Talk:Oral law

Untitled
This entry was originaly designed to be about the oral law of Judaism. However, given the title of this entry should we try to create descriptions of the oral laws of many cultures? If so, then we could give a brief description and overview of what we mean a body of oral law at the beginning, and then follow this by a number of sections: the oral law in Judaism, Buddishm, American Indian culture, etc. As time goes by, each of the latter entries could grow into full articles of their own, and be spun-off into independent entries. However, we should note that Judaism's concept of the oral law is literally called the oral law. I don't know if any other culture has this name for their body of oral law and traditions. Thus, for now it seems appropriate for this entry title to have this content. RK


 * Other cultures too do have an oral law and this should make the oral law a general concept, even if Judaism has developed an important one. Now, the definition of an oral law is usually deeply discussed, as well as what distinguishes an oral law from a habit (for instance, when habits have a legal relevance), but it is fair to say that an oral law is a code of behaviour that in some cultures, with severe attention to the related organised field, can be considered of the same importance of what a body of formal written laws represents for the geenrality of modern states (but oral law is not only for legal systems, it can be in use for religious or cultural systems too, like in the case you described). So, I agree we should start with a general definition, unless in english-speaking cultures the Judaic oral law is the only meaning of this expression, and then, as you said, list cases of oral law. If Judaic oral law is of such preminence in the topic, we could then keep it after the introduction, otherwise it could have its own separate article (Oral law in Judaism?). BTW, this is a fine entry, I'd like to read more about it, and if you could generically add what does Judaic oral law prescibe, if there are any sanctions, etc., that would be greater too :-)) --Gianfranco

I have some doubts about this broader use of the term "oral law." I would prefer to use "oral law" narrowly, as an English translation of the Hebrew Torah she'baal peh, to refer to an institution in a particular society. For what I think some are suggesting, as a general term for oral norms and values, I would prefer the word "custom" (although I recognize that this is not an ideal solution).

My main concern has to do with distinguishing very very clearly between "oral" laws that complement written laws, in literate societies, versus oral "laws" in non-literate societies. I am also concerned with distinguishing between "law" in literate societies and "law" in non-literate societies. My concerns are motivated by my fear of ethnocentrism.

On the one hand, Jewish Oral Law developed in a literate society and worked alongside a written law. Likewise, most societies with written (legislated) laws also have oral traditions that supplement what is written (and, like Jewish oral law, oral traditions that are often eventually written down). In these literate societies "law" has very specific functions and works through very specific institutions. I think it is ethnocentric to suppose that "laws" have the same functions, and involve the same processes and practices, in all societies. Indeed, I suspect that "law," such as it is, developes in very different ways, and for different purposes, in non-literate societies. The way I understand the current article, "oral" law is basically just like "written" law except it is not written down. Although this may be the case for oral laws in literate societies, I do not think this is the case for oral laws in non-literate societies. I think we should use a different word, to make the distinction clear.

On the other hand, one can suppose that a broad definition of "oral law" -- one that includes oral legal traditions in societies other than Jewish -- is meant to put the legal systems of non-literate societies on an equal level with literate societies. This was precisely the goal of legal anthropologists like Malinowski and Gluckman, who argued that non-literate societies are not anarchic and do have institutions that function in many ways like our judicial processes, to resolve conflicts and enforce social values. They were not claiming that such oral laws and legal systems have the same sources of legitimacy, and social effects, as legal systems in literate societies -- they were simply arguing that they existed, even if in unwritten form. Moreover, unlike "Oral Law," which is a translation of a Hebrew phrase, there is no one phrase that expresses local institutions of this sort that we can translate into English. Thus, we should use the English word used by people who study these kinds of institutions. English speaking scholars do not use the term "oral law" in this way, they do often use the word "custom."

Well, these are my concerns.... Slrubenstein

As previously said, I was waiting for a better definition of the expression for the english-speaking cultures. In the meanwhile I added some notes about a kind of laws that are not in written form, still they are in use. So, you can move what I added to a more proper article.

Only, I'd point out that there is a difference between an orally transmitted code of conduct and a collective habit (is this a custom?). In this sense, what I call an oral law is not complementary to a written law, it is just a different method or system of legal regulation. Historian jurists use to say that there was ("certainly") a law before Sumerians too (if this is the most ancient written law that we now know), and they only brought it to another form: it was orally transmitted, it became written. But there is a way to identify what could be intended by oral law in other cultures, let's just think to a code that a criminal association, a mafia, imposes to its members today: that code cannot be written (in order to avoid leaving proofs around), nevertheless its efficacy is complete. It is not the complex of collective habits that a society or a culture can use, it is a real law (obviously not complementary to the "official" one). I believe there is a similar concept in your culture too, maybe with another name.

I have some concerns, on my turn, about an eventual ethnocentric starting point in such considerations: the fact that every culture has its own law (with its peculiar differences) could perhaps indicate that it is typical of the man in general to create and use social rules. A law then usually always exists, so if we describe this kind of law, we are not focusing on the cultures that use it.

Moreover, modern studies tend to overtake ethnic issues, apart for... "taxonomic" records in some fields of comparative law: this general presence of a law (however expressed) has in recent times been extensively studied and even put into some relationship with certain curious (but interesting) considerations about etology, given that many animal species do show the presence of a behavioural code (just think at those priorities naturally respected while eating, especially in some felines). By these theories, law should be a natural animal instinct, rather than a cultural identifying social or ethnic item. It is true that these arguments go towards phylosophy and are quite abandoning the fields of jurisprudence, but they could help us to make some reflections on the many meanings that are given to the concept of natural law.

However, as a Wiki naming question, if Oral law in English mainly or only means the Judaic oral law, well, I hope we can find another expression to identify and describe the kind of law I was talking about (if this has a corresponding separate concept). --Gianfranco


 * yes, I think our views are very close. I think it is important to be clear about the terminological conventions (and different academic disciplines -- anthropology, history, jurisprudence, etc. may have different terminologies), and also clear about the salient distinctions and issues. Slrubenstein

Proposed addition to Judaism section
I intend to add the following as a final paragraph; hope that it's acceptable. Fintor 14:43, 21 Jun 2005 (UTC)


 * In addition to its “legal component” (&#1495;&#1500;&#1511; &#1492;&#1502;&#1510;&#1493;&#1493;&#1514;), the Oral Law comprises a "secret component” (&#1495;&#1500;&#1511; &#1492;&#1505;&#1493;&#1491;&#1493;&#1514;) today recorded as Aggada and Kabbala.  The mode of transmission here, departs somewhat from that of the halakhic material: the rabbis of Judah haNasi’s era decided that these “deeper teachings” could not be transmitted via an explicit, mishnah-like, medium. As a result, the aggadot are presented as tales, folklore, historical anecdotes, moral exhortations, and business and medical advice. Much of this material conveys the deeper teachings in a "concealed mode" and via "paradoxes", and may thus be read literally as well as interpreted allegorically. The Kabbalah, which deals with even deeper, esoteric knowledge, concerning God and the universe, is further concealed; it has been transmitted to elect individuals, and preserved only by a privileged few.


 * See: Midrash


 * It is true that many religious Jews view this as part of the oral law, but many do not view it in this way. Even among those who hold Kabbalah to be ancient and authentic, the statements in works of Kabbalah are generally not allowed to be used in determining Jewish law, as opposed to the classical oral law works such as the Midrash halakha, Mishnah and the two Talmuds.  (There are, of course, famous exceptions, where Kabbalah has been used to determine normative customs and laws.)  Further, there were a great many religious Jews who objected to most or all of Kabbalah.  Even today not every Orthodox Jew - and only a few Conservative Jews - hold by it as ancient and authentic.  As such, we can and should add your section, and note that it is one (major) point of view, but not necessarily the only one.  RK 18:15, Jun 21, 2005 (UTC)


 * Point taken, will rewrite such that there is no implication that aggada / kabbala is in any sense normative and indicating explicitly that some do not regard the kabbala as part of the oral law in the same sense as halacha... Fintor 16:47, 22 Jun 2005 (UTC)

Oral law often comes into conflict with modern laws, like when a father kills his own daughter to preserve the honor of the family. He is following an old oral, or earlier written law in his culture, but modern law forbids such action. Many modern laws are written to change or counteract old oral laws which now are transmitted as an oral tradition. This is an important case as it often happens that people continue to follow old traditions and the modern society cannot tolerate such behavior.

When immigrants from one culture come to another country they have to follow the laws in the new country, but the cultural pressure in the immigrant community is strong to ignore the official laws and follow the old oral laws of their culture instead.

Many oral laws are _not_ written laws precisely because it is no longer legal to follow these old traditions in a modern society. The currently valid laws are the written laws. Roger


 * Jews do not do honour killings. Are you suggesting that following the written religious law should exonerate one from violations of national law? You seem to completely misunderstand the topic under discussion here. JFW | T@lk  12:12, 16 January 2006 (UTC)

Torah She Ba'al Peh
In the section on Jewish oral law the Hebrew writing reads, 'Torah She Ba'al Torah' when it should read in Hebrew 'Torah She Ba'al Peh' (in Hebrew letters, 'תורה שבעל פה' not 'תורה שבעל תורה'). It looks like just a confusion in the parenthetical Hebrew words.