custom - it emerged historically stereotypical rules of behavior that is reproduced in a particular social group or society becomes accustomed to its members.The customary pattern of actions is detailed in a specific situation, such as how to treat their family members, how to resolve conflicts, how to build a business relationship, etc.Outdated practices often replaced over time with new, more relevant to modern requirements.
«older custom of the law," - so says the dictionary Ushakov.Let's look at examples of customs and try to determine what they are in different areas of public life.
it always becomes a behavioral pattern custom?
As mentioned above, custom requires a behavioral pattern.But the latter can not always play the role of codes of conduct, as everyone has the opportunity to choose one of the possible modes of action, depending on their interests, goals or objectives.
A customary social norms are formed only under conditions of stereotyped and familiarity of a particular sample of human behavior in the situation.If you follow the custom of natural and requires no enforcement mechanism or control over the implementation, it becomes a social norm of behavior.
example of the emergence of legal custom
If custom - is entrenched pattern of behavior, which is authorized by the state authority - hence, he got legal status.
Formation of legal practices is the result of years of experience (and that they are significantly different from the written law).For example, to create a legal system among the peoples of the Caucasus (belonging to the Russian Federation) has had a tremendous impact not only Russian law and the norms of Sharia, and centuries-old traditions of the highlanders.
These certainly include respect for elders in the family (with which, among other things, attributed the famous phenomenon of longevity of Caucasians).Or, for example, the custom in the family restricts contact between people of different blood relationship (daughter-in-law to the house can not meet even accidentally) - all these norms have acquired the status of customary law, entrenched in the legislation.
becoming legal, customs and get legal value: that is, the court or other public authority may refer to them as a source of law.
If they are not supported by the state authorities, it remains at the level of domestic standards of conduct.For example, the custom of blood feud in the Caucasus, is officially banned, but the fact remains, or national custom of the Slavs "wash" every significant event in the family or at work, which is also struggling unsuccessfully law.
What is the legal custom:
example of the way, please note that the authorization of legal custom is carried out in the form of sending it to him, and not to its textual enshrined in law.If the consolidation took place, the source of law becomes custom and regulation, in which he played.
Examples are the unwritten order, which in its time was developed in representative government: the right to open the first session of the newly elected parliament was given by the oldest deputy.The new Constitution of the Russian Federation (Art. 3 of Art. 99), this practice was legal confirmation and, accordingly, the highest legal force.
Interaction of law and custom
should also consider the relationship between legal norms and existing practices in any society.As a legally enforceable right to interact and folk customs inherent in certain social groups or segments of society?
Most of these relationships are reduced to a few basic options.
- useful for the state and society are supported by customs and legal rules for their implementation, the conditions (respect for elders, care for children, the priorities in the property relations, and so on. N.).
- Legal standards periodically and serve to displace harmful to society customs, such as, for example, excessive alcohol consumption, or for individual nations, dowry, vendetta, bride and some of the Shariah.There are customs related to racial or religious intolerance, which are naturally cut off state.
- In some cases, legal norms are indifferent to the customs, primarily as they relate to interpersonal relations or consumer behavior.
Examples legislative recognition of folk customs
Once the custom acquires a legal nature and compliance is ensured through state control mechanism, it gets more stable position.
As an example, the ancient customs, typical of communal system in Russian villages.They have until the early 20th century.were the basis of regulatory legal acts of land use and land relations.All disputes arising during the use of allotments were decided on a rustic village meeting, and appealed to the court only in cases where one of the parties considered that the decision is unfair.
principle a court of law such, for example, issues such as damage by cattle crops, skew (violation of boundaries while mowing), sowing the adjacent wedge et al., It was mainly dictated it custom to reimburse damages equal to the action, or to determine its worth"You sowed my lane, and I will sow thy", "for the harvest of grain harvested from illegally seeded wedge - 8 host stacks, and 8.5 - for the job."
relationship of civil and common law in Russia
However, in the jurisprudence of the Russian Federation nowadays rarely used references to customary law, as is still not developed completely and not lasted long enough stable legal system and public consciousness continueschange, which prevents the creation of well-established practices, which can be a source of law.
But the country's rapidly developing practice of concluding civil contracts, based on respect for customary rules and practices and in this way the formation of corporate codes.Custom - a source of law, which is applicable primarily in the area of private law, as there are participants in legal relations have a certain freedom of choice.
What business practices?
As mentioned above, the legal custom was perhaps the most widely spread in the civil law.Civil Code specifies that the custom of business turnover - a well-established rule of conduct widely applied in a particular area of business activity, not provided for by law and regardless of whether it is recorded in any document or not.
example, every Monday at the enterprises in Russia decided to hold planning meetings, travel by taxi in most cities pay directly at the entrance, and in Irkutsk, on the contrary - when you exit or during the negotiations taking place in a cafe or restaurant, unless otherwiseAdditionally, the ladies do not pay for themselves.These habits can be attributed, and a handshake, reinforcing the result of any agreement and the validity of which have a receipt, signed and certified by a m. P.
Enterprise development was the impetus for the emergence of new rules in the conduct of business and business practices.They complement the existing legislation in those cases where the latter can not fully meet the needs of any business relationships spheres.For example, in Art.309 of the Civil Code mentioned, for example, that the implementation of the commitments must exactly match the requirements of the law or regulations, or in the absence thereof - customs of the business turnover.A similar link has art.82 contained in the Customs Code of the Russian Federation.
As multinational traditions coexist in Russia?
peoples living in Russia, represent many ethnic groups with different cultures, traditions and customs.This position throughout the history of the state dictated the need to take into account the national factor in the legal regulation.
At various times, the state's attitude to the possibility of the application of the customs were different from following the principle of the free development of national minorities to the determination of criminal responsibility for the decisions emanating from the customs of the indigenous population.
But in Russia, regardless of official position, there are always the traditional legal system, creating a temporary situation of dual regulation.By the way, it has been preserved until the present time, however, going to a new level of interaction between the positive (State) and customary law.
Conclusion As can be seen from the above, the custom - a pattern of behavior that can be a source of law.Customs modified: some social practice is introduced, some - are imposed on certain sectors of society, some - become obsolete and disappear.
Customs act as standards, complementing the law, as well as pointers proper and possible in the life of every member of society, they are created by people, and their use contributes to raising the level of legal culture, as well as the accumulation of experience of relations between the citizens of the state, seeking to establish a full democracy.
