A custom is a historically arising stereotypical rule of behavior that is reproduced in any social group or society and becomes familiar to its members. The basis of the custom is a detailed pattern of actions in a particular situation, for example, how to relate to members of your family, how to resolve conflicts, how to build business relationships, etc. Outdated customs most often give way over time to new, more relevant modern requirements.
“Custom is older than the law, ” says Ushakov’s dictionary. Let's look at examples of customs and try to determine what they are in different areas of public life.
Does a behavioral pattern always become a custom?
As mentioned above, custom involves a behavioral pattern. But the latter can not always act as a rule of conduct, since each person has the opportunity to choose one of the possible methods of action depending on their interests, goals or objectives.
And social norms of customs are formed only if the conditions of stereotypicity and habituality of a specific sample of human behavior in the current situation are observed. If following a custom is natural and does not require a coercive mechanism or control over implementation, then it becomes a social norm of behavior.
An example of the emergence of legal custom
If custom is a fixed stereotype of behavior that is sanctioned by state power, then it has received legal status.
The formation of legal customs occurs as a result of many years of experience (and by this they differ markedly from written law). For example, the creation of a system of law among the peoples of the Caucasus (belonging to the Russian Federation) was greatly influenced not only by Russian legislation and Sharia norms, but also by centuries-old traditions of highlanders.
These, of course, include the veneration of elders in the family (which, incidentally, is associated with the famous phenomenon of Caucasians longevity). Or, for example, a custom that restricts family contact between people who have different blood relations (a daughter-in-law and her father-in-law cannot even meet by chance) - all these norms of customs have acquired legal status, having been enshrined in law.
Having become legal, customs also receive legal significance: that is, a court or other state body can refer to them as a source of law.
If they are not supported by state power, then they remain at the level of everyday norms of behavior. For example, the custom of blood feud in the Caucasus, officially forbidden, but actually continuing to exist, or the national custom of the Slavs to “wash” every significant event in the family or at work, which the law also so far unsuccessfully fights with.
What is legal custom: an example
By the way, pay attention to the fact that the authorization of a legal custom is carried out in the form of a reference specifically to him, and not to his textual consolidation in the law. If consolidation has taken place, then the source of law is not the custom, but the normative act in which it is reproduced.
An example is the unwritten order, which at one time was worked out by representative authorities: the right to open the first meeting of the newly elected parliament was granted to the oldest deputy. In the new Constitution of the Russian Federation (part 3 of article 99), this custom received legal confirmation and, accordingly, the highest legislative force.
The interaction of law and custom
Separately, it is worth considering the relationship between legal norms and customs existing in any society. How do the legislatively established rules and folk customs inherent in individual social groups or sections of society interact?
Most often, such relationships come down to several basic options.
- Customs that are useful to the state and society are supported by legal norms and conditions are created for their implementation (respect for elders, concern for children, priorities in property relations, etc.).
- Legal norms periodically also serve to supplant customs harmful to society, such as, for example, excessive consumption of alcohol or, for certain nationalities, kalym, blood feud, ransom of the bride 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 relations or everyday behavior.
Examples of legislative consolidation of folk customs
After the custom acquires a legal character and its observance is ensured by the state control mechanism, it receives a more stable position.
An example is the ancient customs characteristic of the communal system in Russian villages. They are before the beginning of the 20th century. lay the basis of legal acts of land use and land relations. All disputes arising in the process of using the allotment were resolved at the village rural gathering, and they appealed to the court only in cases when one of the parties considered that the decision made was unfair.
The principle of solving in court such matters as, for example, crop damage, skewing (violation of the boundary during mowing), sowing of a neighboring wedge, etc. was mainly dictated by the custom to compensate for the damage by equal action or determine its price: “you planted my strip and I will sow yours ", " for the grain harvest, collected from a wedged sowing wedge - 8 kopecks to the owner, and 8.5 - for the work."
The relationship of civil and customary law in Russia
True, in the judicial practice of the Russian Federation, references to customary law are rarely used today, since a stable legal system has not yet been finalized and has not existed for a sufficient time, and the public consciousness continues to change, which prevents the creation of a system of established customs that may be a source of law.
But in the country, the practice of concluding civil law contracts based on observance of ordinary norms is developing intensively, and the formation of corporate codes in this way is also practiced. Custom is a source of law, which is primarily applicable in the field of private law, since there participants in legal relations have a certain freedom of choice.
What are business customs?
As already mentioned above, the legal custom has gained the possibility of the most widespread distribution in civil law. The Civil Code of the Russian Federation determines that the custom of business circulation is an established rule of conduct that is universally applied in a particular area of entrepreneurial activity, not provided for by law and regardless of whether it was recorded in a document or not.
For example, every Monday at enterprises in Russia it is customary to hold meetings, minibuses in most cities of the country are 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 otherwise specified, ladies do not pay for themselves. Such customs can also include a handshake, reinforcing the outcome of any agreement and legal force, which is in the receipt, certified only by signature, etc.
The development of entrepreneurship was the impetus for the emergence of new rules in doing business and business customs. They supplement existing legislative acts in cases where the latter cannot fully satisfy the needs of any areas of business relations. So, in Art. 309 of the Civil Code of the Russian Federation it is mentioned, for example, that the fulfillment of obligations must exactly comply with the requirements of the law or legal acts, and in the absence of such, the customs of business. A similar link has art. 82 contained in the Customs Code of the Russian Federation.
How do multinational customs coexist in Russia?
The peoples inhabiting Russia are many ethnic groups with different cultures, traditions and customs. This provision throughout the history of the state 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 customs norms was different: from following the principle of free development of national minorities to determining criminal liability for decisions based on the customs of the indigenous population.
But in Russia, regardless of the official position, traditional legal systems always existed, sometimes creating a situation of double regulation. By the way, it has survived to the present time, however, having moved to a new level of interaction between positive (state) and traditional law.
