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CUSTOMARY LAW AND THE CASE FOR INCORPORATIONISM

Published online by Cambridge University Press:  16 December 2005

David Lefkowitz
Affiliation:
University of North Carolina, Greensboro

Abstract

In this article I develop a Razian account of the authority of customary law. I then use this account to refute Matthew Kramer's claim that insofar as Raz endorses custom as a possible source of law, he ought to grant the same status to correctness as a moral principle. I contend that it is because customary norms can be authoritative, and not because they are what Kramer labels free-floating, that customary norms can be incorporated into law while moral norms cannot. In addition, I argue that nothing in Raz's conception of the nature of law entails that being free-floating is even a necessary condition for a norm's being eligible for incorporation as law. Reasons of political morality or political psychology, however, may weigh against incorporating norms that are not free-floating.

Type
ARTICLES
Copyright
© 2005 Cambridge University Press

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