Custom as a Source of Legal Regulation of Property Relations in the Russian Federation

Abstract

The paper discusses the issue of the use of custom in the regulation of property relations. The author analyzes the possibility of determining the content of subjective property rights by customary legal norms, namely, such powers as the use and disposal. Attention is focused on the influence of customs on the formation of the owner’s discretion in the exercise of his subjective rights, in particular, the following questions are investigated: on what or on whom does this “discretion” depend? Is it possible that customs influence the formation of the discretion of a particular owner? Special attention is paid to the establishment of limits for the exercise of property rights under customary legal norms. According to the author, applying custom in the regulation of public relations, the owner of a property right does not go beyond the legal field, since custom is a source of law, and in this case one should speak of “discretion within the current legislation” and “discretion beyond it.” The paper concludes that customs can determine the content of subjective property rights, methods of protecting property rights, in particular self-defense issues, and are more often used in the regulation of real legal relations based on private ownership, while customs cannot contradict the peremptory norms. It is emphasized that a special role in the regulation of property relations is assigned to local customs.