The Nature Of Customary Law: Legal, Historical And Philosophical Perspectives

This page intentionally left blank THE NATURE OF CUSTOMARY LAW 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. A M A N D A P E R R E A U - S A U S S I N E is a University Lecturer in Law at the University of Cambridge and a Fellow of Newnham College. J A M E S B E R N A R D M U R P H Y is Professor of Government at Dartmouth College, Hanover, USA. T H E N A T U R E OF CUSTOMARY LAW Edited by AMANDA PERREAU-SAUSSINE and JAMES BERNARD MURPHY CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521875110 © Cambridge University Press 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007 ISBN-13 ISBN-10 978-0-511-27422-0 eBook (EBL) 0-511-27422-X eBook (EBL) ISBN-13 ISBN-10 978-0-521-87511-0 hardback 0-521-87511-0 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS List of contributors page vii Table of cases viii The character of customary law: an introduction AMANDA PERREAU-SAUSSINE AND JAMES 1 BERNARD MURPHY Custom and morality: natural law, customary law and ius gentium 11 PART I 1 Pitfalls in the interpretation of customary law 13 FREDERICK SCHAUER 2 The moral role of conventions 35 ROSS HARRISON 3 Habit and convention at the foundation of custom 53 JAMES BERN