THE RECORDING OF CUSTOMARY LAW IN

FRANCE DURING THE FIFTEENTH AND SIX-

TEENTH CENTURIES AND THE RECORDING
OF AFRICAN CUSTOMARY LAWS1
BY J. VANDERLINDEN*

The recording of African customary laws is definitely a subject of

present interest. Not only did the International Academy of
Comparative Law devote one of its sections at its last Congress in
Brussels to this problem, but, even before and after this Congress,
different specialists have dealt with it in articles or notes of varying
length. Without mentioning, for Belgium, the unceasing activity in
this field of the publication of the Journal des Tribunaux d'Outremer,
we wish to recall the recent article in which Professor Poirier
offered a French point of view on this matter. As regards the United
Kingdom, it is necessary to stress the leading part being played by
the Journal of African Law in connexion with our present subject.
Without wishing to delve into the innumerable problems posed
by the recording of African customary laws, I should like to draw
attention to the value of a systematic study of previous experiences
in thefieldof the recording of customary laws. Thus one might study
British efforts in India (in Punjab, for example), and those of the
French in French West Africa and of the Dutch in Indonesia.
Comparative study of these different recordings of customary law,
of their objectives, methods, and results, would undoubtedly be full
of instruction for future efforts in the field.3
But in piecing together once more the series of historical events, it
seemed to me useful to draw a quick parallel between the recording
of African customary laws and another recording of customary law
which antedates it byfivecenturies: I mean the recording of French
customs in the fifteenth and sixteenth centuries. There is one
fundamental feature which both these recordings share: both
are imposed on the customary scene from outside, and both are
imposed in a systematic manner.
In France, when the Ordonnance de Montil-les-Tours was pro-
mulgated in 1453, m e process of putting customary law in written
form had already been going on for some centuries, and works like
the Livre de Jostice et de Plet, the Grand Coutumier de France, the Tres
ancien coutumier of Normandy or Brittany already represented
1
I must express my gratitude to Dr. A. N. ALLOTT, for undertaking the transla-
tion of this article, originally written in French.—J.V.
2
Aspirant au Fonds National de la Recherche Scientifique; author ot Essaisur
Us juridictions de droit coutumier dans Us territoires d'Afrique centraU, 1959.
* Another stimulating comparison could be made with the recording of customs
in the Low Countries from 1531 onwards. I hope one day to be able to make a
similar study of this.
165
 166 Articles [X959] J-A.L
important memorials of French customary law. One is not concerned
here with whether these were absolutely accurate accounts of the
« state of the law which these texts were supposed to contain; often
\ the authors added material drawn from their own personal know-
ledge to the main body of customary law that they purported to
describe.
One can say that the same stage has been reached with African
customary laws. Apart from a few attempts at systematic recording
—as with the French coutumiers juridiques in French West Africa,
for example—a large number of customary laws, or sometimes parts
of these laws, have been described with more or less success and
accuracy by numerous persons whose attention has been caught by
the many gaps in our knowledge of African law. These persons, as
I have observed, have had more or less success in their enterprise,
and this is precisely because, like the first recorders of French
customary law, they have not been able to avoid being influenced
by their own legal background.
And so in Africa of the twentieth century there have not been
lacking those who could play the part assumed in medieval France
by Beaumanoir, Pierre de Fontaines, Jacques d'Ableiges and many
others. But—as with these last—one must emphasise that their
efforts were usually spontaneous and generally lacking in system.
With the Ordonnance de Montil-les-Tours of 1453, the atmosphere
changed, and the recording of customary law as it appeared from
then on was an entirely new phenomenon with well-established
characteristics, of which one can name four. First of all, recording
of customary law ceased to be a spontaneous manifestation springing
up in one place or another in accordance with local needs or
individual initiative. Thenceforward recording was imposed from
above on the customary milieu, and remained so for more than a
century. This is why I think one can speak, from then on, of a
" compulsory recording " of French custom. At that period the
only authority capable of compelling the performance of such a
task was that of the King, and it is not surprising therefore if the
credit for having carried out the work of recording should have
been given in the first place to the successive Kings from Charles VII
to Henry II.
Today it is fairly certain that governments will not be tempted to
intervene directly in the recording of African customary laws. Such
a task will more readily be entrusted to an independent body, which
will be assured of moral and material support from the state con-
cerned, and the results of whose efforts—inasmuch as they are of
considerable importance for the general policies of the government—
will be subject to the control of the same state which has encouraged
the work of recording. Here then is a difference between French
experience in recent times and contemporary African practice; but
I think that the difference is only in the methods of applying a
principle which is admitted because essential, that of the compulsory
intervention of the political authority in the field we are concerned
with.
The second characteristic of the recording of French customary
law was that thenceforth it was a matter of a systematic enterprise
 Vol. 3. No. 3 Recording of Customary Law 167
whose aim was to cover the entire country; it was no longer a
question of scattered efforts. The same feature is found at the
present day in the movement for the recording of African customary
law. In particular one would like to rectify the fragmentary
character of the studies carried out up till now, and break out of the
framework of the internal administrative divisions, divisions to
which existing studies are often confined. Furthermore, it seems as
if the promoters of the movement for recording are ready to go
beyond the framework of territorial frontiers imposed on Africa
by European colonisation, in other words to record customary laws,
not at the Belgian, French, Portuguese or British level, but by taking
as the working basis the ethnic groups, whose extent often transcends
these artificial boundaries. The project thus fits in with the spirit
of our age, which thinks of Europe or Africa before thinking of
nationalism or frontiers.
The third characteristic of the French recording of customary
law lay in the fact that this recording had a fixed and practical goal.
Here, too, there was a contrast with the spirit of the preceding
centuries, when, whilst the author often had the idea of being useful
to his contemporaries, yet the motive of personal satisfaction was a
complete justification for the compilation of coutumiers or records of
customary law. One must not forget that the last article of the
Ordonnance of 1453, that which orders the recording of customary
law and sets the movement in train, comes at the end of an ordon-
nance entirely devoted to "the administration of justice". And
among all the measures taken by the King in order to improve the
administration of justice in his kingdom, it is certain that the
recording of customary law had only a minor part, since its object
was to remedy the insecurity resulting from the fact that the custom
was at that period not well known, even if known to those subject
to it. The recording of customary law ameliorated this situation,
since from then on the parties as well as the judges possessed authen-
tic texts, of which one copy was deposited in the archives of the
Parlement de Paris, and the other in the administrative archives at
the chief centre within the area where the custom operated. Thence-
forward the enquete par turbes1, with all its inconveniences and im-
positions, had no justification for further existence.
In Africa of the twentieth century the situation has not, perhaps,
yet arrived at the stage of ignorance of customary law reached in
France of the fifteenth century. However there exist some factors
leading to the decay of customary law, which are found side by side
with many other reasons which lead one to believe in its future.
Among these factors there are two which seem to me particularly
important and which deserve special mention. The first is at the
social level, and is doubtless the more significant of the two. I refer
to detribalisation, which separates the individual from his back-
ground, and thereby causes him to lose all contact with the institu-
tions of his society. The break thus established between the

1
In order to ascertain a definite point of customary law a meeting of" experts "
was called before the court. The group of experts was la twrbe, and its members
les turbiers.
 168 Articles ['959] J.A.L.
individual and the principles which guide his legal and social life
leads necessarily to the progressive disappearance of these principles,
and consequently to the total disappearance of customary law.
As to the second factor, it arises from the judicial organisation. One
notes at the present day a general tendency to replace the traditional
judicial authorities by independent magistrates, thus causing an
effective separation of powers. A new break in indigenous legal
tradition is thus brought about, and this tends again towards the
disappearance of the customary law. Bearing this in mind, it is
v certain that the recording of customary law ought to have a precise
and practical character, whilst paying due regard to the original
nature of traditional institutions. It would be a waste of time to
hope to make their customary law available to Africans by presenting
them with a learned sociological study of their institutions. Such
studies are invaluable for the elaboration of manuals of customary
law, but it would be dangerous to think that they can replace them.
The last characteristic of the recording of customary law in
France is that it was almost certainly tied up with legislative action.
The kings were of the opinion that only by conferring on the texts—
theoretically at least—the force of statute-law could they be assured
of general respect. It seems at present certain that this last charac-
teristic will not be shared by the recordings of African customary
law. There appears to be a reluctance to freeze in statutory form
customary laws which are still evolving rapidly. From this point
of view the result of the work of recording will probably be presented
in the form of a clear and precise manual, which will not have the
force of law; from the manual will be excluded all the explanations
of a sociological type which lie behind the text as adopted, such
considerations being reserved for separate studies.
Such, then, were the fundamental characteristics of the work
begun in 1453 by the kings of France, and the first analogies which
it is possible to make between this work and that which experts in
African law want to start up at the present moment. We shall
now examine the approach, methods and personnel through which
the " compulsory" recording of customary law in France was
carried out.
As already noted the kings of France attacked the problem
which is the subject of this article in 1453 through article 135 of the
Ordonnance de Montil-les-Tours, " on the administration of justice ".
In order to cure the uncertainties in the unwritten customary law
and to put an end to the enormous expense caused by the method of
enquetes par turbe, it was decided to proceed to the recording of the
customs, usages and rules of procedure of the kingdom. This
recording was to be carried out in each place by making use of
those concerned with judicial business in the locality. The text
prepared by their labours had then to be sent to Paris, where the
King would cause it to be scrutinised by the Gour de Parlement of
that town, which would finally send it on to the King's privy
council with their observations. The text had then to be sent back
to the place from which it originated in order to be promulgated.
By promulgation one means a public reading of the text in the
presence of representatives of the provincial Estates, this reading
Vol. 3. No. 3 Recording of Customary Law 169
being followed by the enactment of the text by a royal official. A
copy was then deposited at the principal seat of the administrative
and judicial organs of the locality, whilst another copy was sent for
registration at the registry of the Parlement de Paris. Such were the
principles laid down by the Ordonnance of 1453. Generally speak-
ing, these principles were not varied during the century in which
the work of" recording went on.
The results of the Ordonnance de Montil-les-Tours were practic-
ally nil. To be sure we are aware of the Burgundian recordings of
customary law for the Duchy and County in 1459, but it does not
yet appear sufficiently well established that these recordings were
the consequences of the Ordonnance of 1453. Likewise we know of
various attempts to record customary law in the provinces—in
Anjou, for example; but none of them had any tangible result
which one can definitely attribute to the Ordonnance of Charles
VII. It is probable that the very general nature of the provisions,
and their place right at the end of an ordonnance abounding with
provisions of a more directly practical character, account for this
lack of success.
The work was taken up anew by Louis XI in 1481, and the first
results started emerging. One must straightway note that the
monarch had not adopted exactly the same method of issuing a very
general order as his predecessor. Whilst following the same prin-
ciples, he communicated them directly by letters patent to the
baillis or bailiffs of the kingdom, enjoining on these functionaries
of the Crown the necessity for making a start on the task as soon as
possible. The King's clear-cut attitude, coupled with his well-known
firmness of character, could not fail to produce results. It was in
1481 that there appeared the first collections of customary law in
consequence of the movement for compulsory recording in France.
Unfortunately Louis XI died two years after initiating this work,
and with his death it came to a standstill once again.
It began again in 1493, that is, after an interruption often years.
Charles VIII, once his apprenticeship as king was over, took the
torch from the hands of his predecessors and caused the recording
of customary law to progress with giant steps. And he did so while
considerably improving the procedure for the promulgation of the
texts.
It was in effect during the stages of the procedure which im-
mediately preceded the promulgation, and in the promulgation
itself, that the causes for the slowing up of the recording are partially
to be found. We have seen that the texts as drafted in the different
provinces were sent to Paris, and submitted first to the Parlement
and then to the King's council before being sent back to the provinces
for promulgation. The Parlement, like the council, was not short of
work, and, failing a precise distribution of its functions, the customary
law drafts tended to remain at Paris for some years.
So the first achievement of Charles VIII was that of designating,
within the body of the Parlement, a committee which had as its
primary function the study of the customary law texts. Nevertheless
it soon became apparent that this measure was not enough, for the
congestion remained in the privy council. Accordingly this second
170 Articles [1959/U.A.L.
level of control over the texts at Paris was abolished in its turn.
From this moment on the verification of the drafts was, as a general
rule, entrusted to a committee of the Parlement. Only in exceptional
cases were the texts, as we shall shortly see, referred to the council,
There remained, though, a third obstacle to the proper functioning
of the rules prescribed by the Ordonnance de Montil-les-Tours.
As already noticed, the promulgation consisted in essence of a
public reading of the text as amended in Paris. Now, in the light of
the time which had elapsed between the preparation of the text and
its promulgation, the persons who had taken a hand in the first
operation, and who had reached agreement on the text to be sub-
mitted to Paris, would no longer be the same as those who made up
the meeting for the promulgation of the text. This gave rise to
fresh discussions at the time of promulgation, certain members of
the provincial Estates not finding it possible to agree with a text in
the preparation of which they had had no hand. So the text would
have to be remitted to Paris, and the whole round commenced
once again. Charles VIII rapidly realised the disadvantages of this
situation. He decided that, at the time of promulgation, the royal
commissioners who took part should in future have the power to
settle any controversies that arose at this point; only the extreme
cases, which it was absolutely impossible to reach agreement on
there and then, should be transmitted to the Parlement and to the
King's council, who would consider them and reach a final decision
without reference to the provincial estates in default. Furthermore,
the fact that there were thus some articles upon which it was not
possible to reach agreement did not prevent the promulgation of
the whole body of the recorded customary law, with the exception
of these special cases.
Such, then, were the measures taken by Charles VIII in order that
the numerous customary laws recorded in draft form during his
reign might be promulgated in accordance with the provisions of the
Ordonnance de Montil-les-Tours. He decreed these different
modifications of the procedure between 1493 and 1497. A few
months later he died, without having seen in action the procedure
to the improvement of which he had devoted all his attention. No
record of customary law was actually published during the reign
of Charles VIII.
More years passed before the work was taken up again. It was
Louis XII who applied himself to the triple task of causing the
drafting, checking, and eventual promulgation of whatever had not
been dealt with already. The work was a considerable one, but the
new king (it is worth remarking that again some years elapsed
between his accession and the issue of his first letters patent)
undoubtedly profited from the often unfortunate experience of his
predecessors. In fact, from the beginning of the sixteenth century
the work entered its final stage. From then on, recording, checking
at Paris, and promulgation in the provinces, succeeded each other
in unbroken rhythm until the reign of Henry II, by which time the
customary law map of France was virtually completed. Then the
time came to perfect the work so far achieved, and the era of re-
forms was at hand—but that is another story.
Vol. 3. No. 3 Recording of Customary Law 171
If we examine the course of historical events, such as we have just
rapidly recounted, we can already extract four lessons to help us in
an eventual recording of African customary laws. The first of these
lessons is that the work cannot get carried out by a mere general
recommendation, even if cloaked in the form of a law. The negative
results of the Ordonnance de Montil-les-Tours sufficiently illustrate
this, as do equally the very poor results achieved by the Portuguese
in the field we are concerned widi, even though the principle of
recording indigenous customary law is found in the different
post-1926 statutes affecting Africans. It is quite vital that the task
should be entrusted to persons who are full of resolution and equip-
ped with wide powers within the limits of their responsibility.
The second lesson to be derived from the fifteenth century is that
the method of recording must have been perfected before the task
can be begun effectively. That is certainly a considerable require-
ment, but here I think that it is exactly the study of other efforts
in the matter that can be particularly helpful in working out the
method. It is true, too, that certain unforeseen obstacles may crop
up. It is essential that these should be dealt with in the most
expeditious way possible, if one does not want to see the whole work
held up because of them.
The third lesson is that, once a method has been adopted, it must
be simple. The different cogs in the mechanism of recording must
each have a precise function, and it is important not to have too
many cogs. We have already seen how, under Charles VIII, the
Parisian cogs (the Parlement and the privy council) succeeded in
holding up the efforts of recording as agreed to in the provinces. I
hope to deal later on with this problem of method.
Lastly, and this is quite vital, there must be complete continuity of
effort. We have seen how in two cases the death of a king (Louis XI
and Charles VIII) caused the suspension of the work of recording.
We know that modern governments die just as quickly today, and
often more quickly than kings; and that committees set up for the
study of particular problems usually share the fate of the govern-
ments which established them. That is why it is necessary—if
governmental support is indispensable, as we have already remarked
at the beginning of this article—for the work to be entrusted to an
independent body, whose only purpose will be to carry out its object,
and which will possess the stability necessary for such a task.
If, now, we examine the different features which characterised the
obligatory recording of customary law in France, we can again
derive certain lessons from the examination. First of all, if we look
at the territorial framework widiin which the recordings were made,
we shall see that in most cases this was the administrative unit of the
period, namely the bailiwick or seneschalsy. Many bailiwicks
merely reproduced the divisions of old France into provinces—this
was the case, for example, with Anjou, Touraine, and Orleans.
One can also note that in particular cases where the feeling of a
customary unity had existed for a long time, as with Normandy, the
ancient grouping stood out against the more recent administrative
division. There was always only one customary law in Normandy,
even though the orders for recording were sent to the bailiffs of
172 Articles [1959] J.A.L.
Caen, Evreux, Gisors, and Rouen, each of whom was in charge of a
part of ancient Normandy. Such orders led to no result.
Likewise in Africa it will be necessary in many cases to ignore the
framework of the present administrative divisions, in consonance
with the feeling of unity in customary law that unites populations
living at the present moment within different jurisdictions. And,
on a wider scale still, the question of eventual international co-
operation raises itself, so that peoples split by colonial frontier-lines
drawn up in the nineteenth century—I am thinking, for instance,
of the Zande, who straddle the Belgian Congo, Sudan, and the
Central African Republic—should not be assigned different custom-
ary laws according as they live on one side or the other of these
artificial boundaries.
The problem of finding persons to carry out the recording also
presented itself in the fifteenth century. One can say in general that
everyone concerned with judicial matters was invited to collaborate
in the common task. Thus those royal officials with legal jurisdic-
tion were invited to participate in the drafting of the texts, under
the circumstances these being the bailiff or his lieutenant, who
already at this period tended to specialise in judicial matters. One
also finds the notaries, advocates and prosecutors (all practising
lawyers) involved, side by side with the coutumiers, the custodians of
the ancient oral tradition, and sometimes members of the University,
who represented the new science of law inspired by Roman law.
Generally it was to these persons that the first work of recording was
entrusted. Indeed it might happen that the bailiff or his lieutenant
might draft the statement of the customary law by himself, but
to this there were exceptions. It was rarely the provincial estates
as such that concerned themselves with the task, for which the
majority of their members were not trained. And when the Estates
did choose a committee out of their number, it usually consisted of
the members of the assembly with legal knowledge. So much for
the persons who were concerned with the first stage of recording.
One must emphasise that its importance and definitiveness varied
infinitely in accordance with the customary laws. It might therefore
happen that there were large variations in the quality of the texts
put forward.
We have seen that the text was then sent to Paris, where it was
subjected to the scrutiny of the Parlement of that town and then to
the privy council. We have also seen how the functions of the latter
body were almost entirely superseded in this matter in the interests
of greater efficiency. It is clear, then, that the judicial element
played the preponderant role in the verification of the first record-
ings. In the same way, after the reforms of Charles VIII, it was on
the shoulders of the conseilUrs or members of the Parlement charged
with the promulgation that the heaviest burden rested. It was they
who, after having carefully studied the text submitted to them, set
off for the country in order to proceed, on the spot, to a final
verification of the draft, which would then be promulgated by them
and under their complete responsibility. I believe one could never
sufficiently express the merits of such as Baillet, Barme and Besancon,
who, in their tours from customary law area to customary law area,
Vol. 3. No. 3 Recording of Customary Law 173
completed the work which had been started by others months
before in the provinces to which they now returned.
It was at this point that the third cog in the work of recording
fitted in in a decisive manner: I refer to the provincial Estates. It
was their responsibility at this stage to ratify the text, which would
become their customary law, in the presence of the royal commis-
sioners, members of the Parlement. One must emphasise the need
for popular support for the work of recording. It is this support
which ensures, for those who have sponsored the recording, that the
text upon which they have conferred the force of law will be effect-
ively applied.
If, now, we try to see how similar machinery might operate in
modern Africa, we come to the following conclusions. To begin
with, it is very often impossible to call in only those persons who
administer the law or are subject to it to carry out the first stage,
that of recording. Firstly, they frequently lack the appropriate
training for such an assignment, being incapable of putting into
words the legal reality which they know in practice (often without
understanding of its fundamental principles). Then the mere fact
of recording presupposes practical experience which they do not
have. For these reasons not only will it be necessary to seek their
assistance, but in addition the role of the administrative authorities
working in the region—whose functions today correspond to those
of the bailiff in the fifteenth century—will be a preponderant one.
Finally, it appears that the professional researcher will also have a
part in this work, which, as in ancient France, must be a joint one.
That the second stage of the process should be entrusted to the
judiciary or magistracy seems to me equally desirable as the rule in
Africa. One must not forget that the work of recording has a utili-
tarian character, and that in consequence the judiciary will be the
best placed to appreciate the value of such and such rules for the
better administration of justice. The example of France, it must be
noted, sufficiently illustrates the importance of the task which is thus
entrusted to the Bench. Because of this importance some of them
were specially assigned to this work. Moreover one must not forget
that the conseillers of the Parlement de Paris found themselves face to
face with legal institutions which were much more familiar to them
than the institutions of one African customary law or another might
be to the members of the Court of Appeal or the judges in the British
High Court. So those judges or magistrates who might be assigned
to such duties today ought to be chosen from those who have had
the closest contact with customary law in their duties.
If we turn now to look at the last stage of the process, we have
already emphasised the important part played by the Estates. I
think that in modern Africa a similar consensus of the people will
also be indispensable, if one wants to make certain that the texts
that we prepare do not remain dead letters, as some of our laws
(which attempt in vain to compete with deeply rooted traditional
institutions) have done—I am thinking, for instance, of the decrees
forbidding polygamy, which are not applied, and are in fact in-
capable of application, in many parts of Africa.
Before concluding this short article, which considers the lessons
174 Articles [1950/IJ.A.L.
which the recording of customary law in France during the fifteenth
century may have for the recording of African customary laws, I
should like to have a look at one other aspect of the French recording
of customary laws; I mean the content of the texts prepared in the
way outlined. Firstly, the texts were usually divided into two distinct
parts: the first part comprising those customs which were termed
" general ", or common in every jurisdiction, and the second part
comprising those customs termed " local", applying only in
particular areas. The quantitative importance of these local customs
was generally very small, and they represented either an amplifica-
tion of the general custom on points of detail, or a modification of it
on one or more detailed points.
Such a method of presenting the texts seems to me to be valuable,
since it allows one to collect together, side by side with the general
text stating the principles which are common throughout an ethnic
group, the local variations from this common foundation, thus
having regard for traditions which are purely local. Here again the
work cannot be confined to the natives; only a comparative study
of the varying institutions found within one ethnic group will
permit one to prepare a general version and special versions of the
customary law.
If we proceed to consider the basis of the law contained in these
records, it is clear that they were concerned in essence with custom-
ary rules, with " customs, usages and practice ", the last word
referring to customs relating to procedural matters. Under these
headings were collected the rules of civil law and procedure.
Criminal law occupied a relatively unimportant place. The con-
tents of recordings of African customary law should also probably
correspond closely with these other examples. The only qualification
on this is that the customary criminal law will probably disappear
completely; up till now it has been uniform in most of the African
territories. However, some offences of a purely customary character,
which are not in the Penal Codes, may survive; but they will be the
exceptions.
This concludes our rapid survey of the two problems, which will
have shown (as I hope) that the lessons to be derived from the first
can be of great assistance in finding a better solution for the second.
It is quite true that " comparaison n'est pas raison ", and that much
more will be written and spoken on the problem of recording
African customary laws; but I hope nevertheless that this modest
essay may serve as a small contribution to the carrying out of the
work which is of such deep concern to us all.

SUMMARY1
Dans le cadre d'une etude comparative des differentes redactions de
droits coutumiers, et en vue d'apporter ainsi une contribution a l'etude des
problemes poses par la redaction des droits coutumiers africains, ce bref
1
This Summary in French is appended for the benefit of French-speaking
readers of this Journal.—Editor.
Vol. 3. No. 3 Recording of Customary Law 175
essai est consacr6 a la redaction des coutumes en France aux XVeme
et XVIeme siecles.
Les caracteres essentiels de cette redaction sont au nombre de quatre:
la redaction n'est plus spontan£e comme aux siecles precedents, mais est
imposee au milieu coutumier par une force qui lui est exterieure, celle du
pouvoir politique central. On peut ainsi parler de " redaction forcee " des
coutumes. La redaction se fait ensuite de maniere systematique en vue de
rem&Iier au caractere fragmentaire des essais anterieurs. La redaction
presente egalement un caractere utilitaire accentu6 puisqu'il s'agit d'assurer
une meilleure administration de la justice par une meilleure connaissance
de la coutume. Enfin la redaction est une oeuvre legislative puisque les
textes promulgues ont force de loi. II semble que ces differents caracteres
doivent se retrouver dans les principes qui guident la redaction des droits
africains, a cette exception pres qu'il semble peu souhaitable de conferer
la force de la loi a ces dernieres coutumes une fois qu'elles seront recligees
&ant donn6 leur caractere extrfimement mouvant.
Chronologiquement la redaction des coutumes de France s'dtend sur
un peu plus d'un siecle, le point de depart dtant marqu£ par l'ordonnance
de Montil-les-Tours de 1453. Malgr^ les interventions de Charles VII et
de Louis XI, peu de coutumes furent r&lige'es sous leur regne. Le travail ne
d6buta vraiment que sous Charles VIII a partir de 1493. Des lors, les
principes de la redaction des coutumes ^taient d^finis et le travail n'allait
guere plus s'arrfiter avant la moitie' du XVIeme siecle de maniere systemati-
que. De 1'examen de l'histoire de la redaction, il est possible de tirer une
quadruple conclusion: le travail de redaction doit £tre organist dans ses
moindres details par l'autoritd qui se charge de le promouvoir, la methode
doit 6tre parfaitement au point avant de passer au travail de redaction
proprement dit, la mdthode doit fitre simple, enfin la continuity du travail
doit 6tre assured par un choix soigneux des organes de realisation.
Si nous examinons, pour terminer, quelques aspects principaux de l'ex-
p^rience frangaise aux temps modernes, elle nous apprend que l'oeuvre de
redaction ne doit pas rester attachee au cadre dtroit des divisions adminis-
tratives, qu'elle doitfitrel'oeuvre de tous ceux qui ont intdrtt a une meilleure
administration de la justice et enfin porter principalement sur les matieres
ou s'exprime le plus I'originalit6 des institutions de la soci&6 dont la
coutume est recligee.