Suchergebnisse

A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law

In Spring 2012 a series of lectures was held at the Faculty of Law of the University of Trieste, focusing on selected relevant aspects related to the various legal subjects that are normally taught in the ordinary courses of our Faculty (Constitutional Law, History of Law, European and Comparative Law, Private International Law, Italian Private Law, Criminal Law). The lectures were mostly given in foreign languages by Italian and foreign colleagues, in particular young academics. Later it was decided to collect and publish some of the lectures in a volume: Sources of Law and Legal Protection. Triestine Lectures, adding a limited number of contributions delivered at two different conferences. This volume will be the first of a series designed to collect teaching materials, mostly in English and German, to be distributed in the academia . The internationalization and globalization pose a challange to law: also university education should strive to master it. The contributions reveal a clear scientific approach in dealing with the various subjects. The purpose of this book is to create a channel for the circulation of writings by young academics. Therefore it was considered appropriate to establish a scientific committee of external referees, as a means to guarantee the high quality of the individual contributions.

Humans are creatures of habit, and the use of judicial precedents is one of the most perfect examples to explain why. There is an air of peculiarity around them. They can be construed as the thoughts and the point of view of old, seemingly wise men or the community. But the core objective to utilize this tool as a source of law lies not in philosophy or common sense. Neither is its aim rooted in the fact that it is right, nor in the fact that it had ought to be done. Its driving force lies in the fact that it has been done. Judicial precedents are not as old as customs as a source of law, nor it is as binding as a piece of legislature. Even then, there is a strange appeal to it which attracts judges time and time again.