(Source: Journals.openedition)
The revue Noesis (the journal of the Centre de
Recherches en Histoire des Idées de l’Université de Nice) has launched a call
for contributions for a double-volume on “the philosophy of customary law ”.
Here the call :
For more than 20 years, the peer-reviewed
journal Noesis has 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, Noesis publishes two special editions a
year, collecting paper around a topic chosen by its scientific committee. The
Philosophy of Customary Law will 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.
The call
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 source of 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 sanction is 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 neverde facto a 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 » locution show 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?
Submissions
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 characters /
7.500 words. This does not include: the main title, abstracts, footnotes, the
author’s presentation etc. 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.
noesis@listes.unice.fr edoardo.frezet@gmail.com
marc.goetzmann@unice.fr luke.mason@bcu.ac.uk
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 dueby September 15,
2019.
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