Law As Tacit Knowledge

Since1990s, studies on customary law became an interdisciplinary field among science of law, sociology and anthropology, and provided a bottom-up approach to reflection on the subject of "what is law?". In the process of studying folk-customary-law in Han society, state-society scheme, legal culturalism and legal pluralism became the dominant theoretical paradigm one after another. Essentially, these theoretical paradigms all tried to explain the virables, such as state law, cunstomary law, patriarchal clan law, religious law and other forms of social control and rules, which how to impact rational decision and accomodation in people’s legal behaviors. But if we turn to focus on studies on customary law in minority region, especially in Yi society which is not governed by central government before1949. As a result, these paradigms that assumed the central authority which has played a big role in people’s ordinary life didn’t exist in traditional Yi society. But these were oral tradition, Jiazhi (patriarchal clan system) power and reputation, marriage and kinship, and religious ritual, that have determined the process of disputes resolution in ordinary legal practice of Yi society.From the view of social mophology, native Yi people inhabited in high-moutain area for hundreds year, the physical geograghy of Ta-liang Mountain (Daliangshan) features in vertical cliffs and deep gullies, it is the topography which seperated Yi people’s living area into pieces naturally and shaped into inseparable combination of kinship and geopolotics. In addition, the poor land and extensive production pattern in Ta-liang Mountain which determined people desired and strived for living resources such as land, grain, and fortune, these things are also very important for the power and reputation of one’s own Jiazhi system. Yi people lived in a relative closed society and advocated the custom of feud, all these traditional elements metioned above that determined Yi people tend to resolve disputes by feud and war between opposed Jiazhi system before1949. It is more likely to resolve disputes by political or military rather than legal approach. But the cross marriage system and kinship in Yi society put all of Jiazhi systems into a relative banlance, mideation functioned as an alternative way of avoiding the total war between all Jiazhi systems.As the state law goes down to grassroots level in nowadays, and accompany with the social and economic development, it makes contemporary legal situation in Yi society become more complicated. As a result, there will be a accomodation process between Yi society’s traditional customary law and state law in one hand. But in other hand, the studies on contemporary customary law in Yi society also may provide a new perspective of studies on Chinese customary law.