Customary Law in the Practice of Criminal Law: A Real and Powerful Role

Abstract

In the perspective of traditional criminal law, customary law is ignored and exists in the margins. The reason is that the principle of legality requires the exclusion of customary law. The real status and function of customary law in judicial practice attracts no attention in academic circles, and is outside the views of lawmakers. However, in whatever country, customary law's status in theory and in legislation is not necessarily equivalent to its real status in judicial practice, which possibly signifies some kind of discrepancy and paradox. Based on the above considerations, this article comprehensively explores the real status and function of customary law in criminal judicial practice of China through careful empirical study. The article develops its idea from the following four aspects: firstly, to present the questions and explain the main research approaches and reference materials. Secondly, to comprehensively investigate the function of local customary law in criminal judicial practice. In this part, the focus is mainly on the functional scope and macro influence on findings of guilt and punishment in local customary law. Thirdly, to analyze the function of national customary law in criminal judicial practice. In this part, besides continually focusing on the functional scope of customary law, this article also analyzes the mechanisms of national customary law, highlighting its channel and method of entering the official criminal judicial process. Finally, this article categorizes each individual case, trying best to help the readers fully understand the practical situation of customary law.