Call for Papers: The Philosophy of Customary Law
Special edition of the French journal Noesis
For more than 20 years, the peer-reviewed journal Noesishas been at the forefront of French contemporary philosophy. Affiliated to the Center for Research in the History of Ideas(CRHI) of the University of Nice Sophia Antipolis, Noesispublishes two special editions a year, collecting papers around a topic chosen by its scientific committee. The Philosophy of Customary Lawwill be the name of the Spring 2020 double issue. It follows the organization of a conference on the “Philosophy of Customary Law” in May 2018.
Far from considering the phrase “customary law” as a self-evident truth, papers will aim at identifying and trying to solve the many tensions created by the juxtaposition of two separate but parallel forms of social regulation: law and custom. What matters then is to investigate the ambiguity behind the very idea of customary law. Does it point out one more sort of law, or does it designate an autonomous kind of law, with its own features and not reducible to the law?
Answering these questions requires without any doubts an enquiry about the peculiar dynamics of customary law, grounded on both empiricist and theoretical perspectives. To know whether it is a form among others of law or it is specific enough to be called a genus of law, it is crucial to define its principles. If this law is called customary it is because custom is key to it as a sourceof law. Understanding the specific features of customary law means therefore striving to understand what role custom plays to shape the very nature of customary law.
It will be necessary to investigate the way the main role assigned to customs determines the very existence of specific institutions and peculiar criteria of the bigger law frame that regulates the individual. Any legal system that includes custom as its element must establish spatial, temporal and logical frame of custom proofs. Nevertheless, Anglo-Saxon Common law and its peculiar principles mustn’t overshadow any attempt to grasp the principles and the peculiarities of customary law; and we will be particularly sensitive to the way the customary law settles in pluralist contexts, where different customary laws can be concurrent. In these conditions the interaction between law and custom takes the shape of a normative conflict more than of a coherent customary law.
Exploring the limits and the fictions of customary procedures adopted by the Common Law could be the first step of both a new deployment of the customary law potential and an enquiry about its foundations. Indeed, it would be of extreme interest to study the different forms of customary law in eras where the Common Law model is spreading at different levels and domains, especially in international law, and where customary law is adopted in de-colonized regions where the law system is marked by a strong plurality of contexts.
Peculiar stakes of these contexts force to investigate both the limits and the flexibility of customary law. Do evolutions of scales and domains concern the essence of customary law, if this nature exists? Or are they only variations of a single nature beyond the peculiarities of each embodiment? It will also be necessary – among other issues – to address the specific effectiveness of customary law, and to determine if it lays on the same constraint as the law; and if it is supported by peculiar institutions and applications. The question of the role of the sanctionis in this respect essential.
In the wake of these reflections it is necessary to note that custom is reduced to the status of simple source of the law in every law called customary, and is therefore deprived of every autonomous form of normative power. It is not custom that is not acknowledged as custom according to the processes required and in the name of the institutions and criteria defined by law. In this case, custom is not anything more than one of the many possible sources of law, and concurring with them; it has not a primary juridical existence.
This is the reason why John Austin could so easily disqualify custom self-sufficiency, arguing – with Hobbes and against the historical school – that the very nature of law prevents custom to be effective on its own besides the implicit or explicit, direct or indirect acknowledgement by the sovereign. One of the main ambitions of this collective publication would be indeed to question Austin’s position. This could in turn allow to address the issue of the substantial or accessory priority of the phrase “customary law”. Beyond this lies the very issue of the autonomy of custom as a social regulation tool.
In order to do that, one could be tempted to consider what disappears of custom and what does not, in customary law, so as to really understand its very nature. This brings us to discuss the specific subject of the codification of custom, the cornerstone of customary law. This codification is neverdefactoa neutral act, and it will be more relevant to point out from every point of view all the implicit tensions of the codification, which standardize and stabilize power balances or social and economic struggles. One of the axes of the study, already well known in social science but overlooked by philosophy, would be that of interaction between formal law and custom in de-colonized countries.
Legal codification is one of these moments when powers and knowledge meet with most intensity. The “historical school” of law maintained the necessity of combining law studies with humanities, and we can now include social sciences such as economy, anthropology and sociology. We will therefore investigate which place these disciplines can or should have within the codification and definition of custom; we will also enquiry about their legitimacy, methods and approaches.
The question arises of which place one should give to specific case studies in this volume. It is clear that they must be crucial while studying customary law as a theoretical object; but no discourse should be limited to a series of descriptions of different customary laws.
The following, non-exhaustive list of questions should allow to prefigure various leads:
Does “customary law” locutionshow a specific mode of social regulation between the juridical and the customary? Is custom a source of law? Or could be considered as an object beyond or before it? Does a specific form of customary law exist despite its different expressions? Does a model of customary law exist – such as the international law?
Which transformations does custom endure when integrated with the “customary law”? Which philosophical implications does codification of custom produce within customary law? Which are the stakes of the very existence of customary law in pluralist and decolonized contexts? What are the relationships between customary law on one side and moral or juridical standards such as human rights on the other? What is the place of customary law within social change dynamics?
Which interactions and which concerns exist about humanities, social sciences and law with respect to custom? Which are the links of customary law with localities, territories, their history and their social displaying? How different disciplines of social and human sciences allow to reflect upon these phenomena and their conflict with law’s peculiar formality?
The committee and the editors will make their selection from a set of complete papers only. Proposals will not be reviewed.
Papers may be as long as 35.000 signs / 7.500 words. This does not include: the main title, abstracts, footnotes, the author’s presentationetc. Only the main text counts in the total of words.
Papers may be written in French, English and Italian only. They should be sent to the following email addresses altogether, by June 1st, 2019.
To ensure an unbiased selection, the document must be anonymous. It must be modifiable, therefore .doc files are preferable. Please include in your email a separate document that states your name, affiliation, topics of interests. We should provide an answer by August 1st, 2019.
Then, selected papers might need some modifications. The final versions of the papers will be due by September 15, 2019.