from custom constitution to custom constitutional law

Custom, Normative Practice, and the Law

Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This Essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally ...

Law and custom in Japan: some comparative reflections

Japan is now one of the leading industrial capitalist countries in the world. It is widely held to be an economic miracle, emerging twice to dominate Asia. Yet this miracle has been achieved without leading to those two banes of almost all other advanced industrial societies, high and rising crime rates and an epidemic of civil litigation. If, as Haley suggests, 'Japan's success in reducing cri...

Family Honor Killings: Between Custom and State Law

In this paper I will review some attitudes and perspectives regarding family honor killings, mainly in the Arab/Bedouin population in Israel, Sinai, and the Middle East in general. What is the difference between sharaf and 'ird? What deviant sexual behavior is considered a capital offense? How widespread is the use of honor killings, and what alternative sanctions are employed? Under which circ...

Islam, Law and Custom: Redefining Muslim Women's Rights

The Concept of Special Custom in International Law

There are regrettably few cases in international law that go into the question of the proof necessary to establish a customary rule binding upon the defendant state. And from those few cases, notably those decided by the World Court, most writers have drawn pessimistic conclusions as to the proof needed for custom because of the Court's apparent insistence, in Professor Falk's words, upon “some...

Nature, Custom, and Stipulation in Law and Jurisprudence

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