Van gewoonte en gewoonterecht: Rechtsgeleerde rechtsvinding in de Decisiones van Willem Radelant (1538-1612)

Abstract

Customary law, the unwritten mores of a populace, has a long tradition next to written law. Reception of Roman law, appearance of codified law and positivist methodologies have manoeuvred custom to the margins of the law as it stands, at least in the Netherlands, at the edge of the world. It should be taken seriously, however. The Decisiones of Willem Radelant, president of the Court of Utrecht, are a treasure trove in learned reasoning, and reveal customs growing from facts into accepted law, on the basis of formal criteria (mos, populus, tempus, ratio and aequitas). In Radelants reasoning the acceptance or denial of custom is remarkably oriented on the facts of the case, soundly distinguishing the specific from the general; it provides a systematic place for unwritten rule and decision, between the written signposts of Roman, Canon, feudal and local statutory rules and principles. It does not hesitate either to conditionally give primacy to custom over written law. It is thus a scholarly tale in practical decision-making, with mind and heart, on soft law in hard times.