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Juristic Imagination and the Composition of Customary Law in Thirteenth-Century France

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Juristic Imagination and the Composition of Customary Law in Thirteenth-Century France Writing Custom: Juristic Imagination and the Composition of Customary Law in Thirteenth-Century France A Dissertation Presented to the Faculty of the Graduate School of Cornell University in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Ada Maria Kuskowski May 2013 © 2013 Ada Maria Kuskowski Writing Custom: Juristic Imagination and the Composition of Customary Law in Thirteenth-Century France Ada Maria Kuskowski, PhD Cornell University 2013 This project presents a cultural history of legal knowledge. It examines the first move to set a previously oral custom into writing in Northern France during the thirteenth century. This was a revolutionary moment when law moved from small communities literate in Latin and spread amongst lay jurists who thought and wrote in the vernacular, the language in which law was actually lived and performed. Written custom was a creative practice, not formalistic as is commonly assumed. This combination of the new technology of writing with the social choice of the vernacular permitted previously oral and performed law to be theorized and captured in text which, in turn, permitted previously local experiences to be shared and transmitted though the circulation of texts. By imagining a literature devoted to custom the lay jurists who started writing custom created the content and contours of a new intellectual discipline: they separated custom from general community practice and created customary law. BIBLIOGRAPHICAL SKETCH Ms. Kuskowski completed this dissertation at Cornell University, where she specialized in medieval history and legal history. She also holds Bachelor of Common Law and Bachelor of Civil Law degrees from McGill University Faculty of Law, and a Bachelor of Arts from McGill University. For my parents, Magdalena and Thaddeus iii ACKNOWLEDGMENTS Dissertations are known for their solitary nature yet they are also the products of what can best be described as an entire village. I am honored to have received so much from so many and will endeavor to pay this debt forward. I had the fortune of a wonderful dissertation committee throughout my graduate studies. They gave their time and effort in all sorts of guises, from discussing ideas and editing my work to advice and support more generally. I owe the deepest gratitude to Paul Hyams, my dissertation advisor, mentor and friend. As I engaged in the process of discovery through the labyrinthine mazes of medieval law, Paul listened to tens of dissertation ideas patiently as he waited for me to settle on one. Once settled, he provided guidance, challenge and encouragement while also giving me the freedom to pursue ideas on my own. I cannot imagine completing the long dissertation process without Paul’s academic guidance, as well as his kindness and understanding on a couple of occasions, and feel truly fortunate to have had him as my advisor. I also owe great thanks to Eric Rebillard, Bernadette Meyler and Duane Corpis. I learned so much from their approaches and strengths, and hope that I have done so well enough that it is reflected in my work. I learned from Eric how to read text closely, to think in exact terms rather than generalize or make assumptions, and to use theory in service of the sources rather than to impose theories upon the sources. Bernie showed me how to think of law beyond its traditional categories and to see it in different guises in different subjects in the humanities, most notably to see it as a form of literature and as a way of thinking. Duane taught me how to think more deeply and more broadly about the concepts that I use and to ask questions of my work from different angles and approaches, and to try to make connections beyond the apparent ones. There were many other people and groups across Cornell who read my work, gave advice, discussed ideas and provided support. Many faculty members in History and in Medieval Studies also took the time to either read or discuss my work, and in this regard I would like especially to thank Oren Falk, Holly Case, Rachel Weil, Andy Galloway, and Tom Hill. The European History Colloquium was such a useful forum in which to present and discuss one’s work and I am very grateful to those who organized it as well as those who attended and commented on my work when I presented. I would also like to thank Virginia Cole for her help at the library, and Barb Donnell in the History Office and Shirley Weaver in Graduate Studies for making the mechanics of it all work. I would especially like to say how much I appreciate the amazing friends and colleagues whose presence, humor and support—academic, emotional, metaphysical—made my time at Cornell wonderful and will always have me thinking about it with nostalgia. Thank you, Claudine Ang, Eliza Buhrer, Abi Fisher, Taran Kang, Yael Manes, Thomas McSweeney, Marie Muschalek, Ryan Plumley, Guillaume Ratel, amongst others. iv I have also been fortunate enough to benefit from a number of fellowships as I was completing my dissertation. I would like to thank NYU Law School for awarding me the Golieb Fellowship in Legal History in 2011-12, Daniel Hulsebosch and Bill Nelson for their mentorship and advice on my work, and all the participants in the Legal History Colloquium for their comments and ideas. I would also like to thank McGill University’s Faculty of Law for having me as a visiting scholar in Fall 2010 and for letting me teach a course in Medieval Law—it is remarkable how much one can learn about a subject one feels one knows when one is teaching it. I am also grateful to have received a Mellon Summer Institute Grant from Newberry Library to study palaeography (2012), the Theodor Mommsen Fellowship (Autumn 2009, Spring 2010) and Sage Fellowship (2005-6) for semester support, and the Mario Einaudi International Research Grant and Michele Sicca Pre-Dissertation Research Grant (both Summer 2009) to conduct research in Paris. I have several earlier intellectual debts. The earliest is to my undergraduate History professors at McGill University whose wonderful classes lead me from dilettante to devoted aficionado in my interest in history. I would especially like to thank Beth Digeser— I had a road-to-Damascus moment in law school and ran into her office to ask her how one became a historian, and the advice she gave was the beginning of a life-long pursuit. I also owe great thanks to those professors in law school who permitted me to develop my interest in legal history. In this regard I owe the greatest thanks to Blaine Baker and Nicholas Kasirer, who oversaw slightly unorthodox research projects for the law-school setting, wrote the letters that got me into graduate school, and encouraged an supported me in many other ways. I also offer a nod in gratitude to the chain of earlier historians, medievalists, anthropologists and legal scholars, only some of whom are mentioned in the following pages, who opened up my mind and whose invisible hands also guided my work. And now at the end, we return to the beginning. My family has gone through this process with me in so many ways. My sister Ania knows so much more about medieval law than someone in marketing ever should because she kindly read and edited so much of my work— best little sister ever. I would also like to thank my great friends and honorary family, Kasia Biniecki and Martin Labuda, for their constant encouragement. Moja kochana babi, ja tobie tesz bardzo dzienkuje że zawsze tak bardzo wieżyłaś w mnie. Words may not be enough to express the gratitude that I owe my parents for the love and support they have given me throughout the years. Anything good that I am is largely a result of their effort, and this dissertation is dedicated to them. v TABLE OF CONTENTS INTRODUCTION……………………………………………………… 1 CHAPTER I: Historical Background…………………………………… 42 CHAPTER II: The Life of Written Custom…………………………….. 92 CHAPTER III: Custom as Conversation……………………………….. 135 CHAPTER IV: Creative Citation………………………………………. 183 CHAPTER V: Crafting Common Law in the Middle Ages………….... 239 CONCLUSION……………………………………………….……….. 276 APPENDIX…………………………………………………………….. 289 BIBLIOGRAPHY……………………………………………………... 297 vi Introduction This study presents a history of the construction and transmission of knowledge and the resulting changes in thought and culture. The story begins with the idea that a certain type of knowledge has become important and complex enough to commemorate in writing, and with the composition of books devoted to celebrating that idea. The new books in question sought to bring together two cultures that were largely separate previously—the culture of action and practice of everyday life and a culture of conceptual thinking and of written text. These books were the vernacular coutumiers, thirteenth-century texts composed in Northern France that sought to give literary form to the previously unwritten and untheorized customs and procedures of the secular courts.1 The coutumiers authors not only capitalized on contemporary social and cultural currents but also sought to be the agents of social change. This story thus begins with books but also describes a cultural revolution. Modern Western law is so deeply imbedded in textuality that the medieval conceptual revolution that brought together legal practice, written rules and public enforcement can be overlooked. Why is this the case? An important part of the answer is the bifurcated approaches scholars have used to evaluate law and dispute resolution in this period. Scholars have used anthropological theory to examine dispute resolution in the twelfth century and earlier in order to understand how decentralized, informal, unwritten, and performative legal cultures worked. On the other hand, the second half of thirteenth century onward saw a great acceleration in the development of formalized courts, the use of written record, increasing professionalization of personnel and its 1 Secular or lay courts as opposed to ecclesiastical church courts.
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