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Judicial Recognition Of The Custom

Posted on:2011-03-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:L M WangFull Text:PDF
GTID:1116360305451674Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Judicial recognition of the custom means the privy claims and testifies the custom and then the judge ascertains the custom in the judicial process, in which the custom is transmitted and applied in the judicature by the judge. Custom is a source of the law, but this proposition is only a description of the transmission of the custom into the judicature. Although the proposition can justify the transmission of the custom into the judicature, and although the legislator can establish the custom as a source of law, the judge needs some operational rules but not the abstract regulation. To transmit the custom into the judicature, the judge needs certain approaches and criteria, the nature of which is the capture and construction of the custom. The aim of this article is to describe and recur this course logically in the angle of normative analysis. Encircling the subject of the capture and reconstruction of the custom, the article is divided into six parts besides the introduction.The primary mission is to set up the precondition of argument by defining custom and customary law, the key concepts of the article. There're two ways to define of custom, mode of the behavior and norm of the behavior. Also there are two approaches to define customary law, one is recognition by the society and the second is recognition by the state. Thus, there's an overlap of the two concepts, which in fact includes three meanings altogether, that can be named as usage, custom and customary law. There are two approaches of the recognition of the custom by the state:by judicature or by legislation. So there are customary norms absorbed by the judicature and exist as precedents, which is named as customary law in this article. And the approaches by which the legislator affirms the custom include codification of the custom, absorbing rules from the custom and affirmation of the force of the custom generally. The customary norms turn into legal norms by the former two approaches, but by the third approach, the legislator authorizes the judge to apply the custom, and the form of the custom dosen't change. So custom of this kind can be named as legal custom. The norm of the legal custom is not certain yet, and the judge needs to find out it. In this way, custom and customary law are distinguished. Custom becomes customary law by the judicial adoption under the system of case law, so the customary law is custom that frozen in the precedent. But the custom in the judgment in the countries without case law has no attributes of law, and it is only a kind of applicable custom.There are three steps of the custom to be transmitted into the judicature, which are claim, testification and ascertainment. The process of the custom transmitted into the judicature and the custom turning into customary law is passive. How the privy claims the custom is an important proceeding subject. The privy can put forward the custom either when indicting or in the procedure. Generally speaking, how the privy puts forward the claim has no influence to the transmission of the custom into the judicature. But when the judge wants to refuse the custom, an irrelevant claim may become a pretense of the judge. The custom is a problem of fact. So the testification of the custom is a burden of the privy who claims the custom. And the judge's duty is to ascertain the custom. The privy is only in duty bound to testify the custom but not the customary law, it's the judge's duty to find out and apply the customary law. To ascertain the custom, the judge depends on some approaches and accords to some criteria, In the common law countries, many experiences have been accumulated, especially in Africa. The key of the judicial recognition of the custom is the criteria. There is a set of criteria of judicial recognition of custom in most countries but there's none in China. In the view of the normative analysis, we can construct a set of criteria, by which we can reflect the practice of judicial recognition of custom in China.Recognition of the norm is an important job of the judge during the process of the recognition of the custom, which is the precondition of the capture of the custom. Customary norm is also a kind of ought, and also has the compulsive force. Traditional theory of continental law system claims that the reason of the people following the custom is opinio necessitates. Imitation is the key factor to form the custom in the angle of psychology, because the behavior of the human-being has a normative ingredient. And there was a compulsive system of the customary norms, personal compulsion included, in the traditional society. But when the violent mechanism is monopolized by the state, the compulsive force of the custom degenerates into a kind of mental punishment, which leads to the deficiency of the normativity of the custom. The custom, which is'Ought to be', becomes'might be'. When custom is violated, the civil order might be destroyed, and the reconvension needs the intervention of the state. This is the legitimacy of the judicial adoption the custom. To recognize the idiographic ought, the judge needs to do the following jobs:first, distinguishes the nature of the object, that is to say, the object belongs to usage, custom or customary law; second, differentiates the fields between the field supervised by the law and free field of the citizen action; thirdly, after ascertaining that the law can intervene, recognizes the type of the custom, the rule of right and obligation and the normative expression of the custom.; fourthly, ascertains the rescue scheme according to the methodology meaning of the customary rules. The judicial recognition of the custom is an idiographic method of the law discovery, the nature of which is the capture and reconstruction of the custom.Legality Recognition means how the judge tests the validity of the custom, and get the applicable custom. The testification of validity is implemented on two stages. First, the judge needs to reflect the legitimacy of the custom, which is a process of filtration by the pre-comprehension of the judge. Judges in China usually disregard the traditional custom, which leads to the result that the custom is seldom transmitted into the judicature. Second, the judge needs to test the legality of the custom according to the present law. Only the custom which is corresponded to the regulation and the spirit of the statute can be applied in the judicature. Except that the statute authorizes the judge to apply the custom, it can only be transmitted into the judicature when there exists a loophole of law. There's no question of legality test in this situation. Legality of the custom mainly means the custom must accord with the spirit and the principle of the law, and accord with the public interest and public policy. Through the legality recognition of the custom, we can see that the applicable custom is filtered by the reflection of the judge and factors of the official institute.The purpose of the judge to recognize the custom is to solve the difficulties in the judicature. The legality of the judicial adoption by the judge is a theoretic difficulty of the positivism. And this theoretic difficulty changes into an normative difficulty in the civil law system. The judge in many countries of civil law system is forbidden to make law, they can only adjudicate the case by the statute, not the custom. Just through the very problem, we can get the key that the custom becomes customary law:the secret power changing custom into customary law is the authority of the judge. It is the authority of the judge that stamps the seal of law into the custom. In most situations, the judge applies the custom to supplement the positive law, or to testify some facts, or to clarify some mistiness of the law, or as a fact of the benefit-weight. In some special situations, the custom conflicts with the positive law, while exclusion of the application of the custom may leads to some unfair effects, then the judge can apply the custom to substitute the law to promote the acceptability of the judgment when the social mind has changed.It is obvious that the nature of the judicial recognition and adoption of the custom is the capture and reconstruction of the custom. The custom recognized and adopted by the judge becomes a customary law under the case law system. Actually, the customary law has become an artificial product of the judge in the legal history. In the movement of the custom turning into customary law, the final factor is not opinio necessitates of the public but opinio necessitates of the judge. It's possible for the custom to change into customary law, only when the judge has opinio necessitates about the custom. Then, the custom applied by the court became different with the pure civil custom after a period of accumulation of reconstruction of the custom. The custom applied by the court was hard set in the judgment and became a part of the tradition of the court. So the customary law is not the behavior mode of the civil, but has become the thinking mode of the lawyer passing through a long historical deposition. The customary norm has become the rule in the book from the rule in the action. Meanwhile the custom in the original meaning was marginalized and has turned into the background of the official institution, and comes into the judicature as a supplement occasionally. It's the fate of the custom.
Keywords/Search Tags:Custom, Customary Law, Legality, Judicial Recognition
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