司法过程中的习惯法查明——基于非洲法和普通法的启示

Identification of Customary Law in Judicial Processes:Implications from African Law and Common Law

习惯法的可适用性已经越来越受到司法实务界的关注,从而司法过程中对于习惯法是否存在的确定、当事人对于习惯法的解释产生冲突时如何选择等诸多问题,就摆在法官们的面前。非洲是习惯法极为发达的地区之一,普通法也与习惯法有着天然的联系,因此,研究这两个法体系对习惯法的司法查明和适用极有价值,其许多方法,如通过权威证明、教科书查明、习惯法编纂、判例宣示、司法认知等都是值得我们借鉴的。这些方法的使用首先取决于习惯法在司法过程是作为事实还是作为法律的对待,不同的回答会导致适用不同的方法,但这些方法并非水火不容,而可以加以综合运用。

The applicability of customary law has been receiving more and more attention in judiciary practices. Consequently, judges are now confronted with questions such as whether a rule of customary law exits or not and what to do in case of conflicting interpretations of customary law by the parties and many others. African customary law is very well developed and closely related to the common law in a natural way. It follows that the study of the two legal systems is of great importance to the identification and application of customary law. Many of their prac- tices including authority witness, textbook search, codification of customary law, jurisprudence declaration and judicial notice could serve as quotable experiences for us. The application of such methods depends primarily on whether customary law is taken as fact or as law in the .judicial process. Different interpretations of customary law go with different methods. However, these methods are not completely incompatible but complementary.