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Study in Customary Norms

Author: WangXinSheng
Tutor: HaoTieChuan
School: Shandong University
Course: Legal Theory
Keywords: customary law customary norm folk order national legislation sources of law
CLC: D90
Type: PhD thesis
Year: 2008
Downloads: 556
Quote: 2
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Abstract


This article obtains from this realistic question: How customary norms can regulate the social order as a part of the legal system, in particular, how customary norms can enter the judicial process as referee norms of the judge? Since "The research on the operation of folk customs under the vision of harmonious judicature" been list as the key investigation by the Supreme People’s Court, many courts already have engaged in the practice of using customary norms to judge cases, and have obtained fruitful achievements. Along with the academic framework of folk’s law gradual formating, customary norms entering the judicature, not only is the vital problem which we must face in current judicial practice, but also in the research of legal science.This article is divided into two parts. The first part including academic origin, fundamental construction, expressive form and essence of norm elaborates in customary norms’ general theory. The second patr emphatically inspects in the status and function of norms in the social order, national legislation and judicial practice.About the academic origin of the concept of norm, Chapter I proposes that, the most important characteristic of customs is that they are social facts and at the same time they have normativity, vice versa. As social facts, customs include rich contents correlatiing with community significance world, so we may take off the socail facts’ coat and replace facts by significance in facts, and say that we obtain customary norms not from social facts but from significance of social facts. Because customs have contained those factors such as the nature belief, the moral belief, the practical rationalily and the order belief, they have normativity. Thus, "as the custom procedure" or "as the norm", says from the meaning of the concept, custom should accurately be indicate as "customary norms", or said that, the custom is one kind of social being, and it is a descriptive invariable item of customary norms. Discrimination between custom and customary norms has three reasons: First, appearing in the people’s dialogue of practices, the custom belongs to the category of social facts, and it is the people’s description about social fact. Pure description certainly does not constitute the reason of people’s activity, has no any binding force or any compulsory significance. Second, Discrimination between custom and customary norms has advantage for grasping the close relation between them. The custom may be observed, descripted, counted and analyzed, thus customary norms originated from custom also have the objective characteristic of positivism and practical diagnosis. Third, The legislation and the judicature all must pay attention to the social investigation about customs, and must not merely pause on subjective judgement. It is the common humanity experience such as "Practices are true knowledge" or "The fact wins to the convincing argument", at the same time, it is the need to the objectivity and definitivity of the rule of law.In order to analyze the structure of customary norms, Chapter II has exploringly established a system of the general framework. Those essential factors which construct the norm’s existencial space is called external factors, and those essential factors which determine norms’ internal nature is called internal factors. External factors include community, culture and history, while internal factors include belief, social power and compulsory. As admixture of adjusting norms and definiting norms, customary norms approximately have the same structure with legal norms. Both customary norms and legal norms are constituted by two parts: assumption and consequence. The manifestation of the legal norms is the text of the law, and its significance is the significance of the text. But the manifestation of the customary norms is social facts, and its significance is just the significance of the social facts itself. Looking from the manifestations of norms, most spreading down customary norms are expressed by descriptive sentences. Those sentences have a function of illusorytheoretical sentences,and they actually express normative significance. Therefore, from the point of the norm’s ontology, customary norm is one kind of expressive conception.ChapterⅢemphatically inspected the essence of customary norms. The customary norms are descripted from social conventions, and because of this special normativity, they belong to social norms. But customary norms are special social norms which have not only general characters of common social norms but also individualities which distinguish them from other social norms. Since the normativity of social conventions can be explained by the social condition, we should find the just way to institutionalize these customary norms through the fact that social customs had been fixed as general standard of social behavior. Looking from the outside view, customary norms are objective norms whose normativity are decided in the objectivity of social conventions. Customary norms are norms which had benn generally accepted by members of the social community. There are neither members’ autonomy, nor orders from others, government or associations. Customary norms are standards of behavior which issued and maintained by abstract social strength. The normativity of one customary norm include two conditions: first, the existence of social custom; second, the belief of community. Therefore, customary norms are not only objective norms, but also internalized norms. They are requested not only to passively conform to "the principle", but also initiativejy understand "the principle" and the rule of social behaviour, so as to establish the "sentiment" on a more reliable foundation. Looking from the forming mechanism, they are both spontaneous which Hayeke named and autonomous.The fourth chapter mainly discussed the connection between the social order which customary norms formed and the social order which legal norms construct. I believed that if we regard the rule of law as the standard order which was artificially organized by authoritative will, may we reguard the custom as social crisscrossing footpaths in folk fields. Any social order is influenced both by customary norms and legal norms. Although we take legal norms and customary norms as basic origins of social order, the "made " legal norms can not be separated from customary norms to justify social order. The discrimination between the internal order which customary norms formed and the exterior order which legal norms construct, is not about the plane social order, but is about the multi-dimensional social order. Based on the daily life order ,the legal order is accepting the adjustment not only from legal norms but also from customary norms at the same time. Customary norms are first-level norms of the human society. Customary norms and legal norms have different mechanism which mainly display in different foundation of knowledge, different desire or goal, different logical means. In the frame of the social order, there are interactively cooperative and competitive relations between legal norms and customary norms. Law is only one "designed" part of the social stylization. People accidentally march into the legal stylization. The massive daily life still walks in "the crisscrossing footpaths in folk fields" which customary norms formed. Besides the function to derect the the daily behavior, the customary norms’ significance to social order displays in the processing function of common social disputes. Precisely because of this function which social disputes may be solved by citing customary norms, they have independent character. We must avoid as far as possible adopting "revolutionary" mains to restruct the society or subverting traditions by rationality, on the other hand, we must pay necessary attention to the tendency of "solidification" or "involution"of customary norms, and seek the balance point between opening socity and closing socity to promote the unceasing evolution of spontaneous order. Customary norms not only exist in the Chinese tradition society. So long as meetting the corresponding requirement, such as the relative closing community, roughly consistent historical and cultural experience, common practice of social life, etc., customary norms and their order might appearance outside the law’s control. The justification and validity of customary norms are not relying on their historical process which is only one chip but not its essence. The value of people’s autonomy which customary norms manifested is not only in the historical age but also the living socity.On written law’s standpoint, that the concept of customary law should be replaced by the concept of customary norms, is the basic viewpoint which Chapter V proposed. Although in the sight of sociological research the concept of customary law is valuable , it is an illegal conception under the written law’s framework. As norms, the standard to which customary law is or not state law is clear. Any practitioner who engage in legal occupation cannot one-sidedly emphasize the normativity of the social order neglecting the reality of the power structure. The state law is the product of power structure which cannot exist at all outside this reality. Under the legislative angle of view, customary norms have two main forms to influence state laws: first, customary norms are original forms of the state law; Second, customary norms are permissive norms under the written state law. Customary norms are inborn origins to the state written law. From real diagnosis view, I analyzed customary norms’ status and influence during the contemporary legislation process of China, lifted massive examples that Chinese legislation had integrated many customary norms into the state legal system, and denied the viewpoint that "Chinese present legislation is contempting custom". About any kind of state law, legislation is unable and impossible to despise the custom. To a certain extent, discovering and refining customary norms which have been existed in the society and been accepted by people generally is legislator’s most important task. Certainly, not all customary norms have qualifications to enter the state written law’s system. They need some basic conditions, such as enough effectiveness, quite definite, in vacancy or expiration of current written law, conformming to the logic and the principle of written law’s system.ChapterⅥandⅦgather the study’s vision on the judicial process. Customary norms entering into norms’ system of judges’ referee, or becoming one part of sources of law which judges choose facing concrete case in order to make up for the blank of state law, is the most prominent performance of thier status and function in the judicial process. In recent years, more and more Chinese courts particularly inferior courts emphasis customary norms in the judicature. Customary norms entering into contemporary judicature in China is the objective existence, regardless their different mains or reasons. According to late positivist theories of law, rules of recognition is the standard to which lawers judge the boundary of law’s system. According to Hart, rules of recognition were based on the social customs. From social conventions to intrinsic accepted ideas by members of the socity, to reasons of activities, as coordination conventions, rules of recognition are standards to which judges choose customary norms as one part of the sources of law in referee. Customary norms are constitutive conventions too. They determine the type of judicature which has different sources of law. As judicial practitioner, that judges have most authority to establish rules of recognition in the judicature explains the importance of judges in the judicial process. Using rules of recognition to examine customary norms in the judicial practice, is the only way to cite customary norms in judicature and the final basis whether customary norms have the potency . Conditions of customary norms entering into sources of law of judges can be differentiated to two levels: affirmative conditions and negative conditions. Affirmative conditions include Long-term existence, determinism and compulsory, while negative conditions include universal dispute, violating rationality and internal conflicting obviously. Choosing customary norms in the judicial process, must obey the request of judicial system, and must be restricted by procedural law in written law’s system. About the method of customary norms entering in judicature, the paper mainly discussed the opportunity of entering, the scope of potency of norms, the discovery and explanation,etc.What the final chapter discussed is customary norms’ effects in other judicial circumstances, such as judges’ explanating the state law, judges’ tactics in some cases, deducing legal facts, and so on. Customary norms are the important prejudice during judges’ explaining, understanding and applying the state law, is the criteria of social significance that judges used to explanate law in restricting or expanding ways, is the net of social life which judges used to supplement those legal loopholes and to balance different interest, is the background of judicial argumentation. In order to apply customary norms in the judicial process, judges often adopt some kinds of tactics. Judges’ tactics such as "false ornamented judge ", "snatching from the jaws of death", mediating in court, all embody the effort that judges initiatively close to customary norms. Under certain circumstances, the main reason that why judges make great efforts to use customary norms in ascertaining rights and duties of every party in the current case, or why they adopt some tactics to apply those customary norms when they are ordered to apply state law directly, is that judges have experienced initiatively the strong strength of customary norms from their inherent aspects. First, on judges’ point, compared with the expectation to implement the country’s law, the desire to make the court’s decision according local conventions is more stronger. Second, customary norms can restore the social life, so people’s duly behavior would like to accept guiding by customary norms. Thirdly, customary norms are reasons why participators concerned initiatively abandon legal rights or bear not legal duties. It is more easier to distinguish right form wrong according to customary norms than according to state laws. The attribute that customary norms comes from social facts which had been accustomed by the society makes judges can deduce legal facts according to customary norms. Certainly, judges must do more efforts on logical questions.The core viewpoints of this thesis is that custom is the base of the social order. Even those scholars who engaged in law-centred doctrine must admit that, legal rules are only those arteries of social traffic, besides trunk lines, there are fairly meticulous alleys, paths or streets which exist in the form of customary norms. Customary norms are institutionalized backgrounds that members of community depend on in social interactions and that the mandatory of them come from. Any state legal system cannot avoid the environment which customary norms formed, so they initiatively decline to change suddenly, and evolve slowly. Customary norms may probablly impinge to the objectivity of judicature, but if we take openning and forbearing attitude to deal with the problem about politics legitimacy, we shall bring these norms into rules of recogniton completely and contribute to the enterprise of law in special way. Because of that custom can be observed, descripted, counted and analyzed, customary norms have obtained the characteristic of objectivity of law which can be demonstrated in the realistic social practice. All customary norms, disregarding in judicature or in legislation, should be confined to the society objective practice, and not depend on those social ideas.

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