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


Previous Section | Next Section | Title Page | E-mail

III. "Fair Hearings": Aurality and the New Legal Language

A turn to the auditory dimension is . . . more than a simple changing of variables. It begins as a deliberate decentering of a dominant tradition in order to discover what may be missing as a result of the traditional double reduction of vision as the main variable and metaphor.399
he growing popularity of aural metaphors in contemporary American legal discourse has already drawn some comment from observers, but so far it has attracted only the most superficial of explanations.400 In this section of the present Article I will try to make amends for this unsatisfactory state of affairs by arguing that the recent increase in aural figures of legal speech may be attributed to three fundamental factors that complement those underlying the traditional popularity of visual metaphors in American legal language. First, just as our visual legal metaphors have been a product of our culture's traditional bias towards vision and visual experience, our increased inclination towards aural legal metaphors is a function of the increasing attraction of sound and aural experience in a society that is becoming more dependent on aural technologies. Second, just as visual legal metaphors have traditionally been preferred in an American legal community dominated by members of gender, racial, ethnic, and religious groups which have been more writing-based and hence relatively more respectful of visuality, aural legal metaphors are coming into greater favor as a growing number of American law professors from gender, racial, ethnic, and religious groups which are less writing-oriented and hence relatively more respectful of aurality draw on their own group experiences and values for scholarly inspiration. Third, just as the use of visual legal metaphors has been encouraged by the perceived fit between traditional legal philosophy and our phenomenological understanding of sight, the use of aural legal metaphors is being encouraged by the perceived fit between what might loosely be termed a "critical" legal philosophy and our phenomenological understanding of hearing. In the next three subsections of this Article, I will explore each of these factors in detail.

A. Hearing Culture

[3.2] In the midst of a culture saturated with printed and electronic texts and bombarded by images from television and movies, it cannot be denied that seeing remains at the center of American sensory experience. There is nonetheless evidence to suggest that in the late twentieth century we 401 are increasingly fascinated with - and in a few instances, are even becoming biased towards - aural expression and experience.402 This development has arguably encouraged a significant number of American legal scholars to use aural figures of speech to define and describe a variety of legal ideas and procedures.

[3.3] Some manifestations of the new American aurality are obvious; others are not. A growing number of Americans prefer to experience language aurally rather than visually.403 A significant number of us do not read the news in the daily press anymore; instead, we listen to (and on TV, even watch) it being read aloud to us.404 Long the mainstay of American visual culture, books are still very popular,405 but the market for so-called "talking books" (or "audiobooks") read by noted entertainers or personages is growing at a phenomenal rate.406 Popular magazines such as Newsweek and People are appearing in separate "audio" versions.407 We share an unprecedented passion for music of all sorts.408 We are taking renewed interest in poetry readings and oral storytelling.409 We send greeting cards which play melodies for their recipients; we buy toys which talk and even "read" to our children. An increasing number of young Americans of both sexes are highlighting their ears with studs or earrings.410 Even contemporary eroticism is no longer a function of sight simpliciter: Americans have made 1-900 "aural sex" telephone services into a billion-dollar industry.411

[3.4] With sound thus in the ascendant, the silence that has historically been a concomitant of American visuality seems to be in cultural retreat. More and more of us find that we want (or need) aural distraction when we are reading, exercising, relaxing, or even trying to go to sleep.412 Muzak accompanies us while we make our rounds at the supermarket; many of us publicly despise it, but many of us also miss it when it isn't there. The traditional sanctuaries of silence-libraries, museums, and art galleries-are slowly being invaded by cassette tapes,413 listening equipment, voice-based exhibits, and artworks which literally speak for themselves.414 At the movie theater, more and more of us accustomed to the constant electronic buzz of modern life are unwilling, or unable, to be quiet.415 We cannot even take psychic refuge in the "silent" reaches of Newtonian space: thanks to modern radio astronomy, we are newly conscious of the fact that far from being still, the universe sputters with the static of the stars.

[3.5] Our social identities are increasingly founded upon aural affinities and differences. As we come into more frequent aural contact with one another via telephone, radio, and television, we are more aware of accents. In a high-visualist culture, accents tend to be but a secondary basis of differentiation, and hence only a secondary basis for discrimination. Today, however, as understanding another person's speech becomes more and more important to effective interpersonal communication, accent-based differentiation and discrimination appear to be on the rise.416 At the same time, we are becoming more interested in and more sensitive towards the plight of the deaf.417 In a more aurally oriented society, we may slowly be realizing that not being able to hear can be a problem of the same fundamentality as is not being able to see in a visualist culture. To the extent that our changing circumstances prompt us to improve the social and legal situation of deaf people,418 the new aurality may have positive as well as negative social consequences.

[3.6] Our everyday language is picking up a growing number of aural or aurally related terms. The process of auralization accelerated noticeably in the 1960s, when American youth began to "tune in" and "turn on."419 Today, when we make a proposal to someone, we first "sound them out." An appealing idea or proposal "sounds good" even if it is written down. Jargon of all sorts is routinely labelled as a form of "speaking," along lines first suggested by George Orwell ("doublespeak," "Newspeak") in his 1949 novel Nineteen Eighty-Four: thus, "businesspeak," "computerspeak," and "sciencespeak."420 Psychological or technical language is notably "psychobabble" or "technobabble."421 A popular term is a "buzzword," evoking the noise of everyone speaking it at the same time.422 In conversation, acknowledgement (if not necessarily agreement) seems increasingly to be communicated by the phrase "I hear you" as opposed to "I see." Ignorance is increasingly portrayed in aural as well as visual terms. Where we were once overwhelmingly inclined to "turn a blind eye" to something, we now also "turn a deaf ear."423 When two individuals or groups refuse to pay attention to one other, they are analogously engaged in a "dialogue of the deaf."

[3.7] Not even writing has been immune from the new aurality. The style of written language in newspapers, magazines, and even scholarly books is increasingly dependent on aural conventions.424 Contemporary authors frequently refer to themselves in the first person as if they were speaking to their readers face-to-face.425 The written use of contractions ("can't," "don't," etc.), once stylistically limited to conversation, seems to be on the rise. The written depiction of conversation itself is becoming noticeably more "true to life" with the inscription of pauses, false starts, mistakes, and so on.426 Novelists seem increasingly drawn to aural storytelling as a central literary theme or event.427 Many expository writings are being marketed as opportunities for "listening," presentations of "voice," or exercises in "conversation" that promise more intimate contact with a subject.428 Nonfiction works are again appearing in dialogue form, probably in the hope of giving their contents something of the immediacy and interactivity generally associated with the spoken word.429 A variety of commentators and critics have even begun to argue that writing (and reading) are themselves metaphorically dialogic (if not yet actually aural) processes, and that the written "text" is not so much a thing as an ongoing negotiation of meaning between writer and reader, much as a conversation is between speaker and listener.

[3.8] Contemporary American law reflects the new aurality in a variety of ways. Of course, aurality is no more dominant in American law than it is in American life: visual habits and metaphors continue to permeate both the legal profession and the legal professoriate. What we are talking about here is an emergent trend towards taking sound (and aural experience) more seriously. It must also be emphasized that not all of law's current aurality is the product of recent change. Despite the visuality that has traditionally dominated the surrounding culture, American lawyers and jurists have never altogether abandoned faith in nor lost all familiarity with speech430 and aural styles.431 American law is nonetheless in the midst of an aural revival. Appellate judges are considering greater roles for oral argument and oral decision.432 Trial judges are more willing to accept parol evidence as a supplement to written contracts.433 Judges at both levels have loosened the hearsay rules to give more scope to witnesses who want to report what they have heard from others, as opposed to what they have seen.434 They are taking face-to-face oral defamation more seriously,435 and if they have not necessarily rehabilitated slander as a primary civil wrong, they have extended the working definition of libel to include defamatory aural declarations made over radio or television.436 They are more willing to indulge challenges to the apparent "plain meaning" of wills based on extrinsic evidence of what testators said.437 By permitting televising of trials, they have even restored law to its historical place as a speaking presence in the community at large.438

[3.9] In law schools, the value of aural teaching is being reasserted as an antidote to the intellectual privilege traditionally accorded written scholarship.439 Oral examination has reemerged as a topic worthy of serious consideration.440 More and more scholarly work is being done or disseminated at professional conferences and colloquia featuring speakers and organized discussions.441 Inside and outside the conference hall, American legal academics are becoming noticeably more absorbed by the process and rhetoric of oral argument,442 and concomitantly less obsessed by written appellate decisions.443 We are taking more interest in studying and reproducing the actual talk (what Julius Getman calls the "real voice") of lawyers, litigants, and others participating or caught up in legal disputes.444 We are more concerned with employment discrimination based on accent.445 We are paying more attention to "alternative" types of dispute resolution (such as arbitration) which are oriented towards talking and listening more than writing and reading.446 We are significantly more troubled by the social and emotional impact of oral insults and epithets.447 We seem more willing to acknowledge "unwritten" sources of constitutional authority448 and consider them as legitimate supplements to the written text.

[3.10] A significant number of today's law teachers are analogously fascinated by law's relationship with such traditionally or actually aural forms of expression as story,449 rhetoric,450 parable,451 poetry,452 speech (as dialogue, conversation, or simply talk),453 and music.454 Actual parables455 and poems456 are being quoted or reproduced in legal articles. Some adventurous law professors have taken to writing their own original stories,457 parables,458 and works of poetry.459 An increasing number of law review pieces carry titles that evoke the titles or words of popular songs.460 Some legal academics are even quoting and/or analyzing lyrics in the course of making their academic arguments.461 Footnotes are citing conversations,462 and, in at least one instance, the hitherto ubiquitous "See also" has (in the context of a reference to music) given way to "Hear also."463 An increasing amount of legal scholarship is being framed in aurally evocative styles: first person "conversational" pronouns are becoming far more common, as are contractions.464 For the first time in over two hundred years, legal dialogues are reappearing in strength as serious scholarly endeavors.465 The student editors of a variety of law reviews are simultaneously showing an increased willingness to publish the oral transcripts of legal conferences and seminars as academically respectable articles.466 They are also producing more symposium issues467 and printing more exchanges of correspondence468 in what may be seen as attempts to create at least a semblance of conversation and dialogue.469

[3.11] In light of all these developments, is it any wonder that American legal language-especially as articulated in the legal academy-has itself acquired a new aurality? If language and law are increasingly experienced or presented as things spoken or heard, it is surely sensible and even helpful to describe law as "voice," "rhetoric," or "discourse," and to perceive injustice as "silencing." If legal ideas and insights tend increasingly to emerge from face-to-face encounters, written dialogues, or transcripts, it is convenient and to some extent even literally accurate to approach law as a "conversation," "dialogue," or "talk" of one sort or another. If law operates within a music-saturated society, it can certainly have "resonance" and aspire to "polyphony." Insofar as American culture as a whole is becoming more aurally oriented, such metaphoric expressions and turns of phrase have an appeal born of the new familiarity and immediacy of aural experience. At the moment, this appeal may be felt more strongly in the legal professoriate than in the more culturally conservative confines of the legal profession or the judiciary, but there is reason to believe that as aurality becomes increasingly prominent and powerful, aural metaphors will eventually be welcomed in those quarters as well.

[3.12] But what is propelling the new aurality which is already reconfiguring the established pattern of American legal discourse? The history of Western culture over the past 125 years suggests that the recent turn towards the aural is largely a product of new aural technologies. In essence, cultural aurality has tended to become more pronounced as aural technologies have multiplied and spread.470 At every stage in this process, the existence of these technologies has radically extended the power and range of aurally communicated information. As technologically transmitted and amplified sound has become able to assume more of the cultural burden, culture itself has turned towards sound for inspiration. Being integral aspects of culture, law in general and legal metaphors in particular have begun to change accordingly.471

[3.13]The "first generation" of genuinely aural technologies472 - the telephone and the phonograph - appeared and spread between roughly 1875 and 1920. Thanks to Alexander Graham Bell's invention, Europe and America became literally "wired for sound"; at the same time, Thomas Edison's brainchild (invented in 1877, but not made commercially viable until the 1890s) brought a recognizable facsimile of music473 into thousands of homes. Both devices helped to focus and humanize the noise that was already being generated incidentally by modern machinery and other technological novelties.474

[3.14] Slowly, sound began to have a discernable impact on a variety of different disciplines and undertakings. In linguistics, Fredinand de Saussure departed from then-conventional academic wisdom to argue that true language was speech, as opposed to some combination of speech and writing.475 His essays were particularly remarkable for discussing communication as a circuit, a model which indirectly evoked telephonic communication.476 A variety of European and American poets abandoned the visualist analogy between poetry and painting (ut pictura poesis) that had held intellectual sway since the eighteenth century and instead began to explore the inherently aural relationship between poetry and music.477 In Ireland, W.B. Yeats called for a return to "the living voice" in literature.478 Influenced perhaps by the various anti-ocular, aurally indulgent musings of the nineteenth-century philosophic iconoclasts S°ren Kierkegaard and Friedrich Nietzsche,479 Henri Bergson and Edward Husserl turned to dynamic aural phenomena such as tone and melody for metaphoric antidotes to the prevailing spatialized and visualized-and hence strangely static- idea of time.480 Sound even had an impact on the visual arts. In The Scream (1893), the French artist Edward Munsch made a revolutionary attempt to incorporate at least the depiction of sound into the silent visuality of the classical canvas.481 Other artists like the young Pablo Picasso and George Braque gave their works a modicum of "voice" by incorporating letters, words, and even musical notation into their pictures.482 On the eve of World War I, Italian Futurist painters used several techniques to evoke aural experience in their work.483 Marcel Duchamp resolved to "[m]ake a painting of frequency."484 The young Wassily Kandinsky openly likened the process of painting to musical composition (he would ultimately call some of his efforts "improvisations").485 A few artists even ventured into the relatively untested waters of "performance" where sound could be directly manipulated in the context of other media.486

[3.15] For all of this frenetic activity, however, aurality remained very much avant-garde. Perhaps as a result, it failed at this stage to command much attention in American law. American courts grappled with a few obvious issues stirred up by the new aural technologies (e.g., the admissibility of phonographic evidence),487 but the leading American legal minds of the period were much more visualist than auralist in orientation. Oliver Wendell Holmes, whose pronounced visuality was discussed earlier in this Article, was notably inclined to actually and metaphorically "stop" legal conversation rather than start or attempt to sustain it.488 In 1910, a young Roscoe Pound critiqued the "law in books" that historically had both reflected and propelled American legal visuality, but his call to consider the inevitably-more-oral "law in action" was at best only indirectly shaped by new aural habits and values.489

[3.16] The years between 1920 and 1950 witnessed the development of a second generation of aural technologies. Radio was born in the early 1920s; by the mid-1930s radios were playing continuously in hundreds of thousands of living rooms, businesses, and barber shops across Europe and America. Music suddenly became omnipresent;490 not only did radio make music more available, but people who liked what they heard on the air seemed to develop more of an interest in making music themselves.491 In the late 1920s, recorded speech and music were introduced to the motion picture theater, where the "talkies" gave birth to a whole new cinematic industry.492

[3.17] In this context, sound assumed a higher cultural profile,493 picking up slack from a visuality that had lost at least some of its luster in the trenches of the First World War.494 In literature, James Joyce enthusiastically embraced puns495 and onomatopoeia in his novels Ulysses (1922) and Finnegans Wake (1939),496 while William Faulkner made aural expression and experience a central theme of The Sound and the Fury (1929).497 Poets such as T.S. Eliot and Ezra Pound evoked musical formats498 and used language to achieve striking aural, even lyrical effects in their own works.499 Dylan Thomas and Robert Frost made reputations for themselves as reciters.500 In the movies, on stage, and perforce on radio, actors and comedians relied less on visual slapstick and more on voice inflection,501 dialect,502 and witty repartee.503 The new Gestalt psychology adopted "melody" as a primary instance of the fundamental indissolubility of experience.504 In Being and Time (1927), the young German philosopher Martin Heidegger found himself drawn to aural metaphors of knowing and belonging.505 In I and Thou (1933), the Jewish theologian Martin Buber stressed the importance of a life based on intersubjective "dialogue" in which "truth" existed not as an absolute command or position but rather as a relation between "speaking" and "listening" partners.506 The concept of "dialogue" also animated the writing of Russian literary critic Mikhail Bakhtin,507 who joined it with the notion of "polyphony," a condition in which the voices of author and character freely overlap and speak together without dominating one another.508 In art, "sound became the primary focus of the Surrealist movement."509 The Swiss painter Paul Klee-although not a Surrealist himself-created compositions such as The Twittering Machine (1922) and Polyphonic White (1929) that were directly inspired by aural phenomena.510 As if to take revenge on the visualist prejudices and practices of the past, painted, sculpted, and even filmed depictions of isolated, blind, missing, or mutilated eyes increased in number.511

[3.18] While all this was happening, American law slowly became literally and conceptually more attuned to sound and aurality. Radio forced lawyers to reevaluate the legal significance of speech-"radio defamation" became an important issue in the 1930s.512 A few lawyers like Karl Llewellyn and Gleason Archer used radio to make their political points or to educate the public in law and legal terminology.513 For a brief period, radio even restored public "voice" to the courts: portions of the Scopes Trial of 1925 were broadcast nationwide,514 while a variety of tribunals permitted regular local transmission of their judicial proceedings.515

[3.19] The new importance of sound and speech was most prominently echoed in the legal writings of Judge Jerome Frank. Beginning in the early 1930s, Frank vilified the printed, narrowly visualist legacy of Langdell, labelled absurd the notion that law was best learned from texts in a library, and called for a revised form of legal education which would give law students ample opportunity to hear and see the law as it was actually argued.516 He repeatedly suggested that trial case records should take the form of "talking movies" instead of typed or printed documents so that trial (and, ultimately, appellate) judges interested in reviewing evidence could hear and see witnesses instead of having to depend merely on the transcript of their words.517 In 1943, Frank wrote an anonymous article in the Virginia Law Review in which-consistent with all of this-he asserted the primacy of spoken over written language in a distinctly Saussurian manner: "language, at its core, is a tongue. And the tongue . . . is used . . . for speaking. A written language should, therefore, be directly related to the tongue-to speech. . . . It would seem clear that good writing is speech heightened in tone and polished in form."518 Frank praised jurists such as Hugo Black, William Douglas, and Robert Jackson who he claimed "write much as they talk, as their fellow Americans talk. . . . [O]ne feels, in the writings of each of them, the personality of the writer as a presence . . . ."519 Benjamin Cardozo, on the other hand, attracted Frank's criticism for having made his writing "unspeakable"-excessively literary, overly refined, and artificial.520

[3.20] As might have been expected, music too found a niche in legal discourse at this time. In his 1934 decision in Helvering v. Gregory, Judge Learned Hand departed from traditional legal language in suggesting that the meaning of a sentence in a statute was more than just the meaning of its separate words, just "as a melody is more than the notes."521 Frank later suggested that Hand had been influenced by the musical metaphors of Gestalt.522 In 1941, when Karl Llewellyn attacked "paper rules," he wrote, in a turn of phrase that now sounds remarkably contemporary, that the "rightist and most beautiful type of legal rule, [is] the singing rule with purpose and with reason clear."523 Llewellyn at least entertained a broader analogy between law and music, even if he ultimately rejected that for a more classically visualist analogy between law and architecture.524 A few years later, Frank wrote two articles in the Columbia and Harvard law reviews forcefully espousing the analogy that Llewellyn had cast aside. In Words and Music: Some Remarks on Statutory Interpretation, Frank compared judicial interpretation of a statute to a performer's interpretation of a musical composition.525 Just as a "wise composer" expects a performer to interpret his score with an insight transcending its literal meaning, Frank argued that a wise legislature (and a wise public) should allow a judge to interpret a statute otherwise than according to the technical meaning of its words.526 In Say it with Music, he took the musical analogy even further, suggesting that the comparison of law with music captured the emotional, nonrational aspect of legal decision making (Judge Hutcheson's famous "hunch") that could not be verbally expressed.527

[3.21] Still, aural styles and analogues did not exactly take the American legal community by storm. The Realist predilections of Llewellyn and Frank may ironically have done as much to burden the new ideas as benefit them. When in 1939 British legal theorist Carleton Allen applied the label "jazz jurisprudence" to some of the new legal ideas coming out of the United States it was a mark of disdain, not admiration.528 The force of tradition was strong: in a society that was still overwhelmingly visual (even if, in an age of cinema and experimental television, it was no longer exclusively textual) law remained very much a visual, writing-based enterprise. In 1937, the American Bar Association even succeeded in turning the clock back by stilling the just-liberated judicial voice, the broadcast example of which might eventually have done much to encourage and sustain the nascent jurisprudential turn towards aurality.529

[3.22] Since 1950, we have seen the spread of a third and perhaps even the birth of a fourth generation of aural technologies. The development of magnetic tape at the end of the Second World War made sound recording-and hence the study and cultural recognition of sound-much easier than it had been before;530 Phillips Corporation's invention of the audio cassette in 1963 put tape recording and playback capacity in the hands of millions. In the 1950s, television rapidly joined radio in the home - TV was obviously a visual medium (we "watch" TV), but it also had (and has) a significant aural dimension.531 The 1950s and early 1960s similarly witnessed the development of hi-fi and stereo systems that made domestic sound reproduction notably more realistic and helped to popularize music to an unprecedented extent. Since 1980, audio technology has been radically miniaturized in Walkmans and digitized by computers in ways that have made music and the spoken word the companions of our every waking moment. There are numerous signs that this technology will soon become even more socially significant.532

[3.23] In such circumstances, sound's literary, artistic, and philosophical stock has gone up yet again. The new audio technology has directly and indirectly supported the growing public interest in poetry and storytelling. In the artistic community, sound has actually been made a part of numerous multimedia works533 and has become especially prominent in contemporary "performance art."534 Filmmakers and cinema theorists have finally been prompted to take a serious interest in the sound track.535 Among the growing ranks of Continental and American philosophers who have lately rejected visual metaphors for thinking and knowing,536 a notable variety have reasserted the value of aurality and aural practices.537 In What is Called Thinking? (1954) the mature Martin Heidegger called hearing "our need and necessity";538 in Truth and Method (1975) Hans-Georg Gadamer declared that "the primacy of hearing is the basis of the hermeneutical phenomenon,"539 meaning that our growing interest in engaged interpretation rather than analytic explanation represents the triumph of ear over eye.540 The idea (or perhaps more accurately, the ideal) of life and thought as "dialogue," "discourse," or "conversation" has simultaneously gained momentum thanks in part to the writings of Gadamer,541 Jurgen Habermas,542 Michael Oakeshott,543 Richard Rorty,544 and Richard Bernstein.545 Aurality has even been heralded as a guiding principle of the new postmodernism.546

[3.24] Sound has similarly affected other aspects of contemporary intellectual life and language. In a variety of academic disciplines, growing cultural aurality has had a diffuse, if definite, impact; in several disciplines, professional familiarity with or reliance on particular aural technologies has directly magnified aurality's impact on thought and terminology. For example, rhetoric has been reborn in circumstances where radio and television together have radically increased the social power of aural argument.547 Within a few short years in the early 1960s, Marshall McLuhan, Walter Ong, and Eric Havelock - all of whom had been influenced by their experiences with radio548-introduced the professoriate to the precepts and practices of preliterate or marginally literate "oral cultures." In a technological environment where a researcher can capture speech and song with the flick of a switch, the historical and literary study of "oral traditions" has since become an academic growth industry. As technical advances have made field recordings much easier to make, anthropologists have "coincidentally" begun to reconceptualize their discipline in oral terms. In 1964, Claude LÚvi-Strauss chose music as the conceptual theme of his classic work The Raw and the Cooked;549 in the 1980s, "postmodern anthropology" was characterized as a form of dialogic listening rather than observation.550 Psychologists like Carol Gilligan, Mary Field Belenky, and Lyn Mikel Brown who in the last decade or so have depended on tapings for the preservation and study of subject interviews have proved particularly willing to embrace "voice" and "listening" as figurative expressions of psychological identity and relation.551 Historians have meanwhile started to take oral history seriously. From the most meager and technologically awkward of beginnings in the late 1940s and early 1950s, that enterprise rapidly gained critical respect as recording methods improved and aurality gained cultural and academic stature through the 1970s and 1980s.552

[3.25] It is over this same period that aurality has begun to blossom in American law. In the 1950s and 1960s, a few dialogues began to show up in American law reviews.553 The dialogues certainly had deep legal roots in the long-standing courtroom practice of crossexamination and in the "Socratic dialogue" of the classroom. Still, they appeared in print (quite unself-consciously) only after technological advances had helped aurality and aural conventions gain greater credence in American culture as a whole. Most of the aural, aurally empowering, aurally evocative, and aurally sensitive features of contemporary American legal life and scholarship that I mentioned at the beginning of this section are nonetheless the products of the last ten to fifteen years. During this time, the lawyers and jurists who grew up in the sound-saturated 1960s and 1970s have come of professional age; not surprisingly, they have brought to their work and their writing the comfortable relationship with aurality that they developed in their youth. Their aural inclinations have only been validated and encouraged by the habits and expectations of newly admitted lawyers and legal scholars of the "Walkman generation."

[3.26] One statistically convenient measure of the momentum of the most recent shift towards aurality in contemporary American law is the late increase in the number of dialogues published in American law reviews.554 Here, the story is not that dialogues are becoming commonplace (far from it), but that their numbers are rising so quickly. A comprehensive manual search of university law reviews published between 1983 and 1992 indicates (taking three-year intervals as benchmarks) that three fictionalized dialogues were published in 1983, five were published in 1986, five appeared in 1989, and seven appeared in 1992.555 Over the same period, dialogues have moreover changed from being an experimental, even exotic form primarily associated with audacious, albeit less prominent, law reviews556 into an at least marginally mainstream genre that is increasingly acceptable to the editors of "elite" legal journals.557

[3.27] The presence of new aurally oriented legal forms is more than matched by the recent growth of aural metaphors in American law and legal scholarship. Leading terms like "dialogue," "voice," and "conversation" seem to have entered American legal discourse in force during the early to mid-1980s,558 thanks largely to the efforts of Bruce Ackerman,559 Robert Cover,560 Robert Burt,561 James Boyd White,562 Stephen Burton,563 Carrie Menkel-Meadow,564 and Frank Michelman.565 It is very difficult to determine just how fast these specific aural figures of speech (which have since been joined by others) are gaining ground in the American legal community at large, but it may be significant that the metaphoric use of "dialogue" and "voice" in the titles of articles appearing in American university law reviews has increased markedly in the past decade. A keyword search in the INFOTRAC/LEGALTRAC database yields one such article including the metaphoric term "dialogue" in 1983, three in 1986, three in 1989, and seven in 1992. The metaphoric term "voice" was similarly included in the titles of one law review article published in 1983, three articles published in 1986, six in 1989, and eleven in 1992. The metaphoric term "conversation," although introduced with the others, has only recently come into its own in article titles, with five titles carrying that figure of speech in their titles since 1990.566

[3.28] Another relevant if somewhat more impressionistic measure of the shift towards metaphoric aurality is the late increase of interest in the analogy between law and music. The analogy appears to have re-emerged in 1982 with the publication of a book by Daniel Kurtzer called The Music of the Laws. In 1985, a student-written Note in the Southern California Law Review explicitly revived Frank's musical musings of the 1940s.567 Since that time, a variety of articles have appeared addressing different aspects of the analogy. Some scholars have merely toyed with the metaphor in much the same way as Kurtzer had done, hoping perhaps to humanize law in the process.568 Others have offered more thoughtful explorations of the similarities between the genres. For instance, Peter Teachout and Robert Abrams have likened legal and musical composition,569 while John Hart Ely and John Calmore have contemplated the metaphorical links between jazz and constitutional law and critical race theory respectively.570 Sanford Levinson and J. M. Balkin have explored the connection between the "authentic performance" theory of early music and certain styles of legal interpretation (in particular, constitutional originalism).571 Jerry Phillips has lately suggested that we approach law as metaphoric "ornamentation," i.e., the spontaneous embellishment of a set musical score.572 While all this has been happening, metaphoric references to "harmony" and "dissonance" in the titles of university law review articles have increased significantly. An INFOTRAC/ LEGALTRAC search reveals six uses of the word "harmony" in university law review titles between 1980 and 1986, and twelve uses between 1987 and 1992.573 "Dissonance" appeared in the title of one article before 1986, and has been used in three since then.574 Going even further, the title of one law review article published in 1987 seems figuratively to have recalled the Muse whom Blackstone had dismissed from Anglo-American jurisprudence almost two and a half centuries before.575 In 1990, a second published paper metaphorically revived the "music of the spheres,"576 while the title of a third employed the word "polyphony" for the first time.577 In the wake of all this "sound" scholarship, it would seem that law has, in a sense, become tuneful nomos once again.578


B. Aurality and Diversity

[3.29] In addition to being a product of changing cultural conditions, the rising popularity of aural metaphors in American legal literature is also attributable to the new willingness and political ability of a growing number of female, African American, Hispanic, and Jewish legal scholars from historically marginalized and relatively more aural backgrounds to bring those backgrounds more directly to bear on their legal writing and discourse.579 Much of the work produced by these scholars is overtly based on an aurally indulgent methodology that attempts "to know history from the bottom" by drawing from "sources often ignored," in particular "poems, oral histories, and stories from . . . experiences of life in a hierarchically arranged world."580

[3.30] This novel and self-assured "turn toward experience" may be regarded as the product of four factors operating both inside and outside contemporary American law schools. First, the feminist movement, the civil rights movement, the Chicano Revival, and the general "diversity" movement have lately helped to legitimate the subject of lives led outside the dubious shelter of the dominant gender, racial, ethnic, and religious umbrellas.581 As a result, female, African American, Hispanic, and Jewish legal scholars have become more willing to think, teach, and especially write on their own terms,582 while white, male, Anglo, and Protestant Americans have become more willing to hear their stories. Second, the number of female, African American, and Hispanic scholars in the American legal academy-within which most legal scholarship is done-has risen dramatically in recent years, thanks to largely less restrictive law school admission and hiring policies. For instance, in 1970 sixty-six tenure-track women constituted 2.2% of the American legal professoriate;583 by 1990, women made up 24% of the full-time faculty at AALS-accredited law schools.584 The gains for African Americans and Hispanics have not been as great, but have still been striking.585 In a less thoroughly alien professional environment, female, African American, and Hispanic law professors have inevitably felt more secure in plumbing the depths and affirming the power of their own traditions and practices.586 Third, African American, Hispanic, and Jewish legal scholars have lately found themselves working in law schools where once-predominant faiths in the individual, in objectivity, and in traditional forms of dispute resolution are being doubted and challenged by growing numbers of "majority" scholars. Insofar as the historical values and experiences of out-groups seem to provide, almost by definition, obvious alternatives to beleaguered dominant models,587 scholars from these backgrounds are increasingly inclined-and in fact are being implicitly and sometimes explicitly encouraged by their majority colleagues-to bring those values and experiences into their legal writing.588 Fourth and finally, American legal academics of all stripes have been taking more interest in the relationship between law and religion. In this context, Jewish legal scholars have had an additional reason to write from their unique perspective,589 while it has become easier for Hispanic scholars to draw directly and indirectly on the Catholic aspects of their own cultural tradition.590

[3.31] As more female, African American, Hispanic, and Jewish American law professors have taken up the challenge of bringing more of themselves to their legal scholarship, a good number have drawn on-and have directly or indirectly encouraged others to draw on-the aurality which has traditionally animated and structured so many of their group experiences. Thus, Regina Austin writes of the task before the minority female legal scholar: "The voice . . . reflected in her work should contain something of the essence of the culture that she has lived and learned; imagine, if you will, writing a law review article embodying the spontaneity of jazz, the earthiness of blues, or the vibrancy of salsa."591 So-called "outsider"592 scholars have actually been able to follow this sort of advice despite having themselves become thoroughly grounded in visualist, writing-based legal discourse. Many have drawn on a personal "double consciousness"593 that has allowed them to strive and succeed within the more visualist environment of the dominant culture while maintaining connection with their relatively more aural traditions and values.594 African American legal scholar Odeana Neal, for instance, has declared that for all her achievements and obvious ability as a highly visualist, highly literate "double Harvard" (Harvard College and Harvard Law) she still "cannot believe in the privilege of the written word . . . for what would that say about the relative importance of things that I hold dearest in my heart, things that were taught to me by unlettered men and women, or whispered by a lover, or giggled about on the phone with a friend?"595 Another African American law professor, Angela Harris, has chosen to manage her own cultural duality by approaching the written word as, at least metaphorically, a creature of speech and sound. She has pointedly called writing

the game of inventing selves, speaking in tongues . . . . Like a ventriloquist, I can write like a woman, like a man, like an intellectual, like a lawyer, like an illiterate. I try on voices as I try on selves . . . . It's like talking on the radio, whispering words into a microphone in a booth to be listened to in a hundred different private rooms. Read my words and try to guess the timbre of my voice . . . 596

[3.32] Legal scholars sharing such ambivalence about writing and (by implication) visuality have used several strategies to reintroduce a measure of aurality to American legal thought. A relatively high number of female, African American, and Hispanic law professors have become very concerned with actual speech. They have raised issues related to hurtful speech events,597 opportunities for speech in the classroom598 and in and out of court,599 the status of speech as both a subject of legal scrutiny600 and a medium for the intellectual evaluation of law students601 and professors,602 and the legal ramifications of the very sound of speech.603 These interests are eminently sensible for scholars who are not only rightly concerned about participation and prejudice, but who come from traditions in which individuals have been markedly empowered by speech and disempowered by silence, and in which the spoken word itself has carried greater weight (both for good and ill) than has usually been attributed to it in the more visualist environment of American culture considered as a whole.604 A disproportionate number of female, African American, Hispanic, and Jewish law professors have analogously shown an interest in styles of legal scholarship that directly or indirectly evoke aural experience. Many have opted for a more informal, conversational delivery featuring the use of first person pronouns.605 A wide variety have quoted others' poems,606 parables,607 and even songs608 in legal text or footnotes. In a few instances, outsider scholars have chosen to be still more ambitious, presenting significant portions609 and sometimes the entirety of their writings in self-constructed story,610 dialogue,611 drama,612 parable,613 and poetry.614 In these forms, these scholars seem to be directly speaking to, instead of writing for, the reader.

[3.33] Outsider scholars have themselves recognized that their aurally evocative styles and strategies derive a critical measure (although certainly not all) of their power from their ability to recollect, and in that process validate, an actual aurality central to outsider identities and traditions. For instance, Richard Delgado has noted the link between feminist legal narrative and women's consciousness-raising which, he notes, "consists, in part, of the [oral] sharing of stories, of tales from personal experience."615 Derrick Bell has expressly related the format of his chronicles to African oral storytelling customs;616 in And We Are Not Saved, he moreover associated the antiphonal singing of his Celestial Curia with the aural patterns of "call-response" preaching that he had encountered "in black churches when I was a child."617 Delgado has analogously connected Hispanic legal stories, chronicles, and dialogues to "Mexican-American . . . corridos (ballads) and stories, passed on from generation to generation."618 Michael Olivas has made the same connection, and has also tied his own enthusiasm for stories to his Catholic upbringing and his period of training in a Catholic seminary.619 Robert Cover, the late Jewish American legal scholar who did so much to encourage legal academics to take narrative seriously, overtly acknowledged ancient Hebrew civilization's "magnificent use of [that form] to explore great normative questions."620

[3.34] In the process of taking a professional interest in their own experiences and actually using aural forms as models for their legal scholarship, a disproportionate number of scholars from "nontraditional" backgrounds have embraced aural legal metaphors. Outsider legal writing has indeed become so infused with aural figures of speech that Richard Delgado has appropriately (if somewhat serendipitously) labelled it "voice" scholarship.621 For instance, feminist legal scholars have repeatedly used aural metaphors to describe legal phenomena and processes.622 In 1985, Carrie Menkel-Meadow (consciously following feminist psychologist Carol Gilligan) considered "the different voices of lawyering" and proposed a reconception of legal advocacy as "conversation."623 In the same vein, Clare Dalton suggested that law was a matter of "storytelling."624 In 1986, Elizabeth Schneider posited "conversation" as metaphor for "rights," while Teresa Godwin Phelps offered the same metaphor as a reconceptualization of legal writing.625 In the hands of Catherine MacKinnon,626 Martha Minow,627 Mari Matsuda,628 Mary Ann Glendon,629 Ruth Colker,630 Carol Rose,631 and others,632 aurally evocative metaphors like "dialogue," "voice," "conversation," "storytelling," "listening," and "silencing" have since become a prominent feature of much of the best and bestknown feminist legal scholarship. A few feminist law professors have even ventured into the metaphorical terrain of music. Martha Minow has noted that "[l]egal language, like a song, can be hummed by someone who did not write it and changed by those for whom it was not intended."633 In her essay Practical Polyphony, Carol Weisbrod has suggested that "[t]eaching us to hear the different lines and different narratives is a major emphasis and contribution of feminist jurisprudence. Perhaps it is too soon to judge the issue of ultimate harmony. The first task is to learn to hear the different parts."634 Emily Fowler Hartigan has been still more metaphorically ambitious. In a remarkable 1988 article, she wrote:

If law is anything today, it is dispirited . . . . Neither law nor its practitioners sing-or even hum . . . . [T]his article is intended as one more song of change. The words of the chorus to the song of change are familiar yet demanding . . . . The reader may not agree with the voice identified in the chorus about the law of the land; I claim only to remind the reader of the voice, and to let the song sing in the reader's mind . . . . It is the law of the land singing in her people . . . . Its colonial singers did not live the full extent of its truth . . . but it is still a song of promising integrity. It contains the seeds of reconciliation with the song as it will sing today.635

[3.35] A significant number of prominent African American and Hispanic law professors have also added aural metaphors to their visualist legal vocabulary. For instance, Jerome Culp, whose work is notably aimed at defining a "black legal scholarship," has employed multiple aural metaphors to capture the misunderstanding that exists between black and white scholars in the contemporary American legal community:

[B]lack scholars have given voice to the interests of people who were always at the margin of the central legal discourse . . . . Can we make white scholars hear the stories that black scholars are telling? My answer to this question is a definite "maybe." White scholars may listen to what scholars of color are saying, but what they hear is not always what scholars of color speak.636

[3.36] Culp has also used strikingly aural figures of speech for political sensitivity ("my story is easier on the ears of white scholars"),637 attraction (a colleague's book has "a powerful call on the ears of the majority professorate"),638 conflicts between alternative schools of jurisprudence (a "cacophony of approaches"),639 and even Patricia Williams' perception of truth ("[h]er ears hear a different decibel level").640 In poetic phraseologies rich in metaphoric appeals to all the senses, Williams herself has told how her experience at Harvard Law School "muted my voice to inaudibility," has emphasized the importance of "listening" to the "voices of others" (sometimes "voices lost in the chasm"), and has explored the "dissonance" between blacks and adherents of Critical Legal Studies ("CLS") debating the subject of rights.641 Kate Nace Day has used the familiar "voice" metaphor to describe her legal education: "Years ago, when I began a study of racism and constitutional law, I listened to voices . . . ."642 Lani Guinier has described cordial race relations as a conversation "in which everyone declares a willingness to listen respectfully to what other people are saying."643 John Calmore has used jazz saxophonist Archie Shepp's "fire music" as a metaphor to describe the "oppositional cultural practice" of critical race theory.644 Richard Delgado has meanwhile adopted a wide variety of aural or aurally related terms in discussing the making and understanding of law. Even his more traditional (i.e., nondialogic) articles contain numerous aural-metaphorical references to "talk," "speaking," "listening," and "audience."645 His pieces on "outsider scholarship" virtually overflow with identifications of empowerment and perspective with "hearing" and "voice."646

[3.37] Finally, a significant number of law professors openly drawing on their Jewish backgrounds have recently demonstrated an enthusiasm for aurally related legal terminology. Robert Cover, who has been identified as the prime mover in the reintroduction of Jewish values to contemporary American legal discourse,647 was notably one of the first contemporary legal scholars to regard law as a "narrative,"648 even a "folktale" (a term more overtly evocative of aural tradition).649 Indirectly following in the footsteps of Martin Buber (with some of whose philosophic work he was personally familiar),650 Cover also pioneered the aural-metaphorical notion of law as "dialogue." His "dialectical federalism" presumed a meaningful "dialogue" between the federal and state courts on the matter of rights.651 Writing of the Jewish legal tradition, he overtly called law a "voice";652 he described conflict between different jurisprudential schools and authorities as having created a "cacophony" of laws.653 Cover's work has been complemented by the writing of Robert Burt, who like Cover has emphasized the idea of law as "dialogue"; Burt notably introduced this idea in an article examining the broader relationship between constitutional law and parable.654 Most recently, George Fletcher, another prominent figure in the developing school of Jewish American jurisprudence,655 has taken up the metaphor of law as "discourse."656

[3.38] Just as some outsider scholars have realized that their aurally evocative legal styles have roots in the actual aural traditions and practices of outsider groups, we should recognize that outsiders' aurally evocative figures of legal speech are at least partly inspired by the same actually aural sources. Like everyone else, legal scholars from relatively more aural backgrounds are undoubtedly drawn to metaphorical terms such as "voice," "dialogue," and "conversation" on general cultural and (as we shall see) phenomenological grounds, but they arguably find those terms additionally attractive because of the relatively more familiar and hence liberating resonances the terms create for them. George Fletcher has lately come to the edge of this realization in observing that "[t]he most magnificent example of law as discourse is the Jewish tradition, beginning with the Bible, blending into the oral law, finding refinement in the Talmud, and continuing to this day . . . as a mode of study in which argument and analysis become religious activities."657 Analogously, a reader of Lani Guinier's work has speculated that she repeatedly uses the "metaphor of conversation" because "[a]s the daughter of a white [also Jewish] mother and black father who talked frankly to her and to each other about race, this is how she came to understand the subject."658

[3.39] The broad relationship between metaphor and cultural praxis that these commentators are suggesting has implications for other metaphors and other groups. For instance, it is particularly "sensible," empowering, and even defiant (although certainly not necessary, inevitable, or altogether self-indulgent) for feminist legal academics-coming from a formerly marginalized American women's culture that has privileged shared storytelling and aural interaction of all sorts-to promote the idea of law as "dialogue" and to describe injustice as "silencing." It is (similar caveats applying) likewise particularly "sensible," empowering, and defiant for, say, Hispanic legal scholars - coming from an Hispanic culture that in the face of "mainstream" prejudice has prized both its secular oral traditions and its catechistic Catholic heritage - to write in the idioms of "voice" and "story." In this context, appreciating the specific gender, racial, ethnic, and even religious roots of many of the purveyors of the new aural metaphors is a necessary (although certainly not a sufficient) prerequisite to understanding the growing popularity of those metaphors in American legal language.


C. Law and the Phenomenology of Sound

[3.40] A third reason for the increased popularity of aural legal metaphors in contemporary American legal discourse has to do with the correlation between the values of developing "critical" legal theory and our understanding of the phenomenological biases of sound. Because of this correlation, many exponents of critical legal theory have found aural figures of legal speech to be convenient vehicles of ideological expression.

[3.41] Critical legal theory, as primarily embraced by feminist legal scholars, critical race theorists, and a number of intellectually progressive white male jurists of various persuasions,659 is - for all of its permutations and combinations - founded on a core group of values which set their adherents in basic opposition to traditional legal attitudes and beliefs. Most critical scholars believe that law is, or at least should be, concrete, relational, subjective, multivariate, dynamic, process-oriented, and transcendent. Law should be concrete in that judges and jurists should take greater account of situated context660 and others' actual lived experience661 instead of depending upon abstract or theoretical constructs.662 It should be relational in that it should be more concerned with preventing and resolving differences by drawing people together in shared interaction and communal commitment instead of driving them apart.663 It should be subjective to the extent that lawmakers and adjudicators should be more willing to recognize their own biases664 while making an effort to compensate for those by empathetically adopting the points of view of the individuals who stand to be affected by their rulings.665 It should be multivariate insofar as it should recognize the existence and legitimacy of different realities, different points of view, and different answers to the same legal question.666 According to many critical scholars, law should be regarded as dynamic:667 instead of being understood as a timeless entity, it should be understood as involving events in time. By the same token, it should be understood as more of a process than a system.668 Finally, law should be transcendent in that it should reject the arbitrary limitations of traditional boundaries and categories.669

[3.42] Each one of these critical values has a counterpart in a traditionally accepted value or quality of sound, which has generally been regarded as the phenomenological-and, ultimately, epistemological-antithesis of sight.670 Sound, for example, is assumed to be concrete. Unlike the image or the written word that we experience as an abstract, disembodied stimulus "out there," sound has an immediate physicality. Its tone, tempo, volume, and rhythm give it a complex physical texture. Sound waves literally reach out from their source to touch us; in certain circumstances-in low registers, or at high amplification-we can actually feel sound as physical vibration. Sound, moreover, imposes its concreteness on us by immersing and surrounding us in its field.671 The resultant sense of intimate involvement is only heightened by the fact that although we can shut our eyes, withdraw from touch, and close our mouths at will, we cannot shut our ears:672 in this context, sound makes us part of the real world whether we choose to be or not.673 Finally, because sound is not a very effective "distance" sense, understanding and appreciating sound (or, conversely, communicating through sound) generally requires us to approach its source (or its desired object). We are thereby encouraged to experience aurality in a concrete situation. For example, aural speech "is addressed by a real, living person to another real, living person at a specific time in a real setting which includes always much more than mere words."674

[3.43] Sound is also presumed to encourage relation, interaction and ultimately, community: in the words of Walter Ong, "[s]ound always tends to socialize."675 Sound socializes because, in the first place, it is hard for anyone to ignore a sound. Sounds that we make ourselves tend to evoke responses much more successfully than most of our visible or tangible activities.676 Perhaps others recognize that in speaking we have invested energy and effort and have revealed something intimate of ourselves that deserves acknowledgment.677 Sounds made by others, in turn, not only surround, but actually penetrate and invade us.678 Because sound affects us in this way, and also perhaps because we cannot turn our backs on sound, we feel the urge to respond or react. We generally experience this response as an important completion of ourselves-ignoring the aural stimulus (or being unable to respond to it) frequently leaves one with a gnawing sense of isolation. In the second place, sound socializes because its communicative dependence on physical proximity679 draws and keeps people together.680 It thereby facilitates mutual involvement,681 an involvement which in some sense may be said to "suspend the self." Psychologist Julian Jaynes has expressed this point most provocatively:

Consider what it is to listen and understand someone speaking to us. In a certain sense we have to become the other person; or rather, we let him become part of us for a brief second. We suspend our own identities, after which we come back to ourselves and accept or reject what he has said.682

[3.44] Sound tends to be regarded as a subjective sense in that an individual coming (necessarily) close to a sound is likely to evaluate it in light of the identity and character of its physical origin. This is especially true when the sound is speech. An "objective" assessment of spoken words alone is difficult. Spoken words are carried by a personal voice; they are mouthed by a personal presence from which they cannot be readily detached.683 In such a context, objective "meaning" merges with subjective "interpretation," and objective "knowledge" merges with subjective "opinion."684 Because of the physical closeness of most aural relationships and the resultant difficulty in achieving objectivity in such a context, persons in aural contact tend to develop more of a feeling for one another and may be better able to empathetically appreciate each other's position. Even in extreme cases, "addressing . . . and listening to one's enemy, experientially reveals that one's enemy is truly human. This understanding counteracts the strong tendency in disputes to objectify one's enemy . . . ."685

[3.45] Sound has been considered multivariate in that it can accommodate a variety of different realities at the same time. Sound arguably accomplishes this in two ways. First, it is not as uniperspectival - i.e., as directionally selective - as sight. Recall that to see something, we have to turn ourselves towards it, and having done so, we cannot see in other directions. We can, in other words, see only one frame of "reality" at a time. When we listen, however, we can simultaneously appreciate sounds emanating from in front of us, behind, above, and below. All of these sounds from different sources are available for our attention all at once.686 We become conscious of multiplicity. In this context, it is doubtless significant that so-called "multiperspectival art," visual art that depicts an object from several apparently contradictory perspectives simultaneously, has been repeatedly associated with cultural experiences dominated or increasingly influenced by aurality. In explaining a carving done by a member of the Tsimishian aboriginal culture of the Canadian Northwest, it has for instance been said that "what we ought to be asking ourselves is how the artist's hand might have been guided by the multidirectional world of the ear rather than the unidirectional world of the eye, given that [the artist's] culture is an oral-aural one."687 Modern multiperspectival "cubism" has likewise been described as "one of the painterly forms of acoustic space."688 Second, sound may be considered multivariate insofar as different sounds can be simultaneously combined in the same space without suppressing their component parts. Thus it has been noted that "music is not like vision."689 Unlike visual colors,690 musical tones "may be combined without losing their individuality. What you end up with is a chord, something new, which has its own sound but in which the individual tones are also distinct and identifiable. It's not a blending . . . but something of a different order."691 Harmony and choral "polyphony" depend on such a mixing. In this way as well, the sense of sound may be more tolerant and even celebratory of difference than is the sense of sight.

[3.46] We also understand sound as dynamic: "Sound dances timefully within experience. Sound embodies the sense of time."692 A sounded musical note or a spoken word is not a fixed object, but an event. It exists only to go out of existence. Sound, moreover, discloses an event: it is the product of a "doing" of some sort, be that someone walking, a river running, rain falling, or a machine working.693 It is a disclosure that may itself take time; while sight is apparently instantaneous, sound is relatively slow (witness the phenomenon of "echo").694 Both Plato and Aristotle considered sound uniquely time-bound because of its delay in spreading over a distance.695 In this context, a hearing-oriented world is a world necessarily focused on the ideas of "duration" and "becoming."

[3.47]Because sound is both an event in time, and is based on an event in time, it is said to favor the idea of process rather than the idea of system. It is uniquely suited to the understanding and communication of events following one another. Literary critic Northrop Frye realized this when he concluded that while systematic patterns of meaning were in the domain of the eye, narrative was in the domain of the ear (consider, for instance, how much less compelling is a visualized narrative-in a book or a graph-compared to an aurally told tale where one cannot skip to the conclusion or readily go back to the beginning).696 In the context of a similar understanding, feminist philosopher of science Evelyn Fox Keller has commented that "[k]nowledge likened to the sense of hearing . . . might well lend itself more readily to a process view of reality."697

[3.48] Finally, we frequently consider sound to be transcendent. As we have already seen, vision enables us to recognize sharp distinctions and boundaries: the dividing line is a classic visual construct. Sound, by contrast, is poorly suited to the task of delimitation. "Auditory space," we are told, "[is] a sphere without fixed boundaries, space made by the thing itself, not space containing the thing."698 Because sound floating on the air lacks the precision of the line set on the page, aural differentiations are more often experienced as differentiations of degree rather than of kind. It is easier to distinguish between high and low volume of a given sound than it is to distinguish, at the edge of aural experience, between sound and silence. In this context, sound creates an arena of mutual involvement instead of a division of experience.

[3.49] In a previous section of this Article, I argued that the correlation between traditional legal theory and the values of vision may be ascribed to the cultural context in which American law has grown up, to the sensory biases of the groups that have dominated American law to this point, and to the medium used to express and develop traditional American legal theory. The apparent correlation between critical legal theory and the values of sound may be explained in somewhat similar fashion. First of all, critical legal theory has grown up in a more contemporary, and hence, more aurally oriented cultural environment;699 in this situation, critical theory has arguably, if unwittingly, absorbed values and biases that sound is spreading through American culture as a whole. Second, critical legal theory has been significantly shaped by individuals coming from American gender, racial, ethnic, and religious groups which, relative to others, have had more respect for aural expression and experience. The relative aurality of these groups has arguably disposed their members towards values which sound presumably favors. Given the inclination and opportunity, a growing number of these individuals are now applying the same values to American legal thought. For instance, the relative aurality of American women may be largely responsible for their traditional, if hardly exclusive700 or essential,701 association with the concrete and contextual, the relational, the subjective, and the processbased.702 Feminist legal scholars seeking to draw on women's lived experience have certainly played a key role in making these values an integral part of critical jurisprudence.703 The relative aurality of African American culture (although again neither exclusive nor essential) has arguably done much to attract African Americans to similar ideals;704 a number of African American legal scholars are now incorporating these into their own brand of critical writing.705 The aurality of Jewish religious experience may equally have encouraged Jews to emphasize context, relation, subjectivity, multivariance, and dynamism in their tradition,706 emphases that are becoming newly evident in the critical works of many Jewish American legal scholars.707 Third, sound has been brought directly to bear on the development of critical theory insofar as much of that theory has been conceived and elaborated not in writing, but in the aural argument, debate, and discussion of scholarly conferences, seminars, and symposia.708 If, indeed "the medium is the message" (or at least part of it), critical legal theory may be said to have both literally and figuratively echoed the circumstances of its birth and development. Taking this point together with the others, it would seem that the overlap between critical legal ideology and aural phenomenology is not at all coincidental.

[3.50] The apparent compatibility of critical legal ideology and aural phenomenology has had at least two significant consequences for contemporary American legal scholarship. To begin, it has played a supporting role in encouraging critical legal scholars to experiment with scholarly formats which indirectly and directly draw on aural experience. Setting ideas in story or poetry evokes, if not necessarily duplicates, phenomenological circumstances that may indirectly reinforce the critical concepts or values (concreteness, relation, subjectivity, process, etc.) which are being explicitly articulated.709 Perhaps this is another reason why these and other related forms are "powerful means for destroying [the existing] mindset-the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place."710

[3.51] The same apparent compatibility of ideology and phenomenology has drawn many exponents of critical legal theory to aural legal metaphors. The concrete, subjective nature of law is handily captured by the terms "voice" and "story." The idea of law both as relation and process is neatly communicated by the terms "listening," "dialogue," and "conversation."711 "Polyphony" telegraphs the multivariate character - literally, the many-voicedness712 - of law. By choosing these and other aurally inspired terms,713 critical legal scholars have indirectly but effectively challenged the traditional legal understandings that have so often been supported and even rooted in visual legal language.714 This aural language is arguably so powerful, however, that mere casual usage may have the same "subversive" result: an innocent tendency to describe law as "talk" may, for instance, indirectly support and even encourage the notion that law is concrete, dynamic, and subjective. In this sense aural legal metaphors - like aurally evocative forms of legal scholarship - may themselves be profoundly "counter-hegemonic."


Next Section | E-mail