B. THE CONCEPT OF CUSTOMARY LAW

1. Early Views

§ 186 Iuuanus, Libro LXXXIV digestorum (D. 1.3.32. pr.-l)

In those cases in which we do not employ written statutes that (rule} ought to be

1. Goudy, Trichotomy in Roman Law (1910) 26-29.

2. Goudy, op. cit·, 27 n.2.

3. Perozzi, htiiusoni 191 n.2,

4 C. Longo, Rend. Lombardo 40 (1907) 632-40.

5. See reff. by De Francisci, Storia II. 1 264 n.2.

6. Villey, RH 31 (1953) 475,493 ff.

7. Levy, SDH! 15 (1949) 1, IS if. [« Schriften I 3, 15 ff.J

8. Kaser. Rom. Privatrecht II 63 n.17; Schmidlin, Reehtsregeln 173 ff.

9. Sec Nocera, op. cit. supra, $ 184, n.14, pp. 124 ff.; Wildstein, op. cit. supra, J 184, ?.15, p. 3 n.12.

observed which has prevailed by use and custom (moribus et consuetudine); and if in any case this is lacking, then what is nearest and answers to one; if even this is not found, then the law which is in use in the city of Rome ought to be employed. (I) Immemorial custom (inveterata consuetudo) is not unreasonably observed as statute, and this is the law which is described as established by usage (mores). Far since statutes themselves bind us for no other reason than because they have been accepted by the judgment of the people, so properly those things which the people approves without any writing, bind all; what difference does it make whether the people declares its will by vote, or by acts and conduct themselves?....

For conjectured interpolations and reconstructions, see infra, $ 187.

H ermogeni anus, Libro I iuris epitomarum (1.3.35)

Those rules of law which have been approved by long-standing custom (longa consuetudine) and have been observedfor a great number ofyears may be treated as being the subject of tacit consent on the part of the citizens no less than those which have been written.

Ulpianus, Regularum liber singularislA Usages (mores) are the tacit consent of the people established by long­standing custom (longa consuetudine).

Isidorus, EtymologiaeV.3.3

Mos is long-continuing custom (consuetudo) derived from usage (mores). Consuetudo. moreover, is that law founded on usage which is recognized as statute when a statute is wanting.

Consuetudo - wanting, is borrowed from Tertull, De cor. 4,

Nineteenth century Roman law scholarship, on the basis of the passages set forth above and earlier (supra, || 93-98), built up a theory of customary law which has vitally influenced all subsequent discussion of the subject. Savigny and Puchta saw in custom, just as in every other source of law, part of the universal doctrine that law exists within the consciousness of the populace (Volksbcwusstsein), merely the outward expression of the inner legal persuasion of the people.¹ The views of these representatives of the so- called Historical School^{[1318] [1319] [1320] were attacked by numerous writers in the last part of the century.2 They were finally superseded by the view that custom might serve as the basis for general legal principles, these latter constituting what was termed ‘customary law’ (Gewohnheitsrecht).« The essentials of custom­ary law, as revealed in the lay and legal sources, were seen to be long-stand­ing usage of customary practice and tacit consentofthepeople.Thepassages quoted above seem to bear out this view, although as far as the classical jurists are concerned only Julian enumerates these conditions. The jurists normally speak of the consensus of those using the practice, an external ex­pression of the popular will, i.e., legal custom (see supra, § 96). It is the rhetoricians who shift from this view to that of general agreement (conven­tio), thereby placing statute and custom on the same level as sources of the law, both valid by reason of the sovereign power of the people? Neverthe­less, the prevailing view at the close of the century and for some decades in the 20th century was that the concept of customary law as noted above was known to the Roman jurists?}

At the turn of the century, however, Pernice countered with the view that the classical jurists did not know the concept of customary law as such, custom from which law might derive, yes, but not the all-inclusive theo­retical doctrine presented by the rhetoricians? Several scholars in the following years elaborated this point of view in various ways? In 1932, at the third German legal historians’ congress, Schulz posed the problenr.’Did the classical Roman law know customary law?’* He answered in the negative, after pointing out what he considered the distinction between ‘customary law', i.e., legal norms which were binding upon a judge without further action on the part of the state, and ‘legal custom’, which must be adopted by the judge if it is to lay down the rule for the case.

4. Sec generally, Brie, Gewohnheitsrecht, part I.

5. Cf. Cic. Top. 5.28; de inv. 2.22.67; Auctor ad Herenn. 2.13.19; Quint, inst. or. 12.3.6.

6. Winscbetd, Pandektenrechts 1 $ 15 with further reff., 76 note *; Buckland, Texr-Boofc 52; Kübler, Geschichte 127 f.; Girard, Manuel 55.

7. Pernice, 'Parerga X: Zum romischen Gewohnheitsrechte’, SZ 20 (1899) 127—71, and ‘Parerga X: Nachtrag über Gewohnheitsrecht und ungeschriebenes Recht’, SZ 22 (1901) 59-95, particularly 59-61.

8- Cf. Lambert, £tudes de droit common legislatifl (1903 ) 693-717; Perozzi, Atffturüvu I (Ist cd., 1906) 41-44; Sibcr. Räm, Hecht I 29 f.; Steinwenter, ‘Zur Lehre vom Gewohnheits­rechte’, Sfudi Bonfante II 419-40.

9. A good summary of his paper and the resulting discussion, by Seidl, SZ 53 (1933) 641-43,

practice, that passages in the private law in which customary law is the decisive factor are interpolated, and, finally, that extracts in which legal rules are said to be based on custom (mores) have reference to moral practice. Lively discussion followed the presentation, pro and con, with some of the discussants suggesting that the absence of customary law in classical times might stem from divergencies in the definition of the term.

In any event, the notion that customary law, in the 19th—20th century sense of the concept, was absent from the theory and practice of the classical jurists gained ground. Schiller summarized the prevailing views in an address before the Riccobono Seminar of Roman Law in 1937.^{[1321] [1322] [1323]Shortly thereafter, Kaser proved that mores maiorum (customs of our ancestors) was not indic­ative of customary law in the writings of the classical jurists.11 Somewhat later, Lombardi attempted to show that the jurists never considered that the legal principles which derived from customary usage necessitated the recog­nition of a body of universal legal norms constituting customary law.11}

2.

§ 187 Iulianus, Libro LXXXIV digestorum (D. 1332.1)

Immemorial custom (inveterata consuetudo) is not unreasonably observed as statute, and this is the law which is described as established by usage (mores). For since statutes themselves bind us for no other reason than because they have been accepted by the judgment of the people, so properly those things which the people approves without any writing, bind all; what difference does it make whether the people declares its will by vote, or by acts and conduct themselves? Wherefore it is taken correctly that statutes are abrogated not only by the views of the legislator but also by the tacit consent of all, through desuetude.

Iulianus, Libro LXXXIV digestorum (D. 13.32.1) (Conjectured restoration by Stcinwenter)

Immemorial custom is not unreasonably observed as a statute [? ami this is the law which is described as established by usage]. [For since - conduct them- selves?][Wherefore it is taken-through desuetude].

And this - usage, may be Iulianus, but [For since - conduct themselves] is a post-classical gloss; the last sentence is interpolated, for it contra­dicts D. 1.3,32pr.

Iulianus, Libro LXXXIV digestorum (D. 1.3.32.1) (Conjectured restoration by Solazzi)

[ - ] < There > is not unreasonably observed as statute [ - ] what is allied the law established by usage. Since statutes themselves bind us far no other reason than because they have been accepted by the judgment ofthe people, so properly those [ - ] < laws > which [ -] the people have approved, should be binding. [ - ] Wherefore it is correctly held that [ - ] < law established by usage > is [ - ] < annulled > not only by the vote of the [ -] people, but also by reason of desuetude through the tadt consent of all.

The Julian passage is one of the chief supports in the argument of those scholars who hold that customary law was on a par with enacted law to the Roman jurists, particularly in that he stated that non-use (desuetude)could abrogate statute.

The major response to this view was an attack against the classicality of the Julian passage. According to Steinwenter, the concluding portion of the extract is in direct opposition of what we know of classical law? No case of such abrogation is known, and, though it might occur in practice, there was certainly no such doctrine. If customary law was on a par with lex, there might be a possibility; but it has been shown that the equal status of custom and statute is a school doctrine of post-classical law. Further, Solazzi pointed out that cases in which statutes appear to be abrogated by desuetude were actually instances where no effort was made over a long stretch of time to make use of the statute? Lombardi, in his study of the titles on ‘long­standing usage’ (De longa consuetudine) in the Digest and the Codex (D. 1.3 and C. 8.52), showed that two distinct streams of thought, the practice relat­ing to local and provincial customary usage, on the one hand, and the Greek-influenced doctrine that custom was a source of law on the other, are interwoven in the extracts included by the compilers of the Juslinianian codi­fication? Thomas, later, laid emphasis on the fact that the term abrogatio is

1. Cf. De Francisci, Storia II. 1 454 f.; JOra-Kunkel-Wengcr, gom. Recht 2 n.3. Levy, SZ 53 (1933) 643, suggested that more statutes lost their force by reason of desuetude than because of repeal.

2. Steinwenter, Stud! Bonfanie II 419 ff.

3. Solazzi, ‘La desuetudine della leggc’, 46 102 (1929) 3-27 [= Scritti III 275 ff.J. Cf. also Steinwenter’s comment on Solazzi’s views, Labeo 4 (1958.) 131-34.

4. Lombardi, SDHI 18 (1952) 21, 43-47.

not employed for non-use; indeed, the person who tampered with the Julian text had little comprehension of classical institutions?

Appianus, Bella civilia 1.54

At the same time trouble arose in the city concerning loans because creditors exacted usurious interest, although an old statute forbade lending on interest and imposed a penalty upon anyone doing so....

Cf. Klingmuiler, s.v. Fenus, BE 6 (1909) 2187, 2192-94.

PuNtus, Epistulae X.l 14-15

Pliny to Trajan, emperor.

The Bithynian city-states, Sire, are allowed by the lex Pompe fa to confer citi­zenship upon whom they will, provided these persons do not belong to any of the (other} city-states which are in Bithynia. By the same law the causes are speci­fied for which persons may be expelled from the Senate by the censors. Certain of the censors have accordingly inquired of me whether they are bound to expel those who (belong} to another (Bithynian} dty-state. I have thought it necessary to consult you as to what you think ought to be done, not only because the statute, though it forbids a foreign citizen to be admitted (to citizenship) does not order a senator to be expelled for this reason, but also because I am informed by others that there are several senators (in this situation) in other states, and it will result in that many men and many stales will be thrown into confusion by that part ofthe statute which for a long time has been out of use by a certain (common) consent. / have appended the clauses of the law to this letter.

Trajan to Pliny, greetings:

You had good reason to hesitate, may dear Pliny, as to what might be your answer to the censors consulting you whether they might let persons of other states but ofthe same province remain in the Senate. Far the authority ofthe law (on the one hand) and long-standing custom contrary to the statute (on the other) might place you in a quandary. I think the proper mean to be that we should make no change as to what is past but let those (senators) remain of what­ever state they are citizens, although contrary to the statute, but in the future

5. Thomas, ‘Desuetudo’, RIDA 12 (1965) 469-83. the lex Pompeia is to be observed; for if we wished to extend its force retroac­tively, this must result in great confusion.

Ex Mandatis Domitiani 1-19 (Syria 34 [1957] 278; RIDA 15 [1968] 135) (81-96 A.D.)

From the instructions (entolai) ofImperatorDomitianus Caesar Augustus, son qf Augustus (Vespasianus). To the procurator Claudius Athenodorus.

Among the select matters requiring great pains / am aware that the attention of my divus father Vespasianus Caesar was directed to the privileges of city­states, fixing upon which he ordered that provincial territories be oppressed neither by (forced) rentals qf draft animals nor troublesome demands for lodg­ings. Nevertheless, intentionally or not, modification has taken place and that (order) has not been enforced. There remains to the present an old and vigorous custom which gradually would develop into law if it were not by force prevented from doing so. Therefore I enjoin you to take care that no one take a draft animal without having a requisition-order from me....

In the discussion whether non-use might result in the implicit repeal of statutes, scholars have from the start relied upon the Asellio case and the Pliny—Trajan correspondence, and have reached opposite results. Pernice pointed out that, to all practical purposes, a statute might be forgotten, yet it was within the power of the magistrate to resuscitate it at any time.* Such was the case of the lex Genucia on usury which, unused for a century, the praetor Asellio attempted to revive, though he was murdered for his pains. Kipp agreed that although it was in the power of the emperor to recognize or to repudiate custom, the mere fact that Trajan re-institutes the Bithynian provincial ordinance does not necessarily mean that non-use cannot revoke a statute. ’ But Kunkel said that Kipp erred: it is only correct to say that an emperor - perhaps even a provincial governor- could alter the lex Pompeia; the statute was clearly binding upon the provincials.¹ Steinwenter held that, in the public law field at least, a magistrate could turn back to a statute which had gone out of use when he has the power to see that its provisions are carried out?

An inscription recently found in Syria affords further evidence. An ex­tract from the mandata of the emperor calls upon the governor to see that practices contrary to imperial order be curtailed. Lewis concludes from the ^{[1324] [1325] [1326] [1327] statement that persistent custom would gradually develop into law if not prevented from prevailing, that official recognition of long-standing custom could acquire the force of law.[1328] [1329] Domitian, like Trajan, intervenes to restore an apparently obsolete and neglected written norm to full effect. Whether this constitutes support for those who would concede normative value to custom as early as the 1st century of our era, as Modrzejewski suggests,11 is, however, very doubtful.}

3. Recent Trends

$ 188 There has been renewed attention to the question of the place of custom­ary law in the classical period since the early 1960s. Thomas restated the problem in the light of the experience of early English law.’ The earliest Roman law was undoubtedly customary law, but by the time of the jurists the mores (non-statutory principles of law) were recognized as binding ‘be­cause they were expounded by the jurists - but the jurists clearly accepted the rules and principles as existent law which they interpreted, not created.’¹ These norms constituted the major portion of the ius civile. Provincial rules and usages, however important to the subject peoples of the Empire, were only of secondary consequence to the jurist. Further, Thomas maintains that the observation on the Julian passage that desuetude could abrogate statute was the work of a post-classical commentator, even though the first portion of the extract might well have referred to the factual situation re­specting provincial observances?

A year later Biscardi read a paper at a conference in Roman law, the gist of which was that since the jurists, during the classical period, continued to justify leges on the principle that they represent the will of the sovereign people, there is no reason to doubt the authenticity of the passage in Julian, according to which desuetude can abrogate previous legislation, by reason of the tacit consent of the people? Schmiedel would affirm the view that the jurists did not take the position that custom could create law or that there was a concept of customary law in the classical period? However, several

§ 188 reviewers of this monograph queried some of his conclusions, calling atten­tion to the danger of making generalizations on the basis of the study of a sin­gle term, consuetudo (coustom)? Lauria pointed out, in his text-book, that by the 3rd century law, in the established sense of the term, co-existed along­side custom, usages and other legal enactments? With the progressive prev­alence of the provinces over city Rome and Italy, the importance of provincial customs and laws was recognized. The successors of Caracalla began to accept the Hellenistic usages into Empire law, and the doctrine that desuetude abrogated statute became the current view. In another mono­graph on custom written at this time, Bove surveyed the literature on the sub­ject, calling attention to the significance of local and regional usages for an understanding of the matter? Bove does uphold the doctrine of custom abrogating statute for the classical period¹ but he emphasizes the fact that it was the local statutes which gave the jurists and the imperial chancellery the opportunity of employing consuetudo in a general sense, to give validity to local provincial norms based on the consent of the people and confirmed by long usage, not created by the jurists or Roman emperors, but which were already in force and continued to be observed after Roman occupation.^{[1330] [1331] [1332] [1333] [1334] [1335]} This occurred in the age of the Antonines and continued on into the period of the Scveri.

A theory of the emergence of the idea of customary law has been offered by Non?' The idea of customary law, to the Historical School, left open the question whether interpretation and case law were included within the con­cept. The modern continental legal system comprises a sum of legal norms, predominant among which is the statute. The legal system of classical Rome, in contrast, comprises a highly unintegrated combination of legal institu­tions, legal rules, legal ways of acting, formulae and maxims. There was no prevailing view on binding case law respecting legal norms.^[1336] Under such cir­cumstances a concept of customary law as an aggregate of legal norms is unthinkable. It was not until the 2nd century of our era that a theory of cus­tomary law was evolved, perhaps by Julian. It stemmed from (I) a revival of the ideology of the mos maiorum (ways of the ancestors), (2) the philo-

sophicai-rhetorical doctrine of‘unwritten laws’, converted to the consensus omnium (consent of all), namely, the subjects of the Roman Empire, and (3) the acceptance of custom as one of the topoi (loci) in arguments on the sources of the law. Norr considers that the idea of customary law started with the discussion of local law in the provinces, and moved to the open legal framework of the Roman law. He continues with an analysis of the role of consuetudo in the topoi-argumentation towards the development of a sys­tem in the Roman law.” Norr concludes with a discussion of the value of a theory of customary law, generally.

It is to be observed that Norr considers his presentation but a first sketch of a planned effort on the theory of customary law in classical Roman juris­prudence. ¹⁴ There is no treatment of the views of earlier scholars, there is no mention of possible meddling with the text of Julian in post-classical times. In light of the divergence of opinion among the newer contributions of Romanists, and adding the fact that Kaser, one of the leading supporters of the view that the idea of customary law was foreign to the classical jurists, has now renounced this earlier postion,” the problem whether there was theoretical consideration of customary law among classical jurists must remain an open question.*⁶

C.