Custom and its Revival in Transnational Law
39 Pages Posted: 7 May 2014
Date Written: May 6, 2014
Abstract
Traditionally, custom was considered an autonomous source of law, similar to legislation and case law, but its force was weakened in the 19th century under the influence of modern sovereignty notions and the idea that law could only emanate from states. This weakening had a particular effect in private law, which became domestic and statist, even in respect of international transactions. This change of perception also had an effect on public international law, whose authority suffered as a consequence as well. In private law, the result was the elimination of the force of all immanent law, especially custom but also of general principle. Globalization and the consequent transnationalisation of private law which led in commerce and finance to the re-emergence of a modern law merchant or new lex mercatoria, gave custom, however, a reinvigorated role as an independent source of law, although it still competes with other sources of law, including statist laws of a private or regulatory nature. This leads to a hierarchy of norms which may be seen today as the essence of the new lex mercatoria.
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