Антиномии (Jun 2019)
Community law
Abstract
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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