Custom is a historically emerged stereotypical rule of behavior that is reproduced in any social group or society and becomes habitual for its members. The custom is based on a detailed pattern of actions in a particular situation, for example, how to treat family members, how to resolve conflicts, how to build business relationships, etc. Outdated customs are most often replaced over time by new ones that are more in line with modern requirements.
"Custom is older than the law," says Ushakov's dictionary. Let's look at examples of customs and try to define what they are in different areas of social life.
Does a pattern always become a habit?
As mentioned above, custom implies a behavioral pattern. But the latter is not alwayscan act as a rule of conduct, since each person has the opportunity to choose one of the possible ways of action, depending on their interests, goals or objectives.
And social norms of customs are formed only if the condition of stereotyping and familiarity of a particular pattern of human behavior in the current situation is observed. 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.
An example of the emergence of a legal custom
If a custom is a fixed stereotype of behavior that is sanctioned by the government, then it has received the status of a legal one.
The formation of legal customs occurs as a result of many years of experience (and in 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 the centuries-old traditions of the highlanders.
These, of course, include the veneration of the elders in the family (which, by the way, is also associated with the famous phenomenon of longevity of Caucasians). Or, for example, a custom that limits contact in the family between people who have different consanguinity (daughter-in-law and father-in-law cannot even meet in the house by chance) - all these norms of customs have acquired the status of legal ones, having been entrenched in legislation.
Becoming legal, customs also acquire legal significance: that is, a court or other state body can refer to themas a source of law.
If they are not supported by the government, they remain at the level of everyday norms of behavior. For example, the custom of blood feud in the Caucasus, officially banned, 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 is also unsuccessfully fighting so far.
What is a legal custom: an example
By the way, pay attention to the fact that the sanctioning of a legal custom is carried out in the form of a reference to it, and not to its textual consolidation in the law. If the consolidation took place, then the source of law becomes not custom, but the normative act in which it is reproduced.
As an example, we can cite the unwritten procedure that was once developed in representative bodies of power: the right to open the first meeting of the newly elected parliament was given 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.
Interaction of law and custom
It is worth considering separately the relationship between legal norms and customs existing in any society. How do legally enshrined rules and folk customs inherent in certain social groups or strata of society interact?
Most often, such relationships come down to a few basic options.
- Useful for the state and societycustoms 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 oust customs that are harmful to society, such as, for example, excessive alcohol consumption or, among certain nationalities, kalym, blood feud, bride price and some Sharia norms. There are customs associated with racial or religious intolerance, which 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.
Examples of legislative consolidation of folk customs
After a 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 typical of the communal system in Russian villages. They are until the beginning of the 20th century. formed the basis of normative-legal acts of land use and land relations. All disputes that arose in the process of using the allotment were resolved at a village village meeting, and they went to court only in cases where one of the parties considered that the decision was unfair.
The principle of deciding in court such issues as damage to crops, skew (violation of the boundary during mowing), sowing of a neighboring wedge, etc. was mainly dictated precisely by the customs to compensatedamage caused by an equal action or determine its price: “you sowed my field, and I will sow yours”, “for a grain harvest harvested from an unauthorized sown wedge - 8 kopecks for the owner, and 8.5 for work.”
Relationship between civil and customary law in Russia
True, in the jurisprudence of the Russian Federation in our time, references to customary law are rarely used, since a stable legal system has not yet been finally formed and has not existed for a sufficient time, and public consciousness continues to change, which prevents the creation of a system established customs that may be a source of law.
But the practice of concluding civil law contracts based on the observance of customary norms is intensively developing in the country, and the formation of corporate codes in this way is also practiced. Custom is a source of law that is applicable primarily in the field of private law, since there the participants in legal relations have a certain freedom of choice.
What are business practices?
As mentioned above, the legal custom has received the possibility of the most widespread in civil law. The Civil Code of the Russian Federation defines a business custom as an established rule of conduct that is universally applied in a particular area of business activity, not provided for by law and regardless of whether it was recorded in some document or not.
For example, every Monday at enterprises in Russia it is customaryhold planning meetings, travel in a fixed-route taxi 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, if this is not agreed upon additionally, the ladies do not pay for themselves. Such customs include a handshake, reinforcing the outcome of any agreement and the legal force that a receipt has, certified only by a signature, etc.
The development of entrepreneurship was the impetus for the emergence of new business rules and business practices. They supplement the existing legislative acts in cases where the latter cannot fully meet the needs of any area of business relations. So, in Art. 309 of the Civil Code of the Russian Federation, for example, it is mentioned 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. There is a similar reference in 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 attitude of the state to the possibility of applying the norms of customs was different: from following the principle of the free development of national minorities to determining criminal liability for making decisionsfrom 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, however, having moved to a new level of interaction between positive (state) and traditional law.
Conclusion
As can be seen from the above, a custom is a stereotype of behavior that may also be a source of law. Customs are modified: some of them are introduced by social practice, some are imposed by certain sections of society, some become obsolete and disappear.
Customs act as a norm that complements the law, as well as indicators of the proper and possible in the life of each member of society, they are created by people, and their application contributes to raising the level of legal culture, as well as the accumulation of experience in relations between citizens of a state striving for inclusive democracy.
