Selections from Three Works. Francisco Suárez

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СКАЧАТЬ in law revokes custom already existing, 569; Simple abrogation of custom not equivalent to condemnation, 569; Some contradictory opinions, 571; Law prohibiting custom contrary to it applies to both past and future customs, 572–573; But such a law does not necessarily condemn future custom, 573; Custom condemned by law in express terms and in various ways, 574–578.

       VIII. Concerning Another Division of Custom into That Which Is Valid by Prescription and That Which Is Not

      The question whether customs may be validated by prescription, 578–579; Prescriptive custom—opinion of authorities and definition, 579–581; Prescription validates both custom of fact and of law, 581; Contrary opinion refuted, 582; Similarity of custom and prescription in the broad meaning of the terms, 582; Difference between them in regard to duration of time

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      necessary to their validity, 583–585; Definite time required for prescriptive custom, 585; Contrary argument discussed and rejected, 586; ‘a long time’ in law connotes a period of at least ten years, 587–589; How length of prescriptive period may be determined, 589–591; At least ten years required for prescriptive custom, 591; Prescriptive period must be continuous, 592; What constitutes an interruption of a custom, 593; Division of custom into customs that are and those that are not validated by prescription, 593–594; Legal custom may exist independently of prescription and of a definite determination of a certain period of time, 594; Meaning of custom in absolute sense, 595–597.

       IX. Concerning the Causes of Custom and in Particular Who Can Introduce It

      The nature of custom with respect to its form and content, 597–598; Proximate cause of custom, 598; Perfect community necessary for establishment of custom, 599; Arguments based on private custom do not constitute a valid objection to this principle, 599–601; Only community possessing capacity for legislative authority over itself may introduce legal custom, 601–602; Several objections to this doctrine are answered, 602–606; Observance by greater part of community necessary for establishment of custom by the people, 606–607; Minority custom enacted into law by the prince is not consuetudinary law, 607; Custom of majority in community held to be that of whole community, 608–609; What persons constitute ‘majority’, 609.

       X. By What Acts Custom Is Introduced

      Custom introduced by repetition of acts, 609–610; Answers to certain objections relating to omissions of actions, matters of prescription and individual action, 610–612; The problem of what frequency of actions is necessary for establishment of custom, 612–614; Actions introducing custom must be public, 614.

       XI. Whether Judicial Cognizance of the Frequency of Actions Is Requisite for the Introduction of a Custom

      The arguments for affirmative opinion regarding this question are set forth, 615; Suárez rejects this opinion, declaring that no judicial act of recognition is necessary for establishment of custom, 616–617; He meets the several arguments previously set forth in behalf of the opposing opinion, 617–621; Effect of opinion of Doctors regarding custom, 621;

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      Effect of judicial decisions on custom, 622–623; Their effect on the establishment of legal ‘style’—various opinions discussed, 623–625; To establish a custom judicial acts must conform to the same requirements of frequency and time as is the case with other acts, 625–627; Two kinds of style considered, 627.

       XII. Whether Only Voluntary Acts Avail for the Introduction of Custom

      Acts establishing custom must be voluntary, 628; Acts done in ignorance or error cannot establish custom, 629–630; A passage in the Digest which seemingly infers that custom may be established by error, 630–631; Suárez reinterprets this passage to conform with his doctrine that custom derived from error never establishes law, 631–635; Ignorance and error in regard to introduction of custom explained, 635; Custom not established by acts done under compulsion or fear, 637; Effect of fear on volition, 637; Acts done from fear are performed without intention of establishing custom, 638.

       XIII. Whether the Consent of the Prince Is Necessary for the Introduction of a Custom, and What Must Be the Nature of This Consent

      Various classes of communities distinguished in respect to power of establishing law and custom, 639–640; If the prince is the legislator, his consent is essential for the establishment of custom, 640–641; Extent of the power held by the prince, 641–642; Two ways in which the prince may consent to custom, 642–643; First inference: personal consent of prince not required in case of law established through prescriptive custom, 643–646; Second inference: if custom does not prevail in virtue of prescription, personal consent of prince is necessary, 646–647; Kind of consent necessary, 647; tacit consent sufficient, 648.

       XIV. What Sort of Custom Has the Effect of Establishing Unwritten Law?

      Four effects of custom: establishment, interpretation, confirmation, and abrogation of law, 648; Legitimate custom may establish unwritten law where no written or traditional law exists, 649–650; Such custom may contain all the elements requisite for true law, 650–651; Authority requisite for validity of a custom, 651–652; Will (i.e. intention) requisite for the establishment of custom, 652; Importance of this element, 652–653;

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      Character of will required to establish custom, 653–654; Evidence of this will, 654.

       XV. How Long Must Custom Endure in Order to Suffice for the Establishment of Law?

      Concerning time required for the establishment of a custom, 655; In the case of prescriptive custom ten years required for it to introduce law, 656; Whether a longer period is required if the prince against whom such prescription runs is absent, 657–660; Length of time necessary in the case of custom not validated by prescription, 660; Difficulty of fixing a definite period for such custom, 661; Effect of judicial decisions and prudent opinion, 662–663; Intention of those observing custom an important factor in this connexion, 663–665; Various criteria for determining whether custom is observed for the purpose of introducing consuetudinary law, 665–666.

       XVI. Concerning the Causes and Effects of Unwritten Law Introduced through Custom

      Written and consuetudinary law similar except in form and promulgation, 667–668; Binding effect of custom, 668; Custom may establish penal law, 668–669; Custom may invalidate act contrary thereto, 669–670; Comparison of binding effects of law and of custom, 670–673; The binding effect of each, according to Suárez, is fundamentally the same, 673–674; Whether clerics are bound by custom, 674–677; Whether the obligation of custom may be extended from one case to another similar one, 677–679.

       XVII. Can Custom Interpret Law?

      Only custom in accordance with a law may interpret that law, 679; How it may interpret law as a sign or witness thereof, 679–680; As one of the causes for the introduction and settling of such interpretation, 680; Interpretation by prescriptive custom and concordant judicial decisions, 681; Force of custom in interpretation of human law, 681–682; Of divine and natural law, 682; Of custom, 683.

       XVIII. Can Custom Abrogate Human Law?

      Doubts concerning power of custom to abrogate civil law, 683–684; Human law (canonical and civil) may be abrogated by custom, 684; Source of the power to abrogate civil laws by custom, 685; Power of repudiation of law by custom lies in those under obedience to that

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