Custom as a Source of Law

This volume offers a fresh perspective on custom's enduring place in both domestic and international law.

David J. Bederman (Author)

9780521897044, Cambridge University Press

Hardback, published 16 August 2010

284 pages
22.9 x 15.2 x 1.7 cm, 0.55 kg

"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

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a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today?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

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.

Subject Areas: Public international law [LBB], Legal history [LAZ], Jurisprudence & philosophy of law [LAB]