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§ 1. The custom theory in the romano-German legal doctrine

Let's begin custom research as forms of the romano-German legal family with consideration of its theory in the romano-German legal doctrine. For this purpose it is necessary to realise, that an in itself common law of the states concerning the given legal family, ambiguously, and following layers of the European right have made on it essential impact:

1) the Roman Law (including the Roman customs);

2) a common law of barbarous tribes;

3) the city (Magdebourg) right (including various customs of medieval cities);

4) the christian law (including initial customs).

Common law development in the states entering into the romano-German legal family, has been connected with continuous changes of political, economic, social, cultural conditions, therefore the custom too should vary and quickly adapt for a new way of life. On the other hand, existence and common law application promoted stabilisation of certain kinds of public relations, for example, allowed to fix trade turnover rules, morehodstva, the conclusions of contracts, executions of obligations, introductions into marriage, etc. Mutual relations of statesmen, church hierarches, townspeople and in general members of all social strata during an epoch of the European Middle Ages were regulated by a common law. Besides, in the Middle Ages public (and in a considerable measure and private) the life passed according to the certain rules resulting from a common law, and also contained a considerable quantity of the various rituals also having usually-legal origin and regulated by conventional rules. Divine services concerned those rituals and church festivals, an oath on fidelity to the sovereign, ceremonies age and professional initsiatsii and many other things. People perceived it as a habitual, ordinary course of the things which infringement meant certain problems. The habitual way of life allowed inhabitants of medieval Europe to feel protected in a certain measure. Accordingly, the population agreed with requirements of a common law and executed them voluntary.

Speaking about the custom theory in the romano-German legal doctrine, it is impossible to ignore custom theories in various types pravoponimanija, existing within the limits of the given legal family.

So, according to a number of representatives of the romano-German legal doctrine (including supporters of historical school of the right) the custom represented generation and an embodiment of national spirit and to a certain extent allowed to judge conditions of dwelling of people, their mental features, national priorities etc.

Actually the similar relation to custom and a common law results from the Roman Law - there custom, along with the law, was considered as will of the people. The Roman lawyers believed, that the law and custom possess an identical validity (as their source is uniform - national will). In their opinion, the custom also could change and even to cancel the law. It occurred in following cases:

1) if custom continued to be applied, despite acceptance of the corresponding law, and norm of custom and the law differed on a being (however it did not extend on those cases when the law forbade to apply this or that conventional rule);

2) if the law has been accepted, but actually was not applied. Then it was a question already of usually-legal practice of non-use of this or that legislative norm,

Accordingly, it proved the inefficiency and came under to essential change or cancellation.

In jusnaturalizme the approach, according to which «is developed... Government commands, no less than custom command, can have values and force of the right only until in a society there is a belief in necessity to submit power while the custom serves as belief expression».1 Supporters jusnaturalizma approved, that the custom represents historically the first form of the right and existed even before state formation. Mononorms operating in a primitive society, according to followers estestvennopravovoj theories, were conventional rules, and their observance was provided it come, a tribe or other human generality, hence, the state authorisation of customs was not required.

The given position was developed by founders of historical school of the right of G.Gugo, G.F.Puhta and F.K.Savini. So, G.F.Puhta in the fundamental work "Common law" writes, that the custom is the independent form of the right and is obligatory irrespective of, admits or he does not admit the legislator. In general representatives of German historical school of the right approve, that the custom as the right form arises spontaneously, in the national life most in grounds and is caused by people views. It does by its self-sufficient form of the right and explains absence of necessity of its state authorisation. Thus, followers of historical school of the right underline social essence of custom as important regulator of legal relations.

The accent on social essence of custom is done also by supporters of sociological type pravoponimanija. They are inclined to exaggerate in every possible way value of custom in system of forms of the right: so, in their opinion, the custom is a right basis, defines ways of its application and development by the legislator, judges, the doctrine. Criticising the sociological concept, R.David and To.

Zhoffre-Spinozi notice, that «the custom is not that basic and primary element of the right as that is wanted by sociological school».1

Legisty, on the contrary, contrast custom with the law and specify in its minimum role in legal regulation of public relations. However for legizma «absence of realism» for actually the custom role far «not so is insignificant as believes legal positivism» is characteristic. [109 [110] [111] Besides, from the nature legizma necessity of the state authorisation of custom as right forms proceeds.

A number of representatives of the romano-German legal doctrine is supported by a primacy of a common law before the law, however, with certain reservations (so-called

-e

The requirement of rationality of a common law). The majority of researchers of the romano-German right believes, that the common law cannot be applied in cases of its contradiction «to divine laws, kind customs and the higher principles of the right» [112] or «contradictions with the bases of the state and moral order». [113]

Certain interest is represented by a problematics of a parity of custom and a common law in the legal doctrine of the romano-German legal family. Here it is necessary to notice, that in a considered legal family the concept of a common law is allocated with wide semantic value, that is the common law is understood as set of customs. The legal doctrine initially does not give Romano-German to custom as to the form of the right neither positive, nor a negative estimation, does not consider it by definition archaic and not developed. It simply accepts the fact of existence of a common law and studies it in all its variety. Somewhat absence of estimated judgements in definition of the common law accepted by scientists-lawyers of the romano-German legal family, speaks that they frequently did not consider as the right social regulators in less developed societies which have faced in the course of colonisation of Africa, Asia and the Near East.

Also academic questions on the basic problems of application of custom and its parity with other forms romanogermanskogo the rights are rather curious. Representatives of the romano-German legal doctrine do not consider, that all forms of the right possess an equal validity. Researchers have created certain hierarchy, system of forms of the romano-German right in which frameworks at each form of the right (including and at custom) the certain place which causes features of its practical application it is taken. Really, in a family of the romano-German right custom (first of all according to theoretical substantiations of scientists-lawyers) will be applied in case of blanks in other forms of the right. In many respects it speaks conformity carefully supervised in the romano-German legal family between requirements of custom and the standard legal act, thus norms of the written law frequently possess leadership in comparison with conventional rules, and the last cannot contradict them.

Studying a parity of custom with other forms of the romano-German right, we come to conclusion, that, according to the point of view accepted in the romano-German legal family, the custom is at the bottom step of system of forms romanogermanskogo the rights - after principles of the right, the standard legal acts containing the rules of law, and the standard legal contracts containing the rules of law. [114] as we see, theoretical aspects of application of the custom, existing within the limits of theories of custom of two leading legal families of the present, no less than its place in system of forms of the Anglo-Saxon and romano-German right, are rather similar.

So, in modern jurisprudence of the romano-German legal family in which legal positivism dominates, customs of the right possess variety of features. First, at the heart of customs of the right there is their recognition those public sense of justice. Secondly, the custom of the right admits the obligatory majority certain social group. Thirdly, customs are applied in private law sphere.

Principles and the rules of law containing in customs of the right, the conclusion the author does, have subsidiary character and are applied in case of blanks in other forms of the romano-German right. In system of forms of the romano-German right customs of the right take place after basic (general) principles of the right, standard legal acts and standard legal contracts.

Having finished the analysis of theoretical views on custom and a common law in the romano-German legal doctrine, we will pass to custom research as right forms in parent subgroups of the romano-German legal family. We will begin with legal systems of a Romance subgroup.

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A source: KICHA MARIA VJACHESLAVOVNA. CUSTOM AS the RIGHT FORM In ANGLO-SAXON And ROMANO-GERMAN LEGAL FAMILIES: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015. 2015

More on topic § 1. The custom theory in the romano-German legal doctrine:

  1. § 3. Custom in legal systems of the German subgroup of the romano-German legal family
  2. § 2. Custom in legal systems of a Romance subgroup of the romano-German legal family
  3. § 4. Custom in legal systems of the Scandinavian, Latin American, African and Far East subgroups of the romano-German legal family
  4. treatment of institute of an error in the criminally-legal doctrine of the states of the romano-German legal family
  5. CHAPTER 2. CUSTOM AS RIGHT ROMANO-GERMAN FORM
  6. § 1. The custom theory in the Anglo-Saxon legal doctrine
  7. KICHA MARIA VJACHESLAVOVNA. CUSTOM AS the RIGHT FORM In ANGLO-SAXON And ROMANO-GERMAN LEGAL FAMILIES: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015, 2015
  8. CHAPTER 2. ERROR INSTITUTE In the CRIMINAL LEGISLATION And the CRIMINALLY-LEGAL THEORY of the COUNTRIES of ROMANO-GERMAN of the LEGAL FAMILY
  9. features of the romano-German legal system.
  10. 2.4. Features of the romano-German legal system.
  11. the criminal legislation of the countries of the romano-German legal system
  12. Varjas,. the state in the romano-German legal system / the Dissertation, 2003
  13. § 1. MODELLING OF THE RIGHT OF THE JOINT PROPERTY IN RUSSIA AND ROMANO-GERMAN COUNTRIES OF THE LEGAL FAMILY