Mute Law


by Rodolfo Sacco
Copyright R. Sacco, 1994.
Translated from Italian by Fabio Marino

This is a preliminary draft: do not cite without express authorization of the autor!
For further information please mail to card-law@risc1.gelso.unitn.it


Legal Tradition,The Lawgiver,The LawyerThe State,The Magic Law ,The Tacit dimensionThe Language,"Spoken Law",













1. Legal History deals with the past of the Law. But how past is it ?
Conventional Legal History covers Roman Law, sometimes Greek Law, Germanic Law, Early Common Law, Medieval Law and the codifications. Through this history the great blocks of the Law have stayed the same: family, property, succession, torts, contracts, crimes, government, and courts.
Legal Anthropology covers a much wider realm. But Legal Anthropology is normally beyond the scope of Lawyers. Lawyers accept Legal History and normally simply ignore Legal Anthropology.
I believe that an historical perspective needs to be macro-historic: it has to trace back the origins of the basic structures of law far behind the recent past covered by Conventional Legal History







2. Let's start by a well-established notion : the "Lawgiver" is a recent innovation : in the actual meaning of a central authority entrusted with overall legislative powers. It is a premise of modern legal theory that there is such an authority empowered to create whichever legislation it deems appropriate; that such authority is "The" Legislative Power. Different agencies or institutions may have veto power to oppose, but nobody except "The" legislative power is permitted to artificially create equivalent legislation, with equal discretion. Civil lawyers formulate this picture in terms even more decisive and dogmatic than Common Lawyers.
This has not always been the case. The function of creating law was left, in times too recent to be ignored, to God (sari'a, in Muslim Law). In other Legal Traditions the rules of social interaction were thought to mirror a cosmic order (ch'ing, li, lii, in Chinese Law; a variation of which is found in the giri, in the Japanese Legal Tradition). More often Law preceded any individual design (mores mark the origins of Roman Law and customs those of the Common Law). Human power intervenes to regulate and improve the rules (as in the case of assemblies and praetores in Rome, and judges, chancellors and the Parliament in England), or to reduce all existing laws to a unitary body of written law (as in the case of Hammurabi in Babylonian Law ). This power of marginal intervention should not be confused with the power of destroying an existing body of law and replacing it with a new one. In this regard Justinian in Roman Law played a double role. While in his time he simply organized and reduced to written form the body of existing laws, during the Middle Ages he was seen as though entrusted with a divine mandate to give law to Christianity(1).
The idea of an overall legislative power is asserted only after the French Revolution (even though movement in that direction can be seen during the period of Absolutism). Such superpower was created within a peculiar context: in France absolute legislative power was necessary to bring about the revolution, and the revolution was necessary to bring about a liberal and rational law. But the idea of abolute legislative power outlasted the liberal ideal. Legal Positivism reached its apex in totalitarian countries , especially where the Communist party refused to recognize any limits to its legislative authority.
The point is that "the Lawgiver" is a recent entry into the domain of Law and that law may live, and lived, even without a lawgiver.

3. Before the end of the XVIII century law lived without a lawgiver.
Law was taught in Law Schools where students learned a technical lexicon, linked with a sophisticated framework.
The legal process was directly tied to the existence of professional lawyers entrusted with the resolution of social conflicts.
The Common Law tradition, the Roman world, the Islamic world all had their own jurists, legal terms, and law schools. The rise of a technical language was tied to this learned tradition, far beyond the Germanic or neo-latin folk Law.
I doubt that Gaelics or Basques would have terms suitable to a sophisticated legal experience. Certainly neither the Corsicans nor the Venetians have developed appropriate terms to express legal concepts. Only scholarly languages provide such a lexicon of technical and exoteric nature.
Legal terms, jurists and law schools sprang in Rome(2).
This was the great contribution of the Roman experience. Neither the Chinese, nor the Pre-Columbian civilizations nor the Germanic and Slavic populations had any "jurist". Before the Roman era, the resolution of legal issues was entrusted to religious or administrative authorities (with the possible exception of Mesopotamia).
But the law can certainly exists and evolve without lawyers.
Up until 2000 years ago the law existed and operated efficiently in the absence of either lawgivers or lawyers.

4. Anthropologists draw a distinction, in the context of oral cultures, between societies with centralized power and societies with distributed power(3). In drawing a broad sketch of the history of the Law this distinction is fundamental in illustrating a basic division in the classification of legal experiences.
Societies with courts, public officials and fiscal systems, attest to the existence of a social power overwhelming individuals and minorities. Most populations sharing our culture experienced a centralized sovereign power. And even some populations with a more traditional culture had the experience of some embryonic form of a centralized structure of sovereign power (kings, oligarchies, assemblies). However these structures do not exist everywhere nor - more importantly - have they always existed everywhere. And even where they do exist they can influence the life of society to greater or lesser extent. In some cases they are only called upon in special circumstances (e.g. in case of war). In other cases they can intervene also to solve inner conflicts.
When power is distributed each individual belongs to a small group (in its simplest form a family, a clan or a tribe) which, in case of conflict, provides for self-help. In case the reader were unfamiliar with the functioning of the mechanisms of self-help, let's just point out that until the end of the XIX century self-help was the only way to enforce international law. Countries involved in a conflict could either wage war against each other or negotiate towards a pacific resolution; the war would either result in the elimination of one of the contenders or in a peace settlement. These events would take place by means of ritual acts dictated by the norms of international law (declaration of war, duty to wear uniforms, prohibition against the use of certain weapons, etc.). A variety of politico-legal devices (alliances, binding arbitrations, non-aggression treaties, protectorates) served to limit the risks caused by the lack of sovereign power.
The sovereign power - which, where it is found, is stable and operates through specialized and technically competent agencies - is the State. The State has not always existed. It was created when the sovereign power started to be exercised over society in a coherent and systematic way.
The Origins of th State are in a way linked with the origins of the "Bronze Societies".
The State did not always come with the production of bronze, nor with the birth of the political structures contemporary with the age of bronze; and the State has also arisen not in connection with the age of bronze; however the peculiar characteristics of the bronze age can be persuasively traced back to the advantages derived from a centralized power structure. The production of bronze takes away from the production of food important categories of people, whose substinence thus weighs on farmers and cattlemen. Hence the need for a fiscal system which in turn requires a system of land registration and writing was entrusted to a group of specialists, whose substinence in turn weighs on the class of food producers. The subdivision of agricultural and cattle products amongst producers and consumers implies the resolution of non-consensual relations, which brings about the painful need for a group of professional fighters. The society I am describing cannot operate simply by virtue of free exchange of goods and services, and is destined to dissolve without the establishment of a centralized power, observed by all. Obedience requires some sort of insurance to induce citizens to compliance by means of appropriate persuasion: magicians - who quickly become experts in this field - are called upon to substantiate, though the intervention of super-natural forces, the legitimacy of the authority(4).
The aforementioned situation can be found in Egypt at the time of the Pharaohs or in the Middle East in the period immediately following the Sumers. However, it can also be found, without any contribution on the part of the production of bronze, in the Mayan and Inca empires. Also along these lines fall (this time in conjunction with the production of bronze) also the Indian and Chinese empires.
With the empires flourishing on the old continent in the bronze age the State was born and, for the first time, sorcery was linked with the issues raised by the judicial power. For the first time a constitutional law appeared ; and a complex and well managed administration gave rise to administrative law. A public criminal law and a judicial power were created operating in conformity with procedural rules(5).
Centralized power spread from Mesopotamia and Persia to Greece and from there to Rome. A long series of confrontations, lasting over 1500 years, finally served to integrate the Roman system with the Germanic system, whose institutions had come into conflict with the Roman world long before being eradicated by the sweeping introduction of centralized power.
In short: prior to 3500 BC. there was no centralized power and yet there was - and flourished - law.
During my tenure at National University of Somalia I had the opportunity to witness the remaining traces of traditional Somali law - the xeer- and thus I came into contact with a efficient and flourishing legal system, able to operate, as typical of any system of distributed power, in the absence of a lawgiver, a State or centralized power. Feuds and ordeals are the building blocks of these legal systems - namely, the Somalian and the Berberic (6) as well as the Germanic in the age of the great migrations.

5. The law of the fifth millennium BC. was not been the same as that in force 50,000 years earlier or 500,000 years earlier.
A vital of force of unprecedented vigor and able to produce radical innovations was undoubtedly the development of magic arts. Magic allows us to establish facts - ordeals and vowels were and still are the last in a long line of methods of proof with supernatural ties -, to identify the person against whom we must proceed, to find remedies to cure social illnesses. Magic rituals can be used to reinstate property, since magic recipes can teach goods how to deter misappropriations. Curses can also be used to punish people who don't maintain their promises.
Anthropologists have collected an amazing quantity of documents on the dominant role of magic in social life. However, there have been no attempts at either synthesis or systemic approaches.
Nobody has been able to establish the date of creation of magic, nor when it began to rule man's life. Can we assume that it started to play a larger role as man transitioned from Inferior Paleolithic to Superior Paleolithic ? We do not know for certain, even though we know that man developed in that period skills that nowadays we consider artistic and that, at that time, served precisely to influence the fate of the people and things represented or through sounds obtain certain goals.
Nonetheless law existed even before magic.

6. Law provides a means to prevent and solve conflicts throughout society. Wherever we find a society we find law.
This hold true in human societies as well as in advanced animal societies.
Lions, wild dogs and many other carnivorous mammals "mark" their territory and obtain from their counterparts, i.e. from other members of their species, observance of their exclusive rights. Several varieties of birds live by the same rules, namely marking their aerial space flying and screaming; observance of the rule is enforced by self-help. A complex interplay of glands and hormones great the strength of the animal unjustly attacked. Rules observed by the animal itself protect the relationship between male and female, often preceded by courtship, and the duties incumbent on the parents with respect to their offspring.
When the Homo Habilis produced the first rock fragment his law could be too different from that of the primates who he immediately preceded him. Those rock fragments created issues of property, extending through time, of chattels: the weapon or the rock (flint stone, quartz, oxydian), valuable insofar as rare, to make the weapon. Possession probably solved the most common problems.
The cerimony - marking of territory or courtdship - was used to announce and qualify relationships. In cases where no cerimony was required, the realtionship was inseparable from the act: possession constituted the exercise of legal power over the chattel, acquiescence implied recognition of the other's rights, performance implied obligation. The dichotomy between law and enforcement did not exist. The acts that were performed were legal, in other words, the right exercised was legal, the duty absolved was legal, the act acquiesced by others was legal. Trade was accomplished through an exchange of possessions. Improper acts immediately triggered self-help.
Cerimonies and acts constituted legal actions. Adherence to the rule implied its existence and validity (manifested by the spontaneous conduct of the members of the group).
The law was unspoken (except for the yelling accompanying cerimonies and self-help). Sources were unspoken. Acts were unspoken.

7. The biggest legal revolution took place when a descendent the Homo Habilis began to use an articulated language.
Until that time the Homo Erectus, who had taken the place of the Homo Habilis, had been practicing with great success a gestual language. It is difficult to assess the impact such gestual language had on the law, but I doubt that it was sufficient to destroy the preexsting order.
Once the language had been developed it is not clear whether man began immediately to use it for purposes of the law. It would be fruitless to take a position on this issue. Rather we must ask which new possibilities the artciculation of language opened over time.
The answer appears within reach for the careful scholar.
Except for the two typical cerimonies, i.e. appropriation of land and marriage, unspoken acts and unspoken sources continue to operate today. We occupy, we own, we abandon. We do not enter private land. We do not pursue somebody else's wife nor do we feed somebody else's child.
Language, however, introduces questions about the future, abstract questions about law not yet applied, principles unrelated, at least for the moment, to realities.
"You will return that"; "This is my land, and it will always be, even if I leave. And I will be back."; "We are all going harvesting today but not tomorrow, we are all going hunting tomorrow but not today".

8. Spoken law follows this primordial nutshell of law, i.e. the law that natura omnia animalia docuit. Spoken law controls all future developments, words support logic. At first, we are dealing with the elementary logic of participation, which permits the building of magic knowledge. Then with the logic that forms the basis for the magnificent, altough oppressive, social and legal architecture of the bronze age. Later, with the logic which constitutes the basis for the conceptual and deductive legal reasoning of the (Roman and post-Roman) jurist. At the inception of the law that the omnipotent legislator is called to create form thin air, with pure rational law, intended to be the brightest point in the history of the law.
In reality, the rational law of the illumists is not the brightest point: it is just an illusion born of good intentions; further development, however, will follow.
Nothing however could be so diametrically opposed to rational law as natural law; nature has shown man a law that man, having achieved rational dominion of legal concepts, has thouroughly rejected.

9. The structural basis of a given legal system determine to a great extent its legal instruments. The non-speaking human society possessed a clear concept of subordination amongst individuals; exemplified by the child's reverence for the adult, in reason of the physical strength of the latter and the need for protection of the former. Several selection methods are available to determine which member of the group will enjoy greater power. Amongst several animal species, the prowess of those who aspire to the leadership role is tested in apposite competitions, and serves to legitimate its social position. Magic creates hierarchies of a supernatural nature, but has no reason to undermine the preexisting natural order. The agrarian and pastoral culture of the Neolithic allows the enjoyment of (slave) labor without any need to arm laborers or entrust them with possession of goods (the opposite was true of the Paleolithiuc society which lived of hunting and harvesting). This situation created the ideal conditions for the development of a subordination of an essentially economic nature (slavery or later forms of private servitude). The culture of the Bronze age introduced the subordination of individuals to the sovereign and thus to the State. And the subordination to the State outlasted (in competition and only remotely contributing to their demise) the subordination due to descendance, physical prowess and prestige, religion and private servitude. The advent of legal science did not mody operative relationships, it simply improved the conceptual definition of the relationship between masters and dependents. The appearence of omnipotent lawmakers did not upset the preexisting structure even though in practice lawmakers will be inclined to deal primarily with the subordination of individuals to the State.
Subordination has as a corollary loyalty, in reason of which subordinates abstain from any intrusion upon the person and the property of their master. Loyalty is distinct from obedience. The person in power can verify whether or not there has been a lapse in the other's obedience. Disoyalty, however, takes place away from the eyes of the master. As a consequence, those who obey because they are convinced of their subordination normally remain loyal, while those who are forced into obedience are more likely to betray; by the same token, those who feel obliged up to a point, but not further, are likely to betray.
Loyalty means continuously acting against nature, against one's own interest, to obey the command or interest of the master. Any social structure creates loyalty ties amongst those who volunarily accept their subordination. We can think of children who, in the early days of the Homo Erectus, did not steal the food set aside by their parents for "rainy days". We can think of devote young followers of a renowned guru unwilling to steal from him and dutifully running his successful businesses (the receipt of a donation for each curse performed). We are probably too far removed from the position of the slave to truly understand his mentality, but we can think of grateful servants (Joseph elevated to minestry by the Pharaoh) who choose to devote their lives to their masters(7). We can think of associations, either voluntary or to which, in any case, followers are particularly attached, to which followers will offere any form of loyalty, by reason of their profound identification with the group: friars, religious confraternities, religious or regional political clans either small enough for personal ties be felt amongst the members or formed by people so dedicated as to feel bound to a large collection of people whom they have never met. We can picture all of these situations. Within all of these groups loyalty appears spontenous and entirely natural. But, outside of these contexts, unsolicited loyalty, based on the voluntary subordination of one's needs to the wills of a master or a group, is vitually unkown of.
Prior to the State power was conferred in the exclusive economic interest of those who held it. It wasn't until the great cultures of the Bronze age that we see priests not stealing treasures from the temple or ministers (as emperor's slave) not taking advantage of his powers to defraud his subjects. Monks (including, I imagine, members of the military monastic orders) did not defraud the order nor did they derfaud the subjects of the order (which doesn't mean, however, that they did not defraud their subjects in the interest of the order). Slowly ties developed outside famil;y circles amongst neighbors interested in the common good; hence the origin of cities (and, later, of states); loyalty towards the sovreign became loyalty towards the State; loyalty towards monastic orders became loyalty towards the (laic) community, permeated with ethical values. These were important, even if partial, advances; they make up the pages of an Atlas illustrating a reality only a few centuries or millennia old.
At the basis of a society at the "state of nature" loyalty does not extend outside the family circle. And since, by this time, the State is predominant everywhere, in a society ruled primarily by natural instincts those put in power by the State, except for fear of criminal prosecution, do not administer it according to the law. Such practices are better known by their real name: corruption. A wealth of literature has been written on the central part corruption plays in the life of African societies(8). It is unlikely that a society of centralized power, where feuds and vendettas are de facto still in existence, would have the sophisticated psychological structures required for the existence of the loyalties required toprotect society from corruption. Therefore every combination of loyalties and disloyalties is likely to be found in this society. Functionaries are thus loyal to political parties (that have taken the place of secret societies and monastic orders in society), but to serve the interests of the parties he defrauds the people. They are loyal to the family and therefore dislpyal to the community. Subjectively, they feel justified in betraying a loyalty in favor of an even stronger loyalty. They feel righteous. If cought, they feel like martyrs.

10. In several significant part of today's world legal systems - or parts thereof - are in existence which date six thousand years back.
According to several observers the rules governing private matter in Japan and China are not legal in nature, but rather are derived from philosophy, tradition and social interests, and are administered without courts, legal professionals, the interevention of the authorities or written rules(9). We would probably be not too far from the truth in assuming that the rules governing private matter in Japan and China are indeed legal in nature, but outside the sphere of interest of centralized power. The State regulates private law (access to power, possible balancing powers, administration, administrative constitutional law and public criminal law). The rest is regulated by the lower strata of the social structure with rules well known by the people and capable of providing an solution to any conflict of interest as well as of forcing an unwilling litigant, through the fear of significant societal sanctions, to comply with the decision.
According to the scheme I propose, traditional Chinese law would not regulate issues of either family or property law, while criminal Chinese law would punish family crimes and robberies. Under this set of assumptions, Chinese criminal law incorporates and codifies rules of family and property law derived from a separate system of sources, i.e. from that customary law that westerners mistakenly see as a form of philosophical ethics.
In other words: in the Far East a variety of legal systems, or rather a variety of sections of a single legal system, have coexisted and continue to coexist on the same territory; amongst them the most ancient presumes a non-centralized power and dates all the way back to the Stone age; the following is more modern and presumes a centralized power, even in the absence of lawmakers and lawyers; the most recent (of clear western origin) introduces lawmakers and lawyers. Thus, western-style lawmakers deal only with western-style law.
In 1980, at a symposium on African legal studies(10), the legal life of the entire subsaharan African culture was declared imbued with sacral functions: heads of state are idolized; other heads of state have made political decision based on their dreams and so on. In the same the Supreme Court of Zambia issued a set of regulations overseeing actions involving the work of sorcerers or their effects(11). To put it differently, european law intyroduced during the colonial era and law dealing with sorcery can coexist in subsaharan African countries.
These observations must be generalized.
Even legal systems that possess both lawmakers and legal professionals contain some elements residual of more primitive stages. Of course these elements may sussist as aberrations or simply lie outside of the legal order (the ritual Sardinian or Sicilian vendettas, typical of societies of distributed powers, fall outside the boundaries of the law in Italy). However, they can be incorporated into the offcial structure of the system.
The State tries to adjudicate all private conflicts of intersts, however it puts into place several important deterrent measures to dissuade litigants from seeking access to the courts (expensiveness of stamped paper, burdenof legal representation, poor quality of the legal system, etc.): isn't it here that the hidden governamental desire to keep out of private conflicts can really be felt ? Or, at least, isn't it true that only a minimal part of private conflicts is indeed solved by governamental organs ? And that in many case a heavy social stigma attaches to the filing of a legal action ? And in the legal field is testimony considered a way of verifying a factual element (an efficient method since the witness, knows remembers and intends to serve the truth) or as a delegation to a third party of a factual determination, ruled purely by chance on either side and not capable of rational determination ?

11. A combination of both spoken and unspoken elements can also be found at work.
Our legal systemis familiar with spoken sources (the written rules, of splendid form and content, produced by legislative assemblies) as well as with unspoken sources (commercial uses, determination of standards of conduct, construction, by an interpreter, of concepts such as fault, reasonableness, bad faith). It is familiar with acts carried out through words (contracts made by fax, deeds, wills) as well as acts carried out without words (deliveries, contracts made through devices that allow the buyer to pay and receive merchandise). Some categories include both spoken and unspoken acts: such are contracts that can be made by declarations, but also by material facts; such are confirmations; such are acceptances of inheritance, which can be express or implied.
But lawyers are primarily interested in spoken sources and acts and feel uneasy with unpoken sources and acts.
To support this argument I will make four remarks.
A) If a category encompasses both spoken and unspoken acts, the definition of the category concentrates only on the spoken acts. Contracts are seen as joint declarations, bilateral legal acts, sequences of offer (given to the offeree) and acceptance (given to the offeror). Discussion of unspoken contracts is hurried and almost incidental. Discussion of unspoken contracts is broken up (from a classificatory standpoint) so as not to appear too close to the center of attention: some hypothesis are presented as a result of contruction, or as void contracts made valid by estoppel; civil lawyers speak of contrats de fait - faktisches Vertagsheraltnis to guard themselves against their codes that forgot to regulate works actually performed and companies that have actually operated on the market.
B) When we refer to unspoken acts we do it by analogy to spoken acts. We reason that the party wants to achieve a certain legal result and thus has to express the required intent and to this end it might be sufficient to simply perform the act in question; thus performance serves as a (tacit) declaration. The party gives up a fruit from his own tree, i.e. he makes a donation. Spoken word jurist see this as an exchange of declarations (offer and acceptance of donation) followed by an overt act, i.e delivery. A maacting silently directly performs a legal duty. Spokn word jurists reconstruct this sequence in a more complex fashion. According to this classification, the silent party who intends to perform a duty knows that in order to perform the duty a legal act, i.e. a declaration, is required and that performance of the duty is equivalent to a declaration and thus performs the duty (but what does he really perform since without a legal act there is no executable duty arising from the act ?).
Before men could speak, dynamics of the law were reduced (except for cerimonies) to performance of duties (start, continuation, end of performance, substitution of parties during performance), nor is there any reason to view silent acts in more complex terms today than at that time(12).
C) Planning is made towards performance. Of these two aspects performance plays the pivotal role of which planning is simply a device (a dubious device at that: when the law drafts a plan it still remains to be seen whether citizens will comply). The purpose of property is the use and enjoyment of assets. A gift of property completly devoid of any possibility of use and enjoyment would be purely illusory. If my neighbor doesn't mind my use and enjoyment of his possessions, I would not complain of the absence of a deed granting me a leasehld form a term of years. Law and legal acts are theorethical exercises. Social discipline and performance have a practical dimension. However, jurists write thousands of pages on their intended program and only one page on its execution, i.e the intent of its words. They don't like to admit that the intent of property is possession; that property is a structure created to ensure to parties (by means of imposing exclusory obligations on others) their possessions; that those who claim the property invoke the logical medium that insures possession; that the focal point of the law is possession, performance, observance of the law; and not the property, the contract or the law.
D) An eve greater abnormality is found on the logical level.
The dynamics of the law is always presented as centered around fundamentally opposite planes so that historical events, belonging to the factual world, trigger legal reality (immaterial, made of thoughts). Writings of the sovereign, death of the sovereign, votes of the assembly, factual historical events trigger rules, succession to the crown, appointment of high dignitaries of State (thought creates these legal realities). Capture of fish gives origin to fishermen's property, contracts creates obbligations. Under this view the factual situation must necessarily predate the origin of the legal situation (ignoring the separate issue of retroactivity).
This scheme that which sees facts preceeding obbligations is trnsferred by jurist to the field of unspoken acts andsources. Custom is created by long repetition of conforming behaviors; once created it is binding. Sellers complete thei sales by shipping the goods: as soon as performance is made, the sale is complete and binds the parties.
This scheme is inadequate, contraddictory and eve ridiculous.
Consider the doctrine of custom. While conforming behaviors are being rendered, the parties are observing a rule not yet in existence, but since the rule is not yet in existence, it cannot yet legitimate the conforming behavior. Sellers shipping their goods, ordered by fax by buyers, would be performing an act not yet required (since at time of performance no contract would be yet in existence), and could thus incurr double expenditure!
The truth is that, with respect to unspoken law, the factual rules and the factual situation which create the duy do not precede the duty. Rule and duty, as clear expressions of rights and duties, do not arise. Perfromance of a duty (exercise of rights, performance of an act, acquiescence, respect for other's individuality) is self-justifying and rises to the level of a duty (sometimes a duty of long duration). Observance of a rule, or the exercise of a right in conformity to a rule are self-justifying and justify the customary rule. A "natural" rule is sufficient to justify itself. It is justified by a complex of glandes, hormones and adrenalynes ifinitely stronger, as far as persuasive powers, than a collection of legal scholars added to a collection of legal precedents.

12. A linguistic remark hould be added to these systemic remarks.
The unspoken law could not give names to the legal institutions that already at that time sustained society and conditioned its survival. It could not give them names because it could not speak. But a lack of conceptualization followed the lack of verbalization, and the creation of language did not seek to give names to institutions that worked in the absence of speech. Clearly we don't know which were the first languages known to man. But it is apparent, a long time after the inception of speech, that the legal institutions which date furthest back in history, those institutions "quae natura omnia animalia docuit", and that thus don't need to be defined by words in order to exist, have not been fully defined even in times when the legal lexicon has been fully developed. Ancient Romans did not define property because they found it to be self-evident; they did not define family authority for the same reason; they gave approximative and uncertain definitions to custom.
In the great scheme of history, the speaking man is conceptually and directly familiar with spoken law, which he created. He did not feel a need to look back to unspoken law that he found too obvious to require explanation. In cases where he felt a need to do so, he adapted categories belonging to the spoken law, which did not adequately suit the purpose.
Speaking jurists have given names to rules, subjective rights and legal duties. They were not so generous with behaviors conforming to rules, exercise of subjective rights and performance of duties. They define these concepts only in relation to the related ideas expressed by the spoken law. Against any natural linguistic logic, they used a key-words to define an instrumental, abstract, immaterial legal reality (rules, rights, duties) and then used compound derivative terms (behavior in conformity with the rule, behavior in violation of the rule, exercise of right, performance of duty) to indicate the real historical objects for which the instrument swere intended.

















Notes


(1) See SACCO, Introduzione al diritto comparato ,204 et seq. (Taurin, 1992)
(2) SACCO, Introduzione, supra at 209 et seq.; voce "Cina" in Digesto 4a ed. , civ. ,II (Taurin 1988).
(3) Refer to the seminal work of FORTES and EVANS-PRITCHARD , African Political Systems, (London 1940). See, also SACCO , Introduzione, supra, at 192 et seq.
(4) The various elements at play in this context are superbly analyzed in V. GORDON CHILDE , What happenned in History, PenguinBooks 1939; See, also V. GORDON CHILDE, The Prehistory of European Society, Penguin Books 1958.
(5) SACCO , <>
(6) SACCO , Di alcune singolari convergenze fra il diritto ancestrale dei Berberi e quello dei sSomali, in Scritti in onore di Angelo Falzea at 395 et seq. , IV, 1991.
(7) Both Islamic and African histories are rich with examples of kings whose guards were chosen primarily amongst slaves.
(8) Resolution of legal controversies, registration of property, issuance of passports or licenses are typical examples of instances in which bribery is required. See, e.g. PASCON, Les Seksawa depuis l'independance in BERQUE, Structures sociales du Haut Atlas at 491 (1978).
(9)See in this context R. DAVID Les Grandes systems de droit contemporaines at 423 et seq.(Dalloz, Paris, 1992)
(10) 4th Colloquium of the Centre d'etudes juridiques comparatives of the University of Paris I on the topic "Sacralite', pouvoir et droit en Afrique". Proceedings published by C.N.R.S. in 1978. See, also SACCO Di alcune convergenze,, supra.
(11) The memo of April 28th, 1980 was drafted by the Office of the local Courts officer, signed by D.F. Zulu and circulated to all Court Clerks. I obtained a copy at the local Court in Kawambwa. The memo was issued in response to British instructions prohibiting actions against sorcerers.
(12) Some of these issues are discussed in SACCO, Autonomia del diritto privato in Dig 4a ed. civ., I (Taurin, 1987). A more detailed analysis appears in SACCO, L' Occupazione, atto di autonomia in Riv. Dir. Civ., 1994, I, 343.