Unity or Pluralism in the Legal System? Some Observations Concerning the “Rediscovery” of Customary Law in the P.R. China

Robert Heuser

Journal of Current Chinese Affairs - China aktuell, 2008, vol. 37, issue 4, 165-182

Abstract: Whereas the existence of customary law was recognized under the Chinese legal system of the Republican Period, and customary law was explicitly mentioned in the Civil Code of 1920/30 as a source of law, after 1949 the legal system and legal science were silent on this subject for decades. With the exception of certain customs practiced traditionally by ethnic minorities, only acts promulgated by state agencies – statutes and policies – were considered to possess the quality of “law”. Since the final years of the twentieth century, this situation has been on the brink of change. This is the result of a growing consciousness on the part of both of legislators and academics concerning the necessity of considering the factual rules being practiced in – particularly rural – society, and thus recognizing the coexistence of and possible conflicts between “state law” and “folk law”. This article summarizes some highly heterogeneous cases of “folk law” as they appear in Chinese studies and shows how the official legal system is beginning to respond to the existence of “healthy” customs by recognizing them as a subsidiary source of law.

Date: 2008
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