A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
76-437: A kgotla (English pronunciation / ˈ k oʊ t . l ə / or / k ˈ ɡ ɒ t . l ə / ) is a public meeting, community council, or traditional law court of a Botswana village and in rural Lesotho and South Africa. It is usually headed by the village chief or headman, and community decisions are always arrived at by consensus . Headmen usually work as the advisers to the chief. No one may interrupt while another
152-445: A 'basic myth of law'. He argued that it is fruitless to seek such certainty, that the law is uncertain and that the law cannot be separated from decisions of the courts. Frank argues that every legal controversy is unique and may not be decided by rigid universals and abstract generalizations. He calls those jurists who find legal uncertainty within the laws's formal rules 'Rule-skeptics', and those who find legal uncertainty arising from
228-424: A case" Philosophy, History & Problems, p. 30. American legal skeptics are influenced by ' pragmatism ' of William James , Dr. John Dewey, and F.e.S. Schiller. Bertrand Russell declares that William James's doctrine is "an attempt to build a superstructure of belief upon a foundation of scepticism". One of the three founders of pragmatism, Schiller, considered himself a disciple of Protagoras. See These are
304-473: A chief and mekgwa as norms that become customary law through traditional usage. Importantly, however, they noted that the Tswana seldom attempt to classify the vast array of existing norms into categories and they thus termed this the 'undifferentiated nature of the normative repertoire'. Moreover, they observe the co-existence of overtly incompatible norms that may breed conflict, either due to circumstances in
380-783: A community. Some examples include Bracton 's De Legibus et Consuetudinibus Angliae for England, the Coutume de Paris for the city of Paris, the Sachsenspiegel for northern Germany, and the many fueros of Spain. In international law , customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on
456-653: A constitutional foundation and for this reason has increasing influence. In the Scandinavian countries customary law continues to exist and has great influence. Customary law is also used in some developing countries , usually used alongside common or civil law. For example, in Ethiopia , despite the adoption of legal codes based on civil law in the 1950s according to Dolores Donovan and Getachew Assefa there are more than 60 systems of customary law currently in force, "some of them operating quite independently of
532-527: A cough may awaken subconscious predilections, varied idiosyncrasies and prejudices. Eternal verities are not to be erected on such a basis. Frank alleged that all those who write on legal certainty , not excepting the 'rule skeptics', overlook these difficulty. 'They often call their writings 'jurisprudence'; but as they almost never consider juries and jury-trials, one might chide them for forgetting jurisprudence. ", "For any particular lay person", Frank writes: "the law, with respect to any particular set of facts,
608-454: A custom to obtain the force of law. In the English common law , "long usage" must be established. It is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue. It
684-454: A decree to revitalize the aqsaqal courts of village elders. The courts would have jurisdiction over property, torts and family law. The aqsaqal courts were eventually included under Article 92 of the Kyrgyz constitution. As of 2006, there were approximately 1,000 aqsaqal courts throughout Kyrgyzstan , including in the capital of Bishkek . Akaev linked the development of these courts to
760-446: A good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. Justice Oliver Wendell Holmes The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only
836-403: A group of houseboats on a mooring that has been in continuous use for the last 25 years with a mixture of owner occupiers and rented houseboats, may clearly continue to be used by houseboats, where the owners live in the same town or city. Both the purpose of the moorings and the class of persons benefited by the custom must have been clear and consistent. In Canada, customary aboriginal law has
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#1732775826489912-408: A judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill his functions properly. As a justice of the U.S. Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in
988-477: A leading exponent preferred the phrases 'experimentalists' or 'constructive skeptics', He repudiated the charge that 'the realist school embraced fantastically inconsistent ideas' by pointing out that 'actually no such school existed'. The common bond is, in his words ,'skepticism as to some of the conventional legal theories, a skepticism stimulated by a zeal to reform, in the interests of justice, some court-house ways. ", With such zeal to reform, legal skeptics made
1064-500: A man had to deliver his own speech, he could hire an expert to write a speech for him, or, as many preferred, he could pay for instruction in the arts required for success in the law courts. These arts the Sophists were supposed to teach". Stumpf writes about Sophists as, "It was their skepticism and relativism that made them suspect. No one would have criticized them for training lawyers, as they did, to be able to argue either side of
1140-501: A narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it." It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Justice Felix Frankfurter Statutes and constitutions are inanimate object which cannot speak by themselves. John Chipman Gray ,
1216-403: A new departure in legal philosophy. He changed the attitude of the law through his writings. The opening sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: "The life of the law has not been logic; it has been experience. " As a justice, Oliver Wendell Holmes Jr. was well known for the eloquence, pungency, and abundance of his dissenting opinions––so much so that he
1292-462: A particular situation or inherently due to their incongruous content. This lack of rule classification and failure to eradicate internal inconsistencies between potentially conflicting norms allows for much flexibility in dispute settlement and is also viewed as a 'strategic resource' for disputants who seek to advance their own success in a case. The latter incongruities (especially inconsistencies of norm content) are typically solved by elevating one of
1368-482: A priori reasons, from fixed principles, closed systems and pretended absolutes and origins. He turns towards completeness and adequacy, towards facts, towards actions, towards powers.,, This skeptical approach impressed Justice Holmes, who laid the foundation of healthy and constructive skepticism in the law. Hughes writes: "Though another half century was to elapse before the appearance of Ogden and Richard's The Meaning of Meaning, exploration of meaning of meaning of law
1444-462: A revolt against the formalism. Lord Lloyd of Hamstead has described this revolt in a wider philosophical perspective as follows: "In the nineteenth and at the beginning of the present century, laissez-faire was the dominant creed in America. This creed was associated, in the intellectual sphere, with a certain attachment to what has been called "formalism" in philosophy and the social sciences. This
1520-655: A significant degree everywhere in Somalia and in the Somali communities in the Ogaden . Economist Peter Leeson attributes the increase in economic activity since the fall of the Siad Barre administration to the security in life, liberty and property provided by Xeer in large parts of Somalia . The Dutch attorney Michael van Notten also draws upon his experience as a legal expert in his comprehensive study on Xeer, The Law of
1596-719: Is a stub . You can help Misplaced Pages by expanding it . Customary law Customary law (also, consuetudinary or unofficial law ) exists where: Most customary laws deal with standards of the community that have been long-established in a given locale. However, the term can also apply to areas of international law where certain standards have been nearly universal in their acceptance as correct bases of action – for example, laws against piracy or slavery (see hostis humani generis ). In many, though not all instances, customary laws will have supportive court rulings and case law that have evolved over time to give additional weight to their rule as law and also to demonstrate
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#17327758264891672-531: Is a decision of a court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. , Felix Frankfurter, who wrote book "Mr. Justice Holmes and the Supreme Court" published three years after the death of Holmes, observes in Nashville, Chattanooga & St. Louis Ry. V. Browning that: "It would be
1748-402: Is a recognized source of law within jurisdictions of the civil law tradition, where it may be subordinate to both statutes and regulations . In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing". On the other hand, in many countries around
1824-724: Is a school of jurisprudence that was a reaction against the idea of natural law , and a response to the ' formalism ' of legal positivists . Legal skepticism is sometimes known as legal realism . According to Richard Posner, "The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic ) to Hobbes and Bentham and beyond". ...men make their own laws; that these laws do not flow from some mysterious omnipresence in
1900-438: Is defined by legal precedent as 12 years (or 20 years for Crown land) for the same purpose by people using them for that purpose. To give two examples: a custom of mooring which might have been established in past times for over two hundred years by the fishing fleet of local inhabitants of a coastal community will not simply transfer so as to benefit present day recreational boat owners who may hail from much further afield. Whereas
1976-467: Is easier in legal reasoning than to take these words in their moral sense. Holmes said: "I think our morally tinted words have caused a great deal of confused thinking. But Holmes is not unconcerned with moral question. He writes: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize
2052-430: Is having their say. Because of this tradition, Botswana claims to be one of the world's oldest democracies . The custom of allowing everyone their full say is carried over into meetings of all kinds, from discussing a bill to a staff briefing. Kgotla can also refer to the place where such meetings are held. This can range from a few chairs under a shade canopy to a permanent ground with covered seating. In both senses,
2128-418: Is known in case law as "customary rights". Something which has been practised since time immemorial by reference to a particular locality may acquire the legal status of a custom, which is a form of local law. The legal criteria defining a custom are precise. The most common claim in recent times, is for customary rights to moor a vessel. The mooring must have been in continuous use for "time immemorial" which
2204-444: Is not often done; and, if the chief proclaims the legislation against the will of the public assembly, the legislation will become melao, however, it is unlikely that it will be executed because its effectiveness depends on the chief's legitimacy and the norm's consistency with the practices (and changes in social relations) and will of the people under that chief. Regarding the invocation of norms in disputes, Comaroff and Roberts used
2280-404: Is rule bound and behaviour that is not—i.e., which behaviour is motivated by adherence to law (or at least done in recognition of the law) and is merely a response to other factors. Hund sees this as problematic because it makes quantifying the law almost impossible, since behaviour is obviously inconsistent. Hund argues that this is a misconception based on a failure to acknowledge the importance of
2356-403: Is seen as fundamental to the Tswana. Comaroff and Roberts describe how outcomes of specific cases have the ability to change the normative repertoire, as the repertoire of norms is seen to be both in a state of formation and transformation at all times. These changes are justified on the grounds that they are merely giving recognition to de facto observations of transformation [219]. Furthermore,
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2432-458: Is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. L. A. Hart . Hund argues that Hart's The Concept of Law solves the conceptual problem with which scholars who have attempted to articulate how customary law principles may be identified, defined, and how they operate in regulating social behavior and resolving disputes. Customary law
2508-452: Is the set of customs, practices and beliefs that are accepted as obligatory rules of conduct by a community. Comaroff and Roberts' famous work, "Rules and Processes", attempted to detail the body of norms that constitute Tswana law in a way that was less legalistic (or rule-oriented) than had Isaac Schapera. They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger's definition: melao therefore being rules pronounced by
2584-441: Is true that these thinkers were positivist and anti-metaphysical they were for the anti-formalists, not empirical enough, since they were associated with a priori reasoning not based on actual study of the facts, such as Mill's formal logic and his reliance on an abstract "economic man," Bentham's hedonic calculus of pleasures and pains, and the analytical approach to jurisprudence derived from Austin. They were particularly critical of
2660-691: The Malay regions, Bangka and Belitung , Kalimantan , Minahasa , Gorontalo , Toraja , South Sulawesi , Ternate , the Molluccas , Papua , Timor , Bali and Lombok , Central and East Java including the island of Madura , Sunda , and the Javanese monarchies, including the Yogyakarta Sultanate , Surakarta Sunanate , and the Pakualaman and Mangkunegaran princely states. In
2736-539: The Philippines , the Indigenous Peoples' Rights Act of 1997 recognizes customary laws of indigenous peoples within their domain. Custom is used in tort law to help determine negligence . Following or disregarding a custom is not determinative of negligence, but instead is an indication of possible best practices or alternatives to a particular action. Scepticism in law Skepticism in law
2812-404: The internal element . In his view, by using the criteria described above, there is not this problem in deciphering what constitutes "law" in a particular community. According to Hund, the second form of rule scepticism says that, though a community may have rules, those rules are not arrived at 'deductively' , i.e. they are not created through legal/moral reasoning only but are instead driven by
2888-423: The "clear and present danger" doctrine associated with his name. Francis Biddle writes: He was convinced that one who administers constitutional law should multiply his skepticisms to avoid heading into vague words like liberty, and reading into law his private convictions or the prejudices of his class. According to Holmes, 'men make their own laws; that these laws do not flow from some mysterious omnipresence in
2964-569: The 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. Speaking for a unanimous Court in Schenck v. United States (1919), however, he stated that judicial review was necessary in cases involving Freedom and Speech and presented
3040-737: The Somalis: A Stable Foundation for Economic Development in the Horn of Africa (2005). In India many customs are accepted by law. For example, Hindu marriage ceremonies are recognized by the Hindu Marriage Act . In Indonesia, customary adat laws of the country's various indigenous ethnicities are recognized, and customary dispute resolution is recognized in Papua . Indonesian adat law are mainly divided into 19 circles, namely Aceh , Gayo , Alas , and Batak , Minangkabau , South Sumatra ,
3116-582: The acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norms , which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery . Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law. Customary law
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3192-668: The ahistorical approach of the English utilitarians. Nor, unlike the sociologists of Pound persuasion, were they interested to borrow from Bentham such abstract analyses of society as his doctrine of conflicting to emphasise was the need to enlarge knowledge empirically, and to relate it to the solution of the practical problems of man in society at the present day., The new movement in jurisprudence found philosophical support of ' Pragmatism '. The principal exponent of 'Pragmatism', William James, writes: "A pragmatist turns away from abstraction and insufficiencies, from verbal solutions, from bad
3268-434: The axioms and corollaries of a book of mathematics., In Lochner v. New York he observes that, 'General propositions do not decide concrete cases." "General propositions do not decide concrete cases." Justice Oliver Wendell Holmes Holmes, also insisted on the separation of 'ought' and 'is' which are obstacles in understanding the realities of the law. As an ethical skeptic, Holmes tells us that if you want to know
3344-401: The difference between law and morals I do so with reference to a single end, that of learning and understanding the law. Jerome New Frank followed Holmes skepticism, and made an elaborate system of legal skepticism. He considered himself to be 'a constructive skeptic'. He challenged the traditional conception that law consists of rules from which deductions are made. He called that conception
3420-425: The difficulty of an outsider knowing the dimensions of these criteria that depend on an internal point of view. For Hund, the first form of rule scepticism concerns the widely held opinion that, because the content of customary law derives from practice, there are actually no objective rules, since it is only behaviour that informs their construction. On this view, it is impossible to distinguish between behaviour that
3496-412: The facts are not contested here). If the defendant means to change the paradigm, they will refer to norms as such, where actually norms are not ordinarily explicitly referenced in Tswana dispute resolution as the audience would typically already know them and just the way one presents one's case and constructs the facts will establish one's paradigm. The headman or chief adjudicating may also do same: accept
3572-476: The formal state legal system". They offer two reasons for the relative autonomy of these customary law systems: one is that the Ethiopian government lacks sufficient resources to enforce its legal system to every corner of Ethiopia; the other is that the Ethiopian government has made a commitment to preserve these customary systems within its boundaries. In 1995, President of Kyrgyzstan Askar Akaev announced
3648-462: The great American Jurist, who reiterated Holmes's view, writes: "Statutes do not interpret themselves; their meaning is declared by the courts, and it is with the meaning declared by the courts, and with no other meaning, that they are imposed upon the community as law. , He further writes: "It has been sometime said that the Law is composed of two parts,-legislative law and judge-made law, but, in truth all
3724-429: The habit and attempts to prevent departures by criticising such behaviour. Second, when this criticism is seen socially as a good reason for adhering to the habit, and it is welcomed. And, third, when members of a group behave in a common way not only out of habit or because everyone else is doing it, but because it is seen to be a common standard that should be followed, at least by some members. Hund, however, acknowledges
3800-442: The judicial process. According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes: "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had
3876-408: The laws of science. Frank called this brand realism the left-wing adherents of a right-wing traditions, namely, the tradition of trying to find uniformity in rules. They, too, had to account for uncertainty in the law on the basis of rule-uncertainty. The 'fact skeptics', among them Frank, rejected even this aspiration towards uniformity. So he abandoned all attempts to seek rule-certainty and pointed to
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#17327758264893952-433: The legitimacy of a chief is a direct determinant of the legitimacy of his decisions. In the formulation of legislative pronouncements, as opposed to decisions made in dispute resolution, the chief first speaks of the proposed norm with his advisors, then council of headmen, then the public assembly debate the proposed law and may accept or reject it. A chief can proclaim the law even if the public assembly rejects it, but this
4028-600: The nature of facts 'Fact-skeptics'. Dias writes: "Frank divided realists into two camps, described as 'rule skeptics' and 'fact skeptic'. The 'rule skeptics' rejected legal rules as providing uniformity in law, and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics, etc. Hans Kelsen , it will be remembered, maintained that it is not possible to derive an 'ought' from an 'is'. The 'rule skeptics' avoided that criticism by saying that they were not deriving purposive 'oughts', but only predictions of judicial behaviour analogous to
4104-420: The normative basis implied by the parties (or one of them), and thus not refer to norms using explicit language but rather isolate a factual issue in the dispute and then make a decision on it without expressly referring to any norms, or impose a new or different paradigm onto the parties. Hund finds Comaroff and Roberts' flexibility thesis of a 'repertoire of norms' from which litigants and adjudicator choose in
4180-428: The norms (tacitly) from 'the literal to the symbolic. This allows for the accommodation of both as they now theoretically exist in different realms of reality. This is highly contextual, which further illustrates that norms cannot be viewed in isolation and are open to negotiation. Thus, although there are a small number of so-called non-negotiable norms, the vast majority are viewed and given substance contextually, which
4256-412: The personal/political motives of those who create them. The scope for such influence is created by the loose and undefined nature of customary law, which, Hund argues, grants customary-lawmakers (often through traditional 'judicial processes') a wide discretion in its application. Yet, Hund contends that the fact that rules might sometimes be arrived at in the more ad hoc way, does not mean that this defines
4332-455: The process of negotiating solutions between them uncompelling. He is therefore concerned with disproving what he calls "rule scepticism" on their part. He notes that the concept of custom generally denotes convergent behaviour, but not all customs have the force of law. Hund therefore draws from Hart's analysis distinguishing social rules, which have internal and external aspects, from habits, which have only external aspects. Internal aspects are
4408-407: The real law, and nothing else, you must consider it from the point of view of 'bad man' who cares only from material consequences of the courts' decisions, and not from the point of view of good man, who find his reasons for conduct "in the vaguer sanctions of his conscience. The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence- and nothing
4484-475: The reasons for the preference of some people for the word 'skepticism'. Mickey Dias writes: "a preliminary warning is needed against the tendency to imagine that there is anything like a 'school' of American realists. A difficulty in the way of a coherent presentation of their views is that there are varying versions of realism as well as changes of front; positions formerly defended with zest have since been forgotten or abandoned……. Judge Jerome Frank (1889–1957),
4560-448: The reflective attitude on the part of adherents toward certain behaviours perceived to be obligatory, according to a common standard. External aspects manifest in regular, observable behaviour, but is not obligatory. In Hart's analysis, then, social rules amount to custom that has legal force. Hart identifies three further differences between habits and binding social rules. First, a social rule exists where society frowns on deviation from
4636-474: The rekindling of Kyrgyz national identity. In a 2005 speech, he connected the courts back to the country's nomadic past and extolled how the courts expressed the Kyrgyz ability of self-governance. Similar aqsaqal courts exist, with varying levels of legal formality, in other countries of Central Asia . The Somali people in the Horn of Africa follow a customary law system referred to as xeer . It survives to
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#17327758264894712-508: The secondary rules have developed only to the point where laws are determined with reference to politics and personal preference. This does not mean that they are not "rules". Hund argues that if we acknowledge a developmental pattern in societies' constructions of these secondary rules then we can understand how this society constructs its laws and how it differs from societies that have come to rely on an objective, stand-alone body of rules. The modern codification of civil law developed from
4788-457: The sky, and that judges are not independent mouthpieces of the infinite.The common law is not a brooding omnipresence in the sky Justice Oliver Wendell Holmes Skepticism ( American English and Canadian English ) or scepticism ( British English and Australian English ) is a philosophical approach that includes a scientific method and a rejection of unevidenced claims to certainty. Skepticism has been known in various degrees. Pyrrho
4864-426: The sky, and that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite., 'The common law is not a brooding omnipresence in the sky'. Law should be viewed 'from the stance of the bad man'. 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law'. A judge must be aware of social facts. Only
4940-481: The system. If one requires a perfect system, where laws are created only deductively, then one is left with a system with no rules. For Hund, this cannot be so and an explanation for these kinds of law-making processes is found in Hart's conception of "secondary rules" (rules in terms of which the main body of norms are recognised). Hund therefore says that for some cultures, for instance in some sections of Tswana society,
5016-552: The term is a loan word in Botswana English from Setswana , where it means court . In South African English , a lekgotla is a meeting called by government to discuss strategy planning. The term is still a loan word from Setswana , again meaning court . Usually there are men who stay at the Kgotla mostly during the day. These men are usually sent to go and call law defaulters. This Botswana -related article
5092-482: The term, "paradigm of argument", to refer to the linguistic and conceptual frame used by a disputant, whereby 'a coherent picture of relevant events and actions in terms of one or more implicit or explicit normative referents' is created. In their explanation, the complainant (who always speaks first) thus establishes a paradigm the defendant can either accept and therefore argue within that specific paradigm or reject and therefore introduce his or her own paradigm (usually,
5168-408: The tradition of medieval custumals , collections of local customary law that developed in a specific manorial or borough jurisdiction, and which were slowly pieced together mainly from case law and later written down by local jurists . Custumals acquired the force of law when they became the undisputed rule by which certain rights , entitlements, and obligations were regulated between members of
5244-586: The trajectory of evolution (if any) in the interpretation of such law by relevant courts . A central issue regarding the recognition of custom is determining the appropriate methodology to know what practices and norms actually constitute customary law. It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts) have characterized customary law norms in their own terms. Yet, there clearly remains some disagreement, which
5320-412: The uncertainty of establishing even the facts in trial courts. These have to be established largely by witnesses, who are fallible and who may be lying. It is impossible to predict with any degree of certainty how fallible a particular witness is likely to be, or how persuasively he will lie. All persons, judges and jurymen alike, form different impressions of the dramas unfolded before them; an inflexion or
5396-464: The world, one or more types of customary law continue to exist side by side with official law, a condition referred to as legal pluralism (see also List of national legal systems ). In the canon law of the Catholic Church , custom is a source of law. Canonical jurisprudence , however, differs from civil law jurisprudence in requiring the express or implied consent of the legislator for
5472-515: Was Holmes's pioneer enterprise.,, Hughes further writes: " To me, Mr. Justice Holmes is a prophet of the Law, Oliver Wendell Holmes Jr. was graduated from Harvard Law School in 1866, and opened a private law practice. He devoted most of his energies to legal scholarship. From 1870 to 1873 he served as editor of the American Law Review and taught constitutional law at Harvard. In 1881, Holmes published The Common Law , representing
5548-402: Was associated with such figures as William James and Dewey in philosophy and logic. Veblen in economics, Beard and Robinson in historical studies, and Mr. Justice Holmes in jurisprudence . It is important to note that this movement was especially hostile to the so-called British empirical school derived from Hume, and to which Jeremy Bentham , Austin and John Stuart Mill adhered. For while it
5624-455: Was called the "Great Dissenter." Holmes was appointed justice in 1902, and served the Court for thirty years. At that time, many state regulatory laws were being declared unconstitutional because the Court felt they did not conform to its concept of due process of law. In a dissenting opinion in Lochner v. New York (1905) Holmes declared that the law should develop along with society and that
5700-509: Was marked by a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link these empirically to the facts of life. Yet empirical science and technology were increasing dominating American society and with this development arose and intellectual movement in favor of treating philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism. In America this movement
5776-543: Was the first philosopher who developed it to a high degree. Greek Sophist were also skeptics. Protagoras was a famous Greek Sophist. Greek Sophists were also law teachers. Writing about the courts of Athenian democracy, Bertrand Russell states: "In general, there were a large number of judges to hear each case. The plaintiff and defendant, or prosecutor and accused, appeared in person, not through professional lawyers. Naturally, success or failure depended largely on oratorical skill in appealing to popular prejudices. Although
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