This article surveys the ways how the Roman jurists of the classical period dealt with the customs and the customary law of Rome and its provinces. Although there have been much debates among the Roman law scholars of today about their acceptance of the customary law, we must expect as a matter of fact that they recognized the fact of various customs in the Roman society and succeeded in moulding a concept of customary law. It is very interesting to find out that they had two different words for custom and customary law: consuetudo and mos. The former was usages and observances lasting long enough (longa, diuturna, inveterata) and able to become a customary law if supported by the consent of all (consensus omnium). The latter was used to designate a concrete norm envisaged by the Roman jurists as based on the old custom of ancestors (mos maiorum), which, contrary to consuetudo, was conceived to have its normative force from the beginning without any reference to its time dimension. It was in fact a device with which the Roman jurists qualified a legal institute, figure or concept as originating from the old custom of ancestors, now incorporated into the ius civile. It played, therefore, not a significant role in the contemporary legal context, and was very limited also in number. The Republican ideological background of mos maiorum already faded out in the classical period to function nearly as an argument in a purely legal discourse. It must further be discussed whether or not it reflected a category newly introduced into the legal debates by the classical jurists, who themselves, representing a theory of law as a civilizational norm system, tried to revive the achievements of the natural law theory of veteres, the old jurists of the Republic influenced by the Stoic norm theory. It is also very interesting to discover that the Roman jurists' attitude to consuetudo underwent a change that reflected the changing constellation of the state and the civil society. In the classical period the Roman jurists did not try or dare to control customary law from the viewpoint of its reasonableness. With the time going by, they showed to an increasing extent a more or less positive attitude for a control in the name of ratio, which then seemed to substitute the consent of all as a legitimizing factor of a customary law. The autonomy of the civil society failed seemingly in asserting itself against the state. The trend continued in the church and in the Middle Ages.

This article surveys the ways how the Roman jurists of the classical period dealt with the customs and the customary law of Rome and its provinces. Although there have been much debates among the Roman law scholars of today about their acceptance of the customary law, we must expect as a matter of fact that they recognized the fact of various customs in the Roman society and succeeded in moulding a concept of customary law. It is very interesting to find out that they had two different words for custom and customary law: consuetudo and mos. The former was usages and observances lasting long enough (longa, diuturna, inveterata) and able to become a customary law if supported by the consent of all (consensus omnium). The latter was used to designate a concrete norm envisaged by the Roman jurists as based on the old custom of ancestors (mos maiorum), which, contrary to consuetudo, was conceived to have its normative force from the beginning without any reference to its time dimension. It was in fact a device with which the Roman jurists qualified a legal institute, figure or concept as originating from the old custom of ancestors, now incorporated into the ius civile. It played, therefore, not a significant role in the contemporary legal context, and was very limited also in number. The Republican ideological background of mos maiorum already faded out in the classical period to function nearly as an argument in a purely legal discourse. It must further be discussed whether or not it reflected a category newly introduced into the legal debates by the classical jurists, who themselves, representing a theory of law as a civilizational norm system, tried to revive the achievements of the natural law theory of veteres, the old jurists of the Republic influenced by the Stoic norm theory. It is also very interesting to discover that the Roman jurists' attitude to consuetudo underwent a change that reflected the changing constellation of the state and the civil society. In the classical period the Roman jurists did not try or dare to control customary law from the viewpoint of its reasonableness. With the time going by, they showed to an increasing extent a more or less positive attitude for a control in the name of ratio, which then seemed to substitute the consent of all as a legitimizing factor of a customary law. The autonomy of the civil society failed seemingly in asserting itself against the state. The trend continued in the church and in the Middle Ages.

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Classical Roman law, consuetudo, consuetudines, custom, customary law, custom of ancestors, mores, mores maiorum, mos, mos maiorum, Roman law, usages, usus