"Living Law" in the Oral Tradition

Because they flowed with life, the oral traditions were far less likely to be rigid or "dead letter" than later handwritten and typographic law would be. While oral culture had formalistic ⁵⁷ and exclusionary qualities, ⁵⁸ adaptability was its dominant feature. The fact that customs had to be recalled and repeated, rather than recorded and read, made them relatively malleable. ⁵⁹ "Remembered truth was ... flexible and up to date, because no ancient custom would be proved to be older than the memory of the oldest living wise man." ⁶⁰ The medieval Italian lawyer Azo, whom Justice Bracton esteemed, insinuated the fluidity of custom when he stated: "A custom can be called long ... if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years." ⁶¹ Thus, it is anachronistic to characterize the lawspeaker or remembrancer as a professional historian who studied and recounted the past objectively. ⁶² With memory as the only safeguard of their traditions, members of oral societies could give the sanction of "ancient" custom to practices or beliefs that were relatively new.⁶³

In an environment in which custom had a "creative energy," ⁶⁴ the oral tradition was more "living law"­localized, situated, and contextualized. Typically bound to no written text and tied to no hierarchical bureaucracy, ⁶⁵ custom could operate as the mirror and mold of the community's purposes. "Jurisprudence, in short, was the expression of needs rather than of knowledge." ⁶⁶ Essentially, the other significant attributes of the oral tradition derived from its contextual nature: The custom, the ceremony, the participation and the adaptability in the "oral law" reflected and shaped the common consciousness. As Professor Berman elegantly describes it: "Law was conceived primarily as an expression of the unconscious mind of the people, a product of their 'common conscience' ... rather than primarily as a deliberate expression of conscious reason or of will. It was, in that respect, like art, like myth, like language itself." ⁶⁷

As the oral traditions yielded to the chirographic in law, the oral way nonetheless continued to assert itself in varying degrees. This influence remained true, though less so, during the age of print. And much later, in the twentieth century, the oral ideal of law found a sympathetic ear in Karl Llewellyn and the legal realist movement. ⁶⁸ This vindication of orality, tentative though it was, stands to be actualized in the era of paratexts. But this is to move too far down the road, far beyond the time of scribal law which we consider next.