The Concept of Customary Law (A Functional Approach)

Abstract

The article advocates the idea of defining customary law in the context of differentiating the forms of law-making and its functions by means of distinguishing between public and private law. Functions of law as a regulator of public relations have the effect of creating two forms of law - customary law as an implementation of a static function of law and legislation as an implementation of a dynamic function of law. Historical and comparative legal methods of the law study show that, in the sphere of private law law-making powers of the State were limited and were motivated by the prohibition to go beyond the boundaries of social freedom determined by the society itself. Legislative functions in this sphere were limited to the State fixing only those norms that reflected the public relations developed in practice. When characteristics are compared, uncertainty of a rule of customary law concerning time is revealed. Such uncertainty is the result of a contradiction inherent to law in general that is resolved by means of the complex of special rules and techniques, i.e. legal methodology, that predetermines the legal systems diversity. Contradictions between the old and the new in Anglo-Saxon law are resolved by a judicial precedent, in Romano-German law they are resolved by codification, and in Islamic Law by kiyas (analogy-based rules). The fundamental difference between the rule of the law and the rule of common law amounts to differences in implementation of different rules in the legal conduct of an individual. The rule of law, being implemented in the conduct of a particular actor in public relations, acts as a visual illustration. In turn, for other actors of public relations, this act of implementation will be an example of an implemented legal norm, carries information of a dual nature: firstly, concerning the content of the law and, secondly, its evaluation, whether it is legitimate or illegitimate. In everyday life, people are most often guided by an example of lawful behavior, and they turn to a written instrument only if there is no any obvious example of the legal rule implementation, whereas a legislative norm is purely an abstract model.