习惯法产生的时代及其特点的历史考察与分析——兼论我国学术界在这两大问题上主导观点的误区

A Historical Investigation and Analysis on the Times when Customary Law Came into Being and the Characteristics——An Error in the Prevailing Idea of the Relevant Issue in Contemporary China and a New Approach

习惯法产生于原始社会后期向阶级社会过渡的时代 ,内容上具有原始性、二重性和过渡性 ;制定者和执行者是父系氏族时代 (包括其后期与地域公社并存的阶段 )的社会组织及其领导人。我国权威辞书及有关论著认为习惯法产生于国家形成以后的观点主要是受英国法制史的影响 ;认为习惯法只有利于统治阶级 ,则是把带有片面性的传统“法律”概念牵强地套在习惯法上 ,而未能以历史实际作为概括的基础。

Customary Law came into being in the transitional period from the primitive society to the class society, as a result of which it is embedded with the characteristics of primitiveness, transition and duality. It was made and carried out by the social organizations and their heads in the Patriarchal clan Period. However, the authoritative dictionaries, papers as well as books Published in our country hold the view that Customary Law was made after countries had come into being, which is mainly influenced by the British history of legal system. They also stated that Customary Law only benefited the ruling class, it imposed one-side-tradition-law concept on Customary Law but were not generalized on the basis of historical reality. This paper is intended to discuss the issue in order to distinguish right from wrong.