Living Law — Stern
OLYMPE: Stop laughing! It’s serious. These people are not stupid. Sure, they deny that the sun moves, but otherwise they can be quite clever. For example, they have found a way to make an entire church bell fit inside of a small, flat box. They call this box a “phone.” No, I have not seen the bell inside the box but that’s irrelevant: I have heard it chime with my own ears.
OLYMPE: Right?! Can you imagine living that way, each with her own bell? Chaos. It’s the only explanation I’ve come up with for this “constitutionalism” business.
OLYMPE: No. As I said, the court that handles the business of that parchment is considered the highest in the land.
OLYMPE: Well, they do modify it. They call these modifications “amendments” and they never tire of citing them. But if you even hint at the possibility of modifying the modifications, they look at you like you deserve to lose your ear.
OLYMPE: They don’t debate that part. They bicker over how to interpret what the parchment says, sure; careers are built and destroyed over that question. But everyone seems content with the idea that the peace of their kingdom rests on its message. One can’t even determine—
OLYMPE: No, they don’t fight with javelins anymore, but with something far worse, and that’s the last I am going to say about that.
To get back to the point, one can’t even determine what it’s made of, this “constitution” parchment, because they have sealed it under glass patrolled by people wearing the black clothes of clergymen and nobles. It seems possible that, like ours, it consists of an animal, meaning the pelt of someone who, one time, feeling the warmth of sunlight, experienced the hunger for grass that guides human progress (de Marchi 2009, cited in Philippopoulos-Mihalopoulos 2013, 150). But get this: those dressed like clergymen and nobles, although they—yes—patrol the parchment itself, live humbly, on the outskirts of the city. They barely get any sleep, they have to wake up so early to get to the hall where the parchment is. The true nobles of this place, on the other hand—the ones who rule the corporations that distribute the encased bells (“phones”)—dress in rags by comparison.
OLYMPE: As I said, I’m not getting into the javelin business. Give these people a chance!
OLYMPE: Exactly, except that it’s not just about that particular parchment. This “constitutionalism” permeates other aspects of life. See, these people create their own personal constitutions. You know our Latin term, resūmere [to recover]? Well, a “resume” in this society governs who gets what and how much space she gets to take up. For some reason, they don’t bother preserving an original version of this thing, the “resume,” and although you can add to it, no one would dream of editing it. You would probably get stoned for that.
OLYMPE: No, I have never heard of an “amendment” to a resume. As I said, they don’t like modifications.
OLYMPE: That is unkind.
OLYMPE: Well, your unkindness points to what one of them calls, more generously, “anti-theatricality” (Peters 2022, 30). One way to think about it, if you wish, is as a recoil from the improvisations at the kernel of life (Velasco [undated], 3).
OLYMPE: Yes, I showed them our bestseller, and no, they didn’t get any pleasure out of what happened to the camel (Kusowski 2022, 157–161). I hesitated to bring it up, since my implication that they were the camel in this scenario felt too on-the-nose. But they didn’t get offended. They didn’t find him pathetic at all.
OLYMPE: They don’t want your pity, Robert! Look, apart from several grave issues, these people don’t have it so bad. And they do care about things other than parchment. They are even capable of art. Consider their system of personal bells. One of them let me look into the box containing hers, and a miracle greeted me. There was no visible church inside, just a brilliant field of white light containing one word: “search.” That’s it. “Search.” How beautiful is that?
GLOSS
The condition of possibility for this impossible source is Ada Kusowksi’s Vernacular Law (Cambridge 2022), a study of medieval French legal practices with profound implications. Focusing on a set of manuscripts composed by lay French jurists and anonymous writers between the mid-13th and early 14th centuries, Kusowski develops an account of the relationship between writing and social life that challenges a textbook story about the birth of what today goes by the name “customary law.” According to that story, writing chained the eternal present of orality to the written word, locking supple and shifting community practices into place through visual practices of codification. In contrast to evanescent spoken words, writing, as this story would have it, looks backward, controlling the future by disguising contingent forms of life as necessary rules of association.
But, as Kusowski painstakingly shows, the very sources drafted into the service of this narrative reveal a different picture entirely. For one thing, the oral culture the coutumiers supposedly helped to displace already included practices of writing and recordkeeping. For another, even as they transformed “custom” into a new field of knowledge, no two coutumiers were exactly alike. They guided their readers through thickets of convention in different, original ways that demonstrate creative license on the part of their authors. Further, rather than replicating Roman legal texts or providing scripts to lay readers, the coutumiers counsel their audiences in the art of deploying oral rhetoric themselves. In contrast to a uniform, collective voice, the coutumier manuscripts thus reflect a chorus of perspectives which, while they helped transform custom into a coherent field of knowledge, sounded very different chords in the process. The manuscripts on which they were recorded, moreover, were continually revised and recomposed. The coutumiers in Kusowski’s reading are thus paradoxical entities, a form of “unwritten writing” that “was written but did not have the fixity of writing” (Kusowski 152). They demonstrate a society bound not by allegiance to the written word, but, instead, by “a living law that was not pinned down through text” (Kusowski 269). I find this “living law” to be an extremely productive concept within and beyond Kusowski’s context. According to Kusowski, the dance of orality never did give way to a death march of written signs. Instead, writing and oral culture form a “continuum” in which practices of inscription were assimilated into oral culture, and vice versa (Kusowski 268). Among the many contributions of Kusowski’s subtle argument is its invitation to see the priority of Urtexts in our world, so laughable to the imaginary character of Olympe, not as grist for a formalist attitude that has obscured the lively differences animating the coutumiers. Instead, Kusowski frames the belief in a textual basis to human forms of life as one example of the—living—practice of foundationalism.
