CUSTOMARY LAW

General development

24 Custom was originally the most important of the sources of old European law, and in the following centuries too it played a significant part, particularly in northern France and the southern Netherlands, the regions of customary law.

countries the concentration was less radical, and the diversity of customs was reduced but not eliminated. In the south of France, the revived Roman law became the common basis of legal practice at a very early date. In the north, on the other hand, customs were more tenacious, although the prestige and influence of the Coutume de Paris led to a relative standardization of customary law, at least in the northern regions. In the southern Netherlands, the homologation of customs brought about the disappearance of many customs and a relative (essentially regional) unification of customary law.

There was also an increasing tendency to set customs down in writing. At first sight this is a contradiction in terms, because the qualities par excellence of custom are the adaptability, flexibility and fluidity with which it arises⁴ and disappears.

In the Netherlands, where the authorities were plainly influenced by the French example of the fifteenth century,⁵ Charles V decreed

⁴ The appearance of a custom was sometimes confirmed by judicial investigation: according to some medieval teaching, two judgments sufficed to prove the existence of a custom.

⁵ Ordonnance of Montil-Iez-Tours, promulgated by Charles VII in 1454; the text of the custom OfBurgundy had already been promulgated in 1459 by Duke Philip the Good. After a change of method, the official compilation of customs was carried out largely after 1497; and between 1500 and 1540 almost 600 customs, mostly from central and northern France, homologation in 1531.

In total 832 customs were reduced to writing and 96 were homologated. Since homologation was conducted effectively only from the second half of the sixteenth century, and since political circumstances made it difficult to carry out royal instructions in the northern provinces at that time, the vast majority of the homolo­gated customs are from the southern provinces.⁶ The programme of homologation aimed to improve legal certainty, and this aim was largely attained. Some of the compilations of customs were virtual codes, such as the (non-homologated) version of the Custom of Antwerp of 1608, which contains no fewer than 3,832 articles. But most were much more modest. To fill the gaps in customary law, the learned law (i.e. Roman and canon law) was declared compulsorily applicable, and this is what is meant by the supplementary role of the â€?written common law’. Even at the stage of compilation and revision, the learned law had invariably managed to influence the terminology of the texts, and sometimes the actual substance too. A further aim of homologation was unification of the law, but this objective was only very partially attained.

were set down in writing. The vogue for compilation was followed in the years 1555 to 1581 by a reform of customs. The reformed customs remained in force until the end of the ancien riginu. In the course of the seventeenth and eighteenth centuries very little new compilation was attempted.

⁶ Thus in Holland customs were not homologated and, in the seventeenth century, scholarship filled the gap by creating Roman-Dutch law. superimposed on local customs, while in Flanders and the Brabant a large number of different and independent customs persisted in the absence of a â€?common’ customary law at the provincial level? In spite of the abrogation of nearly 6oo customs, the Netherlands preserved about ιoo homologated customs, and more than 8oo written ones; homologation therefore did limit the fragmentation of law, but it also contributed to maintaining the diversity of customs up to the end of the ancien regime.

Custom became the subject of learned legal studies, which cer­tainly affected its original spontaneity. It was above all the homolo­gated customs which were subject to such studies; although the works of the legists were inspired primarily by the principles of Roman law in which they had been schooled, it was not beneath them to comment on this new �written law’ which had acquired the force of statute. On the continent compilations and accounts of local and regional customary law appeared in the thirteenth century. In the earliest works no trace of learned law is to be detected, but very soon university teaching was reflected - in degrees varying from one author to another — in the use of the learned law. The supple and the somewhat naive character of custom was inevitably lost when it was subjected to a scholarship based to a greater or lesser extent on Roman law.

The French �coutumiers’ of the Middle Ages

25 The most celebrated of the French customary works (coutumiers) of the thirteenth century is that of Philippe de Beaumanoir, the Coutumes de Beauvaisis, written about 1279-83.⁸ The author, an official of the royal courts, was a practitioner first and foremost, but had probably been educated at university. His clear and well- informed account deals with the customary law OfBeauvaisis as well as the customs OfVermandois and Paris. He also draws on case law,

’ In Flanders 227 customs were reduced to writing and 37 homologated; in Brabant and Limburg the figures were 124 and 8.

⁸ Modern edition by A. Salmon in 2 volumes, 1899-1900 (reprinted 1970), completed by a third volume: G. Hubrecht, Commentaire historique et juridique (Paris, 1974). P. Bonnet- Laborderie (ed.), Actes du colloque international Philippe de Beaumanoir et les Coutumes de Beauvaisis (1283-1983) (Beauvais, 1983). The work so well characterizes old medieval law that it was even translated IntoJapanese by Hiroshi Hawawa in 1971; there is great interest in western feudalism in Japan. in particular that of the Parlement de Paris, and on the learned law, both Roman and canon. Beaumanoir was the initiator of the genre and his attempt at formulating and at the same time systematizing the customary rules was fairly successful. His work was written in French and could be used in everyday legal practice. It helped to impart the terminology, principles, and legal doctrine of the learned law to a wide audience.

Two other important works on custom appeared at the end of the fourteenth century. The first dealt essentially with the Coutume de Paris, and the second with the customary law of the north. Jacques d’Ableiges, who was the king’s bailiff in various regions, was the author of a work completed about 1388 known as the Grand Coutumier de France.

Jean Boutillier was also a royal agent with duties in (among other places) Tournai, which was then a French royal burgh, and in which he was legal counsellor and magistrate. His Somme Rural, which probably dates from 1393-6, was conceived as an account of the customary law of the north of France and at the same time as an introduction to the learned law for the general reader without university education. The author’s intention to write a popularizing work emerges even from the title Somme rural, which suggests a general work accessible to those from rural backgrounds. The fact that the book was written in French at once sets it apart from contemporary learned treatises, in which the use of Latin was de rigueur. Boutillier used the sources of Roman and canon law, and case law familiar to him both from his own experience and from consulting the records of the superior courts of justice, especially the Parlement de Paris. This introduction to learned law in the vernacu­lar proved useful and popular. Since the customary law examined in BoutillieFs work was close to that of the Netherlands, it is not

Modern edition by E. Laboulaye and R. Dareste (Paris, 1868). surprising that it was equally successful there, and was soon printed there and translated into Dutch.¹⁰

French commentators of modem times

26 In the sixteenth century the tradition of Coutumiers continued. It culminated in the work of Charles Du Moulin (d. 1566), the most eminent learned commentator on French customary law. Du Mou­lin was expert in Roman law, to which he devoted several original works which attest his qualities as a Romanist." But he dedicated his main studies to customary law: his grand design was to set out from the principles of the Coutume de Paris and to arrive at the unification of French customary law. The significance of Du Mou­lin’s fundamental choice can be appreciated only by considering the relations between customary law and the ius commune in other countries in the same period. Germany and Scotland had opted for the introduction of learned law. In principle, this solution would have had the same advantages in France, for the legal techniques of learned law were without doubt superior to those of customary law, and in the southern territories of the kingdom the written law was generally used. Du Moulin none the less opposed the adoption of Roman law as the common law of France, yet he was convinced of the need for a unified French law and intended to base such a unification on the statutes and customs of the kingdom. The common French law was to be formed not on the basis of learned law (the European ius commune) but from the common store of French customs: consuetudines nostrae sunt ius commune (a phrase from his De Jeudis of 1539).¹²

'^o Editio princeps: Bruges, 1479 (numerous reprints); first Dutch edition: Delft, 1483 (also numerous reprints). In the absence of a modern critical edition, the preferred edition is that published at the hand of L. Charondas Ie Caron (Paris, 1603). On Boutillier, see G. van Dievoet, Jehan Boutillier en de Somme rural (Louvain, 1951); R. Feenstra, â€?La source du titre des droits royaux de la “Somme rural” de Boutillier^,, Reυue de Nord 40 (1958), 235-44; R. Feenstra and M. Duynstee, â€?Les “cas brief selon Ie droit civil”. Annexe de la Somme rural de Jean Boutillier empruntee aux “Casus legum” des Decretales’, Revue dⁱhistoire du droit 51 (1983)> 3⅛-4∞∙

" See especially works on the law of obligations, which are the basis of some doctrines of the Code civil (see articles 1217-25 and its theory of divisible and indivisible obligations). J.-L. Thireau, �Aux origines des articles 1217 a 1225 du Code civil: Fextricatio labyrinthi dividui et individui de Charlesdu Moulin’, Revue d^,histoire du droit 15 (1938), 51-109. J.-L. Thireau, Charles du Moulin (1500-66). Etude sur les sources, la mithode, les idies politiques et economiques d’un juriste de la Renaissance (Geneva, 1980).

” In the same vein see Oratio de concordia et unione consuetudinum Francie (posthumous edition, I576)∙

Du Moulin’s reservations about Roman law were of course essentially political: Roman law was the â€?imperial’ law, and in Du Moulin’s day the Holy Roman Empire under the Habsburgs was the most redoubtable enemy of France. To this objection of principle were added legal objections: customs were admittedly imperfect, but Roman law itself could lay no claim to perfection. The work of the Humanist School had made it possible to see that the Corpus iuris was a product of human history, and lawyers were now all the more conscious of its defects. The erudite humanists had also shown how much had been misunderstood by the medieval commentators, who were still highly authoritative in the sixteenth century. Bude made a list of these misunderstandings in his Annotationes in XXIV Iibros Pandectarum (1508). Donellus (d. 1591), in his Commentarii de iure civili of 1589-90, even expressed serious reservations about the quality of Justinian’s compilations. And if Roman law was not the perfect, intrinsically superior expression of universal reason, why should the heritage of French law be sacrificed to it? Another French jurist, Franςois Hotman {d. 1590), a Huguenot and opponent of absolu­tism, spoke out to the same effect. His Anti Tribonianum sive dissertatio de studio Iegum of 1567 is both a virulent attack on Roman law, and a plea in favour of a unification of French law based on national customs, studied with the exactness of the learned lawyer, and enriched by medieval legal doctrine.

Du Moulin’s main work was his commentary on the Coutume de Paris. The text of the Coutume had been published in 1510, and the significance of Du Moulin’s work is illustrated by the fact that the main modifications and corrections made at the time of the �reform’ of the Coutume in 1580 derived from his critical commentary. Du Moulin also made Notae solemnes (1557) on the custom of Paris and elsewhere. He still hoped for the unification of French customary law, but his hope was never fulfilled.

Among other renowned learned commentators on French customs should be mentioned Bernard d’Argentre (d. 1590), the commen­tator on the custom of Brittany; Guy Coquille (d. 1603), who commented on the custom of the Nivernais¹³ and wrote an Institution au droict des Francois (1607), in which he expounded the general principles of French law; and Antoine Loisel (d. 1617), author of the

*3 Coutumes du pays et duche de Nivemais, avec les annotations et Commentaires de M. Gui CoquUle (Paris, 1605).

very influential Institutes Coutumieres of 1607.¹⁴ Loisel attempted to separate and order systematically the subject-matter and elements common to the various customs, and to this end he referred principally to the Coutume de Paris.

If the work of these authors on custom illustrates how much progress had been made since the first sketches and drafts of the thirteenth century, it also shows how great a contribution to customary literature had been made, over the centuries, by learning based on the Corpus iuris.

Commentators in the Netherlands

27 In the old Netherlands, particularly the old county of Flanders, local customary law was also set down in coutumiers (in Dutch, rechtsboeken or â€?books of law’). The anonymous coutumier known as Facet deals with the custom of St Amand-en-Pevele (in the chate- Iainry of Douai) and dates from 1265-71. The original version showed no Roman law influence, in contrast to the additions of the fourteenth and fifteenth centuries.¹5 The author of the coutumier of Lille, however, is known: it was the secretary of the city, Roisin. Lille was already important in the Middle Ages, and this work, which is known as the livre Roisin, was composed around 1280 (the oldest parts date from 1267). It was based entirely on customary law, and learned law appeared only in additions made in the following century.¹⁶ Similarly, two anonymous coutumiers from the small Flemish town of Aardenburg are devoid of learned elements: Wette- Iijchede and Tale en Wedertale.'¹ These works closely follow court practice and procedure: the summons and the defences of the parties or their advocates (Iaelmannen) are often repeated verbatim, giving a very vivid picture of the practice of the time. The best-known of the Dutch coutumiers, the Rechtsboek van Den Briel, by Jan Matthijssen (d. 1423), a town clerk, also belongs to the tradition of coutumiers without Roman law elements. Matthijssen’s work is remarkable above all for

^,' Cf. M. Reulos, Elude sur Γ esprit, les sources et la methode des Institutes Coutumiires d’Antoine Loisel (Paris, 1935).

^,s Modern edition by E. M. Meijers and J. J. Salverda de Grave, Les Iois et coutumes de Saint- Amand (Harlem, 1934).

^,6 Modern edition: R. Monier (Lille, 1932).

0 Edited by G. A. Vorsterman van Oyen (The Hague, 1892). its complete and exact description of both substantive and proce­dural aspects of civil and criminal law.¹⁸

From the fifteenth century, the learned law is to be found in the Dutch Coutumiers, among them those of W. Van der Tanerijen and Ph. Wielant. Willem Van der Tanerijen (d. 1499) from Antwerp was educated at university, and followed a career as an official and magistrate, especially as counsellor at the Council of Brabant and the Great Council of Mary of Burgundy. Owing to his duties at the Council of Brabant, he had at his disposal the means for describing Brabant customary law in his Boec van der Ioopender Practijken der Raidtcameren van Brabant (1474-6, the last edition dating from 1496). In it Van der Tanerijen pleaded for the diffusion of Roman law, and drew on numerous Roman elements in his account of Brabant law. Some chapters, on obligations for instance, look more like a treatise on Roman law. In the absence of detailed historical studies, it is difficult to tell whether the practice of the Council of Brabant was in fact so strongly impregnated with the Corpus iuris as Van der Tanerijen suggests. It is in any case astonishing that this vast and very well-structured work does not seem to have been widely available; until a modern scholarly edition of it was produced, it remained virtually unknown.'^

The work of Philippe Wielant (rf. 1520) of Ghent met with greater success. Like Van der Tanerijen, Wielant was university-educated and had a career (among other things) as a magistrate in the Parlement of Malines (1473), Great Council (1477), Council of Flanders (1482) and finally the Great Council of Malines (1504). His work, however, is closer to provincial customary law, and he managed to identify and formulate its common features better than his contemporaries. Wielant’s great ambition was to produce an account of contemporary Flemish criminal and civil law, but to do so without turning his back on his university education in Roman law. This aim emerges above all from the structure of his work, from the terminology employed, and from his approach to procedure. His two principal works were Practijke criminele, probably written about 1508-10 and devoted to criminal law and procedure,²⁰ and Practijke civile (1508-19), devoted to civil law and particularly to civil

^,8 Edited by J. A. Fruin and M. S. Pols (The Hague, 1880).

’’ Edited by E. I. Strubbe (Brussels, 1952). On Van der Tanerijen, see.Nationaal Biografisch Woordenboek v (1972), col. 877-81.

“ Edited by A. Orts (Ghent, 1872). procedure.²¹ Wielant shows himself to be neither in favour of abolishing customary law nor blind to the European diffusion of the learned law. His work aims at a synthesis which preserves the fundamental position of customary law, while assimilating the doctrinal advances of academic law, especially of the Bartolist School. These qualities assured Wielant’s works, which were written in Dutch, a wide audience in legal circles, in which few practitioners were sufficiently educated to embark on large Latin commentaries, but in which the learned law could no longer be ignored. Wielant’s work was typical of the general direction of the law of the Nether­lands during the sixteenth century: customary law was maintained, but at the same time the legal order was open to the contributions of the European ius commune. Through translations into French, Ger­man and (in particular) Latin, Wielant’s work obtained a great circulation beyond the Netherlands₁Joos de Damhouder {d. 1581), a lawyer from Bruges, published Latin translations of Wielant’s two principal works {Praxis rerum criminalium and Praxis rerum civilium) under his own name, without mentioning that of Wielant.²² He also wrote a treatise (all his own work, this time) on tutelage and curators.²^

In the seventeenth and eighteenth centuries, several lawyers in the southern Netherlands wrote treatises or commentaries on the law in force in their provinces. These works were largely based on customs, ordinances and case law, although they were still strongly infused with Roman law. Works deserving mention in this period are those of Franςois van der Zype {d. 1650), author of the Notitiajuris belgici and works on canon law which had an international circulation; Antoon Anselmo {d. 1668) author {inter alia) of the Codtx Belgicus-, Georges de Ghewiet {d. 1745), author of a Precis des Institutions du droit belgique and Institutions du droit belgique-, Jean-Baptiste Verlooy {d.

≈^, Editio princeps, Antwerp, 1558. The first edition that does justice to Wielant’s work is that of the advocate to the Great Council, A. van Tsestich (reprinted, with an introduction, by E. I. Strubbe, Amsterdam, 1968). Wielant also produced the Recueil des antiquiUs de Flcmdre, an essay Ofinstitutional history, and a study on Flemish feudal law. In 1503 he devoted a work to the law of the city of Haarlem. D. van den Auweele, G. Tournoy and J. Monballyu, â€?De bibliotheek van Mr Filips Wielant (1483)’ in Lias, sources and documents relating to the early modem history of ideas, 8 (Amsterdam, 1981), 145-87.

'^,' For the Praxis rerum criminalium Damhouder made substantial additions of his own, which was not the case in his edition of the Praxis rerum civilium.

” See Ffationaal Biografisch Woordenboek v (1972), col. 1009-19. On Damhouder, ibid., col. 273­84, and E. I. Strubbe, �Joos de Damhouder als criminalist’, Revue d^,histoire du droit 38 (1970), 1-65.

1797), author of the Codex Brabanticus, an attempt to rationalize and codify the legislation in force in the Brabant, under alphabetically ordered rubrics. He made use of scholarship and also of customary law in his systematization; and his work was the more useful (as well as the more difficult to complete) as the sources studied and ordered in it extended over seven centuries.²+

Northern Netherlands: customary law and Roman-Dutch law

28 There was no shortage of works on regional customs in the United Provinces. But in Holland, by far the most important province, the development was unique and remarkable. Customs had not been homologated there, and so Roman law had greater influence, but traditional customary law was not superseded alto­gether. The result was a synthesis of Roman law (primarily) and Dutch customary law (secondarily). Until the end of the ancien regime, this synthesis had a major influence on the law of the Republic; and nowadays it still subsists in South Africa. The creator of this synthesis, which he outlined in his Inleidinge tot de Hollandsche Rechtsgeleertheyd (1620, first published 1631), was Hugo de Groot (Grotius), the most eminent jurist the Netherlands have produced in modern times, best known as the leading figure in the Natural Law School.²^