THE FIXATION FORMS OF UKRAINIAN CUSTOMARY LAW: HISTORICAL-LEGAL ANALYSIS

Abstract

The article is devoted to the historical-legal analysis of the fixation forms of Ukrainian customary law, which refers to the objectified external expressions of this phenomenon. It is proposed to divide the mentioned forms into three groups: activity, oral and written. They could exist in parallel and simultaneously, or even «outlive» the rules of customary law that were established in them. Despite the obvious flaws of unwritten (activity and oral) fixation forms of Ukrainian customary law, it dominated among other sources of law in Ukraine until the early nineteenth century. It is substantiated that the Ukrainian customary law was first mentioned in the activity (behavioral) form – actions and inactivity of social relations subjects. The value of an activity fixation form of customary law lies in its being based on actual fulfilment (observance), and the cessation of the existence of a custom occurs when society ceases to fulfil it. Subsequently, this form of fixation could complicate and acquire the expression of a rite, ritual or other symbolic actions. Often, other (oral and written) forms were added to it. Oral fixation forms of the legal custom appeared as a meaning of transferring its idea in area and time by transmission from one subject to another. An oral retelling of the custom idea provided its implementation or compliance by those subjects that had no experience of direct observation of the corresponding actions or inactivity in the past. The complication of oral form occurred through the formation of folklore (proverbs, songs, etc.) as well as the fixation of customary norms in them. The written fixation form of legal customs was aimed primarily at amplification the certainty of relevant rules and thus contributing to the process of proper enforcement. The customary law acquisition into written form, as a rule, resulted in its transfer to provisions of the legislation. Written fixation of the customary law rules without such a transformation took place in the records of researchers and documents that had no normative-legal character – civil contracts, court decisions, administrative acts, etc. Usances as the written records of customary norms, made by authoritative non-governmental organizations, are characterized. It is found that the unified algorithm for fixing the Ukrainian customary law did not exist, and its variability was dictated by the conditions of social life. In this way, the society developed various and generally effective fixation forms of Ukrainian customary law. Subsequently, the state joined the process, recording the rules of customary law in the relevant collections, authority decisions and legislation.