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UDC 101
A.N. Khalturin
North (Arctic) federal university of M.V. Lomonosov
Arkhangelsk, Russia
[Обычное право и этническое правосознание]
The article considers the relevance of the research topic, a brief overview of the concepts of customary law in its
legal, cultural and socio-anthropological aspects. Socio-philosophical approach allows us to investigate the customary
law as a product of the functioning of the ethnic legal consciousness. The paper focuses on determining the nature of
ethnic consciousness, its structure and relation to ethnic identity. It proposes the comparative analysis of ethnic consciousness and corporate consciousness that is recognized today is extremely relevant in the study of public consciousness. As research methods ethnic consciousness proposes the use of dialectical categories of money, special and general, that allows us to consider changes in the ethnic consciousness through the transformation of individual consciousness from different social or ethnic groups.
Key words: legal consciousness, customary law, ethnic law, self-conscience, legal pluralism, traditional culture.
Special role in the development of ethnic identity plays customary law, the revival of the values for which the ethno-cultural development of indigenous peoples is celebrated on the international level in national legal systems. UN Declaration on the Rights of Indigenous Peoples proclaims the right of indigenous peoples to the development and preservation of juridical systems or
customs. [4] ILO Convention number 169 contains the requirement that when applied to the peoples
of national laws properly be taken into account their customs or customary law. [10]
Respect to the institution of the legislator indigenous customary law is dictated by a number
of laws passed in the Russian Federation. Federal law requires that the decision on the internal organization of communities of small peoples can be taken on the basis of traditions and customs of
the indigenous peoples, contrary to federal law and the laws of the Russian Federation and is not
detrimental to the interests of other ethnic groups and citizens [7].
Indigenous customary law has a distinct ethnically oriented in nature, because it is part of the
ethnic culture. Customary law rests on the unique characteristics of the ethnic spiritual culture, ethnic reproducible public consciousness.
Our task - to determine how ethnic consciousness interacts with the norms of legal custom,
tradition plays a role in the formation, strengthening and development of ethnic justice.
In the literature identified a number of approaches to the nature of customary law. Legal approach suggests to consider customary law as a historical source (form) the rights of the previous
law. Cultural approach sees the right part of the culture, cell culture. In this paradigm, customary
law is perceived as a phenomenon of traditional culture. Anthropological approach found its expression in the concept of legal pluralism. Experts identify two types of legal pluralism. The first type,
called "comparative" (Vanderlinden), "underdeveloped" (Griffiths) or "pluralism of state law"
(Woodman), denotes a legal scheme, in which the dominant legal order implies or openly admits
the existence of another kind of law, for example, common law, or church law. In a second meaning
of legal pluralism means the coexistence of two or more legal systems, each of which has its own
source of legitimacy and validity [2, p. 12].
More general socio-philosophical approach that allows to distinguish the most important
characteristics of the customary law, considering it as a social system as a result of the operation of
public justice. At the heart of social and philosophical approach based on the idea of correlation relationship between customary law and justice, and legal practice is "a form of objectified sense of
justice", "the expression of a collective sense of justice." As I observe the custom, explains Russian
lawyer NM Korkunov, my sense of justice is expressed agreed with the sense of justice of others,
observing the same custom [11, p. 296-297].
A broader interpretation of the content of customary law proposed MF Vladimir-Budanov.
Customary law, in his opinion, expressed by: 1) a repeated legal actions, 2) acts in legal transactions, 3) in the judicial acts, 4) in the symbols and 5) in the verbal formulas (legal proverbs, some of
which were the following forms of law and many have survived to the present day from the time of
ancient) [3]. It appears that the level of development of legal culture, this system fully reflects the
diversity of forms of expression of customary law. To this we must add the various forms of dispute
resolution, the types of the People's Court (Court of neighbors, community, family, etc.), the application of sanctions, reproducible ethnic consciousness. All of these elements are usually legal system is equally predetermined level of legal awareness and legal culture, and legal experience of
previous generations. Continuity same customary law indicates the relative independence of justice
in his class or ethnic transcription.
A special type of corporate social norms are norms - norms of intra-group nature that do not
have universal validity and the rights and general validity of the law that makes it looks like a customary law in its legal sense. Breach of corporate standards involves the application of appropriate
sanctions under the charter of the organization [14, c. 79]. The local nature of the action of specific
corporate standards allow them to be compared with customary law, thereby accepting the functioning of the local corporate consciousness production collective, public associations, movements and
parties. At the same time, corporate consciousness has all the components of social consciousness political, religious and other forms. The core of this consciousness is, as a rule, values and interests,
bringing together people in work groups, social movements, and a variety of other structures of civil
society. Thus, for the corporate consciousness, as well as for ethnic consciousness characterized by
a limited range of media consciousness, locality, the relative autonomy and independence from the
public ideology.
Dialectical-materialist paradigm examines the phenomenon of ethnic consciousness as a form
of social consciousness. In the most general representation of ethnic consciousness is perceived as a
set of attitudes and beliefs of members of a particular ethnic group.
Not stopping in more detail in the discussion of the relationship between "national" and "ethnic" communities, pay attention to the understanding of the ethnic community as initially presenting
traditional domestic sphere of human activity, a common language and identity, are directly related
to human reproduction as a basic prerequisite for the existence of society. National also suggests a
common set of people, in which they are united by ethnic, economic, economic, territorial and political (in the developed state) features without being reducible to any of them. In a certain sense, the
national community to correctly understand and tribal organizations of people a common origin,
and the nation, in Russian tradition understood as ethnonation and nation in the Western tradition is
understood as co-citizenship [15, c. 32-33].
Ethnic consciousness, consider VN Lexin, EN Andreeva, is the most important and most stable in time etnobytiya component that can even survive it. Ethnic consciousness has two components: 1) the outlook, including organically ethnic spiritual values as a priority, and 2) thinking patterns that define norms of behavior, evaluation of past and present, forecasting the future from the
standpoint of priority or recognition of the essential ethical values. The concept of VN Leksina and
EN Andreeva suggests that it gives individual ethnic consciousness (self-consciousness) or collective (public, group consciousness) the belief that ethnic values really exist, that they really value,
and that on this basis, it should identify themselves with the ethnic group [12].
Widely used in social philosophy was the category of "ethnic identity".
Development of the theory of ethnic identity YV Khotinets considered in three directions. The
first is an evolution of the concept of identity in a broad historical perspective, the analysis which
allows to understand consciousness as reflective consciousness. The second line of development is
related to the definition of its social determination. Because of this self-consciousness associated
with the realization of man himself as a representative of a human community, social groups, and
culture. Ethno-cultural nature of consciousness is awareness (representation) of community psycho-
logical characteristics, common origin, historical past, culture and ethnic territory and thus awareness of belonging to a particular people "[16].
According to some researchers, ethnic consciousness operates on two levels:
obscheetnicheskom (as consciousness of all the people) and the local, ie in the consciousness of the
ethnic group [1].
"Ethnic Identity" is a reflection of the consciousness of the person or group (collective, community). "Ethnic consciousness" is considered as a set of beliefs in the economic, legal, moral, religious spheres regulating vital functions of the ethnic group as a whole. Ethnic consciousness reproduces the values of spiritual culture of previous generations, correlating them with the challenges of
the modern era.
Ethnic consciousness is not homogeneous, uniform for all ethnic groups. Its content affects
territorial characteristics, socio-economic conditions of ethnogenesis, the social status of its bearer,
another ethnic environment, occupation, and, of course, age.
In the study of ethnic consciousness from a philosophical position appropriate to use such categories of dialectics as a single, special and general. As an "individual" in this case is the individual
consciousness, constantly changing under the influence of the realities of the material world.
Changes in individual consciousness dictate the transformation of consciousness of certain social
groups in the structure of the ethnic group, treated as a "special" - the collective consciousness of
ethnic elites, the administrative apparatus, ethnic bureaucracy, social workers (teachers, doctors,
intellectuals) and so on. The category "general" ethnic covered consciousness of the whole community.
Factors influencing the content of both individual and group (collective) ethnic consciousness,
should be referred in the first place, such ethno-social markers as area of residence and level of education of the ethnic community. As an example, the data for these items in the ethnic groups living
in the European North of Russia on the results of the National Population Census 2010. The table
shows the indicators that we selectively made based on the Census of 2010, the most significant for
the purposes of our work.
Thus, we observe heterogeneity of ethnic consciousness northern ethnic groups. Firstly,
Karels, Veps and Finns aged 15 years and older, ie in an age when consciously formed values of
ethnic identity, when a man quite consciously identify themselves with a particular ethnic community, most of whom live in urban areas under other ethnic environment and isolation from the territory of traditional nature, making it difficult to maintain traditional lifestyles and livelihoods. Secondly, the majority of urban residents of northern ethnic groups have higher or vocational education, which directly affects the assimilation of indigenous northern peoples, thus changing the structure and priorities of development of ethnic consciousness. Third, revealed an interesting pattern on
the level of education in urban and rural representatives of ethnic groups, excluding the Nenets and
Sami. The level of education in urban Karels, Veps, Finns and Komi ranges from 62.57% to 64.25
Komi% Finns and rural residents varies from 39.19% in Komi to 43.8% for the Finns. Of course,
the socio-demographic transformation must radically change the structure of the vectors and the development of ethnic consciousness. In the context of universal and absolute ownership of the population of the Russian language prerequisites transformation of ethnic consciousness are the most
important for ethnotransformational assimilation processes.
The legal component of ethnic consciousness plays some customary laws, painted in "ethnic
tone." If we recognize the one hand, the uniqueness and individuality of any ethnic culture, and on
the other - the diversity of ethnic cultures, we must recognize the existence of ethnic component in
the legal structure of ethnic consciousness.
Right in its usual version is one of the most powerful social regulators ethno-cultural development and interaction. Special fastening role of customary law in the ethnic minority peoples
minds. Despite the provision of public rights of indigenous peoples sufficient volume of special
housing collective and individual rights, protect minority ethnic groups from the tectonic shifts assimilation can only customary law, which has a dual nature. On the one hand, customary law preserves the integrity and plays the main element of normative culture - ethnicity and ethnic con-
sciousness of justice, and on the other - is a product of the development of ethnic consciousness.
Legal consciousness ethnic group can only maintain its relative autonomy and independence, if it is
able to "reformat" according to the new social realities (economic, political, ethnic and cultural,
etc.). Etnobytiya and external challenges other ethnic world.
K. von Benda-Beckmann came to the conclusion that the existence of two types of customary
law: the local law in its form in which it is formulated and applied by the local population, and the
"common law" or "customary law" in its form, in which it applies to public institutions. Of course,
one can not speak of complete independence of these two types of rights: they are linked to a complex system of public law relationship [2, p. 17-18].
Ethnic customary legal system formed ethnic sense of justice on the everyday, everyday level.
Ethnic justice of the indigenous peoples of, for example, in the process of developing their traditional activities and traditional way of life. And if the state recognized and guaranteed traditional
forms etnobytiya, the absolute actualization subject to traditional forms of ethnic awareness. The
peoples of the North Caucasus, for example, in the ethnic sense of justice there is interpenetration of
ideas and interaction of the three legal systems - the law adatskogo and Islamic law.
The literature repeatedly expressed views on the need for the formation of the northern territories of special rules governing the ethno-cultural relationships native and alien population - "Samoyed right" A. Zhuravskoye, "Northern Law" and "North code of conduct" proposed VN Lexin and
EN Andreeva.
By their nature, "Samoyed right" is a set of legal practices, the most rational regulated the reproduction of natural resources as the basis etnobytiya Nenets (Samoyed) and other polar nations
that AV Zhuravskiy proposed to incorporate into the Russian legislation. [5]
"Northern Law", by contrast, is a code of "All-Russian laws and local regulatory acts confirming the action throughout the North obscheregulyativnyh state laws, add new (usually more stringent and detailed) rules and regulations ..." [12, p. 108].
On the understanding of law as one of the elements of ethnic traditional regulatory founded
the concept of "ethnic customary law" IB Lomakin. Exploring ethnic customary law in the legal
plane, she calls an essential feature in a traditional type of social system of its collective conditioning, and "state law must be organized in a traditional ethnic environment successor customary law
and consolidate certain existing legal relations" [13].
Our research led to the conclusion that the state and ethnic customary law operate in the traditional culture of indigenous peoples in parallel. Analysis of the national legislation of a number of
autonomous regions of the Russian Federation allows you to emphasize in regional legislation modern customary law component. On the one hand, the traditions and customs of indigenous peoples
recognized by law as a regulator of social relations. On the other, customary law are incorporated
into modern legislation. As examples of such incorporation give some provisions of the Nenets Autonomous Okrug "Reindeer breeding".
Firstly, the law as a regulator of relations in the sphere of reindeer recognized "the traditions
and customs of indigenous peoples and ethnic communities that do not contradict the legislation of
the Russian Federation and the autonomous region" [6]. Secondly, the customs and traditions of the
indigenous peoples of the North, along with modern technology, Nenets legislator has based system
content deer. And together they provide maximum economic efficiency of reindeer. Third, the basic
legal test for determining the status of herders and chumrabotnitsy recognized maintaining their traditional way of life. The difference is in the functions - reindeer herder busy breeding and grazing
deer and reindeer herders chumrabotnitsa serves life. However, the legal status of herders and
chumrabotnitsy based not so much on the priorities of the Russian labor law, but rather on ethnocultural notions of functional responsibilities of these workers formed the ethnic consciousness of
traditional society. Fourth, branding deer as one of the prerequisites for reindeer herding dates back
to ancient legal custom northern ethnic groups. The modern version of the legal custom duties expressed in reindeer owners have a brand (ear tag), a model of which shall be recorded in the management of agricultural district administration. Fifth, herders in accordance with Russian law and
customs of indigenous peoples have the right to use the natural resources located in the territories of
traditional land use for traditional way of life.
Thus, we see how the ethnic sense of justice continues creative reproduction of legal customs
and traditions are set out in legal psychology values of traditional culture. Legal practices provide a
normative culture of traditional society. In ethnic legal custom manifested a subjective spirit, soul,
consciousness of the people, its mentality, allows you to save and play the ethnic identity in the new
socio-economic realities. One of the most important tasks of Russian ethnographers, lawyers, philosophers, becomes a study of customary laws of indigenous ethnic groups, the codification of legal
practices in all forms of objectification "of ethnic consciousness." This will significantly strengthen
the foundation of the traditional culture of indigenous peoples, to suspend the processes of assimilation and increase ethnic and cultural interaction.
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