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The Nature of Customary Law
By
Amanda Perreau-Saussine, James B. Murphy
Description
Some legal rules are not laid down by a
legislator but grow instead from informal social practices. In
contract law, for example, the customs of merchants are used by
courts to interpret the provisions of business contracts; in tort
law, customs of best practice are used by courts to define
professional responsibility. Nowhere are customary rules of law more
prominent than in international law. The customs defining the
obligations of each State to other States and, to some extent, to its
own citizens, are often treated as legally binding. However, unlike
natural law and positive law, customary law has received very little
scholarly analysis. To remedy this neglect, a distinguished group of
philosophers, historians and lawyers has been assembled to assess the
nature and significance of customary law. The book offers fresh new
insights on this neglected and misunderstood form of law.
• Offers a comprehensive and
interdisciplinary approach to the problems of customary law •
Offers conceptual bases and a rich intellectual context for further
philosophical work on the relationships between morality, custom and
customary law • Bridges the increasingly irrelevant divide
between civil law and common law traditions
Contents
Introduction Amanda Perreau-Saussine
and James B. Murphy; Part I. Custom and Reason [or Morality?]:
Natural Law, Customary Law, And Ius Gentium: 1. Pitfalls in the
interpretation of customary law Frederick Schauer; 2. The moral role
of conventions Ross Harrison; 3. Habit and convention at the
foundation of custom James B. Murphy; 4. Custom, ordinance and
natural right in Gratian\\\'s Decretum Jean Porter; 5. Vitoria and
Suarez on Ius Gentium, Natural Law, and Custom Brian Tierney; 6.
Custom and positivity: an examination of the philosophic ground of
the Hegel-Savigny controversy Christoph Kletzer; Part II. Custom and
Law: Custom, Common Law, and Customary International Law: 7. Custom
in medieval law David Ibbetson; 8. Siege warfare in the early modern
age: a study on the customary laws of war Randall Lesaffer; 9. The
idea of common law as custom Alan Cromartie; 10. Three ways of
writing a treatise on public international law: textbooks and the
nature of customary international law Amanda Perreau-Saussine; 11.
Custom, common law reasoning and the law of nations in the nineteenth
century Michael Lobban; 12. Custom in international law: a normative
practice account Gerald J. Postema; 13. Customary international law
and the quest for global justice John Tasioulas.
Contributors
Amanda Perreau-Saussine, Frederick
Schauer, Ross Harrison, James Bernard Murphy, Jean Porter, Brian
Tierney, Christoph Kletzer, David Ibbetson, Randall Lesaffer, Alan
Cromartie, Michael Lobban, Gerald J. Postema, John Tasioulas
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