论民间法的社会权力基础

On the Social Authoritative Basis of Customary Law

民间法以社会权力为基础,国家法以国家权力为保障。民间法与国家法共同起源于原始习惯,二者的互动与互补既符合历史的逻辑,又符合事物发展的内在规律。社会权力是指以特定范围内的社会主体的同意为基础、以契约为表现形式,并受到一定程度程序控制的社会强制力,具有“同意性”、“契约性”和“多元性”特点。社会权力视角的民间法具有权利与权力的双重属性,具有“冷暴力”、“文化性”和“族性”特征。社会权力的变迁必然引发民间法的发展,社会权力是民间法实效的重要基础,应为民间法与国家法沟通的理性平台。

Customary law has social authority as its basis, and state law has state authority as its guarantee. Both customary law and state law originate from primitive custom, and their interaction and complementation abide by historical logic and the innate laws of things. Social authority refers to a kind of social compulsory power which is based on the agreement of the social subjects within certain limits, manifested in the form of agreement, and controlled to a certain extent by social compulsory means. It displays characteristics of “agreement”, “contract” and “pluralism”. From the perspective of social authority, customary law displays a duality of right and authority, which gives rise to characteristics like “cold violence”, “cultural” and “national”. The transformation of social authority surely propels the development of customary law, and it provides an important basis for the effectuation of the latter. In a word it links up customary law with state law.