Sources of Tort Law - Essay Example

In the "social contract" structure, customary rules can be deemed as an implied and frequently non-verbalized practice of open legislation by the members of the public. Those legal schemes that provide direct legal power to customary rules look upon custom as a principal, even though not exclusive, foundation of law. In such legal conventions, courts implement customary rules as though they had been endorsed by the appropriate legislative authority (Brownlie, 1990, Byers, 1999, Byers, 2000, Dickinson, 1920). Custom thus amounts to a spontaneous norm which is recognized by the legal system and granted enforcement as a proper legal rule. Judicial acknowledgment of spontaneous standards brings about a declaratory (more willingly than constitutive) function that cares for custom as a legal reality. The legal system finds the law by being acquainted with social standards, but does not "create" the law (Fisheries, 1951, International Court of Justice, Kontou, 1994). The most distinguished demonstration is the organization of tort law, where, devoid of a central legislative power, custom positions adjacent to treaties as a principal source of law. (Statute of the International Court of Justice, Article 38 section 1). At any time they are provided with legitimate position in a legal system, customary rules are frequently provided with the similar impact as other key sources of law. Even though frequently secondary to formal legislation, customary rules obtain their power from the agreement of a standardized practice and an individual conviction that obedience to them is mandatory (opinio iuris), devoid of essentially being officially integrated into any written body of law (Malanczuk, 1997, NorthSea Continental Shelf, Roht-Arriaza, 1995, Sands, 2003, Scott, 2000). Consequently, they are more often than not characterized as irrelevant sources of law (Brownlie, 1990, The Corfu Channel, 1949, Trendtex Trading Corporation, 1977, Vierdag, 1982, Weber, 1978, Baxter, 1970, Brownnlie, 1987, De Vattel, 1960, Goldsmith and Posner, 1999). This conception entails that the custom continues to be the definite source of law notwithstanding following its judicial recognition. In this context, the judicial assessments that are on familiar terms with a custom present merely persuasive evidence of its subsistence and do not themselves turn out to be foundations of law. Sequentially, this puts off the doctrine of stare decisis from shaping up customary law. Contemporary legal systems commonly distinguish customary rules that have materialized either within the boundaries of positive legislation (consuetudo secundum legem) or in fields that are not regimented by positive law (consuetudo praeter legem). Where custom is in open disagreement with legislation (custom contra legem) the latter more often than not wins through. In some cases in point, nonetheless, a custom supplants previous legislation (abrogative custom), and a number of arguments have been completed in favor of the up-and-coming practices that run counter to outdated stipulations of public tort law (desuetudo) (Kontou, 1994, International Law Commission, 1962. Internatinal Law Commission, 1966, Mendelson, 1998, Tunkin, 1974). The perception of opinio iuris initiates a difference involving mere behavioural regularities and internalized responsibilities. This difference may possibly be associated to the parties' responsiveness of the anticipated collective payoffs from the game, a difference that is significantly vital in the normative context (Weber, 1978). A couple of groupings of social rules are commonly recognized. These include those that reveal simple behavioural arrangements that are not indispensable to the legal order. Another is those that reveal an internalized conviction that the implementation is essential or publicly sought-after. A simple behavioural regularity, missing the qualitative component of opinio iuris, does not produce a customary rule. In legal terminology, such behaviour is a sheer usage; in economic contexts it merely stands for an equilibrium convention. Moreover, standards deemed essential for social welfare are cared for as appropriate legal customs and can penetrate the legal system as principal sources of law. Finally, the jargon made use in the legal and economic literature is supposed to be measured up against the terms utilized in sociological literature. (Weber, 1978 at 319-20) What is lawfully phrased as a mere usage is characterized in sociological literature as a custom, in the context of a characteristically uniform action that is not deemed to be generally indispensable. Convention, the sociological idea closest to the legal impression of custom, is equal to a behavior influenced by express endorsement or condemnation by other members of the group, but missing the enforceability that distinguishes a legal custom. As conversed above, a couple of components are commonly necessary for the finding of customary law. These include the fact of the practice being supposed to materialize out of the unprompted and uncoerced behaviour of different members of a group. Another is the idea that he parties concerned have to personally have confidence in the mandatory or essential character of the budding practice (opinio iuris). The initial component signifies the somewhat ordinary supposition of rational choice. The second component may possibly be evaluated as a conviction of social responsibility, budding in reaction to inadequacies, to hold up behavioural regulations that steer clear of aggregate losses from strategic behaviour. Sources of Tort law This part of the study is going to discuss the sources of tort law as stated in recognized statutes in the international setting. As established in Article 38 of the Statute of the International Court of Justice, the bases includes treaties, conventions, and other types of international agreement involving nations that bind them in their affairs; customary tort law anchored on common state practice; universal standards of law common to state legal systems; and judicial verdicts of global and local courts and tribunals as well as the opinions of educated writers, as supplementary sources of law. It can be perceived that tort law is fundamentally a voluntary system of law. The first source of tort law is most evidently voluntary. No nation is compelled to engage into an agreement with any other nation, however if it does so it recognizes the entitlements and responsibilities resulting from that treaty. For instance, the United States has preferred not to turn into a part of the Rome Statute for an International Criminal Court. (Sands, 2003) This presents the theory of pacta sunt servanda - the standard common to every national legal system that treaties are to be conformed to in good faith . HHJ Hicks QC formulation; and Jarvis and Sons Ltd v Castle Wharf Developments and ors [2001] A number would support this legal rationalization with some sort of political justification. Formal pledges are binding given that nations seek out reciprocity and refuge in relations. This means that no one believes an individual (or a state) who violates his (or its) pledges. The second source is similarly in effect voluntary, but only if taken into consideration with an amount of intricacy. Customary tort law is composed of those values and rules that have been established by the large majority of nations, as confirmed by their practice or compliance, and granted moreover that there is an expression of their assurance that the conceived rule is or have to by reasonable or sensible requirement to be compulsory on them (opinio juris). As stated by the International Court of Justice in the Copthorne Hotel (Newcastle) Ltd v Ove Arup Assoc. And anor (1996) ideal homogeny of state practice is neither to be anticipated nor obliged for a rule to take part into force as customary tort law. However, it is vital that the rule be acknowledged by the vast majority of nations, counting those most influenced by the subsistence of such a conceived regulation. Furthermore, the practice of the more influential nations is more noteworthy than that of the minor nations seeing as it is more probable that the practice of the former, by virtue of their extensive concerns, would have conveyed them that way beforehand. (Byers, 1999) The materialization of customary law beyond state practice, particularly in the shape of observance to international conventions of a normative disposition, abided by a great number of nations, may possibly be excluded in keeping with the standards indicated by the International Court of Justice (ICJ). Furthermore, the Court has similarly made out the idea of the persistent objector, specifically, of the entitlement of a nation to eschew of any consensus gathering around a conceived decree, granted it constructs its divergent stand apparent in an adequately early instance and sooner than the rule has taken shape. (Fisheries, 1969) The universal standards of law common to civilized states as a source of tort law is made of a collection of rules of a supplementary, yet indispensable character, that would not, due to their disposition, be the standard subject of state practice as such. Illustrations of such decrees or doctrines are pacta sunt servanda, the doctrine of good faith, concepts of equity and of due process of law, estoppels, and means of proof of facts. (The Corfu Channel, 1949) A few perceive in this foundation of law acknowledgment of the enduring impact of natural law. In reality, it appears that the ICJ has been pleased that a standard is general if it is acknowledged in both the common law and the civil law conventions. The fourth foundation of tort law as indicated in the Statute of the International Court of Justice is the peculiarly classified categories of judicial judgments and the estimations of academic writers. Nevertheless, Article 59 of the Statute clarifies that judgments and verdicts of the ICJ are not binding with the exception as involving the parties to the judgment. It is not supposed to be disregarded that national courts similarly can construct important contributions to the perception and construal of tort law throughout decision-making on issues of tort law that comes to pass as a component of domestic law. Defiantly, in the last instance, national courts by means of internal regulations of stare decisis can establish outmoded perspectives of customary tort law. (Allbright & Wilson UK lLtd v Biachem Ltd and ors [2002] ULHL 143) The courts have made noteworthy inputs to the improvement of tort law. The awards of international arbitral tribunals have similarly had a noteworthy effect on the growth of tort law. In looking into the sources discussed above, there are several observations that the author has taken into consideration. The two key sources are fundamentally voluntary in character. There is no global legislature equipped to compel nations to acquiesce to the requirements of a majority. The international community generates laws for itself by means of persuasion and approval. To the extent that international tradition is constitutive of generally binding law, and as much as practice may possibly be made up by the opinio juris and succeeding accepted practice of nations complying to multilateral treaties, there is constantly the opt-out opportunity of the persistent objector, as indicated above, or of the nonparticipation from the practice by one or more of the nations which would be particularly be influenced by such a rule. (North Sea Continental, 1969) Bibliography Baxter, R.R. ,1970, "Treaties and Custom" . In: Acadmie de droit international. Recueil des Cours. Volume 129, Issue 1. Brownlie, ,1987, 'Problems Concerning the Unity of International Law, in A. Giuffr ,ed.,, International Law in the Time of its Codification. Essays in Honour of Roberto Ago. Vol. I, p154. Brownlie, I. ,1990, Principles of Public Tort law. Oxford: Clarendon Press. Byers, M. ,1999, Custom, Power, and the Power of Rules: International Relations and Customary Tort law. Cambridge University Press. p.71 Byers, M. ,2000, Power, Obligation, and Customary Tort law. Duke Journal of Comparative and Tort law. De Vattel, E. ,1960, The Law Of Nations Or Principles Of The Law Of Nature. Joseph Chitty Ed., Philadelphia, T. & J.W. Johnson & Co. Dickinson, E. ,1920, The Equality of States in Tort law. Harvard University Press. p.129 Fisheries ,U.K. v. Nor.,, 1951 I.C.J. 116 ,Dec. 18, Goldsmith, JL & Posner, EA. ,1999, "A Theory of Customary International Law," University of Chicago Law Review. Volume 66, p1113. Graw, S 2005a, An Introduction to the Law of Contract, 5th edn, Law Book Company, Sydney. Graw, S 2005b, An Outline to the Law of Partnership, 5th edn, Law Book Company, Sydney. Heffey, P. G., Paterson, J. M. & Hocker, P. J. 1998, Contract: Commentary and Materials, 8th edn, LBC Information Services, North Ryde, NSW. International Court of Justice. Article 38 section 1 International Law Commission Yearbook ,1962, International Law Commission Yearbook ,1966, Koffman, L & Macdonald, E 1998, The Law of Contract, Croydon, Tolley. Kontou, N. ,1994, The Termination and Revision of Treaties in the Light of New Customary Tort law. Oxford: Clarendon Press. Kontou, N. ,1994, The Termination and Revision of Treaties in the Light of New Customary International Law. Oxford: Clarendon Press. MacDonald, E 1999, 'Y2K and Contractual Exclusion Clauses', Journal of Information Law and Technology, vol. 2, viewed 21 December 2005, http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999. Malanczuk, P. ,1997, Akehurst's Modern Introduction to Tort law. Routledge. Mendelson, M. ,1998, "The Formation of Customary International Law," Recueil Des Cours. Volume 272, issue 155, p 268-293. North Sea Continental Shelf ,F.R.G. v. Den.; F.R.G. v. Neth., [1969] I.C.J. 4 ,Feb. 20, North Sea Continental Shelf Cases, ICJ Reports ,1969, para. 70. Roht-Arriaza, N. ,1995, Impunity and Human Rights in Tort law and Practice. Oxford University Press. P39-40 Sands, P ,2003, From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge University Press. p.109 Scott Barrett ,2000,, A Theory of Full International Cooperation, 11 J. THEORETICAL POL. 519, 523 ,1999,. The Corfu Channel ,U.K. v. Alb.,, 1949 I.C.J. 3 ,Apr. 9,. Trendtex Trading Corporation v. Central Bank of Nigeria, 1977, 1 Q.B. 529 Tunkin, G.I. ,1974, Theory of International Law, Harvard University Press, Cambridge. Vierdag, E. ,1982, The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of the Treaties and States Not Party to the Convention. American Journal of Tort law. Vol 76, Issue 4. Weber, M. ,1978, Economy and Society. Berkeley, Ca.: University of California Press. Weber, M. ,1978, Economy and Society. Berkeley, Ca.: University of California Press. Read More