Paprotys ir teisė: Carolina ir Antrasis Lietuvos Statutas

ENThere always exists a temptation in historical research for seeking out the origins of today’s realities. The beginning of the Early Modern Period in Europe in the 16th century is often seen as the end of medieval superstitions, regional and local particularism, the authority of orality and customs. It is questionable whether all these and other phenomena, attributed to the Middle Ages, had faded away. This doubt is based on the stratigraphic theory of historical time, which states that there are phenomena of different time overlapping with each other simultaneously. This article focuses on the custom as an oral practice and its relation to the written law in the Holy Roman Empire and the Grand Duchy of Lithuania in the 16th century. It involves three parts: (1) the contextualization of European law and its relation to customs in the 16th century, (2) the theoretical distinction between the concepts of sources and historiography and (3) the empirical analysis of the custom in the statute book of Carolina (1532) of the Holy Roman Empire and the Second Lithuanian Statute (1566). The written law and its functioning in the 16th century in Europe is, in general, seen as not the only single authority that regulated the life of societies. The custom, as an oral practice, and the substantial traditional authority had a seminal influence on society in general and on law in particular.On the one hand, it is claimed that in the Middle Ages and Early Modern Period, it is sometimes difficult to make a distinction between the custom as a common practice, the custom as a legal norm and the written law. On the other hand, it is noted that there is a significant difference between the historiographical concepts, such as customary law and the customs of law. The latter one is more correct regarding the variation of customs, which became a condition for different law practices in the same polity. The analysis of both statute books showed that the custom in the mid-16th century was still in use. Three custom (alter gebrauch, herkommen) forms were distinguished in the Carolina: legitimation, territorial and judge will. The custom (antiqua/vetera consuetudo, стародавныи обычаи/ звычай) in the Second Lithuanian Statute is seen in terms of legitimation and territory. It is argued that the custom and its connection to the past (antiquity) was, in the 16th century, at the core of a society’s mentalité; therefore, it could not be thoroughly “ripped out” and displayed by the written law. The widespread authority of custom in a society and its traces in written law were rich grounds for the formation of the customs of law. [From the publication]