Legal Theory Systems

Download Custom as a Source of Law by David J. Bederman PDF

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By David J. Bederman

A critical puzzle in jurisprudence has been the function of customized in legislation. customized is just the practices and usages of designated groups. yet are such customs legally binding? Can customized be legislation, even sooner than it's famous by means of authoritative laws or precedent? And, assuming that customized is a resource of legislation, what are its constituent parts? Is evidence of a constant and long-standing perform enough, or needs to there be an additional aspect - that the utilization is pursued out of a feeling of felony legal responsibility, or, no less than, that the customized is affordable and efficacious? And, such a lot tantalizing of all, is customized a resource of legislation that we must always embody in glossy, refined criminal structures, or is the inspiration of legislation from lower than outmoded, or maybe risky, at the present time? This quantity solutions those questions via a rigorous multidisciplinary, old, and comparative procedure, providing a clean viewpoint on custom's enduring position in either family and foreign legislations.

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21 Some of the Digest extracts clearly indicate such a result. For example, in Julian’s statement (the remainder of which is heavily contested in the literature and will be explored below), “in those cases where we have no applicable written law [what is applied] is the practice established by customs and usage. ”22 In any event, by 212 ce and the constitutio Antoniniana – in which Roman citizenship was extended to all free inhabitants of the Empire – any distinction between ius civile and ius gentium was swept away, and, at the same time, local or provincial customs were recognized as binding in the legal practice of the Dominate and later Empire.

Blackstone was very precise about what legal events would, or would not, interrupt a custom: Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only… will not destroy the custom. 59 He correctly notes that the lack of exercise of a customary right clouds its validity in two ways.

But this must be understood with regard to an interruption of the right; for an interruption of the possession only… will not destroy the custom. 59 He correctly notes that the lack of exercise of a customary right clouds its validity in two ways. 62 So much for the temporal aspects of custom’s validity. ” The first of these was that 34 Customary Law in Perspective the custom “must have been peaceable, and acquiesced in; not subject to contention and dispute. ”63 Some scholars64 have read this as being a warning that custom cannot be procured by stealth or fraud, or, in other words, that consent must manifest an open and notorious claim of right.

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