法律多元格局中的国家法与非国家法

国家法与非国家法是两种不同的知识传统,国家法是社会进步的产物,也可以说是弥补民间法调 整方法的不足而出现的规则。非国家法属于人类学家所讲的"小传统",属于大众文化;而国家法则属于相对应 的"大传统",属于精英文化。国家法是民间法发展到一定阶段的产物,从这一点上看,二者在一定条件下是可以 融合的。在建设法治国家的背景下,还是要以国家制定法为价值主导,但绝不是将其强行推进到民间社会,而是 强调二者的互动,即相互融合、相互渗透、相互影响的关系,既以非国家法补充国家法,又用国家法整合非国家法, 二者共同起作用,致力于现代化法制建设实践。

The National Law and the Non-national Law In the Pattern of Legal Pluralism

The national law and the non - national law are two different knowledge tradition. The national law is the product of social progress, and it is such a rule that it can make up of the deficiency of adjust method of folk law. The non - national law belongs to " small tradition" called by anthropologists and it is the popular culture. While the national law belongs to the corresponding "big tradition" and it is the elite's culture. The national law is the result that the folk law developed into certain stage, and from this, the two kinds of rules can be merged under certain condition. Under the background of building a country governed according to law, we should make the national law as the leading factor of value. But we dont mean that we pull it to the folk society by force definitely. We should emphasize the interaction of the two that is the relation of mergence, permeation and influence each other. We should not only supplement the national law with the non - national law, but also combine the non - national law with the national law. The two rules should work together to devote to the law practice in modernization.