Title: Custom and Its Revival in Transnational Private Law
Abstract: INTRODUCTION Traditionally, custom was considered be an autonomous source of law, similar legislation and case law, but its force was weakened in the 19th century under the influence of modern sovereignty notions and the idea that law could only emanate from states. This weakening had a particular effect in private law, which became domestic and statist, even in respect of international transactions. This change of perception also had an effect on public international law, whose authority suffered as a consequence as well. In private law, the result was the elimination of the force of all immanent law, especially custom but also general principle. Globalization and the consequent transnationalization of private law which led in commerce and finance the re-emergence of a modern law merchant or new lex mercatoria, gave custom, however, a reinvigorated role as an independent source of law, although it still competes with other sources of law, including statist laws of a private or regulatory nature. This leads a hierarchy of norms which may be seen today as the essence of the new lex mercatoria. I. CUSTOM AND THE IMPACT OF 19TH CENTURY SOVEREIGNTY CLAIMS Custom is traditionally perceived as an independent and autonomous source of law. Although immanent law, it is nevertheless hard law, no different therefore from other sources of law, especially legislation and case law. This means that customary law must be similarly applied by judges or arbitrators. In civil law, (1) that was indeed the position until the 19th century, but it was also the original position in the common law. (2) Custom did not, therefore, depend on special government or state sanction, either in statute or treaty, but spoke for itself. A rule of recognition (3) is not then statist either but will be another more fundamental rule in the legal order in which the custom operates. Yet in the 19th century, custom became problematic both in public international law and in private law, although in a somewhat different manner. The reason was the competition with state law that, at least in private law, became all embracing, first in civil law countries with their codification ethos but also in England where the view of Bentham and Austin, that all law, including private law, emanated from a sovereign, took hold. Although the common law itself was often portrayed as of immemorial usage and remained in that sense also immanent if not customary, other custom was then often considered primitive and atavistic. (4) It retained some place in commercial law, but its status became uncertain there as well. It did not help that in an unrelated 18th century development the judges at Westminster had already encroached on the independence of commercial law and its custom by bringing them and the local courts that had administered this law within the common law and its judicial system. (5) Against this background, it may be considered that the American attitude is reassuringly old fashioned. The UCC makes it very clear in Section 1-103 that custom is favored, particularly if law merchant. It provides that the Code is be interpreted liberally in order to permit the continued expansion of commercial practice through custom, usage, and agreement between the parties whilst unless displaced by the particular provisions of the Code, the principles of law and equity including the law merchant ... supplement its provisions. (6) Elsewhere, however, custom was increasingly ignored, (7) and its role and status hardly discussed. When legal positivism started develop towards the middle of the 19th century, the struggle concerning custom's status as an independent source of law came, however, again into the open. It is of interest in this connection note the evolution of the term 'positivism' in legal terminology. The term came into common use in the 19th century following the writings of Auguste Comte in France. …
Publication Year: 2008
Publication Date: 2008-03-22
Language: en
Type: article
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Cited By Count: 7
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