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THE POSITION OF LEGAL CUSTOM IN ROMAN LAW
Abstract
The article offers an analysis of (legal) custom within Roman law and describes its different roles and functions. A customary law represents the oldest formal sources of law in human history. It was created by conduct of people who believed that they are obliged to follow rules created by repetitive continual action. It was dominant form of law in the archaic period of Roman law, but some of its remnants were persevered during whole existence of Roman Empire and beyond. The research is based on textual and historical analysis of both legal and extra-legal sources. The authors identified eight different roles of customs, namely: archaic customs (mos maiorum), custom as a tool for filling gaps in a written law, custom as the expression of popular sovereignty, administrative custom, custom as a source of provincial law, custom as a source of vulgar Roman law, custom as a kind-of “international private law” and finally customs which were not legally binding. Authors established with high degree of probability that customary law had a strong position in Roman law and acted in different contexts, roles and functional positions.
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