Year: 2024
Type: article
Abstract: The article is dedicated to the issue of state sanctioning of a custom in relation to the phenomenon of customary law. The idea of the need for state sanctioning of a custom in order to transform it into law was introduced by the British positivist John Austin (1790–1859). He was the first to assert that a custom can become law only if sanctioned by a legislator or judge. Followers of this approach further developed his ideas, adding the possibility of sanctioning a custom by administrative practice or through the state's tacit consent. It is determined that a real legal significance lies only in the state's sanctioning of a custom, and the sanctioning of customary norms by other entities should not be considered in this context. The article argues that state sanctioning is an additional (optional) characteristic of customary law, rather than a fundamental (obligatory) one. Historical examples from both Ukrainian and global legal systems show that many legal customs existed without state sanctioning. It is revealed that, in most cases, a customary norm first becomes an established rule of conduct in a specific area of legal relations (i.e., a legal custom) and only later receives state sanctioning. Such sanctioning does not grant it legal force (it already has de facto legal force) but ensures that public authorities and officials observe the customary norm. The article examines the classic methods of state sanctioning of a custom: the state's tacit consent, the application of a custom in judicial and administrative practice, and the reference to a custom in the legislation. It is proven that none of these methods can transform a custom into law. However, each of them strengthens the role of customs within a specific legal system and contributes to their legal force. The distinction between legal custom and sanctioned custom is clarified. The state can sanction not only legal customs but also other customs. In the latter case, the sanctioned custom acquires legal relevance but does not always become a legal norm. It is specified that when customary law norms are literally recorded in the articles of legal acts, they lose their customary status and become legislative norms. However, in cases where a statutory provision refers to the custom without detailing its content, the norm retains its customary status and is sanctioned by the legislator. General sanctioning refers to instances when a constitution recognizes a custom as the source of law in a state, or when a code or other law authorizes the custom to regulate a specific area of legal relations. Keywords: state, customary law, legal force, judicial and administrative practice, tacit consent.
Author: Marian Bedrii
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W4405995481
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