Community law
The article deals with the problem of conceptualization of the social-normative order, which is not directly related to the activities of the State and is most often denoted in legal science by the terms “legal customs” and “customary law”. This type of law arises in the pre-state period, and then...
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| Format: | Article |
| Language: | English |
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Ural Branch of the Russian Academy of Sciences, Institute of Philosophy and Law
2019-06-01
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| Series: | Антиномии |
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| Summary: | The article deals with the problem of conceptualization of the social-normative
order, which is not directly related to the activities of the State and is most often denoted in legal science by the terms “legal customs” and “customary law”. This type of law arises
in the pre-state period, and then coexists with the system of norms created by the State
for a long historical period; in some regions it continues to play the role of an important
social regulator till now. Analyzing the well-established theory of “customary” law, the
author proposes to look at this concept in a new way, revealing a number of theoretical and
epistemological problems associated with it. It is shown that the most common definition
of customary law is internally controversial; ambiguity and unjustifiably broad application
of this concept impoverishes its content. The idea that the law of pre-state societies and
those state-organized societies, which have retained legal institutions independent from
the state, “consists” exclusively of customs being the result of “multiple repetition” of
certain (more or less random) actions, is incorrect. Applying a fundamentally different
approach to the typology of law based not on formal criteria, but on the nature of the
force that enforces the general bindingness of legal norms, the author introduces and
substantiates the concept of community law. It is shown that this term is most relevant
to denote the law of traditional society that is not based on the state power’s will, as
well as those legal orders that exist in modern societies in parallel with the official law
of the State. Its scope fully corresponds to the set of phenomena it designates, and its
use helps to avoid the contradictions and misleading connotations that arise from the
use of the word combination “customary law”. Based on the factual material provided
by legal history and legal ethnography, the author identifies the main structural and
substantive features of community law that distinguish it from other types of law, and
gives a description of its sources. |
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| ISSN: | 2686-7206 2686-925X |