Zbornik Radova: Pravni Fakultet u Novom Sadu (Jan 2011)
The long-lasting customs (longa consuetudine) and the public interests (utilitas publica)
Abstract
In the process of creating the Roman Empire as well as thereafter during the struggle for its existence, the following question emerges: to which extent should be the acceding nations allowed to practice their deeply embedded customary rules? This question is important also nowadays in times of creation of the European Union and its unified legal system. In terms of the use of customs Rome has been changing its attitude depending on important changes in the society. In times of a rise, during the period of Republic, Rome was deciding on whether it will allow or forbid the acceding nations to continue living by their own customs and religious rules. Later, when the roman citizenship has been given to all inhabitants of the Empire by Caracalla's Edict (in the 212. year), a liberal approach has been taken. In the constitution of Alexander Sever, as well as in the fragments of the classical lawyers one can read about the obligation of the judge to take into account the customs. However, when the Empire got into a serious crisis and barbarian people came onto the roman land, a general boundary has been set towards the use of longlasting customs: these customs could be used, and potentially even have the force of a law, as long as they did not jeopardize the interests of the Empire (utilitas publica). The analyzed rules on the question can the potential future heirs dispose with the future heritage (the goods of a living person - bonis viventis) in the classical, post-classical and Justinian's law, points onto the fact that the postclassical cutomary rules, that were not in conflict with the interests of the Empire, contributed even to the changes of the rules of the classical roman law. In the taken example, the classical rule according to which the disposal with future heritage is null and void, is modified under the influence of a German custom in a way that, property division and disposal with the divided property by future heirs was allowed, provided the future de cuius gave his consent. However, when adopting this rule the law maker took into account the selfish interests of the Empire as well: the conversion of 'dead capital' into a 'live capital', from which the heirs could fulfill their fiscal duties. Hence, this custom was accepted not only because it was not in conflict with the public interests, but because it served its purpose.
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