September 30, 2011 12:02 Age: 3 yrs

Inaugural Bederman Lecture Draws Overflow Audience

David J. Bederman, K.H. Gyr Professor of Private International Law, delivered the inaugural David J. Bederman lecture Monday, Sept. 26. He addressed an overflow audience of colleagues, family and students, including some who came from as far away as Romania to hear him speak on “Public Law and Custom.” The lecture was drawn partially from his recent book, Custom as a Source of Law.

Bederman was introduced by Emory Law Interim Dean Robert A. Schapiro as “a hero of mine.”

Bederman’s record as an attorney and scholar “is impressive to the point of improbable,” Schapiro said. In addition to serving as a legal advisor at the Iran-U.S. Claims Tribunal at The Hague, Bederman has argued before the U.S. Supreme Court five times, most recently in 2009 with the help of some of the more than 4,000 students he has taught during his 20-year tenure at Emory.

The lecture examined the effect of custom on law. Can community practices be legally binding, and can custom become public law before or without legislation or precedent?

Bederman used three disparate sources to illustrate custom’s influence: Oregon beach access rights, polygamy and “bride price,” in South Africa, and U.S. Constitutional law on separation of powers.

Rather than top-down law handed down from judges on the bench, “custom is law made from the bottom up,” Bederman recalled his Emory colleague, the late Hal Berman saying.

Accepted custom may fly in the face of the law and constitutions, but it also can be “an expression of legal will by a community,” Bederman said. But then, custom shouldn’t allow illegality to gain legitimacy through practice.

“Not all customs are good, some of them are downright evil,” Bederman said.

The concept of public access to the coast allows fishermen to dry their nets on shore after working the sea.

“Custom is what gives you and your loved one the right to take a midnight stroll on a windswept beach,” Bederman said.

On the other hand, “open beach access sounds like a great idea unless you’re the beach owner with hordes of people on your part of the beach,” he said.

And in South Africa, polygamy and bride price “does discriminate very much against women in all stages of their lives,” Bederman said.

But the 1998 Recognition of Customary Marriages Act allows polygamy while permitting a judge to disallow subsequent marriages if property rights of previous wives and their children aren’t properly addressed.

“In South Africa, polygamy remains a robust institution,” Bederman said. 

When public law bows to custom upon occasion, it allows flexibility that may not have been achieved otherwise, he said.

“In each of these cases, a customary regime has stood its ground against a significant public law value and managed to change it,” Bederman said.

“Bottom up lawmaking may introduce some uncertainties into a legal system, and on occasion, a serious lack of uniformity, but such can always be compensated for by further legislative action,” he said.

Watch video of the lecture here>

The DAVID J. BEDERMAN LECTURE was established through the generous support of Professor Bederman’s family, friends, colleagues and students to honor his extraordinary record of scholarship, teaching and advocacy. In addition to the lecture series, fundraising continues to establish a fellowship and a faculty chair in Bederman’s honor. The fellowship will provide Emory Law students the opportunity to study at The Hague Academy of International Law.

Donations to the David J. Bederman Fund are being accepted and may be made by downloading a donation form. For questions, email Joella Hricik, associate dean for development and alumni relations.

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