ROMAN LAW VS CUSTOM IN A CHANGING SOCIETY: ITALY IN THE TWELFTH AND THIRTEENTH CENTURIES Emanuele Conte Throughout legal history, we can hardly find a subject more influenced by romantic ideology than the relationship between custom and law. The question arose quickly, with the birth of the German historical school and the strong national feeling it created, in search of the spirit of the German nation in an array of peculiar institutions. Continental legal historians, all of us educated in the shadow of the German academic tradition, consider custom as a very important actor in European law since the Middle Ages; an actor who has been struggling for centuries to survive against two major competitors: Roman law and sovereign legislation. This point of view is evident in Francesco Calasso’s famous book Medio Evo del Diritto (1954), which, despite its aim to give a new shape to legal historiography, still reveals the influence of the idea of the struggle of legislation against custom. Even today, this way of presenting legal history survives in the most recent handbooks in Italy, France or Spain, where we read modern versions of the same old story: people and lawyers fighting against a ruler who wants to establish a legal monopoly. As we approach the subject of custom, indeed, we are often influenced by these nineteenth-century judgements, which lead us to place more legitimacy in popular customs than in royal or state laws, and to believe that law professors were pushed to interpret Roman law broadly 33