Custom as a Source of Law
Cambridge University Press, 8/16/2010
EAN 9780521897044, ISBN10: 0521897041
Hardcover, 284 pages, 22.9 x 15.2 x 1.8 cm
Language: English
Originally published in English
A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law.
Part I. Customary Law in Perspective
1. Anthropology
custom in pre-literate societies
2. Culture
the western legal tradition of positivism
3. History
the common law and custom
4. Economics, socio-biology and psychology
the human impulse of custom
Part II. Custom in Domestic Legal Systems
5. Family law
6. Property
7. Contracts
8. Torts
9. Constitutional law
Part III. Custom in International Law
10. Private international law
international commercial usage
11. Public international law
custom among nations
Conclusion
how and why custom endures.