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The Philosophy of Customary Law

The Philosophy of Customary Law

作者： James Bernard Murphy
出版商： Oxford University Press USA
ISBN: 9780199370627
出版时间 April 2014
规格： Hardback , 160 pages
适应领域： U.S. ? 免责申明：
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详细
- Explains the relationship between custom and customary law
- Proposes a new framework of understanding and analyzing custom as two logically basic concepts of convention and habit
- Explains how custom, understood as convention and habit, fit into the major traditional theories of customary law
- Demonstrates the role custom plays in the legal system as it interacts with social regulation and human prejudice
- Explores the nature and significance of custom and customary law in the four classic theories of Aristotle, Francisco Suarez, Jeremy Bentham, and James C. Carter
Although many modern philosophers of law describe custom as merely a minor source of law, formal law is actually only one source of the legal customs that govern us. Many laws grow out of custom, and one measure of a law's success is by its creation of an enduring legal custom. Yet custom and customary law have long been neglected topics in unsettled jurisprudential debate. Smaller concerns, such as whether customs can be legitimized by practice or by stipulation, stipulated by an authority or by general consent, or dictated by law or vice versa, lead to broader questions of law and custom as alternative or mutually exclusive modes of social regulation, and whether rational reflection in general ought to replace sub-rational prejudice. Can legal rules function without customary usage, and does custom even matter in society?

The Philosophy of Customary Law brings greater theoretical clarity to the often murky topic of custom by showing that custom must be analyzed into two more logically basic concepts: convention and habit. James Bernard Murphy explores the nature and significance of custom and customary law, and how conventions relate to habits in the four classic theories of Aristotle, Francisco Suarez, Jeremy Bentham, and James C. Carter. He establishes that customs are conventional habits and habitual conventions, and allows us to better grasp the many roles that custom plays in a legal system by offering a new foundation of understanding for these concepts.

Readership: Professors of law, professors of philosophy, scholars of international law, students of law and philosophy, law libraries, and general university libraries.
Acknowledgments
Preface
Chapter One: Habit and Convention at the Foundation of Custom
Chapter Two: Customary Law in Suárez
Chapter Three: Jeremy Bentham on Custom
Chapter Four: James C. Carter's Natural Law Theory of Custom
Epilogue: Custom and Law
Index
James B. Murphy is Professor of Government at Dartmouth College, where he teaches courses in jurisprudence and political philosophy. His research interests include: Aristotle, jurisprudence, semiotics, political economy, and the philosophy of education. He has received grants and fellowships from the N.E.H., the A.C.L.S., the Earhart Foundation, The Manhattan Institute and the Pew Charitable Trusts. He previously authored The Moral Economy of Labor: Aristotelian Themes in Economic Theory and The Philosophy of Positive Law. He co-edited, with Richard O. Brooks, Aristotle and Modern Law (2003), Augustine and Modern Law (2011), and Aquinas and Modern Law (2013). He has also co-edited with Amanda Perreau-Saussine, The Nature of Customary Law (2007). He has published scholarly articles in Political Theory, The Review of Politics, The Review of Metaphysics, Semiotica, The Thomist, and The American Journal of Jurisprudence.

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