ЗАКОН И ОБИЧАЈ У ВИЗАНТИЈИ
THE LAW AND CUSTOM IN BYZANTIUM

Summary/Abstract: While beginning from a specific case from thirteenth century processed by judge Hometian (annulment of a divorce), the author considers the role of custom and of law in Byzantium. Greek language lacks the term which would correspond to Latin ius. The word dikaion is an artificial creation and may mean law as a normative order, and a subjective right, namely an authority one is entitled to. The basic notion is nomos — the statute (law). The customs play certain role in judicial practice and, under specific conditions, a foreign custom too may be applied. A tendency has been expressed, originating from the writings by Roman jurists since fourth century A. D., to suppress the implementation of customs. A court may apply a custom only if there is no adequate provision in the statute, the other condition being that the custom should be reasonable. However, the customs were rather important in practice. Some of them have their own force, such as the case of the rule according to which the right is lost to dowry property if these are not listed in an inventory. Other customs are applicable since the statute presribes their application, providing the existing of specific situations. Such is the case related to certain rules of executing the will. According to Byzantine theoreticians, only their own state is founded on statutes, while the „barbarians" use the customs. Nomos is an exclusive element of the Byzantine culture. This is why they treated Serbian rule over Byzantine regions as „an illegal" power. This theory is based on the monarchic principle and the Hellenistic tradition of relationship between the „nomos" and the „basileus". This is also connected with the conception according the which the Byzantium, as a continuation of the Roman Empire, is called to world rule, which is majestic as a pretension, but leads to ridiculuous or sad consequences in the world of realities. Although according to such a conception there would be little space left to customs, they still have been applied, more particularly in the sphere of family relations.

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