Custom as a Source of Law

by David J. Bederman

Overview

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a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today?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

Product Details

ISBN-13:	9780521897044
Publisher:	Cambridge University Press
Publication date:	08/16/2010
Pages:	284
Product dimensions:	5.90(w) x 9.00(h) x 0.80(d)

About the Author

David J. Bederman is K. H. Gyr Professor in Private International Law at Emory University. Professor Bederman has published extensively on diverse legal topics, including legal history, constitutional law, and international legal theory and practice. In addition to a number of books and dozens of articles and essays, his major publications include Globalization and International Law (2008), The Classical Foundations of the American Constitution (2008), The Spirit of International Law (2002), International Law in Antiquity (2001), and International Law Frameworks (2001).

Table of Contents

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.

Editorial Reviews

"In comparing these diverse areas of law, this rich study draws on an impressive array of methodologies and disciplines, including anthropology, history, psychology, and economics. Although Professor Bederman’s vision of custom is familiar in many ways — he adheres to the traditional view that custom involves both objective and subjective components — his contribution is nonetheless significant in its delineation of the jurisprudential and practical factors that explain custom’s staying power."
- Harvard Law Review

From the Publisher