The Grammar of Customary Law

All law is customary. This article explores how we should conceive of the customary nature of law, proposing a framework for understanding how legal orders are related to their various societies. The article builds upon the pragmatist conception of law developed by Lon Fuller and Gerald Postema, but it goes well beyond their accounts, arguing that their predominantly functionalist approaches are inadequate. Although law does serve to coordinate social interaction, it does so through specific conceptual languages, through particular grammars of customary law. Law can only be understood if one takes those grammars seriously.The article pursues this argument by drawing comparisons between indigenous and non-indigenous legal orders, both to expand the comparative range and to explore what indigenous legal orders can reveal about law generally. It explores the limitations of functionalist accounts (including law and economics) in the law of persons and property, in presumptions about the foundational requirements of legal order, and in the presence of the sacred or mythic in law. The article concludes that attending to the various grammars of customary law allows one to engage, productively and with insight, in legal reasoning across the normative divide separating different legal cultures.Tout droit est coutumier. Cet article étudie la manière dont nous devrions concevoir la nature coutumière du droit, en proposant un cadre pour comprendre comment les systèmes juridiques sont liés à leurs sociétés respectives. L’article s’appuie sur la conception pragmatique du droit développée par Lon Fuller et Gerald Postema, mais il va bien au-delà de leurs théories en affirmant que leurs approches principalement fonctionnalistes sont inadéquates. Le droit sert à coordonner les interactions sociales, mais de surcroît, il remplit cette fonction à travers des langages conceptuels spécifiques et des grammaires particulières de droit coutumier. Le droit peut uniquement être compris si ces grammaires sont sérieusement prises en compte.L’article développe cet argument en traçant des comparaisons entre les systèmes juridiques autochtone et non autochtone, à la fois pour élargir le champ comparatif et pour considérer ce que les systèmes juridiques autochtones ont à révéler sur le droit. Il étudie les limites des théories fonctionnalistes (incluant l’analyse économique du droit) en ce qui concerne le droit des personnes et des biens, les présomptions relatives aux exigences fondamentales des systèmes juridiques et la présence d’éléments sacrés et mythiques dans le droit. L’article conclut que l’attention portée aux différentes grammaires du droit coutumier nous permettra de nous livrer à une réflexion juridique productive et éclairée, au-delà du clivage normatif qui sépare les différentes cultures juridiques

A unit commitment study of the application of energy storage toward the integration of renewable generation

To examine the potential benefits of energy storage in the electric grid, a generalized unit commitment model of thermal generating units and energy storage facilities is developed. Three different storage scenarios were tested—two without limits to total storage assignment and one with a constrained maximum storage portfolio. Given a generation fleet based on the City of Austin’s renewable energy deployment plans, results from the unlimited energy storage deployment scenarios studied show that if capital costs are ignored, large quantities of seasonal storage are preferred. This operational approach enables storage of plentiful wind generation during winter months that can then be dispatched during high cost peak periods in the summer. These two scenarios yielded $70 million and$94 million in yearly operational cost savings but would cost hundreds of billions to implement. Conversely, yearly cost reductions of $40 million can be achieved with one compressed air energy storage facility and a small set of electrochemical storage devices totaling 13GWh of capacity. Similarly sized storage fleets with capital costs, service lifetimes, and financing consistent with these operational cost savings can yield significant operational benefit by avoiding dispatch of expensive peaking generators and improving utilization of renewable generation throughout the year. Further study using a modified unit commitment model can help to clarify optimal storage portfolios, reveal appropriate market participation approaches, and determine the optimal siting of storage within the grid.Mechanical Engineerin

Legal Pluralism and Human Agency

Much legal-pluralist scholarship tends to naturalize the law of the context, treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial to legal pluralism: the hermeneutic theme, the plural theme, the adaptive theme, and the decentring theme. It also helps us to identify two modes common in legal analysis-the descriptive and the hortatory mode-which are quite different, though often confused. In doing so it provides a compelling, pluralist conception of law, one that takes human disagreement seriously

Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples

This paper argues that Aboriginal rights are best understood as the product of cross-cultural interaction-not, as is usually supposed, the result of some antecedent body of law (English, international, or Aboriginal). Aboriginal rights are therefore intercommunal in origin. The paper does describe the process by which this body of law emerged, but its primary vocation is theoretical, concerned with the following questions: How can a normative community emerge in the presence of profound cultural divisions? How can relations of justice emerge in a context dominated by power and coercion? How does moral reasoning draw upon the factual relations of the past? Does the process create law, cognizable by judges

Legal Pluralism and Human Agency

Much legal-pluralist scholarship tends to naturalize the law of the context, treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial to legal pluralism: the hermeneutic theme, the plural theme, the adaptive theme, and the decentring theme. It also helps us to identify two modes common in legal analysis-the descriptive and the hortatory mode-which are quite different, though often confused. In doing so it provides a compelling, pluralist conception of law, one that takes human disagreement seriously

Towards a Truly Democratic Constitutionalism

As constitutional scholars, we can fall into the error of treating constitutionalism as though it were primarily about limiting government. This article emphasises that the primary aim of constitutionalism ought to be to enable democratic governance, not constrain it. It treats democratic self-determination as having two components: 1) a commitment to building mechanisms by which the people are enabled to participate materially in their own governance on a basis of rough equality; and 2) a commitment to ensuring that the people see themselves as being governed by processes that they consider legitimate. Democratic self-government can take different forms in different societies, but there must be effective mechanisms for citizens – actual citizens, not notional citizens – to govern themselves collectively. The paper sketches some characteristics of a constitutionalism that meets those requirements. It also affirms that, for the people to govern themselves, a constitution must, in a real sense, take the people as it finds them, not impose a partial and caricatured definition upon them. This paper is a prolegomenon to such a constitutionalism, not a description of its totality. The latter is, of course, the work of we as citizens, and as constitutional scholars, through time

Statistical downscaling of MODIS thermal imagery to Landsat 5tm + resolutions

Indiana University-Purdue University Indianapolis (IUPUI