Consuetudine, coutume, Gewohnheit and Ius commune. an introduction

Abstract

Various views of the historical phenomenon of custom coexist in the world's legal historical scholarship. Some scholars hold that customs are the primary feature of a people's autonomy and selfdetermination in the permanent struggle against the «imperialist» attitudes of major powers. Others try to stay closer to historical sources, where the concept of custom has apparently served as a tool of argumentation that has proven very useful in defending the jurisdictional rights of collective subjects, such as cities, religious communities or regional powers. The key to correctly understanding medieval theories of custom is the relationship between custom and the ius commune. The latter is the complex of normative authorities and doctrinal interpretations produced by jurists from the 12th to the 15th century. This relationship was not as conflictual as some of the legal historical literature depicts. Some examples regarding serfdom, private peace and customary procedures of evidence show how complicated the intertwining of the ius commune, customary laws and municipal statutes in the late Middle Ages can be.