Legal custom is the main source of law. Legal custom. Limits and difficulties of applying custom
Submitting your good work to the knowledge base is easy. Use the form below
Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.
Posted on http://www.allbest.ru/
Legal custom as a source of law
Introduction
Relevance of the topic. Custom as a source of law was recognized by ancient jurists if, when considering a case, there were no specific instructions expressed in other forms of law.
In such cases, the requirement of custom was considered mandatory and equivalent to a legal requirement.
However, not every custom was recognized as having legal force. The custom was not supposed to contradict the law; it was understood that it complemented it and in its own way “revived” it; It was considered unconditional that Custom cannot override the instructions of the law.
The sanctioning of a custom by the state was carried out either in the process of judicial or administrative activity, when the custom served as the basis for resolving a dispute, or by including the custom in legislative acts issued in a slave-owning or feudal state, which were codes of customary law.
Modern legal concepts have significantly influenced legal phenomena in general.
The presence of various legal systems allows us to consider a custom legal both due to the direct sanction of the state, and due to its recognition through certain communities, castes, religious communities, etc.
From this side, the particularly significant role of the state in giving legal custom the status of a source of law is confirmed.
The specifics of interaction between law and the state in the course of their historical development determine the activity of the state during the formation of a system of sources of law. And therefore, one cannot belittle even the “tacit” passive state acceptance of certain traditional institutions and norms of society.
Theoretical basis and degree of study of the topic.
The theoretical basis of the work consists of the works of famous domestic and foreign authors on the theory of state and law, the history of political and legal doctrines, national history state and law, constitutional law, comparative law, sociology of law, philosophy of law, including scientific works of S.F. Afanasyeva, A.N. Babaya, A.B. Venera, A.V. Demina, M.I. Baitina, S.N. Bratusya, D.A. Kerimova, N.M. Korkunova, O.E. Leista, A.V. Malko, M.N. Marchenko, N.I. Matuzova, A.V. Mitskevich, V.S. Nersesyants, L.I. Petrazhitsky, I.A. Pokrovsky, S.V. Polenina, Yu.A. Tikhomirova, V.A. Tumanova, R.O. Khalfina, B.B. Cherepakhina, G.F. Shershenevich and others.
Object of study- legal custom as a source of law.
Subject of research: the level and state of development in legal science of problems of legal custom and the determination of its place and role in the legal life of society.
The purpose of this work consists of analyzing the social (legal formation) and legal (law-making) nature of legal custom and its essential characteristics, the place and role of legal custom in world legal systems, as well as identifying trends in the development of legal custom as a universal regulator of social relations in the conditions of the formation of a market economy, the formation civil society.
To achieve the set goal in the work, it is necessary to solve the following tasks:
Consider the concept and types of legal custom;
Conduct a legal analysis of custom in the system of sources (forms) Russian law, in the context of world legal systems;
Determine the prospects for the development of customary law in Russia.
Methodological basis of the study methods of scientific knowledge of objective reality: dialectical-logical, structural-functional, concrete-historical, systemic, comparative-legal and formal-legal.
Determine the purpose and objectives of the study work structure. The course work includes an introduction, two chapters, a conclusion, and a list of sources used.
1 . Concept and types of rightscustom as a source of law
law custom Anglo-Saxon
Legal custom is one of the oldest sources of law, acting as a form in which a long-term rule of behavior is expressed, giving it the quality of a legal norm. Well-known legal researchers, denoting modern ideas about the place of customary law among other forms of law, emphasize that “customary law is not a transitional form, but a fundamental phenomenon that runs through the entire legal history.”
The historical basis of legal custom is custom as such. Confirming these conclusions, focusing on such characteristics of custom as repetition and general acceptance. In his opinion, “custom is a stable rule of behavior that arises on the basis of homogeneous factual relations as a phenomenon reflecting the usual ways in the interaction of people of a certain social community, as a result of repeated performance by these people of the same actions, aware of positive assessments of the social significance of these rules observed out of habit and under the influence of public opinion.”
Analysis of this definition allows us to highlight, firstly, the deeply social basis of this regulator of social relations, and, secondly, to identify the mechanism for ensuring the action of customs in the form of public opinion. As a result, we have a picture of the emergence, existence and implementation of customs in society that is completely consistent with ethnographic and anthropological dogmas. Customs as a type of social norms are characterized by the following features:
1) The social nature of their occurrence, determined by public consciousness;
2) The multiple and local nature of their action;
3) The casuistic nature of their instructions;
4) Public opinion acts as a means of ensuring custom;
5) Custom arises on a certain social basis and often continues to exist and regulate social relations even after its loss.
In earlier studies of the nature, genesis and essence of customary law, the socio-ethnic basis of customary law was recognized as key, where legal custom was a consequence of the existence of a previously simple custom, i.e. customary law arises from a series of uniform actions applied long time and became a habit of the people in the form of a custom.
Therefore, custom is replaced by legislation - the dominant form of law (together with judicial precedents) of early state society. The content of the law - equivalence and formal equality, in principle, remains unchanged."
Custom and legal belief are two inseparable, constitutive elements of customary law, “of which custom becomes a source of law,” the following stated.
Firstly, custom must contain a legal view, for no other view can give rise to law;
Secondly, the legal view must be repeatedly manifested in reality, and, therefore, be observed over a more or less long period of time;
Thirdly, the legal view must manifest itself constantly in the same way;
Fourthly, custom should not contradict morality, since society cannot recognize rights that are incompatible with good morality, that is, the legal view should be a manifestation of the moral law as applied to society.
Thus, legal custom, integrating all the named characteristics of custom, becomes a special independent social regulator in the presence special features, inherent directly to him. These signs are:
1. Normativity, according to which a norm of legal custom is a rule of conduct of a generally binding nature, acting as a single rule for everyone who finds itself within the scope of its action, and also prescribes an image that is correct from the point of view of society and therefore necessary for a particular individual. actions.
2. A person’s internal conviction of the need for the existence and application of legal custom. This feature of a legal custom indicates the mechanism of its action, showing that the basis for the universally binding action of a legal custom is the internal awareness and conviction of the need to fulfill customary legal provisions by an individual who is part of the group with which he identifies himself.
Being not a state source of law, legal custom is ensured not by the power of state coercion, but by the internal awareness of the subject of the need to act as prescribed by legal custom.
3. Systematic application, since only with repeated repetition of the prescription is its necessary, and not random, nature revealed
4. Uniformity of application, i.e. legal custom should have the character of a general homogeneous rule, observed in as many similar situations as possible.
5. Continuity of custom, indicating that the application of legal custom is associated with personal benefit for everyone and benefit for the social group as a whole. Accordingly, it is unlikely that in the presence of such a benefit, a social group is able to refuse to apply a legal custom for any time.
6. Certainty - in accordance with this principle, the rule of behavior enshrined in legal custom must be understandable within the framework of the system of social and legal institutions that is accepted in a given society.
7. Mandatory - “custom lives in the minds of the people as law.”
8. Reasonableness of legal custom - one of the inherent ones can recognize rights that are incompatible with good morality.
The variety of existing theories and concepts in the study of customary law confirms the versatility of this problem and the need to take into account the above approaches when determining legal custom.
For a long time, legal customs have been the subject of research by jurists, philosophers, sociologists and political scientists.
Various approaches to the study of this legal phenomenon reveal the versatility and breadth of the phenomenon of customary law, its polymorphism and variability in the historical and ethnographic aspect.
And if earlier studies devoted to common law and legal customs invariably demonstrated their inextricable connection with the state, the need to sanction customs, then recently the position has increasingly been substantiated, according to which legal custom is a formed moral and legal view that exists without government intervention and provided by social means, often not based on government coercion.
One of critical issues arising in the process of implementing the principles of law, the traditional question is whether these principles are capable of serving as an independent source of law. An analysis of the literature on comparative law shows that different legal families have developed different approaches to resolving this issue: the role of principles of law in the legal system is understood differently, and specialists’ ideas about the place that principles occupy among other sources of law do not coincide.
The term source of law refers to law-making forces. Such forces can be the will of God (especially in countries with the Islamic religion), the people's will, state power, ideas of equality and justice, and people's sense of justice.
Also, the source of law refers to the materials that formed the basis of this or that legislation; monuments of law that were in force at one time, such as Russian truth or the Code of King Hammurabi; means of knowledge of law from regulations or laws.
The sources of law can be philosophical ideas that form the basis of a particular legal system.
The concept of the form of law is also ambiguous. It can mean both the external expression of something and the connection, organization, interaction of elements and processes between themselves and external conditions.
However, no matter how many meanings the concepts of the source and form of law have, the important thing is that these concepts, together or separately, are considered as the way in which state power gives a rule of conduct generally valid force.
Sources of law evolve, change, and improve during the historical process. And in each legal system in its own way. Some forms (sources) of law, having undergone significant evolution, have been preserved in legal systems to this day. These, for example, can be called such forms (sources) of law as legal custom, law, precedent. And some sources disappeared without leaving a trace. Such sources of law as the writings of Roman jurists were at one time generally binding for judges and acted as law, however, over time they lost their original significance and exist today as historical values.
As already mentioned, the development, change, and hierarchy of sources of law largely depend on the legal systems in which they exist.
For example, in the UK legal system, researchers identify three main sources of law: statutory law, delegated legislation and common law.
Thus, the legal system of Scotland, which was significantly influenced by Roman law, differs significantly from the legal systems of Northern Ireland, England and Wales. The legal systems of Northern Ireland and Wales, also slightly influenced by Roman law, differ from the legal system of England, but not as significantly as in the case of Scotland.
This difference in the legal systems of the parts does not imply any discord in the UK legal system.
In the UK legal system there is a common link in the form of acts (statutes) of the British Parliament.
The Australian legal system has four main sources of law. Researchers primarily refer to common law, delegated legislation and customs.
In the Japanese legal system, foreign authors identify the following sources of law: the 1947 Constitution or the Meiji Constitution; acts of parliament, government decrees, ordinances, rules and procedures of legal proceedings, rules for managing judicial affairs.
If we consider not specifically the legal systems of individual countries, but legal families, then comparing the Romano-Germanic legal family and the legal family of common law, it can be noted that in countries belonging to the Romano-Germanic legal family, when solving legal issues, they use legal technology , which is based on law. In countries that belong to the common law family, precedents, judicial decisions as a source of law and regulatory means of exercising political power come to the fore in resolving similar legal issues.
One of the most important sources of law is a normative legal act or simply a normative act.
A regulatory legal act is a decision of competent government bodies, expressed in writing, which contain rules of law. Acts of application of law and individual acts differ from normative legal acts in that they are tied to certain subjects and to specific circumstances of place and time.
Typically, regulatory legal acts are laws, government regulations, decrees, orders of ministers, orders of chairmen state committees, decrees, decisions and resolutions adopted by local government bodies.
A law is adopted in special order and a normative legal act that has the highest legal force, expressing the state will on key issues of public life. Laws, in terms of their legal qualities, have the highest legal force: other regulations must not contradict the laws; laws are approved, amended or repealed by the same body, that is, there is no participation of two bodies at once in the approval, repeal or amendment of the law; all other regulations must be based on laws. Everyone must obey the laws; laws must be perfect in content and form, and they must regulate truly fundamental issues.
Laws are either ordinary or constitutional.
Regulatory legal acts, due to their ease of use, clarity, certainty, method of execution, and also due to the fact that they are issued by government bodies, have significant advantages over other sources of law.
According to their legal force, normative legal acts are divided into laws and by-laws (see above for laws). Legal force should be understood as the significance of normative legal act, determined by the position of the organ in common system law-making state bodies, its competence.
A by-law is a legal act of a government authority that has a lower legal significance than a law. These include government regulations and orders.
Legal custom is the oldest and most important source of law. Historically, it precedes all other known sources of law. Researchers say that it arose at the transitional stage of society from the pre-state organization of society (primitive communal) to the state.
The reason for this is sanctioning by the emerging government agencies existing customs. Legal custom occupied a leading position in ancient societies; for example, in Ancient Rome, the most important branches and institutions of law were formed from legal custom.
As for the definition of legal custom, legal custom is a state-sanctioned rule of behavior that has developed in society as a result of its repeated and long-term use.
The main difference between legal custom and non-legal custom is that a legal custom, being sanctioned by the state, acquires legal force and is ensured by state coercion.
In the course of the historical process, legal customs were supplanted by laws, and currently occupy an insignificant place in the system of forms (sources) of law in most countries.
2 . The role and significance of legal custom inlegal systems of the world
2.1 Legal custom as a source of law at the international level
Legal custom refers to the unwritten forms of establishing legal norms. The objectification of legal regulations is complicated by the fact that legal custom, as a rule, does not have a clearly defined textual expression.
On the other hand, in contrast to a normative legal act and a normative agreement, a rule of law and its outer “shell” in most cases coincide, that is, each custom contains one rule of law. Therefore, when using legal custom, the main task is not to establish systemic connections between the structural elements of the rule of law, but to formulate the norm itself, that is, the rule of behavior, and giving it a generally binding character.
To understand the method of creating customary norms, it seems appropriate to analyze their use in international law, since in modern national legal systems legal custom as external shape law is quite rare (with the exception of countries belonging to the family of traditional law).
In international law, legal custom is one of the main formal sources, along with an international treaty. At the same time, as researchers emphasize, such special features of international custom, such as, for example, the ability to fill gaps in treaty law, bind, as a rule, all states of the international community, the ability to change as the needs of society and the practices of states change, allow us to conclude that that international custom can never be completely replaced by an international treaty within the framework of the system of international law.
Currently, customary law retains its dominant position over international treaty law in such areas as recognition of states, state immunity, and international legal responsibility.
The process of formulating a customary international legal norm occurs in two stages, the essence of which is reflected in the very normative definition of international custom contained in paragraph 1 “b” of Art. 38 of the Statute of the International Court of Justice, where it is defined as “evidence of a general practice accepted as a rule of law.” As researchers in the field of international law emphasize, international custom is proven by two elements: the first is objective, namely “general practice”, the second is subjective, namely “accepted as a mandatory norm”, the so-called conviction of legality.
Accordingly, only such a rule of behavior of subjects of international law that has developed as a result of repeated homogeneous actions of subjects of international law can become an international customary norm, that is, it has become part of the practice of states.
At the same time, “universal practice,” as noted in the literature, does not necessarily mean the practice of all states.
Often certain states, for one reason or another, cannot have practice on certain issues (for example, if a state does not have a sea coast, then it cannot have practice in matters of the width of the territorial sea, etc.), but this should not prevent the creation of a customary norms. Therefore, in this case, the practice of most states is sufficient. The decisive factor in this case is not the quantitative, but the qualitative factor. In the Asylum Case, the International Court of Justice formulated the following position on this issue: “The party who invokes a custom... must prove that the custom has been established in such a way that it has become binding on the other party... that the rule relied on the reference made... is in accordance with the constant and uniform custom practiced by the States concerned...".
The starting point for the formation of a customary norm can also be decisions of international organizations and other associations expressing the agreed positions of member states (as, for example, was the case with the norms of the Universal Declaration of Human Rights, initially adopted by the UN General Assembly, and then included in the practice of most modern states ).
For example, with regard to the Resolutions of the UN General Assembly, the International Court of Justice noted: despite the fact that they are not mandatory rules of conduct, they can be of legal value, because under certain conditions they can serve as important evidence determining the existence of norms or the establishment of “opiniojuris”.
Modern researchers in this regard note, in particular, that the practice of adopting declarations by the UN General Assembly has led to the formation of a new mechanism for creating customary norms of international law: customary law norms today can be formed much faster not as a result of long-term practice, but with the help of rules, contained in several or even one act.
However, the entry of a particular rule into the practice of states means only the first stage of the creation of an international legal custom, aimed at coordinating the will of states regarding the content of a specific rule of conduct. As a result of passing this stage, a custom is formed, that is, a rule of behavior that states usually follow, but which is not yet legally binding (a legal norm), but has only a certain moral and political force.
Only recognition by states as a legal norm (that is, as a mandatory rule) transforms this or that rule into an international legal custom (opinio-jurisvelne cessitatis), essentially giving it legal form.
Evidence (more or less explicit) of recognition of a customary norm can be unilateral actions and acts of states, for example, the adoption of relevant internal acts referring to these norms. In addition, a principle has emerged in international practice that the absence of protest on the part of a state directly or indirectly affected by the practice of using a customary norm creates an obligation for that state to comply with this norm, since such behavior is perceived as a “tacit” approval of the custom.
Since, as can be seen, the qualification of a rule of conduct as an international legal custom is a complex issue, to establish its existence, auxiliary means are often used, which can be decisions of international judicial bodies, doctrines of the most qualified specialists in international law, as well as decisions of international organizations and unilateral acts and actions of states.
Judicial decisions that are ancillary means include decisions of the International Court of Justice and other international judicial and arbitration bodies. When submitting a dispute to the International Court of Justice or other international judicial bodies, states often ask to establish the existence of a customary rule binding on the disputing parties.
The International Court of Justice in its practice did not limit itself to stating the existence of customs, but gave them more or less clear formulations. It is important to emphasize here that such judicial formulations do not give the custom a written form, but serve precisely as an auxiliary means for determining its content.
Thus, for the formation of a customary norm of international law, it is necessary, firstly, the existence of international practice, in other words, the existence of a rule of conduct established in the practice of states, and, secondly, recognition of this rule as an international legal norm (that is, as a mandatory ). As a rule, these processes occur simultaneously.
2.2 Legal custom as a source of law Russian Federation
The concept of legal custom as a specific source of law is analyzed, the main stages in the development of views on its place in the legal system are considered, the main forms and types of consolidation of custom, its advantages and disadvantages are highlighted.
The rules of law of any legal system do not exist on their own; they must be formally enshrined. The form of external expression of legal norms is the sources of law.
The most ancient form is legal custom - a rule of behavior that has become a habit of the people and formed as a result of repeated long-term repetition. A custom is considered legal if it is recognized by the state as a generally binding norm of law and is ensured by state coercion.
This is an unwritten source of law, the variety of types of which is explained by “the many differences in the very localities of a vast country, in the space of which customary law operates, and which is even expressed in the saying “as is the village, so is the custom,” as well as the long history of the existence of the state and nationalities. One of the most common ways of receiving a custom as a source of law is the state’s fixation of this custom in some normative act- authorization.
In Russia, the custom was recorded in Russian Pravda. However, we find perhaps the first (and only) recognition of its independent form by the state only in the Order of Catherine II: “It is a very bad policy that changes by laws what should be changed by customs.” But already in the Code of Laws of 1832 it is said that Russian law is built exclusively on provisions emanating from the supreme power (i.e., on the law), and only such provisions can be included in the codified act of the Russian civil law.
Interest in the study of this form in Russia arose with the advent of the historical school, which did not consider it obligatory for the state to recognize the source of law.
It can be argued that not only in fact, but also in reality, the norms of customary law were recognized by law in the 40s. XIX century
For example, the Chambers of State Property collected customs and norms regulating the order of inheritance among state peasants. Already Art. 38 General provisions about peasants who emerged from serfdom, allowed them to be guided by customs in the order of inheritance of property6.
In Soviet law, custom was certainly mentioned. However, in the USSR it became only a means of interpreting the law and retained its significance in those few cases when the law itself referred to custom, assigning it a certain role. Such sources of law as normative legal acts and doctrine come to the fore.
Legal custom in modern science is considered an unwritten source of law, a state-sanctioned rule of behavior that arises as a result of repeated long-term repetition.
In modern legislation, this form of authorization is rare.
The rarity of using this form of authorization is due to the fact that at present, on the one hand, there are fewer and fewer customs that have not yet turned into legal norms, and on the other hand, it is easier for the legislator to refer to the possibility of applying a custom in general than to indicate a specific tradition, risking excluding other customs existing in this area.
Referring to custom in law is the second form of its authorization. It is more common not only in Russian, but also in foreign law.
It should be noted that in this case, custom as a form of law becomes an element of the legal system, but does not lose an important feature - its unwritten character.
Some theorists distinguish three “degrees” of this form of authorization.
Degrees of authorization of reference to custom as a source of law
Despite the fact that custom is a source of law of the Russian Federation, it is not mentioned in the Constitution of the Russian Federation (although the Constitution does not contain any direct indication of the current sources of law), however, it is referred to in other normative legal acts.
The legislator's permission to be guided by local customs is contained, for example, in Art. 5 (“Business Customs”), Art. 221 (“Turning into ownership of things generally available for collection”) of the Civil Code of the Russian Federation, Art. 3 (“Customs of the seaport”) Federal Law of November 8, 2007 No. 261-FZ “On seaports”.
The state, as we see, sanctions custom in those industries in which, over the course of many decades, traditional rules of behavior have developed, characteristic of a particular area, port, or for certain conditions. It is more effective to agree with these rules, which are understandable to all participants in a given legal relationship, and therefore observed, than to interfere with an established custom. Of course, this establishes the principle of consistency of custom with the Constitution of the Russian Federation and other laws, international general legal principles.
The subsidiary nature of the custom is enshrined in Art. 421 (“Freedom of contract”) of the Civil Code of the Russian Federation, Art. 285 (dedicated to the application of the rules contained in Chapter XVI “On the Accident”), Art. 130 (“Lay time”) KTM RF. The use of custom as a tool for filling a gap in legislation is also allowed in those legal relations that are regulated more by the usual way of action than by the state.
Thus, custom has merits due to which it is used as a source of law.
In case of non-compliance with a custom, punishment follows not only from the state, but also from society itself (violation of a legal norm, as a rule, is perceived by society less acutely than a manifestation of disrespect for custom).
But, like any phenomenon, legal custom has shortcomings that explain the non-prevalence of this form of law in legislation.
Legal custom combines not only a “legal view,” but also moral norms and religious ideas (in common law there is often a great confusion of concepts; the law ensures the dominance of a strict and uniform order in law).
Nevertheless, in the Russian Federation the role of custom as a form of law is increasing.
This is caused not only by the need to develop theoretical concepts, but also by law enforcement practice.
The economic system, political system and the mechanism associated with them are changing legal regulation. More and more attention is paid to the formation of a legal consciousness corresponding to a modern legal society. Today we need a law that regulates social relations and can satisfy the need for justice, a law that is understandable to everyone and respected by everyone. Many researchers important role in this process, custom is given over. In addition, a custom formed by the people expresses the claims of the inhabitants, their basic requirements, which can serve as a guide for the state creating the law.
Also, in modern private law, the state tries to provide each participant in legal relations with the opportunity to independently arrange their life (of course, within the limits of what is permitted). The state can no longer provide for all cases to which specific rules will apply; the legislator creates a template, a standard model, within the framework of which subjects are free in their actions.
Thus, there is freedom of contract, self-defense of civil rights, and alternative methods of dispute resolution.
The standards of behavior that have been formed over decades cannot but be taken into account by the state. It becomes easier and more effective to recognize custom as a source of law, if not equal, then close in position to a normative legal act, than to adhere to the position of the state’s “monopoly” on sources of law.
Considering current problems of application of custom as a form of law in practical activities in Russia, scientists have not developed a consensus on this issue.
The situation is further complicated by the fact that at different periods of its historical development Russia was part of different legal families. Accordingly, the discussion about her current membership in one or another legal family continues to this day.
Scientists are of the opinion that Russia belongs to the Romano-Germanic legal family, and, therefore, custom is one of the forms of Russian law.
However, the above amendments to Art. 5 of the Civil Code of the Russian Federation, indeed, give rise to a number of practical problems.
We can highlight the following:
1) The unacceptability of the use of certain norms of customary law throughout the Russian Federation.
This means that a number of customary legal norms are advisable to apply only in the territory of a certain region.
Thus, adats are not subject to application in Middle lane Russia; customs of Siberia and Far East should not be used in the North Caucasus, etc.;
2) Contradictions between national/ethnic customs adhered to by the parties;
3) Lack of formal certainty and written confirmation of most norms of customary law;
4) Ignorance and misunderstanding of customary legal norms by practicing lawyers.
This is due to a number of reasons, especially:
A) a huge amount various customs;
b) the dominant positivist type of legal understanding among legal practitioners;
c) failure of lawyers (including administrators and consultants of legal clinics) to study the norms of customary law;
d) the gap between urban and rural lifestyles, because Most lawyers live and work in cities, and customary law often implies a traditional way of life, etc.
5) Uncertainty of sanctions for violation of customary law.
The identified problems must be solved, and mainly in the process of carrying out practical legal activities.
1) Compilation of collections of customary law.
This activity can be carried out both by various state and municipal bodies (including specially created committees, commissions, etc.), and by scientists - specialists in the field of customary law and legal anthropology, theorists and historians of state and law, etc. In addition, it is proposed to entrust the recording of customary law norms to legal clinics and consultations, especially at institutions of secondary and higher vocational education.
2) Introduction of a classification of customs with their conditional division into federal and regional.
It is proposed to include those that are of the most general nature and, accordingly, can be applied throughout the Russian Federation.
Regional customs can be used exclusively in a certain region, because... they have a pronounced national, territorial or some other specificity.
Despite the identified problems, the custom has a powerful mediative resource. It is initially aimed at the parties reaching a settlement agreement, without bringing the case to trial. The use of custom actually greatly contributes to the unloading of ships (especially ships general jurisdiction), a significant reduction in the number of claims received by them.
In addition, it is necessary to take into account that the development of the problem of custom in Russian law and the search for effective ways to resolve it have not been completely completed.
The above changes made to Art. 5 of the Civil Code, dictated by certain considerations of the legislator. As follows from the Explanatory Note, this novelty was introduced, among other things, for the purpose of unifying legislation, since a number of international treaties, including those concluded by the Russian Federation, indicate custom as a form / source of civil law.
In addition, this change can eliminate the terminological confusion that exists in the current legislation in relation to customs used in entrepreneurial activity(in this area there are also such concepts as “trade custom”, “business custom”). It should also be noted that the considered changes made to the Civil Code comply with international treaties in which the Russian Federation participates.
So, for example, according to paragraph 1 of Art. 9 of the UN Vienna Convention on Contracts for the International Sale of Goods, the parties are bound by any custom to which they have agreed and practice which they have established in their mutual relations. Paragraph 2 of the same article states that, in the absence of an agreement otherwise, it is considered that the parties intended the application to their agreement or its conclusion of a custom that they knew about or should have known about and which in international trade widely known and consistently observed by parties to contracts of this kind in the relevant area of trade.
Summing up the results of our research, it should be noted that amendments to Art. 5 of the Civil Code seems natural and necessary. The strengthening of the significance of custom, the increase in the volume of legal relations regulated by it and the widespread use of custom as a form of law seem to be in effective ways solving a number of problems. First of all, this contributes to a significant reduction in the workload of courts of general jurisdiction - evidence of this is the experience of foreign countries.
The use of custom also helps to increase the level of legal awareness and legal culture of society and even reduce the level of corruption, since participants in legal relations practically do not interact with the authorities and officials state power.
Legal clinics and consultations can and should play a certain role in these processes, since they often carry out not only advisory, but also educational and mediation activities. Due to the national, cultural, religious and other characteristics of the South of Russia, the activities of legal clinics in this region (both in general and in individual areas) can become progressive and experimental in this regard, helping to identify emerging problems and develop ways to solve them.
2.3 Custom as a source of law in the Anglo-Saxon legal family
Based on the fact that custom, along with other sources of Anglo-Saxon law, initially played a significant role in it, much attention has traditionally been paid to it in the scientific literature. At the same time, the dominant idea is of custom as an established stereotype or tendency of certain behavior of people, which, as a general rule, has a subconscious, automatic nature.
The vast majority of authors specializing in the field of common law proceed from the fact that the English, as well as any other, system of law was originally built on the basis of customs. IN historically custom became the basis on which English common law was first created and then developed throughout the medieval period.
However, not all authors share this opinion. Some of them consider it “incorrect” to identify common law with customary law, especially at the present time - during the period of widespread use of judicial practice in England and other English-speaking countries.
English law is not common law. The universal ancient custom of the kingdom, on the basis of which common law was formed, has always been a pure fiction, created in order to eliminate the idea of \u200b\u200bthe arbitrariness of judges, but despite such harsh and categorical judgments, none of the comparative authors denies that repeatedly confirmed and widely recognized the fact that historically the common law of England, and, consequently, the common law as such, was preceded by common (actually Anglo-Saxon) law and that many of the customs preceding the common law were used by the courts in the process of its formation and subsequent development.
From the point of view of the English jurist N. Salmond, a legal custom must, first of all, be reasonable; not contrary to statutory law(s); be established “as if by right,” without the use of force, and must have the character of an ancient custom, existing since “time immemorial.” At the same time, “the reasonableness of a legal custom in some cases is associated with the fact of participation in the process of its application by jurors. In others (if the latter do not participate in the case) - with the fact that cases are considered by several judges or even by one judge.
2.4 Custom as a source of law in the traditional legal family
The system of customary (traditional) law refers to the form of regulation of social relations existing in the countries of equatorial, southern Africa and Madagascar, based on state recognition social norms (customs) that have developed naturally and become habitual among the population. Custom is the most ancient source of law, known to all legal systems, but if in the countries of Romano-Germanic and Anglo-Saxon law it plays only a secondary role, then in Africa it was and continues to be an important regulator of social relations, especially outside cities.
Numerous African peoples have their own customs designed to ensure unity, cohesion of a social group (tribes, clans, villages), respect for the memory of ancestors, connection with the surrounding nature, spirits, and other supernatural forces. The mythical nature of customs, their pluralism (plurality), non-formalization and fragmentation do not allow them to be effectively used to create national legal systems similar to European ones.
Conclusion
Having considered the main issues of the topic, we consider it necessary to formulate in the conclusion of the work the main conclusions on the research topic.
Legal custom is a custom, the application of which is ensured by the sanction of the state. It should be distinguished from custom, which is a moral norm, religious rule, mores. The sanctioning of a custom can be carried out through the perception of it by judicial, arbitration or administrative practice. The decision of the state body in which the custom is applied is recognized by the relevant state and can be enforced.
The custom is conservative in nature. It consolidates what has developed as a result of long-term social practice. The state treats different customs differently: it prohibits some, while it approves and develops others.
A more or less long-term existence of legal customs can be expected only in some areas of legal regulation, for example, in the regulation of foreign trade.
In light of the above, we can conclude that the sources of law are of exceptional importance for strengthening the rule of law in a rule of law state.
The perfection of these sources directly depends on the level of theoretical ideas about them and on the essentially quality of all types of legal practice. Legal science is called upon to promptly prepare suitable recommendations for improving the forms of law, and practice must skillfully implement the proposals of scientists in order to create a flexible, dynamic and effectively functioning system of sources of law. The strength of the rule of law in the state depends on the quality of this legal system.
The main ways to improve the forms (sources) of law in the modern Russian state may be the following.
Firstly, when improving the forms of law, it is necessary to take more fully into account the legal traditions of Russia and take the best from the pre-revolutionary legal system.
Secondly, there is an urgent need for the preparation and publication of a special law on the basic forms of law. This act should emphasize that reducing the forms of law only to normative legal acts is unjustified. It is desirable in law to express with maximum certainty the attitude of the state towards case law, customary law and treaty law.
Thirdly, it is useful to normatively fix the “foundation” of the state’s regulatory system, the main form of law.
In a rule of law state, the main form of law should be recognized not as a normative legal act in general, but only one of them - the Constitution.
The most ancient form of law is legal custom. Nowadays it occupies a very modest place in all legal systems of the world.
Increased interest in customary law is also evident at the state level.
The research work of lawyers, historians, ethnographers, and anthropologists made us think about national policy state in relation to small, indigenous peoples and the preservation of their traditional norms and way of life.
The state also supports a policy of legal pluralism, built on a comparative approach to legal systems and the possibility of the existence of different sources of law.
However, at the moment there is ambiguity in the understanding of legal custom and its place in the system of sources of morality, both in the Russian Federation and in other legal systems.
List of sources used
1 Constitution of the Russian Federation: adopted by popular vote on December 12, 1993 - M.: Yurist, 2011. - 44 p.
2 Alexandrov N.G. The concept of a source of law // Lawyer. - 2008 - No. 1. - pp. 16-22
3 Ampleeva E.E. The relationship between customary and contract law in public international law // Origins and sources of law: Essays / Ed. R.A. Romashova, N.S. Nizhnik. - St. Petersburg, 2009. - pp. 127-129
4 Velizhanina M.Yu. “Soft law” and its role in regulating international relations // International Lawyer. - 2009. - No. 3. - P. 10.
5 Gogin A.A. International offence: problematic issues // Tolyatti Science Vector state university. 2011. - No. 1. - pp. 339-341.
6 Erofeeva D.V. Sources of law: problems of theory and history of law. // Scientific works Russian Academy legal profession and notary office. - 2013. - No. 1 (28). - pp. 55-58
7 Kechekyan S.F. On the concept of a source of law // Lawyer. - 2010 - No. 2. - P. 8-14
8 Kiseleva O.M. Incentive legal system in modern Russia as an object of implementation encouragingly legal policy: concept and essence // SGAP Bulletin. - 2009. No. 2 (66). - pp. 11-14.
9 Lukashuk I.I. Customary norms of modern international law // Moscow Journal of International Law. - 2008. - No. 2. - P. 34.
10 Marchenko M.N. Theory of state and law: textbook. - 2nd ed., revised. and additional - M.: Prospekt, 2009. - 708 S.
11 Nebratenko G.G. The customary legal system of traditional society: monograph. / M.: University Book, 2011. - 516 pp.
12 Pyatkina S.A. On the theory of sources of law in English jurisprudence // Jurisprudence. - 2008 - No. 7. - pp. 42-48
13 Samkharadze D.G. International treaty and states not participating in it // International public and private law. - 2012. - No. 4. - pp. 22-23.
14 Statute of the International Court of Justice // Current international law. T. 1. - M.: Moscow Independent Institute of International Law. - 2009, p. 797 - 811.
15 Trofimov V.V. Positive legal means and the right of cooperation: statement of the problem // Jurisprudence. - 2008. - No. 2. - pp. 163-177.
16 Khramov D.V. Judicial precedent as an unconventional source of Russian private law // Law and State: Theory and Practice. - 2009. - No. 5 (53). - pp. 57-59.
17 Perevalov V.D. Theory of state and law: textbook. - 4th ed. reworked and additional - M.: Norma, 2009. - 495 pp.
18 Babaeva V.K. Theory of state and law: textbook. for bachelors. - 3rd ed. reworked and additional - M.: Yurayt, 2014. - 715 S.
19 Stories by L.P. Theory of state and law: textbook. - 5th ed., revised. and additional - M.: INFRA-M, 2014. - 475 pp.
Similar documents
Custom as an independent source of law. Characteristics legal custom, its main types. Formation and development of legal custom in different legal systems. The place of legal custom in the system of sources of law of the Russian Federation and Western countries.
course work, added 09/16/2017
Concepts of legal custom. Legal nature and classification of sources of law. Legal custom in the Romano-Germanic legal system. Custom as a source of law in the Anglo-Saxon legal system. Features of the religious-traditional legal system.
course work, added 12/02/2014
The concept of legal custom as a source of law, its perception among various peoples of the world and its connection with religion. Legal custom in ancient civilizations: the countries of Ancient Mesopotamia, Islam, Greece, Rome and Rus'. Roman law as a source of legislative norms.
course work, added 09/20/2012
Main sources of law. The concept and meaning of legal custom. Legal custom in the national legal system and in modern society. Legal custom in international law. Subjects of international legal relations. Codification of international law.
test, added 11/25/2008
Legal custom and its types, the main features of legal custom that characterize it as a source of law. The evolution of the formation of customary law as a form of law in a general social sense. Analysis of legislative regulation various types legal customs.
course work, added 05/13/2010
The concept and scope of application of legal custom. A study of the influence of legal custom in the Romano-Germanic, Anglo-Saxon and Muslim families of law. Identification of principles for introducing customs and traditions into the legal system of Russian legislation.
course work, added 04/21/2015
Theoretical foundations forms (sources) of law and their meaning. Legal custom and its place in the system of sources of law. Forms of state sanction of customary norms. Legal custom in the system of Romano-Germanic law and in the Anglo-Saxon legal family.
thesis, added 01/03/2011
The concept of legal custom and legal custom as the primary source of law, its main components. Customary law and its distinctive features. The relationship of customary law to legislation. Areas of application of legal custom. The relationship between legal norms and customs.
course work, added 11/18/2010
Legal custom and customary norms in international law. Stages of formation of customary norms: agreement on rules of conduct; giving it the legal force of an international legal norm. The relationship between custom and international treaty. Creation of a contractual norm.
abstract, added 11/23/2015
The concept of sources of law, their characteristics: legal custom and precedent, international law, normative legal act and treaty. The role of scientific doctrine in Russian law, its properties as a source of law and the basis of action in legal practice.
Bulletin of Omsk University. Series "Law". 2007. No. 3 (12). pp. 13-19. © V.A. Rybakov, 2007
LEGAL CUSTOM AS A HISTORICALLY STABLE SOURCE OF LAW
V.A. RYBAKOV (V.A. RIBAKOV)
Legal custom as a source of law has come a long way historically. It is perceived by all types of law. This occurs through sanction either by law-making or judicial bodies. As a source of law, legal custom is applied as a supplement to the law or as an independent type.
Legal custom as a source of law had a long history. It is understood by all kinds of law. It happens either by means of confirmation or judicial or rule-making bodies. Legal custom as a source of law is used as supplement to the law or independently.
Since the emergence of law, the problems of the sources of its formation, forms of its organization and existence have constantly attracted increased attention from theoreticians and, partly, practitioners. The historical aspect of the process of their formation and development is also of interest. It is generally accepted that some of the sources of law, having undergone significant evolution since ancient times, have been preserved in legal systems to this day. These include, in particular, legal custom. As N.N. rightly believes. Razumovich, “whether we like it or not, customary law operates. It exists and will exist as long as the law exists, influencing legal development, filling gaps in areas of legal communication, as well as where legal regulations are not viable.” We are talking, in particular, about the customs of ordered (compiled) and unordered (compiled), local (at the level of individual communities or communities) and regional, general (at the level of a nation, people) and local, etc.
The preservation and use of forms of law in the historical development is covered by the concept of “continuity”. Continuity of legal custom has three aspects:
a) perception of custom during the emergence of state and law, b) perception of an already existing legal custom during the transition
de from one historical law to another, c) recognition of customs as legal in state entities.
Customs were the right of a society experiencing the era of the collapse of the primitive communal system and the formation of classes and estates, since their implementation was initially carried out by a mechanism developed in society and without the apparatus of the state, and in the early state the social mechanism is not eliminated, but is only improved or supplemented and completed, becoming a mechanism state power.
Historically, for every nation, law develops by itself as an established order of relations between people, directly determined by the perceived need to comply with universal rules (customs) in the process of joint participation in production, exchange, distribution and consumption. These rules were developed under the influence of the objective needs of life, the practical activities of people organized in society. This is how, in particular, ancient Indian, ancient Greek, ancient Roman, ancient German, ancient Russian, etc. law arose. This is evidenced by the laws of Manu, the Laws of the XII Tables, the Salic Truth, the Russian Truth - acts that mainly consolidated customs. The law initially laid down what is acceptable for all members of society - a general social
justice. And only the strengthening of state law-making and the positions of interests of those in power often led legislation and judicial practice away from the law, its nature, its essence.
Custom presupposes time-tested, well-founded norms of behavior. The legislator, naturally, strives to make his decisions sustainable. Medieval philosophy argued: “when laws are established without taking into account the customs of the people, then people will cease to obey and nothing will be achieved.”
The prestige of customary law, the unwritten law, in early state society remained for a very long time. This was the case in Ancient Greece, where a “new” written law appeared quite early, which extended to the sphere of judicial and administrative activities. But it was not able to cover the entire legal space in which custom had reigned for centuries, and therefore custom had a wide scope and was in effect for a long time. Orator Lysias in the 4th century. BC e. referred to Pericles in his judicial speech, advised judges to apply not only written laws to criminals against religion, but also unwritten ones, “which no one had the power to abolish yet, against which no one dared to object.”
In fact, the same situation existed in other early states. The Chinese “Book of the Ruler of the Shang Region” (IV century BC) begins with a story about how King Xiao Hun reasoned with his advisers about whether he could change the ancient unwritten laws: “Now I want to change the laws so that to achieve exemplary government... But I’m afraid that the Celestial Empire will condemn me.”
Historian A.Ya. Gurevich, in his work “Categories of Medieval Culture,” which highlights the problem of law in a barbarian society, comes to the following conclusion: “No one, neither the emperor, nor another sovereign, nor any meeting of officials or representatives of the land, develops new legal provisions... Consequently “, not the development of new laws, but the selection of the wisest and fairest regulations from the old law - this is how the task of the legislator is understood.”
Hostility to new things in law existed everywhere in early states. The new laws being written down actually consisted of processed common law. The public authorities were forced to introduce new social content with great caution. To introduce a newly created legal norm (in a law, judicial precedent, normative agreement), justification was required with reference to traditions and past authorities, to ancient custom, later to the texts of Holy Scripture, to God or famous emperors, etc. It was necessary to justify that it already existed, acted, proved its validity, and is not far-fetched. It was necessary to present new norms in the best possible way, tactfully.
Not all became legal, but only those customs that expressed: a) long-term legal practice, that is, they developed in the process of repeated use (for example, within the life of one generation, as was typical for Ancient Rome); b) monotonous practice, i.e. acquired a stable, typical character; c) legal views of small groups of people, as a result of which legal customs had local significance; d) the morals of a given society. In the understanding of Roman jurists, custom is “the tacit consent of the people, confirmed by ancient customs.” The tradition of Roman lawyers was to recognize customs as sources of law in cases not regulated by law. There was also special right on this matter, which read: “In those matters in which we do not use written laws, we must observe what is indicated by morals and customs.”
In Ancient Rome, despite the development of lawmaking, legal customs found the widest application and had their inherent technical and legal features. The norms of customary law in Roman law were designated by special terms: mores tabiogit - customs of ancestors; shsh - common practice; sotteShagii ropi/eit - customs that have developed in the practice of priests; sottePagіi magistratum - customs that have developed in the practice of magistrates; cosuetudo - custom.
In this sense, legal custom partially preserved the authority and power of custom in general, stored and transmitted from time immemorial, accumulating the spiritual power and life experience of many generations. It was this circumstance (and not just the connection with the state) that gave it (the legal custom) a generally binding character.
So, in the early stages of the development of statehood, legal customs occupied a dominant role in the system regulatory regulation. They were also the prototype of written law. Without exception, all the most ancient monuments of law were codes of legal customs. As the state develops, it moves on to systematic rule-making activities. Customary law gives way to the law and other acts, i.e., the “product” of this activity.
In subsequent eras and into the modern period, legal custom has retained its importance as a source of law. Customary law is most widespread in the countries of South America, Southeast Asia, Africa and a number of Arab countries. In Latin American countries (Uruguay, Venezuela, Argentina, Brazil, etc.), legal customs are used as a subsidiary source of law. In the countries of continental Europe belonging to the Romano-Germanic legal system, legal custom is used in cases specified in the law.
They are preserved in various countries of the world, including in England, whose legal system is based on judicial precedent. The main features of legal customs in England are the following: 1) the existence of a custom from time immemorial (based on the First Statute of Westminster in 1275, a custom that existed before 1189 is considered ancient); 2) the reasonableness of the custom (this requirement assumes that this custom will not be supported if it does not have legal meaning); 3) the certainty of the custom (this rule is revealed in the exact designation of: the nature of the custom; the circle of persons in respect of whom the custom should apply; the area within which the custom operates); 4) obligatory custom (if custom does not reveal obligatory
to carry out the nature of the provisions it provides, it cannot be upheld by the court); 5) continuity of custom (in order to have legal force, a custom must remain in effect without any interruption, from “time immemorial”).
In the Romano-Germanic legal family, customs were the second source of law after the normative legal act. Customary law was dominant until the 11th century, when the revival of Roman law began. Common law itself can be defined as a set of unwritten rules of behavior that have developed in society as a result of their repeated application, and sanctioned by government authorities.
Custom retains its significance (succeeds) as a source of law, primarily in those areas where there is not sufficient material for legislative generalizations. The rules of custom act as “an anticipation of the law established by law.” Custom claims to be a source of law due to the fact that it achieves a regulatory role due to the fact that people emotionally, on the basis of a spiritual and psychological impulse, perform actions and deeds that become habitual, natural, and vital.
The form of implementation of the continuity of legal custom is authorization. Society is recognized as the source of the origin of custom, and the state performs evaluative and hierarchical actions in relation to it. On the one hand, public authorities evaluate the content of ordinary norms to determine their compliance with the requirements of the law. On the other hand, a positive assessment includes custom in a hierarchical system of forms of law, in which primacy belongs to legislation. This happens by sanctioning the custom by the state. It, according to S.S. Alekseeva, not only approves of the customs, but also considers them “his own”, puts his state will into them.”
Depending on the sanctioning body, several ways of continuity of custom can be distinguished:
1) by the legislative body by fixing in the blanket norm a reference to legal custom and connection with specific relationships;
2) by judicial authorities by using custom as a basis without the permission of the legislator (tacit sanction); 3) by judicial bodies of a certain procedure for resolving cases, which has developed in the custom of judicial practice.
Some authors offer a shortened list of authorization: a) legislative (abstract); b) judicial (specific). According to the nature of the expression of the authorization of a custom, two methods of continuity can be distinguished: a) written; b) oral (silent).
Authorization by direct permission of the law presupposes the presence in the blanket norm of permission to use the custom. S. L. Zivs wrote about this, in particular. He advocated that the sanctioning of a custom by a normative act is carried out “only by reference, without its direct (textual) enshrinement in a normative act.” At the same time, the essence of customary law remained unchanged.
The most commonly used formula for sanctioning the legal basis for the functioning of customary legal norms on the territory of African Francophonie countries are various types of constructions that involve the issuance of special legislative acts (in Senegal - Ordinance No. 60-56 of November 14, 1960; in Ivory Coast - Law No. 61-155 of May 18, 1961, as amended on June 14, 1964 and July 2, 1964; in Cameroon - Ordinance of December 29, 1965, as amended on August 26, 1972; in Congo - Law No. 28- 61 of May 19, 1961, as amended on February 1, 1961), etc.
As for constitutional provisions, they usually note that the law determines the procedure by which the existence of customs is established, and the latter are brought in accordance with the basic principles of the Constitution.
Authorization directly by the judiciary, regardless of the permission of the legislator, is written, con-
Crete, secondary and subsequent. A qualifying sign of this is the silence of the legislator on this matter. The court has the authority to independently determine the admissibility of applying ordinary norms to specific legal relations. This gives the procedure a casual character. The classification of this method of authorization as a subsequent one means that the custom arises independently, the parties (or party) took advantage of it, and the court, after the fact, evaluates the applicability of the custom and, if this issue is resolved positively, sanctions the usual rule. The absolutization of the role of the judiciary in sanctioning customs is characteristic of Anglo-Saxon states. Assigning the law-making function to the courts allows us to consider the authorization to have been carried out by enshrining the usual rule in precedents.
Validation judicial practice The custom is quite common. But it should be remembered that court decisions themselves do not authorize any customs, as a rule, do not create them, do not refer to them, do not give them any status. Rather, on the contrary, the court can use custom if it already exists as a form of law, is recognized, and exists. He can check the content of the custom, its knowledge to the parties, the morality of its provisions, and compliance with regulatory legal acts. In addition, the very activities of the court must initially be based on the law. Due to the obligation court decision legal custom receives reinforcement of its strength from the state.
The sanctioning by the judicial authorities of a certain procedure for resolving cases that has developed in the custom of judicial practice takes place if the legal practice itself leads “to the formation of unique judicial customs, which ultimately develop into an entire system of law.”
Judicial practice is an established direction of law enforcement activity, and in this sense it forms a legal custom in the form of custom. By the nature of expression, judicial customs have an oral form, since
Neither the legislator nor the judiciary directly prescribed anywhere the right of courts to create and sanction rules for their activities. The very order of emergence of judicial customs is similar to the origin of ordinary norms. And the results of this process can be enshrined in writing (for example, resolutions of plenums of the highest courts), but can exist as a set of actions. Courts can act as a recorder of customs. In the late 30s - early 50s. XX century In the scientific literature, there was a debate about whether the silence of the legislator can be considered permission to use customs. The decision of the panellists was negative. Law enforcement practice The Soviet state completely rejected the idea of tacit sanction. Modern jurisprudence and judicial practice, says S.V. Boshno also gives no reason to see the prospects of tacit consent in the form of the absence of a ban. Ignoring the opinion of the state and asserting that customs act on their own due to the fact that they exist seems to the author to be extreme. The development of this thesis inevitably leads to the absolutization of the derational possibilities of custom, the self-sufficiency of customs.
It seems that this position is not entirely correct. It is acceptable for modern legal systems, but during the formation of the state and law, in the medieval period, it was real. During this period, the sanctioning of customs did not have the nature of a purposeful action (issuance of a royal decree), but occurred in the form of tacit consent and recognition. This was due to the fact that before the HP century. in the West there were virtually no centralized states in the modern sense. The power of kings and other large overlords did not extend beyond hereditary domains, and, in principle, any landowner could establish his own rules on his territory.
G. Berman is undoubtedly right when he says that “in Europe until the second half of X! V. main features of customary law
were tribal and local, with some feudal elements. Ancestral ties continued to represent the primary definition and primary guarantee legal status person. The kings showed little initiative in creating popular law... The collections of laws that kings issued from time to time and which set forth customs that should have been better known or more firmly established were not legislation in the current sense of the word - rather, they were exhortations to keep peace, to protect justice and abstain from crime."
Attitude to the continuity of legal customs in different countries not the same. If we analyze the status of legal custom, most countries have accepted custom as a source of law. But it should be noted as a fact that there is a limited number of countries that have refused to apply this source of law on the territory of their states. In particular, Guinea is in such positions, where, in accordance with Art. 5 of Ordinance No. 47 of November 20, 1960, the application of customary law was prohibited.
Custom can be used to reform the legal system. For example, in the national legal systems of the countries of Francophone Africa, custom is taken as the basis for displacing laws of European origin, in particular in the Republic of Malagasy.
The continuity of legal custom can be expressed in the form of: a) “addition to the law” (sekundum legem) - custom mainly contributes to the linguistic way of interpreting the norms of current legislation;
b) “except for the law” (^^uef^o praeter legem)
Custom is considered as an independent source of law, and the scope of its application is limited only by current legislation; c) “against the law” (sotsh-tudo adversuslegem) - practically not used in continental law.
Custom is used when there are gaps in the law, when there are conflicts of law. It is possible to use it as a source of law and equal to or superior to the law. This provision of legal custom has a
hundred in countries where there is dualism of civil and commercial law (France, Germany). When a dispute arises in the area of trade relations, custom in these countries takes precedence over civil law.
In Spain and in a number of other Spanish-speaking countries, custom as a source of law plays a very important practical role, and, naturally, great importance is attached to it. Suffice it to say that in some provinces of Spain, especially in Catalonia, customary law, formed on the basis of local customs, almost completely replaces “national civil law” (the system of norms contained in the “national Civil Code”), and for this reason it is quite is reasonably considered in relation to such cases not only as “as very important, but also as the actual primary source of law.”
However, the situation is completely different with the place and role of customs in other countries of Romano-Germanic law. A typical example in this regard is France, where the role of custom in theoretical and practical terms is very insignificant. French lawyers “try to see in it (custom) a somewhat outdated source of law, playing an insignificant role since the time when, together with codification, we recognized the indisputable supremacy of law.”
The place of custom in the system of sources of law in other countries is also ambiguous. Here the following are possible: a) its complete denial (Article 7 of the French Civil Code; b) recognition of custom as a subsidiary source of law (Civil Code of the Russian Federation); c) recognition of custom as having a force equal to the law and even superior to it. The latter is typical for countries where there is a dualism of civil and commercial law (Germany, Japan, etc.). When a dispute arises in the field of trade relations, custom has priority over civil law. In a number of countries (England, USA, Germany), custom can compete with the law in other areas.
The continuity of legal custom is facilitated by its properties as a form of law. It arises not immediately and not from above, but from below and gradually and therefore is more fully capable than
other forms of law, express the will of the people, their views, needs.
The Soviet state had a negative attitude towards this form of law because legal custom has a number of features that were not consistent with the orientation of socialist law as the law of a new, higher historical type. The uncertainty and vagueness of the norms contained in legal custom opened up the possibility of their arbitrary application by the courts, which was fundamentally contrary to the requirements of socialist legality. In addition, the custom is conservative in nature, consistent not with the prospects for the development of society, but with its past. For all these reasons, the Soviet state, “which has as its goal the comprehensive development of the new, progressive, does not follow the path of expressing its will in the form of legal custom.”
However, the Soviet government could not immediately exclude legal custom from practice. It was used in resolving disputes that arose in the everyday life of Russian peasants and among the population of national localities of Russia, because in these areas and segments of the population, customary law acted as a consequence of the preservation of remnants of the rural community in peasant life, remnants of the clan and feudal system in traditions, life and consciousness national minority. So, in accordance with Art. 8 of the Land Code of the RSFSR of 1922, the rights and obligations of land users and their associations were determined by local customs when their application did not contradict the law. Article 77 of the code allowed to be guided by local customs when dividing property, the courtyard, to determine the property personally owned by individual members of the courtyard. With the transition to socialism, the courts' application of Art. 8 and 77 of the Land Code of the RSFSR were significantly reduced, since they were designed mainly for relations related to the existence of individual farms.
With the help of customary law, various types of property, family and other disputes were resolved. The Soviet government could not immediately discard these centuries-old norms and therefore took the path
their study and assessment from the point of view of compliance with the policies of the socialist state. So, for example, after the victory of the revolution in Ukraine, at the time of the creation of the Academy of Sciences of the Ukrainian SSR, a Standing Commission was specially organized as part of its socio-economic department to study customary law.
In the system of sources of modern Russian law, legal customs occupy a prominent place. In the Civil Code of the Russian Federation (Article 5), which officially recognizes and legislates the fact of recognizing them as sources of law, legal customs are called “business customs.”
In this regard, the legal literature correctly emphasizes that, recognizing legal customs in “a general form, and not for certain types of relations, such as, in particular, the division of property of a peasant household, the customs of a seaport and others, the Civil Code has significantly expanded, according to comparison with previous legislation, the possibility of applying legal custom." In addition, if previously a legal custom was applied only when this possibility was directly indicated in the law, then, according to the current Civil Code, business customs are applied even when this is not provided for by law, and regardless of whether the “established and widely a rule of conduct applied in any area of business activity, called a business custom, is not recorded in any document.
Based on this, the scientific literature makes a well-founded conclusion, as it seems, that “on a new basis, widespread use of customs is possible, in particular local, national, as well as business customs that have developed in various sectors of the economy.”
1. Razumovich N.N. Sources of law and form of law // Sov. state and law. - 1988. - No. 3. - P. 25.
2. Book of the ruler of the Shang region (Shang Jun Shu) / Trans. L. S. Perelomova. - M., 1993. -S. 127.
3. Fox. Speeches / Transl. S.I. Sobolevsky. - M., 1994. - P. 87.
4. Book of the ruler of the Shang region (Shang Jun Shu). - P. 156.
6. Romanov A.K. Legal system of England. - M.: Delo, 2000. - P. 180.
7. See: Kulagin M.I. Entrepreneurship and law: Western experience. - M., 1992. - P. 29.
8. Boshno S.V. State sanctioning of customs: content and classification // Lawyer. - 2004. - No. 3.
9. Alekseev S. S. Problems of the theory of law: Course of lectures: In 2 volumes - Sverdlovsk, 1973. - T. 2. - P. 49.
10. Supataev M.A. Legal custom as a source of law in developing countries // Sources of law. - M., 1985. - P. 49-50; Lukic R. Methodology of law. - M., 1981.
11. Boshno S.V. Decree. op. - P. 11.
12. Zivs S.L. Sources of law. - M., 1981. -S. 161.
13. Zakharova M.V. Characteristics of native law in the countries of Francophone Africa and Madagascar in the post-colonial period of their development // State power And local government. - 2005. - No. 2. - P. 27.
14. Boshno S.V. Decree. op. - P. 12.
15. Golunsky S. Customary law // Sov. state and law. - 1939. - No. 3. - P. 52.
16. Boshno S.V. Decree. op. - P. 12, 13.
17. Ibid. - P. 11.
18. Berman G. Western tradition: the era of formation. - M., 1998. - P. 78.
19. Zakharova M.V. Decree. op. - P. 27.
20. David R. Basic legal systems of our time. - M., 1988. - P. 105-127.
21. Drobyazko S.G., Kozlov V.S. General theory rights. - Minsk, 2005. - P. 205.
22. Marchenko M.N. Sources of law. - M.: Prospekt, 2005. - P. 484.
23. David R. Basic legal systems of our time (comparative law). - M., 1967.
24. Nakonechnaya T.V. Continuity in the development of Soviet law. - Kyiv, 1987. - P. 85.
25. See: Murasheva S.A. Custom in the system of forms of law: questions of theory and history // Materials of the All-Russian Scientific Conference. -Sochi, 2002. - P. 42-47; Belkin A.A. Customs and customs in state law // Jurisprudence. - 1998. - No. 1. - P. 39-41.
26. General theory of state and law: Academician. course: In 3 volumes - T. 2. - 2nd ed. / Rep. ed. M.N. Marchenko. - M., 2001. - P. 249.
27. Ibid. - pp. 249-250.
Legal custom
Legal custom (Customary law)- historically established and a rule of behavior, sanctioned by the state and included in the system of legal norms.
Customary law is one of the oldest phenomena in human history. Moreover, the problems of the emergence, formation and development of customary law are multifaceted, since its norms are elements of national culture. The study of customs and their relationship with others is important for understanding the historical process of the emergence of law, as well as continuity in the development of legal norms. In legal science, both domestic and foreign, customary law has been and is being studied from a historical perspective and in terms of comparing customary norms with other social norms.
Customs (customary norms) are not recognized as sources of law in all states, and only in a limited range of legal relations.
The special role of customary law is noted in undifferentiated legal systems, where legal custom, doctrine and law often compete with each other. However, there is a tendency towards the state consolidating the division of spheres of influence (regulation), normalizing social relations on the part of these sources of law. The importance of customary legal norms is especially great in the national legal systems of Africa and Madagascar.
In developed legal systems, legal custom acts as an additional source of law when a norm of legal custom fills the gap formed as a result of the unsettlement of one or another condition in the contract or gaps in legislation.
Legal custom plays a significant role in international law.
Concept
Legal customs are a special type of general civil customs (which usually include business customs and other customs, habits and routines) operating in society. Their content is formed by specific rules that prescribe a strictly defined line of behavior in certain situations. Stability, repeatability social relations and connections cause the emergence of certain behavioral stereotypes in individual, group and mass public consciousness.
The emergence of customary law in society was due to certain socio-economic and cultural prerequisites.
The inextricable connection between legal content and legal form allows us to formulate two meanings of the term “customary law”, both in the non-legal sense of “proto-law” and in the purely legal sense of “legal custom”. This gives reason to believe that the genesis of customary law begins with a customary norm, which at a certain stage of the development of society acts as an indicator of the most important, vital social situations, acts in relation to everyone who falls under its content and, in the future, it becomes a norm positive law.
To recognize a norm of customary law and establish its content, it is necessary to identify the internal forms of customary law, which can be called ways of expressing the norms of customary law and classified into two groups: ways of expressing the norms of customary law in the form of acts of autonomous will of participants in civil legal relations and judicial methods. The first group includes public or folk forms of expressing the norms of customary law (proverbs, sayings, legends). More in an important way within this group is the contract, in particular, the approximate terms of the contract, which can be applied as legal customs, as well as sets of unified customs and rules.
Forms of state sanction of customary norms
One of the earliest forms is the collection and recording of these norms in written legal sources. These include the most ancient monuments of law in India, Greece, France, Germany, Ancient Rus' and so on. As already mentioned, all these states had previously transformed customary law into laws. This process continues today, mainly in international law and in states of the traditional legal system. The process of developing a mandatory rule that has official significance “thus followed a pattern - from repeated, stable practice ... through legal custom to a legislative norm.”
This type sanctioning tends to replace custom as law. Replacing customs with state legal norms can be done in different ways. In one case, this is the sanctioning of a custom, in which the rule remains the same, but becomes legal. In other cases, a state legal norm, replacing a custom, introduces certain clarifications (without changing the essence and content), making a specific rule clearer. And another option is when a legal norm appears as a synthesis of several customs. Thus, the consistent replacement of customs turns them into positive law.
The following form State sanction of a custom is a reference to it in the law. In our time, this is the most common type of giving a norm a state-legal character. It is very important that with such a sanction, custom turns into an element of national law, without losing the character of custom.
At the same time, this form of authorization has the following characteristics: authorization can be quite general in nature when the constitutions of states contain a reference to custom as a source of law; when special regulations contain permission from the legislator to be guided by local customs in certain legal relations; and also when dispositive norm allows the use of legal customs in cases where there is no corresponding legislation, that is, the custom is subsidiary in nature.
Along with sanctioning customary law, the state, if necessary and appropriate, can provide protection for those customs that lie outside the legal sphere. In this case, the custom is turned into law and its application is ensured by the appropriate sanction.
One of the main forms of sanctioning a custom is a court decision. When courts systematically apply a particular norm of customary law, such a norm turns into an authorized custom. Under certain historical conditions, legal practice itself can lead to the formation of unique judicial customs, which over time can develop, for example, into the system of English common law.
Sometimes, for the application of customary law norms, a direct reference to them by law is not necessary. The norms of customary law also apply with the “tacit consent” of the legislator. An attempt to assert the same was made by N.I. Razumovich, E.V. Kolesnikov, D.Zh. Valeev.
It must be noted that the further genesis of the state narrowed the sanctioning role of the courts, or eliminated it altogether. This is due to the fact that states, firstly, do not apply such a source of law as a legal custom, secondly, in the highest legal acts they recognize it as a full source of law, or, thirdly, they allow references to customary law. right in current legislation. Thus, the custom applied by the court is already sanctioned by the state.
The question of judicial sanction of customary norms gives rise to an ambiguous interpretation. Scientists such as G. F. Shershenevich, S. Golunsky, S. S. Alekseev and others argue that this is one of the types of state sanction. On the other hand, Regelsberger, G. Kelsen, D. Zh. Valeev and others deny this approach (and, in addition, object to considering state sanction of custom as a sign that turns a non-legal custom into a legal norm) and insist on the fact that the “tacit consent” of the legislator cannot be considered as a sanction of the state. Hence, it is unfair to classify the initial activities of customary courts as state activities.
In the constitutional law of many developing countries there is a special type of legal custom. Therefore, we can distinguish another form of state authorization - a constitutional agreement, the essence of which is expressed in the creation of unwritten amendments to the unwritten constitution. The concept and principle of its operation are borrowed from the English legal system, where these constitutional customs are one of the most important sources state law. In Great Britain, the fundamental law of the state is unwritten. There is not a single statute or court decision that would declare the Great British Kingdom to be a constitutional parliamentary monarchy. “It is agreements that act as a form of expression for the mechanisms of containment and control of the branches of government.” According to R. David, “English constitutional law would seem absurd if it were presented without taking into account constitutional customs, which are theoretically not given a legal character, but which dominate English political life.” Chirkin V.E. defines this definition as a custom that develops in the process of practical activity of the constitutional mechanism, on the basis of constitutional agreements.
Famous collections of legal customs
Russia
- Ustyansky ruler
France
See also
- Business custom
Notes
| Right | ||
|---|---|---|
| Doctrine of law | Theory of state and law · History of state and law · History of political and legal doctrines · Philosophy of law · Sociology of law · Anthropology of law · Encyclopedia of law | |
| Main branches of law | Constitutional law · Administrative law · Administrative procedural law · Civil law · Civil procedural law · Arbitration procedural law · Criminal law · Criminal procedural law · Criminal executive law · Family law · Labor law · Financial law · Land law · Housing law | |
| Complex branches of law | Business Law (Commercial Law) · Customs Law · Municipal Law · Military Law · Social Security Law · Environmental Law · Bankruptcy Law | |
| Sub-sectors and rights | Commercial law · Tax law · Budget law · Banking law · Information law · Corporate law · Transport law · Antimonopoly law · Forest law · Copyright law · Patent law · Related law · Invention law | |
| Legal disciplines | Criminology · Forensic science · Forensic medicine · Forensic psychiatry · Legal ethics · Legal psychology · Forensic accounting · Forensic examination · Operational investigative activities | |
| International law | Public international law · Private international law · European law | |
| Jurisprudence | Justice · Prosecutor's supervision · Law enforcement agencies · Bar · Notaries · Human rights activities · Legislation · Comparative law · Legal profession · Famous lawyers | |
| · · | ||
| International law | |||||
|---|---|---|---|---|---|
| General provisions | |||||
| Legal personality | |||||
| Territory |
|
||||
| Population |
| ||||
A legal custom is a rule of behavior that has developed as a result of its actual application over a long period of time, not written down anywhere in official documents, but recognized by the state.
Main features of custom as a source of law
Duration of existence. The custom is very conservative and is consistent not so much with the prospects for the development of society, but with its past. Custom consolidates what has developed as a result of long-term social practice, and can reflect both the general moral and spiritual values of the people, and, to a large extent, prejudices, racial and religious intolerance, gender inequality, etc. Therefore, the state treats different customs differently: it prohibits some, while it approves and develops others.
Consistency of compliance. This necessary condition so that a custom, as a rule, as a model of behavior in a specific situation, does not disappear, since it is usually preserved only in the minds of the people and is not written down anywhere.
The custom is, as a rule, local character, i.e. used within relatively small groups of people or over a relatively small area. It is often closely associated with religion. In India, for example, customary law is part of the structure of Hindu law.
Custom sanctioned (admits) state through its perception by judicial or administrative practice. But if the content of a customary norm is expressed in normative acts, in this case the source of law will no longer be custom, but a normative act.
The set of customs, if there are a significant number of them, is called customary law. Customary law - a system of legal norms based on custom that regulates social relations in a given state, in a particular locality, or for a given ethnic or social group.
Custom is the main form of regulation of behavior in a pre-state society, under the conditions of a tribal system. It was given great importance as a source of law in ancient states and under feudalism. The first legal monuments consisted mainly of customs. With the development of law-making activities of the state, customary law is largely absorbed by written, positive law.
In Russia, until 1917, custom regulated relations between peasants. Researchers noted that in the field of private civil law, the majority of the population of Russia (80 million people) is guided by common law, and written laws (primarily referring to Part 1 of T. X of the Code of Laws Russian Empire– civil laws) are intended for the minority. Even after the revolution of 1917, the Bolsheviks were not able to immediately abandon customary law, which indicates its importance. Articles 8, 77 of the Land Code of the RSFSR of 1922 allowed the use of custom in regulating land, family and other relations among peasants.
Soviet legal doctrine had a negative attitude towards legal custom. This is understandable - the formation and consolidation of customary law requires considerable time, and the new socialist society that arose after the revolution of 1917, in accordance with prevailing ideas, is fundamentally and qualitatively different from the system that existed previously (see: Zivs S. L. Sources of law. M., 1981. P. 153; The fifth chapter of this monograph is called “The Decline of Customary Law,” and its first paragraph is “Displacement of customary law from the legal reality of the Soviet Union”).
Currently, the custom is widely used in regulating public relations in the countries of Asia, Africa, and Oceania. In developed countries, custom plays a secondary role compared to other sources of law - regulations and judicial practice. Custom is understood primarily as a norm that supplements the law in cases where the corresponding prescription in the law is completely absent or is not complete enough. However, for example, in modern France or Germany in the field of civil and commercial law, the use of custom not only in addition to, but also against the law is not excluded.
Legislation may or may not contain a reference to customary law. The Civil Code of the Russian Federation gives the concept of custom: “Custom is recognized as a rule of behavior that has developed and is widely used in any area of business or other activity, not provided for by law, regardless of whether it is recorded in any document” (Part 1, Article 5 of the Civil Code RF). And further, the norms of civil law contained in the Civil Code of the Russian Federation repeatedly point to custom as a source of morals (see, for example, Article 309 of the Civil Code of the Russian Federation: “Obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements").
References to customs are traditionally found in maritime trade law. Thus, the period during which the cargo must be loaded onto the ship is determined by agreement of the parties, and in the absence of such an agreement - by the terms “usually accepted at the port of loading” (see Article 134 of the Merchant Shipping Code of the USSR, see also Part 1 Article 130 of the Merchant Shipping Code of the Russian Federation dated April 30, 1999 No. 81-FZ). The role of custom in international public and private law is significant (see, for example: Danilenko G. M. Custom in modern international law. M., 1988).
Adjacent to the customs are the so-called business customs – unspoken rules of behavior that have developed on the basis of their constant and uniform application in the practical activities of government bodies, commercial and non-profit non-governmental organizations, which primarily establish a certain order of business. In most cases they are also local in nature, i.e. apply to one or more organizations, or only to a certain type of activity. It is not possible to make a clear distinction between customs and customs, especially since these concepts are not distinguished in legislation, and in some countries they are used interchangeably. Sometimes in the literature, the above examples from civil and maritime law serve as confirmation of the existence of business customs, since here compliance with certain rules is dictated not by any traditions or national characteristics, but primarily by economic and administrative expediency. Business customs are sometimes referred to as modern customs that are several years old or decades old.
One should not rush to the unambiguous conclusions accepted in the theory of state and law regarding the extremely limited scope of application of legal customs as sources of law. As noted in publications recent years, in modern legal science there is no unified understanding of custom as a source of law; moreover, this issue has never been properly studied (see: Theory of Law and State: Textbook / edited by G. N. Manov. M., 1995. P. 171).
The development of legal systems occurred gradually and was initially built on customs, which today in legal theory are referred to as legal customs. In fact, this source of law still exists today, but its significance in the system has undergone certain metamorphoses taking into account the evolution of law to the modern state.
The concept of legal custom and its place in the system of sources of law
Legal custom is a concept that defines one of the existing sources of law, which appeared as a result of the application of the same model of behavior, acceptable in society, in similar situations over a long period of time and is currently enshrined at the state level.
At one time, custom was the main source of law, but gradually, with the development of relations and the loss of relevance of one or another legal custom, it lost its leading position in favor of regulations, judicial precedents and other sources of law.
Today, custom still acts as a source of law in existing legal systems.
However, custom as a source of law is now found only in certain industries:
- Family law;
- Civil law;
- Trade law;
- Constitutional law.
And, despite the fact that officially the domestic legal doctrine provides for legal custom as one of the legal sources, even in those areas where its use is directly prescribed, its significance is not so significant and is rather of an auxiliary nature. This is due to the fact that sometimes there are legal conflicts between custom, which the above-mentioned industries regard as a full-fledged source of law, and legal norms contained in regulations of varying legal force. So, in the presence of such a conflict, the legal norms or norms contained in the agreement concluded on the basis of legal norms are applied.
Types and principles of legal custom
Legal doctrine distinguishes the following types of legal custom:
- Progressive
- Conservative
- Reactionary
This classification is based on the rate of occurrence and duration of use. Not every custom belonging to one of the classifications is approved and sanctioned at the state level. The reason for this is the discrepancy between customs, the sanction of which is denied by the state, and the implemented policies or established moral standards in the life of society.
The principles of legal custom that characterize it include:
- The principle of locality. The spread of application is often limited by territory or ethnicity, or by area of application.
- The principle of interaction with other social norms.
- The principle of orality is based on folklore. Often the rule of behavior has a stable expression among the people in the form of a saying, aphorism, etc.
- The principle of conservatism. Since the obligation of a particular behavior developed as a result of the regular repetition of such behavior in typical situations over a certain period of time, it did not undergo any transformations.
- The binding nature of a legal custom acceptable to the state is conveyed through a sanction.
The difference between legal custom and other forms of law
Customary law should be considered in unity with its other forms, since there is a whole legal system with a certain hierarchy of sources, each of which performs its own functions and represents the meaning of the whole. The concept of legal custom, along with another form of law, performs the functions of defining the rules of behavior, which is why there is a certain relationship between the norms of law and customs, expressed in a number of general features:
- Universality. The rule of conduct covers an indefinite, non-personal circle of persons.
- Commitment. Violation or failure to comply with the rule entails censure from society and the state.
In addition to the unity of principles, functions and features, there are also distinctive features and characteristics:
- Origin. The emergence of custom is associated with the emergence of human society, and other sources of law arose as a consequence of state-organized society;
- Form of expression. The custom has an oral character, fixed on the subconscious level of people. Other forms of law require written documentation.
- Method of ensuring implementation. Legal custom, or rather its mandatory nature, is supported by public opinion; other forms are supported primarily by coercion from the state in case of non-compliance. The very method of implementing legal norms can in some way be considered as a custom, since compliance with written rules is designed for the habit of law-abiding citizens to massively comply with the norms. Other behavior is regarded, including by society, as unacceptable.
Areas of application of legal custom
Features of the legal system that makes up legal basis in our country, limits the scope of application of legal custom.
The most relevant legal custom, as noted above, is for:
- Civil legislation. For example, in civil code contains a provision according to which the use of business customs is permissible, even when state acts do not contain them. This does not diminish the significance and application of the custom.
- Family law.
- Trade legislation, in particular merchant shipping. Highest value has in systems where trade legislation has separated into an independent branch from civil law. Here, custom is widely used and is not inferior to contract law, performs direct functions in accordance with its concept and meaning, and is rather its alternative. For example, cargo is loaded within the time period specified in the contract, and if there is none, then within the time period specified at the port.
- Constitutional law and its individual institutions.
Constitutional custom in meaning and functions does not differ from general concept legal custom, however, has a specific feature. In most cases, constitutional customary law, as it develops, is reflected in legislative acts, thereby becoming a normative legal act. For example, the formation of election commissions a little less than a quarter of a century ago was not prescribed by law, but took the form of custom. The right to hold manifestos and pickets was also absent from constitutional norms, but today is one of the fundamental rights of a citizen. Along with the currently written constitutional customs, there still exist unwritten ones, which most likely will remain so. Thus, when appointing the Chairman of the Government, each time the number of his deputies is determined anew. This is not provided for anywhere in the constitutional norms, since it would require regular changes to the law.
It is worth considering the application of legal custom in the international legal arena. Since the absence of an international treaty entails strict application as a legal source - custom. However, there is a caveat: the legal custom to be applied must be recognized by international entities - the states in relation to which it will have effect.
The relevance of legal custom in international relations and an equivalent alternative to treaties is due to the absence of the need for lengthy, difficult, and sometimes impossible coordination of the will of participants in international relations.
Members of the international community may refuse to sign and be bound by certain treaties, but at the same time do not refuse to comply with the provisions of the treaty, thereby giving the treaty norms the character of custom. Or the provisions of the contract are fulfilled even before it actually comes into force - this is also regarded as a legal custom.
Limits and difficulties of applying custom
Custom, like any other types of legal norms, is nothing more than a rule of behavior with small features. If we talk about the most common source of law - legal norm, enshrined in a normative act, agreement, etc., then there is a reasonable, rational component, i.e. the norm was an objective consequence of the need to regulate specific relations in civil society. Custom is characterized by spontaneity caused by emotions, feelings, traditions, morals, i.e. a rule of behavior has developed as a result of the repetition of actions caused by an emotional reaction to an event or situation.
However, customary law is limited in application. A number of industries do not accept customary law at all. This applies to industries that are built on mandatory norms, for which only what is directly described in the legal norm and nothing else is considered acceptable behavior. For example, the Criminal Code of the Russian Federation contains only imperative norms, deviation from which is unacceptable.
On the contrary, civil legislation consists of norms of both imperative and dispositive nature. The second type of norms is more widely applied, and the industry itself refers to legal custom in a number of cases.
Thus, the use of legal customs is permissible as long as it does not contradict legal norms.
Common law may not be the most popular or widely used law in the country today legal source, however, it takes place and practice confirms this. Custom in the general system of law is of particular importance because it is one of the oldest sources of norms of behavior. There are a number of branches of law where the role of legal custom is quite significant, and historically established rules of conduct retain their previous functions and are relevant to this day.
