Law and the Spoken Word

"In the beginning the only word was the spoken word." ³⁴ Whether the spoken word of preliterate cultures was ever "law," it clearly was not law as we now know it. H.L.A. Hart ³⁵ and others ³⁶ suggest that "oral law," like "oral literature," ³⁷ is a contradiction in terms; for these scholars, two of law's essential elements are its written or typographic form and the recognition given to its text as authoritative. ³⁸ However this jurisprudential point is resolved, it vividly reveals the importance of the means of communication to the concept of law. Suffice it to "say" that oral societies regulated their behavior and relations by norms that were conveyed and enforced by the spoken word, not by written form.

"Primary orality," Professor Walter Ong tells us, is "the orality of a culture which has never known writing ...." ³⁹ This is the ancient culture of the household, tribe, clan, village, and loosely formed association. Even after the invention of the alphabet ⁴⁰ and the introduction of writing in Greece, ⁴¹ Western civilization remained essentially oral. ⁴² The oral tradition prevailed until literacy and the use of the vernacular in writing became more widespread between the eleventh and thirteen centuries.

Preliterate societies depended heavily on ritual and ceremony, including religious ceremony, to manage transactions and oversee social relations. ⁴³ For example, before written documents were used to make conveyances, parties exchanged symbolic objects or engaged in rituals to signify their transactions and to commit the events to the memory of witnesses. As Professor M.T. Clanchy explains:

[T]he witnesses "heard" the donor utter the words of the grant and "saw" him make the transfer by a symbolic object, such as a knife or a turf from the land.... Such a gesture was intended to impress the event on the memory of all those present. If there were a dispute subsequently, resort was had to the recollection of the witnesses. ⁴⁴

Whether the ritual involved an oral recitation accompanied by the transfer of a twig, turf, glove, or ring, or the touching of an altercloth of bell­rope, ⁴⁵ the legal measure was the living memory. To preserve the security of a transaction, the oral culture relied on generational memory. "Since memory was obviously likely to be the more enduring the longer its possessors were destined to remain on this earth, the contracting parties often brought children with them." ⁴⁶ Visual and oral drama imbued the event with legal significance.