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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 verbally 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.

Oral law in Jurisprudence

On a legal point of view, an oral law can be:

  • a habit, or custom with legal relevance or when the formal law expressely refers to it (but in this latter case, it is properly an indirect source of legal rights and obligations);
  • a command, an order, verbally given, 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.

Oral law in Judaism

Rabinical Judaism has always held that the books of the Tanach (aka The Old Testament, the written law) have always been transmitted in parallel with an oral tradition. Jews point to the text of the Torah, where many words are left undefined, and many procedures mentioned without explanation or instructions; the reader is assumed to be familiar with the details from other, oral, sources.

This parallel set of material was originally trasmitted orally, and came to be known as the oral law. At the time, it was forbidden to write and publish the Oral Law, as any writing would be incomplete and subject to misinterpretation and abuse. However, after great debate, this restriction was lifted when it became apparent that it was the only way to ensure that the law could be preserved. To prevent the material from being lost, around 200 CE, Rabbi Judah HaNasi took up the redaction of oral law; it was compiled into the first written work of rabbinic Judaism, the Mishnah. Over the next four centuries this body of law, legend, ethical teachings and argumentation underwent debate in both of the world's major Jewish communities (in Israel and Babylon). The commentaries on the Mishnah from both of these communities eventually came to be edited together into compilations known as the Talmud.

Halakha (Jewish law and custom) thus is not based on a literal reading of the Tanakh, but on the combined oral and written tradition, which includes the Tanakh, Talmud, and to some extent, the early Midrash compilations.


Bibliography on oral law and traditions (Jewish)

  • "The Encyclopaedia Judaica", Keter Publishing (available in print or in an updated CD-ROM version.)
  • "The Talmud", Adin Steinsaltz
  • "Introduction to The Talmud and Midrash" H.L. Strack and G. Stemberger , Fortress Press

Bibliography on oral law and traditions (general)

  • 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.

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