António Manuel Hespanha, The everlasting return of orality.
Orality was a distinctive feature of popular law (ius rusticorum) in the Middle and Early Modern Ages. With it an array of intellectual and technical points were conveyed to legal discourse and even to legal strategies and practices – different norms, different ways of argumentation, different relations between law and neighboring normative fields, different concepts of justice.
Notwithstanding the fact that writing was becoming progressively the common interface of the legal world, orality went on influencing legal practices at the peripheries, supporting alternative narratives of life. Or even the legal conceptions of the center. In the nineteenth century, the criticism against a written constitution or codification, or the attention paid to forensic or parliamentary rhetoric, were symptoms of a reaction to the written word / world which never abandoned Western culture.
The same seems to occur today, “when law goes pop”. In our days, however, the reaction against the imperial discourse of written law is becoming not narratives made from spoken words, but also images in frenetic motion and juxtaposition. In this kinetic world, variety and shallowness become distinctive features of life perception, with which a new discourse on law must cope or against which it must react[1].
From orality to writing.
Almost twenty years ago, I touched for the first time on the issue of orality and writing in law.
Working on popular judiciary in the Early Modern period, I found myself in a paradoxical situation. Empirical sources told me that the overwhelming world of local courts was in the hands of illiterate judges, elected by the local elites. In smaller boroughs, there was enough evidence to indicate that most of the judges were entirely illiterate. At their sides stood scribes and notaries, whose writing capacities were stronger, even in legal matters. Before being put in charge (by royal decree), they had to perform a writing examination; further evidence[2] showed that they were often failed law students. Popular courts belonged therefore to the world of orality, or at least to that world which is called scribal orality[3].
Nevertheless, the scanning of the doctrine of ius commune as related to judges and courts produced meager results by which to visualize this world. Judges were deemed to hold a full reading and writing competence and, furthermore, to be learned in the highly sophisticated knowledge of Roman and Canon Law (both written in Latin). Royal statutes also supposed a learned level of literacy on the part of judges, in both these kinds of law.
Inasmuch as traditional legal history selected legal and/or doctrinal sources as canonical sources, the silence of learned legal literary tradition endorsed a full ignorance – or even an clear contempt – of this “low level” of legal “practice”.
Recollections from my youth.
Eventually I discovered that legal doctrine was not so silent about popular justice. I saw that it appeared (downgraded both in its social impact and cultural substance) in tiny references or short and marginal chapters on “rustic law” (iura rusticorum). Further research led me to a few treatises dedicated to peasant practices of law[4], revealing astonishing similarities with legal phenomena with which I was acquainted.
Actually, as a child of a village notary I had youth recollections of this world of entangled oral, scribal and learned legal narratives. Illiterate people explaining to my father what they wanted to do – excruciating sales of small family estates; intricate inter vivos dispositions of patrimony in favor of their children as a hazardous warrant for a safer old age, as well as ways of distributing family inheritance under the impact of a still existing authoritative parental will; or mistrusted land mortgaging. My father tried to convey their interests, desires, fears and anguish in the formal language of learned law, or to reconcile their misgivings within the limitations of Civil code. Senhor Arménio, my father’s wise and dedicated clerk, also intervened in the efforts of translating swirling states of spirit to the fixed (immobile) texts. He wrote down, according to my father’s guidelines, the results of this risky, socially embedded intellectual operation. The reading of the text was the final step; it had to be slowly and loudly explained by my father to all the other participants, whose agreement was formally requested before their signature (or fingerprint) was put into the highly impressive red, bound register book. This was the crucial moment, when the dual sided translation was evaluated. In spite all the previous inquiry on the respective will of the contracting parties, it was not rare that fierce arguments arose among them, now that everyone had been instructed on the practical meaning of the words read in a formal, technical and uninterrupted way by Senhor Arménio. When spirits became too high, my father imposed silence, sometimes expelling them from the office. The arguments sometimes roared on into the street, with Senhor Armenio attending calmly, the red book open, until the spirits came down enough for him to finally collect signatures and fingerprints. That was why my younger brother and I always anxiously expected this dramatic moment as an exciting pause in the normally tedious afternoon waiting to come back home.
This legal translating office had its own particular features with an entire set of rituals. In reality, it functioned as an outpost on a border, a cultural border. In a way, it was like an institutional manifesto of legal writing yelled in a world where literacy was scarce. The outer aspect of the building itself was not impressive – two wide, red-brown doors (one of them them always closed) in the ground floor of a plain, grey-white façade. Once in, a large mahogany counter separated the lay attendants from the “clerical” world. Outside the counter were two uncomfortable wooden benches where a handicapped man who served as a “default witness” could invariably be found seated. In his tender childhood, an accident – a pig’s bite, someone said - had deprived him of both hands. Nevertheless, he could ride a bike and, above all, could write a neat signature, complete with flourishes. Years and years of attendance there made him recognized by everyone, so that he could testify as to the identity of whomever came in. In this way, he became another piece of this broker system between two worlds, each one with specific models of ascertaining truth.
Beyond the counter lay another world: wooden shelves twisting under the weight of red-brown books and faded files tied with grey strips, and drawers full of handwritten cards that allowed one to find a particular document in a book or in a file. Other smaller drawers enshrined a huge collection of signatures, theoretically allowing for the certification of the authenticity of those found in documents present in the notary’s office[5]. The two calfskin-covered desks were full of rubber stamps, as well as an official metal seal, locked for security. My father’s office space was constructed of a medium-height wooden frame and a glass screen, painted in white. There were his law books, some in highly disordered shelves, others in a rotating display at arm’s length from his desk. Omnipresent red books, files, stacks of papers and forms, a pair of chairs and an iron strongbox completed the scene. From here, he could hear or perceive everything occurring on the office; however, he could also keep the secrecy of his magical laboring with paramount texts, his intimacy with scholarly books or official journals. All of this was a learned routine quite enigmatic even to his clerks, whose access to this level of source texts was limited to formularies and accounting regulations.
This world of entangled communication struck me greatly. All these people spoke the same language. We were all neighbors, or almost. Some of them could be my own classmates’ fathers. Also, my father – in spite of his law degree at the neighboring CoimbraUniversity – belonged to this world of small or medium landowners, of their pine groves, vineyards or tiny meadows. Like them, he understood what a strip of family land meant; how difficult it could be to divide bits of land (though each with a singular name, history and qualities) among several children, some of them boys and some other girls; how risky it was to give one’s land in mortgage, not to a neighbor, but to an outside lender. It was why he could translate peasants’ life strategies and explain legal results to them. Even when dictating he sought to use a hybrid style, repeating the words tautologically with a slight variation in meaning, trying to cope with both technical and common sense language and avoiding, by juxtaposing words, any ambiguity in interpretation.
However, I perceived barriers, misunderstanding, strangeness and even hostility in this apparently neutral and merely bureaucratic ambiance. At the same time, I experienced my father’s power, even when he explained in a gentle and somewhat paternalistic tone what was at stake. Not because he was a State officer; but because of his knowledge, because of his legal studies (he was Senhor Doutor, not simply Senhor Hespanha), because of his familiarity with books, because of his fluent writing and his fluent dictation to Senhor Arménio.
Now I can understand what was going on there. And what was going in Oliveira do Bairro in the Fifties and the Sixties of the twentieth century was not so far from what had been going on overall Western Europe (not to mention overseas) when an elite of legal literati was able to impose its presence within an oral culture.
From their boroughs and villages peasants brought interests[6], embedded in strategies of life, grounded in cultural values. Their narratives – what they told my father – were therefore discourse-vested pieces of their lives. Discursive dresses were already hybrid garments, where old traditional (common sense) juridical narratives – relating to lost pieces of traditional peasant ethos and law, like primogeniture, familial ownership, proof by mere tradition, filial piety, loan as charitable act, exchange of services, etc. – were combined with more recent Statist topoi – like the need for written proof, egalitarian division of inheritance, dismissal of family limitations on free disposition of property, dissolution of filial sense of duties towards parents, taxation on land transmission, cadastre and registry. Otherwise, they would never come; or, better, yet more would not come[7]. In other words, they had learned – in more or less recent times - that their own native narratives were not enough to safeguard their expectations for the future or even for a time when they would not be alive any more. They learned that, to assure their interests, they had to come to terms with State authority and official law, personified, for the moment, in the notary. If they were incapable of translating by themselves their aims in terms of official law and procedures, they were at least (forcibly and within limits...) disposed to allow the notary do so for them. Apart from the fact that they personally trusted the notary (which could certainly be the case, due to their neighborly acquaintance with him, and with shared ways of life), they feared his ability to handle “books of power” (performative books, we would say) – from the red-brown, bound ones where the clerk wrote (and they eventually signed) to the printed ones that Senhor Doutor preserved in his wooden cage and used to solve hard cases. These were books that either preserved the present for the future or anticipated the future of a present issue.
My father, for his part, mastered a series of standard narratives with which he tried to cope with what he understood to be the attendant issue. Due to his acquaintance with this peasant world to which he himself also partially pertained, he could understand the “savage mind” and, on the other hand, also believed it was his duty as lawyer and as public officer to “domesticate” it in terms of academic and State law. He belonged to this other world, as well, that of official law. He was educated in a Faculty which was permeated (in the 1930’s) by a specific legal culture, a mix of academic conceptualism, inherited from the German conceptual jurisprudence of the early twentieth century, and of positivistic legalism, which sprang from a French tradition of exegetic (or annotative) jurisprudence. It was also reinforced by the authoritarianism of Salazar’s regime[8]. As notary, his academic education was partially superseded by a bureaucratic training in the detailed State regulations concerning the notaries’ profession and registry, as incorporated in circulars[9] issuing forth from the Ministry of Justice. Although complex, his archive of narratives was limited and could not translate (domesticate) his clients’ agenda. It was not only that words didn’t correspond; that, for example, usufruto (life tenancy)[10] or usucapião (acquisitive effects of possession [in the case, namely, of land])[11] were unknown words. Nor that some of the native words had to be vested with formalities – first of all, to be written and registered by a notary. Rather, it was also that some of the intentions weren’t translatable at all in any of the available official narratives. It was impossible, for example, to find an appropriate narrative to translate the intention of selling a land whose ownership was not registered in favor of the vendor. Likewise it was impossible to inscribe in an official legal genre the story of a father who wanted to exclude a daughter from his succession because of a bad marriage; or who wished to exclude a son because of an act of serious disobedience or disrespect. There was, of course, a legal remedy, but this would entail a long judicial procedure (probably a further source of misunderstandings and emerging conflicting narratives) entirely out of sight of the parties. In these cases, my father’s translating abilities were very low. He couldn’t but “domesticate”, plainly refusing to transcribe this kind of history in the magic red-brown book.
Senhor Arménio also had a pivotal role to play. He was basically a cultural broker. His dependence upon my father’s readings rendered him prisoner of a given discourse which he could not change from its original source. But the fact that the daily writing routine, the legal narration of the concretely occurring cases, was his ordinary task, he was like the temple’s scribe who disseminates written knowledge without losing the opportunity of a limited interpolation, the price to be paid in order to build a flexible bridge between official narratives and the attendants’ ones.
It was in these moments that the regulatory role of the State appeared, as an instance of the distribution, definition and limitation of the power of telling stories or of composing social scripts for action. In the name of what? In the name of the State law, the sole official narrative allowed even in private affairs. A somewhat vague narrative (like liberal civil law) promises to give a broad space for individual shaping of transactions (according to the Willensprinzip). However, will is supposed not only to be free (also from legal ignorance) but also to be “rational” and conform to “public order”. So that “standard free will” becomes something as strange to the reasoning in everyday peasant life as official law itself. However, doctrinal law also exists along with state, bureaucratic law (consisting in formulae and routine practices) – and it imposes canonical narratives. In the face of this constellation of official narratives, alternate stories become nonsense, ignorance, even impossibility.
The decay of dialogue.
My father’s limitation would not be so strict when the concept of iura rusticorum was in force. Then official law acquiesced to acknowledge that peasants had some right to validate their storytelling before official law.
On the one hand, law had not yet received the status of a rational knowledge. It was rather a reasoned knowledge, which is a fully different thing. Rhetoric and enthymeme[12] prevailed over demonstration and syllogism. Decisionmaking was conceived as a grasping of disparate and probably biased or contradictory pieces of truth deposed in arguments[13].
On the other hand, peasants were deemed to have a somewhat childish nature. They shared with children innocence and unsophistication. It was true that they inclined toward goodness, but, perhaps precisely because of their pure inclination to a natural order (already lost or at risk of loss), they could not understand the artificiality of humanmade, strict law. Therefore, there existed a wide set of prudent rules allowing for the handling of peasants’ matters and disputes according to their ritual or narrative stereotypes[14].
Most of both ideas change dramatically with the dawn of modernity. Walter Ong[15] and Zygmund Baumann[16] wrote enlightening pages – each from a different perspective - about the collapse of rhetoric and the advent of rationalism. The reduction of meaning which this event produced in law has already been the subject of reflection[17]. Not only did feelings and emotions leave the jurists’ horizon – where they had belonged for centuries - but also (one-dimensional) Truth consumed (pluralistic, fuzzy, multi-leveled) narratives.