Contenu du sommaire : La coutume et la norme en Chine et au Japon

The management of Temples in Nineteenth Century China : Customary Law or laissez-faire policy ? Chinese temples during the nineteenth century played a major social and economic role, and yet State laws barely mention the question of their management. One may wonder whether they were managed according to other rules, viz. customary law. Available texts of stone inscriptions allow us to probe this question, notably through temples regulations enacted by the cult communities themselves, and through conflicts adjudicated by the magistrates, whose decisions were carved on stone. These inscriptions give insights on crucial questions like the relations between temple community heads and resident clerics, ownership and use of temple space or land endowments. Finally, it appears that these cases cannot be deemed customary law. Some basic principles of temple management are recognized by all, and included in the law. The rest is left to each temple to decide in full independence. The community heads would not consider being constrained by external rules, be they administrative or customary, and management decisions are taken within the community, on the basis of negotiation among its members.

Regulating custom by customary means: Matrimonial Rules and the wedding-tie-knotting deity of Izumo Great Shrine (Japan) The matrimonial customs, at the crossroads between social fundamental rules and familial strategies, seems to give few space to individual desire. Thought, one can point some places in Japan, which regulate the conflict between social norma, expressed by the custom, and personal desire, to say love desire. Describing the cult of the love-knot deity of Izumo Great Shrine, the votive scriptures which are addressed to the god and the ancient texts relating the cult, we would like to discut the custom way that Japan create in its process of forming a cultural unity to overcome the local matrimonial customs.

Which norms for Chinese Muslims (Hui) ? State law, local customs or Muslim rules : these are three issues that Chinese Muslims must confront. Using two examples from kinship and marriage traditions, this article examines the challenge of adaptation. Generally speaking the way in which the Hui integrate social rules is no different from that of the Han, with the obvious exception of religion. This integration corresponds to their dispersion and their roots all over the Chinese territory where state law and local customs often predominate over Islamic rules.

Chinese State rule against matrimonial "evil customs ". Natolocality among the Zheyuanren in Guangxi As many practices which confronted Confucian norms, the matrimonial practices of the Zheyuanren of Guangxi were stigmatized by the imperial administration as "immoral behaviors" (yinfeng). The emergence of the modern nation Chinese brought the intensification of the action of the Chinese state against local customs categorized as "bad customs". This paper first underlines the social and ritual meanings of these so-called "bad customs". The second part examines the action of the imperial, nationalist and communist state.

The essay investigates how the legal term "property" elaborated in contracts and deeds can be understood in social practice in eighteenth and nineteenth century China. As "property" is better understood as a set of relations or "rights" rather than the material object, the existence of contracts for land cannot be taken at face value. Rather than tools of a market-mediated exchange society, these contracts were stitches in the webs of reciprocity and redistribution peculiar to rural society. By way of comparison to the issue of land rights, the essay examines another form of "property", namely, rights in humans. These questions are explored in the context of two very dissimilar geographical areas : Guangdong Delta in coastal south China, with a dominant pattern of intensive small-holder commercialized agriculture, and land-locked Anhui (Huizhou prefecture) in central China with a dominant pattern of serf-labor based commercialization.

Contra legem or Para legem ? The de facto marriage as custom in prewar Japan civil law In spite of the mandatory provisions of the 1898 Civil Code imposing registration as a legal condition for marriage validity, de facto marriage (naïen), inherited from matrimonial practices and representations, remained extendedly admitted during the Edo period. This continuation not only reveals a gap between law and social reality ; but it has also to be put back into the context of the bureaucratic, judicial and scholarly debate over both marriage as legal institution and custom as a source of positive law. This new conception was initiated during the first part of Meiji period, which was characterized by an overall redefinition of social status challenging the traditional conception of marriage. The recognition and half-legitimization of de facto marriage by the courts as a promise of marriage evinces the flexible role played by the judge-made law in mitigating the dysfunctional effects of a strict application of civil law, while legally consolidating the household as the basic unit of the imperial state.

Customary law as a bureaucratic acculturation process in Japan and China "Custom" and "Customary law" appeared in Japan and China as a result of the introduction of Western legal notions. Japanese jurists trained in Europe adapted theories construing custom as a primitive source of law, and they created the terms articulating these categories. Former fiefs officers, assisted by local élite, gathered collections of Japanese customs, which were neglected as soon as the Meiji civil code was achieved. However, this process was resumed by Japanese colonial rulers of Chinese territories like Taiwan. It inspired Chinese modernizers, when they had local customs collected and published in complement with the Republican civil code in 1930. Some Japanese historians, emulated by Chinese and Western scholars, deduced from these collections that a civil customary law had developed prior to the introduction of Western codes.

Custom, Mores, and Rites. Western Categories of the Unwritten Norm from a Cross-cultural Perspective When studying Far East societies, the Western scholar relies upon concepts indigenous to his own culture. Far from being created by social sciences and to their own usage, notions such as "custom", "mores", "rite" have been refined in the context of the long history of a specific legal thought. The author attempts here to revisit this history and to include in this framework an anthropological and comparative reflexion between the East and the West.