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Sources of Tort law - Essay Example

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In the "social contract" structure, customary rules can be deemed as an implied and frequently non-verbalized practice of open legislation by the members of the public. Those legal schemes that provide direct legal power to customary rules look upon custom as a principal, even though not exclusive, foundation of law…
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Sources of Tort law
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Download file to see previous pages Judicial acknowledgment of spontaneous standards brings about a declaratory (more willingly than constitutive) function that cares for custom as a legal reality. The legal system finds the law by being acquainted with social standards, but does not "create" the law (Fisheries, 1951, International Court of Justice, Kontou, 1994). The most distinguished demonstration is the organization of tort law, where, devoid of a central legislative power, custom positions adjacent to treaties as a principal source of law. (Statute of the International Court of Justice, Article 38 section 1).
At any time they are provided with legitimate position in a legal system, customary rules are frequently provided with the similar impact as other key sources of law. Even though frequently secondary to formal legislation, customary rules obtain their power from the agreement of a standardized practice and an individual conviction that obedience to them is mandatory (opinio iuris), devoid of essentially being officially integrated into any written body of law (Malanczuk, 1997, NorthSea Continental Shelf, Roht-Arriaza, 1995, Sands, 2003, Scott, 2000). Consequently, they are more often than not characterized as irrelevant sources of law (Brownlie, 1990, The Corfu Channel, 1949, Trendtex Trading Corporation, 1977, Vierdag, 1982, Weber, 1978, Baxter, 1970, Brownnlie, 1987, De Vattel, 1960, Goldsmith and Posner, 1999). This conception entails that the custom continues to be the definite source of law notwithstanding following its judicial recognition. In this context, the judicial assessments that are on familiar terms with a custom present merely persuasive evidence of its subsistence and do not themselves turn out to be foundations of law. Sequentially, this puts off the doctrine of stare decisis from shaping up customary law.
Contemporary legal systems commonly distinguish customary rules that have materialized either within the boundaries of positive legislation (consuetudo secundum legem) or in fields that are not regimented by positive law (consuetudo praeter legem). Where custom is in open disagreement with legislation (custom contra legem) the latter more often than not wins through. In some cases in point, nonetheless, a custom supplants previous legislation (abrogative custom), and a number of arguments have been completed in favor of the up-and-coming practices that run counter to outdated stipulations of public tort law (desuetudo) (Kontou, 1994, International Law Commission, 1962. Internatinal Law Commission, 1966, Mendelson, 1998, Tunkin, 1974).
The perception of opinio iuris initiates a difference involving mere behavioural regularities and internalized responsibilities. This difference may possibly be associated to the parties' responsiveness of the anticipated collective payoffs from the game, a difference that is significantly vital in the normative context (Weber, 1978). A couple of groupings of social rules are commonly recognized. These include those that reveal simple behavioural arrangements that are not indispensable to the legal order. Another is those that reveal an internalized conviction that the implementation is essential or publicly sought-after.
A simple behavioural regularity, missing the qualitative component of opinio iuris, does not produce a customary rule. In legal terminology, such behaviour is a sheer usage; in economic contexts it merely stands for an ...Download file to see next pagesRead More
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