The Concept of Legal Custom in Philosophy, Cultural Studies and Legal Anthropology

The concept of legal custom in these sciences is quite similar and meets the call for the humanitarisation of law. Of the main legal-theoretical or philosophicallegal doctrines (jus naturale, positivism, sociology), the sociological methodology is closest to fulfilling this task. Nevertheless, according to a significant number of authors, it is legal anthropology that is intended to replace (or, in any case, complement) the dogmatism of modern law with the understanding jurisprudence, similar to the understanding sociology by M. Weber, which focuses on understanding the goals and meanings of social and legal action, on those meanings that are not brought from outside but which are experienced by the subject and therefore lie at the very basis of their behaviour. Their interpretation allows us to understand the social and legal action and thereby approach a more complete understanding of social reality as a whole. Without claiming to be exhaustive, we will try to define the concept of legal custom in philosophy, cultural studies, and legal anthropology, taking into account some of the features of each of the methodologies, as well as conduct a comparative analysis and draw some conclusions from it.

Philosophers-researchers, whose recent works we have read, tend to emphasise one main issue in determining the legal custom, namely its ontological status¹. It is possible to attribute the phenomena of customary law to the realm of the Existence or the Due by answering the questions: to what extent they are related to legal existence and to what extent they are related to right – wing ideals. How perfect is the nature of custom, and how real is it? Despite all the external speculative and abstract nature of the way this question is posed, it reflects a long-standing discussion between the two schools of the theory and philosophy of law, namely, the positive and the sociological ones. We will conditionally relate the first of them to the normative approach, which can be understood in two ways (law is specific norms; law is both norms, principles, and models of relations, that is, the Due). We will refer the second one to the sociological approach to law (law is the current system of social and legal relations, living law, that is, the Existence). In the first case, the legal system sets the horizon, the norm of behaviour, sometimes detaching it from reality. In the second case, the current order of things, which is often unfair and illegal in principle, is actually justified. S. V. Biryukov, having conducted a comprehensive socio-philosophical analysis of all aspects of legal reality (legal norm, legal subject, legal relation), comes to the conclusion about the mutual imperfection of the doctrines mentioned, since in all the parts of legal life, there are features of both the Due and the Existence. ‘Both approaches are simplifications of reality. < ... > Lawyers of sociological orientation and sociologists, philosophers, theologians, and anthropologists deprive laws of the aura of objectivity and consider them arbitrary (hence the problems of ‘law on paper’ and ‘obviously unfair law’). In the opinion of traditional lawyers, ‘legists’, legal practice without an evaluation criterion, without the Due also turns out to be arbitrary, criminal and, moreover, literally illegal; in the absence of an external regulator, cases will always be decided ‘in favor of those who are economically and politically strong’². Interpreting this problem in the light of the topic of our research, the question can be formulated as follows. Can a custom which is universally valid in society and regulates significant social relations but which is not sanctioned either in law or in judicial practice (at least in the form of a single court decision) be considered part of law as it is? Is the tacit recognition of custom sufficient for the appearance of a legal norm? As far as we know, there is still no unanimity of opinion here.