Oral law
An
oral law is a
code of conduct in use in a given
culture,
religion or other regroupement, 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 do 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 (like for illiterate or criminal societies) or can be expressedly required by the same law.
From a legal point of view, an oral law can be:
*a
habit, or
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
rights and
obligations);
*a spoken command or order that has to be respected as a
law (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 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.
Although the
Hebrew 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 the scholarly and other religious leaders of each generation. Thus, in Judaism, the "Written Instruction" (
Torah she-bi-khtav תור×" שבכתב) comprises the Torah and the rest of the
Tanakh; the "Oral Instruction" (
Torah she-be'al peh תור×" שבעל פ×") was ultimately recorded in the
Talmud (lit. "Learning") and
Midrashim (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.
*
Constitution*
Jurisprudence*
Oral tradition*
Revelation**
Uncodified constitutionGeneral
*
Bibliography**J. Vansina (tr. Wright), "Oral Tradition" (London, 1965); id., "Oral Tradition as History" (Wisconsin, 1985)
**R. Finnegan, "Oral Poetry" (Cambridge, 1977)
**D.P. Henige "The Chronology of Oral Tradition" (Oxford, 1974); id., "Oral Historiography" (London, 1982)
**J. Goody & I. Watt, in J. Goody (ed.), "Literacy in Traditional Societies" (Cambridge, 1968), 27-68
**E. Tonkin, "Narrating our Pasts" (Cambridge, 1992).
**The survey essay by Finnegan in "History and Theory" 10 (1970), 195-201.
