Customary and positive law in Serbia

Abstract

In order to fully and properly understand the essence of customary law, a joint explanatory endeavor of legal, ethnological, and sociological science is needed. During the last two centuries, the relationship between customary and positive law passed through two phases. The first phase was marked by the incredible strength and resistance of the customary law, which was deeply rooted in the patriarchal Serbian society. Its strength was such, that it managed to overpower the modern Austrian law during the creation of the Serbian Civil law code, despite the efforts and desires of the law code creator, Jovan Hadžić, to suppress it. Customary law became the sole regulator of marriage, family, and inheritance law, thus becoming a part of the positive law. The second phase took place after the Second World War. By promoting a new system of acceptable social and moral values, the new, revolutionary, socialistic law fiercely fought the customary law and rural traditions, labeling them as obsolete relicts of a class-divided society. However, customs showed their remarkable resilience, and found a way to survive this strife - quite ironically - by using the existing laws and legal loopholes, masking themselves sometimes like a chameleon. Maybe the best illustration of this conflict between positive and customary law can be found in the inheritance law, as it is a complex branch of law, which was shaped not only by laws, but also by the centuries-old traditions of our people. To be able to fully understand the customary inheritance law, one must first analyse the institutes of family, marriage, and kinship. Although many customs have already disappeared in the XXI century by overcoming the patriarchal notions in the modern society, some customs remained, but also some new have, due to various reasons, managed to emerge, making the topic of this paper quite contemporary