Kadens, Emily --- "Convergence and the colonization of custom in pre-modern Europe" [2019] ELECD 12; in Moréteau, Olivier; Masferrer, Aniceto; Modéer, A. Kjell (eds), "Comparative Legal History" (Edward Elgar Publishing, 2019) 167

Book Title: Comparative Legal History

Editor(s): Moréteau, Olivier; Masferrer, Aniceto; Modéer, A. Kjell

Publisher: Edward Elgar Publishing

ISBN: 9781781955215

Section: Chapter 6

Section Title: Convergence and the colonization of custom in pre-modern Europe

Author(s): Kadens, Emily

Number of pages: 19

Abstract/Description:

This chapter argues that custom, unimpacted by learned law, does not function as formal law but rather as malleable community standards. When lawyers trained in the formal law of the ius commune turned their attention to custom, and tried to fit it into their educated understanding of law, they molded it into definitions and rules of evidence in the image of the learned laws. This changed custom from an inherently flexible system into a more rigid, lawlike one, and paved the way for the triumph of formal law over informal custom.