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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

최병조

Issue Date
2006
Publisher
서울대학교 법학연구소
Citation
법학, Vol.47 No.2, pp. 1-50
Keywords
관습법관습법론Classical Roman Lawcustomary Lawcustom of ancestorsmores maiorummos maiorumconsuetudines
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
URI
http://lawi.snu.ac.kr/

https://hdl.handle.net/10371/9959
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