We are not used to thinking of medieval people as innovative or forward-looking. The Middle Ages have been constructed as the quintessential backward-looking era, and this affects the way we think about medieval law. One of the grand narratives of medieval law is that early medieval Europe was governed by a customary law that treated past practice as normative. To medieval people, the “good, old law” was good precisely because it was old, to the extent that, even when medieval people created new law, they justified it by claiming it was old. In The Time of Custom and the Medieval Myth of Ancient Customary Law, Ada Kuskowski challenges the assumption that medieval people looked to the past for legal authority and argues that medieval people most often associated custom with the present, not the past, and treated it as something that could change, often quite quickly.
Kuskowski’s piece does two things: first, it surveys writing about custom between Late Antiquity and the fourteenth century to show that there was a wide range of discourses about the way customary law related to time. The leges written in the kingdoms that succeeded the Western Roman empire were held up by jurists and scholars from the sixteenth to the nineteenth centuries as written statements of ancient Germanic custom. Kuskowski shows that in these texts “[t]he old and customary was neither good nor desirable…” (P. 162). The texts instead present themselves as projects to update, improve, and renovate the law.
Notable is Kuskowski’s discussion of the French coutumiers. The coutumiers present themselves as discussions of customary law, usually of a particular region, and Kuskowski argues persuasively that they were not bound to any idea that custom needed to be old to be good. Indeed, they usually presented their custom not as a thing of the past, but as a thing of the present. Custom is, at times, described as “old” in the coutumiers, but is also at times described as “new,” “current,” and even “modern” (P. 172, Pp. 174-175). The authors of the coutumiers saw their texts not as recording what had always been done, but as recording the current practice in a time of rapid change.
It is not, however, that medieval people never thought of age as conferring authority; the “good, old law” was not solely invented by historians. Medieval scholars of Roman and canon law, writing from the twelfth century onwards, became interested in custom as a category of binding norms. They were particularly interested in the question of what made a custom binding. A common theme in their writings was that a legitimate and binding custom was something that had existed for a long time, either a quantified period of ten, twenty, thirty, or forty years, or from “time immemorial.”
Indeed, Kuskowski shows that the idea of “time immemorial,” which became so important in English law, only appears in discourse about custom starting in the twelfth century. Far from being evidence of a medieval “customary mindset,” it was an innovation introduced by university-trained jurists. The coutumier authors started to justify their customs in terms of antiquity from the turn of the fourteenth century, and then it was clearly because people who had been trained in Roman and canon law were importing the discourse of the good, old law from the debates within those fields. In emphasizing the idea that custom is given normative force by its age, scholars have been reproducing the rhetoric of the civilians and canonists, who were actively trying to distinguish custom from the lex they studied.
Second, the article explains how the notion that custom derived its authority from its antiquity became such a pervasive theme in the historical literature on the Middle Ages. Kuskowski tells the story of how medieval custom was constructed as backward-looking, particularly in the scholarship of the nineteenth and early twentieth centuries, in opposition to modernity. Kuskowski takes us from the sixteenth century to the twentieth, explaining how various political, social, and philosophical agendas reinforced this idea. In the nineteenth century, for instance, the historical school of jurisprudence and its emphasis on discovering the spirit of a nation through its ancient laws made customary law into “a primitive but exalted origin of the national heritage” (P. 151).
But at the same time, other currents in European thought were treating custom as a “superseded relic of the past” (P. 151). Enlightenment thinkers presented custom as an archaic and inherently irrational holdover of an earlier era that needed to be swept away by rational legislation. All of this led to a view of custom that, by the beginning of the twentieth century, treated it as, on the one hand, primitive and tradition-bound, and, on the other hand, as a revered relic, symbolic of the nation. Custom could be celebrated, but ultimately had to be superseded.
One of the most significant contributions Kuskowski makes in the article is to show the mechanisms by which these ideas about custom, based on normative commitments most scholars no longer share, slipped into modern scholarship. She traces this to the work of Fritz Kern who, in the early twentieth century, sanitized these nineteenth-century ideas about custom by taking them out of the nationalist and colonialist discourses of the nineteenth century. He reframed discourses about medieval custom in terms that historians of later generations could accept and, in the process, created what Kuskowski calls a “neutralized primitive custom” (P. 152). These ideas were then taken up, in this new form, in seminal works of the twentieth century, such as Michael Clanchy’s Remembering the Past and the Good, Old Law.1
The Time of Custom challenges the way we think about customary law as a category. Customary law need not be tradition-bound and backward-looking. But the article also makes a broader point about how we think about the Middle Ages. People still view the Middle Ages as a period when people were backward-looking and tradition-bound. Kuskowski demonstrates that even sophisticated scholars of the Middle Ages, who deplore these kinds of characterizations of the period, still, at times, unconsciously reproduce them in their work. Kuskowski’s work on custom is an important corrective. By showing that custom, a quintessential example of the traditional and backward-looking, could be associated with innovation and rapid change, Kuskowski is challenging some of the most fundamental stereotypes about the Middle Ages as a period. Medieval people thought about themselves as updating, renewing, and even striking out in new directions.
