Костогрызов П.И. Community Law // Антиномии. 2025. Т. 25. Вып. 3. С. 191-207. 10.17506/26867206_2025_25_3_191. список ВАК
Abstract. The present article sets out to conceptualise the socio-normative order that is not directly related to the activities of the state, most often denoted in legal science by the terms legal custom and customary law. Having arisen in the pre-state period, this type of law then coexists for a long time with the system of norms created by the state; in some parts of the world, it continues to serve as a significant regulator of social behaviour. Analysing the established theory of customary law, this concept is re-examined to identify a number of related theoretical and epistemological problems. It is shown that the most common definition of customary law is internally contradictory; moreover, the ambiguity and unjustifiably wide application of this concept impoverishes its content. In addition, the view that the law of pre-state societies – and corresponding independent legal institutions preserved in state-organised societies – consists only of customs that are formed by repeated (more or less random) actions is found to be incorrect. Applying a fundamentally different approach to the typology of law, which primarily considers not formal criteria, but rather the nature of those social forces that ensure the universally binding nature of legal norms, the author introduces and substantiates the concept of community law. The concept is shown to most relevantly denote the law of a traditional society not based on the prerogatives of state power, as well as those legal orders that exist in modern societies in parallel with the official law of the state. The scope of community law fully corresponds to the set of phenomena it designates; moreover, its use helps to avoid those contradictions and misleading connotations that arise in connection with the use of the category of customary law. Based on the evidential material provided by the history of law and legal ethnography, the main structural and substantive features of community law that distinguish it from other types of law are identified along with a characterisation of its sources.
community law; customary law; people’s law; non-state law; law in traditional societies; legal pluralism; community; legal anthropology; theory of state and law; history of state and law
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