Features of customary law in Roman and contemporary jurisprudence

Abstract

Researches on customary law in Ancient Rome resulted in the identification of two of its obligatory features – usus (the existence of a custom as an important practice in social reality) and opino iuris necessitatis (a common psychological recognition that a particular custom is implemented as a law). Since ancient times, the interpretation of customary law has undergone a long evolution, the breakthrough point of which was the concept, formulated by John Austin. According to it, customs can become law only with the consent of the state, which can sanction them by legislative act or court order. The view of the obligatory assignment of the state’s sanction of custom for the creation of customary law was also taken over by Soviet legal doctrine and it remain dominant in many post-communist countries even in the present. Based on the Roman concept, the article suggests rejection from the view of the obligatory importance of state sanctioning.