Customary Law Today
This book addresses current practices in customary law. It includes contributions by scholars from various legal systems (the USA, France, Israel, Canada etc.), who examine the current impacts of customary law on various aspects of private law, constituti
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stomary Law Today
Customary Law Today
Laurent Mayali • Pierre Mousseron Editors
Customary Law Today
Editors Laurent Mayali Berkeley Law University of California Berkeley, CA, USA
Pierre Mousseron Faculty of Law University of Montpellier Montpellier, France
ISBN 978-3-319-73361-6 ISBN 978-3-319-73362-3 https://doi.org/10.1007/978-3-319-73362-3
(eBook)
Library of Congress Control Number: 2018941243 © Springer International Publishing AG, part of Springer Nature 2018 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by the registered company Springer International Publishing AG part of Springer Nature. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Preface: From Facts to Law
Facts, Law, and Customary Law Facts or law. A situation would have to be de facto or de jure. Like most legal divisions, this one is excessive. It tends to exaggerate the difference and the distance between facts and law. Law would require a deliberative process, whether parliamentary, administrative, judicial, or contractual in order to transform facts into law. As we know, this process is not always necessary. Norms can be based on the mere generalization of repeated behaviors in certain communities1: this is our understanding of customary law. This part of the law is based on behaviors, i.e., on personal facts and social practices. It consists of informal norms such as usages, customs, and traditions that do not go through a deliberative process. This being said, customary law is not totally immediate. It requires the repetition of these behaviors in order to become a practice and their generalization within a community. Through this process, facts are introduced into the legal system; past facts help to shape the future.
Limited Role of Customary Law in Law Schools Customary law often tends
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