Legal custom: concept, historical aspect, meaning
Under the legal custom mean the rulebehavior that has developed as a result of regular recurrence over a long period of time, and as a result of this repetition a stable rule of law. Of course, such a rule must necessarily be sanctioned by the state. Violation of the legal custom should not go unpunished, because order in society can not be created if people do not perceive this source of law as equal to the rest. Care for the elderly, respect and obedience to the father of the family, the duty to protect one's family - these and many other legal customs appeared long before the law appeared.
The historical aspect of this issue
The legal custom as a source of law was usedback in antiquity. It has long been known that it exists even longer than the law. Each people gradually accumulated and improved their legal customs, creating from them the so-called customary law.
The legal custom was the main wayregulation of people in primitive communal and clan systems. His offenders at that time always carried punishment. In some cases, expulsion or even execution was allowed.
At the time of the emergence of statehood, the legalthe custom turns into a certain norm of behavior, the observance of which guarantees a normal life not only for society, but for the individual himself. Over time, permits and prohibitions that were contained in legal practices are replaced by norms capable of determining the subjective duties of each member of society. The first laws were created precisely from customs. Another non-violent way is impossible, since people at that time would not voluntarily comply with the rules that are contrary to the customs they adopt.
Gradually there is a systematization of legalcustoms. It is worth noting that the legal custom as a form of law finally became firmly established when the state made conclusions that there is a need for its authorization. In other words, for violation of the legal custom, a person answered not just before society, but before the state, no matter how serious his offense was. As an example, one can cite such a legal custom that concerned the upbringing of children: parents were always responsible for the fact that their child is full and healthy, but eventually they became responsible for this not only for themselves, their children and relatives, but also before law.
Legal custom and jurisprudence
Some leading lawyers of our time believe,that the legal custom rises above other sources of law. They explain this by the fact that the legislative, as well as the judiciary, is guided in its activities by precisely those norms that have been formed for centuries.
In legal positivism, this source of lawis perceived as something that has become obsolete, as something worthy of attention, but not enough to erect it above laws and other normative legal acts.
In reality, in our time, legalcustoms are used much less often than other sources of law. However, they are absolutely irreplaceable in those issues that are incapable of solving legislation (gaps in legislation).
Legal customs today
Today they are understood very ambiguously. Ordinance is something under which very often in our time legal custom is meant. The custom is indispensable in the performance of various trade transactions and small household contracts, as well as in other similar situations. It makes our life easier, because people do not have to search for the necessary legal acts to do some kind of actions, they can turn to someone for help, they just act the way they used to do for a long time.
Before the revolution of the 17th year, all relations between theThe peasants were regulated precisely by legal customs (usages). An example is the way the peasants made different deals, how they divided the property among relatives or chose spouses for their children. In the Soviet era, authorities treated this source of law negatively, but it still existed. In modern Russia, the legal custom is poorly developed, but legislation refers specifically to it in certain situations (for example, certain aspects of entrepreneurial activity).