Legal Classification and the Written Word

From clay or stone tablets to the great tomes of the Corpus Iuris Civilis, writing was not only at the center of legal mythologies but also was understood to provide the formative stuff of law’s existence. Ancient and medieval writers struggled to understand what made law and how it differed from other sorts of norms. Many relied on the notion of writtenness: law was ius scriptum in contrast to it foil, custom, or ius non scriptum.

By the twelfth century, ius scriptum could refer to legislation but was also becoming a term of art designating the Ur-texts of Roman and canon law studied in the universities. Ius non scriptum, on the other hand, was generally pegged to the category of customary law. While this division is conventional, it belies the extent to which different authors struggled with these categories. This was especially true of the twelfth and thirteenth centuries. The concept of custom was being increasingly theorized, and custom itself was formulated in writing from city customs to larger treatises of customary law—what did this mean for the nature of custom and the extent to which the lack of writing qualified it? This paper will examine how various authors grappled with the relationship between writing and custom, and will especially focus on how these ideas shifted in the twelfth and thirteenth centuries.

Short abstract (does not seem to upload in its section):

This paper will examine the development of categories of “written law” (ius scriptum) and “unwritten law” (ius non scriptum) by late antique and medieval thinkers, in order to illuminated how and in what ways writing was understood to constitute and shape law.