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Emily Kadens - One of the best experts on this subject based on the ideXlab platform.
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The Myth of the Customary Law Merchant
Texas Law Review, 2012Co-Authors: Emily KadensAbstract:Legal scholars from many disciplines — including Law and economics, commercial Law, and cyber Law — have for decades clung to the story of the so-called Law merchant as unassailable proof that private ordering can work. According to this story, medieval merchants created a perfect private legal system out of commercial customs. As this Customary Law was uniformly and universally adopted across Europe, it facilitated international trade. The Law merchant myth is false on many levels, but this Article takes aim at two of its fundamental principles: that uniform and universal Customary merchant Law could have existed and that merchants needed it to exist. The Article argues that the most widespread aspects of commercial Law arose from contract and statute rather than custom. What custom the merchants applied often did not become uniform and universal because custom usually could not be transplanted and remain the same from place to place. Yet, the use of local custom did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational Law.
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the myth of the Customary Law merchant
Texas Law Review, 2012Co-Authors: Emily KadensAbstract:Legal scholars from many disciplines-including Law and economics, commercial Law, and cyber Law-have for decades clung to the story of the so-called Law merchant as unassailable proof that private ordering can work. According to this story, medieval merchants created a perfect private legal system out of commercial customs. As this Customary Law was uniformly and universally adopted across Europe, it facilitated international trade. The Law merchant myth is false on many levels, but this Article takes aim at two of its fundamental principles: that uniform and universal Customary merchant Law could have existed and that merchants needed it to exist. The Article argues that the most widespread aspects of commercial Law arose from contract and statute rather than custom. What custom the merchants applied often did not become uniform and universal because custom usually could not be transplanted and remain the same from place to place. Yet, the use of local custom did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational Law. Advocates of private ordering have fallen in love with the Middle Ages. Scholars in fields ranging from domestic and international sales Law, cyber Law, Law and economics, sports Law, and aviation Law, as well as judges and casebook authors have made the medieval Law merchant into the archetypal sophisticated legal system that private groups can create when not impeded by the intermeddling of the state.1 In the mercatorists'2 retelling, the Law merchant evolved from merchant practices, as traders experimented to find the most efficient commercial methods. Bubbling up from below and independent of government involvement, the best of these practices spread across Europe. The uniformity and universality of the resulting Customary rules facilitated transnational trade in a world of parochial local jurisdictions hostile to foreign merchants and lacking unifying states.3 As a consequence, no matter where in Europe they traveled, traders could rely upon these merchant-devised customs to provide default rules and to fill in gaps around negotiated contracts.4 Should disputes arise, the traders could have confidence that the merchant-created and merchant-staffed courts would apply the lex mercatoria customs as rules of decision.5 The Law merchant story has such intrinsic appeal and carries so much weight in the literature of so many areas of legal scholarship that the efforts of numerous historians to expose it for the myth that it is have been met with skepticism at best.6 More commonly, the mercatorists have ignored the existence of challenges to their theory.7 The story simply holds too much symbolic power for modern advocates of private ordering looking to give the underpinning of historical legitimacy to their political and economic theories about how Law is and should be made.8 Inconveniently, however, the historical evidence does not bear out the Law merchant tale. To the extent that merchants did indeed invent a special set of uniform and universal rules governing long-distance trade across premodern Europe, those legal rules usually arose from contract and legislation rather than from custom. Commercial custom did exist, but it was primarily local. The reason for this, this Article argues, relates to the nature of custom and legal borrowing. Unless merchant customs arose spontaneously and identically in every place they were found,9 then the lex mercatoria story implicitly assumes that the users of those customs transmitted them from market to market and fair to fair.10 The literature of legal transplants is extensive, but transplant scholars do not appear to have inquired into the characteristics of Laws that can be borrowed successfully.11 Most studies of legal transplants concern fully expressed, normally written rules.12 The hypothesis of this Article is that such rules can be borrowed or shared in part because they are sufficiently capable of a definite and bounded articulation. …
Aninka Claassens - One of the best experts on this subject based on the ideXlab platform.
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recent changes in women s land rights and contested Customary Law in south africa
Journal of Agrarian Change, 2013Co-Authors: Aninka ClaassensAbstract:This paper discusses the phenomenon of single women claiming, and acquiring, residential sites in the former homelands since the end of apartheid in 1994, against the backdrop of steadily declining marriage rates. It argues that the transition to democracy changed the balance of power within which ‘living Customary Law’ is negotiated at the local level, and emboldened women. The changes are put at risk by controversial traditional leadership Laws enacted since 2003. These restore the power of definition to chiefs, and reassert constructs of Customary Law that obscure the dynamics of the changes under way. I suggest that the ‘changes’ may, in part, reflect the re-emergence of pre-existing repertoires that were suppressed by official Customary Law. The paper contrasts the Constitutional Court's inclusive approach to ‘living Customary Law’ and the legislative process, with the autocratic approach of the new Laws, one of which has already been struck down by the Court.
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rural women redefining land rights in the context of living Customary Law
South African Journal on Human Rights, 2009Co-Authors: Aninka Claassens, Sindiso MnisiAbstract:Women's rights and Customary Law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom / rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to Customary entitlements. The article focuses on contestation over who has the power to define custom, rights and Customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define Customary Law as 'living Law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy'. Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socio-economic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.
Anthony Diala - One of the best experts on this subject based on the ideXlab platform.
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the concept of living Customary Law a critique
Social Science Research Network, 2017Co-Authors: Anthony DialaAbstract:The concept of living Customary Law has been embraced by scholars and judges, especially in Southern Africa. However, its acceptance has not benefitted from a detailed legal theoretical explanation. Indeed, the mainstream conceptualisation of living Customary Law may be accused of alarming ambiguity, which is evident in scholars’ failure to properly account for its flexibility and emergence. This article critiques this conceptualisation, arguing that a meaningful theoretical engagement with living Customary Law in postcolonial societies should involve two inter-connected approaches. The first is an interdisciplinary approach to Law; the second is the perspective of legal pluralism, which plays a key role in the emergence of living Customary Law. The article proposes that living Customary Law is best perceived as a product of people’s adaptation of customs to socioeconomic changes and suggests that this approach is the stepping stone to a comprehensive theory of African Law.
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the concept of living Customary Law a critique
The Journal of Legal Pluralism and Unofficial Law, 2017Co-Authors: Anthony DialaAbstract:The concept of living Customary Law has been embraced by scholars and judges, especially in southern Africa. However, its acceptance has not benefitted from a detailed legal theoretical explanation...
Helen Dancer - One of the best experts on this subject based on the ideXlab platform.
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an equal right to inherit women s land rights Customary Law and constitutional reform in tanzania
Social Science Research Network, 2017Co-Authors: Helen DancerAbstract:This article explores contemporary contestations surrounding women’s inheritance of land in Africa. Legal activism has gained momentum, both in agendas for Law reform and in test case litigation, which reached the United Nations Committee on the Elimination of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing the approach of Tanzania to that of its neighbors, Uganda, Kenya and Rwanda, this article explores patterns of resistance and omission towards enshrining an equal right to inherit in land and succession Laws. It identifies two main reasons: neo-liberal drivers for land Law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of land. It argues that a progressive approach to constitutional and Law reform on women’s land rights requires understanding of the realities of claims to family land based on kinship relations. It calls for a holistic approach to land, marriage and inheritance Law reform underpinned with constitutional rights to equality and progressive interpretations of living Customary Law.
Janine Ubink - One of the best experts on this subject based on the ideXlab platform.
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in the land of the chiefs Customary Law land conflicts and the role of the state in peri urban ghana
2008Co-Authors: Janine UbinkAbstract:The central themes of this book are Customary Law, traditional leadership and local land management. International policy is currently witnessing a renewed interest in Customary tenure systems and traditional leadership, through which it aims to enhance the efficiency of local governance, and create general access to and secure rights in land. Contrary to these ideas, practice reveals a lack of security of Customary tenure in many areas. Mounting evidence displays that Customary systems often evolve inequitably and that traditional elites benefit disproportionally from commodification of land. In an effort to understand Customary land management by traditional authorities, and the role policymakers, Lawmakers, judges and civil servants play in this process, this book studies practices of land management in peri-urban Kumasi. It combines local case studies with theories about efficient land management, the resilience of traditional leadership, the negotiability of Customary Law and the gap between judges’ Customary Law and local practices. Doing so, it offers a unique body of empirical and theoretical knowledge for those interested in Customary land management, as well as those interested in how Customary Law functions both at the local level and at the level of the state, in interaction with judges, Lawmakers, policymakers, and civil servants.
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in the land of the chiefs Customary Law land conflicts and the role of the state in peri urban ghana
2008Co-Authors: Janine UbinkAbstract:International policy is currently witnessing a renewed interest in Customary tenure systems as well as traditional leadership, through which it aims to enhance the efficiency of local governance and create general access to and secure rights in land. Contrary to these ideas, practice reveals a lack of security of Customary tenure in areas with a high competition for land. Mounting evidence displays that Customary systems often evolve inequitably and that traditional elites benefit disproportionally from commodification of land. In an effort to understand Customary land management by traditional authorities and the role policymakers, Lawmakers, judges and civil servants play in this process, this book studies practices of land management in peri-urban Ghana where traditional leadership forms a vibrant part of social life. This book combines local case studies with theories about efficient land management, the resilience of traditional leadership, the negotiability of Customary Law and the gap between judges' Customary Law and local practices. Doing so, it offers a unique body of empirical and theoretical knowledge for those interested in Customary land management, as well as those interested in how Customary Law functions both at the local level and at the level of the state
