cultural foundations and historical traditions of their own and have been playing the role of adjusting various social relations in the areas of minor nationalities. Yet at present time when social transformations are taking place, the conflict between the Customary Laws and the National Laws becomes acute, finding itself an unavoidable problem in the construction of government by law. What exactly is the conflict between the Customary Laws of Minor Nationalities and the National Laws? How can the two be related to each other in order to form beneficial interaction? These questions will be answered in the following paper, expecting to arouse speculations about it from many other people.