A Little Thing on Justice — Johnson
By Tom Johnson | Published on September 7, 2023
Ore entendés une chosete
Petite qui est nouvelete
Que je veuil de droiture dire.
[…]
Droiz dit, et j’en sui emparlier,
Que quiconques est chevaliers
Qu’il ne doit de nelui mesdire.
Droiz dit qu’il soit drois conseillers.
Droiz dit qu’il soit drois joutisiers,
Si qu’en ne le puisse desdire.
Now hear a little thing,
A little thing which is a little new
That I want to say about justice.
[…]
Law says, and I am its advocate,
That whoever is a knight
Must not speak ill of it.
Law says that he be an upright counselor.
Law says that he be an upright judge.
So that no one can speak against him.
[Translated by Ada M. Kuskowski]
‘Now hear a little thing / A little thing which is a little new / That I want to say about justice.’
This is an extract from a short moralistic poem, Des droiz au clerc de Voudoi, that circulated in late thirteenth century France. In 1303, a clerk took these lines and used them to introduce the Etablissements of St. Louis, a coutumier, a tract on customary law, inserting them between the title and the text. If it seems odd, from the vantage of the twenty-first century, to find part of a vernacular poem squashed into the beginning of a juristic treatise, then Ada’s wonderful book helps to understand why, for readers in the long thirteenth century, it would have seemed entirely apropos.
Coutumiers, as she suggests, have often been misunderstood by legal historians, cast as the bastard cousins of the sophisticated, Latinate, Roman law tradition found in the universities of the time. But such caricatures not only overstate the ‘learnedness’ of the so-called learned law, but also radically underestimate the intellectual creativity at work in the coutumiers.
The juxtaposition of a poem in a legal manuscript is a case in point: coutumiers were understood by contemporaries as literary constructions, compiled from, and in dialogue with a wide range of both ‘high’ and ‘low’ literature. And as fundamentally creative texts, they are open to a much more exciting range of readings, ones that cast a new light on thirteenth-century legal culture.
When I read this poem in Ada’s book, I immediately thought what a nice epigraph it would make – though of course, Ada was too modest to use it, and in any case, what she has to say about coutumiers, custom, and justice is certainly no little thing, no chosette.
Yet brief as it is, it does a good job of encapsulating some of the central arguments that she presents us with in Vernacular Law. So in a slightly artificial way, but one that I hope is justified, I would like to spin off these lines a little, to explore some of the directions that Ada’s books points us in, some of the questions that it orients us to – in short, to say a little something which is a little new.
¶
To begin with, the poem asks us to listen. This was a common convention for a medieval text. It reminds us, of course, that the text might have been heard by contemporaries rather than read silently. But it also signals the critical relationship between customary legal culture and orality. Custom, famously, is lex non scripta, unwritten law; indeed, this distinction between oral and written was foundational to medieval jurists who sought to distinguish custom and law. Custom exists in the memories of the communities that use it, and as such it is articulated in speech.
But one of the things I really loved about Ada’s book is the way that it complicates this old truism. As she acknowledges, the coutumiers are certainly interested in orality, and in speech. But they were not simply writing down oral tradition, creating a written fossil of an organic legal culture. Rather, they aimed to help readers to navigate the increasingly technical speech that was necessary to use customary law in the lay courts at the time.
The orality represented in the coutumiers, then, is a representation – and as Ada suggests, its particular emphasis is on dialectic, conversation, even disputation. Custom was not simply pronounced by an oracle: it was produced through the robust speech of debate, as learned men, versed in the customary law, presented and tried to harmonize their judgments about the matter at hand.
We can see some of this legal culture in the poem, because of the way that the poet plays with the idea of speech. The poet tells us that first that it is Law itself that is speaking, but then immediately modifies this to tell us that he is speaking on its behalf, as its advocate – its emparlier. It is an interesting rhetorical move. On the face of it, the poet is just establishing his authority, giving himself command over the allegory. But in the context of the poem’s insertion into the coutumier, the line takes on a more practical valence – even the allegory of Law, Law with a capital L, needs a lawyer, an emparlier, to help him navigate the courts! What better advert for the coutumier, which will tell you just what you need to do.
And the poet soon makes it clear why we need guidance – law exists in a world of speech that is governed by distinctive codes of honour associated with elite lay society. Honourable men, chevaliers, do not speak ill of law, the poet reminds us – reminding us also that we should aspire to this standard of speech.
But then he switches around the role of speaker again, reporting to us what law says about itself – twice, in fact. Law says he is an upright counsellor, law says he is an upright judge. When I hear this, I find it hard not to detect some irony, as though the poet is telling us that Law is in fact protesting too much. Perhaps this was simply the raucous world of debate over customary law, in which you have to keep defending your integrity in order to make yourself heard. No wonder we have been told, right at the beginning, to shut up and listen. The poet tell us this is the ideal: Law wishes no one to speak against him. His honour, his rectitude, depends upon the silence of others.
¶
Yet while the poem might evoke the chorus of debate in customary law, it is still a very carefully measured text. Right after we’ve been told to listen up, we get the delightfully wrought phrase ‘a little thing which is a little new’, which I can see is even better in French.
There is, of course, supposed to be nothing new about custom. Just as much as its orality, custom’s authority was bound up in its supposed longevity. Famously, it was what was used ‘beyond the memory of man’. Once again, Ada demonstrates that it was rather more complicated than this. In the first place, I was amused to learn that on closer inspection, Roman law jurists did not regard custom as that old. Azo of Bologna reckoned that a 30-year-old custom was ‘very old’, and a 40-year-old custom was ‘of great age’ – pretty rude if you ask me.
But as Ada shows, the coutumiers themselves actually took up far more ambivalent and interesting perspectives on the temporality of custom. Phillipe de Beaumanoir, one of the most famous coutumier authors, claimed to show the customs of the Beauvaisis exactly as they existed in 1283, [quote] ‘so that that they can be observed without change from now on’. What seems to be a regressive statement was in fact a deeply presentist one, in which custom was thought to be changing so rapidly that it was very difficult to pin down – making its textualization necessary as an index. Ada puts it beautifully: [quote] ‘Writing, far from shaping action, became the measure of time past, change, and desuetude.’
We might expect texts of customary law to address the temporality of custom. But what I found really remarkable in Ada’s argument was that the novelty, the creativity of custom was there at every level of the text: not only in the rhetoric, but in the material, compilational structure of the coutumier manuscripts themselves. These texts were quite literally a ‘little new’, because of the way that they recombined a multitude of different sources, both oral and textual – from treatises of the learned law and case studies from the lay courts to proverbial wisdom and personal experience – and placed them alongside one another.
This was why a vernacular poem could be put into play with a coutumier in the first place: all of these texts were compositional, revelling in the possibilities of bricolage. It was, in fact, this superficially miscellaneous approach that led scholars to misunderstand coutumiers as scattergun, partial, or incoherent. But as Ada shows, this was a rhetorical strategy, a deliberate textual compost, that took components of things that supposedly stood outside of law – the vernacular, the oral, the lay – and transforming this excess into something new.
Pierre de Fontaines, author of one of the earliest coutumiers put it neatly in his prologue: ‘he who skilfully amends a previous work does something more praiseworthy than the one who created it.’ Amended slightly, another epigraph for Ada’s praiseworthy book, perhaps. She shows us, with tremendous rigour and sensitivity, that amendation was creation – that the great achievement of the coutumiers was to gather and reconstitute diverse sources into a coherent legal culture; one that, as she puts it, ought to be understood as a ‘vernacular legal revolution’.
¶
Talking of revolution, I would like to turn back to the poem one last time, and specifically, its mention of justice. For this is where I began to see possibilities from Ada’s book that extended beyond the forensic analysis of the coutumiers with which she presents us, and beyond twelfth- and thirteenth-century France, into the later Middle Ages and into the historiography of today. So how is it, exactly, that custom intends to provide justice? Or to be less obtuse: what are the politics of custom?
This is a question that may seem more obvious to a historian of England, where there is a long tradition of understanding custom as a locus of class conflict, even a concept with radical political potential. On the face of it, this is pretty strange. Custom is past practice: it signals conservatism, a justification of the status quo. Worse, it is a justification that seems to be a tautology: we do things like this because we have always done them like this.
Custom tells us to stop thinking about alternatives and just accept things as they are. What could be more infuriating? At best, it is the reasoning of the tired parent – custom offers us something easier, safer, more containable from the risks of experimentation. At its worst, custom is a justification of hopelessness, a refusal to think that things could be made better.
For all this, however, in English historiography, custom is one of the cornerstone concepts of premodern social history, particularly those rooted in Marxian metanarratives. Indeed, E. P. Thompson’s last book, Customs in Common, sought to explain why custom carried such resonance in the eighteenth century, even standing in for something like ‘culture’. In this tradition of writing, custom stands for a lost world of rural folk knowledge, a moral economy of reciprocity, and a kind of autochtonous legitimacy, against the urban, the industrial, the capitalist. It is invoked as a kind of prelapsarian counterpoint to the harsher forms of bourgeois society that emerged in the eighteenth and nineteenth centuries.
Under this umbrella, English historians have studied social rituals, like the ‘beating of the bounds’, in which people assembled and paraded around the boundaries of their parishes in order to assert an autochthonous claim to the land. Custom also features prominently as a part of economic relations – not only as the broad system of organization by which open-field agriculture was organized, but also as justifications for practices of survival used by the poor. Gleaning, for example, in which the poor were allowed to take windfall wood, or the sheaves of wheat left over after harvest, was framed as an act permitted by custom.
We seem to be a long way from the educated, rhetorical, creative literary culture of customary law that Ada illuminates in her book. From this historiographical vantage, custom was something that was lived. And more than this, it is figured as a kind of social relation itself, a way of imagining the great weight of experience accrued in the everyday activities of ordinary people, and according this the kind of legitimacy that it seems to deserve.
Yet there is a bridge between these worlds. Custom, in both places, is closely associated with right. When the poet refers to justice, he uses the word droiture, something like ‘rightness’. Custom, in the English folk tradition, is fundamentally based upon rights, too, ones accumulated through the weight of collective defiance. Custom is like a ‘desire path’, the way made by walkers who cut the corner of the paved road, trampling the grass so that others are invited to do the same, gradually forging the entitlement to do so – making the wrong way a right.
But for all the radical potential of custom, we should never lose sight of the fact that it is a concept that has been permittedlegitimacy. Ten years ago, the early-modern historian Andy Wood argued that while custom offered some security, it still worked to keep commoners in their place: it ‘was a hegemonic concept: it legitimized domination by granting key sites and conceptual spaces to subordinates: subalterns gained a local world of rights, [but they were] hedged about by certain conditions and plotted upon a known landscape.’
In Ada’s account too, custom emerges as something far more complex: as she puts it, ‘it has often served as a foil to the behemoth of law: the oral, community-driven, informal counterpart to something centralized, authoritative, written, and enforced.’ Yet as she shows, the customary law of the coutumiers, bound up with the practice of the lay courts, written by and for social elites, and associated with the strengthening of lordly and governmental institutions, was certainly no project of popular democracy.
So the question remains: does custom belong to the past, or the future? Does it present us with an ambivalent conservatism or a utopian horizon? I’m reminded of Ursula K. Le Guin’s novel The Dispossessed, which tries to imagine a world run more or less successfully along anarcho-communist lines. But even while she fully commits to the thought experiment, Le Guin shows us the cracks that emerge in a utopia – and they crystallize around custom.
In the absence of explicit hierarchies or rules, custom comes to fill in the gaps; hierarchies begin to emerge on the basis of past usage, and a group of characters who don’t wish to follow along find themselves thwarted by the very flexibility of custom. One of them reflects: “The only security we have is our neighbors’ approval. An archist [that is, an inhabitant of the planet of rule-followers] can break a law and hope to get away unpunished, but you can’t ‘break’ a custom; it’s the framework of your life with other people. We’re only just beginning to feel what it’s like to be revolutionaries…And it isn’t comfortable.”
From thirteenth-century France to outer space, custom keeps us guessing. But perhaps that is where we can find something like justice. We have surely learned, by now, to mistrust political or cultural projects that aim to move fast and break things. Custom is a riposte to such impatience. It reminds us to be humble before the vast collective experience of history, to respect the idea that people before us confronted similar problems, devised solutions that worked.
Ada’s wonderful book shows us how to do this, the humility required to approach the past on its own terms, and to make something, something a little new.
