France: Pays de droit coutumier∖ Local Laws and Royal Law; The Great Coutumiers

In the Middle Ages, there were a number of political entities of various sorts and sizes in the vast area of Europe that centered on what is today France and that projected into Switzerland to the southeast and Flanders (Belgium) to the northeast.

There are details in the overall situation in French lands that are difficult to follow and reconstruct, but the general lines of develop­ment can readily be summarized. Above all, there was a distinction between northern and southern lands, which were divided, with some deviation, by a sinuous line following the forty-eighth parallel. As early as the twelfth and thirteenth centuries (clearly so from the mid-thirteenth century), northern French lands werc/ws de droit cou- tumιer and the lands of the south pays de droit ecrit. In the north, Ro­man law was not the “law” that had the force of positive law but was valid only if a judge wanted to take it into account as ratio scripta for its power of suggestion and as a “reasonable” aid in making a difficult judicial decision when the law was in doubt; in the south, Roman law was positive law and the “written law” to be taken into account in all circumstances, although in its practical application certain specific priorities pertained.

The split between the two parts of France was accentuated by the famous decretal, Super speculam, published by Pope Honorius III. This decretal stipulated that Roman law was no longer to be taught in Paris, which provided the king of France with a way to depreciate the law of the empire (whose prominent opponent he was), evoking a principle of full sovereignty later expressed as “rex superiorem non recognoscens in regno suo est imperator” (a king who recognizes no superior is emperor in his own kingdom).

The two portions of France and the independent lands contiguous with them thus came to have dissimilar experiences: custom played a fundamental role in the northern regions (pc∖e,pays de droit coutumier) but a more modest role in southern lands (the pays de droit ecrit). Wherever they were located, major cities always had their own laws as a projection and proof of their autonomy.

In the pays de droit coutumιer, municipal law came in two forms, either as a written version of customary norms (coutumes) or as nor­mative orders of a different sort (chartes de franchises') added to local customary norms for the purpose of integrating or correcting cus­tom, but always distinct from it.

Independent of the coutumes there were a great many normative initiatives that, because they regarded the internal life of the urban community, furnished a ius proprium of the first (or lower) level. The legislation willed and promulgated by the cities—in general, chartes de franchises—was designated as chartes de communes, chartes de con- sulats, and privileges urbains, according to the origin and particular ju­ridical title of each document. For example, we find chartes de com­munes in Beauvais in 1182, in Laon between 1189 and 1190, in Amiens in 1190, and somewhat later in Lille (1286) and Rouen (1382); Nimes (1254) and Bordeaux (1261) had privileges. One demesnial city after an­other had its charter. In Flanders, city charters were often backed by particularly strong efforts on the part of the municipal governments to claim and guarantee the city’s autonomy.

The situation was radically different in the vast territories subjected to seigniory, feudal and nonfeudal. There the initiative for providing a local legal system to the inhabitants of a land came not from the local communities but from the lord, who from time to time made provisions, according to need, his own overriding interests, and his spirit of Christian charity (if he had any).

The local coutumes, the chartes de franchises, the privileges, and the atours might on occasion be included within or fused with the great regional and multiregional coutumes. Thus, by the phenomenon of the “regionalization” of customary norms, the most important cou­tumes were disseminated throughout broad geographical zones much larger than any one city’s territory. This is what happened with the Coutumes of Normandy, Brittany, Touraine, Anjou, and Burgundy.

These sets of local norms stood in contrast to the sovereign’s ordon- nances, which at times limited and constrained local law but at other times supplemented and enriched it. In France as in the Regnum Sici- Iiae_y the kings were active legislators in certain specific sectors, ac­cording to circumstance, need, and opportunity. Witchcraft and her­esy, for example, were targeted in the Ordonnances of Paris of 1228; Jews figured in an Ordonnance of 1230 “pensata ad hoc utilitate totius reghi” (considered for the utility of the entire kingdom);^{[98] [99] the life of local communities was regulated by a Reformation de moeurs dans la Languedoc et IaLanguedoil of 1254; dueling and court testimony were the subject of an ordonnance of 1258; relations between the crown and the municipal administrations and the reorganization of the latter were the object of such measures as the Ordonnance de !administration municipale de bonnes villes of 1256—61; the sphere of action guaranteed to craft and trade corporations was treated in measures such as the later Ordonnance de Chartres of 1467.}

In the interest of putting order into the great variety of measures from different times and places, the contents of the great regional cou- tumes and the royal Ordonnances were collected and reelaborated in compilations usually known as Coutumiers.

The most important compilation and reelaboration, however, was the Coutumier known as the Coutumes de Clermont en Beauvaisis. Its author was a cultivated judge who, in his youth, had also been a poet and a writer and who was active in the court of the count of Cler­mont, brother to the king of France, Louis IX. The judge’s name was Philippe de Beaumanoir, and the work, composed in 1283, was also known as the Coutumes de Beaumanoirf⁷ Philippe did more than sim­ply write down customary norms: as he reworked and noted down local norms and principles, he made selections of their contents and, inevitably, he reshaped them, making broad use of a cultural back­ground based in a knowledge and study of Roman law and canon law.

The Coutumes de Beaumanoir were broadly enforced in the pays de droit coutumier of northern France. Hence, even in those lands, the ius commune had a significant impact, and full use was made of its cultural valences, its reasoning mechanisms, and its general principles, as well as many of its specific solutions.

Another compilation, the EtMissement de Saint-Louis (1272—73), was a reworking and a condensation both of large portions of impor­tant Coutumes (those of Orleans, Touraine, and Anjou) and of two sets of royal ordonnances. Thus, once again, an initiative was launched to put order into a congeries of multiple and discordant normative sources, but with the further aim of contributing to the legislative unity and the sovereignty of the kingdom—not so much in the name and under the sign of a Roman and canon ius commune (thrust aside because it was the positive law of the empire) as in the name of a na­tional law that came out of the fusion of ancient traditions, popular and local customary norms, and more recent provisions willed by the sovereign and marked with his supreme authority.

This was a tendency that spread geographically and continued in time. Among the other great coutumiers, we should recall at least the Ancien coutumier de Champagne (late thirteenth century), the Tres an- cienne coutume de Bretagne (1312-ca. 1325), the Stylus curie Parlamenti of Guillaume Du Breuil (ca. 1330), the Grand coutumier de France of Jacques d’Ableiges (ca. 1388), and the Vieux coutumier de Poitou (ca. ι÷i7)∙

The Pays de droit ecrit: Municipal Laws, Intermediate Laws, Royal Law

In the pays de droit ecrit of the south of France, cities actively com­piled their laws in ways that made the resulting documents resemble the statuta of the Italian communes. Many cities were prominent in this movement: besides Montpellier, there were the Consuetudines of Toulouse confirmed by Philip III in 1283 and the Franchises et coutumes of Besanςon of 1290; Lyons had its Libertates of 1320; Avignon had Statutaproborum virorum in 1243; Arles added to its older Carta con­sultatus of the twelfth century a later Statuta et leges municipales (1162— 1202); Aix-en-Provence had its Constitutiones of 1234-45 and the later Statuta facta post pacem, drawn up in 1268 and enlarged and revised until 1480.

On the second level the ius proprium was made up either of regional ordonnances in force within a single county or duchy or of royal ordon- nances promulgated for the entire realm of France, as in the case of the 1230 ordonnance concerning Jews. Among the Ordonnances of counties and duchies, we might note those of Franche Comte (the capital of which was Dole) on the organization of justice and legal procedures (1386) and on the “burghers’ rights” (1393); those of Savoy (capital Chambery) and part of Piedmont, discussed above, which ranged from the Statuta of Count Pietro II of 1264-65 to the Decreta or Statuta Sabaudie of Duke Amedeo VIII of 1430; those of the county ofProvence (capital Arles), the Statuta “Super officialibus” of Charles I of Anjou of 1245 and after.

Unlike the pays de droit Coutumier, these territories maintained the principle that the Roman and canon law must also be held valid as positive law to which a judge could and should have recourse when he could find no applicable norm in the royal law, the local statuta, or the city or regional coutumes. They also differed in that the normative contents of the customary laws derived from a tradition of acquain­tance with and use of Roman law that could be traced back to the fifth and sixth centuries—thus, in part, to Roman law of the Theodo- sian Code. For this reason, the dispositions in the statutes were often similar in content to Roman and canon law.

Finally, famous schools of Roman law were concentrated in the pays de droit ecrit. Montpellier, from the twelfth century, and Tou­louse were highly famed as learned cities, and in their schools, as in Italy, only the laws of Justinian and of the church were studied. Cultural exchanges with Italy were extremely frequent, thanks both to Italian professors who taught in Montpellier (as did Placentinus, d. 1194) and to French students who studied in Italy—especially in Bologna, where there was a sizable contingent of students from Provence, as attested by one of the few collegia for students, founded in 1257 by a Bolognese professor of canon law, Zoen Tencararius, after he had become bishop of Avignon.

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