The Nature of Customary Law: Legal, Historical and Philosophical Perspectives

by Edited by Amanda Perreau-Saussine , James B. Murphy

• ISBN13: 9780521875110
• ISBN10: 0521875110
• Format: Hardcover
• Copyright: 2007-06-18
• Publisher: Cambridge University Press

Summary

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.

Table of Contents

List of contributors	p. vii
Table of cases	p. viii
The character of customary law: an introduction	p. 1
Custom and morality: natural law, customary law and ius gentium	p. 11
Pitfalls in the interpretation of customary law	p. 13
The moral role of conventions	p. 35
Habit and convention at the foundation of custom	p. 53
Custom, ordinance and natural right in Gratian's Decretum	p. 79
Vitoria and Suarez on ius gentium, natural law, and custom	p. 101
Custom and positivity: an examination of the philosophic ground of the Hegel-Savigny controversy	p. 125
Custom and law: custom, common law and customary international law	p. 149
Custom in medieval law	p. 151
Siege warfare in the Early Modern Age: a study on the customary laws of war	p. 176
The idea of common law as custom	p. 203
Three ways of writing a treatise on public international law: textbooks and the nature of customary international law	p. 228
Custom, common law reasoning and the law of nations in the nineteenth century	p. 256
Custom in international law: a normative practice account	p. 279
Customary international law and the quest for global justice	p. 307
Index of names	p. 336
Table of Contents provided by Ingram. All Rights Reserved.