ANALYSIS OF THE ORIGIN AND BASIS OF CUSTOM, AS A SOURCE OF LAW

Abstract

If we do not start our understanding of the legal phenomenon from the source – the Roman law, we will not have a correct perspective on the evolution of modern legislation. A strong argument in support of this statement is the fact that a large part of the institutions of the Napoleonic Code, which was the foundation of Romanian civil law, were taken over from the Roman law.

This study aims to analyze the origin of custom as a source of law, by investigating how the sources of Roman law arose and, more particularly, evolved. Thus, in the first section, we will note that, in the history of Roman law, custom has experienced a very interesting dynamic, generated by the social and political organization in different eras: for many centuries, custom was the only form of expression of the rules of Roman law, then with the unprecedented development of the exchange economy, the law took its place. Notwithstanding, after the establishment of the Dominate, in the background of the general decline of the Roman society, custom regained its former importance.   

In the second section, the historical perspective will give way to the general theory of law, so that we will try to grasp the basis of custom from its features and the way in which this source of law is recognized and enshrined.