El derecho consuetudinario en Castilla. Una crítica a la matriz romántica de las interpretaciones sobre la costumbre

Abstract

The subject of this article is to reconsider the idea, strongly rooted in the tradition of the history of Spanish law, according to which the development of customary law in tenth-century Castile was a consequence of the «Liber». It is proposed here that there exists an romanticised view of customary law in interpretations of the early medieval Castilian law based on a romantic view of the custom. This view presumes the customary law to be spontaneous, immanent in social practices, emerging naturally from human behaviour. This article analyses the evidence of the Castilian «fueros» between tenth and fourteenth centuries in order to demonstrate that, far from being linked with popular and spontaneous origins, the appearance of customary law was closely related to the work of the Roman and canon lawyers.