The Emergence of Tradition. Essays on Legal Anthropology (16.th-18.th Centuries)

The essays contained in this volume deal with some important questions concerning the relationship between the world of custom and the world that can be most precisely defined as cultivated, which found its expression in writing. For the medieval and modern periods, these questions involve a close relationship between the educated, elaborated and tendentially abstract viewpoint expressed through writing, and the one substantially tied to social practices, intimately connected to oral tradition and custom. It is not by chance that customs played a primary part in the hierarchy of sources which a judge theoretically had to take into consideration in his jurisprudential activity. The contact with the world of custom and tradition allows to see some of its most significant features, above all in the many judiciary cases produced by the ever more intrusive and classificatory activity of the ecclesiastical and secular institutions. It is possible to appreciate this aspect in many spheres of social and political life; however, it comes out most clearly in the complicated matter of marriage. The emergence of tradition, understood above all in the sense of custom and of a legal order characterized by orality and mediation, is therefore a historical and cultural phenomenon filtered in the modern period through the activity of secular and ecclesiastical institutions that aimed at regulating and constraining it within legal parameters reflecting new social and political instances. And the interpretative tool of legal anthropology helps the historian understand its scope and meanings. This collection of essays essentially intends to follow this line of interpretation, in an attempt to grasp through a varied and complex selection of judiciary cases the emergence of social practices that had long been grounded in custom and oral transmission.