Professor Bernard J. Hibbitts
University of Pittsburgh School of Law
39. Something of this problem - in a slightly different context is reflected in an experience Sir Walter Scott once had when he showed an old Scotswoman the printed texts of songs he had written down from her singing: "the old woman was more annoyed than amused. He had spoiled them altogether, she complained. 'They were made for singing and not for reading, but ye have broken the charm now and they['ll] never be sung mair. An the worst thing o'a' is, they nouther right spelled, no right setten down.' " The Viking Book of Folk Ballads of the English-Speaking World ix (Albert B. Friedman ed., 1956).
40. Mitchell Stephens, A History of News 24 (1988). This passage from a recent sociological study nicely captures the "loudness" of early medieval culture:
Noises permeated the streets of the medieval city from dawn to dusk. Street criers were everywhere and kept up their business at all hours of the day. [They] proclaimed at dawn that the baths were open and the water hot; then followed bawling vendors advertising fish, meat, honey, onions, cheese, old clothes, flowers, pepper, charcoal, or other wares. Friars from different religious orders swarmed over the city, demanding alms. Public criers announced death and other news. Street musicians provided entertainment but also could annoy those with well-attuned ears.
Yi-Fu Tuan, Segmented Worlds and Self: Group Life and Individual Consciousness 126 (1982). On loudness and noisiness as socially-approved characteristics of personal deportment in medieval Anglo-Saxon society in particular, see Bruce Redwine, Decorum and the Expression of Intention in "Beowulf," "Njal's Saga" and "Chaucer" 75-89 (1984) (unpublished Ph.D. dissertation, University of California (Berkeley)). Redwine notably suggests that by Chaucer's lifetime (the middle to late fourteenth century, by which point England had made the transition from a performance culture to a writing culture), English decorum had come to favor soft sounds, if not outright silence. Loud behavior was regarded as boorish and was openly ridiculed. Id. at 216-24.
41. Edward Carpenter et al., Eskimo 25 (1959).
42. Charles R. Adams, Aurality and Consciousness: Basotho Production of Significance, in Essays in Humanistic Anthropology: A Festschrift in Honor of David Bidney 309 (Bruce Grindal & Dennis Warren eds., 1979).
43. Anthony Seeger, The Meaning of Body Ornaments: A Suya Example, 14 Ethnology 211, 213 (1975).
44. David Howes, Controlling Textuality: A Call for a Return to the Senses, 32 Anthropologica 55, 65 (1990).
45. Evelyn F. Keiler & Christine R Grontkowski, The Mind's Eye, in Discovering Reality: Feminist Perspectives on Epistemology, Metaphysics, Methodology and Philosophy of Science 207, 221 (Sandra Harding & Merrill B. Hintikka eds., 1983).
46. Rosalind Thomas, Oral Tradition and Written Record in Classical Athens 21 (1989).
47. Alexander Chamberlain, Primitive Hearing and "Hearing-Words," 16 Am. J. of Psychol. 119 (1905).
48. Id. at 127. On similar metaphorical identities in Indochinese languages, see George Devereux, Ethnopsychological Aspects of the Terms 'Deaf' and 'Dumb,' in Varieties, supra note 17, at 43-44. In a fascinating article, anthropologist Anthony Seeger has suggested that another indicator of the special importance of aural communication in several preliterate societies is the tendency of their members to decorate and ornament those parts of the human body relevant to the creation or appreciation of sound. The efforts of the Suya people to highlight their mouths and ears with large ornaments thus reflect the prominence accorded to speaking and hearing in that culture. See generally Seeger, supra note 43.
49. Aristotle, The Politics 7.4 (Thomas A. Sinclair trans., 1962).
50. James Burke, The Day the Universe Changed 92 (1985).
51. J. Douglas Porteous, Landscapes of the Mind: Worlds of Senses and Metaphor 50 (1990).
52. Genesis 1:3 et seq. (Revised Standard Version). On the power of speech in Hebrew tradition, see Susan A. Handelman, The Slayers of Moses: The Emergence of Rabbinic Interpretation in Modern Literary Theory 17, 32-34 (1982).
53. Philip M. Peek, The Power of Words in African Verbal Arts, 94 J. Am. Folklore 19 (1981).
54. William B. Stanford, Sound, Sense and Music in Greek Poetry, 28 Greece and Rome 127 (1981). Oral reading of written works similarly typified the Middle Ages, although the habit became less common as literacy rates increased in the thirteenth century and afterward. See Ruth Crosby, Oral Delivery in the Middle Ages, 11 Speculum 88 (1936); Paul Saenger, Silent Reading: Its Impact on Late Medieval Script and Society, 13 Viator 367 (1982).
55. The Odyssey of Homer 8.169-.173 (S.H. Butcher & A. Lang trans., 1900).
56. Ruth Einnegan, Attitudes to Speech and Language Among the Limba of Sierra Leone, 2 Odu 61, 70 (1968).
57. Dick Leith & George Myerson, The Power of Address: Explorations in Rhetoric 33 (1989).
58. On the cultural prominence of poetry in preliterate societies in particular, see Denys Thompson, The Uses of Poetry 77-85 (1978). In ancient Greece, "Prose as the medium of important communication was slow in developing, and even after its appearance, it retained acoustic devices . . . as late as the fifth and fourth Centuries." Kevin Robb, Greek Oral Memory and the Origins of Philosophy, 51 Personalist 5, 28 (1970). For a comprehensive study of the shift from poetry to prose in late medieval Europe after the initial, albeit limited, rise of "popular" literacy there, see Wlad Godzich & Jeffrey Kittay, The Emergence of Prose (1987).
59. Beowulf vv. 320-23 (Michael Swanton ed., 1978). Only some of this passage's alliterative qualities are preserved in translation: "The road was paved with stone, a path guiding the group of men. The war-mail shone, hard with hand-forged links; the bright iron rings sang on their armour." Id. For a discussion of similar aural structures in Greek poetry, both before the fifth century (until which time "all Greek poets made their poems for hearing not for seeing, for the ear and not for the eye") and after (when written poetry was still read aloud), see Stanford, supra note 54, at 127.
60. Robb, supra note 58, at 42 n.29. On the singing and chanting techniques that may have been used by the Homeric poets, see M.L. West, The Singing of Homer and the Modes of Early Greek Music, 101 J. Hellenic Stud. 113 (1981).
61. Isidore Okpewho, The Epic in Africa 62-63 (1979).
62. Havelock, supra note 20, at 124. In belated recognition of the pivotal role of music and, more specifically, song in shaping the lives, lore, and learning of the early Greeks, a number of scholars have recently come to characterize early Greek society as a "song culture." See Andrew Ford, Homer: The Poetry of the Past 14-16 (1992); John Herrington, Poetry into Drama: Early Greek Tragedy and the Greek Poetic Tradition 3-40 ( 1985).
63. Plato, The Laws 2.654b (Trevor J. Saunders trans., 1970).
64. John M. Chernoff, African Rhythm and African Sensibility 34 (1979); see also Leonard W. Doob, Communication in Africa: A Search for Boundaries 79 (1961), Kevin B. Maxwell, Bemba Myth and Ritual: The Impact of Literacy on an Oral Culture 4 (1983).
65. The notion of sound being a nuisance or an inconvenience ("noise pollution") seems to be peculiar to writing cultures (and within that broad category, "text cultures"), whose members need no longer rely on sound for the propagation of cultural information.
66. Stephens, supra note 40, at 24.
67. Johan Huizinga, The Waning of the Middle Ages 10 (1949). On the communicative rote of church bells in the Middle Ages, see generally Sophia Menache, The Vox Dei: Communication in the Middle Ages 30 (1990).
68. See Rodney Needham, Percussion and Transition, 2 Man 606, 606 (1967). Similar noisemaking takes place in our own writing culture (e.g., honking of horns and clanging of tin cans after weddings), but the practice is generally more celebratory than communicative. We prefer other means of publicizing and preserving the memory of important events.
69. I would like to thank Carrie Cottreau for this apt metaphor.
70. This statement is not, however, meant to imply that the English and American legal systems retain equivalent measures of aurality. Scholars have long recognized that under the weight of considerable tradition, English law has preserved a greater number of oral forms and practices than has its American counterpart. See, e.g., Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis (1990) (in particular chapter 3).
71. One such jurisdiction is Pennsylvania. See 234 Pa. Code § 1113 (1985).
72. In performance cultures, the dependence of law on aural communication is so great that deaf-mutes (individuals who cannot speak because they have never been able to hear) may be deemed incapable of holding legal privileges and bearing legal obligations. For instance, in medieval Europe until the twelfth century, deaf-mutes were not allowed to marry on the presumption that they could not understand the meaning of the marriage ceremony. Harlan Lane, When the Mind Hears: A History of the Deaf 93 (1984).
73. Peter M. Tiersma, Rites of Passage: Legal Ritual in Roman Law and Anthropological Analogues, 9 J. Legal Hist. 3, 8 (1988).
74. Adams, supra note 42, at 310.
75. Anglo-Saxon Charters 55 (Agnes J. Robertson ed .& trans., 2d ed. 1956).
76. Memory, supra note 2, at 202. The use of valete may also have reflected the standard Roman (Latin) form for finishing a letter, but one has to remember that the classical practice of letterwriting itself had oral roots; even after writing had pushed Rome beyond "performance culture," people in a society that was still significantly short of universal literacy still intended letters to be read aloud, just as they were dictated aloud.
77. Alan Watson, Roman Law and Comparative Law 77 (1991).
78. On the orality of Anglo-Saxon wills in particular, see Brenda Danet & Bryna Bogoch, From Oral Ceremony to Written Document: The Transitional Language of Anglo-Saxon Wills, 12 Language and Comm. 95 (1992); Harold D. Hazeltine, Comments on the Writings Known as Anglo-Saxon Wills, preface to Dorothy Whitelock, Anglo-Saxon Wills vii (1930).
79. Burton F. Brody, Anglo-Saxon Contract Law: A Social Analysis, 19 DePaul L. Rev. 270, 286 (1969) (quoting Benjamin Thorpe, Diplomatrium Anglieum Aevi Saxonici 500 (1865)).
80. Hazeltine, supra note 78, at xxx n.2 (quoting John Kemble, Codex Diplomaticus Aevi Saxonici 755 (1839)).
81. Id. (quoting Domesday Book 1, f. 177a).
82. Michael M. Sheehan, The Will in Medieval England: From the Conversion of the Anglo-Saxons to the End of the Thirteenth Century 186 (1963).
83. Ann Fienup-Riordan, Eskimo Essays: Yup'ik Lives and How We See Them 205 (1990).
84. Callie Williamson, Monuments of Bronze: Roman Legal Documents on Bronze Tablets, 6 Classical Antiquity 160, 164 (1987).
85. Henry R. Loyn, The Governance of Anglo-Saxon England 500-1087, at 108 (1984).
86. Laws of Early Iceland 187 (Andrew Dennis ed. and trans., 1980).
87. Memory, supra note 2, at 212 (quoting Matthew Paris, 3 Matthei Parisensis Chronica Majora in Roll Series LVII 35 (H.R. Luard ed., n.p. 1872-1884)).
88. Doob, supra note 64, at 245 (quoting I.C. Ajisafe, The Laws and Customs of the Yoruba People 22 (1924)).
89. Patrick Wormald, Lex Scripta and Verbum Regis: Legislation and Germanic Kingship, from Euris to Cnut, in Early Medieval Kingship 123 (P.H. Sawyer & Ian N. Wood eds., 1977).
90. Memory, supra note 2, at 220 (quoting Richard Fitzneale, The Course of the Exchequer [Dialogus de Scaccario] 116 (Charles Johnson ed. and trans., 1950)).
91. Herbert F. Jolowicz, Historical Introduction to the Study of Roman Law 179 (1939) (original in Latin).
92. Jeffrey L. Slusher, Runic Wisdom in Njal's Saga and Nordic Mythology - Roots of an Oral Legal Tradition in Northern Europe, 3 Cardozo Stud. L. & Literature 21, 31 (1991).
93. Ljosvetninga Saga, reprinted in Theodore M. Andersson & William I. Miller, Law and Literature in Medieval Iceland 121, 124 (1989).
94. Slusher, supra note 92, at 26-27 (quoting Njal's Saga ch. 141 (Magnus Magnusson & Hermann Pálsson trans., 1960)).
95. Memory, supra note 2, at 209-21. On the analogous suspicion of written evidence in Hellenic Greece, see Tony M. Lentz, Orality and Literacy in Hellenic Greece 77 (1989); on the dimensions of the fraud problem in Greek society, see George M. Calhoun, Documentary Frauds in Litigation at Athens, 9 Classical Philology 134 (1914).
96. Memory, supra note 2, at 215.
97. Thomas, supra note 46, at 64.
98. Rolls of the Justices in Eyre 300 (Doris M. Stenton ed., Selden Society 53, 1934). A generation later (1248), a clerical plaintiff appeared to be satisfied by simply being "shown" a charter. This acceptance arguably indicates the beginnings of a gradual shift towards a less aural, more writing oriented legal culture. Memory, supra note 2, at 215.
99. Finnegan, supra note 56, at 61.
100. Rosalind Thomas, Literacy and Orality in Ancient Greece 69 (1992). Significantly, the mnemones survived in name into the Hellenistic period, but by this point they had been reduced to judicial clerks.
101. 1 Frances Palgrave, The Rise and Progress of the English Commonwealth 145 (London, John Murray, 1832) (quoting John of Ibelin, The Assizes of Jerusalem ch. 45 (1266)).
102. 1 Ancient Laws and Institutes of England 179 (London, Commissioners of the Public Records, Benjamin Thorpe ed., 1840).
103. David Mellinkoff, The Language of the Law 43 (1973) (quoting Ancient Laws and Institutes of England, supra note 102, at 181). For further discussion of the legal use of these techniques, see Dorothy Betherum, Stylistic Features of Old English Laws, 27 Modern Language Rev. 263 (1932).
104. D.A. Binchy, An Archaic Legal Poem, 9 Celtica 152, 156-57 (1971). On versified laws in general, see Thompson, supra note 58, at 109.
105. Rose Brandel, The Music of Central Africa: An Ethnomusicological Study 39-40 (1961); see also T. Olawale Elias, The Nature of African Customary Law 220 (1956).
106. Brandel, supra note 105, at 39-40 (quoting Leo A. Verwilghen, in Album Notes to Folk Music of the Western Congo (1952)).
107. Michael T. Clanchy, Remembering the Past and the Good Old Law, 55 Hist. 165, 175 (1970).
108. William Seagle, The History of Law 108 (1946). There is a similar story in Plutarch's Lives, to the effect that in the early sixth century. "Solon sang his laws to the people [of Athens] in verse (elegaic couplets) obviously because this was the way both to catch and to impress Greek ears." Robb, supra note 58, at 43 n.37. Some scholars have refused to accept that anything so serious as a set of laws could ever have been sung in ancient Greece, except perhaps as a parody. Others, however, have disagreed: "That [laws] should have been set to music and associated with festive occasions is fully in accord with the Greek sentiment, which saw in them not stern task-masters, but the companions of social life, friendly and intelligent advisers. Samuel H. Butcher, Some Aspects of the Greek Genius 174-75 (Kennikat Press 1969) (1891). For a controversial article on the singing of Greek laws, see Luigi Piccirilli, 'Nomoi' cantati e 'nomoi' scritti, 2 Civilita Classica e Cristiana 7 (1981).
109. Michael Gagarin, Early Greek Law 54 n.l0 (1986).
110. Aristotle, Problems 19.28 (Walter S. Hett trans., 1953).
111. Cicero, De Legibus 2.59 (Clinton Keyes trans., 1943).
112. See supra notes 65-69 and accompanying text.
113. Memory, supra note 2, at 220 (quoting William Stubbs, Select Charters & Other Illustrations of English Constitutional History 313 (1900)).
114. Jolowicz, supra note 91, at 145; Watson, supra note 77, at 77.
115. Jean Brissaud, A History of French Private Law 495 (1912). This practice still survives among cattle traders in France, England, and Denmark. See David S. Thomson, Language 74-75 (1975). On the tactile aspects of hand-slapping, see infra notes 228-29 and accompanying text.
116. Brandel, supra note 105, at 39.
117. Robert Lowie, Primitive Society 223 (1947).
118. Residual instances of using sounds to communicate legal meaning in our own much less aurally-oriented society are the striking of a hammer on an auction block to mark a sale and the striking of a judge's gavel on the bench when a court is recessed or adjourned.
119. For a discussion of the primacy of vision in present-day Western society, see Stephen A. Tyler, The Vision Quest in the West, Or What the Mind's Eye Sees, 40 J. of Anthropological Res. 23 (1984). On the significance of visual perception in the writing cultures of fourth century B.C. Greece and the late Roman Empire respectively, see Thorlief Boman, Hebrew Thought Compared with Greek 113-16 (1960); R.F. Newbold, Centre, Periphery and Eye in the Late Roman Empire, 3 Florilegium 72 (1981). For analogous discussions of the heightened importance of visual expression and experience in the later Middle Ages, see Huizinga, supra note 67, at 200-14, 269-73; Margaret Miles, Image as Insight: Visual Understanding in Western Christianity and Secular Culture 64-75 (1985); Jeffrey Hamburger, The Visual and the Visionary: The Image in Late Medieval Monastic Devotions, 20 Viator 161 (1989); Heather Phillips, John Wyclif's De Eucharistia in Its Medieval Setting 123-202 (1980) (unpublished Ph.D. dissertation, University of Toronto).
120. See generally Alan Dundes, Seeing is Believing, 81 Nat. Hist. 8 (1978).
121. For a more extended consideration of modern visual metaphors for knowledge and thinking, see Walter J. Ong, "I See What You Say": Sense Analogues for Intellect, in Interfaces of the Word: Studies in the Evolution of Consciousness and Culture 121-44 (1977).
122. Ian Ritchie, The Fusion of the Faculties: A Study of the Language of the Senses in Hausaland, in Varieties, supra note 17, at 196.
123. Id. (quoting C.E. Whitting, Hausa and Fulani Proverbs 52 (1940)). Genesis 1:3 may reflect an analogous sensory subordination of seeing in its story that the word was prior to the light in the order of creation. See supra note 52 and accompanying text.
124. Seeger, supra note 43, at 215.
125. Id. at 216; see also The Evil Eye: A Folklore Casebook (Alan Dundes ed., 1981). It may be significant that in the last two hundred years, as writing has become universalized in Western society, evil has increasingly become identified not with those who see, but with those who cannot see - a trend that arguably represents the moral dimension of sight's primacy in our own sensory hierarchy. On the recent association of blindness and evil, see Michael E. Monbeck, The Meaning of Blindness: Attitudes Towards Blindness and Blind People 56-58 (1973).
126. Seeger, supra note 43, at 222.
127. On the correlation between blindness and wisdom in Greek culture, see William Super, Sight and Seeing in Ancient Times, 70 Popular Sci. Monthly 413, 423 (1907).
128. H.R. Davidson, Gods and Myths of Northern Europe 26 (1964). My thanks to Spencer Clough for drawing this story to my attention.
129. The dominance of kinetic over static visual expression in performance cultures means that members of such cultures tend to place less emphasis on elements of visual communication that are more effective in a predominantly static visual environment. Color is the most obvious of these. In kinetic visual communication, color tends to be secondary to the communication of visual action. Only when something is immobile can its coloring be fully appreciated; when something is still, color may indeed be necessary to communicate what action cannot. Members of performance cultures are certainly capable of seeing as many colors as we are, and they are not averse to using colors in costume and art. Their color schemes nonetheless tend to be less elaborate than our own, and their languages contain only a few "color" words. For example, Homeric Greek contained no words for "color" at all. Different colors were understood by reference to light intensity (which arguably stands out more in a moving object). Green or yellow was denoted by choros, meaning "pale." Red or purple was denoted by phoinix, meaning "bright." Navy blue or iron grey was denoted by huakinthos, meaning "dark." Early Hebrew culture also was uninterested in color. On the few occasions when the Old Testament mentions rainbows, it notes them more for their brilliance and splendor than for their shadings. Light is consistently more important than hue. Anglo-Saxon society shared the same attitude. Beowulf has notably been described as "a poem of bright day and darkest night, light ale-hall and gloomy wasteland." In a similar vein, the scribes and decorators of early medieval manuscripts were as much, if not more, interested in making their works shine by the copious use of reflective gold and silver leaf as they were in using flat colors. They were literally "illuminators," not just "illustrators." Members of many traditional African societies still seem more concerned with brightness or darkness than "color" per se. The Shona language, for instance, contains only three specific color words. See Bernhard Bischoff, Latin Paleography: Antiquity and the Middle Ages 16-18 (1990); Boman, supra note 119, at 88; 3 William E. Gladstone, Studies on Homer 456-96 (Oxford, Oxford University Press, 1858); Geoffrey Gorer, Africa Dances: A Book About West Africa Negroes 299 (1935); Eleanor Irwin, Colour Terms in Greek Poetry (1974); Otto Lowenstein, The Senses 80 (1966); Nigel F. Barley, Old English Colour Classification: Where do Matters Stand?, 3 Anglo-Saxon Eng. 15, 15 (1974); Ian Ritchie, Hausa Sensory Symbolism, 32 Anthropologica 113, 114 (1990).
130. See supra note 5 and accompanying text. Even before the sixteenth century, Europeans' discomfort with expansive types of liturgical gesture was reflected in a new physical attitude of prayer. While early medieval manuscripts show supplicants raising their arms, manuscripts from the more literate fourteenth and fifteenth centuries depict praying individuals in a spatially confined, "modern" pose with their hands clasped close to their bodies. Saenger, supra note 34, at 152.
131. James Boswell, The Life of Johnson 323 (Christopher Hibbert ed., 1979).
132. Edward B. Tylor, Researches into the Early History of Mankind 44 (Paul Bohannan ed., University of Chicago Press 1964) (1878). The apparently greater tendency among members of Continental European societies (especially the French and the Italians) to use more and/or more expansive gestures in everyday communication may reflect the greater tenacity of nonwritten forms of expression in the writing cultures of predominantly Catholic countries. See supra note 22 and accompanying text.
133. Geneviéve Calame-Griaule, Le Cestuelle des Conteurs: Etat d'une Recherche, in Oralita: Cultura, Letteratura, Discorso (Bruno Gentili ed., 1985).
134. See, e.g., Scheub, supra note 16, at 355-60; Calame-Griaule, supra note 133, at 304-05 (photographs).
135. Jan Vansina, Oral Tradition as History 34 (1985).
136. Suzanne P. Blier, Gestures in African Art 22 (1982) (quoting Dominique Zahan).
137. Jeffrey Hurwit, The Art and Culture of Early Greece, 1100-480 B.C. 25-26 (1985). For a literary instance of the pleading gesture (suggesting that this was not simply artistic convention), see The Iliad of Homer 1.500-.501 (Richmond A. Lattimore trans., 1951) [hereinafter The Iliad].
138. Jan Bremer, Walking, Standing and Sitting in Ancient Greek Culture, in A Cultural History of Gesture, supra note 5, at 17 (quoting The Iliad, supra note 137, at 7.211-.214, 15.306-.307).
139. The Iliad, supra note 137, at 1.525-.527.
140. Jacques Le Goff, Medieval Civilization : 400-1500, at 357 (Julia Barrow trans., 1988).
141. Moshe Barasch, Giotto and the Language of Gesture 19 (1987).
142. Id. passim.
143. Le Goff, supra note 140, at 357.
144. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 58 (1983) (quoting Frederic Maitland).
145. Jean-Claude Schmitt, The Rationale of Gestures in the West: Third to Thirteenth Centuries, in A Cultural History of Gesture, supra note 5, at 59. This attitude has unfortunately encouraged scholars and publishers to exclude manuscript depictions of legal gestures from their modern print redactions of such early medieval works as Beaumanoir, Costumes du Beauvaisis; Bracton, On the Laws and Customs of England; Gratian, Decretum. Our understanding of the place of gesture in early medieval law (and, perhaps, in performative law in general) would arguably be very different if the "primary sources" on which we rely did not whitewash the visual record in this fashion. A book that attempts to compensate for this unfortunate practice is Anthony Melnikas, The Corpus of the Miniatures in the Manuscripts of Decretum Gratianii (1975).
146. A. Leo Oppenheim, Ancient Mesopotamia: Portrait of a Dead Civilization 283 (1964).
147. Thomas R. Williams, Cultural Stucturing of Tactile Experience in a Borneo Society, 68 Am. Anthropologist 27, 34 (1968).
148. François L. Ganshof, Feudalism 67 (1961).
149. A History of Private Life II: Revelations of the Medieval World 130 (George Duby ed. & Arthur Goldhammer trans., 1988).
150. Betty J. Bauml & Franz Bauml, A Dictionary of Gestures 122 (1975).
151. On the handclasp in early English medieval law, see 2 Borough Customs 1xxx (Mary Bateson ed., Selden Society 21 (1906)). On Spanish and French practices, see David Ibbetson, Sale of Goods in the Fourteenth Century, 107 Law Q. Rev. 480, 483, 486 (1991). On the Welsh handclasp, see 2 Thomas P. Ellis, Welsh Tribal Law and Custom in the Middle Ages 4 (1926).
152. Rudolph Huebner, A History of Germanic Private Law 495 (1918).
154. Doob, supra note 64, at 70.
155. Meir Malul, Studies in Legal Symbolic Acts in Mesopotamian Law 366 (1983) (unpublished Ph.D. dissertation, University of Pennsylvania).
156. Henry C. Lodge, The Anglo-Saxon Land Law, in Essays in Anglo-Saxon Law 190 (Boston, Little, Brown and Co. 1876).
157. Ibbetson, supra note 151, at 484.
158. A.N. Allott, Evidence in African Customary Law, in 1 Readings in African Law 85 (Eugene Cotran & N.N. Rubin eds., 1970).
159. Id. at 86.
160. Malul, supra note 155, at 110, 138.
161. Id. at 58-59. The sounds accompanying these actions may not have been altogether incidental. See supra notes 112-18 and accompanying text.
162. Le Goff, supra note 30, at 268.
163. Raoul de Cambrai vv. 2131-2135 (Sarah Kay ed. and trans., 1992).
164. Le Goff, supra note 30, at 247 (quoting Caesarius of Heisterbach, Dialogus Miraculorum (c. 1220)).
165. J.F. Holleman, Issues in African Law 9 (1974).
166. 1 Issac Herzog, The Main Institutions of Jewish law 155 (1965).
167. A.J. Gurevich, Categories of Medieval Culture 236 (G.L. Campbell trans., 1984).
168. Brissaud, supra note 115, at 373. On the German application of this last custom, see Criminal Justice Through the Ages, at 312 (John Fosberry trans., 1981) [hereinafter Criminal Justice]. The German verb sitzen, "to sit" is iinguistically related to the term "seisin," which is so important in early English land law. See 2 Frederick Pollock & Frederic Maitland, The History of English Law 30 (Cambridge, Cambridge University Press 1898). Visual acts of possession in Germanic law may also have included drawing water from the property, ploughing a short furrow through it, or taking a tile from the roof of any building on it. Carlo Calisse, A History of Italian Law 707 (1928).
169. Fergus Kelly, A Guide to Early Irish Law 186-87 (1988). Compare this practice with the Icelandic claim-practice described earlier. See supra note 167 and accompanying text.
170. Pollock & Maitland, supra note 168, at 85.
171. Huebner, supra note 152, at 243.
172. Yochanan Muffs, Studies in the Aramaic Legal Papyri from Elephantine 101 (1973).
173. Criminal Justice, supra note 168, at 312.
174. Muffs, supra note 172, at 21; see also Malul, supra note 155, at 514.
175. Ruth 4:7. I am indebted to Rev. Dr. John B. Hibbitts for drawing this reference to my attention.
176. On early Greek law, see Louis Gernet, The Anthropology of Ancient Greece 166 (John Hamilton & Blaise Nagy trans., 1981). On early Roman law, see The Institutes of Gaius 4.17 (Francis de Zulueta trans., 1946) [hereinafter Institutes]. Although Gaius wrote his Institutes in the second century A.D., he took a special delight in recording the details of many ancient legal practices that barely survived in his own time, if at all. On early German law, see Munroe Smith, The Development of European Law 59 (1928). On early English (Anglo-Saxon) law, see Pollock & Maitland, supra note 168, at 87.
177. Brissaud, supra note 115, at 369-70.
178. Stephen D. White, Custom, Kinship, and Gifts to Saints: The Laudatio Parentum in Western France, 1050-1150, at 249 n.101 (1988). The same record also notes transfers per cartam (charter), in which a writing appears physically to have taken the place of a more traditional object. Given this, it is noteworthy that at an early stage, instead of obviating the gestural ceremony of transfer, writing merely became part of it. See Memory, supra note 2, at 207-08.
179. 2 Bracton, On the Laws and Customs of England 125 (George E. Woodbine ed., Samuel E. Thorne trans., 1977).
180. Memory, supra note 2, at 24 (quoting Simeon of Durham, Symeonis Monachi Opera Omnia, in Roll Series LXXV 97 (T. Arnold ed., n.p. 1882)).
181. See Emily Z. Tabuteau, Transfers of Property in Eleventh Century Norman Law 132 (1988). For an explanation of how the growth of complex written charters made physically pointing out boundaries superfluous, see Samuel E. Thorne, Livery of Seisin, 52 Law Q. Rev. 345, 348-50 (1936).
182. Tabuteau, supra note 181, at 131 (quoting a charter from La Trinité du Mont, dated to between 1030 and 1035).
183. Id. at 132 (quoting a charter from the Livre blanc of Saint Martin de Sees, folio 55v-56r, dated to 1099) (alteration in Tabuteau).
184. H.E. Lambert, Land Tenure Among the Kamba, 6 Afr. Stud. 157, 171 (1947).
185. Seagle, supra note 108, at 94.< 186. Geoffrey MacCormack, Formalism, Symbolism and Magic in Early Roman Law, 37 Tijd-schrift voor Rechtsceschiedenis 439, 448 (1969).
187. There has been a good deal of debate about whether the Sachsenspiegel illuminations depict legal gestures that were in actual use, or whether the illuminations were merely designed to visually represent transactions that relied on other media. This question, which of course can be extended to include the illuminations and miniatures in most medieval legal manuscripts, is as yet unresolved. Considering what we know generally about the medieval affiliation for gesture, I am nonetheless inclined to believe that the illuminators of the Sachsenspiegel and the other manuscripts correctly captured the importance of gesture in medieval legal communication, although occasionally they may have contrived, distorted, or exaggerated specific gestures or actions for visual effect. As Moshe Barasch has noted,
the depiction of legal gesture - whether or not [the illuminators] were faithful to actual reality - attests to a full awareness of gesture as a symbolic form. Whether or not the judge in court, when performing a divorce, actually pushed husband and wife apart, . . . the public in the thirteenth century obviously believed that this was what happened in court, and that this gesture was part and parcel of the legal procedure itself. . . . Did everybody who declared in court his refusal to do something actually grasp his right hand with his left, immobilizing the hand that does the job, and thus manifesting his inability to act? A modern reader may doubt it. Yet, obviously this is how such actions were imagined in the Middle Ages.
Barasch, supra note 141, at 6-7. Given the highly public (even open-air) nature of many legal proceedings in the early Middle Ages, it stands to reason that the manner in which legal procedures were imagined at that time basically reflected what they looked like. On the Sachsenspiegel illuminations, see Karl von Amira, Die Dresdener Bilderhandschrift des Sachsenspiecels (1902); Gerald H. Shinn, The Eschatological Function of the Iconography in the Dresden Manuscript of the Sachsenspiegel, in Contemporary Reflections on the Medieval Christian Tradition 53 (George H. Shriver ed., 1974); Malcolm Letts, The Sachsenspiegel and its Illustrators, 49 Legal Q. Rev. 555 (1933). For a further discussion of the evidentiary value of the illustrations in medieval legal manuscripts as a whole, see Gernot Kocher, Sachsenspiegal, Institutionen, Digesten, Codex-Zum Aussagewert mittelalterlicher Rechtsillustrationen, 3 Forschungen zur Rechtsarchaologie und Rechtslichen Volkskunde 5 (1981).
188. Robert C. Palmer, The County Courts of Medieval England: 1150-1350, at 92 (1982).
189. On medieval ordeals generally, see Robert Bartlett, Trial By Fire and Water: The Medieval Judicial Ordeal (1986). On medieval ordeals as a collection of "dramatic and memorable gestures," see Peter Brown, Society and the Supernatural: A Medieval Change, 104 Daedalus 133, 138 (1975).
190. On African ordeals, see, e.g., Barrie Reynolds, Magic, Divination and Witchcraft Among the Barotse of Northern Rhodesia (1963).