Analysis of legal custom: an aspect of legal dogmatics

Kuznetsov Nikolai Andreevich ORCID: 0000-0002-6537-1852 Independent researcher 195213, Russia, Saint Petersburg, Kazanskaya str., 10, sq. 67 Nikolay864@yandex.ru

1. Problem statement

There is a widespread perception in the scientific literature that the norms of custom are characterized by amorphousness, and for this reason this source of law is not subject to legal analysis, but requires other research methods. It is no coincidence that P. G. Vinogradov, opening his small book "Custom and Right" with a methodological introduction, opposes the absolutization of analysis that does not take into account social reality, although the scientist recognizes the paramount importance of analysis for jurisprudence ^{[48, p. 7-14]}. I. B. Lomakin, emphasizing the versatility and relativity The more far-reaching conclusion is that the phenomenon of customary law demonstrates the impossibility of knowing law in a normative way by decomposing it into clear structural units ^{[22, pp. 38-41, 253-255]}.

This perception of custom makes it difficult to study it as a source of law in two ways.

On the one hand, within the framework of the sociological approach to law, there is often a rejection of conceptualization and the language of legal dogma, understood as the conceptual and categorical apparatus and methods of its application in the process of conducting research that have developed in jurisprudence (including the general theory of law) ^{[8, pp. 105-109; 14, pp. 46-48]}. This leads to the consideration of custom as one of the undifferentiated facts of the "living" legal reality.

This effect was already manifested in the theory of O. Ehrlich, who proceeded from the need for exclusively socio-inductive study of law and suggested replacing the researcher's focus on legal proposals with observation of the development of legal institutions ^{[34, pp. 88-89; 40, pp. 135-138, 595-614]}. This approach is still being maintained at the present time. Thus, I. L. Chestnov, identifying the dogma and dogmatics of law with legislation and its commentary ^{[39, pp. 81, 88]}, proposes to study custom by methods of socio-cultural anthropology of law and limits the goals of studying customs to legal policy and knowledge of legal reality and legal awareness ^[39].

As a result, the epistemological attitude and scientific style of legal realism arouses distrust and the impression (only partially true) that the sociological approach refuses structured knowledge of law ^{[7, pp. 127-128]}. This distrust is understandable if we take into account the widespread identification of analysis and cognition ^{[21, p. 53]}. It should be clarified that the analysis is not limited to logical methods of cognition, but includes many other methods (see, for example: ^{[21; 24, pp. 24-30]}), which can be generalized as operations of mental differentiation or separation of parts and properties of the studied subject ^{[21, pp. 44-57]}. Since the Eastern intellectual heritage will be touched upon in this article, it is appropriate (without dwelling on the diversity and multidimensional approaches) to note that one of the options for understanding knowledge (‘ilm) in Islamic science is also associated with the ability to distinguish objects ^{[49, p. 35-36]}, and in Chinese philosophy knowledge (zhi) how prudence, often associated with practice, could be described as the distinction between right and wrong ^{[31, pp. 22-130]}.

On the other hand, by scientists who do not share the sociological legal understanding, custom, as a rule, is not considered as a significant source of law, although it can be affected within the framework of the "law–practice" dichotomy. The study of custom is replaced by an analysis of its relationship with the law and law enforcement practice; on this basis, conclusions are drawn about the characteristics of custom and its place in the legal system (see e.g.: ^{[1; 30; 28, pp. 631-632]}).

Let's pay attention to the statement of the pre-revolutionary civilist E. V. Vaskovsky, which, perhaps, expresses the ideas of many lawyers. Distinguishing four stages in the practical study of law — the collection of norms, verification of their authenticity, interpretation and dogmatic processing — he believed that in the case of custom research, the second and third stages inevitably coincide with the first, and only dogmatic processing, which is an activity for scientific generalization, ordering and simplification of a large array of legal norms ^{[6, p. 391-424]}, has the meaning of an independent stage for custom and is carried out according to the same rules as in relation to the law ^{[6, pp. 53-55]}. Considering that E. V. Vaskovsky did not include the collection of norms in the subject of legal science ^{[6, pp. 54-55]}, the described position logically implies the exclusion of specific norms of custom from the field of legal and dogmatic analysis and their attribution to the subject of special sciences engaged in the study of legal life.

At the same time, the stated position of the scientist, firstly, is based rather on general impressions of the activities of collecting customs that developed in his time, than on the analysis of programmatic and other texts of collectors. However, referring to these program texts allows us to conclude that the collection of customary law material and the interpretation of the norms of custom reflected in this material were considered as independent stages. Thus, in the program developed by I. Ya. Foynitsky for collecting criminal law customs, the author insists on separating the roles of the collector, who acts as a witness to social realities, and the lawyer, who interprets the data obtained ^{[36, pp. 3-4, 33-34]}. Apparently, other program compilers proceeded from the same methodological considerations (see, for example: ^{[15, pp. 19-20]}).

Secondly, the above opinion of E. V. Vaskovsky makes problematic his own conclusion, which he came to in an earlier article, that courts should interpret and apply customs (and the Civil Cassation Department of the Senate should check the correctness of their interpretation) not only in cases of direct references by the parties to the rule as a custom, but also in situations where when it is clear only from indirect hints from the parties or other circumstances of the case that custom applies to the relevant legal relations ^{[5, pp. 85, 87-88]}.

Errors in the application of custom by Russian courts often manifest themselves as a discrepancy with the doctrinal understanding of this source of law ^{[18; 19]}, i.e. they are the result of judges' ignorance of scientific ideas about custom. However, it should be recognized that the doctrine has not yet developed a clear algorithm for identifying and applying customary legal norms.

2. The purpose and methodology of the study

At the same time, there are already attempts in the literature to take an analytical approach to the study of customary norms. Summarizing them, we can identify three main tasks that researchers set when analyzing this source of law: 1) reconstruction of the origin of norms; 2) differentiation of custom from other related concepts; 3) identification of the norms of custom.

The purpose of this article is a comparative legal consideration of some of the methods and criteria proposed for the legal and dogmatic identification of customary norms, since this issue is both important and the most difficult for jurisprudence and law enforcement ^{[19, p. 357]}. The work is structured in such a way as to demonstrate the complementarity of ideas proposed by representatives of different legal traditions, within the framework of discussing similar methodological problems. At the same time, the detailed issue of the classification of customs (see, for example: ^{[4; 13; 16, pp. 58-62]}) will not be touched upon.

As necessary, we will touch upon the theoretical issues of the origin of custom and its differentiation from other phenomena, based on the methodological position of L. I. Petrazhitsky. It is based on the separation of theoretical (explaining what exists) and practical (expressing due) judgments. Based on this distinction, the scientist distinguished sociology and the theory of law as theoretical sciences, legal dogmatics and the politics of law as applied sciences, depending on theoretical knowledge ^{[26, p. 199; 27, p. 420-421; 33, p. 43-87; 34, p. 84-87]}. In the context of custom, of the above–mentioned main tasks of its analysis, tasks 1 and 2 belong to the subject of theoretical sciences (they are aimed at clarifying the nature of custom as a source of law), task 3 belongs to the subject of dogmatics of law, and the politics of law considers the desirable relationship between custom and law ^{[26, pp. 441-446; 43]}.

3. Dogmatic revision of the norms of custom: an explanatory example

I. B. Lomakina expresses the already familiar point of view, according to which the structure of the norm of custom cannot be described in terms of legal dogma through the formulation of hypotheses, dispositions and sanctions and the definition of powers, duties and prohibitions ^{[22, pp. 258-260]}.

Disagreeing with this opinion, expressed in a similar way by R. David ^{[9, p. 465; 32, p. 22]}, G. V. Savenko proposed the experience of analytical reconstruction of the customary law institute on the example of the institute of blood feud. This reconstruction is quoted below in the extracts in such a way that its principle is clear:

1) the governing norm: the right to kill a criminal in hot pursuit;

2) binding norm: the announcement of the intention of bloodshed only at the relevant court meeting;

3) the prohibition rule: not to pursue the criminal in hot pursuit;

4) norm-sanction: a large fine for murder in the course of a hot pursuit ^{[32, p. 24]}.

Despite the fact that the institution widely known as customary law has been reconstructed, and the analysis is based on historical written codifications of customary law, this experience shows the possibility of analytical representation not only of customary law in the form of a system of specific rules, but also of individual norms of custom, including in their structure the reconstructed hypothesis, disposition and sanction with the formulation of powers responsibilities and prohibitions and the identification of regulatory and protective norms. This scheme is useful for the dogmatic processing of previously unknown customs to science or law enforcement.

At the same time, it is obvious that any such formalization is only the end point of the process of identifying the norm necessary for its correct application, and in itself does not completely solve the problem of finding ways to recognize the norms of custom. However, it sets a conceptual framework based on which the researcher and the law enforcement officer can more clearly choose the methods and criteria for obtaining and interpreting the material.

4. Effectiveness, legitimacy and validity of custom

Answering G. V. Savenko's question about whether a researcher of legal custom considers an ideal institution (or norm) constructed taking into account the rules of legal technique, or a really existing institution (or norm) as a given ^{[32, p. 24]}, it is necessary to keep in mind the properties of social reality that affect the features of its scientific cognition. Human activity is characterized not by "pure" facts of nature and culture, but by facts mediated by their interpretation, and in some cases by volitional construction, and for the knowledge of facts, in turn, their simple observation is not enough, but their interpretation is also necessary, the directions and boundaries of which are determined by the purpose and objectives of the study ^{[3; 33, pp. 153-154, 165-203; 48, p. 1-3]}.

The above theses can be justified analytically. Thus, sociologists P. Berger and T. Lukman showed the process of the emergence of social facts (including normative facts) through a detailed description of the sequence of stages of their formation. The initial stage includes the first conscious or spontaneous actions, then there is a consistent mutual interpretation (not necessarily normative) of committed acts by people, repetition of acts together with their interpretation and typification, and the formation of normative facts ends with reification (perception of the established model as objectively given with oblivion of its human origin) and legitimization (consideration of the model as normative) ^{[3, pp. 89-209]}. In a concise form, this analysis is repeated by supporters of the sociological legal understanding (see, for example: ^{[39, p. 80]}), and I.B. Lomakina considers habitualization (habituation), objectification and legitimization as elements of the structure of the norm of custom ^{[22, p. 258]}, although these stages do not relate to the norm itself, but to analytically distinguished stages of its formation.

In relation to law, this means the importance of distinguishing the norm as an ideal, semantic object and its textual expression in the form of legal proposals (as in the reconstruction of G. V. Savenko) or other observable signs (for example, practice) ^{[28, pp. 284-292, 623-628; 40, pp. 209-234]}. A similar distinction was made by Islamic jurists: verbal text, considered as audible speech (kalam lisani), or practice (as in the theory of al-Juwayni and Malik ibn Anas, which will be discussed later) were perceived as external indicators (dalala) of norms (huqm) as ideal objects dividing internal speech (kalam nafsi) and the intentions of those who speak and act in the categories of "duty", "prohibition", "permission", "recommendation" and "censure" (see: ^{[49, p. 12-16, 64-68, 91-98]}.

This distinction, in the light of the theory of validity, effectiveness and legitimacy of law, was interpreted within the framework of the model of three worlds (or kingdoms) of law proposed by E. V. Timoshina and her co-authors in the recent monograph "Three Kingdoms of Law: validity, effectiveness, legitimacy" as an application to jurisprudence of the relevant ideas of G. Frege and K. Popper ^{[35, p. 562-569, 581-587]}. The analyticity of this model consists in distinguishing the three modes of existence of law: his practice as an externally observable aspect (world 1 – effectiveness), mental perception of law as an internal aspect (world 2 – legitimacy) and norms (principles, values) of law as an ideal aspect associated with the objectification of thought (world 3 – reality) ^{[35, pp. 568-572]}. The synthetics of the model under consideration lies in the assertion of the connection between these worlds as a condition for the full-fledged existence of the rule of law, and it should be borne in mind K. Popper's remark that world 1 and world 3 are not interconnected and are always mediated by world 2 ^{[35, pp. 573-574]}.

The latter circumstance in relation to the study of legal norms can also be interpreted in the sense that in order to correctly understand the norm, the researcher should always pay attention not only to the created or recreated norm and the practice of its implementation, but also to its internal aspect. In particular, G. L. A. Hart insisted on this, justifying the importance of taking into account the unity of two conditions for the existence of legal norms: the regularity of practice and the internal point of view of the community on this regularity ^{[37, pp. 58-72, 87-96, 106-115]}. Despite the fact that G. L. A. Hart does not discuss custom, but the conditions for identifying primary and secondary rules that have not received verbalization, distinguishing them from custom, which he understands quite narrowly ^{[37, pp. 52-53, 96-97; 44, p. 44-45, 91-92]}, the conditions formulated by him are not significant They do not differ from the classical signs of the external and internal sides of custom, which allows Hart's position to be extended to this source of law (especially since later an English jurist recognized the possibility of considering secondary rules as judicial custom rule ^{[44, p. 256]}).

In the case of the norm of custom, as the authors of the mentioned monograph note, the connection of the three kingdoms of law may lie in the fact that the regularity of behavior (world 1) causes a sense of connectedness with this regularity (world 2), due to which the norm of custom (world 3) appears ^{[35, pp. 575-578]}. From this it can be seen that custom can and should be described not only in terms of effectiveness, but also in terms of legitimacy and validity of law.

Thus, the theoretical explanation of the nature of custom accepted in Western science through its origin was generalized and brought to its logical conclusion ^{[11, p. 202]}, in which two sides of custom are discussed: external and internal ^{[18, p. 88-90; 10]}. The signs of the external side include the unwritten nature, the repeatability and uniformity of practice, the temporal and spatial aspects of its action. In connection with the internal side, the role of universal conviction in the general obligation of this norm (opinio necessitatis), the will to create it, emerging expectations, etc. is discussed.

To world 3 — the content of the norm — the authors of the monograph attributed the third type of conditions discussed in Western theory – the requirements of reasonableness, justice, morality of custom ^{[35, pp. 577-578]}. However, it seems that, for reasons of consistency, it is more correct to refer to world 3 in the theoretical dimension the very content of the norm of custom, regardless of its compliance with these requirements, which in the context of legal dogmatics serve not the task of identifying the norm of custom, but further assessment of the identified norm from the point of view of its applicability. Accordingly, within the framework of the dogma of law, requirements for the number of repetitions may become such qualifying purely practical criteria for the world 1, and for the world 2 — for the nature of the belief.

The proposed clarification of the theory of custom for legal dogmatics is important from the point of view that it will allow paying attention not only to the procedure for identifying an unknown norm of custom, but also to the need to verify the validity of a norm of custom already known and fixed in legal proposals (for example, in collections) by establishing its effectiveness and legitimacy.

5. The criterion of reaction to a violation of customary law and its disadvantages

One of the well-known criteria by which researchers propose to establish whether a rule belongs to a custom without referring to the inner side of the norm is based on the provision that custom, like any other rule of law, should have a grant-binding and compulsory character ^{[28, pp. 679-681]}.

We also find an understanding of this circumstance in Islamic jurisprudence: many lawyers (including al-Karafi, whose approach will be discussed later) distinguished between regular practice (‘ada) and legal custom (‘urf), pointing out that the second concept refers to norms that have developed through repeated uniform repetition, supported by public recognition of their obligation ^{[46, p. 49-50, 121; 50, p. 84-87]}. Interestingly, some Islamic scholars, in a similar way to their Western colleagues, distinguished the material (maddi) and spiritual (ma'navi) components in the structure of the norm of custom, referring to the first regular practice (‘ada), and to the second – the social recognition of this practice ^{[50, p. 85]}. Abu Maali Abd al-Malik ibn Abdallah al-Juwayni (1028-1085), who sought to explain the validity of the sources of Islamic law through the search for external indicators that provide reliable knowledge ^{[47, p. 146-154]}, to substantiate his unusual position for Islamic science that the validity of the full consensus of jurists (ijma’) as a source of law is not conditioned by According to the texts of Sharia, and the custom of scientists, he pointed to a social sanction: anyone who contradicts the consensus is condemned by the scientific community ^{[46, p. 84; 47, p. 171-177]}.

This approach to identifying the norm of custom is consistent with the idea that a rule of law, unlike a pattern, can be violated ^{[28, pp. 668-669]} and that an essential feature of law is its compulsion, which implies a dialectical connection between law and offense or the necessary affiliation of the idea of offense to the norms of law ^{[17, pp. 106-116, 167-171]}. Therefore, a well-known criterion for identifying a custom, at the same time distinguishing it from a custom, is to clarify a possible or actual reaction to its violation ^{[2; 30, pp. 28-37; 41, p. 10]}. This criterion, among others, was taken into account by the compilers of the programs for collecting customs in the Russian Empire in the second half of the XIX century when formulating questions (see, for example: ^{[29; 36, pp. 4-24]}). Despite his criticism of the idea of the compulsion of law ^{[17, p. 108]}, O. Ehrlich also emphasized the importance of using the criterion under discussion, recommending that types of norms be distinguished by emotional reactions to their violations: indignation follows an offense, indignation – in the case of custom, anger – the rules of decency, etc. ^{[40, p. 204]}. However, the scientist did not develop this idea further, which was criticized for its uncertainty ^{[40, pp. 620-621, 669, 694]}.

It could be assumed that in the case of a reference to custom in court, the criterion considered will often be relevant, however, the results of monitoring the judicial practice of applying customs indicate that courts do not use it ^{[18; 19]}.

The main disadvantage of this criterion is associated with a situation where violations of custom are unknown. In particular, G. L. A. Hart, recognizing the existence of consequences for violating unwritten rules as an important feature of the norms of law, notes the insufficiency of the method of searching for a reaction to a violation, since members of the community do not always feel the pressure of the threat of punishment and clarifying the consequences of a violation is often only a prediction characteristic of an observer of the external regularity of practice ^{[37, p. 92-96]}.

It should also be noted the position of some researchers, according to which the uniqueness of the custom lies in the fact that it is never violated or, at least, its violations are always punished (see, for example: ^{[16, pp. 30-31]}). Thus, G. Kantorovich believed that the norms of custom, unlike the norms of the law, are always fulfilled for three reasons: 1) the inevitability of punishment for violation of custom, due to the evidence of any violation of customary law (while the fact of non-compliance with the law may remain latent); 2) the cruelty of customary sanctions; 3) the norms of custom, unlike the law, are always widely known ^{[20, p. 97]}. However, other scientists have noted cases when even obvious violations of the norms of custom (and in the conditions of the rule of customary law) do not entail the application of sanctions ^{[41, p. 11-12]}, and therefore it can be argued that in practice violations of both the norms of the law and customary norms may, for various reasons, not entail negative legal consequences. This is another circumstance that makes it difficult to apply the criterion of reaction to a violation of custom.

6. The inner side of custom (opinio necessitatis) as a subject of legal and dogmatic analysis

The above implies the insufficiency of the widespread reference in the scientific literature to written documents and witness testimony as evidence of custom (see, for example: ^{[5, pp. 85-87; 10; 13]}), as well as a simple statement of customary practice, which is often limited to researchers (see, for example: ^{[4; 13]}), since these facts have yet to be interpreted. This cannot be achieved without analyzing the inner side of the custom, the need to address which is already reflected in discussions regarding the above criterion of reaction to a violation. Examples of references to the internal aspect of custom in the framework of these discussions are the reference to normative emotional reactions in O. Erlich, public condemnation in al-Juwaini, etc. At the same time, mental processes, including the nature of persuasion, are difficult to establish ^{[24, pp. 90-91; 10, pp. 206, 211]}, so it remains to turn to external criteria that are proposed to identify the inner side of custom.

Some Western scholars (see, for example: ^{[10, pp. 224, 226-227]}) emphasize that the belief in the general obligation contained in the custom should have a legal character (for example, refer to subjective law). R. Birling, like other critics (see, for example: ^{[10, pp. 224, 226-227]}), saw the problem of these theories in the fact that they require subjects to have such legal knowledge, which they rarely possess, and considered the factor of recognition by people sufficient (in particular, by virtue of the law of involuntary association of thoughts) mutual requirements ^{[10, pp. 217-219]}. D. Bederman, considering on the same basis the concept of opinio necessitatis too formalized and "extremely positivistic", as an alternative point of view drew attention to one of the requirements for custom formulated by W. Blackston, according to which custom should be definite and mandatory, and not formulated as an assumption or scope for individual discretion of each person ^{[41, p. 35, 41]}. As stated, the criterion that distinguishes custom from simple practice is actually transferred from the inner side (world 2) to the realm of world 3 – into the content of the norm, since attention is focused on what exactly this norm prescribes. At the same time, in order to formulate a customary rule in legal proposals, it must be identified and interpreted. However, without addressing the internal side of custom, it remains unclear exactly how it is possible to determine the grant-binding nature of legal proposals.

The problem noted by critics can be solved by linguistic analysis, since language plays an essential role in revealing the processes of the inner world ^{[3, pp. 60-79]}, and, according to J. L. Austin, a representative of the linguistic branch of analytical philosophy (with whom the jurist G. L. A. Hart agreed), it is important "to use our honed perception of words in order to to hone our perception of phenomena" ^{[25, p. 207; 37, p. 7]}. Most Islamic jurists also recognized that it is language that makes it possible to reveal intentions, beliefs and other phenomena of the inner world ^{[49, p. 114-116; 51, p. 58-59]}, and in section 8 we will see how al-Karafi used this idea in the legal and dogmatic analysis of custom.

7. Possibilities of linguistic analysis of legal custom

The essence of linguistic analysis in relation to the identification of the norms of custom will be revealed by an appeal to the ideas of L. I. Petrazhitsky.

The scientist associated positive law with imperative-attributive experiences, the bases of which are various normative facts ^{[33, pp. 248-253]}. Therefore, the first, theoretical level of custom analysis concerned the subjects' beliefs in the existence of a custom norm. To attribute an experience to this source of law, according to L. I. Petrazhitsky, it is necessary that the subject 1) be convinced that people actually act in accordance with a certain model of behavior; 2) see in this fact the source of rights and obligations; 3) be ready to refer to it, justifying rights and obligations ^{[43, p. 108-110]}.

According to L. I. Petrazhitsky, legal dogmatics that checks the mental experiences of custom for compliance with their reality ^{[43, p. 113-115]} cannot be completely freed from the conditions set by mental experiences. He emphasized that it is only by the nature of experiences that it is possible to distinguish the practice, which is a custom, from uniform actions in accordance with other normative facts ^{[27, pp. 436-437]}.

Based on the division of customs into new-like, binding the subject because of their prevalence, and old-like, binding because of their antiquity ^{[27, p. 438; 43, p. 110]}, the scientist noted the linguistic reflection of mental experience in references to customs: people refer, respectively, to the fact that "it is accepted", analyzing the monuments of law, the jurist gave examples of other words and expressions used in references to customs ^{[26, pp. 205-208; 27, pp. 437-440]}.

Even before L. I. Petrazhitsky proposed using this circumstance to clarify the nature of the custom, questions about folk concepts were often included in the programs for collecting customs. For example, I. Ya. Foynitsky was interested in whether the people distinguish crimes by their severity, and as a criterion by which to get an answer, he pointed out the possible use by the people of concepts with different shades of meaning ^{[36, p. 7]}. I. Ya. Foynitsky's program can be considered exemplary from the point of view of a methodological approach. The author structured and formulated the questions in such a way that at the same time exhaustively outline the conceptual framework of the study, determined by the dogma of criminal law science, and take into account the specifics of concepts, expressions, institutions adopted in the popular environment.

Later, Hart will propose using a linguistic analysis of verbs used by members of the community and having different modality to identify an internal point of view on the unwritten rules of persons subject to the legal system. The English jurist will also point out the importance of distinguishing the description of the rule formulated by the bearer of an internal point of view from the presentation of the norm by an external observer, whose description of the rule will also be linguistically different ^{[37, pp. 91, 107-110]}. It may seem paradoxical that the British jurist, who pointed out the uncertainty of the legal language ^{[24, pp. 119-120]}, suggested using linguistic analysis to establish an internal point of view. However, the uncertainty of language is overcome by methods of contextual explication, which are based on the principle that the meanings of words are specified in the contexts of their use (see: ^{[24, pp. 25-26, 55-90, 132-134]}).

At the same time, it would be hasty to reject the external regularity of practice as a criterion for the analysis of opinio necessitatis: it is the simple presentation of practice that can be considered insufficient, as indicated in section 6. However, it seems that when choosing any method of analysis (whether linguistic analysis, reference to regularity or another criterion) for the purpose of determining the degree of its It is necessary to substantiate how exactly it is connected with the inner side of the custom.

As an example of the desired validity of external regularity, the al-Juwayni approach can be cited as a criterion. Firstly, from his point of view, regular practice was a reliable proof of the validity of the norm due to the epistemological position of the scientist that such practice (world 1) inevitably generates certain (and not probabilistic) knowledge in any person (world 2) ^{[47, p. 110-131]}. Secondly, since the jurist's argument concerned the preservation of the norms originally (as he assumed) contained in the traditions about the actions and words of Muhammad, he relied on the presumption that the nature of the transmitted norms (world 3) determines the belief generated by religious feeling (world 2) that it should be practiced (world 1), as a result of which it remains valid and reliably established even in the conditions of the loss of a reliable verbal text ^{[47; p. 150-153]}. It seems that, with appropriate amendments to the secular context, these ideas may be of interest if the question arises about the transition to the custom of a repealed rule of law.

8. Introspection method and communicative criteria for identifying customary legal norms

Considering the methodology of L. I. Petrazhitsky, it can be argued that the connection between theory and the dogmatics of custom, from his point of view, lies in the need to use the method of introspection (self-observation) ^{[33, pp. 177-179, 248-252]} in order to establish the corresponding mental experiences of the researcher himself. Based on the sameness of the nature of all people, in an even more solipsistic form, in order to determine the general meaning of externally differing norms and practices, some authors of the ancient Chinese collective treatise "Lu-shi chun-qiu" (240 BC) suggested using introspection ^{[23, pp. 238, 266]}.

In connection with the above, let us pay attention to the argument of Shihab al-Din Ahmad ibn Idris al-Karafi (1228-1285). Noting as one of the important criteria for identifying a custom "that which immediately pops up in consciousness" and, therefore, can be immediately conveyed in words ^{[45, p. 95, 229]}, he clarified that the prevalence and availability of a custom cannot be clarified solely by appealing to one's own intuition. Al-Karafi justified this by saying that a lawyer can accept as a valid and effective custom what he knows well from books and discussions, while ordinary people have not heard anything about such a rule or have long forgotten ^{[45, p. 235]}. Therefore, he suggests considering two more communicative criteria: 1) plausibility – the client's testimony about the custom should be doubtful if the formulated rule includes legal subtleties unnatural to the layman ^{[45, p. 237-238]}; 2) clarity – legal proposals whose meaning is unclear to ordinary people cannot be considered custom ^{[45, p. 229-235]}.

9. The criterion of variability of customs

Variability as a sign distinguishing custom from nature (including human nature) has been especially actively discussed in Chinese philosophy.

Ancient Chinese thinkers emphasized the fundamental role of interpretation in the emergence of social facts (a property of social reality that we have already touched on in section 4), in some cases giving an analytical demonstration of their thesis. Moreover, this conclusion did not change even if a person imitated nature (which some philosophers considered desirable), since interpretation and will were required for such imitation ^{[23, pp. 36-42; 38, pp. 350, note 19]}. Thus, the authors of the treatise "Huainan Tzu" (139 BC), considering the thesis that the order of things does not depend on the things themselves, built the following genetic sequence of factors in reverse order from result to effect: 1) the order of things, 2) our attitude to things, 3) man, 4) the master (probably an exemplary personality), 5) his passions, 6) human nature, 7) de (good manifested externally; see: ^{[38, p. 350, approx. 19]}), 8) Tao (cosmic regularity; see: ^{[38, p. 348, approx. 1]}) ^{[38, p. 160]}. It should be noted that the peculiarity of Chinese ideas about the formation of custom is the emphasis on the role of an outstanding personality (be it a sage or a villain), whose behavior people take as a model, thereby forming good or bad customs (see, for example: ^{[12, pp. 340, 342-343]}.

Conclusions about the foundation of social facts by human interpretation were associated with the criterion of variability, by which custom and the natural order of things were distinguished. If the natural is defined as something that has existed for a long time and manifests itself with necessity, or as something that is inherent in all people from birth ^{[12, pp. 330-332; 23, pp. 128-129; 38, pp. 160-161]}, then custom (su) can be determined by the difference in the rules by which different peoples formalize intentions and inclinations for external expression ^{[12, pp. 330-332; 38, pp. 157-175]}. A similar distinction is found in al-Karafi ^{[45, p. 98-99]}.

Variability can manifest itself in oblivion. Summarizing the experience of discussion by representatives of different legal traditions of oblivion as a criterion for identifying the norms of custom, three forms of it can be distinguished.

1. The oblivion of the rule, manifested in the fact that no one practices or understands it (al-Karafi ^{[45, p. 226-235]}), may indicate the absence or change of custom (see also: ^{[16, p. 43]}).

Two other forms of social amnesia may, together with other criteria, indicate the existence of custom.

2. Oblivion of the original meaning of the historical precedent, manifested in a loss of understanding of the variability of the behavior model and its reinterpretation (L. I. Petrazhitsky ^{[26, pp. 208-209; 27, pp. 447-449]}, P. Berger, T. Lukman ^{[3, pp. 89-146]}), or in a loss of understanding of the desirability of a connection between a natural feeling and a way of acting, with the help of which it manifests itself, which can be expressed in the forced routine of a behavior model, regardless of the difficulties it causes ("Huainan Tzu" ^{[38, pp. 109-157]}).

3. Forgetting the exact text of the rule, if it is actively practiced, as a result of which there is no need to formulate it in words every time (al-Juwayni ^{[47, p. 151, 175, 181-183]}, E. Danz ^{[11, pp. 223-224]}).

10. The external and internal sides of custom in their interrelation: an example of a legal and dogmatic analysis

Having discussed a number of criteria and methods by which it is proposed in the literature to analyze the external and internal sides of custom, and returning to the thesis put forward above about the need to establish a connection between both sides of a customary rule in order to correctly understand it, let's consider an example of argumentation that takes into account the external and internal aspects of this source of law.

The eponym of one of the schools of Islamic law, Malik ibn Anas al-Asbahi (713-795), gave the following justification for the permissibility of selling packaged fabrics if they are described in the seller's catalog (as opposed to the prohibited sale of packaged fabrics and clothing without a catalog and the possibility of inspecting the goods): "[This] is how everything is done, and the knowledge of this [order] that people keep in their hearts, and the practice of those who used to be, and that this continues to be the type of deal that people consider acceptable and see no harm in it. [This is so] because the sale of bundles in accordance with the [compiled] description of their contents without showing the entire [product] is not carried out with any intention [to benefit from] uncertainty" (cit. and trans. from English to: ^{[42, p. 65]}).

In this judgment, the following elements can be distinguished, which Malik took into account when analyzing the norm: 1) the effectiveness of the practice at the present time; 2) the internal aspect indicating that the practice is well known to people; 3) clarifying the action of custom in the past; 4) diachronic analysis linking judgments 1 and 3 and establishing the identity of past and present practices (this is essential in connection with the recognition of the variability of customs); 5) opinio necessitatis, which includes 5.1) a positive assessment of the practice and 5.2) the negation of a negative assessment of it.

It seems that such reasoning, linking together the signs of custom in the context of establishing a specific norm, should summarize their analysis, and the logical conclusion of identifying the norm of custom is its dogmatic processing, a sample of which is discussed in section 3 (in the case of the custom discussed by Malik, we will talk about the governing norm).

11. Conclusion

In this article, an attempt has been made to show by which methods it is possible to analytically identify the norms of custom. An important place in theory is given most often to the criterion of reaction to a violation of the norm. However, this method is problematic for use in research and practice, for at least two reasons: 1) cases of violation of the norms of custom are required (which does not always happen); 2) this criterion is based on the erroneous postulate that violation of a customary rule always entails legal responsibility in the relevant social group. Thus, this criterion can be applied, but in order to ensure reliable results (or at least conclusions with a high degree of probability), it is necessary to use it in a system with other criteria. The latter can be considered, for example, methods of linguistic analysis of information about custom, which make it possible to establish the presence or absence and nature of the belief in the binding nature of the identified norm. It is important to keep in mind that there is insufficient indication of the existence of practice (the moment of effectiveness) to conclude about the customary nature of a certain rule, since such a conclusion also requires analyzing the aspect of legitimacy (lies in the area of internal belief regarding the binding nature of the rule), which allows us to establish the validity of the norm.

The solution of theoretical issues is necessary for the reasoned formulation of criteria, methods, presumptions that allow conducting a legal and dogmatic analysis correctly. Given the difficulties associated with the explication of opinio necessitatis, it seems that jurisprudence, with the further systematic development of an algorithm for identifying customary norms, could extend to the methods used for this purpose the idea of distinction conducted by E. V. Vaskovsky in relation to the interpretation of the law, arguments giving reliable and probabilistic knowledge ^{[6, pp. 149-188]}. In the light of the above, the discussions that unfolded in Islamic jurisprudence around reliable and probabilistic knowledge and opinion are of interest (see, for example: ^{[47; 49, p. 189-191, 615-616, 676-687, 724-730; 51]}).

Given the insufficiency of the analytical approach in itself, it should also be taken into account that analysis is the condition for the correctness of synthesis as a method of establishing a holistic image of the subject. At the same time, the analysis of the mechanism of formation and functioning of custom should not replace the legal and dogmatic analysis: only with its help, based on the categories of dogma of law, it is possible to clearly fix the legal meaning of the revealed rule.

The conducted research does not pretend to exhaust the topic, and the range of criteria considered for identifying customary legal norms can and should be expanded. It is also a matter of the future to develop an algorithm for the legal and dogmatic analysis of custom, in which the relevant methods should be systematized. At the same time, for the purposes of developing such an algorithm (as well as the development of the theory and policy of custom), it would be useful to adopt a comparative legal approach in which the heuristic potential of the intellectual heritage of the legal traditions of the West, East and Russia would be equally used.