Custom as a Source of Law
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a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today?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.
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The Western Legal Tradition of Positivism
The Common Law and Custom
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actors application Berman binding Blackstone Blackstone’s Chapter CIL norms codification commercial custom commercial norms consent constitutional contemporary context contract customary family law customary international law customary law customary norms customary regimes decision disputes Droit enforced English common law established evidence family law formation Gluckman Gratian H. L. A. Hart Hawaii Hawaiian Hayek historical Hoebel institutions Int’l ius gentium judges judicial jurisdictions jurisprudence jurisprudential jus cogens Justice law merchant law’s legal cultures legal obligation legal systems legislation lex mercatoria Llewellyn Malinowski marriage medieval modern nations Nigeria note 12 note 5 ch observed opinio juris particular parties positivist Posner practice Press primitive principles proof provisions reason recognized relevant role of custom Roman law rules separation-of-powers social source of law South Africa statute supra note Supreme Court text at notes theory tion tort trade usages traditional transnational treaty Uniform Commercial Code usage of trade