An official document adopted within the state that establishes legal provisions is considered as a source of law. Among the main sources are legal custom, judicial precedent and regulatory agreement.
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.
What are business customs?
As mentioned above, legal custom has become most widespread in civil law. The Civil Code of the Russian Federation determines that business custom is an established rule of conduct, universally applied in one or another area of business activity, not provided for by law and regardless of whether it was recorded in any document or not.
For example, every Monday at enterprises in Russia it is customary to hold planning meetings; travel in a minibus in most cities of the country is paid immediately at the entrance, and in Irkutsk, on the contrary, at the exit or during negotiations taking place in a cafe or restaurant, unless this is specified additionally, ladies don't pay for themselves. Such customs include a handshake, which confirms the outcome of any agreement and the legal force that a receipt certified only by a signature has, etc.
The development of entrepreneurship was the impetus for the emergence of new rules in doing business and business customs. They complement existing legislative acts in cases where the latter cannot fully satisfy the needs of any area of business relations. So, in Art. 309 of the Civil Code of the Russian Federation mentions, for example, that the fulfillment of obligations must strictly comply with the requirements of the law or legal acts, and in the absence of such, with business customs. Art. has a similar link. 82, contained in the Customs Code of the Russian Federation.
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 the state has refused, 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.
How do multinational customs coexist in Russia?
The peoples inhabiting Russia represent many ethnic groups with different cultures, traditions and customs. Throughout the history of the state, this situation has dictated the need to take into account the national factor in legal regulation.
At different times, the state’s attitude towards the possibility of applying customary norms was different: from following the principle of the free development of national minorities to determining criminal liability for making decisions based on the customs of the indigenous population.
But in Russia, regardless of the official position, traditional legal systems have always existed, creating at times a situation of double regulation. By the way, it has survived to this day, although it has moved to a new level of interaction between positive (state) and traditional law.
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.
Interaction of law and customs
Separately, it is worth considering the relationship between legal norms and customs existing in any society. How do legally established rules and folk customs inherent in individual social groups or strata of society interact?
Most often, such relationships come down to a few basic options.
- Customs that are useful for the state and society are supported by legal norms and conditions are created for their implementation (respect for elders, care for children, priorities in property relations, etc.).
- Legal norms periodically serve to supplant customs harmful to society, such as, for example, excessive consumption of alcohol or, among certain nationalities, bride price, blood feud, bride price and some Sharia norms. There are customs associated with racial or religious intolerance that are naturally cut off by the state.
- In some cases, legal norms are indifferent to customs, mainly if they relate to interpersonal relationships or everyday behavior.
Areas of application of legal custom
The peculiarities of the legal system that forms the legal basis in our country limit the scope of application of legal custom.
The most relevant legal custom, as noted above, is for:
- Civil legislation. For example, the 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. It is of greatest importance 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, loading of cargo is carried out within the period specified in the contract, and if there is none, then within the period specified at the port.
- Constitutional law and its individual institutions. Constitutional custom in meaning and functions does not differ from the general concept of legal custom, but 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.
Separate references to legal custom in our legal system are present, in particular, in the Land Code. According to them, the division of collective farm households is carried out according to the rules that have developed in a particular area.
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 - a legal norm enshrined in a normative act, contract, 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 and widely used legal source in the country today, but it has its 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.
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Does a behavioral pattern always become a custom?
As mentioned above, custom presupposes the existence of a behavioral pattern. But the latter cannot always act as a rule of behavior, since each person has the opportunity to choose one of the possible courses of action depending on his interests, goals or objectives.
And social norms of customs are formed only if the conditions of stereotyping and familiarity of a specific pattern of human behavior in the current situation are met. If following a custom is natural and does not require a mechanism of coercion or control over implementation, then it becomes a social norm of behavior.
