论习惯和习惯法的概念界分

学界对习惯的界定有两个落脚点，即“行为模式”和“行为规范”；，对“习惯法”也存在“社会认同”与“国家认可”这两种进路的界定。着眼于“行为模式”所界定的“习惯”实为“惯例”；着眼于“行为规范”所界定的“习惯”与“社会认同”进路界定的习惯法是同一的，可称为“习惯”。而国家通过司法吸收习惯，就形成以判例形式存在的习惯规范，可称为“习惯法”；而国家通过立法以指引性规范赋予习惯以法律效力，即“准用习惯”。

The Definition and Distinction of the Custom and the Customary Law

There are two ways to define custom, that is, modes of behavior and norms of behavior. Also, there are two approaches to define customary law, one is recognition by the society and the other is recognition by the state. The custom which is defined as the modes of behavior can be called convention, and the custom which is defined as norms of behavior is similar to customary law defined by the recognition of a society. Customary norms absorbed by the judicature and existing as precedent can be named as customary law. The legislator can authorize the judge to apply the custom, and custom of this kind can be named as applicable custom.