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Customs and Common Law: Historical analysis and Law & Economics reflections on a dubious association

Hunter-Henin, M; (2011) Customs and Common Law: Historical analysis and Law & Economics reflections on a dubious association. In: Garnier, F, (ed.) La Coutume dans tous ses Etats. La Mémoire du droit: France.

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One of the questions that has traditionally interested comparatists is whether the Common law is more customary in nature than Civil law systems. However, legal historians have revealed that the opposition between a so called customary English Law and a legislative French law is largely mythical. These respective labels are in fact in both systems tactical. In England, the pretend customary nature of the English Common Law is a convenient source of legitimisation for judicial discretion. In France, the official proclamation of the abrogation of all customs did not stop customary law from infiltrating articles of the Code or influencing judicial interpretation of its main provisions. Contemporary debates have seen a resurgence of this long lost opposition between customary and legislative natures of common law v. civil law systems but in a totally different shape and with a totally different objective than in past debates. The opposition is now used to explain the greater proximity of Common Law systems to “Law and Economics” currents, and, often, as a consequence, their supposedly greater efficiency in economic terms. The purpose of this article is to put these suggestions and their underlying assumptions to the test in the very specific context of adult relationships. How surprising one may think to select an area of law which is governed by statutes even in England. But precisely, this article will prove that the legislative nature of the law is not an obstacle to “law and economics” influences. If the English law on adult relationships as we will demonstrate and for reasons we will explore has revealed to be more welcoming to “law and economics” logics than its French counterpart, critical discourses such as feminist perspectives, are needed to challenge some of its assumptions and discriminatory consequences for couples. If neither “law and economics” perspectives nor feminist discourses have had a decisive impact on French Law in this area, it is not as usually claimed because of the legislative nature of French Law but because, I will argue, of a different conception of what law is for altogether.

Type:Proceedings paper
Title:Customs and Common Law: Historical analysis and Law & Economics reflections on a dubious association
Event:La coutume dans tous ses états, International Colloquium on Customary Law, organised by the Centre Michel de l'Hospital at the University of Clermont Ferrand for the 500th anniversary of Customary Law in Auvergne
Location:Court of Appeal of Riom and University of Clermont-Ferrand, France
Dates:2010-06-15 - 2010-06-17
Keywords:Customary Law, Common Law, Law and Economics, Adult relationships, Civil Partnership Act, Feminist perspectives, Comparative Law
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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