Judicial law-making in Russia on land issues in the second half of the XIX – early XX centuries in the process of applying customary law

The article examines the impact of the norms of customary law applied in the peasant environment in the second half of the 19th century to the judicial law-making of land reformers. The purpose of the article is to identify the legal grounds that were taken into account when drafting the legislation of the Peasant Reform of 1861 to create an adequate and at the same time effective justice system for peasant land issues in the context of fundamental social transformations caused by the abolition of serfdom and the need to develop capitalist relations in Russia. The reformers assumed that the rural community would successfully replace the authority of the landowner, become the lower unit of local government and the state taxation system. The legalization of the legal customs of the peasants was taken as a forced temporary measure, necessary in the early stages of the development of peasant self-government; The existence of adaptive mechanisms in the established customary legal system to preserve the viability and stability of the peasant community was taken into account. The main function of the peasant community was the distribution of land and the settlement of land use relations among its members. The created peasant class estate courts were also considered as temporary, later as the peasants became closer to other estates, their subordination to general civil laws was envisaged. The volost courts guided by custom and law became the main element of rural selfgovernment and the mechanism for the implementation of customary law in land relations. The main subject of this right was identified peasant community, which resolved issues of land use, land relations, economic and social conflicts. However the legislator did not clearly define that the difference in the proceedings of the volost and general courts consisted in the property level of the cases and the limit of punishments – only certain categories of different legal matters were listed that were subject to the volost court. Created by the Judicial Reform of 1864 the all-tribal peace courts could consider the same minor offenses on the part of the peasants using the rules of the local customary law “according to conscience” as the volost courts but at a higher property level. Priority was given, as in the county court, to the reconciliation of the parties. The increase in the number of claims on land issues in the late XIX – early XX centuries in the conditions of the development of the land market and the increase in real estate operations was reflected by the increased demand of the peasants for the consideration of land issues and related property relations by courts on the basis of official legislation.