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民间法研究已然在当今国内法学理论研究中占有重要地位,但表征这一研究领域的民间法概念尚处于不甚明晰的状态。笔者认为,我们首先应当承认民间法这一语词本身并不是一个合理的名称,原因就在于它违背了分析法学对“法”与“非法”的区分。但是,在语言符号任意性的意义上,我们还是能够以民间法这一符号指称法学研究中的“民间社会规范”这样一个对象领域,而且不会将民间法混淆于国家实在法。这种用法在从事这一研究的学者中已经取得了一定的共识,因而不必再去追究民间法这一语词自身构造的合理性。当前民间法研究的一个重要课题,就是必须尽快就民间法的基础概念问题达成一致并构造起较为完善、合理的概念体系,从而为民间法研究奠立坚实的根基并创构有助于相互理解的学术语言介质,推动民间法研究的规范化、科学化。本文对民间法概念的辨谬正是这样一个有益的尝试。
The study of civil law already occupies an important position in the current domestic legal theory research, but the concept of folk law that characterizes this research field is still not clear. The author believes that we should first of all recognize that the term folk law is not a reasonable name in itself because it runs counter to analytical jurisprudence’s distinction between “law” and “illegal”. However, in the sense of arbitrariness of linguistic signs, we can still use the notion of folk law to refer to such an object field as “civil society norms” in legal research, and we will not confuse folk law with the state substantive law. This usage has made some consensus among the scholars engaged in this study, so it is no longer necessary to investigate the rationality of the construction of the term of folk law itself. At present, an important issue in the study of folk law is that agreement must be reached as soon as possible on the basic concepts of folk law and a more perfect and reasonable conceptual system, so as to lay a solid foundation for the study of folk law and to create mutual understanding Scholarly language medium, to promote the normalization of civil law research, and scientific. This article’s fallacy of the concept of folk law is just such a useful attempt.