The Philosophy of Customary Law

Hardcover | May 1, 2014

byJames Bernard Murphy

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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 andcustomary 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 andcustom 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 howconventions 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 anew foundation of understanding for these concepts.

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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 andcustomary law have long been neglected topic...

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 ...

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Format:HardcoverDimensions:152 pages, 9.25 × 6.12 × 0.98 inPublished:May 1, 2014Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199370621

ISBN - 13:9780199370627

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Table of Contents

AcknowledgmentsPreface1. Habit and Convention at the Foundation of Custom2. Customary Law in Suarez3. Jeremy Bentham on Custom4. James C. Carter's Natural Law Theory of CustomEpilogue: Custom and LawIndex