Comparative Legal History
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Comparative Legal History

Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer

The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.
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Chapter 6: Convergence and the colonization of custom in pre-modern Europe

Emily Kadens

Abstract

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.

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