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罪刑法定原则作为刑法的基本原则,排斥习惯法的适用。然而司法实践中,习惯法却大量地被援引和适用。理论与实践间的落差,实际上反映了罪刑法定原则在当今面临的困境,因而我们不得不重新从根本意义上来思考罪刑法定原则及其与习惯法的关系。实际上,在后现代语境中,习惯法不应当被一味的排斥,而是应当作为一种重要的刑事立法间接渊源而存在。
The principle of legally prescribed punishment as the basic principle of criminal law excludes the application of customary law. However, in judicial practice, customary law has been widely cited and applied. The gap between theory and practice actually reflects the predicament that the legal principle of crime and punishment faces in the present day. Therefore, we have to reconsider the principle of legality and the relationship with the common law again from the fundamental meaning. In fact, in postmodern context, customary law should not be blindly excluded but should exist as an important indirect source of criminal legislation.