By David J. Bederman
A relevant puzzle in jurisprudence has been the function of customized in legislations. customized is just the practices and usages of distinct groups. yet are such customs legally binding? Can customized be legislation, even ahead of it truly is famous through authoritative laws or precedent? And, assuming that customized is a resource of legislations, what are its constituent parts? Is evidence of a constant and long-standing perform enough, or needs to there be an additional component - that the utilization is pursued out of a feeling of felony legal responsibility, or, at the least, that the customized is cheap and efficacious? And, such a lot tantalizing of all, is customized a resource of legislations that we should always embody in smooth, refined criminal platforms, or is the inspiration of legislation from less than outmoded, or perhaps harmful, at the present time? This quantity solutions those questions via a rigorous multidisciplinary, old, and comparative process, supplying a clean viewpoint on custom's enduring position in either family and foreign legislations.
Read Online or Download Custom as a Source of Law PDF
Best legal theory & systems books
This publication brings jointly the topics of gender, sexuality, violence and firms. The authors synthesize the literature and examine which has been performed in those fields and supply a coherent framework for figuring out the inter-relationship among those suggestions. the significance of violence and abuse, and especially men's violence to ladies, young children and different males has been good validated, particularly via feminist and a few pro-feminist learn.
Tort legislations is the physique of legislation governing negligence, intentional misconduct, and different wrongful acts for which civil activities may be introduced. the traditional knowledge is that the foundations, thoughts, and constructions of tort legislations are impartial and impartial, freed from concerns of gender and race. within the degree of damage, Martha Chamallas and Jennifer Wriggins end up that tort legislations is something yet gender and race impartial.
Hobbes's political notion provokes a perennial fascination. It has develop into rather well-liked lately, with the surge of scholarly curiosity evidenced by way of a couple of monographs in political idea and philosophy. whilst, there was a flip in criminal scholarship in the direction of political thought in a manner that engages recognisably Hobbesian issues, for instance the connection among safeguard and liberty.
- Philosophy of Law: Collected Essays Volume IV
- Stanley Fish on Philosophy, Politics and Law: How Fish Works
- Philosophical Foundations of the Law of Unjust Enrichment
- The Legal Regulation of Pregnancy and Parenting in the Labour Market
Additional resources for Custom as a Source of Law
68 Or, put another way, this illustrates the tension in customary law between what is said and what is done in the enforcement of a social norm. But in other cases, Malinowski observed a high degree of compliance with custom among the Trobriands. In maintaining family order (which was the basis for all property law), they were especially uncompromising. In a matrilineal system of authority, this meant that a maternal uncle (not the father) is the head of a clan unit and a father must favor a nephew, not his own son.
105 Custom’s cultural paradox – as an elite or popular institution, as a token of nationalism or of group identity, and as reflecting positive commands or natural values – remains as much a conundrum today as throughout the past two millennia. 3 History The Common Law and Custom If custom was largely perceived as a cultural phenomenon for medieval Continental jurists, it took on a decidedly historical cast in England. This would have a profound effect on attitudes towards custom in the AngloAmerican common-law tradition, particularly with the normative hierarchy of custom in relation to other law sources, the requisite proofs of custom, and other restraints on evolving customary norms.
One of these was the idea that the judge-made common law was itself a customary regime. The other was the continuation of a more traditional notion of local or special systems of legal practices being recognized in derogation of the common law. These two strands of English legal thought were woven together in the writings of Coke, Selden, and Hale as part of the English constitutional struggles of the sixteenth and seventeenth centuries, but were only finally fully synthesized and digested in William Blackstone’s Commentaries on the Laws of England (1765).