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Literate Legality and Oral Legality Reconsidered

Authors:
Mark Ryan Goodale
University of Wisconsin-Madison
Literate Legality and Oral Legality Reconsidered
There are few theoretical dichotomies more enduring, influential, and embedded
in western thought than literacy-orality. In anthropology the vigorous debate surrounding
the rise and persistence of the literacy-orality dichotomy continues unabated.1 What
makes this particular dichotomy so intriguing—and indeed in some ways intractable—for
many western scholars is the fact that regardless of what “side” they align themselves
with, they inevitably must explore the issue from deep within a literate tradition. Writing
about writing and speaking results in different conclusions than originally speaking about
writing and speaking would. It is difficult for someone who is so heavily dependent not
only on the unquestioned efficacy of the written word, but also its unrivaled authority in
the pantheon of communication options, to imagine that these characteristics might not be
inevitable in the abstract, but rather are products of a specific technology’s ideology.
In sociolegal studies a parallel dichotomy has likewise been dominant, one that
opposes written law to unwritten law. In this alignment written law is assumed to be the
natural (and preferable) end result of a process of socio-legal evolution, the highest point
on the developmental ladder of forms within which legality is constructed. Regardless of
an otherwise wide range of theoretical positions within the sociolegal literature, this
dichotomy inevitably works itself into the most varied accounts, so much so that one
must conclude that the assumption of written law’s inevitability and superiority among
sociolegal scholars is implicit. It is not my intention to claim that sociolegal work is
generally uncritical or theoretically conservative generally; rather, I argue that the notion
that written and unwritten law are fundamentally opposed—and that written law
represents a more developed or complex form of legality—are entrenched assumptions in
sociolegal research, and that they have not received the type of serious questioning they
clearly merit.
Although the written law-unwritten law dichotomy is obviously not the same as,
nor even a corollary of, the literacy-orality debate, it has developed parallel to it. And part
of what this essay seeks to do is demonstrate how lessons learned from the literacy-
orality debate inform the parallel dichotomy in sociolegal studies that has, I argue, most
often been implicit, but is now being brought to the surface, problematized, and whose
persuasiveness is seriously challenged. As I will show, the written law-unwritten law
alignment is not—and has not been—everywhere the same; in ancient Greece, for
example, what was meant by written and unwritten law was much different than at the
end of the twentieth century. Indeed, the dichotomy today is not used or understood
homogeneously; further, the distance between it and actual legal practice at any one time
1Notes
1 See, e.g., Akinnaso 1985; Bennett 1983; Boyarin (ed.) 1993; Cook-Gumperz 1993; Finnegan 1988;
Goody 1977, 1986, 1987; Graff 1979; Halverson 1992; Ong 1982; Street 1984, 1993; Tannen (ed.) 1982.
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is great. But as will be seen this should not come as a surprise, because the dichotomy
written law-unwritten law—like literacy-orality—has functioned principally as ideology,
even if part of wider social processes (and ideologies). And like all ideologies this one
serves to promote particular sociolegal interests over others and not primarily as a tool
with which to understand the complexities of legal practices. But understanding this
makes a critical examination of this dichotomy-as-ideology all the more interesting—
indeed necessary—because it claims to describe legal practices at the most basic of
levels.
By exploring the nature of oral and literate legality more broadly, I will come to
the conclusion that oral legality and literate legality are not sufficiently qualitatively
distinct as legal forms to justify maintaining the theoretical distance between them.
Moreover, I will argue that the creation of a dichotomy that opposes “written” to
“unwritten” law involves a process of artificial abstraction so removed from actual legal
practice that the dichotomy should be abandoned, if we are to demand of our theories that
they persuasively relate to—or even describe!—practice. In fact, most legality is
experienced and practiced by people in varied legal universes through neither written nor
unwritten channels exclusively—even if we could settle on an adequate definition of
what “written” and “unwritten” mean in this context, which is highly unlikely. If we insist
on continuing to think of legality in terms of types of legal forms, therefore, it will have
to be on the basis of criteria other than the degree to which a particular legal system uses
writing or not.
If the reader’s reaction at this point is to counter that contemporary sociolegal
research has long since abandoned the type of legal classifications in which the written-
unwritten law dichotomy played a prominent role, she would be right. But the
assumptions that underlie it remain, and remain largely unchallenged in mainstream
sociolegal studies. Indeed the extent to which sociolegal scholars continue to think in
terms of written vs. unwritten legal forms is striking. It is not my intention to claim that
there are no differences between legality in France and legality in rural Papua New
Guinea; that is, between legalities traditionally placed at opposite ends of the
developmental/complexity spectrum, even if implicitly. But the differences cannot be
understood in traditional terms—degree of systematization, level of organization,
continuity over time, etc.—by overlaying the written-unwritten dichotomy. In fact, all of
these characteristics can be found in equal parts in legalities both “written” and
“unwritten.”
In the rest of this essay I will outline the most important components of the
orality-literacy debate for my purposes, discuss the written law-unwritten law dichotomy
in sociolegal studies, and then show how these separate discourses interpenetrate with
each other. After that I will support my arguments regarding legal forms with specific
examples taken from diverse contexts, including ancient Greece and Rome, medieval
Europe, and colonial and contemporary Latin America. Finally, I will introduce a concept
that is derived from the oral legality-literate legality debate that I will call the “Noble
(legal) Savage.” What I mean is that as part of the debate over the supposed evolution of
legal forms, one can discern in the literature the notion that more “primitive” legal forms
are also somehow more pure, because they are uncorrupted by later accretions of legal
theory and practice. This is intriguing because it sheds light into why the written-
2
unwritten law has been so persistent in sociolegal studies: it reflects wider, and widely
documented, projections by Euro-American scholars onto the non-western legal other.
A. The literacy-orality debate
The debate surrounding literacy and orality has taken many forms and has
manifested itself in diverse contexts. Even so, the basic terms of the debate can be
outlined. On the one side are those who argue that not only is there a fundamental
difference between two discrete communicative forms—literacy and orality—but that the
differences are manifested at both the social and cognitive levels (Goody 1977, 1986,
1987; Goody and Watt 1963; Graf 1988; Olson, Torrance, and Hildyard 1985; Ong 1982).
The classic statement of this position is Goody and Watt 1963. They argue that
fundamental and irreversible changes followed in the West from the adoption of
alphabetic writing in Greece. As Collins (1995: 77) explains, Goody and Watt see the
develop of alphabetic writing leading to:
basic transformations in the nature of knowledge and cultural tradition, in
particular (a) a distinction between myth and history, (b) a distinction between
opinion and truth (formalizable inquiry or logic), and (c) a distinction between
acceptance of received tradition and a skepticism of tradition, which leads to
individuation and democratic social forms . . . [W]hereas oral accounts of the
past . . . are inherently perspectival, history depends on and emerges from a
critical synthesis of differing accounts, a synthesis relying on written accounts
and transcending perspectives. Whereas opinion and common sense are tied to
intersubjective group membership, formalizable inquiry and truth-seeking
depend on detachability aided by written procedures for reasoning and
argument. Finally, whereas socialization through (oral) language makes us
human by binding us to groups, it also inclines us to adherence to authority,
received wisdom, and common sense; but literacy, by providing alternate
accounts, provokes and sustains a skeptical attitude to authority and a greater
individuality.
Part of what make the position of scholars like Goody and Ong so interesting is
that they see their project as a foil to ethnocentric doctrines that reached their height in
the nineteenth century. What I mean is that the traditional evolutionism of Tylor, Maine,
and others saw all societies following a unilineal path of development that included the
specific progression from orality to literacy that made history possible. According to this
model, prior to the advent of literacy societies were merely collections of “people without
history” (Wolf 1982). The Goody/Ong position maintains that rather than focusing on an
illusory single path of cultural development, we should instead focus on the relevant
technology—in this case literacy—which is conceived of as culturally neutral. In this
way, so the argument goes, we can focus on the effects of the technology’s ascendance—
wherever it is found—rather than on the location of a particular culture (or ethnic group
or race) on a path that leads inevitably from orality to literacy. Having been cleansed of
any taint of evolutionism, literacy-as-technology can then be reinserted into the arena of
social inquiry as a truly value-free “technology of the intellect.”
But if literacy is a value-free technology that has dramatic effects when and if it is
adopted in a particular cultural context, what are some of these effects according to this
3
model? Scholars such as Havelock (1963, 1986) and Olson (1977) have made the
argument that the adoption of literacy leads to changes in individual cognition and, by
extension, social cognition. What they mean is that literacy as a technology does not first
effect change at the level of extra-somatic culture; rather, literacy acts first to change
brain functioning, which in turn “transforms human thinking, relationships to language,
and relationships to and representations of tradition” (Collins 1995: 77-78). In order to
support this model, proponents of the “literacy thesis” draw from cross-cultural examples
in history which allegedly demonstrate that the adoption of literacy has, beginning at the
level of individual cognition, led to sweeping changes in political, economic, and legal
structures (Schieffelin and Gilmore 1986).
The critique of the Goody/Ong model has been carried out from a number of
different angles,2 but perhaps one of the most important for my purposes has been the
technology-as-ideology argument. What this means in this context is that literacy is not,
and can never be, a culturally-neutral technology. Further, literacy is not a technology that
produces fundamental changes in individual cognition leading to collective
restructurings. Rather, this critique views literacy as a fundamentally socially-embedded
technology—as indeed all technologies are—which relies not so much on its form for its
efficacy, but ideas about its form; i.e., its ideology. Further, according to this critique
literacy is “shaped by, rather than determinate of, broad cultural-historical frameworks
and specific cultural practices” (Collins 1995: 78). Literacy-in-practice is clearly a
complex phenomenon that defies easy characterization. But the ideology of literacy
maintains that literacy is, and has always been, simply the adoption of writing, followed
by the eventual spread of knowledge of reading and writing skills; in short, a unilineal
progression from “orality” to “literacy.”
The critics of the literacy thesis acknowledge that literate practices have been
influential in world history, but attribute this influence to the ascendance and spread of
the western—and more recently, modernist—project, and not to any intrinsic historic
inevitability of the communication form itself (Derrida 1976). But as important, by
detaching literacy (or, more accurately, literacies) from the deterministic ideology of
which it is constituted, this critique has shown literacy to be only one among many
possible and actual communication projects, or, more broadly, what Digges and
Rappaport (1993: 150) refer to as “signifying systems.” And further, while literate
practices have accompanied the rise of powerful nation-states in the post-Renaissance
era, literacy cannot be said to be the dominant signifying system even during epochs in
which literacy is ideologically dominant. Indeed today, with the spread of non-literate,
“virtual” technologies, we might be entering an era that is actually post-literate.
B. Written and unwritten law
The concept of written law as distinct from unwritten law has a long historical
pedigree. Although legal historians of ancient Greece are in some dispute, apparently the
word nomos was used to refer to written law—as opposed to unwritten law, sometimes
called “customary law”—after 403 BC (Thomas 1995: 62-63; but see Gagarin 1986: 78).
23 For example, a number of scholars have asserted that the interpretation of historical evidence by
proponents of the literacy thesis is often misleading or even incorrect (see, e.g., Bloch 1993; Gough 1968;
Street 1984).
4
By the time of the apogee of Roman law, during the classical period (ca. 150 BC-235
AD), the distinction was being made between jus scriptum and jus non scriptum (Schiller
1938: 268-269). My point in establishing the earliest boundaries for the written-unwritten
law dichotomy in the western legal tradition is to demonstrate that this conceptual
differentiation stretches back to the very beginnings of western legal consciousness. And
it comes as no surprise, therefore, that a conceptual understanding whose origins and
existence are coextensive with the entire sweep of recorded history in the West has
proven so powerful as to be unrecognized as a relevant conceptual distinction. What I
mean is that from a very early time period “law” came to be understood as “written law”;
the fact that there was a period when “law” meant something much different was
forgotten—or even more accurately, was suppressed.
What does it mean to say that the conceptual distinction between written law and
unwritten law is literally ancient? There are two possible answers. The first answer looks
something like this: the conceptual distinction has had a long and venerable history
because law-as-process—and as a set of institutions to guide the process—inevitably
develops from a time period where “law” is unwritten and indistinguishable from wider
cultural phenomena like religion, to a period where “law” is written. This evolution of
legal forms is inevitable given the similarly inevitable adoption of wider literate
practices, and, more important, permanent, such that written “law” is transformed into
law; or more accurately—Law. This, or a permutation of it, has been the dominant
understanding in the western legal tradition, and a fundamental part of legal
consciousness, across the many centuries.3
The second answer, which is the correct one I would argue, is that this conceptual
distinction has proven persistent because it follows logically from the proposition that
written law has been the dominant legal practice in the western tradition since ancient
Greece. That is, the written law-unwritten law dichotomy—the evolution of written law
from unwritten law, or custom—followed from, and, more important, has been used to
justify, the rise of a particular dominant legal practice, not the other way around.
Although law-in-practice has never been explicable in terms of the written-unwritten law
dichotomy, this dichotomy has dominated the domain of law-in-theory, which is always
the domain of the two that is appropriated and put into the service of whatever group
must maintain control over what law means. This argument can be stated another way:
first, the idea that written law = law is the foundation of a particular understanding of
legality that has been dominant in the western tradition since ancient Greece; and,
second, the doctrine of the superiority—and inevitability—of written law is the
handmaiden of this particular legality.
My position will become more concrete through the use of three examples from
diverse cultural and historical epochs. Besides demonstrating the proposition that the
written-unwritten law dichotomy is part of the ideological repertoire of a particular
legality—and not the result of the inevitable evolution of written law from unwritten law
—what these examples show is how what I will call the “doctrine of written law” has
proven flexible and resilient enough to manifest itself in quite varied contexts. In fact,
34 The reader at this point might ask “what about the so-called unwritten common law?” I will discuss the
common law below in section B(2). But the dominance of literate practices in the common law has not
been challenged from its inception, usually given as AD 1066, even if compared with legal systems derived
from the Roman civil law the common law appears “unwritten.”
5
this observation highlights one of the important implications of my thesis: in the
pantheon of ideologies, legal ideologies in particular appear to be stubborn, resistant to
critique, and certainly powerful.
1. Ancient Greece
The conventional wisdom has been that written law developed in ancient Greece
as the response to democratic impulses (see, e.g., Maine 1861; Calhoun 1927; Bonner
and Smith 1930; Goody 1968). What this means is that after the fifth century political
reforms involved committing law to writing in order to make it more accessible to a
wider population, and prevent its manipulation and arbitrary use by the aristocratic elite.
Bury and Meiggs’ is a typical statement of this view:
There can be no assurance that equal justice will be meted out to all, so long
as the laws by which the judge is supposed to act are not accessible to all. A
written code of laws is a condition of just judgment, however just the laws
themselves may be. It was therefore natural that one of the first demands the
people in Greek cities pressed upon their aristocratic governments, and one of
the first concessions those governments were forced to make, was a written
law (1975: 104, quoted in Gagarin 1986: 121; emphasis added).
Notice how Bury and Meiggs’ formulation is also an explanation for the inevitability of
written law: if democracy is inevitable, then so too is written law, because in a democracy
law must be written if it is to transcend narrow, anti-democratic interests. Thus written
law comes to assume a positive, quasi-moral value: democratic law = written law.
But this common view regarding the rise of written law in ancient Greece has
come under significant challenge recently. In a series of works, Thomas (1989, 1992,
1995) has shown how the evidence from ancient Greece does not support the proposition
that written law is an inevitable development of legal evolution, precipitated by
democratic impulses. As she argues, the evidence seems to support the notion that written
law, even at the height of classical Athens,4 had a very limited function: laws were
inscribed in stone that related primarily to governmental functions, and which were
procedural, relatively new, and esoteric (1992: 66-68; see also Harris 1994, Worthington
1994). What this means is that if the written law in classical Greece actually represented a
small subset of all laws in force at any one time, and, moreover, that the laws that were
inscribed were restricted to areas unconnected to the regulation of citizens’ affairs, then
we must seriously devalue the role that written law actually played in ancient Greece. But
if we look to the influence that the doctrine of written law had, then, as Thomas admits, it
is obvious that it began to significantly change legal consciousness among public
officials, intellectuals, and citizens.
A second—even more critical—reinterpretation of the evidence from ancient
Greece not only seriously challenges the notion that written law was inextricably linked
to democratic reforms, but actually comes to the exact opposite conclusion: written law in
ancient Greece was invariably associated with the “aristocratic attempt to freeze the
45 Although as early as the classical period, as she notes, “[w]ritten law was widely regarded . . . as the
basis for equality and justice . . .” (citing Euripides and Aristotle; 1992: 67).
6
current legal and political conditions before revolutionary demands could erode any more
of the traditional way of life” (Thomas 1995: 60; see also Eder 1986). And as Gagarin
(1986: 124-125), Thomas (1995: id), and others correctly observe, there is no reason to
conclude that written law is an inherently more democratic legal form than other possible
ideal legal forms; written law has been associated with totalitarian regimes in every
epoch. But as I have argued above, legal forms are always embedded in the cultural
contexts from which they are derived, and they are, therefore, always a reflection of such
contexts, not determinative of them.
2. Medieval Europe
Medieval Europe at about 1200 was a very important time for legality. In England
the Norman conquest was firmly consolidated and Domesday Book had been in use for
approximately one-hundred years. On the Continent, the so-called Twelfth Century
Renaissance5 was in full efflorescence; not only was there a re-discovery of ancient
science, but there appear professionalized courts, legal practitioners, and, for the first
time, an extensive critical legal literature. And these legal developments in the twelfth
century occur relatively suddenly, or to use Maitland’s elegant phrasing (1898: 458),
“with marvelous suddenness.” Centers of legal learning, most notably Bologna,6 came
into prominence, and legal education, committed to inculcating the doctrine of written
law as I have defined it, became standardized in the West for the first time. Because of
this standardization of legal education on the Continent, and the ascendance of the
Normans in England, I would argue that the twelfth century was a watershed for the
eventual dominance of the literate legal mentality. From the twelfth century onward, one
can say that it was not the actual change in legal forms, so much as the increase in
efficiency in establishing authorized ways people thought about legal forms, that
contributed to the expanding influence—and later hegemony—of the ideology of literate
legality.
It is fruitful to consider the case of early Norman England. This case is fascinating
in this context for a number of reasons. First, the Norman conquest provides an excellent
example of a clash of unequally-situated legal interests and discourses in a European
56 Many people forget that the intellectual reawakening in Europe occurred in two stages. The first, in the
eleventh and twelfth centuries, involved the appearance of ancient science, medicine, and law. This learning
came largely via the Islamic world, where scholars such as Averroes and Avicenna produced widely read
commentaries on Plato, Aristotle, and others. The second stage, in the fifteenth and sixteenth centuries,
began in Italy, and involved the well-known florescence of arts and letters. Even though this second period
is popularly taken to represent the intellectual reawakening in Europe as a whole, when one considers the
relative importance and volume of material in each period, the twelfth century appears the more influential
and important. Then again, the idea that all learning lay dormant between the fall of the Roman Empire and
either the twelfth or fifteenth century Renaissance does not appear credible, even if we restrict “learning”
to dominant discourses; much important philosophy was produced all through the “Dark Ages,” particularly
during the time of Charlemagne.
67 As Copleston (1972: 86) says: “Some Italian cities, such as Pavia, possessed urban schools of law,
though in the twelfth century the rest were eclipsed by Bologna. In the first half of the century Irnerius
lectured and commented at Bologna on the Justinian code. And it was at Bologna that the Camaldolese
monk Gratian produced his code of canon law which facilitated the education of trained canon lawyers in
the service of the Church.”
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setting. This furnishes scholars with a contrast to the later colonial period, when
Europeans colonized the non-European other. Here we see an example of intra-Europe
colonization, or proto-colonization, since the Normans sought to conquer and not
colonize. The point is really immaterial, however; what is important is that we are able to
study the complex dynamic of clashing ideologies and imaginings “close to home.” But
more specifically, the Norman England example demonstrates how legality
interpenetrates with wider belief systems in ways that make it impossible to say that legal
consciousness is a cause or an effect of such systems. We must be content to study the
interconnections.
The guiding light in reference to legality in Norman England is M. T. Clanchy,
whose work (1970, 1979, 1983) has forced a reinterpretation of how communicative
(legal) technologies are processed first and foremost as ideology. Particularly in his 1979
work, Clanchy documents (no pun intended) how the Normans used foreign legal forms
as the vanguard of their efforts to dominate the conquered by penetrating—and then
changing—Anglo-Saxon consciousness. In Anglo-Saxon England authorized legal forms
were multiple; while it is not true that legality in the Anglo-Saxon period was entirely
oral, oral legality was predominant. But the coming of the Normans brought the literate
legal mentality, steeped as they were in the prevailing attitudes on the Continent
regarding legal forms. William made it quite explicit that he considered a particular legal
form essential to his success. Indeed, he states at one point that he had “decided to bring
the conquered people under the rule of written law” (quoted in Clanchy 1979: 11).
But what is clear is that the advent of literate legality in England after the Norman
conquest came as a result of the forced implementation of the legal form of the
conqueror, not because legality in England was evolving and literate legality would have
arisen in any event. It is also clear from Clanchy’s account that the assumptions regarding
literate legality’s superiority as the legal form best suited to complex judicial
administration are just that: assumptions. As he shows, the benefits of literate legality
were not immediately clear to the conquered. In fact, in this context much of what is
assumed regarding literate legality—it is more reliable; it is less susceptible to fraud, etc.
—cannot be supported. Oral legal forms were considered more trustworthy in pre-
Norman and Norman England by many people because of the requirement that spoken
oaths accompany legal procedures; for example, in the introduction of evidence in court.7
Also, written legal documents were proved to be easily forged. As he says, “[p]eople had
to be persuaded—and it was difficult to do—that documentary proof was a sufficient
improvement on existing methods to merit the extra expense and mastery of novel
techniques which it demanded” (1979: 231).
It is important to emphasize that the clash of legal forms, and resistance to the
doctrine of written law, were volatile not primarily due of the clash of disparate
techniques. Techniques merely mediate the ways legality-as-worldview becomes manifest
through performance. Rather, the Norman conquest proceeded by very skillfully
appropriating legal imagery and, as important, transforming the parameters within which
legal identities could legitimately be constructed.
78 Cf. Miller 1990 regarding spoken oaths and law in medieval Iceland. Berman 1978 is a good discussion
of multi-media legalities in Europe between the fall of the Roman Empire and the twelfth century legal
renaissance, a time period largely ignored in sociolegal studies.
8
3. Latin America
Finally, we turn to Latin America for an illustration of how the forms through
which legality is expressed are not the result of an inevitable process of evolution, but the
result of wider, fluid processes of ideological maneuvering. In many respects Latin
America is similar to Norman England; what we find in both cases is an unmistakable
clash of legal discourses which are in both cases unequally-situated within more
encompassing networks of political power. Further, in both examples we see a wide gap
between law-in-practice and law-in-theory. Also, in each historical instance the doctrine
of written law is a foundational part of the conquering project. Indeed, one can say with
respect to Latin America that the doctrine of written law was the most important weapon
in the colonizing arsenal.8
When the Spanish appeared in the new world in the sixteenth century, they were
the embodiment of literate legality. Although the history books are filled with the exploits
of the conquistadores, the true soldiers of the conquest were the letrados, the men of the
law. These officials—who could be variously judges, scribes, or notaries—were imbued
to their core with the doctrine of written law. Spain in the sixteenth century had a legal
tradition that was a dynamic mix of indigenous Celto-Iberian theory and practices with
legalities of later invaders, including Carthaginian, Roman, Gothic, and Moorish. But the
Roman civil law, with its overwhelming reliance on literate legal practices, came to
predominate. The foreign legal tradition that was forcibly introduced into the Americas
by the Spaniards was accompanied by a quasi-religious belief in its inherent superiority.9
But how was literate legality received by indigenous people? Was the legal
“vision of the vanquished” unalterably transformed and the now-dominant Spanish legal
worldview incorporated? One would think that the answer to this second question would
be an unambiguous “yes.” Indigenous legalities in Latin America, unlike those in Africa
during the age of colonialism in the nineteenth century, were not allowed official
autonomy in any sense. Latin America was not a case of official legal pluralism. In
general, one concludes at first glance that in law, as in other areas, indigenous social
structures were either forcibly incorporated into Spanish models, or they were destroyed.
But when we delve deeper into the matter, what we find is something quite surprising.
What the few scholars have concluded who have studied the forced
implementation of colonial legal structures is that indigenous peoples actually
appropriated colonial legality as part of wider strategies of advantage (Stern 1982). That
is, indigenous peoples in Latin America quickly became adept at communicating in a
literate legal idiom, not because they were “oppressed” in that sense—although, of
course, they suffered in many ways—but because the preexisting legalities were, by and
large, multi-faceted and multi-media. The adoption of another legal medium—in this case
the literate idiom—did not, therefore, meet with structural resistance. And from
contemporary evidence—in the form of documents regarding legal practice from the
89 The importance of legality in Latin America in general cannot be overstated. As Malagón-Barceló puts it,
“America was born beneath the juridical sign” (1961: 4).
910 Indeed, in colonial Latin America religious fervor and legal practice interpenetrated with each other to a
large extent. Alcalá Zamora says in this regard: “Proselytism was practiced, but according to law. . .” (1944:
101).
9
colonial period to today—we know that indigenous peoples in Latin America continued
to manage intra-village legal affairs within preexisting legalities that were non-literate, or,
as Rappaport calls them, “paraliterate” (1987: 44; see also Rappaport 1994).
C. Linkages: the ideology of literate legality
Having outlined the orality-literacy debate, and discussed the doctrine of written
law both theoretically and through historical examples, it now remains to link these two
more explicitly. What Street (1984) and others have demonstrated so clearly is that
literacy is not a neutral technology existing in an (a-)cultural nether-region; rather,
literacy is a cultural practice always deeply imbricated in both cultural logics and
meanings. And further, literacy-as-technology is not one single practice, but a multitude
of practices, or rather, literacies. But literacy is not simply explained as cultural practice;
it also operates at the level of imagination, of ideology. One will not most meaningfully
understand the effects of literacy by looking for changes in individual cognition—as Ong
(1982), for example, does—but by studying literacy as an ideological process, which re-
defines authorized and validated/valorized communication.
Literate legality can be understood in the same way.10 The processes by which
legal meanings and identities are created and maintained are in every context nonlinear
and multi-vocal. Another way of putting this is to say that there is never one legality, but
multiple legalities, which can be understood as embodying different genres; for this
reason, Philips (1998) argues that legalities are fruitfully analyzed using the concept of
“intertextuality.” But saying that there are always multi-vocal and nonlinear legalities in
any given legal universe is not to say that each legal voice has the same authority or level
of power. Some legalities are more influential than others, if only because they are
embedded in projects with more guns or more money. And the way to determine which
legality is dominant is not, strangely enough, to study legality-in-action; rather, we should
study ideas about legality-in-action, and specifically, the officially authorized ideas.
This now brings us directly back to the orality-literacy debate. As I have shown,
the terms of this debate themselves are specious, because multi-vocal practices defy the
facile dichotomization that this debate represents. The dichotomy orality-literacy is
entirely artificial. But if we move to the realm of ideology, this dichotomy is actually
very meaningful, and sets the parameters within which practices of many kinds become
possible. The ideology of literate legality, which is derived from the dichotomy written
law-oral law, can be understood in precisely the same way.
For example, this ideology maintains that literate legality is the only vehicle
through which law can be rendered systematic. But we know that oral legal systems can
be equally “systematic,” however we want to understand this concept. There is no reason
that “codify” must mean “to systematize into a written code of laws.” Although Bentham
obviously intended the concept of codification in English to mean this, the most essential
meaning of codification is “to systematize.” Because he was so thoroughly imbued with
1011 The meaning of this article’s title can now be made explicit. Literate legality and oral legality refer to
complex processes by which legal theory and practice (or better, praxis, as Bourdieu would say) are
created, re-created, and operationalized. The notions invoked by the terms “oral law” and “written law”
cannot capture this richness.
10
the ideology of literate legality, law codes were assumed to be written.11 But scholars
have shown how in non-literate cultures, complex information sets are stored and
transmitted orally. Certain people serve as “oral books” in this sense. Bloch (1975) has
explained how fixed loudness patterns, partial vocabularies, fixed sequences, and
illustrations restricted to certain sources enable non-literate cultures to systematize and
maintain complex information (1975: 16).
In the legal sphere, Clanchy (1970) has shown how before the Norman conquest
“professional remembrancers” were used to systematize and store laws. In fact,
Domesday Book, a symbol of the ascendance of literate legality, was only made possible
by using information regarding land tenure that was the result of centuries of oral legal
practice (Clanchy 1979). Likewise in Iceland, the “Law Speaker” orally rendered
judgment and maintained a non-written data bank of past oral judgments, which was
preserved and transmitted in due course (Miller 1990). And finally, Thomas (1995) shows
how laws in ancient Greece—before the rise of the ideology of literate legality—were
orally transmitted, most likely in the form of songs. And even more striking is the fact
that “[o]ral transmission continued to be fundamental even once laws were written down”
(1995: 65). There is even evidence for the existence in ancient Greece of “oral law
books” or “living archives,” in the form of officials called either mnemones or
hieromnemones, which should not be surprising in light of the work of Bloch and
Clanchy.
But why then does this knowledge surprise us, which it surely does, given the
strident reaction to it in the various literatures? Because we are all of us deeply
entrenched in literate practices—indeed, dependent on them for our livelihood—and
sociolegal scholars are doubly entrenched: first in literacy in general, and secondly, in its
specialized manifestation as literate legality. We are creatures of the linear written word.
If some have suggested that it is partly through a desire for an imperfect form of
immortality that scholars write books, then the commitment to writing assumes an even
deeper meaning. What is important is to recognize that literate legality is not inevitable or
necessarily preferable. By looking to paraliterate contexts, or historical examples taken
from non-literate legal milieus, it becomes apparent that alternative legal forms are
possible and credible.
D. The Noble (legal) Savage
If the ideology of literate legality establishes that literate legality is the natural
result of a process of unilineal legal evolution, then from what did literate legality
evolve? It evolved from a time period of oral legality, of course. But more than that, one
can detect in the ideology of literate legality a subtle critique of itself: even if literate
legality is inevitable, it also exists because society has evolved into something complex,
unpredictable, even immoral, and which needs all of the benefits that literate legality
offers. The development of literate legality is thus bittersweet: it is the necessary and
1113 I refer to Bentham here because he advanced the concept of codification in English. Of course the
Romans and others had law codes which were likewise written, whether on stone, cuneiform tablets, or
paper.
11
certain foundation of complex societies, but it also represents a fall from a state of legal
purity, when people lived in harmony with each other and nature, and needed only the
most simple of rules to manage their lives. Law in this uncomplicated time was
unfettered by dense and arcane rules of procedure, but was instead flexible, relevant, and
representative of a human nature that was essentially good. Thus the Noble (legal)
Savage.
The Noble (legal) Savage appears in much of the legal anthropological literature,
particularly that literature which is “traditional,” which means in this context based in
small, non-western, rural communities; i.e., the classic anthropological other.12 But my
intent is not only to credit anthropologists for “discovering” the Noble (legal) Savage,
because law professors and legal historians have apparently also had insights into his
existence. Here is Berman, writing from deep within legal academia, in the University of
Chicago Law Review. After describing legalities in pre-twelfth century Europe, we come
to this:
The absence of law reform movements, of sophisticated legal machinery, of a
strong central lawmaking authority, of a strong central judicial authority, of a
body of law independent of religious beliefs and emotions, of a systematic
legal science—are only one side of the coin. The other side is the presence of
a sense of the wholeness of life and of the interrelatedness of law with all
other aspects of life, a sense that legal institutions and legal processes as well
as legal norms and legal decisions are all integrated in the harmony of the
universe. Law, like art and myth and religion, like language itself, was for the
peoples of Europe, in the early stages of their history, not primarily a matter
of making and applying rules in order to determine guilt and fix judgment, not
an instrument for the separation of people from each other on the basis of a set
of principles, but rather a matter of holding people together, a matter of
reconciliation. Law was conceived primarily as a mediating process, a mode
of communication, rather than primarily a process of rule-making and
decision-making (1978: 588-589).
The point here obviously is not whether people at various times and places
actually seek to preserve harmony—or employ a “harmony ideology” (Nader 1990)—
through legal practice. And anyway, it seems to me to that generalizations about the
intentions of large groups of people engaged in legality, whether today or in tenth century
Europe, cannot fail but to strike some of us as highly artificial. The point is that the
ideology of literate legality is not an isolated discourse, but is itself firmly embedded in
persistent discourses about the non-western other; in this case, the oral legal other.
But to return more directly to the Noble (legal) Savage, this conception does not
merely allow scholars to wistfully remember earlier stages of legal evolution. The Noble
(legal) Savage also, more importantly, serves to reinforce the dominant position of literate
legality by de-politicizing the oral law-written law dichotomy. In associating oral legality
with a time of legal purity, the notion of the Noble (legal) Savage is contrasted with later
stages in legal evolution, when law not only becomes corrupted, but is also removed from
the daily concerns of people and professionalized. So while law loses its interdependence
1214 Most anthropologists could likely recall examples from the revered canon of legal anthropology
monographs that show the Noble (legal) Savage settling disputes, transmitting land, etc., in complete
harmony with cultural logics, without guile, and committed first and foremost to preserving social bonds.
12
with the particular Volksgeist from which it is derived, it nevertheless becomes a neutral
medium for resolving disputes, etc., and, moreover, a medium directed by lawyers-as-
technicians. One can see a direct parallel of this last point in Von Savigny’s classic
distinction between the “political” and “technical” aspects of law (1831: 28-29, et seq.).
For Von Savigny, the political aspect of law represents an earlier stage in legal evolution,
when law is organic to a particular culture, and, even more, can be seen as coextensive
with “the aggregate existence of the community. . .” (1831: 28). It is only later, according
to him, that the law turns scientific, becoming both “artificial and complex” at the same
time.
***
Some might find an article identifying and then deconstructing the ideology of
literate legality, conceived of from deep within the literate tradition, and published in an
academic journal—surely the highest expression of the literate mentality—somewhat
disingenuous, or even tilting at windmills. And it is true that I reserve comment on
whether literate legality is indeed superior in some senses to other possible legal forms.
But regardless, I think this much is clear: literate legality must be not be understood
primarily as a particular legal form or set of legal practices, but as ideology, as a system
of ideas about legal forms and practices, which is determined by the wider social project
in which it is embedded.
13
Acknowledgments
I would like to thank the Institute for Legal Studies at the University of Wisconsin
Law School for a Fellowship in 1997-1998, which put the considerable intellectual and
administrative resources of the Institute at my disposal and made this paper possible. The
paper itself is dedicated to Jebb Allen Dykstra: poet, jurist, comrade.
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