Обычай и правопорядок в антрополого-правовой перспективе

Abstract

In this article, the author raises the problem of understanding legal customs in the context of the existence of the rule of law, which is not limited only to a set of legal norms and forms of their objectification. The author reveals that the new methodological situation requires a more adequate vision of legal phenomena, including legal customs. For this purpose, the anthropological and legal approach is proposed as a new research program that acts as an alternative to such classical approaches as positivism and natural law. Therefore, the author states that the use of the anthropological and legal approach as a kind of a non-classical type of scientific rationality, focusing on the intersubjectivity of legal phenomena that form the rule of law through social practices with the activity orientated, value-based, formal-dogmatic aspects of the existence of law, is a more constructive strategy in the study of legal customs in particular, and the rule of law in general. The article highlights the different nature of legal and juridical customs. The author proves that legal customs cannot be reducible to juridical ones from the standpoint of the anthropological and legal approach. Juridical customs fall under legal ones and do not reflect the full concept of legal customs. It is noted that legal customs sanctioned by the jurisdictional authorities acquire the status of juridical ones. Legal customs, in turn, are a kind of social law; they constitute the traditional legal order, along with traditional values, principles and institutionalized activities in a socially significant sphere. The author actualizes the idea that legal customs existed, exist and will exist in a socially significant sphere, and sees them as a «shadow» accompanying human society throughout its entire lifetime.