The origins of the term ‘droit coutumier’

Abstract

As legal historians know, the expression ius consuetudinarium does not appear anywhere in the Corpus juris civilis; it was devised by the glossators at the time when they were developing a theory of custom. We will not recall here, as we have tried elsewhere to deal with one aspect of the subject, what this theory was, and in particular its most interesting point of application, i.e. the value of consuetudo contra legem; let us emphasise, however, that the matter was dominated, for the jurists of the time, by an apparent contradiction between two of their sources: while Julian, in Dig. 1.3.32.1, taught them that the inveterata consuetudo pro lege non immerito custoditur, and that the leges tacito consensu omnium per desuetudinem abrogentur, they could read in their manuscripts of the Code, in a place which modern editions place at the title 8.52.2, that the authority of this same custom could not go so far as to overcome rationem aut legem.