Modern approaches to defining the concept of legal custom

Abstract

The article is devoted to approaches to understanding the concept of legal custom existing in modern legal literature. The correlation between the variety of definitions of legal custom and the pluralism of legal understanding is noted. The positivist influence on the understanding of legal custom through the prism of its definitions is highlighted. It is proposed to classify the definitions of legal custom existing in Ukrainian jurisprudence according to the criterion of the presence of an indication of the sanctioning of the custom by the state. According to the specified criterion, they can be divided into the following groups: definitions indicating state sanctioning; those that do not contain the mentioned requirement; definitions in which state sanctioning of legal custom is considered as its optional (additional) feature.The definition of the concept of legal custom proposed in both scientific and educational literature on the theory and history of law, as well as other subjects (including in textbooks on customary law) was researched. In particular, more than twenty definitions of legal custom and customary law presented in the works of T. Andrusiak, S. Bilostotskyi, O. Ivanovska, M. Koziubra, L. Luts, O. Miroshnychenko, P. Rabinovych, O. Skakun, V. Sukhonos, O. Shevchenko, I. Usenko, O. Vasianovych, O. Yavorska, M. Zhovtobriukh and others. For comparative purposes, the article describes the approaches to understanding customary law of several foreign legal scholars (B. Benson, J. Murphy, A. Preisner) and representatives of related fields of knowledge.It has been found that some definitions of legal custom use terms close in meaning instead of state sanctioning, which, however, are not identical to this phenomenon – for example, social sanction (sanctioning by society, not the state) or state approval. Such approval should probably be understood somewhat more broadly than sanctioning (which is a type of approval), but narrower than recognition. The latter does not always imply approval, which is a positive reaction, unlike recognition, which can be both positive and neutral.