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习惯法既不是习惯,也不是国家法,而是介于习惯与国家法之间的一种独立的客观社会现象,其基本属性具有二元性。其基本特征在于:1.它介于自发形成与自觉制定或认可之间,是“俗成”的第一性规则与“约定”的第二性规则的结合,是民众意志和经验与民间权威个人意志和经验的结合;2.它介于身体记忆与成文制度之间,主要以口头的方式体现,是抽象性内容与形象性方式的结合;3.它介于个人自愿与社会强制之间,具有“教化型强制”的特点。总之,习惯法是以习惯为基础的、通过民间权威口头宣示表明的、以“教化型强制”为保障的社会规范的总和。
Customary law is neither a habit nor a national law, but an independent and objective social phenomenon that intervenes between customary law and state law. Its basic attributes are dualistic. Its basic characteristics are: 1. It is between the spontaneous formation and consciously formulated or approved, is the “vulgar” of the first rule and “contract ” second sex rule combination is the will of the people and Experience and civil authority of the individual will and experience combination; 2. It is between the body memory and the written system, mainly in oral form, is a combination of abstract content and the image of the way; it is between voluntary and personal Social coercion, with “enlightenment compulsion ” characteristics. In short, customary law is the sum of social norms that are based on custom and are promulgated orally by civil authorities and guaranteed by “enacting type compulsory ”.