清末民初民俗习惯的社会角色及法律地位

清末民初商品经济的发展、民间家族势力的拓展以及国家政权的更替,使得民俗习惯成为社会生活与法律调整中不可或缺的组成部分;其间,国家机构开展了两次全国性的民商事习惯调查运动,反映了统治者对民商事习惯的立法和司法价值的基本认同;民初的司法机关积极援用民俗习惯进行审判活动,为后世留下了诸多有益的历史经验;社会生活中形成了广泛关注风俗民情,尊重本土资源的文化氛围。不过,相对于政治国家强势的权力构造及＂法律形式主义＂体制,民俗习惯在政治与社会生活中,总体还处于比较弱势的地位。

The Social Role and Legal Status of Folk Customs in Late Qing Dynasty and Early Republic of China Period

With the development of market-oriented economy,the expansion of familiar force and the alternation of state power in the late Qing Dynasty and the early Republic of China period,folk customs have become an indispensable part of social life and legal adjustment.In the meantime,the government organized investigation on civil and commercial customs two times that reflected the rulers＇ basic identity of legislative and judicial value of these customs.Judicial branches exercised judicial activities by citing folk customs at early Republic of China period,and much wholesome historical experience had been accumulated since then.The nice atmosphere of culture in social life had been built after that,which means the customs was paid attention to and the local resources were respected.However,on the whole,folk customs were in a weaker position than the powerful structure of state authorities and the system of legal formalism in political and social life.