“Custom”—particularly when combined with “medieval”—Is a word that usually elicits images of something that is backward-looking, conservative, and resistant to change. Ada Maria Kuskowski’s Vernacular Law seeks to change this view of customary law in thirteenth- and fourteenth-century France. She describes the writing of customary law texts as taking place in a context of “intellectual ebullience” (362) in which lay jurists perceived themselves as doing something new and innovative in a time of rapid change.
Vernacular Law is the first general account in English of the medieval French coutumiers—texts of customary law that began to be written in the thirteenth century. That alone makes it a significant contribution to the field. It is more than that, however. Kuskowski makes original and convincing arguments about medieval understandings of custom, what it means for law to be written, and the nature of authority, making the case that the coutumier authors were engaged in a project of creating something new, “a form of ‘learned law’ for the lay jurisdiction” (7).
Kuskowski presents this new legal tradition as customary, vernacular, written, and lay. Part I of the book, “Written Custom and the Formation of Vernacular Law,” examines the first three of these attributes. In chapter 1, “What is Custom? Concept and Literary Practice,” Kuskowski provides a history of custom from late Antiquity to the thirteenth century. This chapter will be extraordinarily helpful to legal historians, as it synthesizes strands of historical literature on custom that have rarely been put in conversation with each other. Custom was an important concept in both the civilian and canonist traditions, and Kuskowski surveys the various discourses about custom that coexisted in Roman and canon law. Roman law and canon law are often lumped together as the learned laws, but Kuskowski points out the significant differences between the ways in which civilians and canonists thought about custom. For canonists, who encountered custom mainly through debates over the proper relationship between secular and religious authority, custom was often associated with lordly oppression and dissension within the Christian community. Canonists often used custom as a rhetorical language to diminish a claim to authority. For medieval civilians, on the other hand, custom lacked these pejorative connotations, and civilian literature was more concerned with questions such as how one would prove the existence of a custom, and when a custom acquired the force of law.
Chapter 2, “Composing Customary Law as a Vernacular Law,” discusses the coutumier authors’ choice to write (in most cases) in the vernacular, rather than in Latin. Kuskowski presents this as a conscious choice “not to be part of the cultural and political world of Latinity” (91), rather than the result of a lack of familiarity with Latin. Vernacular writing had been on the rise in the twelfth and thirteenth centuries, and by the time coutumiers began to be written, “the vernacular had become sophisticated and subtle enough as a written language to properly express or transmit” abstract legal ideas (118). By the thirteenth century, it was possible to imagine theorizing the law in the vernacular.
In chapter 3, “Writing a ‘ius non scriptum’: Writtenness, Memory, and Change,” Kuskowski discusses the ways in which the authors of the coutumiers theorized their law as a written law. In texts of Roman and canon law, custom was commonly identified with ius non scriptum (unwritten law). Kuskowski argues that the authors of the coutumiers did not think of custom in this way. They did, however, theorize the written nature of their law, discussing writtenness in relation not to authority, as the civilians and canonists did, but to legal memory. The chapter provides a very helpful history of the development of the categories of ius scriptum and ius non scriptum in the civilian and canonist traditions (which troubled the authors of the contemporary English texts Glanvill and Bracton, who felt the need to defend the law of their realm from the attack that it lacked authority as ius non scriptum) before turning to the coutumier authors, who seem to have been untroubled by these categories. They do not seem to have regarded written custom as a paradox, and when they discussed the project of writing, they emphasized the need to preserve the custom of the present. Kuskowski also discusses the relationship between custom and time in the Middle Ages. Historians have tended to associate custom with the past, an association Kuskowski discusses in more detail in her article, “The Time of Custom and the Myth of Medieval Customary Law.” [1] This association with the past is part of a broader attitude toward the Middle Ages, which treats them as a time of little change, when people did things the way they had always been done. Coutumier authors, however, treated custom as a thing of the present. Custom is not what we have always done; it is what we do right now. They were anxious to write it down because they perceived themselves as living in a world of rapid change. If custom is not written down, it will quickly be lost. The concerns expressed by authors were not voiced in terms of resistance to change, but rather in terms of corruption. If not written down, custom would be thrown down “because of human action, human choice, and people’s self-assured confidence in their own opinions” (145). The coutumiers were thus a reaction to the fast pace of change, and an attempt to preserve good, present practice, not to preserve the way things had always been done.
In part II, “Political and Intellectual Tensions,” Kuskowski emphasizes the ways in which the jurists of this vernacular legal culture were writing in conversation and tension with Roman and canon law. The Roman-law revival of the twelfth and thirteenth centuries has played a major role in the historiography of the coutumiers. Scholars often treat the coutumiers as derivative of Roman law. The idea that the coutumiers were connected with a ius proprium (the law of a particular place)that existed as a local reflection of the ius commune (the general law of Latin Christendom, represented by Roman and canon law) has served as a popular framework for understanding these texts. Kuskowski questions this framework, however, and approaches the problem from two different angles. In chapter 4, “Uneasy Jurisdictions: Lay and Ecclesiastical Law,” she discusses the coutumier authors’ presentation of their customary legal tradition as a self-consciously lay tradition created in opposition to the ecclesiastical courts and their canon law. The lay jurists who wrote the coutumiers often emphasized the fact that they were writing for lay courts. They developed a vision of their law of lay jurisdictions, associated with lay lordship, in opposition to the courts of the Church. In a particularly engaging passage, Kuskowski discusses the Roman de Reynard, a romance that contains a trial scene in which the players are all animals. The learned Roman and canon law traditions are represented by the camel, who speaks in a “pidgin legalese that mixed French, Italian, Occitan, and Latin” (158). The learned camel is an ornament to the king’s court, but he is presented as a fool, and his opinions are ultimately ignored by the assembled laymen who give the verdict. Far from a derivative reflection of Roman and canon law, the legal tradition of the coutumiers is a learned lay tradition, contrasted with the learned tradition of canon law and confident enough to stand on its own feet.
In chapter five, “Roman Law, Authority, and Creative Citation,” Kuskowski turns to the use of Roman law in the coutumiers. The coutumiers often cite to Roman law, and scholars have often treated these texts as derivative of Roman-law texts, presenting them as mimicking the styles of Roman law in an attempt to borrow some of Roman law’s authority and legitimacy. Kuskowski pushes back against any inference that the authors of these texts thought that what they were doing was derivative of Roman law.She demonstrates that the coutumiers only rely on Roman law as one among many sources—which also include, for instance, court practice, the authors’ personal experiences, and folk wisdom—and they use Roman law in ways that civilian jurists would not, marshalling it in new and creative ways to serve their own purposes. They do not treat Roman lex as a superior source of authority to their own coutume. As Kuskowski puts it, the “lay jurists and university law jurists had different epistemological views of Roman law” (222), the former treating Roman law as a living part of their customary law tradition rather than as a body of authoritative texts to be reconciled to each other. They cited to Roman-law texts not as authorities, but as sources, which they could use or ignore, agree or disagree with. Roman law was part of a larger bricolage of sources that coutumier authors could use.
In part III of the book, Kuskowski turns to the implications of this new lay legal culture. In chapter 6, “Custom in Lawbooks and Records of Legal Practice,” she tackles one of the perennial questions of customary law: how is the customary law presented in these legal texts related to legal practice? It has long been recognized that the authors of customary law texts transformed custom in the process of writing it down. Previous literature has focused on the ways in which the authors of these texts may have privileged certain voices in the construction of custom or ossified what had been a living oral tradition by setting it down in writing. Kuskowski takes a different tack, examining instead the ways in which the coutumier authors themselves discussed practice and its relevance to the construction of a customary law. The authors of the coutumiers discuss practice, referring to things they have personally heard and seen in court. Their innovation was to generalize from these particular cases and to use them to theorize general and abstract rules for the lay courts. Coutumier authors were not simply writing down customs; they were theorizing a system of customary law based on abstract norms. In chapter 7, “Dynamic Text: Dialectic, Manuscript Culture, and Customary Law,” Kuskowski discusses a traditional scholarly understanding of the coutumier, in which the writing of custom led to a shift from a flexible, oral system to a crystallized system, in which custom, once set down in writing, becomes resistant to change. Kuskowski argues that the relationship between written and oral legal culture was much more fluid in the lay juristic culture of the coutumiers. The coutumiers, rather than being collections of ossified custom, were designed to teach their readers to participate in the oral culture of the lay courts, which included debate over the content of custom. The coutumiers were less about providing their readers with an authoritative body of custom than they were about teaching them how to argue about custom. Chapter 8, “Implications of Circulating Text: Crafting a French Common Law,” discusses the existence of a concept of a common customary law in medieval France. The coutumiers are often regarded as reflections of regional custom, in part because the French legal tradition of the later Middle Ages emphasized the regional nature of customary law. Kuskowski argues that the coutumiers do not usually represent themselves as “inward-looking, local legal identities,” but instead as repositories of a “pool of legal knowledge that transcended regional boundaries” (317).Coutumier authors, even when they identified their text with a specific region, regularly borrowed, often extensively, from coutumiers that identified themselves as belonging to different regions. Kuskowski argues that the primary opposition in the coutumiers is not between the customs of different regions, but again between the custom of the lay jurisdiction and that of the ecclesiastical courts. And coutumier authors demonstrated that they their texts transcended the locality; the phrase “common law,” which we tend to associate either with the law that was developing in England around the same time or with the ius commune of Roman and canon law, was used by coutumier authors. The use of the phrase in the coutumiers has elicited a great deal of debate between those scholars who think that the phrase refers exclusively to Roman law and those who think that it refers to a common customary law of France. Kuskowski argues persuasively that it refers to a sort of customary “legal commonality” that we see developing in France in this period (335). She argues that this notion of common law can only be partially explained by the emergence of a stronger central monarchy in France. Rather, the commonality is more easily explained by the development of a common customary legal culture and a textual community built around these new customary law texts, which were circulating throughout France.
Vernacular Law is a wonderful, thought-provoking book. It contributes to several different scholarly conversations. Scholars of literary culture, particularly as it pertains to questions of vernacularization and orality and literacy, will find it valuable. Additionally, the last decade has seen quite a bit of new scholarship on the new legal literature that was emerging throughout Europe in the twelfth, thirteenth, and fourteenth centuries. This scholarship has given us a more complete understanding of the historical processes that were leading to an interest in theorizing the law of the realm. With these new insights, it is becoming increasingly possible to make comparisons across regions and kingdoms. To what extent was vernacular legal writing in Spain, as we see in the Siete Partidas, the subject of a recent study by Jesus Velasco, related to the emergence of vernacular legal writing in France? [2] How does England, where the law was written in Latin and French and the legal literature focused primarily on the central, royal courts, compare? Where does the Sachsenspiegel fit into this story of vernacular, lay legal culture? We now have a number of excellent studies, such as Kuskowski’s Vernacular Law, that analyze this revolution in legal writing within particular regions, kingdoms, or courts. These works examine the particular. Now that we understand these texts and their contexts better, what the field probably needs is more dialogue between people working on texts from different places, to better understand the commonalities.
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Notes:
1. Speculum, vol. 99, no. 1 (2024): 143-82.
2.Jesús R. Velasco, Dead Voice Law, Philosophy, and Fiction in the Iberian Middle Ages (University of Pennsylvania Press, 2020).