Custom of source in Roman-Byzantine law

• Author: Corina Buzdugan
• Position: Lecturer, Ph.D, 'Dimitrie Cantemir' Christian University, Bucharest, Faculty of Law, Cluj-Napoca
• Pages: 73-75

CUSTOM OF SOURCE IN ROMAN-BYZANTINE LAW

Corina Buzdugan *

Abstract

In the Romanian people’s past, customary rules (customary law) were ap plied until the written law. For

Roman law consultants, the custom was initia lly the unwritten la w, which was based on morals and enforced by

extended use. It is the law established by the peo ple, without turning to their sovereign for help. Later on, when

the socia l life became more developed, this unwritten law was replaced by some measu res of a general na ture,

promulgated by kings whose authority gra dually took the place of the people in inducing habits and customs, but

the old law still remained in force in the fields in which the written law was missing.

Keywords: custom, rules, law, Roman.

Introduction

"Mind the authority, the ra tional basis, mainly the author ity of custom; for the custom must be kept only

if it is theinterpreter of reason"

- Quintus Septimius Florens Tertullianus -

Hegel

1says that we can identify as law sources any historical process, and positive determination, which

are nothing but social relations transformed by the action of legal norms in legal relations. T he source of law is

the real source of positive law. This definition of the source of la w is, in Mircea Dj uvara’s interpretation, a

complex of extremely heterogeneous factors that shape the content of social relationships. Legal realities,

however, are already the product of these social relationships and t herefore, on numerous occasions, the legal

source is stronger if one studies the subject of legal realities. The custom (tradition o r habit) is one of the most

important formal sources of law. For any historian, it is very hard to settle not only the histor ical character of the

real, truthful source of customary law, but also to fix its fea tures and, especiall y, the co nditions which helped it

become such an inspiration.

Theodor Mommsen said: “The tradition which we have received, with its multitude of peoples’ names

and tangled, obscure legends, resembles the dried leaves, hard to imagine that were once green.” This statement,

highlights the problems, some almost insurmountable, facing the real history when trying to identify habits that,

over time, turned into rules of law.

Thus, the great h istorian quoted abo ve, says, rightly, t hat instead of going through this maze and tr ying

to clarify some fragments of humanity, it would be more app ropriate to research people's real life and the way it

was expressed in law and culture in general. This way, one can justify t he institutions which emerged in the early

Roman law, and are valid even today.

In primitive, archaic societies, and later, in Antiquity and Feudalism, the custom had a ver y broad field

of action: it regulated family l ife, kinship, fashion and even food production and exchange of goods. The custom

is generally established by word-of-mouth. It is formed and strengthened b y observing the unifor mity in a

"perpetual, co nsidered to be right" causality, as Mircea Dj uvara appr eciates. In the economic evolution of the

society, the custo m is e xpressed in the law, because it "fo llows the co mmon sense i n society, the need for

security, equal treatment and therefore, for justice".

The habits (morals, duties) are an important class of social rules that have appeared from the primary

forms o f so cial organization. Thus, one can define custom as a rule of conduct, established and reinforced in

time. It occurs spontaneously, as a result of a repeated conduct that beco mes mandat ory at some point, people

gradually becoming accustomed to keeping the tradition.The habit arose as a result of social stability and

repeatability, of consequent situations t hat enabled it to carry o n the cycle of relations hips thus created. The

relationship between law and non-legal custom was born from the fact that members of the communities were

used to obeying the same rules, whenever the situatio n required. The source of customs seems to b e the imitation

- community memory, the fundamental authority – the tradition that decided and imposed the latter as good and

useful. Being part of the social rules, customs are ways to share technical standards and social behavior, settled

through life experience which was useful for the harmony of the community.

The moment t hat the state, the public power recognized the custom, it became law or legal norm.

Professor E. Sperania said - at that point, it became legally binding with other rules and violations that lead to

state sanctions. The custom is recognized as a source of legal norm and conseque ntly, of law.

* Lecturer, Ph.D, "Dimitrie Cantemir" Christian University, Bucharest, Faculty of Law, Cluj-Napoca, e-mail: ijjs@univagora.ro

1Hegel G. W. F, “The principles of phylosophy of law”, T.R.I Publishing House, Bucharest 1996.