Abstract
This article compares judicial institutions of customary law and modern law. There are many discussions between authors regarding the relation between customary and modern law, specifically the impact of customary law in modern law. The role of the customary law is of crucial importance especially its impact in the positive law of the country. Although, the customary law was practiced years ago, similarities with current positive law are obvious. Many of the judicial institutions in Albanian customary law can be compared with similar ones in modern law, but is also crucial to identify differences between them. Main judicial institutions that served as enforcement mechanisms in Albanian customary law are identified in this article in comparison with respective institutions of modern law. In addition, it is important to view and analyse customary law in regard to its power as governing law in a given period. In this regard, an analysis of the Albanian customary law in view of Hart’s rule of recognition is provided.
Highlights
The role of customary law and its applicability in human society was for many years the subject of many studies
Many of the judicial institutions in Albanian customary law can be compared with similar ones in modern law, but is crucial to identify differences between them
In the modern law we find the concept of jury trial in many jurisdictions in different forms
Summary
The role of customary law and its applicability in human society was for many years the subject of many studies. Jean-Jacques Rousseau gave a rational explanation for this legitimization, stating that “nothing but the excellence of old acts of will can have preserved them so long: if the Sovereign had not recognized them as throughout salutary, it would have revoked them a thousand times. Jean-Jacques Rousseau gave a rational explanation for this legitimization, stating that “nothing but the excellence of old acts of will can have preserved them so long: if the Sovereign had not recognized them as throughout salutary, it would have revoked them a thousand times2 Throughout history it was the role of the sovereign that was discussed by various authors who analyzed customary law, but another parallel was drawn by the fact of what makes people to obey customary law?. What is unique and makes it unique is the fact of having the customary law collected and codified in one single document, i.e. the Canon of Lekë Dukagjini (Original: Kanuni i Lekë Dukagjinit)
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