Customary law is a combination of spontaneously arising customs. These are unwritten rules of conduct authorized by state authorities. The legal system includes only those customs that fulfill the functions of legal norms. That is, they express the interests and will of the politically and economically dominant classes, adapted by the state to the current economic and political conditions.
Customary law - customs that, repeatedly applied, have become generally binding. Due to their long-term use, they have become universally binding. Historically, they were the first of all sources of law. Their observance is ensured by coercive forces of the state.
A variety of customs is business habit. They take shape in various areas of the authorities: executive, parliamentary, judicial, etc.
Customary law, unlike written law, is formed directly in practice. When a custom that has formed in practice does not receive the recognition and protection of the state, it does not acquire a legal nature, remaining simple or everyday. If he is "noticed", recognized and provided with coercive opportunities, he gains legal significance. In this case, the court or other state body may refer to such customs as sources of law.
How does custom become legal?
Not all customs become legal, but only those that:
1. Develop in the process of multiple use (for example, during the life of several generations).
2. Differ in the typical, steady character.
3. They are the legal views of small groups of people, that is, norms are of local importance.
4. Express the morals of this society. Roman lawyers argued that customs are the tacit consent of the people, which is confirmed by ancient norms. Therefore, they have a generally binding character.
History of development
Customs occupy a significant place in such historical monuments as the laws of Hammurabi, Salicheskaya and Russian truth. In the early stages of the emergence and development of statehood, customary law played an important role in the regulatory system.
Over time, in the course of the development of commodity relations, economic relations, the expansion of public administration, the conservatism of customary law became increasingly apparent. The objective needs inherent in a developing society led to the emergence of rulemaking. Customary law gave way to laws and other acts - the “products” of this activity.
What about today?
As one of the sources of law, custom has not disappeared to this day. He just acquired other forms, so to speak, modified. It is actively used in our legal practice. First of all, it occurs in areas of private, public, administrative, constitutional, financial law.
Today, the system of customary law exists in Madagascar, Asia, Africa, Oceania, a number of Latin American and Arab countries. There she found wide application in the process of regulating public relations.
To this day customary law is held in high esteem in Muslim countries. They call him Adat. As a combination of folk customs and legal practice, the common law of Muslims affects all issues related to their everyday life, family and property relations.
But in developed countries he was assigned a secondary role. In countries of continental Europe it is used exclusively in cases stipulated by law. That is, customary law should not contradict the laws, it is understood that it complements them and “revives”. It cannot abolish the instructions of laws.