Dispute Resolution in Oral Cultures

Oral solemnities also played an integral part in dispute resolution in preliterate cultures. In their move away from bloodfeuds, the Northern and Western European tribal orders of the sixth to tenth centuries often used "trials by ritual oaths" to settle conflicts between households and clans. ⁴⁷ Opposing parties would appear before public assemblies and exchange a series of oaths and offer "supporting proof" in the testimony of a number of kin or neighbors, known as "oath­helpers" or "compurgators," who would also recite ritual oaths. ⁴⁸ Professor Harold Berman describes the significance of oath­taking as "legal speech" in an oral society: "All [oaths] were cast in poetic form, with abundant use of alliteration.... The dramatic and poetic elements ... elevated legal speech above ordinary speech ...." ⁴⁹

Among the Germanic peoples, the same public assemblies that issued judgments in trials by oaths also issued oral proclamations, known as "dooms." ⁵⁰ The dooms, though not legislation in the post­Gutenberg sense, nevertheless pronounced the community's rightful ways. In Icelandic societies, the oral laws were announced once a year by the highest official, the "lawspeaker." ⁵¹ Professional "remembrancers" in other preliterate societies served a similar role of preserving and transmitting their legends and customs. ⁵²

What ritual sanctified, what ceremony legitimated, and what remembrancer recounted were the habits and norms of the people­the customs that assumed the force of law. ⁵³ "[T]he accustomed ways of life ... were passed from generation to generation by unwritten tradition." ⁵⁴ By nature, custom was evolutionary, collective, and comparatively participatory; ⁵⁵ oral law emerged more from patterns of social relations among the ordinary folk than from deliberate and defined regulation by any governmental authority. Spoken custom was "tied to the movement of life itself in the flow of time." ⁵⁶