Under customary, as a kind of social norm, the rule of behavior that has established on the basis of the constant and uniform repetition of these actual relations has become familiar and recognized by society. Legal custom becomes after the official approval of the state.
Legal custom - a common behavior rule, respected in established cases of entities of law due to feasibility, tradition or habits and provided by state coercion measures.
Legal custom is a historically first source of law. Legal systems, which were based on certainly systematized customs, received the name of customary law systems. The oldest monuments of the usual right are customs of customs - the laws of Hammurapi, the laws of Manu, Russian True, etc.
Legal custom is not directly fixed in the current legislation. However, to apply the custom as a legal norm regulating a specific social relation, is needed to refer to regulatory acts on the admissibility of the application of legal custom.
The right is one of the types of regulators of public relations; The system of communicative, formally-defined, guaranteed rules for the behavior regulating public relations.
37. Legal precedent as a source of law.
Legal precedent as a source of law is divided into judicial and administrative precedent. The judicial precedent is a judicial decision on a specific case that matters the general rule in resolving all similar cases. The judicial precedent, as evidenced by foreign experience, contributes to overcoming contradictions in judicial practice, replenishing gaps in legislation, ensuring the sustainability of the rule of law.
In the Russian state, the judicial precedent did not find this dissemination for the reason that our legal system is more focused on the normative concept of legalism, which is based on the legal norm, while the sociological concept of the right implies that the right of law is the court decision . In recent years, the theory of law and state began to establish the concept of legal imaging in all three main schools of law: natural-legal, normative, sociological. Therefore, the expansion of the right of law due to court decisions was an urgent problem. Practical steps in this direction have already been made. A generally accepted point of view is the recognition of the right of decisions of the Constitutional Court of the Russian Federation. This is due to the fact that the decisions made by the Constitutional Court of the Russian Federation are distinguished by the following properties: compulsory for all representative, executive and judicial bodies of public authorities, local governments, enterprises, organizations, institutions, officials, citizens and their associations; They are final and not subject to appeal; come into force immediately after their proclamation; subject to immediate publication in official publications.
A number of scientists consider the sources of law and court decisions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, justifying their position by the following arguments: first, in accordance with Art. 126 and 127 of the Constitution of the Russian Federation. These courts of clarification on judicial practice, which are mandatory for lower vessels and other law enforcement agencies; Secondly, its explanations of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are appropriately executed; Thirdly, there is a developed procedure for making court decisions; Fourthly, the court decisions of the Supreme Arbitration and Supreme Courts of the Russian Federation are published in relevant official publications; Fifth, the Higher Arbitration and Supreme Courts of the Russian Federation, as well as the Constitutional Court of the Russian Federation, in accordance with Art. 104 of the Constitution of the Russian Federation owns the right of legislative initiative on their management. This increases their importance as law-making bodies. In addition, in Art. 15 The Constitution of the Russian Federation draws attention to such sources of law as the Constitution of the Russian Federation, laws, regulatory legal acts and other legal acts to which judicial and administrative decisions are.
38. Legal doctrine as a source of law.
Legal doctrine- Teaching, scientific theory, system of views and principles of lawyers' scientists. The legal doctrine is known as a source of law in the early stages of the development of law. In 426, N.E. In Rome, a special law was adopted, according to which the provisions of the works of the most well-known lawyers - Papinian, Guy, Paul, Ulpiana and Modestin were confirmed by binding judges. More precisely, already starting with the Roman Emperor of August, the work specified by lawyers was granted jus Respondendi.. This meant that the decision on the case of the judge could take out not only on the basis of laws acting at the time, but also referring to the statements of these lawyers. Nothing like the subsequent era of the development of law did not know. At the same time, the legal doctrine as a source of right is also known to modern legal systems. In particular, the current Civil Code of Switzerland contains the right to law enforcement authorities in cases of a gap in the legislation to solve the dispute under consideration, based on the provisions of the works of the most well-known civil law specialists. For the Muslim legal system, the legal doctrine and now admits almost the most important source of law. Projects of law scientists, according to the leading Muslim law specialists, "are the only source of law."
The legal system of our country does not recognize the legal doctrine as an official source of law. However, there are hardly at least one self-respecting lawyer, whether it is an investigator, a prosecutor or a judge, which, if necessary, the qualifications of a crime, differing in a certain degree of complexity and the adoption of a procedural solution would not fail to look into the comment to the Criminal Code or Code - informal sources rights.
39. Regulatory contract as a source of law.
Regulatory contract - One of the types of sources of law is an agreement (as a rule, at least one of the Parties in which the state or part of the state acts), from which the general obligatory rules of behavior (the norms of law) follow.
Regulatory contracts are mandatory for a numerous and formal-indefinite circle of persons, are designed for repeated use, they act regardless of whether the specific legal relations arose or ceased.
Signs of the regulatory agreement:
The legal framework of regulatory contracts is in the current legislation. Such contracts fulfill an obvious function, complementing and specifying the current legislation.
The regulatory contract always assumes the participation of the state body. The higher the place in the management hierarchy is the last, the higher the legal force of the contract.
Regulatory contracts are in public interests, their goal is to achieve a common good, that is, public goals are dominated here.
Regulatory contracts contain rules regulating behavior not only (and sometimes not so much) of direct participants in the contract, but also other subjects. Therefore, such an agreement does not close within the system of Contracting Parties, but also has an external legal impact.
Numerous, uncertainty of addressees, that is, those subjects on which the legal effect of the contract is directed.
The contractual norms are calculated for long-term effects and repeated use.
Changes or refusal to implement contractual conditions unilaterally not allowed. Norms about insurmountable force (force majeure) are not applicable here.
Regulatory contracts serve as a legal basis for the publication of administrative acts, the conclusions of individual contracts, committing other legally significant actions. This distinguishes them from the contracts of an individual character establishing (changing, terminating) specific legal relations.
Examples of regulatory contracts: international treaties; contracts between the Russian Federation and the subjects of the Russian Federation to delimit the powers and objects of reference; Some interdepartmental treaties; Collective contracts.
40. Regulatory act as a source of law.
NPA is the powerful prescription of state bodies - subjects of law-conducting, which establishes, changes or cancels the norms of law (law, code, decree, instruction, etc.).
Legal custom is historically the first source of law that regulates relations during the formation of the state. In general, under custom, the rule of behavior that has established on the basis of the constant and uniform repetition of these actual relations is understood. Legal custom becomes after the official approval of the state receives. The major legislative monuments of the past (the laws of Manu, Russian True) have come down to us - these are collections of legal customs.
The nature of the legal custom is characterized by the following features. He, as a rule, is local in nature, i.e. Used within the framework of relatively small public groups of people. Legal customs are often closely related to religion. In India, for example, ordinary law enters the structure of the Hindu law.
It should not be assumed that legal customs - an archaic phenomenon that has currently lost any meaning. As evidenced by the latest research, legal customs are widely used in regulating public relations (especially land, hereditary, family-marital) in Africa, Asia, Latin America. Separate customs included in the ancient laws of a particular country act unchanged so far.
For example, in Thailand to this day there is a law that determines the conditions for divorce spouses developed even in the process of forming customs. Husband and wife in the presence of witnesses simultaneously ignite on the candle of the same sizes. That of the spouses whose candle will be the first to leave the house without taking with him any of the property.
Legal custom - This is a custom, the application of which is ensured by the sanction of the state. It should be distinguished from the custom, which is a moral norm, a religious rule, morals. Calusive custom can be carried out by perceiving his judicial, arbitration or administrative practice. The decision of the state body in which the custom is applied is recognized as a relevant state and can be forced.
The custom of nature is conservative. It enshrines what has developed as a result of a long social practice. Often, the custom reflects the philistine prejudices, racial and religious intolerance, historically established inequality of floors. Such customs for the purpose of social security and personal well-being of citizens, the state is quite justified forbidden.
The state to various customs is different: one prohibits, others approve and develops. More or less long-term existence of legal customs can be expected only in some areas of legal regulation, for example, when regulating foreign trade. It is known only by several articles of the trade navigation code, which takes into account the action of the customs of the port or international customs of the navigation of Art. 134 KTM of the Russian Federation establishes: "The term during which the goods must be immersed on the vessel is determined by the agreement of the parties, and in the absence of such an agreement - deadlines, usually accepted in the loading port." In other acts, there are sometimes references to business customs. It should be noted that the content of the usual norm does not receive direct textual consolidation in law or another regulatory act. Hardly right and S.L. Zivs, arguing that our legislation does not know the legal custom at all. In the history of Russian law, regulatory acts existed, which contain direct reference to custom, such references treated, for example, to the order of land use in the 20s of the 20th century.
The state authorizes only those customs that do not contradict are consistent with its policies, with the moral foundations of the established lifestyle. Customs, contrary to state politics, universal morality, are usually prohibited by law. For example, until recently, in the Criminal Code of the RSFSR (acted from 1.01.61 to 1.01.97), there was chapter 9, which provided for the responsibility for crimes that constitute the remnants of local customs. Article 233 of the Criminal Code of the RSFSR, in particular, provided for a sentence in the form of imprisonment for up to 2 years for the abduction of a woman for marriage. In the current Criminal Code of the Russian Federation, which entered into force from 1.01.97, there is no such article. But there is Article 126, which provides for the harsh responsibility for the abduction of a person, without referring to the remnants.
The development of law in Russia is unlikely to follow the path of officially force exclusion from the customer system. Apparently, soon we should expect the emergence of new market customs, which will regulate relations before and together with legal norms.
In international law, the custom represents not only the form of expression of traditional norms, but also an important way to create new legal obligatory rules of the behavior of states in those repaid areas of interstate relations that require legal regulation. It is a modern and actively functioning source of law. Therefore, it should be borne in mind that the concept of custom as applies in international practice and is considered in the doctrine of international law, has little common with the concepts of customs based on the features of this source in domestic, national law systems.
There are customs who have received special recognition in international relations, such as diplomatic etiquette. In 5-11 centuries. In Europe, the custom played a big role, as he was recognized as the royal and church courts, and replaced with monetary reimbursions for the damage to the damage that had previously had a bloody fighting, testing with fire or water, oaths.
It must be said that the importance and prevalence of customary law in medieval Europe and served as the basis for the formation of a historical school right. Here, where does the idea that the legislator as a naturalist only reveals and formulates the legal provisions, and formulates the legal provisions, and does not create them to be expressed by the early K. Marx.
And with the theoretical, and from practical points of view, it is necessary to distinguish a custom as the process of creating the norms of international law from the custom - the result of this process, i.e. legally binding rules of behavior that has established in interstate practice.
It should not be assumed that legal customs - an archaic phenomenon that has currently lost any meaning. As evidenced by the latest research, legal customs are widely used in regulating public relations (especially land, hereditary, family-marital) in Africa, Asia, Latin America. Separate customs included in the ancient laws of a particular country act unchanged so far. For example, in Thailand to this day, there is a law that determines the conditions for divorce spouses developed even in the process of forming customs. Husband and wife in the presence of witnesses simultaneously ignite on the candle of the same sizes. That of the spouses whose candle will be the first to leave the house without taking with him any of the property. At the same time, in Kenya, in parallel, there is a norm of English law in the family-marital sphere, which remained since the colony, and ancient tribal customs in force in the same sphere of legal relations. And, if conflicts arise between these two legal systems, what provisions are applied, and which is not, the court decides.
Legal custom is the acquisition of the official legal force in society by a simple, non-law, by using it to solve a specific case in the law enforcement state body (for example, in court). The difference between the right custom and the judicial precedent is that a well-known custom is used. Form of expression - a court decision. Each time this custom needs its confirmation, refers not to solving the previous court, but to the appropriate custom. This source of right has a subsidiary (complementary) value.
In Russia, legal custom is used limited. For example, in the maritime right, where for each seaport, the time of centuries are installed their customs. Legal customs have the greatest distribution in civil, family, agricultural law, as well as in international law, in particular, in foreign trade turnover. Customs, as it were, the absence in the legislation of one or another norm.
However, there are legal systems, where the role of legal custom and generally the customs are large enough. These include the usual right of African states, where the customs are governed by marriage-family, land relations and relations in the field of inheritance. These traditional relationships and today are regulated by the norms of customary law, and the judicial authorities solve this kind of disputes based on local customs, giving them a legal, the state protected in nature.
Most often legal customs as sources of law were used in antiquity and in the Middle Ages, forming the so-called customary law. The laws of the XII table in ancient Rome are a record of customary law. In the modern world, in developed countries, this type of sources has no widespread right, but is not fully excluded. For example, in Art. 5 GK is enshrined that in carrying out business activities, the use of business turnover is allowed as the established and widely applied rules of conduct, even if they are not recorded in state acts.
Principle of law - The fundamental idea of \u200b\u200blaw (justice, democracy, the presumption of innocence, caused by the harm must be reimbursed, etc.). Principles of law are used in solving specific cases if it is impossible to find suitable legal norms for this case. The principles of law as a whole or its industries themselves are formulated in the constitutions of states, sectoral legislation, international legal treaties. Therefore, the use of the principles of law to a specific case is not based only on the legal consciousness of the law enforcement, but also on existing constitutional and ordinary laws, where these principles are regulatoryly formulated.
Legal doctrine - This is a system of views, ideas about the right, about its principles outlined by the recognized legal authorities. Legal doctrine is theoretical provisions, the scientific theories of a legal nature, which formulates the most important principles, legal categories, concepts, exploration scientists. In some countries, the legal doctrine acts as a source of law. Thus, in the English courts, when resolving specific cases, it is customary to refer to the works of famous lawyers in justifying the adopted court decision. Similar practice exists in some Muslim states. (So, the main source of Muslim law is the Islamic Religious Legal Doctrine).
In Russia, scientific comments comes to various codes are widely used in legal practice, but they apply as a reference, consulting material, referred to the commentary in the resolution of litigation and with the substantiation of decisions made it is impossible. The role of legal doctrine as a life source of law is manifested in the fact that it creates concepts and structures that the law-conducting body enjoys. It is the legal science that produces techniques and methods of establishing, interpretation and realization of law. In addition, the Creator Creators themselves cannot be free from the influence of legal doctrines: more or less consciously, but they have to become on the side of this or that legal concept, to perceive its proposals and recommendations.
It is impossible not to say that in domestic history, some legal structures created by lawyers were also also enshrined in the legal system. For example, the creativity of an outstanding scientist - A.V. Venediktova, which created the design of the "Operational Economic Department", a distinguished state of state and enterprises in the socialist form of the economy.
Source of law there is its external form. This is a combination of ways to form, peculiar documenting of state will.
Under form of the Nrava it is understood as the objectified consolidation and manifestation of the content of the right in special acts of state bodies (decisions of courts, contracts, customs, etc.).
The source of law is most often the official state document (law, decree, decree, etc.), which are fixed by the norms of law.
These forms of expression give us the opportunity to know and feel the right of law as a social institution.
Legal custom:
the determined rule, the application of which is ensured by the sanction of the state;
state authorized by the rule of behavior, approved in society as a simple custom as a result of long-lasting repeatability and has become a tradition;
the state authorized by the state, which developed as a result of repeated repetition by people of certain actions, due to which the sustainable norm (for example, the customs of the business turnover (part 1 of Article 5 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation); Consular Statutes in international law );
the rule of behavior that established due to its actual use for a long time and recognized by the state as a common one.
The customs were the main source of law in the early stages of development of the slave-ownership. Known, for example, such concurrents, as a Talion (causing the guilty of the same harm, which was inflicted); Vira (penalty for killing a person).
As the centralization and strengthening of state power, the scope of the application is narrowed. It is either completely displaced as a regulator of public relations, or integrates to national law systems. The custom included in the regulatory legal act or the basis of the judicial precedent is becoming part of legislation or case law and ceases to be a legal source of law.
The main features of legal custom are related to the elevation and spontaneity of the occurrence; Rituality, casuality, traditional. It is hardly true to believe that legal customs are archaic, which is currently losing importance. On the contrary, legal customs are now widely used in regulating various social relations (land, hereditary, marital family) in Africa, Asia, Latin America. Some customs adopted in antiquity act unchanged so far.
Features of legal customs
As a rule, wears a local character, i.e. it is used within the framework of relatively small groups of people.
Often closely connected with religion.
3: Distinguished by the rule of behavior, long-term and uniform character of its observance.
Often the essence of the custom is drawn up as a proverb, saying, aphorism
Business customers - The rules of conduct that established in a particular area of \u200b\u200beconomic activities and are largely technical (trade customers, custom of this port).
The usual business turnover is recognized by the current and widely used in any field of entrepreneurial activity, which is not provided for by law, regardless of , is it fixed in any document (Art. 5 of the Civil Code of the Russian Federation).
Gentlemen Agreement - an interpretation agreement established "under honestly".
Legal precedent - This is a decision of jurisdictional (judicial or administrative) bodies on a specific case, which is subsequently adopted for a general binding rule when considering all similar cases (distinguish the judicial and administrative precedent).
Legal Science (Legal Doctrine) Heself acts as a regulator of social relations with methodologically balanced positions. It should be noted that, for example, in modern Russia, the legal doctrine is not a source of law in the traditional understanding of it. However, in ancient Rome, the statements of such lawyers as Guy, Paul, Papinian, Ulpian, became part of the regulatory legal acts: Codes, judicial precedents. A vivid example of this is the code of Justinian (VI century. N. E.), some of which - Digesites were the provisions of the named lawyers together with the institutions of the emperor of Justinian.
In the European Medieval Legal History, glossators played a prominent role (interpreters, commentators), and then the post harvesters who complemented the Roman legal experience in the economy, international relations and other parties to the life of the feudal society.
Legal doctrine is quite widely used in the English legal family and in some Muslim states, where the court, when resolving specific cases, can refer to the works of well-known lawyers and justify their decisions made by their views.
OUTDENCE- Presentations of people about the right; It is important in the formation of a new legal system and liquidation (abolition) of the old.
The proceedings of both civilians and criminal cases take place in the righters of the judicial charters of 1864 in the post-hour, since those are not canceled by the decrees of the Central Executive Committee of the Workers, Soldiers and Peasant Deputies and the Council of People's Commissars and does not contradict the revolutionary legal consciousness of workers of classes, overtrieving exploiters (Art. 8 Decree of the All-Russian Central Executive Committee and SNA of February 15, 1918 No. 2 "On Court").
Regulatory contracts- these are joint legal acts expressing the mutual willing of law-leading bodies, counter-making on themselves by each of them legal duties; These are such documents on the agreements of the Parties on the rights and obligations, their circle and sequences that enshrine the voluntariness of the fulfillment of adopted obligations (collective agreements in labor law; international treaties).
Under the regulatory agreement means a voluntary agreement of two or more of the parties, changing or canceling mutual rights and obligations expressed in legal norms. As parties, or subjects, a state and other legal entities are in the contract with rulemaking powers on a delegated or competence-based basis.
Religious standards -the rules of behavior that proceed from their ideas about God as the Creator of the Universe and the fundamental principles of the human dormitory (about it more. See the topic 4 "Legal Systems of Modernity", section on religious and traditional legal systems).
ABOUT 
principles of law- General starts of a legal system. Thus, lawyers of countries of both continental and common law in the absence of a legislative norm, precedent or custom may refer to the principles of justice, good conscience, social orientation of law.
The principles of law are assigned to the number of international law. Thus, Article 38 of the status of the International Court of Justice declares: "A court who is obliged to solve his disputes transferred to him on the basis of international law applies ... General principles of law recognized by civilized nations" (for example, a special law cancels the action of a general law, the later law is canceled earlier ).
Regulatory legal act- This is the result of the lawwood of the competent state body to develop the rule of law. It is designed to regulate in advance of an unlimited number of cases and acts continuously; It is recognized as the main form of law in all modern civilizations.
Why did this form be created before the rest? The right developed gradually and slowly. It originated in ancient society, where for a long time the system for regulating all types of social relations persisted in the form of centuries-old traditions. They were performed simply by continuity, according to the principle "how my father did, I will do that." These traditions were sacred. Their violation entailed expulsion from the community, which means that inevitable death, because in those days a person could not exist alone. Gradually, commodity-money relations appeared with the development of society, and simultaneously with them - and the need to regulate them. In order to preserve the delicacy of the prescriptions that were created at this time, the norms were attached to the realities, that is, religious, ritual character. And then a natural question arises. Are all traditions, moral standards are a legal custom? To answer, consider the features of this form of law.
Features of legal customsHow does the legal custom differ from other sources of law? First, it is always established by the state itself as a result of the selection of the best ways of behavior in any situations. Secondly, the legal custom characterizes such a feature as particularism. Thirdly, this kind of rules remained orally, and only in later stages began to practice their recording. These characteristics are distinguished by legal custom as a source of right from other forms of conservation of regulatory prescriptions.
The emergence of this form of law occurred by such a scenario. At first there were completely new, unlike former, social relations. People did not know how to act in such an unusual situation. But the most brave representative of the community determinedly behaved in new relationships. After that, the way of the behavior he demonstrated is consistent with the consistency in the event that society considered his act profitable and reasonable.
Stages of development of legal custom
Legal custom As a form of law has passed certain stages in its development. Initially, he was various ritual actions and was not even comprehended by members of society. Next was followed by clarification of the value of the custom, and he began to be expressed by proverbs and sayings. The following stage of development of this form of law was reflected in fairy tales, verses, epics, legends and songs. And finally, the last stage of the preservation of the custom was his recording.
Forgetting legal custom
Gradually, this source of right lost its original, special significance in the legal system. This was caused by the fact that legal custom is difficult to change, it is characterized by conservatism, while social relations are changing dynamically with the development of society. The second circumstance, which caused the oblivion of legal custom, is the strengthening of the state's legislative role, which it became necessary to qualify for the role of the only Creator of Law. However, this form of law is currently preserved in many countries of Africa, Oceania and Latin America, as well as in Muslim countries.
The conditions under which the custom becomes legal as a result of its recognition
Customs recognized as legal to be protected by the state, and state coercion measures are applied to their violator, which allows them to equate them to regulatory acts. At the same time, supporting non-lawn customs is based only on public opinion, that is, any legally significant consequences for violators do not occur in this case.
According to the established rules, the following requirements must be followed to recognize the customs:
- Actions should be based on legally significant beliefs and principles.
- The custom should be reasonable and fair.
- Actions should be constantly repeated over a long time interval, i.e. become truly usual.
According to the provisions of Art. 5 of the Civil Code of the Russian Federation to customs should include a rule of behavior that has long been developed and is widely used in practice. It does not have a significant approval by its legislation under any regulatory act or document.
In the event of a collision, when applying the custom with the current law or terms of the agreement between the counterparties, the advantage has a regulatory document and a contract. This condition is directly provided in part 2 of Art. 5 GK of the Russian Federation.
Previously, the concept of "custom of business turnover" was valid, which significantly reduced the scope of the current behavior rules. The use of the current term allows the state not only to authorize the rules that have developed in business activities, but also use them in other fields.
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Types and scope of legal practices in legal practice
The rules of conduct applied in legal practice depending on the territory of their occurrence and the procedure for use should be divided into the following types:
- international;
- national;
- regional;
- local.
In addition to the specified classification of customs, there is also a distinction on the areas of application (for example, trade, financial, port and other).
We give examples of legal customs:
- According to Art. 130 of the Code of Commercial Warming of the Russian Federation of April 30, 1989 No. 81 (hereinafter referred to as KTM) The provision of a vessel for loading goods can be determined by port custom.
- According to Art. 131 KTM counterparts can be determined by port customs.
- According to Art. 132 KTM fee for a simple vessel in the port can be determined on the basis of the established customs.
- According to Art. 309 of the Civil Code of the Russian Federation liabilities should be executed according to customs, that is, the established procedure for their execution, unless otherwise follows from the law and the contract.
It should be noted that the established rules of behavior should be considered only as an addition to the current law standards. Their main goal is to regulate the relationship between counterparties in the absence of direct regulation of those in the law. In this case, the essence of customs is that they are united for all, represent a certain system of action, the various interpretation of which is unacceptable.