Tribal customary law
Customary law: Today we are very much accustomed to the law of a particular country, such as German law or English law. More recently, we have seen the emergence of European law, along with national law, in the countries that make up the European Union. And, of course, for centuries there has been a body of law that governs relations between states. This institution is called international law.
However, Roman law was not the law of any country or state, but the law of the people, that is, the law of the Romans. Because they belonged to a tribal group whose members were mostly connected by family ties, the earliest Roman law was tribal law.
If a person grows up, the basic relationship between its members cannot be a family relationship, or at least a close family relationship. The binding element will then be a common culture, for example, based on a common religion or language. We call such people a nation with a common culture. In the sect, nations are discussed. 8.1.3.
Importance of Customary Law
Customary law: As with most tribal laws, early Roman law was traditional law. Traditional law contains guidelines for behavior that develops spontaneously in society, such as a tribe, in the form of mutual expectations, which are later accepted as binding.
An example would be that if an animal is caught hunting, the head of the tribe gets the first choice. At first glance, this may be just a kind gesture from the hunters to the tribal leader. But if it is repeated for a period of time, everyone will believe that it will happen again, and if the chief does not get the first choice, he will be blamed. In the end, the blame can be so severe that poachers will be punished if they do not make the first choice to the chief.
Customary Law Example Historical Legislator
These guidelines are passed down from generation to generation and are considered “natural” and rational, and their origins are often attributed to historians, often divine, legislators.
An example would be the Ten Commandments and other laws that, according to the Torah, were given by God to the Jewish people on Mount Sinai through the intercession of Moses.
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International Customary Law Immutability
For a historical legislator, this work explains another feature of traditional law, namely, that it is considered unchangeable. The law has always been this way and will never change. However, as traditional law begins as unwritten law, there may be gradual changes that go unnoticed because there are no passages that would facilitate comparing current law with the law of older generations. Provide, As a result, traditional law may gradually change over time, adapting itself to circumstances, while maintaining its image of natural and unchanging law.
Customary law: Although traditional law is often formerly attributed to a legislator, it is not usually the result of legislation. It consists of principles that are actually used in society to control the relations between the members of that society and are not easily distinguished from religious and moral principles in general. Only in the later stages of the development of the legal system can a distinction be made between legal, moral, and religious principles.
Undoubtedly, such a sharp difference represents the separation between church and state, a separation that has gradually grown in the Western world since the end of the Middle Ages. But note that this separation is not accepted in many non-Western countries, especially those who want to follow Islamic law.
Ius Civile and Ius Gentium
Customary law: The tribal nature of classical Roman law is reflected in the fact that the Romans distinguished between the members of the tribe (ius civil) and the relations between the members of the tribe and the foreigners, or between each other the foreigners (Ius Gentium). Used different rules for
For example, Ius civil would govern a dispute over the use of a piece of land between two Roman citizens, while the same dispute would be handled by Ius Gentium if one or two foreigners were involved. The only difference between Ius civil and Ius Gentium is the so-called “classical age” of Roman law, since the third century BC. Although Ius civil was originally intended for use within the tribe, its scope of application was gradually expanded to include all Roman citizens, a group that grew larger and larger over the years.