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The medieval systems of law in Italy and Europe  have been proposed as a sort of virtual laboratory  to deal with the issue of ensuring that the principle  of equality in the rule of law be compatible with  the recognition of indigenous peoples’ customs.  The legal framework of the medieval communes  sought to strike a balance between the  general interest in having legal certainty and uniformity  with the citizens’ interest in ruling their  family life and economic assets according to their  cultural and social values.  Up until the 14th century, in Lombardy an  individual’s legal status, family and inheritance  continued to be ruled according to the customs  of the individual’s natio, be they Lombard or Roman.  The ascertainment of customs is an arduous  task, as oral customs are uid and vary from place  to place and from family to family. For this reason,  in the Middle Ages ascertainment was always entrusted  to judges and legal experts (sapientes).  Until a few decades ago, recognising and enforcing  customs was mostly unthinkable due to  legal positivism and the principle of equality. Now,  however, the limits of the principle of legal equality  are well known: »Legal positivism was not able  to abolish status« (G. Alpa).  The recognition of »legal Indigenous status«  provides continuity between the past (the Middle  Ages) and present (Indigenous Peoples Basic Law).  Just as in the past, when living according to a given  natio’s laws and customs did not mean self-government,  so today the enforcement of an indigenous  peoples’ basic law should not undermine the sovereignty  of the State.

Ascertainment of Customs and Personal Laws in Medieval Italy from the Lombard Kingdom to the Communes