Medieval Customary Law: Hybridization and Autonomy

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[...] Conclusion: Historiography shows interpretive disputes over the evolution, role, and structure of custom in the Middle Ages. Mainly divided between autonomist and hybridation theses, it presents a contrasting picture of custom within medieval society. In fact, customary law seems to have been both generated and generator of new rights during the Middle Ages: the active role of custom, revealing its essential influence in defining normative rules within medieval legal orders, proves decisive in the history of law and the emergence of a legal modernity. [...]

[...] Such is the first thesis of customary law autonomy, originating from the 'social body' of the Middle Ages and which would embody a form of 'counter-power' ahead of its time. Elements both structural of customary law during the medieval period and concretization, notably by customs may tend to support this thesis. A. The structural elements of medieval customary law Led by historians such as Paolo Grossi who said 'the long medieval experience [ . ] was dominated by the independence of law from political power'3 », the 'autonomist' thesis of medieval customary law devotes essential features to it. Among these features are 'antiquity, which supposes repetition, consent [ . [...]

[...] More precisely, the incarnation of custom by the differentiated uses of publicity shows that there is more than a strict hermetic dimension of medieval customary law: there would be elements of hybridization between diverse sources of law, the temporal factor having conferred a real normative legitimacy for medieval legal agents. II. The thesis of a normative hybridization of custom in the Middle Ages The thesis of hybridization placed on the complementarity of sources and, more than that, the generative factor of a structure of law proper to the Middle Ages between customary law and Roman law. [...]

[...] In these two laws, custom is the object of formal integration. B. From the competition and complementarity of customary law and other sources of law Among these formal integrations, material elements such as the charter of Philip Augustus of 1181 proclaim that it is a royal prerogative 'to preserve intact the good customs of his kingdom [and] it is just as important to him to abolish the bad ones'. However, a charter like that of 1181 precisely marks the possibility for the executive power (the King) and its law (state law) to structurally modify what would be part of an autonomous legal power embodied by custom. [...]

[...] However, historical theses clash on the representation of the role and evolution of custom in the Middle Ages. Henceforth, to what extent can a historiographical reading of the evolution of custom in the Middle Ages as a source of law be the subject of divergent interpretations on its structure, role and expansion? On this point, at least two interpretive theses are advanced: the first is the thesis of medieval autonomy of custom in relation to the spheres of power of society, embodying a form of 'counter-power' emerging from the localised social and cultural body, in particular, of particularised ethnic groups. [...]