Law and the Written Word

"[T]he history of law ... begins with the written word." ⁶⁹ Put another way, the story of the law is one of distancing text from context. This distancing occurred once custom was lettered and became law. The decontextualizing of law began in, but was never realized during, the scribal era. ⁷⁰ Neither the stone commands of the Hammurabic Code, nor the papyrus dictates of Justinian's laws, nor even the parchment declaration of rights in Magna Carta could close out the reality of the oral tradition. Only print could accomplish that. Like the two­faced Janus, the scribal period looked backward to its oral predecessor and forward to its typographic successor. As such, the period of scribal literacy both preserved many of the attributes of oral law and introduced new characteristics of law that would emerge during the age of print.

When a legal event or practice is recorded in writing, several things occur. The document delimits memory by substituting fixed terms for fluid recollections. This separates writer from reader and limits the communication to a "one way conversation" in which the author "speaks" and the reader "listens" but cannot interact. ⁷¹ Moreover, the separation of writer from reader permits information to endure over time and travel across distance. This temporal­spatial extension of the written word enables a corresponding extension of authority over territories. Importantly, the word, when written, itself becomes an artificial object, is reified, and is transformed into a thing to be studied and decoded. ⁷² In the manuscript era, these properties of writing heralded the coming of print, while echoing the oral ways. ⁷³

In the approximately thirty centuries that spanned the years between the Sumerian invention of the first script some 3500 years ago ⁷⁴ and the invention of moveable type in the mid­fifteenth century, ⁷⁵ many civilizations moved from orality to functional literacy. In the West, this movement may be charted by several important developments in the history of law: the mid­seventh century B.C. recording of laws in Greece; ⁷⁶ Justinian's compilation of Roman laws around 534 A.D.; ⁷⁷ the writing of codes in the Carolingian empire in the seventh and eighth centuries; ⁷⁸ the use of pipe rolls for royal records in Henry I's reign; ⁷⁹ the appearance of the treatises of Gratian, ⁸⁰ Glanvill, ⁸¹ and Bracton; ⁸² the change from oral to written pleading and evidence in the mid­thirteenth century; ⁸³ and the beginning of the English Year Books in approximately 1292. ⁸⁴ The story of law and its scribal medium is found in the course of these and other events.