I have recently been reading up on the history of Islamic law, in particular in Knut Vikør's excellent Between God and the Sultan, for my current book project on legal systems very different from ours. While doing so, it occurred to me that there is at least one issue common to scholarly debates on that subject and debates on the legal system of saga period Iceland, the subject of a different chapter of my book. That issue is the reliability of oral transmission of a prose text.
In the Icelandic case, the question is part of a very old scholarly debate on the origin of the sagas. The family sagas describe events of the tenth and early eleventh centuries. Their texts, however, were written in the thirteenth and early fourteenth centuries. Were they composed at the time, using bits and pieces of the earlier history, in which case their description of the earlier society may largely reflect later conditions, or were they composed shortly after the events they describe, transmitted orally, and finally committed to writing?
The strongest evidence against the latter theory is that, while the sagas sometimes have skaldic verse embedded in them, they are themselves prose documents. Reliable oral transmission over a period of centuries is more plausible for verse, a point actually mentioned by Snorri Sturluson in his introduction to Heimskringla, his saga history of the Norwegian kings.
Jesse Byock, a leading modern scholar, has offered some ingenious evidence on the other side. The hero of Egilsaga (one of my favorite sagas), his father and his grandfather exhibit a set of traits that fit the symptoms of a hereditary disease, Padget's syndrome, not known until the 19th century. It seems implausible that all of those apparently unrelated details of the story would have stayed together for the three hundred years between the events and the writing down of the saga, unless they had been combined into a single narrative composed shortly after Egil's death and transmitted thereafter as oral literature.
What about Islamic law? It purports to be based on two sources, both reflecting divine revelation—the Koran and the Hadith. The latter are traditions of what Mohammed and his companions did and said. The theory is that, since Mohammed was divinely inspired, his practice provides evidence of how God wishes believers to act—including men making and enforcing legal rules.
Since the traditions can be used as evidence for and against various interpretations of the law, there was an obvious incentive to fabricate suitable ones, a point recognized by Islamic legal scholars. There was thus an extensive scholarly project in the early centuries to separate out the reliable traditions from the unreliable ones, based in part on each tradition's isnad, the account of who heard it, whom he told it to, and the series of oral links through which it was transmitted until it was eventually written down.
Some recent scholars, primarily western, have challenged this traditional account, arguing that all or almost all of the traditions are bogus, invented long after Mohammed's death in the course of disputes over alternative versions of the law, versions themselves based largely on non-religious sources—pre-Islamic Arab law, the legal traditions of the conquered provinces, and the administrative rules created by the conquerors in the early years. Their arguments depend in part on analysis of the supposed chains of transmission, in part on evidence that many of the supposedly genuine hadith deal with issues that could not have arisen in the early period from which they claim to date. Curious readers can find an entertaining discussion of one small part of the controversy in "The Truth About Cats and Dogs," an essay by Vikør.
By now the relation between the two controversies should be clear. Our understanding of the legal system of saga period Iceland depends, in part, on how willing we are to believe in the oral transmission of prose texts, the original versions of the sagas, over a period of centuries. Our understanding of the history of Islamic law depends, in part, on how willing we are to believe in the oral transmission of prose texts, the traditions of what Mohammed and his companions said and did, over a period of centuries. In each case, the alternative interpretation of the evidence, implying an alternative view of the history of the relevant legal system, is that the texts were actually invented by the people who wrote them down.
The parallel makes sense as far as concern for general veracity. Regarding law, however, the incentives seem to differ. Why bother to misrepresent Icelandic law? With Islamic law, original words continue to matter, so there is significant incentive to make favorable, possibly biased recordings. On the other hand, the countervailing incentive to check and document oral transmission should increase credibility, at least a little.
Have you ever run across a book with the provocative title Who Wrote the Bible? Its author makes the case that the Old Testament was in fact composed during a specific period in the history of monarchic Israel, and can be shown to be so from internal evidence. You might find interesting parallels in his arguments.
I have no idea how much is known about the origin of the various documents and authors -- but the origin of "new" information should fit a gravity model. That's an approach I thought would be interesting as I read "The Truth About Cats and Dogs".
An indication of how long oral transmission can last (& its weakness) is an early story of Merlin, probably about 500 AD which refers to him having flown the Stonehenge stones from Ireland.
In fact they were mined in Wales about 3,100 BC. But Wales was, for the time, at a comparably vast distance & the variation is not spectacular. It seems that some knowledge of the stones being floated around Britain's coastline had been orally transmitted over a 3,600 year period.
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