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走向大国的中国法治必须首先实现文化特殊性与法治普适性的统一。作为固有文化的制度体现和规范性社会事实,习惯法对于社会秩序的建构发挥着重要而基础性的作用。但长期以来,中国制定法总体上表现出一种轻视习惯法的态度。近年来情况有所变化,习惯法逐成为特定法律领域中明确表述的法源,其在司法实践中也越来越受到重视。这就要求我们从多维角度慎思习惯法对于中国法制(以法治为导向)建设的价值,以正确认识和合理处置法律实践中的习惯法问题。
The rule of law in China toward a large nation must first of all achieve the unification of cultural particularity and the rule of law. As an inherent cultural system and a normative social fact, customary law plays an important and fundamental role in the construction of social order. For a long time, however, the enactment law of China has shown a general attitude of contempt of customary law. In recent years, the situation has changed, and customary law has gradually become the source of law clearly articulated in specific legal fields. It has also drawn increasing attention in judicial practice. This requires that we carefully consider the value of customary law in the construction of China’s legal system (guided by the rule of law) from a multidimensional perspective so as to correctly understand and properly handle the issue of customary law in legal practice.