THE VOICE AND LETTER OF THE LAW: FROM ORALITY TO PRINT ²⁰

Ordinary figures of speech and the metaphors ²¹ we use to discuss law reveal much about the character of law: disputes are resolved in a court "hearing"; lawyers advise their clients to "put it in writing"; agreements must be "signed and sealed"; judges follow "the letter of the law," honor "the binding force" of precedent, and rule "by the book"; students look for the law "buried in the text" and study "the black letter law"; and, when the "dead letter of the law" fails, we sometimes turn to "the living law." This lexicon is all a part of "thinking like a lawyer."

These figures of speech point to the essential relationship between law and the method by which it is communicated. They direct us to monumental events in the history of law: the age of the "oral law" of custom spanning from "time immemorial" to at least the thirteenth century; ²² the roles of the "remembrancer" or "lawspeaker" in preliterate societies; ²³ the Athenian homicide law of Draco, circa 620 B.C.; ²⁴ Justinian's sixth century Corpus Juris Civilis; ²⁵ the Anglo­Saxon laws of Ethelbert, circa 600; ²⁶ the writing of Magna Carta in 1215; ²⁷ Ranulf Glanvill's Tractatus of 1187 and Henry Bracton's celebrated, although unfinished, Note Book, written in the 1250s; ²⁸ the English systems of original writs and plea rolls that developed during the reigns of Henry I and II; ²⁹ Edward I's quo warranto statutes of 1275 and 1293 that fixed legal memory at September 3, 1189; ³⁰ and the Year Books beginning in 1292, ³¹ followed by the first publication of English law books in 1481 and the printing of the session laws of Parliament in 1485. ³² What makes these events monumental is not their substance as much as their communicative forms­the media that shaped the law. In each of these instances, a different mode of expression would have fundamentally altered the law and its history. Legal events, including the formation and application of law, are transformed when the oral word becomes writing and when the written word becomes print.

Notwithstanding the earlier oral and scribal vehicles for law, our current legal practices, institutions, and theories are predominantly the outgrowth of the age of print. Even with the advent of video (and computer) technology, ³³ the model of modern law remains primarily print­based. Obviously, the invention of moveable type allowed the widespread dissemination of legal information and the growth of legal regulation. Less obviously, the special properties of print have influenced and still both the values and processes of law.

Generally, "law" in an oral culture tended toward the customary, the participatory, the ceremonial, the adaptable, and the contextual. When law became chirographic, it tended toward the present, the hierarchical, the informational, the spatial­temporal, and the artificial. After its movement from script to print, the law tended toward the depersonalized, the objectified and systematic, the controllable and inflexible, and the abstract. Although there is some overlap, these attributes represent the prototypical oral, scribal, and print cultures in law. These distinctions illuminate the causes of the uneasy coexistence of print­based law with paratexts.