(2011) 5(1) Law and Humanities 97–101

A Logic of Appropriation: Practical Relationships

between Law and Literature in the Middle Ages

Joël Blanchard*

By the end of the Middle Ages, judicial notions had pervaded culture as well as political
life. Law was playing an increasingly important role. Even if a political literature did not
exist as such in the Middle Ages, the influence of law on literature is unquestionable.1
There are numerous instances of convergence between law and literature, one of the most
famous and best studied examples being amorous casuistry, which used the language of
law to debate questions pertaining to love. One may refer to Arrêts d’amour (Love Decrees)
by Martial d’Auvergne or Droits nouveaux (New Rights) by Guillaume Coquillart: the
judicial form of these debates date back to an ancient literary tradition; fictitious debates
on the theory and practice of courtly love borrowed their language and logic from law.2
This convergence did exist in fields other than poetry—in epic texts, for instance.3 Our
point here is to widen the study to other instances which, concerning the relationships
between law and literature, raise the issue of the specific genre and status of certain texts,
as they were renewed by the ‘migration’ of the legal discourse into literature. The process
of appropriation will be the theme of this reflection.
In the Middle Ages, reasoning was not a subjective process but a social approach in
keeping with a collective context.4 Consequently, linking law and theatre, dramatic diction
and academic exercises, proves very rewarding. In drama, very codified rituals are to be

* University of Maine, France—ANR Juslittera.

1 See RH Bloch, Medieval French Literature and Law (University of California Press, 1977). This book is often
referred to as a pioneer in the study of the relationships between law and literature in the Middle Ages. In
fact, studies in this field are quite rare—though some are ‘in progress’. On the term ‘political’ as it is applied
to the literature of the late Middle Ages, see J Blanchard and J-Cl Mühlethaler, Ecriture et pouvoir à l’aube
des temps modernes (PUF, 2002).
2 K Becker, Amors Urteilssprüche. Recht und Liebe in der französischen Literatur des Spätmittlalters
(Romanistischer Verlag, 1991); R Schnell, Causa amoris. Liebeskonzeption und Liebesdarstellung in der
mittelalterlichen Literatur (Francke, 1985); P Goodrich, Law in the Courts of Love: Literature and Other Minor
Jurisprudences (Routledge, 1996).
3 Cf the latest studies of Philippe Haugeard on the chanson de geste, ‘Un baron révolté est-il un hors-la-loi?
Droit et violence dans Girart de Roussillon’, Cahiers de Recherches Médiévales 18 (2009), 279–91.
4 See the recent debate that took place in France regarding the works of Jürgen Habermas in a series of
symposia organised in Paris I, from 2006 to 2008, by N Offenstadt and P Boucheron on Espace Public au
Moyen Age (PUF, forthcoming).

97
98 Law and Humanities

observed, theatre being an informal site for ‘public debate’, in a ritualised setting and
according to distinct academic codes.5 The fact that theatre can be understood as a form
of the ‘public use of reasoning’ can be observed in a particular area of the theatrical field:
we are referring here to the use of juridical concepts in the polemic Morality Plays of the
end of the Middle Ages, in which the influence of law on literature is widespread. Morality
Plays were very successful, as their great number (over 100) proves; a success which lasted
a long time after the end of the medieval period.6 The names of allegorical and juridical
entities such as ‘Public Welfare’,7 ‘Authority’8 and ‘Power’ appear in some of their titles.
Let us examine ‘Power’ and ‘Authority’. These words have a precise meaning. They are the
translation of the latin words auctoritas and potestas as fifteenth century lawyers
understood them. Auctoritas was the legal authority of the sovereign imposing his will,
potestas the practical power of the body politic. Most probably, audiences were quite
ignorant of the origin of those terms and of their juridical content. Yet they were evocative
phrases, which the public invariably interpreted as ‘by our authority and power’ or ‘by
authority and royal power’. These notions, inherited from Roman law, applied to private
as well as public law: the potestas of the paterfamilias, that of the magistrate, that of the
king … The king delegated crumbs of public power and some delegates may have misused
it. Such was the case with upstarts and favourites, who were represented as characters in
many Morality Plays.
The use of these juridical notions on the stage raises many questions, the most
obvious one being: does their transposition from one field to the other mean that they had
lost some of their significance or that their significance was waning? The simple fact of
asking this question shows that the problem is related to language. The problem of
bilingualism, which is always present in medieval literary texts,9 should be stated here in

5 O Weijers, ‘De la joute dialectique à la dispute scolastique’, Académie des Inscriptions et Belles-Lettres. Comptes
rendus des séances de l’année 1999 (Paris, 2000) 508–18; La ‘disputatio’ à la Faculté des arts de Paris (1200–
1350 environ): esquisse d’une typologie (Brepols, 1995); BC Bazàn, G Fransen, J Wippel and D Jacquart (eds),
Les questions disputées et les questions quodlibétiques dans les Facultés de théologie, de droit et de médecine
(Brepols, 1985); E Marmursztejn, L’autorité des maîtres. Scolastique, normes et société au XIIIe siècle (Les
Belles Lettres, 2007).
6 Cf Introduction in W Helmich (ed), Moralités françaises. Réimpression en fac-similé de vingt-deux pièces
allégoriques imprimées aux XVe et XVIe siècles, 2 vols (Slatkine, 1980); W Helmich, Die Allegorie im
französischen Theater des 15. und 16. Jahrhunderts (M Niemeyer, 1976) 183–9; A Knight, Aspects of Genre in
Late Medieval French Drama (University of Manchester Press, 1984) 62–63; Ch Mazouer, Le théâtre français
du Moyen Age (SEDES, 1998) 242–64; J Beck, Théâtre et propagande aux débuts de la Réforme (Champion-
Slatkine, 1986); J Beck, ‘La place de la moralité de Bien Avisé Mal Avisé dans le théâtre en France au Moyen
Age’ in OA Duhl (ed), Le théâtre français des années 1450–1550: état actuel des recherches (Centre de
Recherches Le Texte et l’Edition, 2002) 15–24.
7 J Blanchard, ‘La Moralité du Bien Public (1468). Musée Condé ms 685’, Bibliothèque d’Humanisme et
Renaissance, LXX, 3 (2008) 615–61.
8 Moralité à six personnages (BNF ms fr 25467), critical edition by J Blanchard (Droz, 2008).
9 S Lusignan, La langue des rois au Moyen Age: le français en France et en Angleterre (PUF, 2004); T de
Jong, ‘Parasite Consonants: A Homographic Clash’ in J Fisiak (ed), Medieval Dialectology (Mouton de
Gruyter, 1995) 7–42.
 Practical Relationships between Law and Literature in the Middle Ages 99

different terms; the juridical tradition—that of the Digest (Roman law) or of the Decree
(canon law) was constituted by texts in Latin. French was used for other, more pragmatic
purposes. Latin brought about a sort of juridical appreciation as well as greater privacy
than French, since few people understood it.
Another difficulty: in the Middle Ages, the vernacular language was not settled. Law
terminology was not fixed in French, whereas it was in Latin. Regarding the introduction
of law vocabulary in vernacular texts, one may wonder if—broadly speaking—law
concepts in French and for a less educated public meant a loss of significance or at least
semantic approximation. A higher degree of approximation is to be observed in the
vernacular language in so far as the ‘value’ of the words (I use this word as Saussure did)10
was less clear than in Latin. The ‘migration’ of law notions into the field of literature
raises many semantic problems: I am here referring mainly to notions like ‘lese-majesty’
or other euphemisms for transgression, the definition of which was not clearly established
by the end of the Middle Ages.11 The solution to these problems is by no means evident.
It might be necessary to widen our enquiry to other types of text.
Let us examine a second species of text: the memoir. A great variety of judicial
documentation is available for the late medieval period (we are referring here to copies
of the minute-books of addresses to the court or to opinions required from an expert, for
instance a law professor or at least a Doctor of Laws—known as consilia in the Middle
Ages). These documents are to be found as loose sheets or bound at random in files
created ad hoc by the king’s counsellors for use in prosecution proceedings against
rebellious feudal lords. Thus a sort of judicial ‘memory’ is elaborated, precisely entitled
‘memoir’ (a word which was originally applied to scraps of history and judicial
documents).12 It is most striking to observe that some of these documents directly
inspired not only Commynes’ Mémoires (Commynes being the inventor of the ‘mémoires’
genre) but also the framework of his narrative and of the progress of his thought, down
to the minutest detail. The oaths taken by rebellious princes, those they exchanged with
each other, those they exchanged with the king (for instance those that were gathered, in

10 C Normand, Saussure (Les Belles Lettres, 2000) 74–75.

11 A historiographical debate is beginning on that question. In the coming years this debate may attract the
attention of historians interested in justice in the late Middle Ages: were political lawsuits—through lese-
majesty—the purest expression of sovereignty and consequently of the very identity of law, or should they
be considered a corruption of the language of law intended to conceal the settling of scores? The answer is
to be sought in the semantic difficulties raised by the translation of law terms from one language to another:
the approximation of translations was used by those in power to modify accusations and procedure. This
is to be observed during the reign of Louis XI. See J Blanchard, ‘Sémiologie du complot sous Louis XI. Le
procès de Jacques d’Armagnac, duc de Nemours (Bibliothèque Sainte-Geneviève ms 2000)’ in C Leveleux-
Texeira and B Ribémont (eds), Le crime de l’ombre. Complots, conjurations et conspirations au Moyen Age
(Klincksieck, 2010) 63–85.
12 These are the material documents of late medieval trials, including trials for treason. The publication of
these proceedings will provide a major field of research for historians of medieval law, one of the first to be
published being the lawsuit against Louis de Luxembourg, Constable of Saint-Pol. (See J Blanchard,
Commynes et les procès politiques. Du nouveau sur la lèse-majesté (Picard, 2008).)
100 Law and Humanities

the Bibliothèque Nationale de France, in the series entitled Doriole—after the name of
Louis XI’s chancellor), constitute one of the main threads of Commynes’ Mémoires. He
is constantly harking back, as a sort of leitmotiv, to the value of the promise in politics and
diplomacy (we are referring here to the famous episode of Péronne, during which the
king, being prisoner of his vassal, narrowly escaped death because Charles the Bold did
not honour his pledged word).13 If Commynes did indeed consult the Doriole document,
we could say with some confidence that it was one of the sources of the Mémoires.14
These connections clearly show the links that exist between literary typologies and
juridical formulations, beyond the ordinary sources, the traditional and institutional
forms. The nature of this appropriation is most important. Was it only an instrumentalis-
ation of the juridical discourse, was it a new fad? We don’t think so; as we shall try to
prove in our conclusion.
First, for the audience, the impact of these transfers, these ‘migrations’, was quite real.
The audience focused on simple and even simplistic elements.15 On the stage, the concept
turned into a slogan (we saw it with allegories and Morality Plays), a spatial dimension
was created, the ‘operator’ who appropriated the motto was embodied in a character. The
duration of the performative impact—the short-term effects of the performance—can be
evaluated. Unlike what takes place in the ‘miroirs du prince’, on the stage the aim is to
embody a concept, to validate it (in the juridical sense of the word), to actualise it hic et
nunc (in one place, in one day)! The point of view is very different from what can be
observed elsewhere in the literary field; the impact is much stronger.16 The critic may
observe that in the late Middle Ages, the use of drama offered an opportunity to enliven
a debate previously weighed down by a scholastic tradition that was almost immoveable
because it was deeply rooted in treatises and ‘miroirs’.

13 Philippe de Commynes, Mémoires, J Blanchard (ed) (Droz, 2007) I, 125.

14 J Blanchard, ‘Une lecture des Mémoires: Commynes et le droit’, Bibliothèque d’Humanisme et Renaissance,
LXXII, 1 (2010) 369–84.
15 Cf ‘cultural performances’ (a term borrowed from American anthropology and often used in studies on
dramatic performances: see M Carlson, Performance: A Critical Introduction (Routledge, 1996); E Fischer-
Lichte, History of European Drama and Theatre (Routledge, 2001)), which have a pragmatic, social and even
political dimension and an immediate impact on society. As with all rituals, they strive for the regulation
of violence and the release of tensions.
16 Indeed, Morality Plays are slow in pace; on the boards the moves are sometimes almost imperceptible,
sometimes a little more visible. Let us be more specific on two points: in medieval theatre there is no stage
space; there is no top, no bottom, no diagonal move, only a movement between two bases or ‘houses’, usually
represented by propped-up forms. This slow device, this slowness, leaves plenty of time for the explanation
of concepts, for a pedagogical clarification enhanced by ‘staging’, by gestures which are a sort of ritual
illustrated by stage directions … There are also a few lyrical insertions: with the performance, with the use
of fixed forms, we have a different sort of diction, another vocal modality which is not without influence
on the ‘message’ they (the allegories) convey and repeat with stronger impact. The effect is a double one:
suspense and focusing the attention of the audience. Cf J Blanchard, ‘L’espace public à l’épreuve du théâtre’
in Offenstadt and Boucheron (n 4); J Blanchard, ‘Le Bien Public et les moralités polémiques’ in F Collard
(ed), Pouvoir d’un seul et bien commun (VIe–XVIe siècles), Revue française d’histoire des idées politiques 32
(2010) 385–93.
 Practical Relationships between Law and Literature in the Middle Ages 101

Secondly, the political interest of these ‘transfers’ in the language is obvious. In a

precise historical framework—that of the making of the modern state—law and literature
converged in politics as a modality of action and not as a theory.17 Clearly enough, the
King intended not to defend already instituted positions but to create new ones, which
implied a reversal of law or at least strong manipulation. The frequent intervention of
Louis XI in juridical procedures, for instance, potentially contributed to the development
of narrative designs which are common to lawsuits and literature. Thus, literature had
something to do with this movement; it played a part in enriching the basic vocabulary
concerning the formulation of juridical and political procedures. These observations lead
us to a dialectical understanding of the core relationship between law and literature. The
publication of new texts—we are here referring to contemporaneous editions of political
lawsuits—will bring about many other elements which will enable us to reassess our
approach to certain texts not only according to strictly typological criteria but also
according to cultural and social ones. The case of ‘la Bazoche’ (Law Societies) is well
known.18 But, as we saw, the field of the interferences between law and literature has been
widened to some rather unexpected areas in which law and literature provide a common
wealth and where shared sources and experiences are to be found. We are here naturally
referring to Commynes. For those who wrote the history of majestas, society was built on
Roman law: the notion that someone could be intelligent without having studied in a
university was unthinkable! Commynes’ Mémoires show that law and literature were not
a simple reflection of one another, literature using law as a source of inspiration. Thanks
to these fruitful exchanges, criticism may find new approaches, and unexpected readings.
Such is the field of the ANR Juslittera, which brings together specialists in law, history
and literature. It is not a battlefield where disciplines are pitted against one another; on
the contrary, it is a place where they share common ground—the only way to progress on
a potentially explosive field of research.

17 J Blanchard, ‘L’histoire commynienne: pragmatique et mémoire dans l’ordre politique’ Annales ESC (1991)
1071–1105; J Blanchard, Commynes l’Européen. L’invention du politique (Droz, 1996).
18 Unfortunately studies on this subject bring nothing new, owing to a lack of new documents. Following the
pioneering works of A Fabre, Les clercs du Palais. Recherches historiques sur les bazoches des parlements et les
sociétés dramatiques des bazochiens et des Enfants sans Souci (Scheuring, 1875) and HG Harvey, The Theatre
of the Basoche: The Contribution of the Law Societies to French Mediaeval Comedy (Harvard University Press,
1941) the more recent studies of M Bouhaïk-Gironès, Les clercs de la Basoche et le théâtre comique (Paris,
1420–1550) (Champion, 2007) show that these investigations have come to a standstill. From this research
the question of language is strangely absent, as our symposium showed. We are glad that we are finally
emerging from this deadlock.
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