Which of the following is/are the criticism(s) of analytical view of custom? 1. A bulk of the customs…
Criticisms 1 and 2 target the analytical (positivist) view that custom is not law until recognised by courts or the sovereign: most custom is non-litigious and society…
Choose your answer
Which of the following is/are the criticism(s) of analytical view of custom?
1. A bulk of the customs is non-litigious, and hence it does not come before the courts but the society regulates its conduct in accordance with them.
2. In most cases, customs are recognized not with the assumption that this recognition gives them the sanctity of law but with this assumption that they are law and they have been treated so.
3. Though, there are some rules of law which are, undoubtedly, based on the common conviction of the people, the majority of the rules are so complicated and technical that the common conviction might never have thought of them.
Answer and explanation
Correct answer B
Criticisms 1 and 2 target the analytical (positivist) view that custom is not law until recognised by courts or the sovereign: most custom is non-litigious and society already treats it as law. Criticism 3 (rules too technical for common conviction) is aimed at the historical or Savigny 'common consciousness' theory, not the analytical view, so "1 and 2" is correct.
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