Modern Democracy vs. Customary Law

Modern Democracy vs. Customary Law
By: Plinio Corrêa de Oliveira

From the 12th century on, the study of Roman Law started to be introduced in the faculties of Law in the universities of Europe. This is not the place to analyze the more profound reasons for that introduction.

With the study of Roman Law, a completely different type of State was presented as ideal: A State that was no longer governed by customs, but rather by laws made by the State itself, which everyone had to obey. The people did not like these artificial laws. Nonetheless, the judges applied them since they deemed Roman Law to be much more sophisticated and academic than those simple laws generated by custom under the warmth of living practice.

Venetian magistrates and notaries assuming majestic airs
The new laws did much to promote the jurists’ pride. The judge appeared quite erudite before his peers when issuing a sentence based on a text of Papinianus, stressing that Ulpianus, however, thought in a different way. It was much more beautiful to make such a learned statement than to merely say: “The custom of Innsbruck Forest establishes such-and-such and, therefore, by virtue of that particular regional law, I give this judgment.”

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