CERTAIN ISSUES OF THEORETICAL AND METHODOLOGICAL ANALYSIS OF THE LEGAL NATURE OF CUSTOMS SANCTIONED BY THE STATE IN THE LEGAL SYSTEM THE REPUBLIC OF KAZAKHSTAN DURING THE PERIOD OF SOVEREIGNTY AND INDEPENDENCE
DOI:
https://doi.org/10.52026/2788-5291_2021_67_4_31Keywords:
legal system of the Republic of Kazakhstan, custom, legal custom, business practices, forms (sources) of law, positive law, judicial precedentAbstract
In the article, the author analyzes the custom, as well as the legal nature of the legal custom as one of the sources (forms) of law in the legal system of the Republic of Kazakhstan. The author notes that the custom acquires the character of a source (form) of law only if the custom is sanctioned by the State, and that the sanctioning of the custom by the State does not mean that the custom has acquired a written form. At the same time, the article states that the authorization of the custom by the state occurs by specifying the custom as a source of law in regulatory legal acts without disclosing the content of the custom itself.
In addition, the author in the article, not agreeing with the position of some scientists and researchers who propose to abandon the term «legal custom» and use the term «custom» in scientific circulation, adheres to the approach that if custom regulates relations that have a legal nature from the point of view of the interests of society and the state, in which, in the event of disputable situations, the dispute can eventually be resolved on the basis of custom by a court that is part of the judicial system of the state or another judicial institution (body) authorized by the state, then such a custom, for the reasons mentioned, is legal.
In addition, the article notes that the term «custom» in a broad sense can also regulate such relations that do not have a legal character, for example, in the field of observance of certain traditions, rituals during marriage, the birth of children among certain ethnic groups, nations, peoples, etc. In this case, custom can hardly act as an independent source of law.
Thus, the author adheres to the position that the existence of the term «legal custom» in scientific circulation is justified, since this emphasizes the legal nature of the custom, unlike other customs that can regulate those relations that are not covered by legal regulation, and, accordingly, do not have the quality of legal custom.