Nicolas Bohier (1469 – 1539) and the ius commune: a study in sixteenth–century French legal practice

Abstract

European legal history, as a field of scientific enquiry, is a relatively young discipline that can trace its roots back to the German jurist Savigny, whose work on the jurists of the medieval ius commune is commonly seen as the first of its kind. As one of the foremost German scholars of the nineteenth century and a fierce opponent of German codification, Savigny laid the foundation for generations of subsequent historians, not only in terms of the scope, but also in terms of the method of enquiry. Thus, in the generations after Savigny, European legal history tended to be approached in terms of general narratives charting the development of the European legal order through successive historical epochs. Within these narratives, jurists played a prominent role. Thus, the creation of the legal order of Europe was based upon a translatio studii from the Roman jurists via the medieval ius commune to civil codes of the nineteenth century. By grouping jurists into “schools” or “movements”, modern commentators, so it was argued, were able to assess the impact of these on the narrative of European legal history. Although, since the end of the Second World War, this narrative has become more nuanced, the jurists remain central to it. This has had a number of consequences. The main consequence of this focus on jurists (mostly academic figures teaching at universities) has been the marginalisation of legal practice and legal practitioners in the narrative of European legal history. And yet, as recent research on the rise of central courts in Europe has shown, legal practice clearly had an impact on the development of the European legal order. In light of these insights, this thesis seeks to contribute to the narrative of European legal history by focusing not on the works of academic jurists, but on the activities of legal practitioners. This statement requires delimitation. Rather than focusing on a number of legal practitioners over a long period of time, this thesis will focus on a single legal practitioner who flourished during a specific period in European history using the principles of a microhistory. The individual in question is the French lawyer Nicolas Bohier (1469-1539). The reasons for this specific focus are twofold. First, a focus on a specific individual and his works allows for greater scrutiny in depth, thus providing a counterbalance to (and also a means of testing and verifying) the broad sweep accounts found in most works on European legal history. In second place, Nicolas Bohier and his oeuvre cry out for a critical analysis and, until now, remain largely unstudied. As a practising lawyer and eventually president of the regional court of Bordeaux, Bohier was at the coalface of French legal practice in the sixteenth century. As a prolific writer and editor, Bohier left a rich corpus of work consisting of records of decisions of the court in Bordeaux, legal opinions as well as customs of the region. Furthermore, sixteenth-century France is a particularly exciting topic of investigation. This period not only saw the rise and solidification of Royal authority, but also saw the beginning of the homologation of customary law in France. On an intellectual level, the sixteenth century saw the rise of “legal humanism”, a particularly controversial intellectual movement in the context of European legal history as shown by recent research. This then brings us to the central point of this thesis. If, during the sixteenth century, the medieval ius commune was being replaced by “national” legal orders across Europe, as the general surveys of European legal history state, the works of a legal practitioner would show it much more clearly than the works of academic jurists. This thesis will therefore examine Bohier’s use of the term ius commune across his works to assess not only his understanding of the term, but also to assess how this concept operated in relation to other “sources of law”, for example statute and custom. Although the results of a microhistory study should not be generalised too far, it will permit us to interrogate the general narratives of European legal history of the early modern period.