Vernacular Law — Kuskowski
By Ada Kuskowski | Published on September 9, 2023
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This book is divided into three parts. The first part contextualizes the coutumiers and their authors in the legal landscape of thirteenth- century northern France in three ways. I contextualize them within the struggle to define custom from late antiquity up to the time of the first coutumiers and discuss precedents for written secular law before the coutumiers (Chapter 1). I then examine the predominant choice of the first coutumier authors to write in the vernacular and, to the extent that they can be discerned, their perceptions of laymen who participated in lay courts (Chapter 2).
Unwritten law, or ius non scriptum, was a prominent definition of custom in the later medieval period developed especially in learned circles. Though ‘written custom’ should be acontradiction, this was unevenly perceived. Unlike the authors of the Bracton treatise in England, for instance, the coutumier authors did not seek to understand or legitimate their writing of custom within this learned framework. Those coutumier authors who addressed the question of writtenness viewed the idea of ‘written custom’ as unproblematic. Instead, they saw writtenness and its lack through a practical lens, as an aspect of custom’s potential to be retained in memory. This does not mean they viewed written custom as ‘fixed’. Writing in a time of fundamental legal change, they understood that even the custom expressed in written text was mutable. While writing custom could help to keep it in memory, it was potentially changeable in future versions of the text (Chapter 3).
The second part extends the argument about the development of vernacular law by looking at issues of jurisdiction and authority.The coutumiers expose real anxieties about the boundaries of power. Expressed either tacitly or explicitly, these anxieties appeared in concerns over jurisdiction, and especially ecclesiastical jurisdiction (Chapter 4). In contrast to legal histories that usually approach the issue of authority in written custom by examining the reliance on and influence of Roman law, I look instead at Roman law within the general use of sources and their associated citation practices in order see what the authors of customary law themselves counted as authorities (Chapter 5). Roman law was certainly an important source for some coutumiers, but rather than treat it reverentially as an authority, their authors used Roman law to build something new, lay, customary, and vernacular. The question, then, is not so much about the influence of Roman law as it is about the agency of coutumier authors who customized something different out of this as well as other sources.
As the third part of this book contends, ‘vernacular law’ was not only law expressed in a vernacular language but also a distinct conceptualization of law that itself created new possibilities for legal thought. The three final chapters explore these possibilities. I begin with the relationshipbetween the coutumiers as texts that describe custom and custom as it is reflected in other remaining records of practice (Chapter 6). I demonstrate how the coutumiers represent practice differently from other contemporary records of practice and how, in part, their authors used what they saw in practice to extract principles and articulate norms. By offering this form of generalization, the coutumier authors helped transform ‘custom’ into ‘customary law’. I argue that the goal of these legal texts was to change patterns of thought and teach lay people a set of ideas and skills that would permit them to perform convincingly in lay court (Chapter 7). The last chapter then examines the larger effect of written custom on legal culture. The new technology of writing combined with the social choice of the vernacular permitted customary legal ideas to be transmitted andshared outside their local setting. This increased circulation of ideas was a component setting the stage for thedevelopment of a French ‘common law’ (Chapter 8).
