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Customary Law in the Modern World is the study of a coherent and well-established legal system, which is now operating in the context of a modern nation-state and therefore poised between remaining relevant and the threat of marginalization. Focusing on Sudan, the author places customary law in its historical and cultural context, analyzing the fundamental and traditional values that underlie customary law and the impact of the war between the North and the South that lasted intermittently for half a century. He deals with the substance of customary law, covering a wide variety of areas: family law, property law, torts and criminal liability. Drawing on interviews conducted with judges, legislators and practicing lawyers on customary law and its future in the modern context, the book challenges the development of customary law to build on the positives of tradition and the reform of its shortcomings, particularly in the areas of human rights, gender equality and the protection of children. This book fills a gap in the literature on customary law, and will be of great interest to anyone interested in law, anthropology and politics.
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 insights on this neglected and misunderstood form of law.
"Law in Modern Society" is a comparative study of the place of law in societies as well as a criticism of social theory. Under what conditions do different kinds of law emerge? What are the bases of the rule of law ideal that marks advanced liberal, capitalist societies? What can the study of law teach us about social hierarchy and moral vision in these societies, and, indeed, about the specificity of Western civilization? Why do we find it necessary to struggle for the rule of law and impossible to achieve it? What political possibilities are closed or opened by present-day changes in the established styles of legality and legal thought? Unger deals with these questions in a broad range of historical settings. But he also relates them to the central issues of social theory: the method of explanation, the conditions of social order, and the nature of 'modern' society. the book argues that to resolve its own internal dilemmas the science of society must once again become both metaphysical and political.
This book promotes discussion and understanding of customary law and explores its continued relevance in sub-Saharan Africa. It considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form and status from legislation and common law.
Recent years have seen an increased interest in the variety of cultures co-existing within one state, and a growing acknowledgement of the values ensconced in pluralistic social structures. this book examines the manner in which indigenous people can function in modern states, preserving their traditional customs, while simultaneously adapting aspects of their culture to the challenges posed by modern life. Whereas it was formerly assumed that these tribal frameworks were doomed to extinction, and some states even encouraged such a process, there has been a revival in their vitality, linked to a recognition of their rights. The book offers a comprehensive survey of various aspects of tribal life, focusing on political issues such as the meaning of sovereignty, legal issues dealing with the role of custom and social issues concerned with sustaining communal life. A focused study is made of a whole series of legal factors, relating to possession and ownership of land, religious rites, the nature of polygamous marriages, the assertion of group rites, the manner of peacefully resolving disputes and allied questions. Recent judicial decisions are analysed as a reflection of the far-reaching changes that have taken place, in a process that has seen the former disregard of basic rights of indigenous people being replaced by an awareness of the injustices perpetrated in the past and a willingness to seek to redress them. The comparison between approaches of different English-speaking countries provides an account of interwoven developments.
This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective. Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek’s theory of law as a ‘spontaneous order’, an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible. This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself.
Originally published: New York: New York University Press, 1956. x, 438 pp. This book consists of papers delivered by participants in the conference sponsored by the New York University Institute of Comparative Law to honor the 150th anniversary of the French Civil Code, which was the largest public celebration of the event in the legal world. The papers deal with the influence of the Code upon common-law countries in their efforts to manage statute and case law and gives examples of modern attempts at restatement of the law and uniform state laws as examples of the effect of the Code's coherence and logic. The papers were given by notable legal scholars such as Benjamin Akzin, Ren Cassin, C.J. Friedrich, Arthur von Mehren, Roscoe Pound, Thibadeau Rinfret, Max Rheinstein, Angelo Piero Sereni, Jack Bernard Tate and Arthur T. Vanderbilt. At the time of these lectures Schwartz was Director of the Institute. Includes a bibliography by Julius J. Marke. Reprint of the first edition. BERNARD SCHWARTZ 1923-1997] was professor of law and director of the Institute of Comparative Law, New York University. He was the author of over fifty books, including French Administrative Law and the Common-Law World (1954, reprinted 2006), the five-volume Commentary on the Constitution of the United States (1963-1968), Constitutional Law: A Textbook (2d ed., 1979), Administrative Law: A Casebook (4th ed., 1994) and A History of the Supreme Court (1993).
This Brief explores the issues concerning customary law, traditional knowledge and intellectual property.