ロンドン司教ギルバ-ト・ファリオットの慣習法(consuetudo)論

1本研究旨在通过对吉尔伯特·福利奥书信的分析，重建他的习俗观。他是主教的伦敦从1163年至1187年，并担任教皇法官代表，并作为一个皇家法官以及。因此，重新构建他的法律的观，似乎有助于理解学术法（罗马法和教会法）在普通法早期历史中的作用。[2]主要研究成果总结如下。(1)他早期的信件写的，而他仍然是主教的赫里福德有时表明，他非常感兴趣的法律教训。但是，从明确他的consuetudo观点的角度来看，他在1164年克拉伦登宪法之后写的信更重要。特别是，信“Multiplicem nobis”给托马斯贝克特在1166年底是最重要的。(2)在这封篇幅冗长的信中，他在批评托马斯的同时，坚持认为《宪法》中体现的习俗不是由国王亨利二世创造的，而且王权和圣职之间的合作对于维护和平一直是至关重要的。这种相当传统的观点也见于他关于时间性和精神性的论证中。(3)从这封信判断，我们应该重新考虑公认的观点，即教会在捍卫自由教会反对consuetudoas一个法律的来源。

1 The purpose of this project is to reconstruct Gilbert Foliot's view of consuetudo by analyzing his letters. He was bishop of London from 1163 to 1187 and acted as a papal judge delegate and as a royal judge as well. Therefore, to reconstruct his legal view seems to contribute toward the understanding of the role of the learned laws (Roman and Canon Law) in the early history of the Common Law.2 The main research results are summarized in the following points.(1) His early letters which were written while he was still bishop of Hereford sometimes show that he was much interested in the learned laws. But, from the point of making clear his view of consuetudo, his letters written after the Constitutions of Clarendon in 1164 are more important. In particular, the letter "Multiplicem nobis" addressed to Thomas Becket in late 1166 is most important.(2) In that voluminous letter, he, while criticizing Thomas, insists that consuetudo embodied in that Constitutions was not created by king Henry II,and that the cooperation between regnum and sacerdotium has been and is essential to the maintenance of peace. This rather traditional view is seen in his argument about temporalia and spiritualia as well.(3) Judging from that letter, we should reconsider the accepted view that the church in defending the libertas ecclesie opposed to consuetudoas a legal source.