Description

The term ‘customary law in foro’ was coined by Bentham to describe customary law in the courts (‘in foro’), as opposed to customary law of some group in the general population (customary law ‘in pays’) Customary law in pays is a form of custom followed by some group in the community that is given legal effect by the courts. By contrast, judicial customary law is law that arises directly from the practices of the courts themselves: it is law that is used by the courts but lacks a source such as statute or precedent. And unlike customary law in pays, customary law in foro remains a significant feature of modern law. The Royal Prerogative in England, for instance, derives from neither statute nor precedent. Similarly, the doctrine of precedent is not based on precedent: precedents are only binding law due to the doctrine of precedent itself, so cannot be the basis for the doctrine.

This seminar has three aims: (1) to make some progress in providing a systematic account of the nature of customary law in foro, building on the insights of earlier theorists: (2) to explore the relationship between customary law in foro and other sources of law, especially the question whether customary law in foro can be subject to legal alteration; and (3) to examine what light the account throws on Hart’s ‘rule of recognition’, and on the status of ‘revolutionary’ written constitutions, i.e. those adopted in a legally unauthorised manner.

About The Speaker

Grant Lamond is University Lecturer in Legal Philosophy at the University of Oxford, and a Fellow in Law at Balliol College, Oxford. After completing degrees in philosophy and law at the University of Sydney he clerked for the Chief Justice of the Federal Court of Australia before completing the BCL and a doctorate at Oxford. His work is primarily concerned with issues in general jurisprudence, legal reasoning, and the philosophical foundations of criminal law. He has published articles on coercion and law, the nature of crime, and precedent. He is currently engaged in two on-going projects, one a philosophical study of case-law reasoning in the common law, and the second an analysis of the nature of customary law as the foundations of a legal system.