Custom As A Source Of Law

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Custom as a Source of Law

David J. Bederman
Custom as a Source of Law Book PDF

Author : David J. Bederman
Publisher : Cambridge University Press
Page : 128 pages
File Size : 48,7 Mb
Release : 2010-08-16
Category : Law
ISBN : 9781139493666

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Custom as a Source of Law by David J. Bederman Pdf

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a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today?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.

Custom as a Source of Law

David J. Bederman
Custom as a Source of Law Book PDF

Author : David J. Bederman
Publisher : Unknown
Page : 266 pages
File Size : 42,9 Mb
Release : 2010
Category : Customary law
ISBN : 0511797885

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Custom as a Source of Law by David J. Bederman Pdf

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a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today?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.

Custom and Right

Paul Vinogradoff
Custom and Right Book PDF

Author : Paul Vinogradoff
Publisher : The Lawbook Exchange, Ltd.
Page : 116 pages
File Size : 44,8 Mb
Release : 2000
Category : Customary law
ISBN : 9781584770480

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Custom and Right by Paul Vinogradoff Pdf

John M. Zane recommends this work, of which he comments "...the facts and ideas that are called legal can be studied with advantage from the same viewpoint as other branches of social phenomena, such as language, religion, folklore, or customs, that are not legal... The first chapter is called Methods of Jurisprudence, showing the manner in which law develops, sometimes in one way, sometimes in another...The next chapter deals with the particular factors of custom and legislation. It examines, without dogmatizing, the difference between the gradual acceptance of law by means of custom and the conscious, purposeful statement of a law by the law-making power. The next chapter takes a particular instance of the family organization as a fertile source of law in different stages. Finally the last chapter, entitled The Right of Appropriation, carries the discussion into the origins of property and the clashing interests of the individual in his freedom to acquire and contract as against the interests of the social organization. It is all in the easy method of a wise man talking, as if lecturing, upon topics, not seeking to exhaust, but to suggest. The book is stimulating. It will bear reading and rereading. Like all good books, it suggests more than it says..." John M. Zane, Yale Law Journal 35:1026-1027.

The Nature and Sources of the Law

John Chipman Gray
The Nature and Sources of the Law Book PDF

Author : John Chipman Gray
Publisher : Dartmouth Publishing Company
Page : 296 pages
File Size : 54,8 Mb
Release : 1997
Category : History
ISBN : STANFORD:36105060164667

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The Nature and Sources of the Law by John Chipman Gray Pdf

John Chipman Gray (1839-1915) spent the greater part of his professional life as a professor at Harvard Law School where he taught property, trusts and future interests. The Nature and Sources of the Law was first published in 1909. The book is divided into two parts which respectively look at 'Nature' and 'Sources'.In Part I, Gray warns that the study of jurisprudence, in isolation, could lead to dogmatism. Rather he advocates the structure offered by common law with its reliance on flexible interpretations of statutes, the use of all relevant cultural inputs and a highly adaptable approach to the resolution of disputes.Gray, in Part II, turns his attention to sources of the law, and begins with statutes. Here he asserts that judges are the ones who actually turn into law, going against the conventional scholarship that judges merely interprets statutes. He also extensively examines the influence of tradition and the common law.

Customary International Humanitarian Law

Jean-Marie Henckaerts,Carolin Alvermann,Comité international de la Croix-Rouge
Customary International Humanitarian Law Book PDF

Author : Jean-Marie Henckaerts,Carolin Alvermann,Comité international de la Croix-Rouge
Publisher : Cambridge University Press
Page : 610 pages
File Size : 44,5 Mb
Release : 2005-03-03
Category : Law
ISBN : 9780521808996

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Customary International Humanitarian Law by Jean-Marie Henckaerts,Carolin Alvermann,Comité international de la Croix-Rouge Pdf

Customary International Humanitarian Law, Volume I: Rules is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts. In the absence of ratifications of important treaties in this area, this is clearly a publication of major importance, carried out at the express request of the international community. In so doing, this study identifies the common core of international humanitarian law binding on all parties to all armed conflicts. Comment Don:RWI.

The Philosophy of Customary Law

James Bernard Murphy
The Philosophy of Customary Law Book PDF

Author : James Bernard Murphy
Publisher : Oxford University Press, USA
Page : 162 pages
File Size : 54,6 Mb
Release : 2014
Category : Law
ISBN : 9780199370627

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The Philosophy of Customary Law by James Bernard Murphy Pdf

This book attempts to bring greater theoretical clarity to the often murky topic of custom by showing that custom must be analysed into two more logically basic concepts: convention and habit. Customs are conventional habits and habitual conventions. Once we have a clearer understanding of custom we can better grasp the many roles that custom plays in a legal system.

The Cambridge Companion to Medieval English Law and Literature

Candace Barrington,Sebastian Sobecki
The Cambridge Companion to Medieval English Law and Literature Book PDF

Author : Candace Barrington,Sebastian Sobecki
Publisher : Cambridge University Press
Page : 235 pages
File Size : 48,8 Mb
Release : 2019-08-08
Category : Law
ISBN : 9781107180789

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The Cambridge Companion to Medieval English Law and Literature by Candace Barrington,Sebastian Sobecki Pdf

A comprehensive and wide-ranging account of the interrelationship between law and literature in Anglo-Saxon, Medieval and Tudor England.

Customary International Law

Brian D. Lepard
Customary International Law Book PDF

Author : Brian D. Lepard
Publisher : Cambridge University Press
Page : 441 pages
File Size : 43,6 Mb
Release : 2010-01-11
Category : Law
ISBN : 9780521191364

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Customary International Law by Brian D. Lepard Pdf

This book sets out to articulate a comprehensive theory of customary international law that can effectively resolve the conceptual and practical enigmas surrounding it. It takes a multidisciplinary approach and draws insights from international law, legal theory, political science, and game theory. It is anchored in a sophisticated ethical framework and explores the interrelationships between customary international law and ethics.

The Theory, Practice and Interpretation of Customary International Law

Panos Merkouris,Jörg Kammerhofer,Noora Arajärvi
The Theory Practice and Interpretation of Customary International Law Book PDF

Author : Panos Merkouris,Jörg Kammerhofer,Noora Arajärvi
Publisher : Cambridge University Press
Page : 647 pages
File Size : 44,7 Mb
Release : 2022-05-26
Category : Law
ISBN : 9781316516898

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The Theory, Practice and Interpretation of Customary International Law by Panos Merkouris,Jörg Kammerhofer,Noora Arajärvi Pdf

Provides an in-depth study of the theory, history, practice, and interpretation of customary international law.

The Sources of International Law

Hugh Thirlway
The Sources of International Law Book PDF

Author : Hugh Thirlway
Publisher : Oxford University Press
Page : 262 pages
File Size : 54,6 Mb
Release : 2014-02
Category : Law
ISBN : 9780199685394

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The Sources of International Law by Hugh Thirlway Pdf

Because of its unique nature, the sources of international law are not always easy to identify and interpret. This book provides an ideal introduction to these sources for anyone needing to better understand where international law comes from. As well as looking at treaties and custom, the book will look at more modern and controversial sources.

Legal Scholarship as a Source of Law

Fábio P. Shecaira
Legal Scholarship as a Source of Law Book PDF

Author : Fábio P. Shecaira
Publisher : Springer Science & Business Media
Page : 90 pages
File Size : 53,7 Mb
Release : 2013-07-09
Category : Philosophy
ISBN : 9783319004280

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Legal Scholarship as a Source of Law by Fábio P. Shecaira Pdf

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart’s jurisprudence. Indeed, the book’s analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship – or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal – can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.​

The Rule of Unwritten International Law

Peter G. Staubach
The Rule of Unwritten International Law Book PDF

Author : Peter G. Staubach
Publisher : Routledge
Page : 234 pages
File Size : 50,7 Mb
Release : 2018-04-17
Category : Law
ISBN : 9781351207294

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The Rule of Unwritten International Law by Peter G. Staubach Pdf

This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective. Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek’s theory of law as a ‘spontaneous order’, an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible. This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself.

Custom, Law, and Monarchy

Marie Seong-Hak Kim
Custom Law and Monarchy Book PDF

Author : Marie Seong-Hak Kim
Publisher : Oxford University Press
Page : 302 pages
File Size : 40,5 Mb
Release : 2021
Category : History
ISBN : 9780192845498

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Custom, Law, and Monarchy by Marie Seong-Hak Kim Pdf

Custom, Law, and Monarchy explores how law evolved in early modern France, from an amalgam of customs, Roman and canon law, royal edicts, and judicial decisions, to the unified Civil Code of 1804. In exploring the history of this codification of law, Marie Seong-Hak Kim lays out a new way of understanding French history.

Sources of Law, Legal Change, and Ambiguity

Alan Watson
Sources of Law Legal Change and Ambiguity Book PDF

Author : Alan Watson
Publisher : University of Pennsylvania Press
Page : 192 pages
File Size : 55,7 Mb
Release : 1998
Category : Language Arts & Disciplines
ISBN : 0812216393

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Sources of Law, Legal Change, and Ambiguity by Alan Watson Pdf

Why is the law notoriously unclear, arcane, slow to change in the face of changing circumstances? In this sweeping comparative analysis of the lawmaking process from ancient Rome to the present day, Alan Watson argues that the answer has largely to do with the mixed ancestry of modern law, the confusion of sources—custom, legislation, scholarly writing, and judicial precedent—from which it derives.

The Invention of Custom

Francesca Iurlaro
The Invention of Custom Book PDF

Author : Francesca Iurlaro
Publisher : Oxford University Press
Page : 305 pages
File Size : 46,6 Mb
Release : 2021-12-23
Category : Law
ISBN : 9780192652829

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The Invention of Custom by Francesca Iurlaro Pdf

The concept of customary international law, although differently formulated, is already present in early modern European debates on natural law and the law of nations. However, no scholarly monograph has, until now, addressed the relationship between custom and the European natural law and ius gentium tradition. This book tells that neglected story, and offers a solid conceptual framework to contextualize and understand the 'problematic of custom', namely how to identify its normative content. Natural law doctrines, and the different ways in which they help construct human reason, provided custom with such normative content. This normative content consists of a set of fundamental moral values that help identify the status of custom as either a fundamental feature or an original source of ius gentium. This book explores what cultural values and practices facilitated the emergence of custom and rendered it into as a source of the law of nations, and how they did so. Two crucial issues form the core of the book's analysis. Firstly, it qualifies the nature of the interrelation between natural law and ius gentium, explaining why it matters in relation to our understanding of the idea of custom. Second, the book claims that the process of custom formation as a source of law calls into question the role of the authority of history. The interpretation of the past through this approach can thus be described as one of 'invention'.