The Continuing Problem of Custom
Western legal systems have from ancient times acknowledged that binding laws could be made bottom-up through the repeat behavior of the members of the community as well as top-down through legislation and court decisions, but explaining exactly how behavior creates law has vexed legal thinkers for centuries. This is as true today, in particular in the realm of customary international law, as it was in the Middle Ages. As the Supreme Court struggles with yet another case about what constitutes international custom, it joins in a long conversation about which modern legal scholars are only dimly aware. This talk by Emily Kadens traces the efforts of medieval and early modern jurists to understand how custom functions as law and will suggest what lawyers and judges today can learn from the jurists of an earlier time. For captions, transcript, and more information visit www.loc.gov/today/cyberlc/feature_wdesc.php?rec=5621.
