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로마법상의 관습과 관습법 -고전 법률가들의 사례를 중심으로- : Law, Custom, and Tradition ; Customs and Customary Law in Classical Roman Law
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- Authors
- Issue Date
- 2006
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.47 No.2, pp. 1-50
- Keywords
- 관습법 ; 관습법론 ; Classical Roman Law ; customary Law ; custom of ancestors ; mores maiorum ; mos maiorum ; consuetudines
- Abstract
- This article surveys the ways how the Roman jurists of the classical period
dealt with the customs and the customary law of Rome and its provinces.
Although there have been much debates among the Roman law scholars of today
about their acceptance of the customary law, we must expect as a matter of fact
that they recognized the fact of various customs in the Roman society and
succeeded in moulding a concept of customary law. It is very interesting to find
out that they had two different words for custom and customary law: consuetudo
and mos. The former was usages and observances lasting long enough (longa,
diuturna, inveterata) and able to become a customary law if supported by the
consent of all (consensus omnium). The latter was used to designate a concrete
norm envisaged by the Roman jurists as based on the old custom of ancestors
(mos maiorum), which, contrary to consuetudo, was conceived to have its
normative force from the beginning without any reference to its time dimension.
It was in fact a device with which the Roman jurists qualified a legal institute,
figure or concept as originating from the old custom of ancestors, now
incorporated into the ius civile. It played, therefore, not a significant role in the
contemporary legal context, and was very limited also in number. The
Republican ideological background of mos maiorum already faded out in the
classical period to function nearly as an argument in a purely legal discourse. It
must further be discussed whether or not it reflected a category newly introduced
into the legal debates by the classical jurists, who themselves, representing a
theory of law as a civilizational norm system, tried to revive the achievements...
- ISSN
- 1598-222X
- Language
- Korean
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