Oral law
Encyclopedia
An oral law is a code of conduct
in use in a given culture
, religion
or community application, by which a body of rules of human behaviour is transmitted by oral tradition
and effectively respected, or the single rule that is orally transmitted.
Many cultures have an oral law, while most contemporary legal systems have a formal written organisation. The oral tradition (from the Latin
tradere = to transmit) is the typical instrument of transmission of the oral codes or, in a more general sense, is the complex of what a culture transmits of itself among the generations, "from father to son". This kind of transmission can be due to lack of other means, such as in illiterate or criminal societies, or can be expressly required by the same law.
There has been a continuous debate over oral versus written transmission, with the focus on the perceived higher reliability of written evidence, primarily based on the "linear world of academia" where only written down records are accepted. However, "standard" theories of orality and literacy have been proposed.
An oral law, intended as a body of rules, can be admitted in jurisprudence
as long as it shows some efficacy, therefore it needs that the law is public, the human action is evaluated by a judge
(ordinarily producing a sentence
according to the general interpretation of the law) and then a punishment
has eventually to be put into effect. Some oral laws provide all these elements (for instance, some codes of conduct in use among criminal associations like mafia
do have a well known law, a judge, a condemnation), while others usually miss some of them.
term "Torah
" is often translated as "Law", its actual meaning is "Instruction" or "Teaching". Rabbinic Judaism
holds that the books of the Tanakh
were transmitted in parallel with an oral tradition, as relayed by God to Moses and from him handed on to the scholarly and other religious leaders of each generation. Thus, in Judaism, the "Written Instruction" (Torah she-bi-khtav תורה שבכתב) comprises the Torah and the rest of the Tanakh
; the "Oral Instruction" (Torah she-be'al peh תורה שבעל פה) was ultimately recorded in the Talmud
(lit. "Learning") and Midrash
im (lit. "Interpretations"). The interpretation of the Oral Torah
is thus considered as the authoritative reading of the Written Torah
. Further, Halakha
(lit. "The Path", frequently translated as "Jewish Law") is based on a "Written Instruction" together with an "Oral Instruction". Jewish law and tradition is thus not based on a literal reading of the Tanakh, but on the combined oral and written tradition.
Code of Conduct
A code of conduct is a set of rules outlining the responsibilities of or proper practices for an individual, party or organization. Related concepts include ethical codes and honor codes....
in use in a given culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
or community application, by which a body of rules of human behaviour is transmitted by oral tradition
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
and effectively respected, or the single rule that is orally transmitted.
Many cultures have an oral law, while most contemporary legal systems have a formal written organisation. The oral tradition (from the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
tradere = to transmit) is the typical instrument of transmission of the oral codes or, in a more general sense, is the complex of what a culture transmits of itself among the generations, "from father to son". This kind of transmission can be due to lack of other means, such as in illiterate or criminal societies, or can be expressly required by the same law.
There has been a continuous debate over oral versus written transmission, with the focus on the perceived higher reliability of written evidence, primarily based on the "linear world of academia" where only written down records are accepted. However, "standard" theories of orality and literacy have been proposed.
Oral law in jurisprudence
From a legal point of view, an oral law can be:- a habitHabituationHabituation can be defined as a process or as a procedure. As a process it is defined as a decrease in an elicited behavior resulting from the repeated presentation of an eliciting stimulus...
, or customConvention (norm)A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....
with legal relevance or when the formal law expressly refers to it (but in this latter case, it is properly an indirect source of legal rightRightRights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s and obligationObligationAn obligation is a requirement to take some course of action, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, and possibly...
s); - a spoken command or order that has to be respected as a lawLawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
(in most modern western legal systems, some dispositions can be issued by word in given cases of emergency).
An oral law, intended as a body of rules, can be admitted in jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
as long as it shows some efficacy, therefore it needs that the law is public, the human action is evaluated by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
(ordinarily producing a sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
according to the general interpretation of the law) and then a punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
has eventually to be put into effect. Some oral laws provide all these elements (for instance, some codes of conduct in use among criminal associations like mafia
Mafia
The Mafia is a criminal syndicate that emerged in the mid-nineteenth century in Sicily, Italy. It is a loose association of criminal groups that share a common organizational structure and code of conduct, and whose common enterprise is protection racketeering...
do have a well known law, a judge, a condemnation), while others usually miss some of them.
Oral law in Judaism
Although the HebrewHebrew language
Hebrew is a Semitic language of the Afroasiatic language family. Culturally, is it considered by Jews and other religious groups as the language of the Jewish people, though other Jewish languages had originated among diaspora Jews, and the Hebrew language is also used by non-Jewish groups, such...
term "Torah
Torah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...
" is often translated as "Law", its actual meaning is "Instruction" or "Teaching". Rabbinic Judaism
Rabbinic Judaism
Rabbinic Judaism or Rabbinism has been the mainstream form of Judaism since the 6th century CE, after the codification of the Talmud...
holds that the books of the Tanakh
Tanakh
The Tanakh is a name used in Judaism for the canon of the Hebrew Bible. The Tanakh is also known as the Masoretic Text or the Miqra. The name is an acronym formed from the initial Hebrew letters of the Masoretic Text's three traditional subdivisions: The Torah , Nevi'im and Ketuvim —hence...
were transmitted in parallel with an oral tradition, as relayed by God to Moses and from him handed on to the scholarly and other religious leaders of each generation. Thus, in Judaism, the "Written Instruction" (Torah she-bi-khtav תורה שבכתב) comprises the Torah and the rest of the Tanakh
Tanakh
The Tanakh is a name used in Judaism for the canon of the Hebrew Bible. The Tanakh is also known as the Masoretic Text or the Miqra. The name is an acronym formed from the initial Hebrew letters of the Masoretic Text's three traditional subdivisions: The Torah , Nevi'im and Ketuvim —hence...
; the "Oral Instruction" (Torah she-be'al peh תורה שבעל פה) was ultimately recorded in the Talmud
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
(lit. "Learning") and Midrash
Midrash
The Hebrew term Midrash is a homiletic method of biblical exegesis. The term also refers to the whole compilation of homiletic teachings on the Bible....
im (lit. "Interpretations"). The interpretation of the Oral Torah
Oral Torah
The Oral Torah comprises the legal and interpretative traditions that, according to tradition, were transmitted orally from Mount Sinai, and were not written in the Torah...
is thus considered as the authoritative reading of the Written Torah
Tanakh
The Tanakh is a name used in Judaism for the canon of the Hebrew Bible. The Tanakh is also known as the Masoretic Text or the Miqra. The name is an acronym formed from the initial Hebrew letters of the Masoretic Text's three traditional subdivisions: The Torah , Nevi'im and Ketuvim —hence...
. Further, Halakha
Halakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
(lit. "The Path", frequently translated as "Jewish Law") is based on a "Written Instruction" together with an "Oral Instruction". Jewish law and tradition is thus not based on a literal reading of the Tanakh, but on the combined oral and written tradition.
See also
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
- Oral traditionOral traditionOral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
- RevelationRevelationIn religion and theology, revelation is the revealing or disclosing, through active or passive communication with a supernatural or a divine entity...
- Uncodified constitution
- Common LawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
Further reading
- Vansina, J., (tr. Wright), Oral Tradition:A Study in Historical Methodology (London, 1965)
- Vansina, J., Oral Tradition as History (Wisconsin, 1985)
- Finnegan, Ruth H., Oral Poetry: Its Nature, Significance and Social Context (Cambridge, 1977)
- Henige, D.P.David HenigeDavid Patrick Henige is an American historian, bibliographer, academic librarian and Africanist scholar. The majority of Henige's academic career has been spent in affiliation with the University of Wisconsin–Madison, where for over three decades he has held the position of bibliographer in...
, The Chronology of Oral Tradition: Quest for a Chimera (Oxford, 1974) - Henige, D.P.David HenigeDavid Patrick Henige is an American historian, bibliographer, academic librarian and Africanist scholar. The majority of Henige's academic career has been spent in affiliation with the University of Wisconsin–Madison, where for over three decades he has held the position of bibliographer in...
, Oral Historiography (London, 1982) - Tonkin, Elizabeth, Narrating our Pasts: The Social Construction of Oral History (Cambridge, 1992).