Rediscovering a Marginalized Knowledge Tradition: A Preliminary Examination of "Customary Law" from the Perspective of Criminal Law

Author: Du Yu
Publisher:
Publish Date: 2005-12-01
Features: In this book, we not only conduct a thorough examination of the role of customary law in the current criminal theory system, but more importantly, gain a more authentic and clear understanding of the survival status of customary law in judicial practice. On this basis, we will further discover that there exists a considerable paradox, discontinuity, and tension between the current theoretical description of customary law and judicial operations. As a result, we are compelled to engage in a fresh dialectical reflection on the relationship between criminal statutes and customary law. The further extension of this line of thought lies in re-establishing and unleashing the due theoretical functions of customary law within the framework of the principle of legality, and re-examining and re-evaluating the role and value of customary law in the entire criminal theory system. To a certain extent, this book not only gently subverts the traditional narrative—“rejecting customary law”—but also creatively reconfigures the criminal role and value of customary law. From a broader perspective, the book delves into customary law from a side angle, highlighting the significant crisis faced by the principle of legality in the contemporary rule-of-law context, as well as potential solutions to resolve such a crisis.