Let’s say we have this fictional civilisation. It doesn’t have a writing system; its traditions are oral and so is its system of government. How do you keep people accountable to what they’ve sworn? If someone said they’d give you three cows in exchange for such-and-such a service, how does the government ensure that this happens? In other words, what keeps people from being filthy lying cheats?
Important oaths could be sworn in front of witnesses.
Less important oaths would rely on reputation. Reputation would be important to one survival, and if you somehow manage to trick a large number of folks, they could all bear witness against you.
If someone outright denies there was an oath evidence could be brought against them. If the judge recognises the cows, they may know that they were exchanged with you for something.
Maybe notaries with eidetic memories and incapable of lying are not uncommon in that world.
But I doubt that a bunch of people can reach a civilization degree involving contracts and law without writing. Memory problem notwithstanding, written communication should become a must quite quickly.
You don't necessarily need writing, just some form of record keeping. Writing and record keeping are not necessarily the same thing.
You could use tally sticks, or something similar. Basically, you have a stick with notches carved into it, the notches representing some info. Maybe how much you paid in taxes, or how many hours/days you agreed to work, or any other business details. Then, you break the stick in half. You keep half, the person you're dealing with keeps the other. You can prove to a judge that the deal existed because your stick and their stick fit together. You can't fraudulently edit your half, because the other person still has theirs.
Here's what you do: Find a branched Y-shaped stick. (A stick with more branches may be used to facilitate contracts between 3 or more parties, but we'll just stick with 2 for now.) Both parties to the contract go and visit a neutral professional notary. In the notary's presence, two ends of the stick are snapped off so you end up with 3 parts. Each of the parties and the notary get 1 end of the stick. The notary files his stick into a compartment indicating the nature of the contract. (This bin = cows, that bin = service, etc.) Alternatively he ties color-coded ribbons to his stick, or marks the sticks in some other way indicating the nature of the contract.
Once the terms of the contract have been fulfilled, both parties return to the notary with their sticks. Because of the organic nature of sticks, each of their sticks will only fit perfectly with the original stick held by the notary. The sticks are then ritually burned indicating the contract is completed, so they may not be reused. If one party does not fulfill their end of the contract, the other one can file a complaint with the notary, using his stick as proof of the contract.
They use magic. Contract bonding, casted by licensed dark wizards, is a dark magic ritual where all parties sacrifice part of their free will. They not just remember the contract by the heart thanks to the ritual, they also adopt the same interpretation of the contract, no matter how complicated and nuanced it is, and this common interpretation becomes part of personalities of all parties of the contract. Motivation to uphold terms of the contract becomes deeply ingrained in their souls, upholidng the contract becomes their categorical imperative.
If your civilization is small enough... if the economy is simple enough... if the contracts are immediate enough... then it can be done as gmatht explained — by verbal contract. But it takes very little time for a civilization to outgrow this level of simplicity and an argument could be made that a contract for a fish not meant to be completed before next week is too complex to be reliably judged as broken two weeks later based only on hearsay.
We could debate, "what is a writing system?" but the truth is even our illustrious caveman ancestors drew symbols on walls with ash. Creating a believable scenario where a civilization didn't have some form of symbolic representation would be very difficult indeed. Soon after the development of the concepts of "mine!" and "you dirty rat!" would come the desire to inflict the world with graffiti.
Written language takes many forms. I've already mentioned one. Here's that and a couple more.
Cave Painting: Cave paintings are a type of parietal art (which category also includes petroglyphs, or engravings), found on the wall or ceilings of caves. The term usually implies prehistoric origin, but cave paintings can also be of recent production: In the Gabarnmung cave of northern Australia, the oldest paintings certainly predate 28,000 years ago, while the most recent ones were made less than a century ago. The oldest known cave paintings are more than 44,000 years old.
Rai Stones: The Micronesian island of Yap is known for its stone money, known as Rai or Fei: large doughnut-shaped, carved disks of (usually) calcite, up to 4 m (13 ft) in diameter (most are much smaller). The smallest can be as little as 3.5 centimetres (1.4 in) in diameter. They have been used in trade by the Yapese as a form of currency.
Rongorongo Sticks: Rongorongo is a system of glyphs discovered in the 19th century on Easter Island that appears to be writing or proto-writing. Numerous attempts at decipherment have been made, none successfully. Although some calendrical and what might prove to be genealogical information has been identified, none of these glyphs can actually be read. If rongorongo does prove to be writing and proves to be an independent invention, it would be one of very few independent inventions of writing in human history. (These are advanced forms of the notched sticks Jimbo's answer points to.)
Archaeostronical Stone Structures: It has been suggested (and there's proof to suggest veracity) that some or all of the ancient stone structures like Stonehenge were, at least in part, for the purpose of marking the passage of seasons. They were (among other things) calendars.
So, what is "writing?" In its most basic form, "writing" is the act of recording information for future use and if we grant some wiggle room, "writing" could be defined as anything you did for that purpose, whether it was placing a stone on the ground and grunting out the phrase, "stone mean booga give ugga fish when dark come," or Edison recording himself saying "Mary had a little lamb..." on a clay cylinder, or IBM discovering that reliably storing ones and zeros on a magnetized surface would be whomping useful.
But without writing, all that's left is memory. Use all the witnesses you want, you're still relying on remarkably fallible (and manipulable, and conveniently changed...) memory. (I'm going to ignore the use of external non-writing things like magic and gods — which, when used to record information for future use, are still just another form of writing.)
The problem is that as your society becomes more complex, so do its needs for recording information. Weather patterns, astrological events, calendaric events, genealogical associations, laws, judgements, ownership, and of course, contracts. In your own example, you used three cows. Numbers and arithmetic were among the earliest forms of (and needs for) writing. The moment you held up three fingers you "wrote" something — it was simply erased too quickly for it to be useful. But what does it take for someone to look at those three fingers and think of drawing three lines in the dirt?
Therefore, I'd like to suggest that any society complex enough to need to record contracts couldn't possibly exist without having long ago developed the ability to symbolically record much simpler, much more fundamental information.
Like something along the lines of, "Second full moon after the spring equinox, plant oats."
Otherwise, it would be like suggesting a civilization could develop space flight without having first discovered the wheel. It can't be done without some sort of gimmick that allows the story to proceed.
Agreements have been made for centuries before the relatively recent reliance on paperwork.
If someone is known to not keep their word, then no one will accept their word as surety.
A person's appearance of trustworthiness is guarded well by each individual. Questioning someone's word would be deeply offensive.
Rather than being enforced by the courts or by the state, it is enforced by the individuals of the community. Those known, or even suspected, of being untrustworthy will be completely shunned, or simply never interacted with in any manner that requires trust.
For most interactions, a promise between two individuals would be fine. For more substantial transactions, making the promise or exchange in the presence of witnesses would suffice.
The short and obvious answer is:
Oaths work because religion.
If you believe that God punishes oathbreakers with, let's say, a infinity of torment in the next world, then there's really no incentive for any rational person ever to break an oath.
Serendipitously, just yesterday I discovered this blog which goes crazy in depth on a lot of "fantasy-antiquity" tropes. Come for the siege of Gondor, stay for "Oaths: How do They Work?":
In most of modern life, we have drained much of the meaning out of the few oaths that we still take, in part because we tend to be very secular and so don’t regularly consider the religious aspects of the oaths – even for people who are themselves religious. Consider it this way: when someone lies in court on a TV show, we think, “ooh, he’s going to get in trouble with the law for perjury.” We do not generally think, “Ah yes, this man’s soul will burn in hell for all eternity, for he has literally damned himself.” ...
So when thinking about oaths, we want to think about them the way people in the past did: as things that work – that is they do something. In particular, we should understand these oaths as effective – by which I mean that the oath itself actually does something more than just the words alone. They trigger some actual, functional supernatural mechanisms. In essence, we want to treat these oaths as real in order to understand them.
If your premodern civilization really cannot spare a god or two to witness oaths, then the next best thing would be for them to set up the closest possible facsimile to an omniscient, omnipotent witness — somebody who
sees when an oath is taken
sees, with infallible accuracy, when an oath is broken
harshly punishes the oathbreaker
and, pretty importantly,
- is never witnessed to have failed in their two capacities as omniscient-observer-of-oathbreakings and omnipotent-punisher-of-oathbreakers
because if people start getting the idea that they might not be punished for breaking their oath, well, then all bets are off, and you'd better invent lawyers quick.
What'd be perfect is if you can manage to inflict your harsh punishment only in the afterlife, and nobody ever comes back from the afterlife to falsify your claim of infallibility. (Again, if your culture hasn't got an afterlife, you'll have to invent some facsimile. Unfortunately I'm having a hard time imagining what that might look like.)
It's quite simple. You have a class of people who's job is to keep track of contracts, which we will call 'contractors'. A small exchange such as a purchase can be witnessed by a single contractor, while major events, such as a major oath or the purchase of a building might be witnessed by as much as a dozen.
You can't eliminate the possibility that contractors themselves would lie, but by having more contractors witness more important events, you reduce the likelihood that you could successfully bribe all of them before you were ratted out by one to near zero, especially if ratting on bribery was rewarded.
Two things come to mind. 1. Fear of God and after life consequences 2. The oldest form of conflict resolution: BLOOD.
Even Today people trust what people say, even when they don't know them. They trust in common decency and get burned. We've all heard it before "Be sure to get it in writing". Anyways, even with all our written laws and protections, we know there are still many people and places here at home that if you cross somebody you will get served with instant justice in the form of a physical beat down. If you've ever had all your stuff thrown through a window by an ex girlfriend you know about instant justice (nothing written, no judge, no jury).
Rai stones are quite a unique way to keep track of transactions.
Some micronesian people used to have small round stone used as money. The value was not written on their face: the bigger the stone, the higher it's value.
Problem was, the biggest stones could make more than one meter in diameter... so the idea was to meet where the stone was with some witnesses and orally transfer ownership of the stone.
Governments don't enforce contracts; courts do.
While I doubt you could have anything resembling a modern government without a system of writing, you can certainly have courts. At its core, a court hears each party's side of a case (including any witnesses), rules in favor of one or the other, and orders someone to enforce their ruling. None of that fundamentally requires writing to work, nor does it require the existence of a government.
I can think of a few reasons.
This depends on the size of the society, in part. Are people well-known enough to other members of society that they cannot escape general knowledge of their deceitful behavior? There have been (illiterate) societies, even in the last few centuries, where a person's word truly was considered bond. Breaking that word would result in being shunned from all future business in the community, ultimately leading to ruin.
Picture a small farming community, around 1900. Everyone knows everyone else. The community is small enough that people can grasp the concept of "if we all start cheating each other, everyone will starve." Any bad actor will be quickly excluded from the community, because people recognize the danger his actions pose to the survival of the whole. By turn, anyone considering deceit must consider that if they cheat one person, they are damaging their own chance of survival.
Suppose a society once had the survival situation above. Now this is a large, prosperous society. (For whatever reason, they never developed writing. This is your world, you figure that out.) However, the prohibition against cheating is such an integral part of society that no one would dare do it. Assuming free will, some people still try to break the rules. However, anyone who does is so severely punished that only someone completely unhinged would even contemplate it. Maybe oathbreaking carries the death penalty or something, and society is 100% behind it. There's not enough reward to justify the risk to any logical person.
Maybe the society isn't human, or at least not 21st-century Earth humans. China Mielville's book Embassytown dealt with exactly this. The native residents of the planet where the story takes place are physically unable to lie. Something in the biology of their brains makes them incapable of speaking an untruth. As I recall, for them, speaking a lie would be like having the ability to spontaneously, voluntarily hallucinate. You can't just look at a red pen and force your eyes to perceive it as blue. These beings had the same constraint on their faculties of speech.
For transaction-type contracts, an escrow system could work. The parties would agree to the contract with the escrow agent present. Parties deliver their goods to the escrow agent, not to each other. The agent only delivers the goods to their respective recipient once all parties have fulfilled their obligations. The escrow agent ensures that the transaction either happens as originally agreed, or no goods change hands at all.
POETRY AND SONG
Contracts, great deeds, promises, rules, and other important information - even navigational directions - are preserved by oral tradition.
How do you stop them from being forgotten, mis-remembered or even corrupted?
In modern communication theory, you add redundancy. Those check digits that proclaim a credit card number either valid or a forgery. Repetition of a message in a RAID disk array. Checksums, parity bits to detect communication errors ro tampering.
In oral communications, you can do exactly the same.
Make the verse rhyme. Rhymes are easier to remember. Introduce the chorus. Build on the same image to reinforce it. And it must rhyme. Repeat the chorus Use colourful unforgettable images. Or puns or jokes. Repeat the chorus. Keep the rhythm going so that a forger introducing extra words stands out like a sore thumb. Repeat the chorus.
And it works. Chunks of Homer's Iliad have been heard in Eastern Mediterranean countries (OK, citation needed), fairly well preserved in the oral tradition after a couple of millennia.
To armour a message in image, rhythm and rhyme, takes considerable skill, so you'll need bards of considerable talent - as well as legal training - the cream will be among the most honoured members of society and most prized at court, alongside the warriors who provide enforcement. And as the above shows, I wouldn't have been one of them.
The Norse used praise poetry for kings; no doubt, remembering who won which battle or who made what promise was of use in their courts to decide disputes.
Ring-a-ring-a-rosy, Pocket full of posy, Tishoo, Tishoo, All fall down.
Diagnostics, attempted cure, and outcome. Seems like we shouldn't have forgotten this one.
We'll rant and we'll roar, like true British sailors, We'll rant and we'll roar across the salt seas; Until we strike soundings In the Channel of old England, From Ushant to Scilly 'tis thirty-five leagues.
Great rhythm and finishes with the most important information; how far before we get into home waters.
If someone said they’d give you three cows in exchange for such-and-such a service, how does the government ensure that this happens?
How would this work for a contract?
Three cows, spake Donald. Three cows, by summer's end. Three cows, to mend his ship, No bull, his ship I mend.
Break the contract and he'll never show his face down the pub again, if we keep singing his song!