Oral Customs and Written Cases in the Coutumes de Beauvaisis of Philippe de Beaumanoir
Philippe de Beaumanoir¡¯s Coutumes de Beauvaisis, written in 1283 at the end of his tenure as a bailli of Clermont, enjoys a privileged position in French legal history. Considered one of the best early customaries and the first to include cases, his work is a treasure of customary practices studied by legal historians and quoted by literary scholars of the epic, romance, and even courtly lyric (Bloch, Maddox, Mickel). For some time, it was assumed that Beaumanoir was also the author of the romances, Jehan et Blonde and La Manekine, a few other courtly works, and the moral tale, ¡°La Folle Largesse.¡± If we are to accept, however, the opinions of many scholars at the septuacentennial celebration of the Coutumes held in Beauvais, those works were not authored by the famous jurist, but by his father, Philippe de Remy, who had also served as a jurist (Bautier, Bourgain, Carolus-Barr¨¦, Marchello-Nizia, Monfrin). Although it is now accepted that Beaumanoir wrote only the Coutumes, his legal writing has significance well beyond the law. It contributes to two discussions of medieval discourse¡ªthe complex interplay of orality and literacy in the thirteenth century and the relationship between customary law and narrative.
The Coutumes de Beauvaisis offers a glimpse into a transitional period when methods of proof and power structures were undergoing significant change as judicial proceedings moved from the oral culture¡¯s dependence on sworn oaths and judicial combat to inquests, juries, and the authority of written law (Clanchy, Stock). Just as modern justice has been changed by electronic and bio-technologies, the judicial system of Beaumanoir¡¯s time was changed, in part, by the powerful technology of writing used in an expanding royal bureaucracy.
In writing down the customs of Clermont, Beaumanoir is motivated by lofty goals¡ªspiritual, political, and historical ones. He acknowledges God¡¯s commandment that we love our neighbor as ourselves, and he wants to please Count Robert, son of Saint Louis, by writing a book that will allow his vassals and the common folk to live peaceably together. Lastly, he expresses his vision of the historical value of his work when he asserts that people should remember the customs of their districts. He records the customs, as he says,
so that his [Robert¡¯s] vassals and the common people can live in peace under his rule, and so that by this teaching the tricksters and dealers in sharp practice may all be revealed in their sharp practice and trickery, and thrust down by the law and justice of the count. (sec. 3)
If it is fairly clear why Beaumanoir wanted to record customs that had previously belonged to the oral culture, it is less clear whether he was aware of a basic contradiction in his enterprise. What had reflected an oral, popular and consensual system of making judgments becomes a vernacular written record that potentially assumes a new character similar to the written tradition of Roman-canonical law if, as Stock maintains, committing them to writing, changed the nature of customs, ¡°from popular consent to the power to decree¡± (Implications 56). Indeed, it is accepted that literacy motivated the move away from the judicium dei to ¡°literate, administrative, instrumentally rational, constitutional¡± practices, as Stock has also said (Implications 33). He does remind us, however, that although writing is the winner, the mutual influences of the oral and written cultures followed many models, progressed both synchronically and diachronically, and moved at different velocities (Implications 34).
If we emphasize only how literacy helped the law become more ¡°instrumentally rational and constitutional¡± to repeat Stock¡¯s terms, we risk overlooking how the oral culture as expressed in customary law and its methods of judgment persisted. Studies of legal issues in literary texts have tended to emphasize a simple chronological progression from old feudal patterns of justice to the more objective methods of proof, such as the inquest, without seeing, as Stock has said in Listening for the Text,
both oral and written traditions operating simultaneously . . . sometimes working together, but more often in separate zones, such as oral custom and written law. (19)
I hope to demonstrate the intersections of the two zones in Beaumanoir¡¯s work by addressing two points¡ªhis use of the term droit commun and his inclusion of cases.
Customary thinkers, so to speak, used writing only as an aide-m¨¦moire to create a ¡°how-to-do¡± book about court procedures and judgments, but they and their courts did not abandon many features of the oral culture¡¯s way of making decisions through the reasoning powers of lay judges and assemblies of ¡°good¡± men or juries who were not trained in written law. Committing customs to writing was thus a paradox, and I believe that Beaumanoir¡¯s customary is a good example of several features of the paradox. It attempts to describe a system and laws that had functioned until his time largely through oral language. To teach those who were to follow about administering the law, the customs were put in writing. Yet, even though it is written down, this work, like other customaries of the period, is not to be confused with the ¡°written law,¡± a term reserved for the learned Roman-canonical legal tradition. Furthermore, since his is the first customary to include cases, a question has been raised about the status of these narratives. Are they mere records of events, illustrations of a point, or do they constitute precedent? The answer influences whether we are to read Beaumanoir¡¯s work as a law book or a text on the law.
His use of the term droit commun is one of several ambiguities, and scholars have long debated whether Beaumanoir meant a certain kind of law or whether it was a question of sphere of influence. As Akehurst says,
It has been asserted that by this expression Beaumanoir meant Roman law, as incorporated into customary law or royal ordinances; another interpretation is that droit commun is the law of a wider area of jurisdiction than that of local customs. (xxiii)
But Akehurst does not pursue the point himself, leaving it, as he says, for the readers of his translation to judge for themselves by the context.
In his preface, Beaumanoir mentions that his record of customs is supported by,
judgments which have been made in our time in the said county of Clermont; and another part by well-known usages and well-known customs habitually followed and customary for a long time without challenge; and another part . . . will be confirmed by the judgments of neighboring castellanies; and another part by the law which is common to all in the kingdom of France. (sec. 6; my emphasis)
¡°Common¡± here does not necessarily suggest anything more than ¡°shared,¡± and if this were an isolated use there would be little to discuss. As he continues his text, however, he uses the expression droit commun some seventeen times without elaborating on its meaning.
Some commentators have seen in this first citation a reference to royal ordinances. Salmon, who edited the text in 1899, presents this passage as ¡°le droit qui est commun ¨¤ tous ou roiaume de France,¡± whereas, in the 1842 edition, Beugnot used the term ¡°coutumes de France¡± in this context, rather than roiaume. According to Petot in an excellent discussion of common law in Beaumanoir, the word roiaume is actually found in more manuscripts. Nonetheless, he adds that the phrase itself should not be overemphasized, or construed as a reference to royal laws. Although Beaumanior has a chapter on the King¡¯s power to decree law, Petot maintains that it is more ideal than real:
La r¨¦alit¨¦ ¨¤ la fin du xiiie si¨¨cle, en est fort ¨¦loign¨¦e. Les hauts barons continuent ¨¤ l¨¦gif¨¦rer dans leurs principaut¨¦s¡ªils le feront longtemps encore¡ªet ils ne se soucient gu¨¨re d¡¯ob¨¦ir aux ordonnances du roi. (419)
Beaumanoir was not, in fact, the first to use the expression ¡°droit commun.¡± Two early Old French references come from treatises that are primarily translations of Roman law. They take the Roman distinction between public and private, translating ¡°publicus¡± as ¡°droit commun¡± because ¡°publique¡± was not yet used in French (Petot 415). At least one seventeenth-century commentator thought this implied that droit commun meant Roman law, in general, for Beaumanoir. But, Petot maintains that even in the very few customary law books that precede Beaumannoir, there are hints that droit commun did not refer to the whole of Roman law or even to a distinction between public/private law, but rather to custom that applies to everyone versus special privilege, an important distinction which Beaumanoir is the first to fully develop (417). Petot is emphatic in stating that in no case where Beaumanoir uses the term ¡°droit commun¡± is it a question of a royal ordinance or of a Roman law. ¡°Aucun des exemples qu¡¯il en cite ne s¡¯inspire du droit romain; aucun ne se fonde sur une ordonnance royale¡± (421).
So if the reference is not to sources of law¡ªRoman or royal¡ªdoes commun suggest geography or jurisdiction? The first citation ¡°common to France¡± could be read this way, but elsewhere Beaumanoir insists he is writing about customs and usages in Clermont only. He says, ¡°the customs of France are so varied that you could not find in the kingdom of France two castellanies which used the same customs in all cases¡± (sec. 7). It is clear, therefore, that he does not claim to be writing down customs of a broader realm, such as the kingdom of France.
Perhaps droit commun simply means the custom itself. Beaumanoir says,
and we should know that by general custom and common law (¡°droit commun¡±), complaints against the person or for personal property or chattels must be made before the lords in whose domain the persons complained against have their domicile. (sec. 214)
Akehurst¡¯s note on this particular passage states that if droit commun means that custom is the same in all of France (which the passage cited above does not support) then
the expression coutume general which is used in this same sentence and linked to droit commun by the word et ¡°and¡± must be a synonym for droit commun. (91)
Linking the two may also be implied in the following passage:
When a child or several children are left orphans and minors, and there is no near relative who has a right to their custodianship . . . all such children, whether of gentle or common birth, fall into the guardianship of the lord by common law according to the custom of the county. (sec. 571)
It is just as likely, however, that ¡°common law¡± and ¡°custom of the county¡± are not synonymous, and that Beaumanoir uses both terms because he thinks of them as distinct. Perhaps he had in mind a general right (droit commun) vs. the particular custom of an area.
There are other instances where Beaumanoir uses both terms in the same section, with the implication that droit commun refers to a broader practice and coutume to a narrower one. For instance, Beaumanoir says:
According to common law all roads, even those of sixteen or thirty-two or sixty-four feet in width, belong in all ways to the lord who holds the land directly from the king, whether the roads pass through their personal lands or the lands of their subjects, and they have jurisdiction and lordship over the roads. But with respect to roads, we have a different custom in Beauvais, for the general custom in Beauvais is that if I hold the land on both sides of the road, in which land I have jurisdiction and lordship I have jurisdiction over the road as far as it runs through my lands. (sec. 721)
Another reference suggests this distinction, when he says,
The customs concerning damage to vines differ so much from place to place that there is no common law on penalties, instead you have to follow the custom of each place. (sec. 906)
Paul Ourliac writes in his communication at the 1983 celebration of Beaumanoir¡¯s work that this particular usage shows that droit commun is the opposite of customs which create local differences (77).
Often, droit commun is used by itself, or in ways that suggest other meanings. In Section 330, Beaumanoir says,
The reason why Holy Church should not protect highway robbers is that every Christian, by the common law, must come and go safely on the highways.
This usage implies the common good, as Hubrecht points out (p. 7). In another section, Beaumanoir links common law with a process of reasoning itself.
And it is the common law,¡ªand reason agrees,¡ªthat all minor children, who have no one who will take on their custodianship or guardianship, are and should be in the guardianship of the lord. (sec. 533)
According to Ourliac, the droit commun
demeure fort impr¨¦cis et s¡¯identifie ¨¤ la fois ¨¤ la raison (no. 533) [no. = sec.] et ¨¤ l¡¯id¨¦e scolastique du commun profit puisqu¡¯il conduit par exemple ¨¤ reprouver les associations ou conjurations illicites (no. 884). (77)
While not identical, the terms common law and custom are intertwined, for Petot, because common law is the basis for custom:
Les coutumes, dans le d¨¦tail de leurs dispositions, ob¨¦issent ¨¤ des principes g¨¦n¨¦raux qui s¡¯accordent avec la raison (no. 38). Dans ces principes, le plus souvent formul¨¦s en adages, Beaumanoir reconnait le droit commun. . . . Tel qu¡¯il le conçoit, le droit commun est donc purement coutumier (no. 39). (421)
The key associations in understanding the term are reason, common good, and principles. I do not believe droit commun in Beaumanoir should be taken as a reference to a static body of rules, or as a reference to jurisdiction in the geographic sense, but as a ¡°right¡± or ¡°practice¡± that suggests the process by which it is established, i.e., something based on reason, the common good, and judgment of men, who like Beaumanoir were good baillis, or the ¡°bons gens¡± who constituted juries. It is the ¡°unwritten law,¡± a type of reasoning used to mediate conflict and characteristic of secular ¡°courts¡± in most traditional, oral cultures. There justice in everyday matters related to land and family is determined by elders, wise men, or neighbors who judge, without the need for an authoritative text or a professional class of learned jurists. Thus, Beaumanoir is writing down not only the specific customs of his area, but also the practice of customary thinking.
The effort made by Beaumanoir and others during his century to write down the unwritten, and widely variable customary law, and to administer royal justice according to it represented a temporary phase in French law. In the early thirteenth century, the need to amass the customary traditions was promoted to resist the influence of Roman law, according to Ourliac, and the customs were already firmly in place when the study of the rediscovered corpus iuris was begun at Orl¨¦ans in 1240 (75). By mid-century, the influence of Roman law was beginning to be seen in all the customaries, but many scholars, as we have seen above, do not believe it had much influence on Beaumanoir. Ourliac suggests that, for Beaumanoir, customary law didn¡¯t go back that far.
Le pass¨¦ qu¡¯il all¨¨gue ne d¨¦passe pas pour lui le temps de la m¨¦moire et il ne paraît m¨ºme pas imaginer que les coutumes qu¡¯il commente puissent venir de fort loin (no. 97). (75)
The attempt to codify the customs was not viewed positively by Beaumanoir¡¯s successors. According to Petot, later treatises of Boutillier and Ableiges in the late fourteenth century put quite a different twist on Beaumanoir. For them, all customary usage that does not agree with written law is ¡°hayneuse.¡± Their works introduce Roman law and, perhaps not surprisingly, largely misinterpret Beaumanoir¡¯s use of droit commun.
Bref, d¡¯Ableiges et Boutillier, ¨¤ la suite des Maucreux, traitent les coutumes haineuses du droit dans le m¨ºme esprit que la jurisprudence coutumi¨¨re observait ¨¤ l¡¯¨¦gard des privil¨¨ges. Il n¡¯en est pas moins vrai qu¡¯ils ont reni¨¦ la m¨¦thode suivie par la jurisprudence et par Beaumanoir, et qu¡¯ils ont formul¨¦ une notion du droit commun tr¨¨s ¨¦loign¨¦e de la tradition coutumi¨¨re. (427)
Their resistance to the diffuse nature of the customs, the growing prestige and power of Roman-canonical law, the move to codify royal ordinances, and other political factors meant that, in the end, the French and the rest of the continent adopted a civil, code-based legal system.
The tension between oral customs and written law as well as the need to organize a proliferation of customs into an efficient legal system was resolved quite differently, however, in England and Normandy prior to Beaumanoir. The groundwork was laid by the Normans, who imposed their kings and their feudalism on the English, but allowed them to follow Anglo-Saxon customs as long as the Normans could follow their own feudal laws. In developing the legal system, the Normans benefited from a well developed Anglo-Saxon culture including an administrative system and chancery that was a model for the continent (Van Caenegam 10).
In the late twelfth century, in order to consolidate his power against the multitude of district customs and local courts, Henry II established the royal courts in London and expanded the courts in eyre, which brought justice into the countryside. Based on a very old system of royal writs that gave the right to appear before a royal court, the common law was largely concerned with feudal land law and questions of inheritance. Clearly, writing figured in the process of administration in these courts through the writs themselves and later the pipe rolls that recorded judgments. The oral was dominant, however, especially in the oral pleading that was one of the hallmarks of the system. A small group of royal justices and lay lawyers who specialized in the writs developed a philosophy of law that owed nothing to Roman law, much to Norman customs, and depended exclusively on spoken French.
Some features of common law practice, especially its dependence on the ¡°unwritten law,¡± the way a new professional class of jurists was trained, the importance of cases or precedent, and the use of the jury, may be closer to Beaumanoir¡¯s work than has been previously noted. This is not to say that there were ¡°common law¡± courts in France. Scholars of the English common law (Dawson, Brand, Simpson, Van Caenegem, and Woodward) underscore its uniqueness, and Northern France, the ¡°pays de coutume,¡± had its own heritage. Yet during Beaumanoir¡¯s time, there certainly may have been similarities.
As many of the studies note, the apparent paradox of English common law is that it is founded on ancient, unwritten, law which was not ecclesiastical, Roman, or the ¡°natural¡± law. The power of the courts was not based on their appeal to an authoritative document, but to a belief in ancient customary law¡ªcommon to all including the king¡ªand learned at the London courts, not Cambridge or Oxford. The epistomological status of this kind of law has always been problematic, especially for anyone with a positivist bent as Simpson notes in ¡°The Common Law and Legal Theory¡± in the Oxford Essays in Jurisprudence. Positivists have criticized the common law for its lack of single, uncontested statements or texts of the law. But, as Simpson¡¯s discussion makes clear, the common law is based on custom which, by its nature, is not reducible to single written formulations:
the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts. These ideas and practices exist only in the sense that they are observed, accepted as appropriate forms of behaviour, and transmitted both by example and precept as membership of the group changes. The ideas and practices which comprise the common law are customary in that their status is thought to be dependent upon conformity with the past, and they are traditional in the sense that they are transmitted through time as a received body of knowledge and learning. Now such a view of the common law does not require us to identify theoretical propositions of the common law¡ªputative formulations of these ideas and practices¡ªwith the common law, any more than we would identify statements of the customs observed within a group with the practices which constitute the customs. (94; emphasis in original)
This definition of the ¡°authority¡± for the English common law is an equally valid explanation of the legal status of customs in Beaumanoir¡¯s coutumier. Neither the common law nor Beaumanoir¡¯s customs can be reduced to linguistic formulations that are the law. The law is what the judicial caste decides, and Beaumanoir illustrates this process by showing how judgments have been made. This definition also implies the need for a very different training for the jurist because, although the administration according to common law or customary law depends upon writing at various points, university study of the learned law is not necessary. The English justices at Westminster and at courts in eyre, somewhat like the royal baillis in France who replaced feudal prevots, were at first lay appointees from the upper class. In England, they soon developed into a professional class:
in general the training of a royal justice was very much a practical one. From service in the royal administration they worked their way up, learned the law and saw how justice was done . . . they belonged in one way or another to the Norman upper class and French was for many centuries the technical language of the Common Law. (Van Caenegam 23)
Legal education in England may have started informally in early thirteenth century. The work of the judicial system expanded rapidly and is reflected in a work entitled Pleas in French from 1260, which is unlike its learned contemporary work by Bracton (d. 1268) De Legibus et consuetudinibus Angliae. The Pleas indicate how the art of oral pleading in French was central to the development of the lay profession of common law (Dawson 8). In 1292 a writ was issued authorizing legal education, and shortly thereafter, Year Books of cases were kept. The jurists trained very much as a medieval guild, at the courts through observation and in discussions among themselves in eating houses in London. These eating house evolved into what was known by the fourteenth century as Inns of Court. Legal training through the Inns of Court and the royal courts in London was a separate world from the English universities:
There a different legal tradition developed: law students learned to speak the language of the court, French, not that of the church and the universities, Latin; they learned the skills needed to deal with practical legal problems¡ªthe intellectually barren but legally essential procedural technicalities required to obtain a writ and to establish a cause of action, not the mastery of the . . . authoritative texts of Roman and canon law. They learned, in short, to practice common law. (Woodward 505)
Along with listening, observing, and oral pleading as methods of learning the law, writing was increasingly used to record cases.
The notion that specific cases were useful and important in any discussion of the law was first found in De legibus. It was an idea with a distinguished future, one that before the end of the thirteenth century had given birth to the Year Books. (Sandquist 357)
It is also the idea that gives increasing importance to judicial decisions based on precedent, a central feature of the common law. As Dawson points out, however, cases were cited in the thirteenth century primarily as models of oral pleading, and the Year Books show little concern at this period for theoretical discussions of precedent (59).
It is not difficult to see certain parallels between features of judicial training for the common law and Beaumanoir¡¯s enterprise. He is an administrator of secular justice in the service of the King¡¯s brother, writing about law, not Roman and not in Latin, but in French, the spoken vernacular. His goal is a very practical and pedagogic. He is unconcerned about matters of theory and instead provides concrete information on the proper procedures. He includes sections on judges, summonses, delays, attorneys, advocates, complaints, and answers at the beginning of his work. He organizes his work to include three parts¡ªthe ¡°unwritten¡± customs (by far the largest part), the judgments, and an innovation for customaries of his time, some court cases¡ªall, as he says, as a guide for those who will administer royal justice well.
In the Coutumes, there are 70 chapters and almost 2,000 separate paragraphs within them. A typical chapter has paragraphs that describe customs, introduce definitions, or set forth procedures, and about a tenth of the paragraphs concern actual cases. The usual pattern is: custom, case, then judgment.
For example, Chapter 34 on Contracts opens with this brief statement:
There are other agreements which are not to be kept: for example, if I agree to pay debts for dice games, or for usury, or if I agree with a man that I will commit an offense against him or another, or something that would be more harmful than beneficial to him, such agreements are not to be kept. (sec. 1000)
The case follows several paragraphs later:
Pierre had wood to sell, and he appointed an agent to sell it. The agent sold the wood to several people, with payment to be made on the following All Saints Day; and when All Saints Day had passed, the debtors came to the agent who had sold and delivered the wood to them, and asked for an extension on the payment they owed for the sale of the wood, and he gave them a year¡¯s extension. And when Pierre, who was the owner, discovered this, he dismissed the agent and sued the debtors and asked them to pay, and they answered they had an extension from the person who had sold them the wood. And Pierre said he did not want to ratify this extension, for his agent did not have the authority or the power to extend the due date just because he had sold the wood and set the original payment day. And on this issue they requested a judgment. (1006)
In the next paragraph, Beaumanoir tells us what the judgment was and comments on his reasoning:
It was judged that the extension would not be enforced, and by this judgment you can see that the agent has no power to act except as concerns what he was appointed and given to do by his master¡¯s authority. And it would be a bad thing, when a agent had created debts owing to his master on a day certain, for him to be able to give an extension later on. (1007)
Rarely are the cases more elaborate than this straightforward, bare bones narrative. Beaumanoir includes multiple stories, but there is no collaboration between the litigants and the narrator, no variety of point of view because he is the sole author. They are not constructed from direct testimony, there are only rare bits of dialogue, and emotions or details of setting play little role in his accounts.
Since these narratives are purportedly real court cases, we might wonder why they are not more detailed or individualized. The answer is that they may be true, but they are not records of the proceedings. They are summaries, at best, of the essentials. If, therefore, they can function as illustrations of a custom, they pose the question of the boundaries between historical record and exemplary representation. In Beaumanoir¡¯s case, the reworking of history becomes clear not because the stories are embellished or risk the incursion of personal special pleading, as in the letters of pardon Natalie Davis studied in Fiction in the Archives, but because they are so plain, so ¡°generic.¡±
Their most obvious generic feature is the presentation of litigants. Beaumanoir uses stock names and, as readers of his text, we are prepared for these names because Beaumanoir discusses early on in his work the way the layman is supposed to plead a case in court. He presents boiler-plate to help those who can not compete with the elegant Latin of the churchmen or even understand well the French which is spoken in the secular courts. Thus he advises,
A person asking for personal property or chattels should speak in this manner: ¡°Sire, I demand of Jehan over there such and such personal property and such and such chattels.¡± (sec. 198)
If there are two parties, Beaumanoir always makes them Pierre and Jehan.
There are a few cases of an individual mentioned by name (¡°My lord Pierre de Thiverny sued the town of Les Haies,¡± sec. 689); or an identifying title and location,
We saw a suit by the citizens of Ghent against the count of Flanders in which the citizens of Ghent complained to the king against the count of Flanders for default of judgment. (sec. 1779)
Occasional references to towns make the cases seem a bit more specific than those where a plaintiff is identified only by a social class: ¡°A knight married a lady, who had a child by a former husband¡± (sec. 373). The vast majority of the cases, however, use the names Pierre and Jehan for the plaintiffs, Marie and Jehane for females, and an occasional Thomas or Guillaume when Beaumanoir needs additional masculine names.
Since the cases are not placed in his text as an official record, the question can be posed, ¡°Do these cases make law, in the sense of setting precedents, or do they merely illustrate what the law already is?¡± (Akehurst xxiii). Cheyette points out the paradox of these real cases with fictional names and says they are not precedents as cases would become in the fourteenth century (144). Based on stylistic features, these narratives are illustrations because they have been arranged to become exemplary by the suppression of real names, details, and motivations. Beaumanoir¡¯s rhetorical purpose is to instruct. As in the exemplum or other short moral tales, the bare bones of the action will do, the characters are mere actants, and motivations are not at issue. What counts for Beaumanoir is how to justify or illustrate the decision-making process. He is an instructor in the method and a promoter of certain values: reason, good sense, fairness, and avoidance of trickery.
On the other hand, the function of cases suggests the formation of a judge-based, case law. Due to their rhetorical plainess, they are probably not likely to have been models for oral pleadings, as the cases are in the English Year Books. The Coutumes itself, taken as a whole, however, suggests the training required in the common law court where the oral hearing of the case and the rendering of judgment will be aided by reference to a knowledge of the ¡°unwritten law¡± manifested through specific prior cases. These cases are more, then, than mere illustrations and are very like precedents not only because they are real cases that Beaumanoir saw, but also because they are the examples that the judge will use to move inductively toward a decision. The ambiguous status of these narratives as illustrations and precedents no doubt reflects the transitional nature of Beaumanoir¡¯s epoch. Their presence and function in his work certainly suggest more affinity with the English system than with his followers in France. In a description designed to highlight the differences between English common law and continental law, Van Caenegam describes the use of precedent in a way that makes this clear:
English law prefers precedent as a basis for judgments, and moves empirically from case to case from one reality to another. Continental law tends to move more theoretically by deductive reasoning, basing judgments on abstract principles; it is more conceptual, more scholastic and works more with definitions and distinctions. In other words it was moulded by the Roman Law of the medieval universities. (88)
Beaumanoir does not fit the description of the continental law for several reasons. The case has been made by many scholars that Beaumanoir was not overly influenced by Roman law, and there is no evidence that he had formal legal training. Bautier maintains, ¡°qu¡¯il n¡¯¨¦tait pas juriste mais chevalier¡± (6). We may never know if he was directly or indirectly influenced by the courts outside of France. But whether he traveled to England or not, he may ¡°have been aware of what was going on across the Channel¡± (Akehurst xviii). It is not unreasonable to believe that Beaumanoir was knowledgeable through books or direct experience because common law was also the practice in Normandy, a territory neighboring Beaumanoir¡¯s own. Among other appointments, he was a bailli in Saintonge which was jointly administered by the French and English (Bonnet-Laborderie 61).
What we can propose is that Beaumanoir¡¯s attitudes toward customary law, oral argumentation in the vernacular, the authority of the judge, and the value of cases as examples to follow were closer to a nascent English philosophy of common law than to the theories of the ¡°written law¡± that ultimately dominated the French. For Beaumanoir, le droit commun means common sense, common to all, and customary usage. It is not sacred, revealed, or abstract, but secular, rational and concrete. It is not based on an authoritative written text, but the people¡¯s memory of customary practice, and the judge¡¯s decision, based in part on an earlier case. It is put into writing; but it resists the learned and sacralizing nature of writing to fix forever a law. Beaumanoir¡¯s written text systematizes the process of oral law that makes justice the collective judgment of good men. The great paradox of his work is, of course, that it did not preserve custom as a living system. Writing it down created the possibility of comparing custom to ¡°written¡± law, and to the French custom came off poorly in this comparison. The true nature of the oral or the customary was preserved, for a variety of reasons, in English common law that insisted on its authority as an ¡°unwritten¡± law argued orally and glimpsed through decisions in prior cases. The French opted for the scholastic, the theoretical, and the codified written text. In their increasingly bureaucratic, literate culture the ¡°oral habit of mind¡± in regard to customary law was dissipated by the very technology employed by Beaumanoir to assure its preservation.
Akehurst, R. F. P. , trans. The Coutumes de Beauvaisis of Philippe de Beaumanoir. Philadelphia: U of Pennsylvania P, 1992.
Bautier, Robert-Henri. ¡°Philippe de Beaumanoir: Rapport G¨¦n¨¦ral au Colloque.¡± Bonnet-Laborderie 5¨C15.
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This and all subesequent quotations from Beaumanoir in English are from R. F. P. Akehurst¡¯s fine translation. I will identify them in the text by section number.
G. Thaumas de la Thaumassi¨¨re, in Assises et bons usages du royaume de J¨¦rusalem (1690), cited in Petot (418).
Carolus-Barr¨¦ suggests that his father may have been a student in England; others have suggested English travels because of the geography mentioned in Philippe de Remy¡¯s romances. Since the father was also a jurist, it is possible that any knowledge of English common law could have been passed on to the son.
This was in 1288¨C89 after he wrote the Coutumes, but my point is that he circulated in a region not distant from English influence.