Le droit coutumier entre juridicisation et identité communautaire. De Sumatra à la France du Nord vers 1100

Abstract : Customary Law between Legalization, Community, and Identity: Sumatra and Northern France around 1100 Was there a dawn of customary law in Europe around 1100 ? The topic has been hotly debated. Some think that mentions of customs in written sources point to ancient rules that are revealed by the increased literacy. Others argue in an opposite way that customary law is an intellectual construction that bears little relation with social reality. This article takes the topic of customary law afresh using a comparative and pluralistic point of view. It shows how customary law is related to collective identities. I compare the Indonesian case of the adat (customs) of the Minangkabau (Sumatra) with the French Northern city of Beauvais. I also use as a counterpoint to case studies late 11th century commentaries on Ciceronian rhetoric from the School of Laon. To exist or survive, a custom needs to mark a difference with the surrounding legal system. Therefore, customs appear in situations of legal conflict when the rule to apply is uncertain. However, to be sustainable, a custom must follow criteria of rationality or be rejected as dangerous. Case studies for Beauvais and the rhetorical teaching of William of Champeaux reveal that customary law is not always understood as an heritage of the past but as a legal choice of a community that has to be checked by a body of legal experts : town scabini or prelates. During the short-lived dawn of customary law around 1100, multiple actors have overlapping frameworks of legal consciousness. New customs could therefore be, at the same time, markers of identity and political tools. Legalization of society is a process that cannot be only explained by the birth of Law Faculties.
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Charles de Miramon. Le droit coutumier entre juridicisation et identité communautaire. De Sumatra à la France du Nord vers 1100. O. Condorelli, F. Roumy, M. Schmoeckel. Der Einfluss der Kanonistik auf die europäische Rechtskultur. Bd. 2 Öffentliches Recht., Böhlau, pp.81-114, 2011. ⟨halshs-00658055⟩

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