Legal custom is one of the oldest sources of law, acting as a form in which a long-term rule of conduct is expressed, giving it the quality of a legal norm. A well-known researcher of law, denoting modern ideas about the place of customary law among other forms of law, emphasizes that “customary law is not a transitional form, but a fundamental phenomenon that runs through the entire legal history” 1 .

The historical basis of legal custom is custom as such. Confirming these conclusions, focusing on such characteristics of custom as repetition, commonality. In his opinion, “a custom is a stable rule of behavior that arises on the basis of homogeneous factual relations as a phenomenon that reflects the usual ways in the interaction of people of a certain social community, as a result of the repeated performance by these people of the same actions, realizing positive assessments of the social significance of these rules enforced by force of habit and under the influence of public opinion.

The analysis of this definition makes it possible to single out, firstly, the deeply social basis of this regulator of social relations, and, secondly, to identify the mechanism for ensuring the operation 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 quite consistent with ethnographic and anthropological dogmas. Customs as a variety of social norms are characterized by such features as:

The socio-social nature of their occurrence, determined by public consciousness;

Multiple and local nature of their action;

The casuistic nature of their prescriptions;

Public opinion acts as a means of ensuring custom;

The custom arises on a certain social basis and often continues to exist and regulate public relations even after losing it.

In earlier studies of the nature, genesis and essence of customary law, the socio-ethnic basis of customary law was recognized as key, where the legal custom was a consequence of the existence of a previously simple custom, i.e., customary law arises from a series of monotonous actions that have been applied for a long time and become a habit of the people in the form of custom.

Therefore, custom is replaced by legislation - the dominant form of law (together with judicial precedents) of the early state society. The content of the law - equivalence and formal equality, in principle, remains unchanged.

Custom and legal conviction are two inseparable, constitutive elements of customary law, "of which custom becomes a source of law," pointed out the following.

First, the custom must contain a legal view, for no other view can give rise to law;

Secondly, the juridical view must repeatedly manifest itself in reality, and, therefore, be observed for a more or less long time;

Thirdly, the juridical outlook 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, a legal view should be a manifestation of moral law as applied to a community.

Thus, the legal custom, integrating all the named characteristics of the custom, becomes a special independent social regulator in the presence of special features inherent directly in it. These signs are 2:

1. Normativity, in accordance with which the norm of legal custom is a rule of conduct of a universally binding nature, acting as a single rule for everyone and everyone who finds themselves in the sphere of its action, and also prescribes the image that is correct from the point of view of society and therefore necessary for a particular individual actions.

2. The inner conviction of a person in the need for the existence and application of legal custom. This sign of a legal custom indicates the mechanism of its action, showing that the basis of the universally binding action of a legal custom is an internal awareness and conviction of the need for the implementation of customary legal regulations by an individual who is part of a group with which he identifies himself.

Being not a state source of law, legal custom is provided not by the force of state coercion, but by the subject's internal awareness of the need to act as prescribed by legal custom.

3. Systematic application, since only with the repeated repetition of the prescription is its necessary, and not random, nature revealed.

4. Uniformity of application, i.e., a legal custom should be in the nature of a general homogeneous rule, observed in as many situations of the same type 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, given such a benefit, it is unlikely that a social group would be able to forego the application of custom for any time.

6. Certainty - in accordance with this principle, the rule of conduct, enshrined in legal custom, should be understandable within the framework of the system of social and legal institutions that is accepted in this society.

7. Obligation - "the custom lives in the minds of the people as a 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 full versatility and breadth of the phenomenon of customary law, its polymorphism and variability in the historical and ethnographic aspect. 3

And if in earlier studies devoted to customary law, legal customs, their inextricable connection with the state, the need to sanction customs, has invariably been demonstrated, then recently the position is increasingly being substantiated, according to which legal custom is a formed moral and legal outlook that exists without state intervention and provided by social means, often not based on state power coercion.

One of the most important questions that arise in the process of implementing the principles of law is traditionally the question of 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 solving this issue: the role of the principles of law in the legal system is understood differently, and the views of specialists about the place occupied by principles 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 an Islamic religion), the will of the people, state power, the ideas of equality and justice, the legal consciousness of people.

Also, the source of law refers to the materials that formed the basis of a particular legislation; monuments of law that were in force at one time, such as the Russian Truth or the Code of King Hammurabi; means of cognition of law from normative legal acts or laws.

Sources of law can be considered those material and other conditions of society that objectively cause the need to issue or change and supplement certain legal acts, as well as the legal system as a whole 4 .

The sources of law can be philosophical ideas that formed 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 source and form of law have, it is important that these concepts, together or apart, are considered as a way in which state power gives a generally valid force to a rule of conduct.

Sources of law in the course of the historical process evolve, change, improve. And every legal system is different. Some forms (sources) of law, having undergone significant evolution, have been preserved in legal systems to this day. Such, for example, can be called such forms (sources) of law as a legal custom, law, precedent. And some sources disappeared without leaving a trace. Such sources of law as the writings of Roman lawyers were at one time binding force 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, hierarchy of sources of law largely depends on the legal systems in which they exist.

For example, in the UK legal system, researchers distinguish three main sources of law: statutory law, delegated legislation and customary law. 5

Thus, the legal system of Scotland, which has experienced significant influence from 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.

Such a difference in the legal systems of the parts does not mean 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.

There are four main sources of law in the Australian legal system. Researchers primarily name customary law, delegated legislation and customs.

In the Japanese legal system, foreign authors distinguish the following sources of law: the Constitution of 1947 or the Meiji Constitution; acts of parliament, government decrees, ordinances, rules and procedures of legal proceedings, rules for managing court cases.

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 technique based on the 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 when solving similar legal issues 6 .

One of the most important sources of law is a normative legal act or simply a normative act.

Legal act – these are the decisions of the competent state bodies, expressed in writing, which contain the 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, legal acts are laws, government decrees, decrees, orders of ministers, orders of chairmen of state committees, decrees, decisions and resolutions adopted by local governments. 7

A law is a normative legal act adopted in a special manner and having the highest legal force, expressing the state will on key issues of public life. From the point of view of their legal qualities, laws have the highest legal force: other normative acts must not contradict the laws; laws are approved, amended or repealed by the same body, that is, there is no place for the participation of two bodies at once in the approval, repeal or change of the law; all other normative acts must proceed from laws. Laws must be observed by all; laws must be perfect in content and form, and they must regulate truly fundamental issues.

Laws are ordinary and constitutional.

Normative legal acts, due to their ease of use, clarity, certainty, method of execution, and also due to the fact that they are issued by state 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 about laws). Legal force should be understood as the significance of a normative legal act, determined by the position of the body in common system law-making state bodies, its competence.

A by-law is a legal act of a state authority that has a lower legal significance than a law. These include resolutions and orders of the government 8 .

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 the sanctioning of existing customs by the nascent state structures. Legal custom occupied a leading position in ancient societies, for example, in Ancient Rome the most important branches and institutions of law evolved from legal custom.

As for the definition of a legal custom, a legal custom is a state-sanctioned rule of conduct that has developed in society as a result of its repeated and prolonged application.

The main difference between a legal custom and a non-legal custom is that a legal custom, being sanctioned by the state, acquires legal force and is provided by state coercion.

In the course of the historical process, legal customs were supplanted by laws, and now they occupy an insignificant place in the system of forms (sources) of law in most countries.

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UDC 340.141

V.A. RYBAKOV,
PhD in Law, Associate Professor of Omsk State University

Legal custom as a source of law has come a long historical way and is accepted by all types of law. This happens through authorization by law-making or judicial authorities. Legal custom is applied as an addition to the law or as an independent form.

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.

Key words (keywords): custom (legal custom), source of law (source of law), authorization (confirmation), continuity (continuity).

Since the emergence of law, the increased attention of theoretical researchers and, to some extent, practitioners has been constantly attracted by the problems of the sources of its formation, forms of organization and existence. Of interest is also the historical aspect of the process of formation and development of sources of law.

It is generally recognized that some of them, such as legal custom, having evolved significantly since ancient times, have been preserved in legal systems to this day. As N.N. 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 in the gaps in the areas of legal communication, and also where legal prescriptions are not viable. We are talking, in particular, about the customs of ordered (compiled) and disordered (not compiled), local (at the level of individual communities or communities) and regional, general (at the level of a nation, people) and local.
The preservation and use of forms of law is covered by the concept of succession. The succession of legal custom has three aspects: the perception of custom in the emergence of the state and law; the perception of an already existing legal custom in the transition from one historical law to another; recognition of customs as legal in public entities. Customs were the right of a society going through an era of the collapse of the primitive communal system and the formation of classes and estates, since they were initially implemented by a mechanism developed in a society without a state apparatus, and in an early state the social mechanism is not eliminated, but only improved or supplemented and completed, becoming a mechanism of state power .
Historically, for every nation, law develops by itself as a well-established order of relations between people, directly due to the conscious 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 objective vital needs, the practical activities of people organized in society. This is how the law of ancient Indian, ancient Greek, ancient Roman, ancient German, ancient Russian and other legal systems arose. This is evidenced by the ancient Indian Laws of Manu, the oldest monument of Roman law, the Laws of the XII tables, the legal code of the Salic Franks Salichnaya Pravda (Salic Law - Lat. Lex Salica), Russian Pravda - acts that basically fixed customs. Right from the very beginning laid down what is acceptable to all members of society - general social justice. And only the strengthening of state law-making, the positions of the interests of the authorities often led legislation and judicial practice away from the true nature of law and its essence.
The custom implies time-tested and reasonable norms of behavior. The legislator, of course, seeks to give stability to his decisions. In medieval philosophy, there was a statement that "when laws are established without taking into account the customs of the people, then people will no longer obey them and nothing will be achieved."
The prestige of customary law, unwritten law in the early state society was preserved for a very long time. So it was in Ancient Greece, where a “new” written law appeared quite early, which extended to the sphere of judicial and administrative activities. However, it was unable to cover the entire legal space in which the custom reigned for centuries, and therefore the custom was widespread and operated for a long time. In the IV century BC. e. orator Lysias, referring to Pericles in his judicial speech, advised judges to apply to criminals against religion not only written laws, but also unwritten ones, “which no one has yet been able to abolish, against which no one dared to object.”
In fact, the same situation existed in other early states. The Chinese “Book of the Governor of the Shang Region” (4th century BC) begins with a story about how King Xiao Gong argued with his advisers about whether he could change the ancient unwritten laws: “Now I want to change the laws so that achieve exemplary government ... But I fear 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: new laws, but the selection of the most wise and fair prescriptions in the old law - this is how the task of the legislator is understood.
Hostility to the new in the law in the early states existed everywhere. The new rules of law that were written down actually consisted of processed customary law. The public authorities had to introduce the new social content into legal norms with great care. In order to introduce a newly created legal norm (in a law, a judicial precedent, a regulatory agreement), a justification was required with reference to traditions and procedures.
past authorities, on an ancient custom, later on the texts of Holy Scripture, on God or famous emperors, etc. It was necessary to substantiate that it already existed, acted, proved its justice, and is not far-fetched. New norms should be introduced in the best possible way, tactfully.
Not all became legal, but only those customs that expressed: a long legal practice, that is, they developed in the process of repeated application (for example, within the life of one generation, which was typical for Ancient Rome); monotonous practice, that is, they acquired a stable, typical character; legal views of small groups of people, as a result of which legal customs had a local significance; the mores of this society.
In the understanding of Roman jurists, custom is the tacit consent of the people, confirmed by ancient customs. In the tradition of Roman jurists, custom was recognized as a source of law in cases not regulated by law. There was also a special rule on this matter, which read: "In those cases in which we do not use written laws, we must observe what is indicated by mores and customs."
In ancient Rome, despite the development of lawmaking, legal customs were widely used and had their own technical and legal features. The norms of customary law in Roman law were denoted by special terms: mores maiorum - the customs of the ancestors; usus - common practice; commentarii ponifcum - customs established in the practice of priests; commentarii magistratum - the customs that have developed in the practice of magistrates; cosuetudo - custom.
In this sense, the legal custom partially retained 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 a universally binding character.
So, in the early stages of the development of statehood, legal customs occupied a dominant role in the system of normative 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 developed, it moved to systematic rule-making activity. Customary law gave way to the law and other acts, that is, the "product" of this activity.
In subsequent historical eras and up to the present day, legal custom has retained its significance as a source of law. The most common customary law 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 system of law, the legal custom is used in cases specified in the law.
Legal customs have been preserved in various countries of the world, including in England, whose legal system is based on judicial precedent. The main signs of legal customs in England are as follows: the existence of a custom from time immemorial (on the basis of the first Statute of Westminster in 1275, a custom that existed before 1189 is considered ancient); the reasonableness of the custom (this requirement implies that this custom will not be supported if it is deprived of legal meaning); 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 which the custom should operate, the area within which the custom operates); binding custom (if the custom does not reveal the mandatory nature of the provisions provided for by it, it cannot be supported by the court); the continuity of the custom (in order to have legal force, the 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. Customary law itself can be defined as a set of unwritten rules of conduct that have developed in society as a result of their repeated application and sanctioned by state power.
The custom retains its significance (is inherited) as a source primarily in those areas of law where there is not enough 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, since it reaches 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.
Sanctioning is the form of realization of the continuity of legal custom. Society is recognized as the source of the emergence of custom, and the state performs evaluative and hierarchical functions in relation to it. On the one hand, public authorities evaluate the content of customary norms in terms of their compliance with the requirements of the law; on the other hand, a positive assessment includes the custom in the hierarchical system of forms of law, in which the primacy belongs to legislation. This happens by sanctioning the custom by the state, which, according to S.S. Alekseev, “not only approves customs, but also considers them “his own”, puts his state will into them.
Depending on the sanctioning body, there are several ways of succession of custom: fixing by the legislature in the blanket norm of reference to legal custom in connection with specific relations; usage
by the judiciary of custom as a basis without the permission of the legislator (tacit authorization); the application by the judiciary of a certain procedure for resolving cases, which has developed in the custom of judicial practice.
Some authors offer an abbreviated list of sanctioning: legislative (abstract); judicial (specific). According to the nature of the expression of the sanctioning of custom, two ways of pre-
continuities: written; oral (silent).
Sanctioning by direct authorization of the law presupposes the presence in the blanket rule of permission to use the custom. This, in particular, is written by S.L. Zivs, arguing that the sanctioning of a custom by a normative act is carried out "only by reference, without its direct (textual) fixing in a normative act." At the same time, the essence of customary law remained unchanged.
In Francophone Africa, the most commonly used formula for authorizing the legal basis for the operation of customary law is various kinds constructions involving the issuance of special legislative acts. In Senegal - Ordinance dated 11/14/1960 No. 60-56; in the Republic of the Ivory Coast - Law No. 61-155 of May 18, 1961 (as amended on June 14, 1964 and July 2, 1964); in Cameroon - Ordinance of 12/29/1965 (as amended on 08/26/1972); in the Congo - Law No. 28-61 of May 19, 1961 (as amended on February 1, 1964), etc.
Constitutional provisions generally state that the law determines the procedure by which the existence of customs is established and brought into conformity with the basic principles of the constitution.
Authorization directly by the judiciary, regardless of the permission of the legislator - written, specific, secondary and subsequent. The qualifying sign here is the silence of the legislator. The court is empowered to independently determine the admissibility of applying customary norms to specific legal relations. This gives the procedure a casual character. Referring this method of authorization to the subsequent ones means that the custom arises independently, the parties (or the party) took advantage of it, and the court, after the circumstances that have taken place, evaluates the applicability of the custom and, if the issue is resolved positively, authorizes the customary rule. The absolutization of the role of the judiciary in the sanctioning of customs is characteristic of the Anglo-Saxon states.
Assigning the law-making function to the courts makes it possible to consider the sanctioning carried out by fixing the usual rule in precedents.
Sanctioning by judicial practice of custom is quite common. However, the court decisions themselves, as a rule, do not create any customs, 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 and is recognized. The court may check the content of the custom, its familiarity to the parties, the morality of its provisions, compliance with normative legal acts. In addition, the very activity of the court must initially be based on the law. In connection with the binding nature of a court decision, a legal custom receives reinforcement of its strength from the state.
The sanctioning by the judiciary of a certain procedure for resolving cases that has developed in judicial practice takes place when the legal practice itself leads "to the formation of peculiar judicial customs, which eventually form into a whole system of law."
Judicial practice is an established area of ​​law enforcement activity, and in this sense it forms a legal custom also in the form of custom. By the nature of the expression, the form of judicial usages is oral, since neither the legislator nor the judiciary has directly prescribed anywhere the right of the courts to create and sanction the usages of their activities. The very order of the emergence of judicial usages is similar to the origin of customary norms. And the results of this process can be fixed in writing (for example, decisions of plenums of higher judicial instances) or exist as a set of actions. The courts can act as the fixer of custom. In the late 1930s and early 1950s, there was a discussion in the scientific literature about whether the silence of the legislator could be considered permission for the use of customs. The decision of the participants of the discussion was negative. The law enforcement practice of the Soviet state completely rejected the idea of ​​tacit authorization. Modern jurisprudence and judicial practice, according to S.V. Boshno, also do not give grounds to see the prospects for tacit consent in the form of the absence of a ban)