Common law or the law of nations constitutes the set of modified norms of Roman law that reached the Middle Ages.
This common law began to take shape from the 12th century and ended in the middle of the 14th century. Roman law returns to the European legal scene after centuries of normative dispersion, but it does not return in the form of a normative code, but translators called glossers have brought Roman norms together with a specific technique.
This glossing technique consisted of modifying words to help people understand and clarify possible doubts. Likewise, there have been commentators who not only modified the original text to make it easier to understand, but also added commentaries that enriched these norms to adapt it to their social reality. From this enrichment of the law, the common law begins to spread throughout Europe.
This right is beginning to be applied by judges, to be collected in more comprehensive codes and to be an additional right in many cases.Common law characteristics
The main characteristics of this right are:
- It was born in the Middle Ages, although its base was in Roman times.
- It is a modification of the Roman texts for easy understanding by the people.
- The role of interpreters and commentators is essential for the birth and consolidation of this right.
- Commentators update the law by giving it a practical approach.
- This is the general law and is known as the ius commune.
- Its main basis lies in the compilation of Roman law made by the Emperor Justinian and known as the Digest or the civil legal body .
- Its origin is in Italy, in the school of Bologna.
- Today, civil law is known as common law. This is the case, for example, of commercial law, when it cannot be applied for lack of an express rule, common law is used and it is civil law.
Protagonists of modifications and interpretations
The two figures who made possible the birth of this law and with it the revaluation of all the rules of Roman law are:
- Glossaries or interpreters: They sought to clarify the literal meaning of Roman rule. Thus was created the school of glossers.
- Commentators: They expanded the written rule, trying to apply this rule to a practical case. These commentators do not intend to clarify the standard, but rather to put it into practice.
Customary law or uses or custom is a source of law. They are legal norms that are not written but are complied with because compliance with them has become customary over time; that is, use has been made of that custom that emerges from events that have occurred repeatedly, over time, in a specific territory. It has force and is resorted to when there is no law (or written legal norm) applicable to a fact. Conceptually, it is a term opposite to written law.
The origin of customary law is buried in the very origins of what we understand by society. However, the current doctrine has managed to identify three essential elements for a conduct to qualify as custom and have legal effects:
- Repetitive and widespread use . Only a behavior carried out by all the members of a community can be considered custom. Likewise, this behavior must be one that is repeated over time, that is, it must be an integral part of the common actions of a community; a community can agree to repeat a behavior from today onwards but that does not make it customary, it makes it law.
- Awareness of obligation . All members of a community must consider that the conduct common to all of them has an authority, in such a way that said conduct cannot be ignored without everyone considering that a principle that regulated the life of the community has been violated.
- The antiquity. it is objective, it is given by long-term customary practice, it is an important requirement since when it is not fulfilled, some magistrate may consider it a simple social and not legal custom.
These three requirements are essential for there to be a customary law because if any of them are not met, we only speak of a non-legal social custom.
Custom as a source of law:
The custom is a rule that emanates directly from the people, general and permanent, and that is recognized as mandatory by the authority. The custom is a use that becomes a rule of law, becoming general little by little, and because the social environment, the popular conscience, come to consider it as obligatory.
Custom is the repeated practice of a precept that has acquired the force of law; or in the unwritten law has been introduced by use. Usage is the cause and custom is the effect.
Custom is made up of two elements: one material and the other psychological:
The material element lies in the fact that the customary norm has a certain time and also space. An isolated event is powerless to create a mandatory norm that must also cover a group of people without having to cover the generality of the population.
The psychological element resides in the belief in the obligatory character of the customary rule. It is the endorsement from the authority that men attribute to the tradition that is revealed as a kind of tacit consent to its mandatory nature.
Likewise, it is stated that the characters of the custom are: Informality and notoriety. It is informal because it is the work of instinct, and it is notorious, since it is perceived as a generality in the actions of a nation. Similarly, the characteristics of the custom are:
- It is of general use;
- It has continuous validity in a certain period of time; Y
- It is known, at least by most;
Classification of Custom or Customary Law
Whenever the custom is observed throughout the nation, it is said to be general, if it is only observed in a region or town, it is understood to be special.
Importance of custom as a source of law
It is a source of law, since it must be taken into account so that when creating a law it is not contrary to custom; In addition, in the absence of a clear and precise stipulation, the law establishes that it has been agreed in accordance with the regulations of the place where it was agreed.
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