Law v. Statute, Ius v. Lex: An Analysis of a Critical Relation in Roman and Civil Law (original) (raw)

The analysis in this writing starts with an investigation on the position of customary law in the system of legal sources, both in the Justinean legal system and in the Argentinean one. The results of this analysis are used as a basis for further, wider considerations on the structure of the legal system in the civil law tradition; and, as well, on the possibility of finding today, in Latin America, an epiphany of the system of ius commune which has been in force in the late Roman Empire, medieval and early modern continental Europe. A survey is made of how legal doctrines attempted, through the centuries, to interpret the presence in the Justinean corpus of the different fragments related to the consuetudo (customary law) and to its relation with the lex (statutory law), mostly D.I,3,32 e C.8,52, in order to make sense of what has seemed for centuries to be an evident antinomy within the Justinean Corpus Iuris. A subsequent similar investigation is then done for the Argentinean legal system of sources of law, which features peculiar elements allowing similar questions. Some conclusions will be drawn from these analyses and used to propose a different reconstruction of the legal system of Latin America (not just Argentina) in an ius commune perspective. This paper is meant to be a contribution to the research on the viability of a modern system of ius commune. Or, at least, to propose a different reading of civil law legal systems, based on the recognition of a legal model-if latent or recessive-based on ius commune, operating in a dialectic confrontation with the prevalent, modern civil law model accepted in the European legal science.