介绍苗族传统法律两部著作

我2009年元旦到了贵州省苗族地区一个农村之后我读了一本关于苗族的传统法律。他们对他们的传统与习惯法的态度给我印象特别深。路上我买了两本描述苗族的传统法律的书。两个作者都在贵州大学的法学院,一位是汉族,另外一位是一青年苗族学者,好像是汉族教授的得意门生。以下是我写的关于这两本书的英文摘要与评价。

我读了两本介绍苗族的传统法律制度的书。《法律多元视角下的苗族习惯法与国家法——来自黔东南苗族地区的田野调查》 徐晓光著 与 文新宇著 (细节参考 徐晓光博客在 http://xuxiaoguang.fyfz.cn/blog/xuxiaoguang/index.aspx?blogid=307823 )  少数民族乡村治理的本土资源问题研究 — 以贵州苗族传统法文化为列。两个著作都是贵州人民出版社出的书。徐晓光是从辽宁省,他现任贵州民族学院法律学校的教授。

文新宇,苗族,是贵州社会学院的副研究员。  文新宇也写了文章介绍他对苗族传统法律与解决纠纷的做法的研究。http://www.tushucheng.com/book/2307276.html 《少数民族乡村治理的本土资源问题研究:以贵州苗族传统法文化为例》分九章,分别就苗族地区的法律状况,乡村治理的传统本土资源,苗族婚姻礼俗与国家法 律,苗族村寨的村规民约与纠纷解决,苗族社会组织及其自然领袖权力,家族复苏背景下的纠纷解决,苗族习惯法与国家法律的冲突,传统法文化在苗族地区新农村 建设中的特殊地位与作用,苗族传统法律向现代法律转型的思考与对策等九个方面,进行了较为详细、有力的论述,从而力图达到《少数民族乡村治理的本土资源问 题研究:以贵州苗族传统法文化为例》的写作目的,即以贵州苗族传统法文化为例,论述、阐明少数民族乡村治理的本土资源问题。

我写了他们两个学者的书一个的简单的英文介绍。 网络上有重文述评在 http://www.cqvip.com/onlineread/onlineread.asp?ID=25029636

Here is capsule summary of one of the books on Miao traditional law.
Miao Customary Law and PRC State Laws Seen from the Perspective of Legal Diversity A Field Study in the Qianddongnan Ethnic Miao Nationality Area of Guizhou Province 法律多元视角下的苗族习惯法与国家法——来自黔东南苗族地区的田野调查[Falu duoyuan shijiao xiade miaozu xiguanfa yu guojiafa laizi qiangdong dongnan miaozu diqu de tianye diaocha] by Xu Shaoguang 徐晓光 and Wen Xinyu 文新宇, published Guizhou, December 2006, Guizhou Minzu Chubanshe (Guizhou Nationalities Press). Xu Shaoguang is a professor at the Law School of the Guizhou Minorities University. Wen Xinyu, an ethnic Miao and native of Leishan County, is an assistant researcher at the Guizhou Academy of Social Sciences and graduate of the Law School of the Guizhou Minorities University.

The Miao do not have a written language so their laws and legal tradition is passed down through word of mouth, especially during gatherings at special memorial markers and through songs. Customary law enacted over the centuries covers a wide range of issues including marriage, libel, theft, murder, land boundaries, mountain land use, forest rights, and extortion. Miao have used gatherings for legislation and setting up boundaries to A organize themselves regionally as in 1937 when thousands of Miao rallied to oppose high taxes and impressments of Miao into Chiang Kal-shek’s KMT army. For the past several hundred years, rich forest resources brought more attention to the Miao areas of Guizhou and the increasing imposition there of Chinese law and written contracts, although Miao traditional law continued to function at the local level. During the Qing Dynasty (1644 – 191 central government officials in Miao areas left village civil disputes to traditional laws and often deferred to customary law in handling serious criminal cases as well.

Miao customary law sets aside village forest land as a community resource that is protected and managed. The rich forest resources in the Miao areas were one of the reasons for strong Han immigration and conflict in the nineteenth century. With the founding of the PRC in 1949, Miao traditional, man-made forest lands were mistakenly considered to be virgin forest and so became state property whereas they were actually well-managed resources. The removal of the forestlands from the management under Miao customary law and their effective opening to anyone’s use as "state or local collectivity assets?’ led to serious conflicts during the l980s. For example, from 1981 – 1987 in the Miao county of Jinping alone, there were over three thousand forest land dispute that led to nine riots, three deaths and 86 people seriously injured. During the l990s, many Miao villages in the Qiandong Miao and Dong Autonomous Prefecture re-established traditional regulations and fines relating to forest management that had previously been in effect for hundreds of years.
Traditional customary Miao law, operating in parallel with PRC law, has proven effective in restoring order to forest management. Offenders are typically fined cows or pigs which they must contribute to a feast enjoyed by all the villagers. (see Xu and Wen below, pp. 122 – 132).

During the past 30 years of opening and reform, Miao traditional law has again come to play an important role in resolving village disputes. The authors caution “We should uphold Marxist dialectical materialism, and study [traditional law] and keep the part of it that represents a good popular traditions and reject the part of it that is feudal nonsense.” Village disputes are solved by debate in front of all the villagers, sometimes checking whether a duck’s eye is intact after cooking to determine if the accuser or the accused should win. Once the verdict is decided, everyone shares in the feast as a pledge that the dispute is settled and the village rules will be obeyed. If a solution is available under Miao law, Miao generally will not take their cases of a PRC state court, even in instances where the punishment would be much lighter under PRC law.

A survey of people fined under Miao traditional law generally told researchers “our village rules were made by everyone, including me. Therefore they must be carried out.” (Xu, p. 82). The authors write that the “PRC Village Council Organization Law” allows villages to make regulations as long as they do not conflict with the PRC constitution, laws and regulations and even gives villagers the right to fine themselves. (Xu, pp. 80 – 83) The authors remark that they recall how for decades China has tried to implement the rule by law in the countryside yet has failed, yet in their studies of Miao villages they see how PRC laws are routinely ignored but are then deeply impressed how villages very conscientiously respect Miao customary law. (Xu, p. 85) The authors note that the revival of customary law and village self governance has made possible the revival of clan power, with the problems that brings, although clans can sometimes play a useful role in solving dispute in the current transitional period before rule by law can be fully established in the villages.

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