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Aantekeningen Bij Het Middeleeuwse Gewoonterecht

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image of Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review

Customary law is both important and difficult to comprehend. In medieval society it was paramount. It lived in people's memory and manifested itself in ritual gestures and words, and through adjudication. One competitor was legislation which, to the modem lawyer, stands in clear contrast to custom. However, medieval terms such as leges consuetudinariae show that there was at the time no absolute opposition between them. Another competitor was the learned ius commune, whose impact on the daily lives of medieval people should not be exaggerated. When trying to define customary and statute law the legal historian meets the four following problems. The first is the exact nature of the 'homologated' customs, which pretend to be old norms, but are in reality laws promulgated by the government. The second is the fact that so-called customary law often appears to have resulted from deliberate action instead of unconscious spontaneous evolution. The third problem concerns the character and application of the Volks

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