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Journal articles on the topic 'Custom law'

Author: Grafiati

Published: 4 June 2021

Last updated: 6 February 2022

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1

Duxbury, Neil. "CUSTOM AS LAW IN ENGLISH LAW." Cambridge Law Journal 76, no. 2 (2017): 337–59. http://dx.doi.org/10.1017/s0008197317000253.

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AbstractThis article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

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2

Guliyev, Khagani. "Local Custom in International Law." International Community Law Review 19, no. 1 (2017): 47–67. http://dx.doi.org/10.1163/18719732-12341347.

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The present paper examines the particular difficulties observed in the formation, identification and continuity of local custom in the light of the interaction that exists between it and two main sources of international law: general custom and treaty. The article firstly argues that, although local custom presents certain features and faces specific difficulties that distinguishes it from both general custom and treaty, it generally follows the “custom logic” in its formation and identification, as both local and general customs are made from the same “ingredients”: practice and opinio juris. However, the situation is different when it comes to the continuity of an existing local customary rule. The article shows that the succession of States may call into question the continuity of local custom which operates as a treaty in case of State succession, following the “treaty logic” rather than the “custom logic”.

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3

Shetreet, Shimon. "Custom in Public Law." Israel Law Review 21, no. 3-4 (1986): 450–500. http://dx.doi.org/10.1017/s0021223700009225.

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This article is based on a study on custom in public law conducted some years ago due to the welcome initiative of Prof. G. Tedeschi. Like many others, I too responded to his irresistible powers of persuasion, to conduct a study on custom in a field close to my area of interest, public law. I owe many thanks to Prof. Tedeschi, for by virtue of this study I have acquired significant perspectives for the analysis of public law.During the course of my work on another study (on judicial independence, conducted for the Jerusalem Institute for the Study of Israel), I discovered an historical document pertaining to Prof. Tedeschi, in whose honour this issue of the Israel Law Review appears. The document concerns an offer, addressed to Prof. Tedeschi in 1953, to be appointed a Justice of the Supreme Court.

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4

Kozlova, Nataliya, and Sofya Filippova. "Custom in Civil Law." Journal of Russian Law 7, no. 1 (2019): 1. http://dx.doi.org/10.12737/art_2019_1_6.

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5

Coffey, Donal, Paul Brady, Oran Doyle, Marc Hertogh, Garrett Barden, and Tim Murphy. "Custom and Living Law." Jurisprudence 3, no. 1 (2012): 71–210. http://dx.doi.org/10.1080/20403313.2012.11423536.

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6

Swaine, Edward T. "Rational Custom." Duke Law Journal 52, no. 3 (2002): 559. http://dx.doi.org/10.2307/1373163.

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7

Olson, M. D. "Articulating Custom." Journal of Legal Pluralism and Unofficial Law 32, no. 45 (2000): 19–47. http://dx.doi.org/10.1080/07329113.2000.10756543.

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8

Epstein, Richard A. "Confusion about Custom: Disentangling Informal Customs from Standard Contractual Provisions." University of Chicago Law Review 66, no. 3 (1999): 821. http://dx.doi.org/10.2307/1600427.

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9

Macdonald, Alastair J. "Neville, Violence, Custom and Law." Scottish Historical Review 79, no. 1 (2000): 112–13. http://dx.doi.org/10.3366/shr.2000.79.1.112.

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10

Bruderlein, Claude. "Custom in international humanitarian law." International Review of the Red Cross 31, no. 285 (1991): 579–95. http://dx.doi.org/10.1017/s0020860400072569.

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The purpose of this study is to analyse the normative character of custom in international humanitarian law (IHL), on the basis of the theory and jurisprudence of public international law, in order to arrive at a better understanding of the conduct of States in conflict situations. In so doing, an attempt will be made to determine the possibilities for developing custom in IHL, especially in view of the increasing concern shown by international public opinion for the plight of victims of armed conflicts. The paper will begin with a review of the questions raised by custom as an independent source of humanitarian law (point 1) and go on to take a closer look at the constituent elements of custom in humanitarian law (point 2). It will end with a comparative study of the two approaches to custom in IHL, concentrating on the consequences that the development of custom may have in the future (point 3).

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11

Menkes, Jerzy. "Custom in International Economic Law." Wroclaw Review of Law, Administration & Economics 8, no. 2 (2018): 188–203. http://dx.doi.org/10.1515/wrlae-2018-0041.

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12

Kiralfy, Albert. "Custom in mediaeval English law." Journal of Legal History 9, no. 1 (1988): 26–39. http://dx.doi.org/10.1080/01440368808530918.

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13

Novikova, Yuliya Gennad'evna. "Legal custom and universal practice in the Russian criminal proceedings." Юридические исследования, no. 4 (April 2021): 9–23. http://dx.doi.org/10.25136/2409-7136.2021.4.35160.

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The object of this research is the assemblage of social relations arising in the sphere of criminal justice in the course of eliminating legal gaps and contradictions. The subject of this research is the legal custom as one nontraditional sources of law for the Russian criminal proceeding, which is applied in the absence of norms consolidated in the normative legal acts, which are aimed at regulating the corresponding legal relations. Analysis is conducted on the essence of the concept of legal custom, means of formation, classification, and methods of application in criminal proceedings. Special attention is given to the methods of authorization of legal custom by the state, which may entail the recognition of this source of law as independent or transformation into another source of law. The main conclusions that also determine the scientific novelty of this research are as follows. 1. The system of Russia criminal procedure law is characterized by the development processes, which imply the formation and application of such an nontraditional source of law as legal custom. 2. Legal custom represents the rules not prohibited by law for performing procedural actions and making procedural decisions, which are translated into practice through repetition by the of the proceedings in the absence of the enforceable rule of law. 3. According to the method of formation, legal customs in criminal proceedings can be classified into dispositive (based on the voluntary will of the participants) and imperative (formed through tacit administrative influence). 4. Imperative legal customs are the negative phenomena of legal reality and cannot be attributed to the sources of law. 5. Authorization of legal custom as an independent source of law consists in its &ldquo;tacit&rdquo; approval by the government authorities. Textual consolidation of legal custom entails its transformation into a new form of law. 6. Universal practice is one of the characteristics of legal custom and a possible means for its legalization.

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Sibawaihi, Muhammad, and Mokhammad Baharun. "Adat Pernikahan Melayu Jambi Perspektif ‘Urf dalam Ilmu Ushul Fiqh." Istidlal: Jurnal Ekonomi dan Hukum Islam 1, no. 2 (2017): 167–74. http://dx.doi.org/10.35316/istidlal.v1i2.106.

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Marriage has rules and regulations its implementation. According to Jambi Malay customary law, there are several stages in marriage custom, especially in subdistrict of Muara Tembesi, first introduction period, second preparation period. thirth day scales, fourth betel tanyo Pinang tanyo, fifth tand fill custom lumbago, sixth take delivery customs lumbago, seventh marriages marry, eight old gather, memulang lek pado penangga, ninth Berelek Berkenduri, complain Gather tuo. Next custom marriage is absolutely must be followed by all society of jambi because of the moral sanction if someone doesn’t follow applicable law. The purpose of research is to know the custom marriage of Jambi Malay and position of custom law, especially in subdistrict of Tembesi. research method is Islamic law research, research type used is field research. The research approach used is a normative approach, the problems studied under Islamic law, to underestand the Qur'an, Hadith, and 'Urf in Ushul Fiqh. The research method used is observation, interview, and documentation. Data analysis used is qualitative analysis. Based on the research has done, it can be concluded the marriage custom of Jambi Malay in Muara Tembesi Subdistrict, the analysis of `Urf is shohih custom.

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15

Knapp, Aaron T. "From Empire to Law: Customs Collection in the American Founding." Law & Social Inquiry 43, no. 02 (2018): 554–84. http://dx.doi.org/10.1111/lsi.12352.

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This essay investigates the eighteenth-century origins of the federal administrative state through the prism of customs collection. Until recently, historians and legal scholars have not closely studied collection operations in the early federal custom houses. Gautham Rao's National Duties: Custom Houses and the Making of the American State (2016) offers the most important and thoroughly documented historical analysis to date. Joining a growing historical literature that explains the early development of the US federal political system with reference to imperial models and precedents, Rao shows that the seductive power of commerce over the state within eighteenth-century imperial praxis required the early federal customs officials to “negotiate” their authority with the mercantile community. A paradigm of accommodation dominated American customs collection well into the nineteenth century until Jacksonian centralizers finally began to dismantle it in the 1830s. The book brings welcome light to a long-neglected topic in American history. It offers a nuanced, historiographically attentive interpretation that rests on a broad archival source base. It should command the sustained attention of legal, social, economic, and constitutional historians for it holds the potential to change the way historians think about early federal administration. This essay investigates one of the central questions raised in National Duties: How were the early American custom houses able to successfully administer a comprehensive program of customs duties when their imperial predecessors had proved unable to collect even narrowly tailored ones? Focusing on the Federalist period (1789–1800), I develop an answer that complements Rao's, highlighting administrative change over continuity and finding special significance in the establishment of the first federal judicial system.

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16

Therik, Wilson M. A. "RELASI NEGARA DAN MASYARAKAT DI ROTE." KRITIS 24, no. 1 (2016): 3–20. http://dx.doi.org/10.24246/kritis.v24i1p3-20.

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This article abstracted from dissertation entitled “State and Society’s Relation in Rote”. This article discusses the relation between the state and society in Rote Island. Rote Island (Rote Ndao District) consisted of 19 Kingdom (Nusak) with different culture, language, and customs on each Nusak. Nusak divides the government structure into 3 (three) functions: First is the executive institution body which run custom law, second is the legislative body which make custom law, and third is the judicative body which monitoring custom law. By this condition, Nusak is considered as Ethnic State. From this explanation, Indonesia should be seen as nations state, not as a nation state.

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17

Libson, Gideon. "On the Development of Custom as a Source of Law in Islamic Law:." Islamic Law and Society 4, no. 2 (1997): 131–55. http://dx.doi.org/10.1163/1568519972599770.

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AbstractAlthough classical Islamic legal theory did not recognize custom as a source of law, Muslim jurists — in particular, the ḥanafīs — discussed the status of custom already in the pre-classical period. Custom was incorporated into Islamic law in a variety of ways: by including certain practices in the category of sunna or ijmāʾ; by appealing to judicial preference (istiḥsān) and to secondary sources of law, such as fatwās; and by using legal fictions (ḥiyal). Because these methods were not always adequate to deal with the questions that specific practices presented to the jurists, there was an increasing tendency among later ḥanafī jurists to recogize custom as a source of law.

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18

Zakariyah, Luqman. "Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim ‘al-ʿĀdah Muḥakkamah’ (Custom is Authoritative) and its Sisters in Islamic Legal Procedures". Arab Law Quarterly 26, № 1 (2012): 75–97. http://dx.doi.org/10.1163/157302512x612159.

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Abstract Islamic legal maxims promote the spirit of Islamic law through extrapolation of the texts. The legal maxim of al-ʿādah is one of the five basic legal maxims agreed upon among classical Muslim jurists. Despite the wide acceptability of custom in Islamic legal theory and its authoritativeness in application, one of the controversial issues surrounding the use of custom (al-ʿādah) is whether, by law, rulings can be changed over time when customs have changed. Thus, this article aims to examine the effect of custom in rulings related to ḥudūd and qiṣāṣ (fixed and retaliative punishments) in Islamic law and whether such rulings can be changed over time as custom changes and, if they can be changed, to what extent can such changes be made and to what effect do such changes affect the sanctity of the Qurʾān and Ḥadīth texts.

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19

Roughan, Nicole. "Democratic Custom v International Customary Law." Victoria University of Wellington Law Review 38, no. 2 (2007): 403. http://dx.doi.org/10.26686/vuwlr.v38i2.5527.

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This article responds to the criticism that customary international law is undemocratic, by arguing that the criticism takes too narrow a view of conceptions of democracy and custom. The author suggests that democracy can be conceived as a process of participation rather than representation; and presents a conception of "compound custom" which combines the elements of custom as a source of law, as a mode of rights, and as a foundation of interaction. With this conception of compound custom in mind, customary international law has a greater democratic potential.

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20

Henderson, Duane. "VI. Law, Custom, and Medieval Judges." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 101, no. 1 (2015): 217–57. http://dx.doi.org/10.7767/zrgka-2015-0109.

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Abstract The paper studies the practice of judging marital separation cases in the ecclesiastical court of Freising in the second half of the fifteenth century. The first chapter outlines the legal position for separating marriages from bed and board as practiced in the later Middle Ages, locating the practice between canon law, the communis opinio of legal scholars and regional traditions. Using the extensive documentation of the act books of the court in Freising, the paper then systematically analyses separation processes and judgement patterns under two judges. The results reveal a number of similarities, but also distinct differences between the way the two judges treated separation cases, indicating the importance of the role of the individual judge as a variable between the ius commune and regional legal traditions.

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21

Newman, Dwight. "Custom as a source of law." Commonwealth Law Bulletin 37, no. 3 (2011): 599–600. http://dx.doi.org/10.1080/03050718.2011.595151.

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22

Milisavljevic, Bojan, and Bojana Cuckovic. "Identification of custom in international law." Anali Pravnog fakulteta u Beogradu 62, no. 3 (2014): 31–51. http://dx.doi.org/10.5937/analipfb1403031m.

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23

Demian, Melissa. "Introduction: Internationalizing Custom and Localizing Law." PoLAR: Political and Legal Anthropology Review 38, no. 1 (2015): 3–8. http://dx.doi.org/10.1111/plar.12083.

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24

Xu, Xiaoqun. "Law, Custom, and Social Norms: Civil Adjudications in Qing and Republican China." Law and History Review 36, no. 1 (2017): 77–104. http://dx.doi.org/10.1017/s0738248017000554.

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This study examines how law, custom, and social norm interacted in civil justice in Qing and Republican China by looking into 152 civil cases tried in 1912, right after the founding of the Republic of China, and a body of legal interpretations from the Supreme Court during 1912-1929, and certain provisions in the Civil Code of 1929-30--the very first one in Chinese history. It shows that both law and custom were invoked by judges within their moral universe or social norm. It traces how the Supreme Court allowed local customs to be a legal ground for rulings in certain civil disputes, and which customs in civil matters in the Qing and the early Republic were, and which were not, “hardened” into the Civil Code. The interplay between law and custom, mediated by judges with their normative sense of right and wrong, constituted both continuity and change in civil justice between the Qing era and the Republican period. Ultimately, the issues addressed here speak to a larger question of how Chinese jurists, within their judicial discretions, tried to strike a difficult but necessary balance between “law-on-books” and “law-in-action,” while law on the books was undergoing important revisions.

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25

Fittipaldi, Edoardo, and Elena Timoshina. "Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-Russian Legal Realism." Ratio Juris 30, no. 1 (2016): 105–22. http://dx.doi.org/10.1111/raju.12137.

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26

Muhammad Taufan Djafri, Syandri Syandri, Aswar Aswar, and Zulkarnain Alim Said. "Tinjauan Hukum Islam tentang Adat Istiadat Ma’rate’ dalam Acara Pernikahan (Studi Kasus Kelurahan Pantai Bahari Lambupeo’ Bangkala, Kabupaten Jeneponto)." BUSTANUL FUQAHA: Jurnal Bidang Hukum Islam 2, no. 2 (2021): 287–300. http://dx.doi.org/10.36701/bustanul.v2i2.363.

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The purpose of this study was to discover the Ma'rate customary law in marriage according to the perspective of Islamic law. This research uses a qualitative approach with the type of field research (field research) and uses a normative and socioanthropological approach. The results of the study show that Ma'rate customs are never separated from the combination of culture and Islamic law. Ma'rate in the Islamic perspective has three elements of value, namely; 1) Moral values (in Ma'rate custom the host is obliged to honor guests such as providing food); 2) Cultural values (Ma'rate custom is no longer by its implementation as in the beginning, and this change is seen from the equipment that must be provided, where Ma'rate custom is now only an effort to preserve tradition); and 3) The value of worship (in the Ma'rate custom there are activities to pray for the bride and groom and humans in general). If the community can maintain Islamic values and not fall into sin, then Islamic law shows that the Ma'rate custom can be carried out on the condition that it does not conflict with the Qur'an, the sunnah of the prophet, and the rules of ushul fiqh.

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Mongush, Aelita Mikhailovna. "The role of customs in the system of social norms." SHS Web of Conferences 118 (2021): 02019. http://dx.doi.org/10.1051/shsconf/202111802019.

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The purpose of the study is to determine the essence and role of the norms of customary law (customs) through a comprehensive historical-legal and comparative-legal analysis. The methodological basis of the research was such methods of scientific knowledge as: description and comparative-legal method, which enabled to reveal certain types of social norms, their particularities and characteristic features, as well as the historical-legal method and methods of analysis and synthesis. The result of the work was the conclusion that through the prism of customary law norms, the level of development of the state, the degree of independence of society from the state, as well as the state of legal culture is seen on the largest scale. In addition, the author considers a well-reasoned and proven conclusion that it is required to study customary law and customs to modernize legal theory. The work also gives the author’s definition of the category of “custom”: a custom is the established models of human behavior in society, which have developed in the course of their multifold repetition. The novelty of the research lies in the author’s approach to examining the relationship between customs and the theory of law, as well as in the fact that the norms of customary law and the custom appear to be independent and fundamental methods of social regulation in the system of social norms.

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Masferrer, Aniceto. "The decline and displacement of custom in early modern Spain." Tijdschrift voor Rechtsgeschiedenis 87, no. 4 (2019): 427–72. http://dx.doi.org/10.1163/15718190-00870a10.

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SummaryThis article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the consequences of the Decrees of Nueva Planta (1707-1718), approved by Felipe V in the context of the War of the Spanish Succession (1700-1714), regarding the development of the notion and role of custom in the eighteenth century. The article concludes with some reflections, emphasising that although customs do not easily co-exist with the state or a strong political power, neither do they entirely perish.

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29

Tarmizi, Tarmizi. "Uruf in Islamic Law Perspective." Journal of Islam and Science 7, no. 2 (2020): 99. http://dx.doi.org/10.24252/jis.v7i2.16374.

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This paper discusses "Uruf in the perspective of Islamic law" by revealing problems, namely: (1) What is the position of uruf in istinbath of Islamic law, and (2) How is the application of uruf in Islamic Sharia laws. The position of uruf in istinbath of Islamic law is very important and can be a basis for legal considerations. The law of fiqhiyyah states that custom is punishable. Meanwhile, the application of uruf in Islamic Sharia laws is a source of law, especially in matters of muamalah, munakahah, and other social relations. Islamic law, which is closely related to interaction with fellow humans, is greatly influenced by the customs in society.

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Roberts, Anthea Elizabeth. "Traditional and Modern Approaches to Customary International Law: A Reconciliation." American Journal of International Law 95, no. 4 (2001): 757–91. http://dx.doi.org/10.2307/2674625.

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The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.

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Jowitt, Anita. "Reconstructing Custom." Alternative Law Journal 30, no. 1 (2005): 10–14. http://dx.doi.org/10.1177/1037969x0503000102.

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Maluleke, Mikateko Joyce. "Culture, Tradition, Custom, Law and Gender Equality." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (2017): 1. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2454.

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Traditional cultural practices reflect the values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others have become harmful to a specific group, such as women. These harmful traditional practices include early and forced marriages (Ukuthwala as practised currently), virginity testing, widow's rituals, 'u ku ngena' (levirate and sororate unions[1]), female genital mutilation[2] (FGM), breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting.[1] Levirate unions occur when the deceased's surviving male relative inherits the widow of the deceased. Sororate unions occur where the widower is inherited by the deceased wife's surviving female relative. The inherited widow or widower becomes the wife or husband to the surviving relative of the deceased.[2] FGM is not just the cutting of the clitoris; it includes disfigurement, and the changing of the form or elongation of the labia as practiced by Tsonga and Sotho communities.

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Koroviak, O. Ya. "LEGAL CUSTOM AS A SOURCE OF LAW." Scientific notes of Taurida National V.I. Vernadsky University. Series: Juridical Sciences 6 (2019): 14–17. http://dx.doi.org/10.32838/2707-0581/2019.6/03.

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34

Stein, Peter. "Custom in Roman and medieval civil law." Continuity and Change 10, no. 3 (1995): 337–44. http://dx.doi.org/10.1017/s0268416000002836.

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La rhétorique romaine voyait dans la coutume la base de toute loi sauf celles quiavaient été déterminées par une législation, alors que les écrits juridiques, à l'origine, n'accordaient de valeur qu'à la coutume locale dans la mesure où cette dernière complétait la loi générate. Julien le légiste soutenait que le consensus populaire qui est à la base de la législation pouvait s'exprimer aussi à travers les pratiques coutumières; au contraire, l'empereur Constantin estimait que la coutume n'était valable que si elle ne s'opposait ni au bon sens ni à la loi écrite. Les juristes du Moyen Age durent arbitrer entre ces deux positions. C'est à la faveur de ces débats que les juristes anglais trouveront de quoi justifier la nouvelle Common Law.

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35

Holden, Livia S. "Custom and Law Practices in Central India." South Asia Research 23, no. 2 (2003): 115–34. http://dx.doi.org/10.1177/0262728003232001.

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36

Aldashev, Gani, Imane Chaara, Jean-Philippe Platteau, and Zaki Wahhaj. "Using the law to change the custom." Journal of Development Economics 97, no. 2 (2012): 182–200. http://dx.doi.org/10.1016/j.jdeveco.2011.03.001.

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37

Makhat, Mohammed Thamer. "Criminalization Based on Custom in the Field of International Law." Journal of Law 11, no. 1 (2014): 293–332. http://dx.doi.org/10.12785/law/110108.

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38

Heath, Eugene. "Sir John Davies on Custom and the Common Law." Review of Politics 82, no. 3 (2020): 438–58. http://dx.doi.org/10.1017/s0034670520000388.

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AbstractSeventeenth-century English common lawyer Sir John Davies sets forth, in his Irish Reports, a provocative and interesting argument on the nature of custom and its relation to the common law. This relatively unexplored argument shows how actions may emerge from conditions of liberty and slowly acquire qualities of social benefit and agreeability that are essential if the common law is to be identified with custom. Davies not only provides a coherent account of how custom might possess some reasonability, but he also seems to suggest that custom is unintended, thereby anticipating a theme found in eighteenth-century thinkers such as Mandeville, Hume, Ferguson, and Burke. In addition, Davies's account has important implications for political theory: the priority of the social over the political and a notion of political consent that arises via custom itself.

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39

Mejía-Lemos, Diego. "Custom in General International Law and International Criminal Law: A Survey of Selected Issues." International Criminal Law Review 20, no. 5 (2020): 805–40. http://dx.doi.org/10.1163/15718123-bja10025.

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Abstract This article surveys selected decisions of international criminal courts and tribunals, and related literature, examining custom from a general standpoint. This article considers the place and nature of custom, with a particular focus on challenges levelled against custom’s suitability in international criminal law. This article also analyses custom’s ‘structure’, and, more specifically, the application of the ‘two-element approach’ by international criminal courts and tribunals. This articles then discusses claims that international criminal courts and tribunals engage in sui generis customary law-making, and revisits the distinction between custom in foro and in pays, examining that distinction’s pertinence to assessing such claims. Having emphasised the influence of general international law on international criminal law, this article lastly reverses its focus, and addresses custom’s wider functions as source for rules on custom’s identification and, more generally, other sources’ recognition, showing how some decisions of international criminal courts and tribunals elucidate those wider functions.

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D’Amato, Anthony. "Trashing Customary International Law." American Journal of International Law 81, no. 1 (1987): 101–5. http://dx.doi.org/10.2307/2202136.

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Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.

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Critelli, Filomena M. "Between Law and Custom: Women, Family Law and Marriage in Pakistan." Journal of Comparative Family Studies 43, no. 5 (2012): 673–93. http://dx.doi.org/10.3138/jcfs.43.5.673.

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The Italian Yearbook of Internation, Editors. "International Custom, Law of Treaties and Other Sources of International Law." Italian Yearbook of International Law Online 27, no. 1 (2018): 427–31. http://dx.doi.org/10.1163/22116133-02701022.

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Marotti, Loris. "INTERNATIONAL CUSTOM, LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW." Italian Yearbook of International Law Online 26, no. 1 (2017): 517–21. http://dx.doi.org/10.1163/22116133-90000176a.

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Takim, Liyakat. "Custom as a Legal Principle of Legislation for Shi’i Law." Studies in Religion/Sciences Religieuses 47, no. 4 (2018): 481–99. http://dx.doi.org/10.1177/0008429818787707.

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This paper will argue that the principle of a lacuna in Shi’i law can empower jurists to go beyond the traditional parameters of the shari’a. The principle allows for an expansion of Islamic law since jurists can legislate laws that have not been explicitly prohibited by textual sources. I will demonstrate that, in the past, Shi’i jurists often appealed to local customary practices in legislating laws that were absent in revelatory sources. This juridical practice is premised on the view that all reasonable beings accept and behave according to common norms and values. I will argue also that, based on the principle of the custom of reasonable people, jurists can deploy American social norms and customs as a source of new legislation. Such considerations can lead to a radically different formulation of diasporic jurisprudence.

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Kirgis, Frederic L. "Custom on a Sliding Scale." American Journal of International Law 81, no. 1 (1987): 146–51. http://dx.doi.org/10.2307/2202144.

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Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law: (a)concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;(b)continuation or repetition of the practice over a considerable period of time;(c)conception that the practice is required by, or consistent with, prevailing international law; and(d)general acquiescence in the practice by other States.

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Rausch, Franklin. "Law and Custom in Korea: Comparative Legal History." Sungkyun Journal of East Asian Studies 14, no. 2 (2014): 286–90. http://dx.doi.org/10.21866/esjeas.2014.14.2.009.

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Helmholz, R. H. "Christopher St. German and the Law of Custom." University of Chicago Law Review 70, no. 1 (2003): 129. http://dx.doi.org/10.2307/1600549.

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Abu-Rabia, Aref. "Family Honor Killings: Between Custom and State Law." Open Psychology Journal 4, no. 1 (2011): 34–44. http://dx.doi.org/10.2174/1874350101104010034.

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Zorn, Jean G. "Custom and/or Law in Papua New Guinea." PoLAR: Political html_ent glyph="@amp;" ascii=""/ Legal Anthropology Review 19, no. 2 (1996): 15–26. http://dx.doi.org/10.1525/pol.1996.19.2.15.

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Porter, Susie S. "“And That It Is Custom Makes It Law”." Social Science History 24, no. 1 (2000): 111–48. http://dx.doi.org/10.1017/s0145553200010099.

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In 1908 Señora Teodora Muñoz Viuda de Trejo, with the assistance of a public scribe, wrote to the city government regarding her business selling cakes on the streets of Mexico City. An inspector for the Department of Slaughterhouses and Markets had recently told her that as a vendor of prepared food she could no longer conduct business on the streets. This directive, if carried out, would have dire consequences for Señora Muñoz Viuda de Trejo.In her fourth letter to municipal authorities she wrote, I have mailed three letters and all without a favorable outcome. Today that circumstances compel me, I have made myself vulnerable once again to scorn, but a secret voice tells me to have faith. … Señor Governor, I have been a vendor of cakes since Señor Benito Juárez governed, then Señor Lerdo de Tejada came to power; and I continued making a living without interruption after our current president rose to power. I didn’t meet with any set-backs until three years ago when they took from me three licenses with which I supported myself. … I suffer an ailment of my arms; eight months ago I lost my only daughter who supported me, and she left me with three orphaned children—you see, she was widowed. And so, finding myself in this situation I am obliged to plead to the father of us the poor, that he concede what would be for me a fortune, that I be allowed to sell my cakes, and God will compensate you for this act of nobility. Your humble servant, Teodora Muñoz Viuda de Trejo.(AHCM 1910. 1735: 777)

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