Chapter 4: Oral legal culture and the “ethics” of the gift
Law is a communal (public, cultural) phenomenon that can exist only in a language that is actually spoken. Even if the communication of law through gesture, mimicry, and posture seems ultimately conceivable, from a certain level of complexity the communication of legal knowledge must rely on spoken language. And just as the words and rules of a language must be tested in practical situations within a given speech community, and the meanings of names be familiar to others in that community, so too must legal formulas and early forms of legal rules draw upon knowledge that is already familiar and established within a given legal community. Only in its developed forms can law, with the aid of writing, then generate its own artificial expressions and no longer automatically comprehensible vocabulary, a store of recognizable legal knowledge, such as Roman jurisprudence notably produced.1 Thus, contrary to the still frequently invoked formula “law and language,”2 there is no law without language. In hermeneutic terms, the point is that anything that can be comprehended is language, namely dialogue and reading comprehension.3 Hence law must also circulate as knowledge within a legal community before it can develop any cultural or social relevance. From the perspective of sociology and systems theory, one would then have to say that the legal system, as part of the communications system society (and like society itself), consists “purely of communication and of structural deposits of communication, which convey such meanings,” and that this common...
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