Legal custom: concept, historical aspect, meaning

By legal custom is meant the rule of behavior, formed as a result of regular repetition over a long period of time and resulting from this repetition by a stable rule of law. Of course, such a norm 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 appearance of the law.

The historical aspect of this issue

The legal custom as a source of law was used in ancient times. 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.

Legal custom was the main way of regulating people in the 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 birth of statehood, the legal custom turns into a certain norm of conduct, 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 that can determine 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 contradict the customs they accepted.

Gradually, there is a systematization of legal customs. 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 sanctioning. 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 over time 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 law is 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, legal customs 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. An ordination is something under which very often a legal custom is implied in our time. The habit 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 as they used to do for a long time.

Before the revolution of 17th year, all relations between peasants were regulated 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. During 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).