Legal custom has historically been the first source of law that regulated relations during the formation of the state. In general, custom is understood as a rule of conduct that has developed on the basis of constant and uniform repetition of given actual relations. A custom becomes legal after it receives the official approval of the state. The large legislative monuments of the past that have come down to us (Laws of Manu, Russkaya Pravda) are collections of legal customs.

Nature legal custom characterized by the following features. It, as a rule, has a local character, i.e. applied within relatively small community groups people. Legal practices are often closely related to religion. In India, for example, customary law is part of the structure of Hindu law.

It should not be assumed that legal customs are an archaic phenomenon that has now lost all meaning. As evidenced latest research, legal customs are widely used in the regulation of social relations (especially land, inheritance, family and marriage) in the states of Africa, Asia, Latin America. Individual customs, included in the ancient laws of a particular country, are still in effect without changes.

For example, in Thailand to this day there is a law that defines the conditions for the divorce of spouses, developed during the formation of customs. Husband and wife in the presence of witnesses simultaneously light a candle of the same size. The spouse whose candle burns out first must leave the house without taking any of their property with them.

legal custom It 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, manners. The sanctioning of a custom can be carried out through the perception of its 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.

Custom is conservative in nature. It consolidates what has developed as a result of long social practice. Often the custom reflects philistine prejudices, racial and religious intolerance, historically established gender inequality. For the purposes of social security and personal well-being of citizens, the state justifiably prohibits such customs.

The state treats different customs in different ways: some prohibits, others approve and develop. A more or less prolonged existence of legal customs can be expected only in certain areas of legal regulation, for example, in the regulation of foreign trade. Only a few articles of the Code of Merchant Shipping are known, which take into account the operation of the customs of the port or international customs of navigation, Art. 134 of the CTM RF establishes: "The period during which the cargo must be loaded onto the vessel is determined by agreement of the parties, and in the absence of such an agreement - by the terms usually adopted at the port of loading." In other acts, there are sometimes references to business habits. At the same time, it should be noted that the content of the ordinary norm does not receive direct textual consolidation in the law or other normative act. It is unlikely that S.L. is right either. Zivs, arguing that our legislation does not know the custom of law at all. In the history of Russian law, there were normative legal acts containing a direct reference to custom, such references related, for example, to the land use order in the 20s of the 20th century.

The state authorizes only those customs that do not contradict, are consistent with its policy, with the moral foundations of the established way of life. Customs that are contrary to state policy, universal morality, as a rule, are prohibited by law. For example, until recently, the Criminal Code of the RSFSR (valid from 01/01/61 to 01/01/97) contained chapter 9, which provided for liability for crimes that were remnants of local customs. Article 233 of the Criminal Code of the RSFSR, in particular, provided for punishment in the form of imprisonment for up to 2 years for kidnapping a woman for marriage. The current Criminal Code of the Russian Federation, which entered into force on January 1, 1997, does not contain such an article. But there is article 126, which provides for severe liability for kidnapping, without referring to the remnants.

The development of law in Russia should hardly follow the path of official exclusion from the system of customs. Apparently, we should soon expect the emergence of new market customs that will regulate relations before and along with legal norms.

V international law custom is not only a form of expression of traditional norms, but also an important way to create new legal binding rules for the behavior of states in those newly emerging areas of interstate relations that require legal regulation. It is a modern and actively functioning source of law. Therefore, it should be borne in mind that the concept of custom, as it is applied in international practice and considered in the doctrine of international law, has little in common with ideas about custom based on the features of this source in domestic, national systems of law.

There are customs that have received special recognition in international relations, such as diplomatic etiquette. In the 5th-11th centuries. in Europe, the custom played a big role, as it was recognized by the royal and church courts, and replaced the previous bloody fights, trials by fire or water, oaths with monetary compensation for damage caused.

It must be said that the significance and prevalence of customary law in medieval Europe and served as the basis for the formation historical school rights. This is also where the idea expressed by the early K. Marx comes from that the legislator, as a natural scientist, only discovers and formulates legal provisions, and does not create them.

Both from a theoretical and practical point of view, it is necessary to distinguish custom as a process of creating norms of international law from custom - the result of this process, i.e. legally binding rules of conduct established in interstate practice.

It should not be assumed that legal customs are an archaic phenomenon that has now lost all meaning. As evidenced by the latest research, legal practices are widely used in the regulation of social relations (especially land, inheritance, family and marriage) in the states of Africa, Asia, and Latin America. Individual customs, included in the ancient laws of a particular country, are still in effect without changes. For example, in Thailand to this day, there is a law that defines the conditions for the divorce of spouses, developed in the process of forming customs. Husband and wife in the presence of witnesses simultaneously light a candle of the same size. The spouse whose candle burns out first must leave the house without taking any of their property with them. At the same time, in Kenya, at present, there are parallel rules of English law in the family and marriage sphere, which have remained from the time of the colony, and ancient tribal customs operating in the same sphere of legal relations. And, if there are conflicts between these two legal systems, which rules to apply and which not, the court decides.

Legal custom is the giving of official legal force to a simple, non-legal custom operating in society, by using it to resolve a specific case in a law enforcement state body (for example, in court). The difference between legal custom and judicial precedent is that a well-known custom is used. The form of expression is a judgment. Each time this custom needs to be confirmed, it refers not to the decision of the previous court, but to the corresponding custom. This source of law has a subsidiary (complementary) value.

In Russia, legal custom is used to a limited extent. For example, in maritime law, where each seaport has its own customs from time immemorial. Legal customs are most widespread in civil, family, agrarian law, as well as in international law, in particular, in foreign trade turnover. Customs, as it were, make up for the absence of one or another norm in the legislation.

However, there are legal systems where the role of legal custom and customs in general is quite large. These include the customary law of African states, where customs regulate marriage, family, land relations and relations in the field of inheritance. These traditional relations are still regulated by customary law, and the judiciary resolves such disputes on the basis of local customs, giving them a legal, state-protected character.

Most often, legal customs as sources of law were used in antiquity and in the Middle Ages, forming the so-called customary law. Laws of the XII table in Ancient Rome is a customary record. In the modern world, in developed countries, this type of source of law is not widely used, but it is not completely excluded. For example, in Art. 5 of the Civil Code states that in the course of business activities it is allowed to use business customs as established and widely applied rules of conduct, even if they are not recorded in state acts.

Principle of law- the fundamental idea of ​​law (justice, democracy, the presumption of innocence, the harm done must be compensated, etc.). The principles of law are used in solving specific cases in the event that it is impossible to find suitable legal norms for a given case. The very principles of law in general or its branches are formulated in the constitutions of states, sectoral legislation, international legal treaties. Therefore, the application of the principles of law to a particular case is not based only on the legal consciousness of the law enforcer, but also on the current constitutional and ordinary laws, where these principles are normatively formulated.

legal doctrine- this is a system of views, ideas about law, about its principles, set forth by recognized authorities in the field of jurisprudence. Legal doctrine is theoretical provisions, scientific theories of a legal nature, in which the most important principles, legal categories, concepts, views of legal scientists are formulated. In some countries, legal doctrine is the source of law. So, in English courts, when resolving specific cases, it is customary to refer to the works of well-known lawyers in support of the court decision. A similar practice exists in some Muslim states. (Thus, the main source of Islamic law is the Islamic religious legal doctrine).

In Russia, scientific commentaries to various codes are widely used in legal practice, but they are used as reference, consulting material; refer to the commentary when resolving litigation and justification decisions taken it is forbidden. The role of legal doctrine as a vital source of law is manifested in the fact that it creates concepts and structures that are used by the law-making body. It is legal science that develops techniques and methods for establishing, interpreting and implementing law. In addition, the creators of law themselves cannot be free from the influence of legal doctrines: more or less consciously, they have to take the side of one or another legal concept, accept its proposals and recommendations.

It cannot be said that in national history some legal structures created by lawyers were also included in the legal system and were enshrined in law. For example, the work of an outstanding scientist - A.V. Venediktov, who created the construction of "operational economic management", which delimited the powers of the state and enterprises under the socialist form of economy.

In modern jurisprudence, legal custom also plays a role. So, for example, in Art. Art. 5, 6 of the Civil Code Russian Federation attention is paid to such a source civil law, as the customs of business, and art. 33 of the Regulations State Duma is based on the custom of opening the first meeting of the Duma by the oldest deputy. In the early 1990s, in the context of the creation of a new domestic financial and economic infrastructure and the development of entrepreneurship, in addition to the law and the civil law contract, additional sources of legal regulation were required. Therefore, in 1994, the concept of “business practice” and its definition were included in the Civil Code of the Russian Federation. In domestic law Soviet period there were also references to custom, for example, in the USSR Merchant Shipping Code (1968). But the indications of custom contained there concerned primarily international trade. In contrast to this, in the domestic legislation of the present time, the application of customs within the national legal system is allowed. We are talking not only about the customs of business turnover operating in entrepreneurship, but also about local, national customs - in particular, in matters of environmental management, the social organization of ethnic communities. Customary legal rules will not lose their significance in the future, since it is impossible and inappropriate to foresee all the nuances of a particular legal relationship in a law or in an agreement. Customs are also quite active in the field of private international law, especially in international trade and merchant shipping.

Since it is impossible to ignore customs, an important task of jurisprudence is the theoretical development of the problem of legal custom, namely, its concept and role in the system of sources of Russian law. This will make the law enforcement process more efficient.

Interest in the topic of customary law in general and in legal customs as a source of law is due to the peculiarity of the situation that is developing in modern theoretical and legal science and practice. Not so long ago, 10-15 years ago, legal custom was considered as a source of law that is becoming obsolete. A particularly critical attitude towards its existence can be traced in the countries of the Romano-Germanic legal family, as well as in Russia. The existence of legal custom was associated, at best, with the ancient systems of law and society. In the worst case, the norms of customary law were excluded from the concept of law as a whole and were considered only as norms of morality, customs or mononorms. No due attention was paid to the special nature of the formation of societies of the Eastern and African type, in which there were no concepts adequate to the modern Western concept of law, and the main legal categories are still ambiguous.

The result of the revision of theoretical approaches to the definition of law was a rethinking of the relationship between such phenomena as the state and law, and their genesis, and, consequently, the genesis of customary law. An important impetus to the emergence of new approaches was the interaction of legal science with ethnology and the emergence of such a science as the anthropology of law.

The state must support and develop progressive customs, giving them a legal form, since most peoples and nations strive to preserve their customs and traditions, primarily through their formal consolidation. In this sense, both customary law and legal custom represent the people's idea of ​​law and justice. Therefore, the legal custom, no doubt, can be considered not only as a spiritual heritage, but also as a cultural and legal phenomenon that plays essential role in the regulatory system of the state.

Summing up, we can conclude that custom as a source of Russian law has come a long way of development. In the early stages, custom acted as the most important social regulator, which did not need state sanction to give weight and significance, but in modern society legal force is recognized only for those customs that are recognized by the authorities. From customs and traditions, habits, or business habits, are understood, which are understood as an established practice that has developed in economic activity, as well as in everyday life. Business habits are referred to, in particular, in regulations, when we are talking about the rules of order of loading and unloading adopted in this port, about the usual requirements that the quality of the thing sold must comply with, about its normal use. According to the meaning of such references, one can speak not about the criteria established by any customs (habits), but about routine or about average statistical norms corresponding to the level of development of production.

As a special type of norms, the so-called rules of the socialist community were previously mentioned, references to which were available in the constitutions of the USSR, as well as in some codes. Many years of discussions about the rules of socialist coexistence have not led to a clarification of the content of this concept. In practice, when applying articles of codes containing this term, these rules were understood as universally recognized norms of morality, rules of decency, norms of good faith. Recent legislation has abandoned the use of this term. A special position in the system of social norms is occupied by customs - these are the rules of behavior that develop in a certain social environment, are passed down from generation to generation, act as a natural vital need of people, and as a result of their repeated repetition become familiar to them. They are somewhat less related to law than, for example, moral norms, but nevertheless they are not neutral. The norms of law and customs have a number of common features inherent in all social norms: they are general, mandatory rules of human behavior, indicating what human actions should or can be in the opinion of certain groups. At the same time, customs and norms of law differ from each other in origin, form of expression, method of ensuring implementation. If customs appeared with the emergence of human society, then the rules of law exist in a state-organized society; if customs are not fixed in special acts, but are contained in the minds of people, then the rules of law exist in certain forms; if customs are provided by the force of public opinion, then the norms of law can be implemented taking into account the possibility of state coercion.

Legal custom as a source of law lost its leading role with the emergence of the state. The state authorizes the norms (mandatory and dispositive), monitors their correct implementation. Legal custom is forced out into the element of civil circulation. It is found in civil, land, natural resource law and other areas where the mass repetition of relations leads to the emergence of established practices. In relation to all private law, the concept of custom is enshrined in Art. 5 of the Civil Code of the Russian Federation.

Features of the right custom - spontaneous occurrence in frequently occurring (of the same type) life situations, repetition and consolidation of the most rational behavior, which, without meeting objections, becomes a general rule.

Where the state prefers not to interfere with tradition, custom takes the place of the rule of law. Examples of legal practice:

• when determining the place of residence of a child, the courts almost always decide to leave him with his mother;
• when determining the order of forest management, the usual practice of picking mushrooms and berries in the forests by everyone is fixed;
• at the conclusion of an employment contract, the seal of the employer is affixed, although there are no such requirements in any regulatory act.

International legal custom is one of the sources of international law

Historically, in international law, where there is no single supranational regulator, legal custom plays a leading role. The usual rules of private international law are especially detailed: Incoterms 2010, UNIDROIT Principles of International Commercial Contracts 1994, Uniform Customs and Practice for Documentary Letters of Credit 2007. All these documents reproduce the rules that have developed in business circulation. A large place is occupied by legal custom in international maritime law.

In Art. 38 of the Statute of the International Court of Justice (San Francisco, 1945), a legal custom is recognized as a source of law, to which commentators attribute the following characteristics:

• duration of use;
• identity;
• general character;
• legitimacy.

Identity should be understood as the identity of the order of actions in a given situation, under general character- assignment to frequently occurring situations of the same type, under legitimacy - the absence of disputes over the application, that is, universal recognition.

Thus, in the context of the diversity of behavior of participants in civil legal relations, which gives rise to frequently occurring operations, various rules are generated and sanctioned by the society itself, which are recognized as a legal custom. The state, paying tribute to the autonomy of the individual, in the branches of private law recognizes and authorizes the operation of legal custom. The place of legal custom in the system of legal regulation is where there is an established practice, and the state prefers to refrain from interfering.

The most ancient and first form of law is a legal custom, which is an unwritten rule of conduct that has developed as a result of its actual and repeated application over a long time and is recognized by the state as a generally binding rule.

A legal custom is recognized as a source of law when it consolidates long-established relations approved by the population. Therefore, legal custom as a source of law should be understood as a specific form in which a rule of conduct created by society itself is expressed, which has become a habit of people and which is given the value of a universally binding norm. In slave-owning and feudal societies, customs were sanctioned by court decisions on individual facts. Now there is another way of sanctioning customs by the state - a reference to them in the text of laws.

Sometimes it is extremely difficult to say whether this or that custom is legal. For example, the custom of "blood feud" - the principle of talion - "a tooth for a tooth", "an eye for an eye". V Lately this custom is not supported by any state, however, it exists among many peoples. In past centuries, it was a common custom to challenge a duel for humiliation of the honor and dignity of a person. This custom existed for a long time, until society and the state were convinced that it brings great harm, so it was banned in tsarist Russia and in other countries of the world.

During the years of Soviet power, legal customs were replaced by a system of written law - legal acts. Recently, there has been renewed interest in this form of law, which, in fact, is associated with natural human rights and is conditioned by local self-government systems.

The approach to the concepts of "custom" and "customary law"" in various scientific schools ambiguous. In domestic pre-revolutionary and modern Western jurisprudence, these concepts were not distinguished at all. So, the Russian historian and jurist V.M. Khvostov wrote in 1908 that it is necessary to consider as a custom a legal norm, the strength of which is based not on the prescription of state power, but on the people's habit of it, on its long-term application in practice. In other words, according to V.M. Khvostov, a custom is a legal norm, backed up by prescription.

Some scholars view customary law as the original way of creating legal norms, which arose before society was politically constituted. In their opinion, the law established by custom was applied mainly at fairly early stages of the development of society, in archaic legal systems. However, this is not entirely true, since, according to ethnographic science, customs are still used by some peoples today, in addition, the process of creating new customs that reflect the ethno-cultural development of society continues.

Legal custom is characterized by the following specific traits that distinguish it from other sources of law:

Duration of existence: The custom is formed gradually. A certain amount of time must pass from the moment of its inception in order for the custom to become valid. In ancient texts, there was a suitable wording: "From time immemorial." The custom consolidates, contains what has developed as a result of long-term practice in society, it can reflect both the general positive moral, spiritual values ​​of the people, and prejudices, racial intolerance. As society develops, outdated customs are constantly being replaced by new ones, more adapted to the surrounding reality.

Oral character: The peculiarity of the custom, which distinguishes it from other sources of law, is that it is preserved in the minds of the people, transmitted from generation to generation orally.

Formal certainty: Since the custom exists in oral form, more or less precise certainty of its content is required: the situation in which it is applied, the circle of persons to whom the custom applies, the consequences that its application entails.

Local character: As a rule, the custom operates in a certain area within a relatively small group of people or in a relatively small area, is a kind of tradition of the area. Many scholars note the close relationship between custom and religion, for example, in modern India, customary law is included in the structure of Hindu sacred law.

Sanctioned by the state: In order for a custom to be actually applied in society, it must be recognized by the state as legally valid. Law does not exist outside the state, therefore, a custom can acquire a universally binding character, along with other sources of law, only if it is given legality by the state. However, in modern conditions there is a wider list of ways to legally (officially) sanction customs in order to include them in the system of formal legal sources. This is their recognition: by state bodies (legislative, executive, judicial, etc.); local governments and other non-governmental organizations; states and (or) international organizations in the field of public and private international relations.

So, legal custom is called a state-sanctioned rule of behavior that was previously formed as a result of a long repetition of certain actions by people, due to which it was fixed as a stable norm. The state authorizes only those practices that meet its interests. Sanctioned customs acquire the character of obligatory rules of conduct.

An illegal custom, not being sanctioned by the state, cannot serve as a source of law, since it is supported only by public opinion.

During the formation of the state, customs became its natural support, which acquired the property of legal customs, i.e. norms of behavior, which are provided by the power of state coercion. Customs have been and remain the most powerful allies of state power. Acting directly on people and arising between them public relations, the custom sanctifies all kinds of state institutions. A custom acquires a legal character only after it is recognized by the state in the person of the courts or other state bodies. This point of view is shared not only by Western, but also by domestic authors.

M.N. Marchenko (2001) study guide"Legal systems modern world” deals with the issue of customs as sources of law in various legal families, draws attention to the fact that custom is created by society itself in the process of long and repeated repetition of the same relations, and is a spontaneous, unregulated process. The law is created in the process of one-time activities of the relevant state bodies, and its adoption is an orderly and purposeful law. When a custom acquires a legal character, it must not be contrary to the law.

There are different points of view on the role and place of custom as a source of law. In foreign legal literature, for example, Rene David (1996), two views on this problem are described: the concept of the sociological school and the concept of the positivist school. According to the concept of the sociological plan, custom is given the predominant role. Custom is the basis of law. It determines how the law is to be applied. The positivist school reduces the role of custom to nothing. It plays only the smallest role in law. R. David believes that the disadvantage of the positivist position is the lack of a sense of realism. In his opinion, custom is not the main element of law, but at the same time, its role in relation to legislation should not be underestimated. “A more accurate idea of ​​the role of custom will be when they revive tradition and stop equating law and law. If we understand the law only as one of the means for expressing the law, then nothing prevents the recognition, along with legislative acts, of the usefulness of other sources. And among these last important place take the custom." Further, the author notes that the custom itself does not matter. It is important for finding a fair solution. The lawyer should not automatically apply the customs, but should be critical of them.

In the legal literature, the following types of customs are distinguished, depending on the nature of their relationship with the law and other sources of law.

Secundum legem. Customs that act as a "supplement to the law." Their function is that they contribute to the creation of the most optimal conditions for the interpretation and application of existing regulations and the norms contained in them. R. David notes that in a number of cases the law needs to be “complemented by custom” in order to be understood. Customs of this type are often enshrined in national legislation. At the same time, the custom is considered as “auxiliary or as an additional source of law”.

Consuetudo praeter legem. Customs that operate "other than the law." Such customs are considered as independent sources of law in relation to laws and other sources of law. However, they are not incompatible with applicable law. With the help of these customs, those social relations that cannot be regulated by law are regulated.

Consuetudo adversus legem. Practices that by their nature and content are practices “against the law”. The role of this custom, according to R. David, is very limited. "It's clear that the courts don't like to oppose the legislature."

Custom is conservative in nature. It consolidates what has developed as a result of long social practice. The state treats different customs in different ways: some prohibits, others approve and develop. But in all cases, legal customs should be within the legal field, in the sphere of legal regulation, and not beyond their borders. And, of course, they cannot contradict the current legislation. Legal customs are designed to contribute to the law enforcement process, to supplement and enrich the mechanism of legal mediation of various social relations.