Custom as a Source of Law by David J. Bederman

By David J. Bederman

A significant puzzle in jurisprudence has been the function of customized in legislations. customized is just the practices and usages of exact groups. yet are such customs legally binding? Can customized be legislation, even earlier than it's famous via authoritative laws or precedent? And, assuming that customized is a resource of legislations, what are its constituent components? Is facts of a constant and long-standing perform adequate, or needs to there be an additional factor - 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, so much tantalizing of all, is customized a resource of legislation that we should always include in smooth, refined felony structures, or is the thought of legislation from lower than superseded, or perhaps risky, this day? This quantity solutions those questions via a rigorous multidisciplinary, old, and comparative method, supplying a clean viewpoint on custom's enduring position in either household and overseas legislations.

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The answer from Roman law is that custom is, indeed, a positive source of obligation, more akin to statute than some inchoate natural-law sense of morality or right or innate practices. ”45 Culture 21 If Roman law’s opinio necessitatis doctrine creates an incongruity at the birth of a customary norm, so, too, does it present a contradiction when a custom is in its death-embrace with a statute or its own obsolescence. 46 The processes of customary law formation are reversible: a practice develops contrary to a previous usage, with a growing sense that the previous custom is not binding.

So, far from being an anachronistic beginning to this volume, problems raised by the “primitive” character of custom in all legal cultures shall be a recurring theme here. 2 Culture The Western Legal Tradition of Positivism If anthropology and ethnography have conditioned our understanding of the law of preliterate peoples and nonstate societies, cultural traditions have formed our judgments about the role of customary norms in “sophisticated” legal systems. In large measure, these cultural and social values have been transmitted to us today through the medium of the Western legal tradition.

S. legal circles – will also be considered in order to give a full tour d’horizon of the common-law tradition’s historic engagement with the role of custom in law. 27 28 Customary Law in Perspective The Pre-Blackstonian Epoch As has already been discussed, the ius commune in England managed to combine elements of canon law, the law of the newly emerging royal courts, and preexisting customary regimes (especially in manorial and urban contexts). 3 From these modest beginnings, customary practices in English law came to be more regularly and systematically observed.

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