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在区分法的渊源与法的形式这两个概念的基础上,可以得出一个基本认识:习惯是法律的渊源,而习惯法则是法的形式。无论是在普通法国家,还是在大陆法国家,习惯都曾在法律的进化中扮演过重要角色。在现代法制中,习惯仍然是法的渊源之一,根据法律实证主义的观点,习惯通过两种途径获得法的力量:一是通过立法途径,作为立法者的素材,直接成为法律规则的具体内容;二是通过司法途径,作为法官的判案依据,以判例的形式成为习惯法,从而成为正式制度的组成部分。
On the basis of the two concepts of the origin of the distinction and the form of the law, one can get a basic understanding that habit is the origin of law and that customary law is the form of law. Habits have played an important role in the evolution of the law, both in the common law country and in continental France. Habit is still one of the origins of law in modern legal system. According to legal positivism, it is customary to obtain the power of law in two ways: First, through the legislative approach, as the material of the legislator, it directly becomes the specific content of the legal rules ; Second, through judicial channels, as the judge’s basis for judgments, as customary law in the form of jurisprudence, and thus become an integral part of the formal system.