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Oral law

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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

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 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

Rabbinic Judaism holds that the books of the Tanakh (The Old Testament) were transmitted in parallel with an oral tradition, as relayed by the scholarly and other religious leaders of each generation. In this view, Jewish Law is based on a "Written Law" (Torah she-bi-khtav תורה שבכתב) together with an "Oral Law" (Torah she-be'al peh תורה שבעל פה). Jewish law and tradition thus is not based on a literal reading of the Tanakh, but on the combined oral and written tradition. The written law comprises the Torah and the rest of the Tanakh. The Oral Law was ultimately redacted in the Talmud and Midrash. The interpretation of the Oral Law is considered as the authoritative reading of the Written Law. (Thus in the Torah, much terminology is undefined, and many procedures mentioned without explanation or instructions, assuming familiarity on the part of the reader, with details from other, oral, sources.)

It was initially forbidden to write and publish the Oral Law: written material would be incomplete and subject to misinterpretation (and abuse). After great debate, however, this restriction was lifted. It became apparent that the Palestine community and its learning were threatened, and that publication was the only way to ensure that the law could be preserved. (Following the destruction of the Second Temple and the fall of Jerusalem; see Timeline of Jewish history.) 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 and ethical teachings underwent debate and discussion, or gemara, in both of the world's major Jewish communities (Israel and Babylon). The Gemara, with the Mishnah came to be edited together into compilations known as the Talmud.

Because Jewish Law, Halakha, must include codes of law and behavior applicable to virtually every imaginable circumstance, this body of teaching has subsequently developed throughout the generations in a constantly expanding collection of religious literature based on the Talmud. In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to create and administer binding law on all Jews - rulings of the Sanhedrin became Halakha. That court ceased to function in its full mode in the year 40 CE. Subsequently, the boundaries of Jewish law have been determined through "the halakhic process." Thus, although the "Oral Law" has been in a written form for almost 18 centuries, it is still referred to as Torah she-be'al peh.

Torah knowledge, in addition to its "revealed" component ("nigleh") as discussed above, comprises a "concealed" component ("nistar"), today recorded in the Aggada and Kabbalah. The "nigleh" deals with the mitzvot and halakha, as outlined; the "nistar", on the other hand, discusses esoteric subjects such as creation, prophecy, the world to come, the Messiah, and similar abstruse themes. Although the "nistar" is regarded as a component of the oral tradition, it is not always regarded as part of the "oral law". This is because this material was not recorded in an explicit, mishnah-like, medium; instead, it is presented in a "concealed mode" and via "paradoxes". When expounding halakha, the Sages spoke in distinct, understandable terms. On the other hand, higher and mystical ideas are not, necessarily, meant for the masses, and the mode of transmission here thus departs somewhat from that of the halakhic material. The aggadot are therefore presented as tales, folklore, historical anecdotes, moral exhortations, and business and medical advice, but may, generally, be interpreted allegorically. The Kabbalah, which deals with even deeper, esoteric knowledge, is further concealed and has been transmitted to elect individuals, and preserved only by a privileged few.

See also

Jewish oral law and tradition

General

  • 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.

In Judaism

  • Bibliography
    • "Maimonides introduction to the Mishnah Torah" (English translation)
    • "Maimonides introduction to the Commentary on the Mishnah" (Hebrew Fulltext)
    • "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
    • "The infinite chain : Torah, masorah, and man" Nathan T. Lopes Cardozo, Targum Press Distributed by Philipp Feldheim; 1989
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