最高人民法院裁判、司法解释的法律地位

The decisions and the legislative interpretations of judicial interpretations of the Supreme Court of China can be considered as a part of Mainland China’s customary law, and carried by decisions and judicial interpretations. Customary law is the very source of its normal force and they are supposed to be an informal source of the law for they have the required characteristics for substantiating customary law. Accordingly, the legislative judicial interpretations and decisions of the Supreme Court that are qualified to be promulgated in the Gazette of the Supreme Court should be standardized by the requisites of customary law and have the quality supposed to be universally fair. Cao Shibing is a senior judge of the Supreme Court of China majoring in civil law, and he was awarded the doctorate of law by the Chinese Academy of Social Sciences. Till now, he has published an amount of academic works, for instance, On Anti-monopoly Law (1996), Resolve of the Problems in the Suretyship Law of China and its Prospect (2001), On Insolvency Law of China (2003), and his translated book in Chinese (1998) —The Death of Contract (originally written by Grant Gilmore in 1995).     

Customary Homicides in Diyarbakir Province

This study presents an analysis of the causes of so‐called honor killings in the context of “customary homicide” and a discussion of preventive measures. Finalized case files of customary homicide between January 1, 2007 and December 31, 2012 were retrospectively examined in Diyarbakir Province, Turkey. Of a total of 28 case victims, 17 (60.7%) were females and 11 (39.3%) were males. All perpetrators were male. There was a significant difference between male and female victims in terms of economic independence (p = 0.000). A direct blood relationship or relationship by marriage (such as brother‐in‐law) was found to have a significant association with the gender of the victim (p < 0.001). Multilevel educational activities targeting a transformation of the perception of women by society, replacement of patriarchal models with more modern attitudes, and encouragement of individuality may represent effective strategies that may help reduce the number of customary homicide, which represents a multifaceted problem.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

论习惯法的诞生

习惯法的诞生，并不需要经过国家的承认。禁止性的习惯法，源于人的恐惧心理；允许性的习惯法，源于人的模仿本能。除此之外，血缘关系构成了习惯法诞生的外在背景，群体利益构成了习惯法诞生的内在动力，舆论毁誉构成了习惯法诞生之后的保障机制。以习惯法的诞生机制作为基础，还可以就习惯法与习惯、道德、制定法、原始法等相关概念的关系做出初步的辨析。     

The Great Rabbit Massacre – A “Comedy of the Commons”? Custom, Community and Rights of Public Access to the Links of St Andrews

In the US courts and legal scholars have rediscovered the English doctrine of custom. In her essay ``The Comedy of the Commons: Custom, Commerce, and Inherently Public Property', Professor Carol Rose argues that customary uses of recreation lands should be upheld by courts because the highest value of such land is achieved by keeping them open to the public. Rose relies in her argument on the English doctrine of custom, but the doctrine of custom legitimates local not public use. British legal history, however, provides an example of such a ``public' common in the Links of St Andrews. In the case Dempster v. Cleghorn, the golfing public sought to vindicate their customary right to the maintenance of golfing ground as it had been ``in all times past'. This article examines the case of Dempster, and the consequent riot, and asks whether it was a ``comedy of the commons'. It concludes that despite ten years of litigation and the extirpation of the Dempsters' warrened rabbits, the case nevertheless is a ``comedy of the commons' that provides a model of the meditation of public use by local custom and community. This revised version was published online in August 2006 with corrections to the Cover Date.     

Theory of Custom,Dogmatics of Custom,Policy of Custom: On the Threefold Approach of Polish‐Russian Legal Realism

Proceeding from the insights of Petra?ycki, Polish‐Russian legal realists (PRRs) distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value‐free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value‐laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources (NSs) as binding, while legal policy evaluates the effects produced by given NSs based on causal laws and on the subject's goals (for Petra?ycki, these goals come down to that of fostering love, or benevolence). PRRs then conceptualize custom as a representation of people behaving in a certain way (R_c): We have a custom on the threefold condition that (a) R_c is believed true by a given X, (b) R_c causes the existence of a given normative psychical experience (NPE) in X, and (c) X expressly refers to—or would refer—to R_c in justifying an NPE. PRRs use the term customary law to refer to legal experiences (i.e., NPEs involving a sense of entitlement) caused and justified by an R_c. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, by contrast, what matters is (a) whether the dogmatician—qua subject—adopts custom as a binding NS, (b) whether it is true that people behave in a given way b_w, and (c) whether b_w resembles the behavior that is deontically qualified in the norm under dogmatic evaluation. Finally, from a legal‐political viewpoint, PRRs hold that customary law in modern societies, owing to its conservative nature, should be eradicated for the goal of removing inequalities and fostering benevolence.     

The Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation?

Conflicts between treaty and customary norms are endemic to international law and are increasingly frequent. Yet there is nothing automatic or mechanical about interpreting and resolving such conflicts, which require a high degree of contextual sensitivity. Their identification and interpretation test the limits of the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties, particularly where treaty modifications by subsequent customary law are concerned. This article endeavours to sketch how the latter phenomenon occurs, and the interpretative and evidentiary challenges involved—many of which remain underexplored. The analysis begins with the identification and interpretation of newly emerged customary norms, before delving into the process of determining their treaty-modifying potential. This involves the side-by-side interpretation of the pre-existing treaty and the customary norm to assess whether there is a genuine incompatibility that cannot be resolved through harmonious interpretation. The final inductive step is to ascertain the parties’ consent to displace the treaty norm in favour of the customary norm, subject to certain crucial requirements. Against the backdrop of the organic and continuous interplay between treaties and customary international law, these interpretative and evidentiary steps serve to ensure that the parties’ intention remains paramount.

     

The treatment of Chinese customary law in British colonial Hong Kong

A struggle has been underway in Beijing, othering Hong Kong’s British common law legal system by rhetorically subordinating it as a foreign colonial relic. How did the British develop their Hong Kong governance policies for proper law, as they ruled Hong Kong? These policies developed without resort to all the available scholarship, so that they could other the Hong Kong people into a subaltern group. Hong Kong was already constituted as a township with its own continuing township liturgy, customary ritual and social structure. The colonial administration ignored this, creating a Hong Kong subaltern.     

Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.     

少数民族习惯法的现代表达——对民族自治立法机关主体功能定位的思考

习惯法伴随着民族的发展长期存在,在现代社会,少数民族习惯法也以其自身的形态存在于人们的社会生活中,中国社会法治化道路需要国家法同习惯法进行对话和对接。民族自治立法机关要真正成为对话的通道和对接的平台,正确定位自身主体功能,加强对国家法进行＂习惯解读＂和对习惯法进行＂国家法式梳理＂,实现少数民族习惯法的现代表达,为中国法治社会建设做出应有之贡献。     

Sources,Recognition and the Unity of the Legal System

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution (and all the norms derived from it) are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch.

     

“交易习惯”研究

习惯、习惯法在漫长的人类社会中起着重要作用 ,近现代各国都比较重视习惯法的研究工作 ;相反 ,具有数千年习惯法 (礼 )传统的我国对习惯法的研究却甚少。新通过的《合同法》用九个条文规定“交易习惯”的适用。本文认为 ,合同法所言“交易习惯”即指习惯法 ,其成立要件及其在合同法中的作用在文中将得到具体讨论。文末 ,作者还对交易习惯在立法、执法和司法方面的具体实务提出了自己的看法。     

格头村苗族原始宗教信仰与习惯法关系研究

格头村的习惯法是历史上的苗族习惯法延续和演变的结果。苗族原始宗教信仰中的守寨树崇拜、日常生活禁忌等内容中有很多规范属于以宗教禁忌形式表现出来的习惯法内容。通过“议榔”制定榔规的过程是通过举行仪式请神帮忙,借助于神的力量保证议定的习惯法内容的实施。宗教中的神秘力量是保证习惯法实施的重要权威。     

作为间接法源的习惯法——刑法视域下习惯法立法机能之开辟

罪刑法定原则仿佛是套在习惯法头上的一个法箍,对刑法领域中习惯法的机能释放,施加着巨大的压制性作用。然而,正是在对主流理论———“罪刑法定排斥习惯法”这一论断的正本清源之中,隐含着挖掘和开辟习惯法机能的深刻契机。本文即是在这一进路指引下,对习惯法在刑法领域的功能予以拓展的初步努力。本文将着重分析习惯法在刑事立法领域的机能。文章在必要性与可能性的分析框架内,对习惯法作为刑事立法的间接法源的功能予以了初步考察。进一步地,文章以刑事和解制度为切入点,例证和说明了习惯法之于刑事立法的重要渊源式价值。     

Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution To International Criminal Law Jurisprudence And Customary International Law

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.     

H. L. A. Hart on Legal Obligation*

Abstract. The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non-moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social (customary) rules are considered self-justifying, that is not the case of legal rules. Any analogy between these two types of rules in justifying their implementation by force is deemed wrong.**     

A review of the legislative reform of customary arbitration in Ghana

Due to the phenomenon of legal pluralism that colonial rule left in its wake, customary arbitration is still a method of dispute resolution in Ghana despite the formal judicial system. But until 2010, customary arbitration practice was regulated only by case law. To put it on a firmer legal foundation and streamline its practice and procedures, the Alternative Dispute Resolution Act 2010 codified customary arbitration as an ADR method. In this article, we examine the legislative reform of customary arbitration in Ghana and assess the extent to which the ADR Act has improved it.     

Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellín and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values.     

民间规范与习惯权利

本文以探讨民间规范和习惯权利的内在关系为宗旨:习惯权利是针对法 (国家法 )定权利而言的,它是指一定社区内的社会主体根据包括社会习俗在内的民间规范而享有的自己为或不为、或者对抗 (请求 )他人为或不为一定行为的社会资格。习惯权利的规范载体是民间规范;民间规范的重要规范内容是习惯权利。在民间规范中,对习惯权利的载定既有明示方式的,也有隐含方式的。应当透过民间规范来观察、理解习惯权利。