回族习惯法是“活法”吗--基于张家川回族自治县的实地调查的反思

The Role of the Customary Law in Dispute Settlement in the Rural Area of the Hui Nationality

虽然关于回族习惯法的文献大多认为少数民族习惯法在少数民族民众的日常生活中特别是纠纷解决过程中扮演着极为重要的角色,但从张家川县这一回族比例极高的回族自治县的实际情况来看,上述观点还有待商榷。受多种因素的影响,无论从当地民众的认可度来讲,还是从纠纷处理过程中对回族习惯法的适用情况来讲,回族习惯法在当地纠纷解决过程中其实都没有扮演较为重要的角色,难以成其为当地的"活法"。

The customary law is a series of consensual and unwritten stipulations which is naturally made by human beings in the longterm social practice, directs and judges people’s behavior. Gradually, the statute law, based on customary law, has become the mainstream in the modern legal society. The minority customary law is an important part of China’s customary law, while the customary law of the Hui nationality appears more special for the faith of the whole nationality in Islam. In an autonomous county of the Hui nationality where most of the population are from the Hui nationality, people use their customary law in dispute settlement considering the use of local autonomous rights,the detailed regulations of statute law and their faith in religion. In reality, the space of its application also reflects that the customary law of the Hui nationality is in an awkward position.