Ethics and Right: A Philosophical and legal view of the ethical function of custom and tradition in legal sources (original) (raw)

2024, AZERBAIJAN NATIONAL ACADEMY OF SCIENCES. SOCIAL SCIENCES

Custom and tradition, which is one of the sources of law, arises from the will of a person as an unwritten rule, and therefore it is divided into a general and a special part. General customs are related to decisions and judgments and its system of operation is related to the judicial process, but special customs are related to the position of the citizen. As for the social principles of custom and tradition, according to philosophers and legal philosophers, the source of law consists of two parts, one of which is law and the other is custom. Custom and tradition applies to all sources of law other than law and is considered part of judicial activity; on the other hand, custom and tradition are considered a legal rule even without legislative intervention, because it includes other sources of law in addition to judicial procedure and rules. Custom and tradition plays a major role in the creation of laws, it is a kind of foundation for the creation of laws. Even some laws are traditions that the legislative body prepares and regulates them over time. As for the relationship between civil law and custom, there are two main aspects specific to custom, one of which is the rule of evaluation, and the other is a necessary act and action. These rules are approved by members of the public and therefore custom and tradition are closely related to public duties. In the present article, referring to the authoritative works of philosophers and legal philosophers, not only the legal and ethical aspects of custom and tradition, but also the function and duties in the society have been studied in a comparative aspect. Key words: Right, Ethics, Custom and Tradition, Law, Morality, Civil Rights, Society.