Making Sense of Metaphors: Visuality,
Aurality, and the Reconfiguration of American Legal Discourse
16 Cardozo Law Review 241 (1994); reprinted by permission of the Cardozo Law Review


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II. "Mirrors of Justice": Visuality and Legal Discourse

As our age translates itself back into the oral and auditory modes . . . we become sharply aware of the uncritical acceptance of visual metaphors and models by many past centuries.44
nderstanding the contemporary shift away from visual towards more aural legal metaphors requires an initial explanation of our traditional preference for visually oriented legal language. In this part of the Article, I suggest that this preference is a product of three overlapping factors: first, a longstanding American cultural bias towards visual expression and experience that is arguably based on the social prominence of the written word; second, the traditional numeric and political domination of American law and legal literature by members of gender, racial, ethnic, and religious groups which through their special command, control, or endorsement of writing have in the course of American history developed and/or demonstrated a particular respect for visuality; and, third, the accord that exists between orthodox American legal values and the values we have come to associate with vision as a phenomenon. In the pages that follow, I will consider each of these factors in turn.

A. Seeing Culture

[2.2] In Part I of this Article I argued that metaphors can reflect the circumstances and attitudes of the society that generates them. In light of this point, it seems reasonable to suggest that the traditional popularity of visual metaphors in American legal language has much to do with the bias towards visual expression and experience that has traditionally characterized American culture and, inevitably, American law.

[2.3] The traditional American bias towards the visual is aptly captured by the observation that "[i]n our society, . . . to be real, a thing must be visible."45 We46 demonstrate our visual bias in numerous ways and in numerous contexts, usually without recognizing that such a bias even exists. Every time we sing the first line of the national anthem, we ask a question about looking: "Oh say can you see . . .?" We pay for goods and services with dollar bills that bear a staring eye on their backs.47 We go on vacation not to hear the sounds, but to "see the sights"; we take along cameras, not tape recorders.48

[2.4] We give aesthetic priority to visual effect. Our glass and steel buildings are monuments to the power of sight, rather than sound or touch.49 Our idea of personal beauty is primarily visual.50 So is our idea of art, to the point where, in ordinary discourse, that term denotes purely visual painting, not music or dance.51 Our visual orientation even colors our approach to art forms which, at least in theory, are not altogether dependent on visual appreciation: we regularly highlight the visuality of sculpture-and, at the same time, neutralize its tactility-by posting signs in our museums and art galleries that read "Do Not Touch." Is it any wonder that in such a context, our sculpture should have become "painterly,"52 i.e., designed much more for seeing than feeling?

[2.5] Less obviously, but more fundamentally, our visuality shapes our sense of social identity and difference. We tend to group one another more on the basis of similar visual appearance than on, say, similar accent.53 This is most obvious when we categorize individuals according to the color of their skin: in our visualist culture, most Americans are "white" or "black." Visual identity has indeed become so important to us that we not only differentiate, but actually discriminate against one another on a visual basis. Having skin of a certain color may in practice entitle us to, or alternatively, it may disqualify us from educational opportunity, economic wealth, and political power.

[2.6] In light of our cultural preoccupation with the visual, it is not at all surprising that we are far more concerned with personal deficiencies in our sense of sight than with deficiencies in our other sensory departments. We insist on wearing glasses or contact lenses to correct minor flaws in our vision while we would not think of, say, wearing a hearing aid to correct similar minor defects in our hearing.54 We fear losing our sight more than we fear losing any of our other faculties.55 We harbor great pity for the blind, while deaf persons often arouse our irritation and impatience.56

[2.7] Visuality penetrates our very language. We routinely rely on visual metaphors to communicate understanding and knowing, or phenomena understood and known.57 When we comprehend something, we say "I see." Someone who does not understand "can't see" what we mean; he or she may even be "blind" to the obvious. We describe good leaders in metaphorical terms that suggest that they see far or well: they are "visionary"; they have "insight" or "foresight"; they have "perspective" or a "world view." We also associate knowledge and understanding with light, the physical presence of which is necessary for seeing. If I want someone to explain a topic, I might ask them to "illuminate" it or "shed light" on it. In the same vein, smart people are "bright." Darkness, on the other hand, inhibits seeing and therefore denotes ignorance. If I don't know what's going on, I'm "in the dark." As a general matter, not-so-smart people are "dimwits."

[2.8] American law has both reflected and actively contributed to our overall cultural visuality. Even in American trial courts which have resounded with the voices of lawyers, litigants, judges, and jurors, seeing has traditionally been given priority over the other senses.58 Great effort has gone into making testimony and arguments visible in writing. Eyewitnesses testifying to what they have seen have been preferred over "earwitnesses" testifying to what they have heard.59 Frequently, earwitnesses have been barred as bearers of inadmissible hearsay.60 Our judges and juries have generally given greater weight to visual evidence (in the form of both writings and exhibits) than to oral evidence.61 The existence of some visible written instrument has traditionally precluded oral testimony as to that instrument's meaning (the parol evidence rule). On appeal, disputed cases have come before appellate judges who have been expressly tasked with resolving them in writing. The appellate process still requires these judges to read visible briefs, precedents, and statutes rather than listen to live witnesses or (given severe time limits on oral argument) even attorneys.62

[2.9] In part because our judicial process has been so skewed towards visuality, American courts and legislators have traditionally shown particular sensitivity to visible declarations, visible claims, and visible injury. Written deeds, wills, and contracts have been readily and literally enforced;63 unwritten, such "instruments" have tended to be void or at least problematic. Judicial recognition of property rights has often depended on whether property-claimants have visibly manifested their claims by formal registration or, adversely, by "open and notorious" possession.64 Under the doctrine of "substantial interference," nuisance plaintiffs demonstrating visible harm from soot, smoke, or other pollutants have usually been better off than those complaining about noise or odor.65 In negligence law, visible injury has historically been more compensable than less visible, often invisible emotional distress.66 In defamation law, visible libel has been taken far more seriously than oral slander.67 In civil rights law, "visible minorities" have received more attention and protection68 than have other subjugated groups (such as the deaf)69 whose identities have been less visually defined.

[2.10] American legal scholarship has similarly assumed a strongly visualist cast. American legal scholars have traditionally preferred to study written appellate decisions rather than the oral arguments of lawyers or the oral charges of trial judges. Visibility of effort has become a critical scholarly standard for members of the American legal professoriate; for tenure and promotion purposes, what matters most is what, how much, and how well one writes on the visible page ("scholarship"), rather than what, how much, or how well one speaks into thin air ("teaching"). Scholarly convention has moreover tended to suppress even the written semblance of aurality. For example, most American law books and articles take the forms of analysis and essay. Both of these expository styles may be characterized as narrowly "visual" insofar as they are, for a variety of structural and mnemonic reasons, virtually unknown in oral experience. Until very recently, alternative forms such as story, parable, poem, and lyric which have powerful aural antecedents,70 and which even in writing are strongly evocative of aural expression,71 have been either eschewed in legal literature or published only for the dismissive purposes of entertainment and parody.72 In some instances, American legal scholars have gone so far towards visuality as to introduce semiverbal or nonverbal diagrams and graphs into their works.73

[2.11] In this context, it is hardly surprising that American jurists have relied heavily on visual metaphors when describing legal concepts and relations. In a cultural environment which has favored seeing, such figures of legal speech have been semantically convenient. Beyond mere convenience, however, visual legal metaphors have arguably helped to make American law familiar and legitimate. A law expressed in visual terms is psychologically more accessible to members of a visually biased society than a law expressed in aural or tactile metaphors (consider, for instance, the relative inaccessibility of a judicial "refeel," as opposed to a judicial "review"). A visually phrased law is more experientially recognizable, and hence easier to follow. It is more acceptable and less oppressively alien. It is more likely to be regarded as being of the people, not just for the people.

[2.12] But if American legal discourse has traditionally favored visual metaphors in part because American culture has been biased towards visual expression and experience, one naturally wonders why American culture has been so visualist. It might immediately be suggested that our visuality is the predictable product of our society's fascination - even obsession - with the images we constantly encounter in photographs, movies, and television.74 Certainly our embrace of images has contributed to our visuality. There are, however, two problems with the "imagism" hypothesis, standing alone. First, our visuality, historically considered, predates America's relatively recent turn toward images. Second, if imagism were at the root of our predisposition towards the visual, one would think that in the age of TV (not to mention MTV) the visual legal metaphors which are supposedly visuality's by-product would be enjoying an increasing vogue instead of losing ground to aural figures of speech. In the context of both these points, I would like to pursue a less obvious, but I believe ultimately more rewarding line of argument and propose that the visuality that informs and supports our visual legal metaphors is primarily a product of our culture's profound dependence on the written word.75

[2.13] This proposal is admittedly counterintuitive. We tend to think of the written word as "verbal," not "visual" (i.e., as language rather than image). This dichotomy is trenchant and often helpful, but it can be overstated. Certainly the written word is verbal, but in critical respects it is a visual medium as well.76 To appreciate it or to manipulate it (braille aside), we need to see it.77 As a society puts more of its essential information in written form, its members become more focused on the visual sense which enables them to retrieve that information by reading.78 Even for those who cannot read, the visual surface becomes a primary source of meaning as writers recognize that pictures are the most convenient permanent substitutes for written words. For readers and nonreaders alike, seeing becomes knowing. Because the visual understanding of texts or images does not necessarily require a viewer to hear, touch, smell, or taste, those senses may moreover become secondary to seeing as cultural and individual resources. When a society becomes sufficiently saturated with writings and other visual materials, its members may even feel that they can afford to deprecate or condemn the other senses as culturally superfluous capacities.

[2.14] The intimate connection between writing and visuality has been indirectly and directly demonstrated at numerous junctures in Western cultural and legal history. Members of societies having little or no experience with writing have tended to value a variety of senses.79 They may not have held all in equal esteem, but relative to contemporary America, their members have generally placed less emphasis on sight and more emphasis on sound.80 On the other hand, members of societies having more experience with writing have given increased weight to visuality and visual experience.81

[2.15] Take, for instance, the marginally literate society of pre-Hellenistic Greece.82 Its centerpieces were great oral epics (the Iliad and the Odyssey) which continued to be performed long after they were written down around 700 B.C.83 The relatively few Greek texts that existed were almost always regarded as records of speech that needed to be read aloud.84 Greek philosophers down to the time of Plato were not writers as much as they were talkers. While not unfamiliar with visual metaphors for thought,85 they also considered that as a "dialogue carried on by the mind with itself";86 they repeatedly expressed the idea of "knowing" in terms of "hearing" and "listening."87 Plato's own Dialogues were a literary extension of his discipline's actual and figurative aurality.88 Early Greek scientists conceived of the universe as having an aural as well as a visual presence: Pythagoras became famous for speculating on the "music of the spheres."89 Taking their cue from myth, Greeks from all walks of life routinely associated silence and muteness with desolation and death.90 Reflecting the prevailing cultural circumstances, early Greek law depended heavily on ceremonies and ritual procedures that implicated the ear, the hand, and the mouth, as well as the eye.91 The classical Greek word for law, nomos, was itself derived from the verb nemein, meaning "to recite" or "to read aloud."92 In this context, it should not be surprising that Greek law was long understood as having intimate ties to oral poetry,93 and, via an alternative rendering of nomos as "tune," even music.94 At one point in The Republic, Plato metaphorically described the just man as one who "must have put all three parts [of his soul] in tune with him, highest and lowest and middle, exactly like the three chief notes of a scale."95

[2.16] From the fifth well into the twelfth century A.D., medieval Europe was likewise dependent on the full range of human senses. Early medieval religion was a highly tactile experience which for many individuals culminated in contact with a relic of the saints.96 The words of God and man were primarily received from the lips of preacher and poet.97 The limited number of available writings were not perused as much as pronounced.98 It followed that early medieval "wise men" were those who "heard well."99 Early medieval law depended for its efficacy on an orchestration of diverse sensory experiences-gestures, words, deliveries, blows, and even tastes-that enabled transactions to be remembered months, years, and even decades after the fact.100 Jurisprudence thrived on oral stories101 and vaguely poetic phrases.102 Like early Greek law, law in the early Middle Ages also seems to have enjoyed a metaphorical connection with music.103 This connection was made especially prominent in the legal writings of churchmen who apparently were influenced by both the neo-Pythagorean philosophy of the Late Roman bishop Augustine and their own everyday musical experiences in the chantries of cathedrals and monasteries.104 In the mid-sixth century, the monk Cassiodorus opined that "when we commit injustice, we are without music." In 1096, Bishop Ivo of Chartes actually entitled the prologue to his collection of canons De consonantia canonum, "Of the Consonance [literally, a "sounding-together"] of the Canons."105 Circa 1140, the monk Gratian evoked the Latin term chorda or "string" (of, e.g., a lyre) when he gave his Decretum the long-form title of Concordia discordantium canonum, or "The Concordance [or "Harmonizing"] of Discordant Canons."106

[2.17] As both ancient Greece and medieval Europe became more familiar with and more dependent upon the written word, vision gained in intellectual and social status. In the early fourth century B.C., just as Greek literacy rates started to surge beyond marginality,107 Plato had already declared sight to be "the source of the greatest benefit for us."108 Later in the fourth century, Aristotle agreed that "seeing . . . is . . . the superior sense."109 The unprecedentedly literate Hellenistic period110 which began in Aristotle's lifetime and continued for three centuries after his death saw Greek painting displace more tactile sculpture and relief as the leading artistic form111 and even become the conceptual model for poetry.112 Contemporaneously, Greek law began to accord a greater privilege to visual expression.113 Legal actions now had to be commenced by a written complaint.114 More and more agreements were concluded by contracts made under seal.115 Aristotle's metaphors for justice were notably visual rather than aural. In the Ethics, he figuratively described the ideal judge as a geometer: "Now the judge restores equality; it is as though there were a line divided into unequal parts, and he took away that by which the greater segment exceeds the half, and added it to the smaller segment. . . . [T]he judge . . . is one who bisects . . . ."116

[2.18] Europe experienced a similar turn towards the visual after its literacy levels increased dramatically in the twelfth and thirteenth centuries A.D.117 New architectural styles brought unprecedented amounts of light-much of it filtered through colorful stained glass118-into churches and cathedrals that could now be stocked with a vast array of images intended to serve as the "books of the illiterate."119 Sight became the principal metaphor of spiritual knowledge and revelation;120 the taking of the Holy Eucharist was reconceived as a primarily visual experience that depended on the ability of the congregation to see the elevation of the Host.121 Monastic scribes began to reorganize the layout of texts to facilitate purely visual (i.e., silent) reading.122 Heraldry evolved into a complex visual code of chivalric identification and allegiance. The scientific community became fascinated with optics.123 Befitting the increased importance of writing in this period, someone invented reading glasses.124 At roughly the same time, the mirror became a fixture in life and, via metaphor, in literature: in the later Middle Ages a flood of works on a multitude of subjects incorporated the word "mirror" (in Latin, speculum) into their titles.125 European law became notably "spectacular" as lawyers and jurists adopted brightly colored robes126 and began to sit in courtrooms decorated with allegorical paintings.127 Rules, procedures, and precedents were increasingly set down in treatises, customals, and codes, the finer copies of which were illuminated with detailed pictures of legal situations128 and allegorical tables of legal relations.129 Heraldry's popularity suggested the term "by color of office" (later extended to "color of law" and "color of title") as a metaphor for the appearance, if not the fact, of legal right and power.130 In response to another aspect of contemporary visuality, several late medieval legal texts, and even several famous late medieval lawyers, were metaphorically described as "mirrors" that reflected what was good or right for the community.131

[2.19] The ascendancy of sight that marked Hellenistic Greece and late medieval Europe did not, however, automatically lead to denigration of the other senses and their manifestations. So long as manuscripts were rare and expensive and literacy was still far from "universal," these societies continued to be characterized by a sensory partnership of sorts.132 While giving overall first place to the sense of sight, Aristotle insisted that "for developing [intelligence] . . . hearing . . . takes the precedence."133 Rhetoric remained at the heart of both Hellenistic and late medieval education. Outside the medieval universities (and occasionally even inside), private reading still took the form of reciting, and inscription was frequently accompanied by dictation.134 Written formats continued to echo venerable aural habits. Dialogues remained popular,135 as did written poetry dealing with both fictional and scholarly subjects.136 Some literary works explicitly claimed aural origins: both Chaucer's Canterbury Tales and Boccaccio's Decameron were presented to their publics as the products of oral storytelling sessions. Authors addressed their readers as if the latter could hear the words they had written (as they often could, given the habit of recitative reading);137 in many written works, "informing" was metaphorically expressed as "speaking," and "learning" was expressed as "hearing."

[2.20] Hellenistic and later medieval law reflected the ambivalent sensory situation of their societies. In both contexts, many of the old multi-sensory ceremonies and rituals appear to have survived-if not always in their original forms, then at least in fashions that accommodated the written word.138 Legal writing reflected contemporary literary practices by evoking aurality in several ways. Little Hellenistic legal literature has survived, but it may be significant that most of Aristotle's surviving works, including those on law and justice, have come down to us as lecture notes.139 Late medieval statutes were often labelled and recalled by their incipits, i.e., the first few words of their texts as heard when read aloud.140 A variety of late medieval legal manuals, treatises, and law reports were set down as dialogues.141 Finally, late medieval jurists repeatedly referred to themselves or to the authors of earlier legal works as "speaking" presences,142 described legal knowledge or opinions as things "said" or "heard,"143 understood statutory language as speech as opposed to text,144 and, on a number of occasions, even cited poetic verses.145

[2.21] The invention of the printing press in the mid-fifteenth century and its spread throughout Europe in the sixteenth and seventeenth centuries encouraged a further increase in personal and social literacy levels and, with that, a further increase in cultural respect for, and interest in, vision.146 In the changing spirit of the time, the English poet Robert Herrick wrote "[w]e credit most our sight; one eye doth please/Our trust . . . more than ten eare-witnesses [sic]."147 The French philosopher RenÚ Descartes pointedly analogized vision and thought: "We shall learn how to employ our mental intuition by comparing it with the way that we employ our eyes."148 A child of the black and white printed text rather than of the colorful iconographic manuscript, Descartes was more interested in the disembodied "mind's eye" of the imagination149 than in the physical perception of images,150 but he regarded cogitation as a "seeing" notwithstanding.151

[2.22] Consistent with the textualized immateriality of Cartesian vision, seals gave way to signatures on ordinary legal documents.152 Law books gradually lost most of their illustrations and allegorical settings,153 while courtrooms across Europe (like many churches) were stripped of much of their artwork.154 The working robes of many lawyers and judges faded to a combination of black and white that incidentally evoked the colors (and in doing so, perhaps also the authority) of the printed page.155 The ancient figure of Justice was blindfolded to save her from distracting images.156 Under the impetus of line and letters, the general visuality of law was nonetheless preserved and even magnified. Following in the footsteps of Continental rhetorician Peter Ramus, leading English legal scholars such as Sir Edward Coke and Henry Finch promoted the usage of schematic, dichotomizing diagrams to clarify legal concepts and arguments.157 Jurists became more willing to deal with legal treatises as visual and not figuratively aural works.158 They frequently, if not yet consistently, regarded themselves and their readers as "observers."159 Some expressly offered the public a "view" or "image" of the law;160 a few conceived of legal wisdom as a metaphorical matter of light.161 Referring to a surveyor's measuring instrument, Coke at one point called law a "golden metewand."162 Late in the seventeenth century, the German legal philosopher and mathematician Gottfried Leibniz elaborated the ancient Aristotelian notion of law as geometry.163

[2.23] In the eighteenth and nineteenth centuries, writing and visuality matured together. European and American literacy rates reached unprecedented levels.164 Philosophers actually proclaimed the 1700s the "Age of Enlightenment." In the 1800s, paeans to sight became commonplace.165 John Ruskin wrote that "[t]he greatest thing a human soul ever does in this world is to see something. . . . To see clearly is poetry, prophecy, and religion, all in one."166 Ralph Waldo Emerson declared that at the moment of epiphany, "I become a transparent eyeball; I am nothing; I see all."167 In a variety of contexts, vision became a sensory cipher for the exercise of power. Styles of landscape gardening that provided the upper-class householder with a pleasing view of his estate gave him power over nature.168 Designs for asylums and prisons (such as Jeremy Bentham's "Panopticon") that enabled authorities to continually survey their inmates gave the sane power over the insane, and the law-abiding power over the criminal.169 Vision even became an instrument of imperialism, as didactic and theatric exhibitions at home of exotic colonial lifestyles abroad gave Europeans psychological power over their overseas possessions.170

[2.24] In English law, William Blackstone set his Commentaries in a metaphoric language that was strikingly visualist, especially considering that his work was born as a series of lectures wherein aural metaphors would have been tolerated and even naturally expected. Blackstone repeatedly made "observations,"171 analyzed legal powers from various "views" or "points of view,"172 and reported that truths "appear."173 He notably regarded himself as offering the prospective law student "a general map" of the law,174 which he later described in visual terms as a magnificent, if somewhat antiquated, "Gothic castle."175 In American law, visuality similarly manifested itself in the form, and even arguably in some of the features, of the written Constitution approved at Philadelphia.176 Thomas Jefferson proclaimed that the Constitution was "a good canvas, on which some strokes only want retouching";177 he called the principles protected in the Bill of Rights a "bright constellation" which had guided the republic through the course of revolution and reformation.178 Early in the nineteenth century, Chief Justice John Marshall's constitutional jurisprudence was fraught with visual metaphors, some of which were inspired by the very visibility of the document he was construing.179 Later in the nineteenth century, such English and American legal educators as A1bert Venn Dicey, Frederick Pollock, and Christopher Columbus Langdell employed the radically disembodied visual metaphor of law as geometry 180 to reconceive freedom "as a set of barriers against coercive intrusion into zones of autonomous conduct."181 English legal historian Frederic Maitland pioneered the similarly abstract characterization of law as a visible "seamless web."182 It was nonetheless another jurist, Oliver Wendell Holmes, Jr., who best reflected the sensory bias of the age. Holmes repeatedly approached law, not to mention life and language,183 as a matter of looking. It was he who first described law as a "magic mirror";184 it was he who first advanced the notion that law could be found in a "penumbra."185 Such metaphoric language gave law, not to mention his own words, extraordinary power and presence in an unprecedentedly visualist culture.

[2.25] The added boost that print provided to the social and intellectual status of vision gradually undermined the position still occupied by the other forms of sensory experience in the Western tradition. In societies no longer so unfamiliar or uncomfortable with the visible word that they needed sound, touch, or savor to ensure their own survival, those senses could be abandoned as primary carriers of information; in some instances they could even be condemned. Aurality suffered especially. From the seventeenth through the nineteenth centuries (with perhaps a brief interruption during the consciously nostalgic days of Romanticism),186 speech was radically severed from writing and reading; the latter became almost universally understood as silent practices having a distinct and superior syntactic style.187 Rhetoric was transformed into the more visual study of composition and belles-lettres.188 At least among the "reading" middle and upper classes, silence became a powerful norm of social etiquette and order.189 Aural concepts such as the "music of the spheres" were driven from the realm of Newtonian science.190 Written literature cast off most of the aural forms it had previously assumed. The dialogue first became strangely "monologic,"191 and then was virtually abandoned as a leading literary device.192 Poetry, to the extent it was not supplanted by less aurally appealing prose,193 was increasingly written not for the ear, but for the eye.194 Once again, the form as a whole was analogized to painting-ut pictura poesis.195

[2.26] Law was inevitably caught up in the new antipathy to sound. Between the seventeenth and the nineteenth centuries, many traditional legal ceremonies in which aural declarations had reinforced visual or tactile gestures were either abandoned or reduced to the status of archaisms. In England, law showed noticeably less respect for customary property "rights" based only on oral tradition.196 Judges increasingly refused to admit hearsay evidence.197 In a society where the spoken word had lost a critical measure of its traditional power, slander (which had been taken very seriously right through the Middle Ages)198 was increasingly marginalized as a legitimate cause of action.199 Dialogues all but disappeared from legal literature.200 Law finally dissolved its ancient relationship with poetry: Blackstone's The Lawyer's Farewell to his Muse,201 a verse of dubious quality written in the early 1740s on the occasion of the future commentator's abandonment of poetry for law, is a rough but convenient marker of a broader historical transition.202 The ancient and ailing system of aural lectures and exercises at the Inns of Court in London finally collapsed, leaving law students to learn most of their law from printed texts.203

[2.27] In America, oral tradition had a significant impact on law and legal composition through the end of the eighteenth century;204 when Thomas Jefferson wrote the Declaration of Independence in 1776, his draft contained marks indicating breaths and pauses appropriate to an oral reading of the document.205 In the nineteenth century, however, oral practices and procedures fell out of legal favor. An early judicial indulgence of "unwritten" sources of constitutional authority based on broad contextual understandings of the Framers' intent soon gave way to a more strictly visual "textualism."206 At mid-century, the United States Supreme Court began to limit time for oral argument, preferring to place more weight on written briefs.207 Legal apprenticeship, which had traditionally been premised on the multisensory virtues of listening, observation, and discussion, was first transformed into an opportunity to read the master's books,208 and then was largely abandoned in favor of a form of classroom instruction that revolved around the reading of appellate decisions and the writing of examinations.209 Legal language reflected material change: by the end of the 1800s, the figurative references to "harmony" and "voice" that had once been scattered through the pages of the Federalist Papers210 and the works of legal luminary Joseph Story211 were largely gone. Metaphorically, at least, American law fell all but silent.

[2.28] Contemporary America is heir to both the technology and the sensory bias of the recent past. Despite numerous signs that both our facility and our comfort with writing are declining,212 the United States is still one of the most print-saturated and print-oriented nations on earth. Our continued cultural dependence on the written word undergirds our own visuality as I have described it-a visuality that today is supported (even if, in the process, it is being transformed) by such new "visual" technologies as motion pictures, television, and computers. In this context, the visualist legal language that our culture has spawned and still sustains may ultimately be regarded as one of the most powerful, if also one of the least recognized, legacies of writing.


B. Visuality and Power

[2.29] The traditional visuality of American legal metaphor has, however, been more than just a function of general cultural circumstance. It has also been the product of power: the power of American men over women, the power of American whites over blacks, the power of American "Anglos" over Hispanics, and the power of American Protestants over Catholics and Jews. By making special use of the written word to secure or extend their cultural authority, members of the former groups have gained a special respect for vision and the visual that they have unilaterally made the standard for "American" culture as a whole. In conditions where their literacy has been involuntarily restricted or their own traditions have set limits to their trust of writing, members of the latter groups have either been forced or have chosen to grant relatively more respect to aural expression and experience.213 As American men, whites, Anglos, and Protestants have used their cultural authority to first monopolize, and then numerically and politically dominate the ranks of the American legal profession, they and those whom they have coerced or co-opted have indulged their visuality in, among other things, a consistent preference for visual legal metaphor. They have literally shaped American legal language in their own images.

[2.30] Generalizing about the circumstances or perspectives shared by the members of any group is a risky business. One must steer between the Scylla of "essentialism" and the Charybdis of "antiessentialism," recognizing on the one hand that individuals falling into a single category may, as individuals, be different in many respects,214 while acknowledging on the other hand that diverse individuals sharing a particular identity may, fortunately or unfortunately, have had similar experiences or developed similar views by virtue of that identity or society's reaction to it.215 In this portion of the Article, I nonetheless focus on differences between groups more than on differences between individuals because I fear that following the latter course would compromise our appreciation of important power relationships that have historically operated for and against certain Americans by virtue of their gender, racial, ethnic, and religious associations. Here I should stress a point I previously made in passing:216 the group generalizations to be discussed are strictly limited by being contingent constructs of culture, not inevitable incidents of biology. They moreover illustrate differences of degree, rather than of kind. They reveal, if you like, human differences mediated by human sameness.217Keeping all this in mind, I will spend the next few pages exploring how greater exposure to, dependence on, and even literal faith in writing have traditionally encouraged some American groups to embrace visuality more enthusiastically than have others. I will then examine how the members of these former groups have imposed their visuality on American legal culture and, in that course, on American legal language.

[2.31] I begin with the observation that American men's culture has traditionally enjoyed a closer, more intense association with the written word than has the culture comprised of American women.218 This was true from the earliest days of the republic.219 Many American men absorbed the finer points of reading, writing, and literate learning as youngsters in grammar schools and universities which for a long time were open only to them. As adults, a good number engaged in businesses or professional callings (most of which, again, were open only to men) that required them to spend some portion of the day reading or writing correspondence, contracts, or other texts. Into the twentieth century, American men frequently assumed responsibility at home for reading such standard writings as the Bible and the newspaper aloud to female members of their families. Today some American feminists still consider the written word-at least in its traditional semantic and syntactic incarnations-to be fundamentally "male."220

[2.32] It may be argued that the extent of their involvement with written material has led American men as a group-like men in other Western societies-to take a great interest in the phenomenon of visual observation that has been the source of so much of their textual knowledge and authority.221 As modern feminist scholarship has taken pains to emphasize (if not necessarily explain), the "gaze" has historically been more of a "male" than a "female" medium.222 In the American tradition, men have been primarily responsible for reducing the world-and, in the process, women-to visual, two-dimensional texts, paintings, photographs,223 electronic images,224 diagrams, and equations.225 In their capacities as school administrators, college professors, historians, curators, and archivists, American men have long been in charge of preserving and perpetuating the corpus of American visual culture over time. As scientists and philosophers, they have further indulged their visuality by using mostly visual metaphors to describe the central intellectual operations of thinking and knowing: they have made "observations," offered "perspectives," and "speculated" on the nature of reality.226

[2.33] The desire and even the need to look that has animated American male experience has frequently been coupled with a limited and somewhat selective devaluation of aurality and evocatively aural forms. At least since the late eighteenth century, most American men have rejected dialogue and story as respectable vehicles for the communication of important written information.227 More generally, American men as a group have been eager to prescribe silence as a positive personal and social value for others, if not necessarily for themselves.228 This latter strategy has been feasible in part because many American men have had access to a visual medium of communication (writing) which in their experience has not depended on sound to provide its sense. The strategy has moreover been politically useful because it has enabled American men to consolidate their control of other groups that have been more dependent on aural expression. The command that women (not to mention children) be "seen and not heard"-implicitly evoked from the anti-scolding laws of the seventeenth century229 through the marital evidence laws of the nineteenth century230-has been a prime guarantor of patriarchal power.

[2.34] Over the course of American history, many American women learned how to read and write during childhood, but well into this century most spent their adult lives segregated in the home. Surrounded there in close quarters by nonliterate infants, semiliterate children, and other women, they had limited incentive and limited opportunity to use or develop their own literate skills.231 During the colonial period, what American women wanted or needed to know to run their households was generally not written down.232 In the years immediately following the Revolution, "republican mothers" were encouraged to do more reading for the sake of their children's good moral upbringing.233 In the nineteenth and twentieth centuries, many American women read books and popular magazines for their own instruction and diversion, organized and joined reading clubs and literary societies, 234 established public libraries, and actively (if somewhat surreptitiously) participated in literary culture by writing letters and diaries;235 an eclectic minority even overcame the "anxiety of authorship"236 and wrote for general publication. Given restricted access to higher education,237 textual materials, and publishing technology - not to mention a proverbial male aversion to women who have worn the optical aids frequently necessary for full participation in a visualist society238- the visuality of American women's culture has nonetheless been qualified. The failure of the available male-dominated visual media to adequately address women's concerns or women's reality has only ensured that unmediated looking has not been as important or meaningful to American women as a group, as it has been to American men as a group.239

[2.35] In this context, American women's culture has been relatively more dependent on, or at least relatively more respectful of, aural modes of communication. Compared to men, American women as a group have historically shared a greater proportion of their knowledge, experiences, and thoughts with one another by talking and listening,240 telling stories,241 and engaging in the intimate, detailed dialogue that men have pejoratively called "gossip."242 As readers and writers, American women have traditionally tended to favor forms of literature (such as the novel and poetry) that have featured or strongly evoked the human voice.243 The extent to which American women still define and experience their lives in aural terms is evident in the emphasis that contemporary American feminists place on women's talk (especially "consciousness raising") as a technique of validation and empowerment,244 and on actual silence (or "silencing") as a form of oppression.245 It is also apparent in the prominence of oral history in feminist studies,246 in the tenor of feminist art history which rejects the notion of art as a purely visual experience unmediated by language,247 in the continuing popularity of women's "reading groups" whose members discuss and sometimes even read aloud portions of selected texts,248 in women's complementary experiments in "dialogic" or "collective" writing,249 and in the pointedly personal, consciously conversational style of much feminist scholarship.250

[2.36] Most important for present purposes, however, the relative aurality of American women's culture is reflected in the aural metaphors American women often choose to define themselves, their condition, and their world. Psychologist Mary Field Belenky and her colleagues recently noted that

[i]n describing their lives [to us], women commonly talked about voice and silence: "speaking up," "speaking out," "being silenced," "not being heard," "really listening," "really talking," "words as weapons," "feeling deaf and dumb," "having no words," "saying what you mean," "listening to be heard," and so on in an endless variety of connotations . . . . We found that women repeatedly used the metaphor of voice to depict their intellectual and ethical development . . . .251

More than a mere matter of conversational idiom, aural metaphors have also been strikingly prominent in the language of some of America's most accomplished female scientists. Barbara McClintock, a Nobel laureate in genetics and cytology whose scientific modus operandi has been described by her biographer as an exemplar of gendered "difference," repeatedly described the task of a scientist not just as "looking at hypotheses," but also "listening to the [research] material."252 Understanding required the scientist to "let the experiment tell you what to do."253 Nature was thus envisaged as a speaker; in relating to nature, the scientist was not merely an observer, but also a hearer.254 Biologist Rachel Carson drew on the same notion of a speaking nature in her famous book Silent Spring, where "silence" was not only a literal fact, but a metaphor for the destruction of the ecosystem. Most recently, aural metaphorical language has been picked up and amplified in a wide variety of feminist writings255 which have explicitly and implicitly sought to evoke a sense-reality intimately familiar to most American women from their own personal and cultural experience.256

[2.37] Somewhat analogously to the relative circumstances of American men's and women's culture, white American culture has historically been more dependent on the written word than has African American culture. The first white American colonists came from European countries that by the seventeenth century had already developed significant textual traditions.257 The first white American settlements were themselves creatures of authoritative writings-royal charters or (in the case of the Pilgrims) the Mayflower Compact. Learning to read was a hallmark of white American education from its beginning.258 Over the years, literacy and familiarity with a wide range of written materials gradually encouraged the white American community to privilege sight and seeing. Through the lens of books and newspapers, tracts and magazines, its members learned to literally look out at the world; they conveniently came to regard texts and paintings as primary measures of cultural worth. Thus was born the phenomenon that some African American intellectuals have pejoratively, if accurately, labelled the "white gaze."259

[2.38] In favoring the visual, white American culture did not reject aurality completely.260 For instance, for a long while the culture continued to produce, trust, and even revere great speakers.261 From the mid- to late nineteenth century, however, as white Americans approached "universal" literacy under the impetus of new developments in printing technology,262 many seemed less confident in what they said or heard. Within the white community, public speech became more dependent on visual, written scripts;263 old-fashioned oratory was increasingly dismissed as "mere rhetoric."264 Storytelling survived, but it was largely, if not altogether accurately, associated with children, members of less literate lower classes, and inhabitants of backward rural areas. Most white American authors jettisoned the more obvious aural mannerisms and formats that had characterized so much American literature in the antebellum era.265 At the same time, white Americans gradually embraced silence as both a social norm and a primary means of social discipline. Increasingly used to sitting quietly in front of texts, white American theater- and concert-goers who had formerly been inclined to spontaneously talk to each other and interact with stage performers266 became more willing to sit in silent (or at least suspended) judgment on the musicians and actors who appeared before them.267 In the schoolroom where white American teachers had once taught their students to read by recitation, the most important meta-lesson became, as it today remains, how to sit, write, and read in contented quiet.268

[2.39] The black Africans who were transported to America from the 1620s onward hailed from cultures that had only limited experience with writing. Mostly living as slaves on the other side of the Middle Passage, blacks were given neither the literate instruction nor the exposure to the written word that many American whites took for granted. Southern "slave codes" of the eighteenth and nineteenth centuries in fact prohibited anyone from teaching blacks to read and write, for fear that they might become vulnerable to abolitionist tracts or use their skills to communicate with each other and foment rebellion.269 These prohibitions were lifted after the Civil War, but African Americans in the South and the North alike continued to face discrimination and prejudice which formally and informally prevented them from gaining equal access either to the schools where basic literacy was taught, or to the universities where students mastered entire fields of written learning.270 The impossibility in these circumstances of black Americans (as a group) becoming highly dependent upon, and therefore partial toward, the written word has largely precluded vision and visual forms from achieving the same prominence in the African American community as they have attained in white America.271 Notwithstanding black achievements in the literary and visual arts, contemporary African American cultural critic Michele Wallace actually claims that there exists a "visual void in black discourse"272 attributable to "intra-racial pain and outside intervention."273 Exclusively visual expression and experience-including reading and writing-have even been denigrated by some members of the African American community as being either secondary repositories of the African American heritage274 or, more provocatively, undesirable marks of racial assimilation and oppression.275

[2.40] Both by force and by choice, African American culture has retained an appreciation and respect for its own oral tradition that white American culture has largely lost. That tradition began with the bits and pieces of ancient African lore-songs and stories, proverbs and parables-that individual Africans held in their heads when they were taken as slaves from their homelands.276 Later generations of black Americans developed and elaborated upon it according to their own unique needs and conditions.277 Today it lives most vibrantly in storytelling,278preaching,279 "toasts,"280 "signifying,"281 jazz,282 and rap.283 It is a defining even privileged, element in African American culture:284 as Cornel West has recently noted, the "organic intellectual traditions in African-American life . . . are oral, improvisational, and histrionic . . . ."285 White Americans have tended to interpret this aurality as a mark of ongoing African American disempowerment, but for many African Americans it is equally a mark of survival and resistance.286 Such an historical and political commitment to speech and sound has understandably induced in the African American community a certain suspicion of silence, which by definition would suppress oral interaction and hence compromise cultural continuity.287

[2.41] Oral traditions and forms have notably resonated in the corpus of African American literature which has come into existence since the American Revolution.288 In the mid-nineteenth century, Frederick Douglass's writings rang with the rhythmic cadences of speech.289 In 1903, W.E.B. Du Bois set The Souls of Black Folk in an additive, metered, and somewhat repetitive prose style that almost literally echoed the most effective forms of oral presentation;290 he introduced his chapters with musical epigraphs (bars from African American "sorrow songs") that overtly testified to the cultural power of aurality.291 In the 1930s and 1940s, Langston Hughes's poetry consciously captured the syncopated nuances of jazz and "be-bop."292 More recently, Maya Angelou has declared of her own work:

I write for the Black voice and any ear which can hear it. As a composer writes for musical instruments and a choreographer creates for the body, I search for sound, tempos, and rhythms to ride through the vocal cord over the tongue, and out of the lips of Black people. . . . I accept the glory of stridencies and purrings, trumpetings and somber sonorities.293

Music and oral storytelling have additionally provided the narrative frameworks or have been particularly prominent themes in the writings of a variety of African American novelists.294

[2.42] On the levels of language and ethnicity as distinguished from "race," Americans from the loosely defined "Anglo" community may also be said to have had, as a group, a relatively closer association with the written word than have Americans from "Hispanic" backgrounds. As native English-speakers, Anglos have had a distinct advantage in the English-based American educational system which has taught them to read and write. Their bias towards writing has only been magnified by their ancestral or psychological allegiance to broader English culture, which has traditionally placed greater emphasis on literacy295 than have certain of its European counterparts. Both in and out of school, many Anglo-Americans additionally have had physical and economic recourse to a good deal of written English language material. Finally, Anglos have traditionally controlled the major American print media and have been in a unique position to set the aesthetic standards for the American visual arts. All these factors have encouraged AngloAmericans, as a group, to take a greater interest in, and become more dependent upon, visual expression and experience.

[2.43] Americans from Hispanic backgrounds have traditionally been burdened by discriminatory Anglo attitudes and policies that have directly and indirectly kept them at the margins of American written culture.296 Hispanic Americans have faced enormous linguistic barriers: in a culture which has informally (and in some jurisdictions, formally) adopted English as its official language, English language literacy has been a prerequisite for educational advancement. The difficulty of learning to read English in English language classrooms at a stage of life when Spanish speaking children have not yet mastered Spanish has been a leading cause of the high dropout rates traditionally encountered among Hispanic American school students.297 At the same time, the successful cultivation of Spanish language literacy has been rendered problematic because of the intolerance or lack of facilities for Spanish language instruction in most American schools and universities.298 With much written material in both English and Spanish having thus been rendered largely meaningless or inaccessible, American Hispanic culture has not been pulled towards visuality in the same manner as has its Anglo counterpart.299 Instead, many Hispanics have repeatedly found themselves drawn and sometimes forced back into the soundscapes of their own ethnic communities. Here, aurality born of discrimination and necessity has been positively reinforced by strong Spanish and Native American oral traditions,300 with the result that aural expression has been the primary conduit of Hispanic language and culture.301 Today the power and attraction of aurality in Hispanic American life is manifested in the strength of contemporary Hispanic storytelling, in the ongoing popularity of dialogic "competitive" and "collective" recollections offered by Hispanic elders,302 and in the cultural prominence of traditional Hispanic ballads (corridos).303 Somewhat less directly, the same aurality is reflected in Hispanic American novels that draw on cuentos (traditional oral tales),304 in Hispanic American poetry inspired by corridos305 or written with the specific intention of being read aloud,306 and in the variety of oral histories that have begun to document different aspects of the Hispanic American experience.307

[2.44] With respect to religion, the American Protestant community's special affection for the written word is born of the traditional Protestant conviction that only the written Bible contains the pure and true word of God (sola scriptura). In this context, reading has been considered as more than just a skill; it has been regarded as a sure route to salvation. The initial Protestant (largely Lutheran) enthusiasm for the spoken word during the sixteenth and seventeenth centuries308 may be construed as a temporary response to the realities of then limited European literacy; in the short term, what was written might at least be heard by all if it could not yet be read by all.309 As their religious beliefs encouraged Protestants to become more literate, however, the textualist theologies of John Calvin and Huldrych Zwingli gained ground310 and Protestantism as a whole became more visualist. The American Puritans notably thought of God less as a speaker than as a spectator. The pulpits of many New England meetinghouses bore but a single graphic device: "an enormous, carefully painted, staring eye, a terrible and suggestive illustration to youthful wrong-doers of the great all-seeing eye of God."311 Men could help God by watching each other. In the Puritan meetinghouse, the elders sat underneath the pulpit so that they could see the congregation;312 outside the meetinghouse, "holy-watching" over one's neighbors was part of a man's civic and religious duty.313 American Quakers sought a metaphorically visual "Inner Light" and adopted as their primary form of collective worship the so-called "silent meeting" in which they "waited upon the Spirit" with only occasional spoken interjections.314 American Shakerism also had a strong visionary component: according to Shaker theology, "righteousness involved seeing rightly."315 Contemporary American Protestantism certainly has neither abandoned nor rejected aurality out of hand (witness the speech practices associated with American Fundamentalism),316 but it is noteworthy that even the most voluble Protestant preachers not only insist upon citing chapter and verse from a Biblical text, but frequently carry that text about with them as a visible totem of their authority.

[2.45] The practices and doctrines of both the Catholic and Jewish faiths have arguably disinclined their American adherents (as groups) from embracing the written word as unreservedly as have American Protestants. Catholicism has always had considerable respect for a clerical interpretation of Scripture dependant upon the aural and sometimes actually catechistic relationship between priest and parishioner. The Catholic Church still subscribes to a resolution of the 1546 Council of Trent that declared oral dogma to be equivalent in stature to the Scriptures themselves: it had been "received by the apostles from the lips of Christ himself, or by the same apostles at the dictation of the Holy Spirit."317 The Catholic emphasis on oral revelation has not dissuaded many American Catholics from developing a high degree of reliance on the written word, but it has made such a reliance less necessary to their spiritual well-being. As a result, American (and for that matter, North American) Catholic culture has been relatively less committed to a strictly visualist interpretation of existence, to the extent that two of the foremost investigators and exponents of aurality since the 1960s have been a Catholic convert (Marshall McLuhan)318 and a Jesuit priest (Walter Ong).

[2.46] The various strands of American Jewish culture have likewise shared a broader sensory base. Jews have frequently been called "People of the Book," but this reference to the importance of written scripture in Judaism should not be permitted to mask a significant aurality rooted in the Jewish experience of God.319 In marked contrast to the visibility of Christ in the New Testament,320 Yahweh in the Hebrew Bible preferred not to show Himself or permit Himself to be shown (thus the Second Commandment: "You shall not make yourself a graven image . . .").321 Instead, Yahweh spoke to Israel either directly or through his prophets (hence the classic formula "Hear, O Israel").322 The relationship between God and his people became implicitly and sometimes explicitly dialogic.323 Several commentators have suggested that this pattern of aural interaction had profound epistemological consequences within the Jewish community. The Jewish theologian and philosopher Martin Buber, noting early in this century that "the most vivid descriptions in ancient Jewish writing are acoustic in nature," ventured that "[t]he Jew of antiquity was more of an aural than a visual man."324 More recently, rabbinic scholar JosÚ Faur has posited that "[f]or the Hebrews, the highest form of truth is perceived at the auditory level. . . . The highest expression of reality is found in communicative speech. The outer aspect of things is unimportant. Neither Scripture nor the rabbis gave visual descriptions of things or people."325

[2.47] Aurality still animates many aspects of Jewish life and belief. Reflecting a long tradition of oral recitation, the books of the Hebrew Bible are known to Jews by a form of incipit, in this instance the first significant word in the book's text.326 Part of the Torah remains expressly "Oral" (Torah shebe'al-peh, literally "the Torah that is memorized").327 Although actually written down since the third century C.E., it must not be publicly taught from a document.328 The Talmud pointedly preserves the sayings of the rabbis (thus the standard Talmudic formula, "Rabbi X said . . ."). Since the early sixteenth century the Talmud has been printed in a way which literally surrounds the principal text with later commentaries, thereby perpetuating an implicitly dialogic relationship between the text and the commentary on the same page, or better yet, between the original "speaker" and the commentators.329 When studying aloud that portion of the Talmud called the Gemara "students expressing the argument on the page [of the text] tend to speak for and with the sages in their confrontations, as if the sages were talking to each other today."330 Even the "silent meditation" of the Amidah, the Jewish prayer service, is a faintly audible process: to quote the Talmud, "words in the heart are not words."331 Finally, no consideration of the aural aspects of contemporary Judaism would be complete without mention of Yiddish, the usually spoken but (at least until recently) rarely written folk language that has long served as "the vehicle of . . . social and political cohesion" in the Jewish community.332

[2.48] Taking advantage of the social power that their relatively greater access, exposure, and commitment to writing has helped to give them, American men, whites, Anglos, and Protestants have filled the ranks of the American legal profession from its very beginnings. Inevitably, they have brought their own sensory preferences into American legal life. It is they who have been principally responsible for designing courts and legal rules that have directly and indirectly favored visual experience.333 It is they who have established and perpetuated norms of legal interpretation and legal scholarship that, at least until recently, have largely marginalized and delegitimized aurality, aural styles, and aurally based written forms.334 It is they who (as we shall see) have pushed legal philosophy towards values that have traditionally been associated with vision.

[2.49] When they have spoken the actual language of the law, individuals from the more visualist American groups have analogously been drawn to metaphors and figures of speech appealing to their visualist predelictions. In the sundry expressions we encountered in the Introduction to this Article, they have presented law not so much as a speaking or as any other kind of aural enterprise, but as a looking, something to see and be seen. This language has inevitably empowered them by making the law more recognizable and accessible. At the same time, visualist legal metaphors have, perhaps not entirely by accident, disempowered and alienated members of American gender, racial, ethnic, and religious groups which have not been so visually oriented. Law expressed in visual terms has literally not resonated with their particular experiences.

[2.50] The visuality of American law in general and American legal metaphors in particular has been made all the more compelling and oppressive because individuals from the dominant visualist groups have in the past used their power to exclude from both the legal profession and the legal professoriate members of other gender, racial, ethnic, or religious groups who, left to their own devices, might have preferred different legal procedures, legal standards, and ultimately, different legal language. It is well known that in the face of these efforts, the first American woman lawyer was not admitted to practice until 1869;335 the first woman hired full-time by an American law faculty took up her position in 1927.336 In 1950, only five of 1239 law faculty members were female.337 The first African American to practice law professionally was not admitted to the bar until 1844,338 and only in 1925 was a black law professor hired to teach at a "white" law school.339 Protestants dominated the American bench340 and bar as a whole through the early twentieth century, and in the face of unwelcome "intrusions" by immigrant-class Catholics and Jews, reserved for themselves the "high-ground" of corporate law until very recently.341 Exact figures are hard to come by, but it would be accurate to say that the presence of Catholic and Jewish lawyers on American law faculties was similarly restricted well into this century. Hispanic Americans, the overwhelming majority of whom are Catholic, are only just beginning to break into mainstream legal practice342 and still have only a toehold in the professoriate.343 In this context, relatively few American lawyers or law professors have come from backgrounds that might have inclined them to push American legal metaphors in a nonvisualist sensory direction.

[2.51] Even those American lawyers who have come from less visualist backgrounds have for the most part adopted the visualist idiom. This outcome has been more or less assured by the hurdles to law school and bar admission that were raised from the late nineteenth century by a pedagogically ambitious, but also increasingly nervous male, white, Anglo, and Protestant dominated legal establishment. It will be recalled from the previous section of this Article that, until the late nineteenth century, American legal training had taken the form of either apprenticeship, which despite its textual orientation was still at least residually aural, or lecture and recitation-based classroom instruction for which there were few written or writing-related prerequisites. In the decades after 1870, however, individuals aspiring to the bar were compelled to complete high school (and later two years of college); they then had to attend textbook-based law schools where they learned how to dissect massive quantities of black letter law. They had to pass written examinations before graduating344 or being admitted to the bar in most states.345 Since the 1950s, would-be attorneys have also been subjected to the written Law School Admission Test ("LSAT").346 Surviving such a process, which has obviously put a premium on the development of excellence in visual tasks while rendering aural traditions and talents irrelevant, can only have distanced successful female, African American, Hispanic, and even some Catholic and Jewish lawyers from their relatively more aural roots and any inclination they might have had to evoke those roots in aural legal metaphors.

[2.52] Even presuming that a modicum of cultural aurality might have survived the visually skewed professional initiation process, a variety of professional and social circumstances have traditionally conspired to dissuade many female, African American, Hispanic, Catholic, and Jewish jurists from drawing from their own experiences in ways that might have made aurality more prominent in their legal writing.347 Because the number of these individuals within American law firms, law courts, and law faculties has, until recently, been small, these legal scholars have historically lacked the peer support and encouragement which is so important to the success of any serious intellectual, methodological, or terminological departure. The realities of tenure and promotion within American law schools still dominated by males, whites, Anglos, and Protestants, have moreover discouraged many nontraditional scholars from trying anything too novel, lest they be indirectly punished for doing so.348 Finally, the perspectives represented by these legal scholars have traditionally lacked a critical measure of recognition and legitimacy in American culture at large, leading to preemptive concerns that any scholarship or thought based on these perspectives might well be rejected out of hand.349 In this context, most female, African American, Hispanic, Catholic, and Jewish lawyers - despite their undoubted success in achieving greater social justice for members of their own and other "out groups" - have until recently been disinclined to challenge the fundamental visuality of American law and legal metaphor.


C. Law and the Phenomenology of Sight

[2.53] In addition to being both a consequence of culture and a product of power, the historical popularity of visual metaphors in American legal discourse has been a function of the considerable overlap between the traditional American understanding of law and the predominant American understanding of vision. In this society, law and vision have been deemed to share certain characteristics and to favor similar values. American lawyers and legal scholars casting about for accessible, "sensible" ways in which to describe or explain difficult or theoretical legal concepts have therefore been particularly drawn to visual figures of speech.

[2.54] Since at least the mid-nineteenth century, most American lawyers and jurists, if not all American law professors,350 have understood law as being ideally abstract, disengaging, objective, determinate, timeless, systematic, and differentiatory.351 Law has been regarded as abstract to the extent that its rules, principles, and such legal constructs as "the reasonable man" are generalizations independent of particular concrete circumstances.352 Law has been understood as disengaging to the extent that it allows and even encourages parties to pursue their own autonomous self-interests free from the involvement or interference of others-hence, the concept of "rights."353 It has been considered objective in that it exists apart from, and is supposedly applied regardless of, the feelings or whims of individual judges or lawyers or their personal attitudes towards the disputing parties.354 It has been held to be determinate insofar as it has been assumed that proper legal analysis leads to "one right answer."355 Traditional American jurisprudence has conceived of law as timeless insofar as its core principles-if not always its specific rules-remain constant.356 Law has been viewed as systematic in that its rules and principles are presumed to be related to each other in a coherent deductive pattern.357 Finally, traditional lawyers and legal scholars have thought of law as differentiatory in that they have attributed much of its success to depend on its ability to make and maintain sharp distinctions between various situations, categories, and rules.358

[2.55] Each of these qualities of law has been closely matched by a characteristic of vision, at least as American and other Western philosophers have encouraged us to understand visual "phenomenology." To begin, we have traditionally considered vision to be the ultimate abstract sense. Sight depends not on contact or proximity with concrete reality, but rather on withdrawal: "The best view is by no means the closest view; to get the proper view we take the proper distance, which may vary for different objects and different purposes, but which is always realized as a positive and not a defective feature in the phenomenal presence of the object."359 To this extent, sight literally abstracts one from the world-certainly not completely, but more than the other senses.360 Perhaps this is why "it is easier to be a visual spiritualist than a tactile one."361 Regarded in a positive sense, visually induced abstraction facilitates generalization; indeed, our word for the ultimate generalization, a "theory," is derived from the Greek theoria, meaning "a seeing." In a negative sense, however, visual abstraction inhibits the appreciation of lifelike particularity.362 After World War II, deafened veterans reported that their loss of hearing at first made the noisy world a peaceful place. In time, as they were forced to mediate more and more of their experience through vision, they found it to be lifeless and unreal.363 Their original abstraction had become outright alienation.

[2.56] Insofar as vision abstracts individuals from other individuals, we have generally regarded it as facilitating mutual disengagement. Well before one reaches the outer limits of visual (as opposed to aural or tactile) perception, the urge, the need, and sometimes even the ability to actively interact with one's potential interlocutor is reduced. Unlike the "feeler" and the "hearer," the seer is moreover not physically affected by the individual perceived. In this context, seers readily assume an uninvolved, uncommitted, indifferent, literally voyeuristic stance towards one another.364 Passive, observing individuals become more aware of themselves as autonomous "selves," while regarding their observed counterparts as distinct "others."365 The capacity of vision to separate (even create) "self" and "other" was most effectively dramatized in fifteenth and sixteenth-century Europe, when artists routinely set transparent grids between themselves and their subjects so that the latter could be drawn according to the purely visual dictates of linear perspective. In this context, "the self becomes a spectator ensconced behind his or her window on the world, . . . the body, now divorced from this self, becomes a specimen, and . . . the world . . . becomes a spectacle."366 More recently, French psychologist Jacques Lacan has identified the onset of the self-concept in young children with the "mirror-stage": the developmental point at which the child recognizes itself - as separated Other - in the mirror.367

[2.57]We have similarly associated vision with objectivity. The visually distanced and disengaged seer is able to contemplate other things or persons without being burdened by the emotions or attitudes that might be encouraged by physical proximity.368 Things can supposedly be seen for themselves, not as the seer subjectively reacts to them or to their personal context.369 In the case of persons, what they are may be separated from who they are or what they think (or what is thought of them). Thus, the American artist Maurice Grosser has pointed out the physical and psychological difficulty of painting someone's portrait from within "touching distance."

[A]t touching distance, the sitter's personality is too strong. The influence of the model on the painter is too powerful, too disturbing to the artist's necessary detachment, touching distance being not the position of visual rendition, but of motor reaction or some physical expression of sentiment, like fisticuffs, or the various acts of love.370

It is this "objective" quality of sight that has made it the ultimate scientific and "intellectual" sense.371 The same quality, however, has occasionally rendered sight problematic in social situations where subjectivity and even empathy are valued. Unadulterated, unmitigated looking - precisely because it "objectifies" - is generally considered antisocial. Children are taught, "Don't stare." As Walter Ong has noted, "[I]ooking fixedly at another person has normally the effect of reducing him to a surface, a non-interior, and thus to the status of a thing."372

[2.58] The determinacy of sight has been expressed in two ways. In the first place, sight has been said to be "single-perspectival." Vision takes in one visual perspective or vista at a time, which it instantly resolves to a single, unique point-the "point of view" (a point which, by being duplicated in a painting or text, may moreover be imposed on another observer).373 Presuming that one is looking straight ahead, other potential perspectives-alternative vistas behind, beside, above, or below-are invisible, discoverable only with the subsequent intervention and assistance of other faculties (particularly movement, which would allow one to appreciate different perspectives by circumnavigating an object). To this extent, the purely visual world is always a single truth before our eyes. Like the photograph, it is tyrannically definitive, implicitly rejecting all other views as wrong or illegitimate. The phrase "that is exactly the way it looks to me" rapidly becomes "this is the place to see it from."374 Vision has also been considered determinate in light of the manner in which colors - primary constituents of the visual world - routinely interact; when combined in the same space, they lose their original hues and become one entirely new entity.375 By virtue of both these phenomena, the visual sense has been deemed relatively incapable of supporting existential diversity.

[2.59] Sight has been thought timeless because it is not dependent upon the dynamic unfolding of events. Unlike hearing, which depends on the next sound or phoneme to form a coherent noise or word, or touch, which depends on the next feeling to discern a shape, sight need not wait upon the next image to bring meaning. As Hans Jonas has explained:

All other senses construct their perceptual "unities of a manifold" out of a temporal sequence of sensations which are in themselves time-bound and nonspatial. Their synthesis therefore, ever unfinished and depending on memory, must move along with the actual progress of the sensations, each of which fills the now of the sense from moment to moment with its own fugitive quality.376

Vision can extract a tremendous amount of information from a static, literally timeless scene. Indeed, rapid change in the environment may make the visual extraction of information more difficult.377 Vision may therefore be said to demand a certain degree of constancy or "being"; in this sense, it peculiarly "lends itself to a static conception of eternal truths.'"378

[2.60] Largely because we have regarded sight as timeless, we have regarded it as the principal systematizing sense. It is supposed to be the sense most capable of appreciating or identifying the constant relations between different elements that make up the idea of "system" (as opposed to, say, the more dynamic idea of "process"). The visual bias of our idea of system was implicitly understood as early as the eighteenth century, when Scottish philosopher David Hume commented that "to deliver a system in conversation scarcely appears natural."379 One modern student of sight has observed, somewhat more directly, that "[a] view comprehends many things juxtaposed."380 A second has noted that "objects are visible at the same time, and they are stable long enough for us to apprehend their relationship to each other."381 A third scholar has concluded that "[v]ision involves the discernment of patterns, configurations, spatial relationships-in other words, the recognition of order."382

[2.61] Finally, we have held sight to be highly differentiatory. All the senses can make distinctions between the presence and absence of stimuli or between different types of stimuli. Vision, however, excels at identifying very fine, very precise distinctions. Visible shapes enable us to distinguish one object from another; visible colors may likewise help us to distinguish objects, or the various parts of objects; visible lines allow us to discern distinct zones and territories. The distinguishing aspect of vision was already evident to Aristotle in the fourth century B.C.: "We prefer seeing to everything else [because] . . . , most of all senses, sight makes us know and brings to light the many differences between things."383 More recently, French phenomenologist Maurice Merleau-Ponty has asserted that vision is a "dissecting" sense, while Walter Ong has described distinctness and "taking apart" (which he notably associates with the thinking of Descartes) as aspects of a "visual ideal."384

[2.62] The similarity between the values of traditional American legal theory and the values we have traditionally associated with sight is not coincidental. In the first place, traditional American legal theory was developed and has prospered in a society which has itself been highly visualist.385 This broad cultural orientation has made American law susceptible not only to the techniques and the language of sight, but also to its phenomenological biases. In other words, with American culture dominated by a sense that is understood as fostering (if not necessarily creating) abstraction, disengagement, objectivity, timelessness, system, and differentiation, American legal theory - necessarily operating within that culture - has been drawn to many of the same values.

[2.63] In the second place, traditional American legal theory has been largely articulated and elaborated by individuals from American gender, racial, ethnic, and religious groups whose relative visuality386 has arguably biased them towards the values that visuality has been held to favor. The historically greater visuality of American men's culture may thus have prompted American men (as a group) to claim a special attraction for, and/or be particularly associated by others with abstraction, disengagement, and objectivity,387 even if American men's visuality has neither afforded them a monopoly over the invocation or application of those values388 nor prevented many men from adopting different perspectives.389 The historically greater visuality of white American culture may have encouraged white Americans (as a group) to ascribe to themselves, and/or be largely identified by others with the same norms,390 although white Americans' relative visuality has certainly not made those norms either their exclusive property391 or their universal preference.392 The relative visuality of Protestant culture may equally have biased American Protestants (as a group) towards disengagement, objectivity, and system, both in their own eyes and in the eyes of their religious and social critics.393 The long-standing numerical and political domination of both the American legal community and the American legal professoriate by members of these visualist groups has in turn helped make "visualist" virtues central to traditional American legal theory.

[2.64] Third, traditional American legal thought has been primarily set down and spread in a visual medium-writing-the use of which may be said to have phenomenologically encouraged law's conformity to visual values. As we have recently been reminded, "Law is bound by its form. In important ways, [it] is the product of its methods of creation, transmission, and execution."394 American legal thinkers who have historically depended on writing for so much of their professional inspiration, information, and communication may have been incidentally led by writing to endorse abstraction, disengagement, and other such visual norms.395

[2.65] The mutual affinity between vision and traditional American legal theory that these three circumstances have helped create has been reflected most generally in the tendency of traditional legal scholars to embrace forms of legal scholarship that are "visualist," or are, at most, minimally reminiscent of aural styles and formats. Law's abstraction and objectivity, for instance, are more readily indulged in analysis than in story or poem; law's disengagement and system are more effectively communicated in an essay than in a dialogue. In turn, the jurisprudential use of visualist analysis and essay-by precluding or preempting more aurally oriented styles of presentation396 which might allow concrete, subjective, relational, or process-based values to come to the fore-indirectly supports, and even promotes, the notion that law is abstract, objective, disengaged, and systematic.

[2.66] By the same token, vision has been a natural referent for legal figures of speech used by adherents of traditional legal theory. What better sense metaphorically to communicate (and reinforce) the systematic nature of traditional law than the sense by which systems are said to be most readily perceived? In this context, visual legal metaphors like "seamless web" or "body of law" seem truly tailor-made. Likewise, what better way to communicate law's objective nature than by metaphorically evoking a form of sensory experience that we consider biased towards objectivity?397 In this light, referring to adjudication visually as "judicial review" seems highly appropriate. Trying to communicate the same legal qualities by reference to, say, aural or tactile experience might be phenomenologically awkward and less effective, if not actually self-defeating. At the same time, the most casual use of visual legal metaphors can incidentally reinforce the phenomenologically compatible values of orthodox jurisprudence: saying that a constitutional principle is a "fixed star" or that an area of concurrent jurisdiction is a "zone of twilight" indirectly supports and even encourages the belief that law is abstract, static, and disengaged from concrete human experience.398 To this point, American lawyers may rarely have reflected on these phenomenological associations between law and vision, but the traditional American preference for visual legal language suggests that, at some level, the associations have nonetheless been understood.


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