Legal custom as a legal source of family common (case) law

This article deals with a legal custom as a legal source of the family of common (case) law and some issues, including principal ones. The author believes that the approach, which at first considers the custom as such, its characteristics, taking into account the fact that the custom itself and legal custom have the same content, is logically and methodologically correct. The work points out such a characteristic of legal custom, as compulsoriness, in the absence of which it would be logically impossible to allocate the appropriate category as a source of law. It is emphasized that the source of its obligation is not in state coercion, but in the recognition by society, even if it is the recognition by the population of a certain area, and not of the state as a whole. State coercion should be considered no more than proof that legal custom exists. The work pays attention to such criteria (requirements) developed by judicial practice and summarized by Blackstone in 1765 as antiquity, continuity, reasonableness, certainty and clarity, normativity, locality (territorial limitations) and the naturalness of origin. Their content is shown by examples of specific legal cases. Concerning the problem of sanctioning customs into legal customs, the author's position is that the only form of sanctioning the custom is the reference to it in the law. The article also provides another few examples of legal customs in various branches of the law of the above legal family. The author pays attention to the fact that, though legal customs take a small place in the system of sources of law of the legal family of common (case) law, they should not be underestimated, bearing in mind the customs in large-scale regions or country-wide (trade navigation customs, port customs, international customs etc.). It is noteworthy that when analyzing the problems of legal custom, the author addresses the problems of legal consciousness twice. First, when speaking about sanctioning custom, he emphasizes that if we take into account the notions of law as a set of legal norms established or sanctioned by the state, it must be recognized that legal custom may arise in no other way but as sanctioned by the state. If the basis for considering the legal nature and nature of the legal custom is a sociological type of understanding of the law, the process of turning a simple custom into a legal one is not connected with state activities. Second, the recognition of broad possibilities of a modern legal custom is a characteristic feature of Anglo-American jurisprudence, which is related to the peculiarities of a realistic or behavioristic understanding of the law that is adhered to by most American and British lawyers.

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