41 Emory Law Journal 4 (1992); reprinted by permission of the Emory Law Journal
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Bernard J. Hibbitts * Associate Dean for Communications & Information Technology Professor of Law University of Pittsburgh School of Law

They have . . . eyes, but do not see. They have ears, but do not hear; noses, but do not smell. They have hands, but do not feel. Psalms 115:5-7

This article examines how cultures having little or no experience with writing ("performance cultures") communicate and express legal meaning through the orchestrated use of the physical senses. Part II of the piece examines how each of the various senses - hearing (sound), sight, touch, smell and taste - is brought to bear in the cultural and legal experience of performance-based societies. Part III considers how and why members of performance cultures "perform", i.e. use and combine various sensory media in single messages, and describes how and why they use the same strategy in legal expression. It also considers how information is distributed among the different sensory components of performance and assesses what that distribution means for our interpretation of performative culture and law. The Conclusion of the paper offers some preliminary hypotheses concerning the deeper implications of performance for the cultural practices and legal values of the societies it dominates.

"This is a most important article. It goes beyond much psychological analysis of gesture and embodiment by lodging such phenomena, not inside the individual, but instead within the discursive organization of the consequential social institutions that shape our society. Simultaneously it provides a much needed antidote to perspectives toward law and other speech genres that focus almost exclusively on phenomena restricted to the written text. Hibbitts brilliantly demonstrates that law, and social action in general, make rich use of the full sensory endowment of the human body. This is integrative, ground breaking work at its best."

Charles Goodwin
Professor of Applied Linguistics
University of California, Los Angeles

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"In 'Coming to Our Senses,' Bernard Hibbitts demonstrates how performance - the restoration of behavior - defines not only legal memory but also social memory. This generative essay is required reading for everyone in the emerging interdiscipline of performance studies."

Joseph Roach
Professor of English and Theatre Studies
Yale University

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"In Modern Western cultures and in some other cultures legal thinking has exalted textual expression and thus the sense of sight. Data from other senses are commonly mediated in law through a text.... In 'performance cultures,' cultures, which do not have writing or which attend minimally to writing, the other senses can be more directly involved in the law than with us: sound, smell, taste, and the battery of senses that we group under 'touch' (hot-cold, wet-dry, hard-soft, rough-smooth, etc.). In this knowledgeable and carefully crafted study, Bernard Hibbitts sensitively reminds us that, as we move into new modes of information processing and communication in our electronic cultures, attention to 'performance cultures' can resensitize us to much of the human lifeworld that we have hitherto covered over in our legal and other thinking."

Walter J. Ong, S.J.
University Professor Emeritus of Humanities
St. Louis University
Author, Orality and Literacy: The Technologizing of the Word

I. Introduction

II. Communication and Legal Expression in Performance Cultures: A Tentative Typology

A. Aural Communication and Legal Expression

1. The Cultural Significance of Sound
2. The Sound of Law

B. Visual Communication and Legal Expression

1. The Cultural Significance of Sight
2. The Sight of Law

C. Tactile Communication and Legal Expression

1. The Cultural Significance of Touch
2. The Feel of Law

D. Smell and Taste: Savory-Sense Communication and Legal Expression

1. The Cultural Significance of Savor
2. The Savor of Law

III. The Phenomenon of Performance

A. Performing Lore and Law

B. Foundations of Performance

C. Performance and the Sensory Distribution of Meaning

IV. Conclusion

They have . . . eyes, but do not see. They have ears, but do not hear; noses, but do not smell. They have hands, but do not feel. Psalms 115:5-71

lthough the days of its dominion in our culture are numbered, the written word still shapes our lives. Because it is immutable, the written word preserves the details of our thoughts and experiences against the shortcomings of our memories. If ever we should forget what we once thought or did, it can remind us of those things as completely and exactly as we originally recorded them. Because it is portable, the written word allows us to communicate over great distances with people we cannot speak to or see. As a result, our search for knowledge is bounded neither by the limited range of our personal mobility, nor by the parochialism of our local friends and acquaintances. Because it is both duplicable and durable, the written word permits us to contact many more people than we can meet in our own lifespans. Reproduced in potentially countless copies, it can reach a multitude of our contemporaries; thus distributed, it stands a good chance of surviving (in at least one copy) long enough to influence later generations. At the same time, it can bring us the ideas of a whole host of present and past personalities.

[1.2] The written word has been so powerful in our society that it has conditioned our very vocabulary. Twentieth century American English is full of idioms that in some way refer either to writing or to its modern mechanical analogue, print. When an event is inevitable, we say that "the writing is on the wall." When we become convinced that someone is going to lose a contest or a race, we "write them off." When something is obvious, we say it is "black and white," the colors of the printed page. When we want someone to appreciate the deeper meaning of an event, we ask that they "read between the lines." In academic journals, many scholars interpret the world and its many social and intellectual phenomena as so many "texts." Writing- and print-based expressions have become especially popular in the paper-choked precincts of the law. Law students frequently say that real law is "black letter." A policeman who charges a suspect with every conceivable offence "throws the book" at him. A careful judge is supposed to follow "the letter of the law."

[1.3] Such a consummate embrace of the written word has not been without its costs. In the twelfth and thirteenth centuries, the immediate European progenitors of our culture turned increasingly to writing to help preserve information and customary lore that had been primarily perpetuated and celebrated in sound, gesture, touch, smell, and taste.² Once this corpus was inscribed, and thus removed from its original multisensory context, it slowly but indubitably became the creature of the medium that claimed to sustain it. Writing encouraged subtle alterations in the style and sometimes even the substance of age-old traditions and tales. From the sixteenth century, as the printing press stimulated the universalization of literacy, writing’s social and intellectual grip on Western societies became so strong that more traditional channels of communication lost a crucial measure of their surviving legitimacy.³ Literate groups no longer satisfied with merely sharing the cultural stage began competing for outright social and intellectual hegemony against the institutions and classes that continued to employ and embrace older expressive forms. In the process, spoken rhetoric was denigrated.⁴ Gestures were demeaned.⁵ Theater was suppressed.⁶ Paintings were whitewashed and sculptures were smashed.⁷ Smells and tastes were stricken from the accepted vocabulary of literary expression.⁸ The initially harsh, even violent literate campaign against these media eventually gave way to a grudging tolerance, and in some European countries (such as baroque France and Italy) traditional media even experienced a limited revival, but considerable damage to their original social and intellectual status had already been done.⁹

[1.4] The cultural decline of speech, gesture, image, touch, smell, and taste in the face of writing’s triumph is hardly surprising. After all, readers and writers have no need of such devices to understand or to be understood. Readers do not derive information from the pages of books by listening to them or feeling them or smelling them (modern-day "scratch and sniff’ aside);¹⁰ writers do not communicate their messages by the direct manipulation of sound, gestures, images, or scents. Today we certainly have not abandoned these forms of expression - we still speak, sing, gesture, dance, and so forth - but we have shifted them from their former position at the center of our cultural universe to a distinctly secondary, more restricted role. They are rarely welcome in our world of "serious" intellectual communication, and when they do appear there (for example, in liturgy or theater), they are strictly regulated by written scripts.¹¹

[1.5] In addition to influencing our behavior and our attitudes towards each other, our tendency to identify serious intellectual communication with writing has profoundly affected our attitude towards past and contemporary societies that have had little or no experience with the written word. Heedless of their actual learning, creativity, and depth, we have all too often imposed on these cultures our own conclusions about which forms of cultural expression are important. More concerned with what we perceive to be their weaknesses than with their strengths, we have condescendingly labeled their members "illiterate" or "inarticulate." In so doing, we have implied either that their lack of literate skills makes them inherently inferior, or that their tendency to set little or nothing down in writing amounts to them saying nothing at all.

[1.6] As this century has progressed, more and more scholars have rejected these negative characterizations. It is no coincidence that they have done so while writing and thinking in the midst of a Western culture that, under the influence of new technologies and new media, has begun to rediscover and rehabilitate previously delegitimated forms of communication. In the decades after 1920, for example, a number of prominent scholars began to reconceive preliterate and marginally literate cultures positively as "oral," that is to say, based on spoken rather than written communication.¹² At the same time, their own culture was rapidly reacquainting itself with the sound of the human voice. The telephone and the phonograph, the two great "talking machines" of the late nineteenth century, were by this period ubiquitous, and the novel mass medium of radio was speaking to European and American householders for hours on end.¹³ Sensitized to the place and power of oral communication in their own surroundings, scholars of this era predictably took a greater interest in its role and influence in other societies.¹⁴

[1.7] Theirs was doubtless an important academic breakthrough, but it was not critical. After all, speech is merely the oral form of the written word. As two scholars have since noted:

The idea that the Great Transformation was [therefore] from speaking to writing [was] a statement of how much we focus on words, how much we see words as the key form of expression, the key to mentality, and even the key to humanity itself. The spoken word may be different from the written word, but . . . [t]he gap between writing and speaking is but a small leap compared to the chasm between words and everything else.¹⁵

[1.8] More recently, a further intellectual shift seems to have occurred. Younger scholars studying preliterate and marginally literate cultures (as well as, to some extent, our own society) have developed a greater appreciation for nonverbal expression, especially the visual forms of gesture, dance, and image.¹⁶ It is no coincidence that these forms are the staples of television, the new medium on which virtually all of these scholars were weaned. Unlike the telephone, the phonograph, or the radio, television has radically extended our perceptual sensitivities. Although it incorporates speech, it is significantly nonverbal. It deals in forms of expression that are not readily translated into, or from, writing. Television has had such an intellectually liberating impact that it has even encouraged some scholars to consider the anthropological and historical role of touch, smell, and taste - media that are not only nonverbal, but nonvisual.¹⁷ In the wake of all these efforts, the term "oral culture" appears increasingly inadequate as a characterization of a preliterate or marginally literate society.¹⁸

[1.9] The conceptual inadequacy of "oral culture" may have far-reaching intellectual consequences. In the last half-century, many media theorists have argued that due to society's dependence on communication for its very survival, media shape society in their own image.¹⁹ Relying on a given medium (or a complex of media) for the propagation of significant information encourages communities to favor behavior and beliefs compatible with the character and use of that medium (or that complex). Applying this theory, proponents of orality claim to have found the essential qualities of sound and the spoken word reflected in the social practices and values of their "oral cultures," thereby making that concept sociologically as well as technologically significant.²⁰ If, however, their identification of the media base of these societies turns out to have been inappropriately limited, many of their sociological conclusions premised on that identification must be doubted. If not totally wrong, these conclusions are, at the very least, too ambitious.

[1.10] As yet, the growth of academic interest in the use and cultural implications of different media has had relatively little impact on legal scholarship in general, and on Anglo-American legal writing in particular.²¹ The disciplinary disinterest may be partly due to the fact that the legal profession has only begun to be seriously affected by new aural and visual technologies. Indeed, while society as a whole has started to lose interest in writing, lawyers have seemingly become more insistent upon it, and have taken to stuffing libraries, registrars’ offices, and their own filing cabinets with written records at an unprecedented rate. Still actually and metaphorically bent over their writing desks, they have given little thought to the legal applications and implications of alternative media either in their own society or in others.

[1.11] The specific indifference of Anglo-American legal academics may additionally be a by-product of cultural heritage. Having officially rejected the Catholic Church in favor of Protestantism, Anglo-American culture from the sixteenth century onwards pointedly suppressed the institution that most successfully employed and defended nonwritten media in a world otherwise dominated by writing. In this context, Anglo-American scholars have found it easy to be oblivious to those media. Of course, under the pressure of print, the cultural significance of speech, gesture, and other traditional forms of expression eventually declined even in Catholicism’s Continental stronghold. The greater acceptance and prosperity that the Catholic faith enjoyed on the Continent nonetheless managed to keep those forms more in the public eye there, thus preserving them as fit subjects for scholarly scrutiny. Once modern technological changes revived their prominence and popularity, they were relatively more accessible to academic investigation.²²

[1.12] Lately there have been signs that our days of disregarding the relationship between law and modes of communication may be coming to an end. In 1979, Michael Clanchy published From Memory to Written Record: England 1066-1307,²³ book that documented the gradual rise of writing as the dominant medium of English law and administration between the eleventh and fourteenth centuries. In The Electronic Media and the Transformation of Law, a much grander work published in 1989, M. Ethan Katsh attempted to chronicle and assess the historical impact of speech, script, print, and electronic media on the concept of legal precedent, styles of dispute resolution, the doctrine of copyright, the development of the legal profession, and the idea of individual rights in a variety of different contemporary and historical societies.²⁴

[1.13] For all their interesting and important insights, both books have significant limitations. Both Clanchy and Katsh apparently subscribe to the superceded argument that societies which have little or no experience with writing are fundamentally oral. They consequently conceive of most preliterate and marginally literate law as living in speech. Ironically, the younger of the two, Katsh, is more thorough-going in these respects. He dismisses nonverbal varieties of what he terms "preliterate" expression in four pages dealing with ritual and ceremony.²⁵ This intellectual move does him considerable damage, given his desire to relate the legal practices and values of different societies to the characteristics of their media.²⁶ As a result of confining his sensory focus, his conclusions concerning the nature and structure of law in preliterate and marginally literate cultures are at worst compromised, and at best cheapened. In describing the early forms of English legal and political communication that writing initially supplemented and eventually displaced, Clanchy takes nonverbal media more seriously, but he nonetheless gives them minor billing. Neither author draws on the growing corpus of anthropological and historical literature analyzing the vital communicative roles of gesture, touch, smell, and taste in preliterate and marginally literate societies.²⁷

[1.14] Because neither Clanchy nor Katsh pays much attention to the role of nonverbal communication in preliterate and marginally literate culture and law, neither seriously considers how or why different media may be employed simultaneously to deliver complementary parts of the same message. Katsh in particular seems not to have recognized that in societies having little or no experience with writing, different expressive forms routinely appear and work together. Far from operating in splendid isolation, speech functions in a sensory environment where oral, visual, and other media constantly supplement, modify, reinforce, and sometimes even purposefully contradict one another.²⁸ Applied to preliterate and marginally literate law, this observation suggests that more attention should be paid to how, why, and with what effect the various aural, visual, and other sensory elements of a legal message combine to create an overall impression.

[1.15] In this Article, I offer the concept of "performance culture" as a vehicle for remedying these rather basic deficiencies in the legal literature. At one level, "performance culture" is just another name for "oral culture." Both terms refer to societies having either no experience with writing, or so little experience with that medium that their preliterate expressive and intellectual habits persist essentially unchanged. Among these societies I count pre-Hellenistic Greece (to the middle of the fourth century B.C.),²⁹ biblical Israel, early and middle republican Rome (to the first century B.C.), early medieval Europe (to the end of the thirteenth century A.D.), and surviving indigenous communities in Africa, South America, Asia, and the Pacific.³⁰ At a deeper level, however, the term "performance culture" represents a radically different conception of preliterate and marginally literate communication. First, the general reference to "performance" in this context reflects the fact that in preliterate and marginally literate societies, significant information is delivered through many media and not just orally. Individuals in these societies are "performers" in the sense of being culturally fluent in speech, gesture, touch, smell, and taste. Second, the distinctly theatric connotation of "performance" makes it especially suited to the preliterate and marginally literate practice of employing several media at the same time in the same significant message. For both these reasons, as well as others, the phenomenon of "performance" has become the focus of much attention in the anthropological literature,³¹ and using this word to replace "oral" as a broad cultural characterization seems only appropriate.

[1.16] Such a reconception of how members of a particular group of societies communicate requires a reassessment of their forms of legal expression. Like all other types of meaning in performance cultures, law and legal understandings are conveyed not only orally, but also in gesture, touch, scent, and flavor. They are not only heard, but seen, felt, smelled, and tasted. The nature of some of the media used to carry legal messages in performance-based societies may seem quaint and even bizarre to us, but unlike ourselves, members of these cultures take all media seriously, and therefore do not hesitate to use all available media forms to communicate serious legal information. Frequently used in combination, these forms serve the same functions, and thus deserve the same respect, as the lengthy documents that often replace them in our society.

[1.17] In order to provide the reader with direct evidence for these contentions and a proper context in which to set them, I will devote part II of this Article to considering how members of different performance cultures use or have used each of the basic sensory media to communicate general and legal meaning. First, I will review the significance and sorts of aural communication in a variety of performance cultures, and investigate how law is aurally expressed in those environments. This portion of the Article will necessarily draw on work already done by disciples of "orality," although I will highlight aural forms of communication and legal expression that frequently are overlooked. I will then turn to conceptions and forms of performative visual communication, and will consider the varieties of visual legal expression in performance-based societies. A brief examination of the significance of tactile communication in performance cultures will follow, leading to a survey of tactile modes of conveying legal information. From that point, I will investigate methods of performative communication that use the savory senses of smell and taste, and will analyze how those media are put to legal purposes. In part III, I will discuss how and why members of performance cultures "perform," that is, combine various media in single messages, and will describe how and why they use the same communicative strategy in legal expression. In that part, I will also consider how information may be distributed among the different sensory components of performance and will assess what that distribution means for our interpretation of performative culture and law. The conclusion will put all this material in perspective, and for the purpose of introducing the reader to the subject of a future paper, it will offer a few preliminary hypotheses concerning the deeper implications of performance for the cultural practices and legal values of the societies it dominates.

[1.18] While following this discussion, the reader should bear in mind five points - two methodological and three substantive. First, this Article is only an impressionistic survey of forms of communication and legal expression found in performance cultures. Because of the uneven nature of the available source material, parts of this survey are necessarily less elaborate than others. Far from providing answers, existing general and legal literature frequently fails to pose the questions that must be asked before more detail can be added. In the meantime, I ask the reader to pardon any lacunae in the text.

[1.19] Second, despite my analytic separation of modes of general expression from modes of legal expression, I do not mean to suggest the existence of some great divide between culture and law. On the contrary, I believe that law is very much embedded in culture. This is especially true in performance-based societies where law largely lacks the refuge of writing, which can fix it physically, isolate it intellectually, and hence shelter it from general cultural currents. Separating culture from law is nonetheless a convenient stylistic device that allows me to associate and analogize cultural and legal practices while highlighting the latter for a reading audience composed of legal scholars and specialists.

[1.20] Third - turning to substantive as opposed to methodological matters - nothing I say in these pages is meant to suggest that all performance cultures are absolutely alike. Compared to other societies, their forms of communication and legal expression are sufficiently similar for them to be considered members of a single cultural group, but that does not make them identical in all respects. Specific performative communities are shaped not only by their common media, but also by particular geographic, historical, political, economic, and religious circumstances. Different performance cultures may even function in subtly different communicative environments. For example, early medieval Europe may be distinguished from most African performance cultures in that the former had a writing-oriented past, and in its present embraced a faith officially founded on God’s written word.³²

[1.21] Fourth, the reader must not mistake this Article’s association of particular forms of communication and legal expression with performance cultures for a claim that those forms are necessarily peculiar to those cultures and necessarily disappear with the spread of writing. Even when writing becomes a significant social force, traditional expressive forms persist. Judging from the historical experiences of such emergent "writing cultures" as Hellenistic Greece, Imperial Rome, and late medieval Europe,³³ the initial popularization of writing decreases the extent of social and legal dependence on nonwritten media and in the process renders them less powerful and less dispositive.³⁴ Many people nonetheless continue to use those media to considerable social and legal effect.³⁵ This is especially true of individuals belonging to marginalized social and gender groups (usually the poor and women) that have little or no educational access to writing. In the short term, the popularization of writing may even favor the elaboration of certain nonwritten forms of expression with which writing, as a medium, is broadly compatible (that is, two-dimensional painting and drawing, as opposed to three-dimensional sculpture).³⁶

[1.22] Fifth, finally, and in a related vein, the reader must remember that for all its attention to the practices of societies with little or no experience with writing, this Article is in some sense also about ourselves. As I stated at the beginning of this introduction, we all speak, sing, gesture, and so on, even if - under the influence of writing, as that influence has been extended and amplified by print technology³⁷ - we generally refrain from using those media to convey primary cultural information (including, almost by definition, most of our legal meanings). Moreover, we are living at a time when writing is rapidly losing its social and ideological hegemony. As it gradually gives way to such audio-visual media as television and computers,³⁸ our preferred styles of communication and legal expression will increasingly come to match the sensory capacities and prejudices of these new technologies. Perhaps by gaining a greater appreciation of communication and legal expression in cultures not dominated by writing, we may indirectly familiarize ourselves with (and prepare ourselves for) some of the forms that learning and law are likely to take once our own "age of writing" has passed.

efore surveying the various types of communication and legal expression used in performance cultures, we must address, if not resolve, an evidentiary problem. Where exactly do we look for information on performative communication and legal expression, or for that matter, for any other information on performance cultures? Very few performance cultures survive in the modern world; the contemporary base of our cultural sample is thus profoundly limited. A greater number of performance cultures existed in the late nineteenth and early twentieth centuries, but the Western ethnographers and anthropologists of that age were not much interested in communication. When they did show an interest, bias, prejudice, and unscientific methodology often compromised their research. The historical record of past performance cultures is more problematic still. Much of what we know of them is a function of what some of their members chose to write down or draw. Unhappily, many aspects of performative experience escape or resist transcription and even depiction. Notwithstanding the best of intentions on the part of early record-keepers, much sensory information from these societies must have been lost.³⁹

[2.2] Abandoning our investigations in the face of such difficulties would nonetheless be both premature and unfortunate. In recent years, unprecedented effort has been expended on studying the performance cultures that remain. For all its problems, the anthropological and ethnographical research of the late nineteenth and early twentieth centuries yielded a significant amount of information on communication and legal expression in performance-based societies that is consistent with more recent and more overtly scientific findings. Finally, the rudimentary graphic record of past performance cultures, regarded critically in light of what we know of performative habits from other sources, offers invaluable insights into performative life-, thought- and law-ways. Recognizing the potential impact of drawing and especially writing on the contents of the record, we might consider that record with particular care, but it would be tragic to throw the performative baby out with its bathwater.

A. Aural Communication and Legal Expression

   1. The Cultural Significance of Sound

[2.3] Performance cultures are invariably societies of sound. To this limited extent, their frequent characterization as "oral" cultures is undeniably accurate. Outsiders from a writing culture might consider them noisy or loud,⁴⁰ but this somewhat pejorative assessment fails to take account of the fundamentality of aural communication for groups that have little or no access to writing. This fundamentality is reflected in many performative metaphors of knowing and understanding. Whereas a member of our visually oriented writing society might acknowledge a point with the expression "I see," members of a significant number of performance cultures use aural idioms. When Aivilik Eskimos seek information, they say to others or to themselves, "let's hear."⁴¹ The African Basotho consider "I hear" to be equivalent to "I understand,"⁴² as do the Suya Indians of central Brazil.⁴³ Among the Ommura people of New Guinea, the verb iero likewise means both "to hear" and "to know."⁴⁴ The word that the pre-classical Greek philosopher and scientist Heraclitus used to mean "know" (ksuniemi) originally meant "to know by hearing."⁴⁵ In the early fourth century B.C., Plato still equated individuals who knew much with individuals who heard much.⁴⁶ Sound and hearing may even be metaphorical measures of wisdom: in ancient Norse mythology, the guardian of heaven, Heimdallr, was so wise "that he could hear the wool grow on the sheep and the grass grow in the fields."⁴⁷ Conversely, members of performance cultures tend to identify idiocy with lack of hearing. Among one group of Australian aborigines, the word for "deaf" (woadetra) also means "stupid"; in another group, the foolish individual (wallukuta) literally has his "ear closed."⁴⁸

[2.4] In addition to shaping its language, sound can also shape the very size of a performative community. The first "sound barrier" in human history was the geographic point at which individuals lost aural contact with one another or with a central authority. Still fearing the social and practical consequences of breaking this barrier in the early fourth century B.C., Aristotle argued against having too many people in a city: "Who will be their crier unless he has the voice of a Stentor?"⁴⁹ In the Middle Ages, few villages were larger than the range of the crier's voice. Larger towns (perhaps recognizing Aristotle's problem) were subdivided into smaller, more aurally manageable wards.⁵⁰ The territorial sweep of Christian parishes was similarly delimited by the range of their churchbells.⁵¹

[2.5] As a medium, sound can of course take several forms. Most obviously, it exists as speech. In a performance culture, speech has far greater power and authority than it usually has in a writing culture. It is commonly regarded as a force capable of both creating and destroying. Heeding the words of Genesis, the ancient Hebrews believed that God made the universe by speaking ("And God said 'Let there be light,' and there was light. . . .").⁵² On the other hand, members of a variety of performative societies in contemporary Africa avoid using certain words in certain ways lest they do material harm to other persons or things.⁵³

[2.6] Members of performance cultures additionally respect speech because it carries their society's most cherished truths. Performative wisemen are primarily talkers, not writers. Socrates, one of the last Greek sages to live in a performative environment, never wrote down any of his thoughts. This was not due to carelessness or lack of rigor; it was merely reasonable behavior for an individual who had grown up in a society where speech was the common coin of intellect. Only after Socrates' death did writing begin to make serious intellectual headway in Greek culture, with the result that Plato, Socrates' disciple, decided to record his own thoughts in written form. These writings nonetheless took the form of "dialogues" which, when read aloud according to prevailing literary practice,⁵⁴ pointedly recalled the central dynamic of performative aurality.

[2.7] The social and intellectual prominence of speech among populations with little or no experience with writing inevitably gives great prestige and power to good speakers. Judging from the Odyssey, the Homeric Greeks regarded fine speakers as divinely blessed:

For one man is feebler than another in presence, yet the god crowns his words with beauty, and men behold him and rejoice, and his speech runs surely on his way with a sweet modesty, and he shines forth among the gathering of his people, and as he passes through the town men gaze on him as a god.⁵⁵

African Limba culture likewise assesses people according to their ability to "speak well."⁵⁶ Some performative societies even name themselves in terms of their speech-skills. For instance, the name of the African Anang people actually means "ability to speak wittily yet meaningfully on any occasion."⁵⁷

[2.8] The inherent aurality of speech encourages members of performance cultures to organize language in ways that are pleasing to the ear. One reason why poetry is a leading type of performative expression is that, with the assistance of rhythm and meter, it sounds better then prose.⁵⁸ In this context, it is no accident that the greatest literary works of pre-Hellenistic Greece, Anglo-Saxon England, and early medieval Europe (the Iliad, Beowulf, and the Song of Roland) were, in their original forms, all poems. Within poetry, and even at times within the confines of everyday performative speech, additional aural devices such as alliteration and assonance may be used to highlight similar consonant or vowel sounds by placing certain words in sequence. This passage from Beowulf is a nice example of alliteration:

Straet waes, stig wisode
gumum aetgaedere. Gudbyrne scan
heard, hondlocen, hringiren scir
song in searwum.⁵⁹

The impact of these words is largely lost if they are silently read instead of spoken, that is, if language is considered a matter of sight rather than sound. It is therefore not surprising that the use of these techniques and even the social significance of poetry itself should decline in writing cultures.

[2.9] In addition to speech, sound can also take the form of music. Music is ubiquitous in most performance cultures. Of course, the line between speech and music is hardly sharp: song shares characteristics of both. The great epics of our own performative past appear to have been sung, or at least chanted. Homer's word for "poet" was notably aoidos, or "singer."⁶⁰ Frequently, poems were presented with instrumental accompaniment. One thus envisions the Greek kitharode with a lyre, and the Anglo-Saxon scop with a harp. Among the indigenous peoples of Africa, the presentation of epic poetry remains as much a musical as a linguistic event: a performance may involve singing, humming, strumming strings, shaking rattles, beating drums, or ringing bells and gongs.⁶¹

[2.10] In performance cultures, however, music has other roles that are much less obvious to members of writing societies who tend to think of it as mere entertainment. The ancient Greeks, for instance, gave music a central place in schooling. The leader of the early Greek classroom was not a "lecturer," but a "harpist," reflecting the importance of music in transmitting the epics that carried Greek knowledge and tradition from generation to generation.⁶² In the early fourth century B.C., Plato could still assert that the well-educated man was "one sufficiently trained in choral performances" so that he could "sing and dance in a fine way."⁶³ Members of performative societies in contemporary Africa consider music a necessary foundation for most meaningful social action. Thus,

[I]n the Republic of Benin there are special songs sung when a child cuts its first teeth; among the Hausas of Nigeria, young people pay musicians to compose songs to help them court lovers or insult rivals; men working in a field may consider it essential to appoint some of their number to work by making music instead of putting their hands to the hoe; among the Hutus, men paddling a canoe will sing a different song depending on whether they are going with or against the current.⁶⁴

In this context, music's aurality makes it an integral part of life, as opposed to a special cultural event.

[2.11] Finally, members of performance cultures aurally communicate with one another by miscellaneous sounds. Members of modern writing cultures frequently experience such sounds as grating intrusions appropriate only in emergencies (one thinks of the honking of a horn or the blaring of a siren). They are almost never employed in regular communication. In performance cultures, however, sounds are the very stuff of life, pregnant with emphasis and important meanings. Sounds effectively attract attention and frequently can carry further than speech or song. In north African Siwan society, for instance, the air may be filled with the ritual wailing of bereaved relatives. This is not an immature "noise," an aural nuisance, or an inconvenience.⁶⁵ It is, instead, a useful manner of communicating a death over a wide geographic area.⁶⁶ Through the Middle Ages, church bells played an analogously public role, summoning the faithful to Mass, warning local populations of raids and dangers, and otherwise tolling the hours. In an aurally sophisticated environment, everyone knew that different peals had different meanings.⁶⁷ Loud noises - such as the striking of drums or the explosion of firecrackers - still mark and communicate important life transitions among certain African and Far Eastern societies that have not been completely overtaken by writing.⁶⁸ The sounds serve as aural exclamation marks for communities that continue to live by and through their ears.⁶⁹

   2. The Sound of Law

[2.12] Even in the midst of a writing culture, Anglo-American law has retained a significant measure of actual and metaphorical aurality.⁷⁰ This is especially evident in criminal procedure. In both England and America, the accused is due a "hearing"; lawyers for the defense and for the prosecution call orally sworn witnesses who, under oral questioning, offer oral testimony. Jurors are required to listen to that testimony, to oral arguments, and to the eventual instructions from the judge. In a few jurisdictions,⁷¹ jurors are not even permitted to take notes of what they hear. After deliberation, they return to declare their verdict orally. The court, after hearing further oral submissions, literally "pronounces" sentence.

[2.13] The aurality that survives in Anglo-American law is nonetheless rigidly confined by rules and regulations that more accurately reflect the plight of sound in our society. In court, for instance, the "ear-witness" is anathema; there are strict rules against hearsay, or reporting what one has heard as opposed to what one has seen. Oral evidence is often inadmissible in the face of an adequate written instrument. In American civil cases, judicial opinions are not delivered orally, but instead are published in accordance with statutes. Out of court, oral conveyances of significant interests in land are expressly forbidden, as are virtually all oral wills. In these latter contexts especially, Anglo-American law and lawyers are inclined to associate aural communication with fraud, carelessness, and lack of legal sophistication.

[2.14] These circumstances and attitudes stand in stark contrast to those prevailing in performance cultures, where law is aural not because of tradition or ignorance, but because of necessity.⁷² For instance, in the absence of writing, or in a context where writing is still a marginal social talent, it is either impossible or inconvenient for the parties to a contract to agree to anything "on paper." If language is to be employed at all, promisor and promissee must orally set the terms of their agreement in the presence of listening witnesses. Thus, in Rome at the time of the Twelve Tables (fifth century B.C.), parties routinely bound themselves by an oral question-and-answer process called stipulatio. A creditor might ask a debtor: "Sestertium decem milia mihi dari spondesne?" ("Do you promise to give me ten thousand sesterces?"). The debtor would reply: "Spondeo" ("I promise").⁷³ Among the African Basotho people, similar oral agreements are actually called "soundings."⁷⁴

[2.15] Oral communication is also prominent in performative conveyances. In tenth century England, a grantor wishing to transfer land would have made a speech like the following to his grantee and to witnesses: "I the priest Athelnoth, grant the estate at Basing with all the lands King Edmund has given me, to the New Minster at Winchester for the benefit of my soul, with the right of giving it to strangers and kinsmen with all the freedom which King Edmund has given me."⁷⁵ A written charter might capture what was said (as appears to have been the case here), but in early medieval conveyancing law, the saying mattered more than the writing. Indeed, land charters in early medieval England were considered as either records of sayings or (less frequently) scripts for sayings: their contents were intended to be both seen and heard, to the point where scribes concluded many charters with valete ("goodbye"), "as if the donor had just finished speaking with his audience."⁷⁶

[2.16] A man contemplating death in a performance culture likewise does not write or sign his will; instead, he speaks his testamentary wishes to individuals gathered around him (see Figure 1). In the early Roman Republic, wills were pronounced before the Comitia Curiata (testamentum calatis comitiis), before the army arrayed for battle (testamentum in procinctu), or before five special witnesses (testamentum per aes et libram).⁷⁷ The orality of early English wills⁷⁸ was sometimes reflected in testators' very words. The conclusion of one Anglo-Saxon will, embodied in writing for convenience, thus began: "Then I will that there be distributed for my soul, as I have now said to the friends to whom I spoke . . . ."⁷⁹ Another Anglo-Saxon document implied an oral delivery by its casual reference to a bystander: "Here sits Leofeld, my kinswoman, [to] whom I grant both my land and my gold . . . and all that I own, after my day."⁸⁰ Thanks to the form of the words, we can also "hear" this eleventh century will spoken from a deathbed and afterwards recorded in the Domesday Book: "Hark, my friends. I will that my wife shall hold this land which I bought from the Church as long as she lives, and after her death let the Church from which I had it take it. And should anyone encroach on this land let him be excommunicated."⁸¹ Down to the thirteenth century, it remained commonplace for an Englishman to make his will "with his mouth" in this fashion.⁸²

[2.17] The edicts or rules that are the more general laws of a performative community are similarly publicized and perpetuated by speech. They are, as they are still literally called in Yup'ik Eskimo culture, "oral teachings."⁸³ They may be transmitted informally, from generation to generation, or alternatively they may be formally proclaimed to the people at large. During the Republic and even in the days of the Empire, Roman heralds read statutes and decrees aloud.⁸⁴ Anglo-Saxon kings dictated their dooms in solemn witans (assemblies).⁸⁵ According to a mid-thirteenth century manuscript of the Icelandic Konungsbók, "lawspeakers" appearing before the general assembly were required to recite "all the sections of the law over three summers and the assembly procedure every summer."⁸⁶ In thirteenth century England, Henry III ordered his decrees "to be proclaimed as law by the voice of a crier," a strategy that was certainly effective in growing urban centers such as London, although it may have been less practical in rural areas.⁸⁷ Among the Nigerian Yoruba people, new legislation was traditionally announced by a town crier who was instructed to "go to every corner of the town, proclaiming and declaring the same in the hearing of the public."⁸⁸ The significance of law's oral proclamation tends to be recognized even in those performance cultures possessing rudimentary written laws. Thus, in early medieval Europe, "what mattered in the promulgation and enforcement of law remained the [oral] word, whether of the king, his wise men, the judges or the local legal experts."⁸⁹

[2.18] When performative laws are broken or legal rights are asserted, speech takes on new meaning and significance. Individuals charged with an offense or legal wrong are not served with written process, but are summoned orally. In early medieval England, oral summons were frequently delivered "by the crier's voice."⁹⁰ In the early Republic, Roman defendants were summoned by the voice of the complainant himself, a practice reflected in the famous opening formula of the Twelve Tables: "If a man calls another to law, he shall go."⁹¹ Complainants similarly spoke out in early medieval Iceland, where the word for a "legal claim" (mál) notably also meant "speech."⁹² The dangers associated with summoning defendants in this direct manner are evidenced by this excerpt from the Icelandic Ljósvetninga Saga:

The winter passed uneventfully. In the spring the Norwegian went to collect the payment on his wares, but Solmund gave a curt response. He said the goods were rotted and that he wouldn't pay. The Norwegian went home, and a short time later he went together with Forni and Arnor to summon Solmund. . . . The three brothers listened for a while from their fortified house. Solmund said it was clear that they shouldn't put up with this sort of thing. Soxolf then jumped into action, seized his spear, and hurled it at the Norwegian; it killed him on the spot.⁹³

It was somewhat safer to make an oral complaint before a communal assembly. Njal's Saga provides an Icelandic instance of such a public declaration:

I give lawful notice against Flosi Thordarson . . . in that he did inflict on Helgi, son of Njal, an internal wound or a brain wound or a marrow wound which did cause Helgi's death. I demand that he be made an outlaw. . . I give [lawful] notice to the Quarter Thing which has lawful jurisdiction over this matter. I give lawful notice. I give notice in the hearing of all at the Law Rock.⁹⁴

[2.19] When individuals from performance cultures commence formal litigation to resolve a dispute, they submit no briefs and file no motions. Instead, they speak, argue, and swear oral oaths before judges, mediators, or other authorities who ask oral questions of them and of their witnesses. If written evidence for or against a claim exists, that evidence tends to be suspect (largely due to the great danger of fraud and forgery in what is, at best, a marginally literate society) and may have to be supported by oral testimony, as often occurred in early medieval England.⁹⁵ Writings moreover tend to be read aloud in performative legal proceedings, not merely for the convenience of the many illiterates who may be present, but also for the convenience of literates still living in an aurally oriented society.⁹ Greek orators were known to demand the public reading of particular decrees from inscribed stelai.⁹⁷ A defendant in a 1219 warranty of charter case from Lincolnshire similarly claimed a hearing of his father's charter, which appears to have been produced and publicly read.⁹⁸

[2.20] Performative disputes are quite literally talked out. In the language of the African Limba people, the word for "law case" (hugbonkila ha) also means a "speaking."⁹⁹ Cases are orally decided. Voices rather than writings make the law. The case record does not exist on any paper, but in the aural memories of those present. If a case is appealed or doubted, the case record must be presented orally by persons who heard the case argued and resolved. In Archaic and Hellenic Greece, these individuals were formally called mnemones or "remembrancers."¹⁰⁰ Medieval Europe knew of no such officials, but one medieval authority advised the would-be suitor to collect his friends in court, and "to pray them to be attentive to the words which are spoken in the pleadings; to hear well and to recollect well, in order that they may be able to record the plea when need shall require."¹⁰¹

[2.21] The aurality of performative law is reflected not only in the many occasions when law is spoken, but also in the aurally appealing structures employed in law-speaking. For instance, early German and Anglo-Saxon legal language was strongly rhythmic and metrical, reflecting its audience's love of alliteration and assonance. Consider (or, better still, recite) this Anglo-Saxon oath of fealty, which preserves its aural characteristics even in translation:

By the lord, before whom this relic is holy, I will be to N. faithful and true, and love all that he loves, and shun all that he shuns, according to God's law, and according to the world's principles, and never, by will nor by force, by word nor by work, do aught of what is loathful to him.¹⁰²

The same aural patterns appear in this Anglo-Saxon witness' oath: "In the name of Almighty God, as I here for N. in true witness stand, unbidden and unbought, so I with my eyes over-saw, and with my ears overheard, that which I with him say."¹⁰³ In ancient Ireland, legal expression could even assume an overtly poetic form, as evidenced by this heavily alliterative seventh century composition:

Ma be ri rofessor		If thou be a king thou shouldst know
recht flatho		the prerogative of a ruler,
fothuth iar miad,		refection according to rank,
mesbada slog		contentions of hostings,
sabaid cuirmthige		sticks (quarrels) in an ale-house
cuir mescae		contracts made in drunkenness
mess tire,		valuation of lands,
tomus forrag,		measurement by poles;
forberta diri,		augmentations of a penalty,
dithle mesraid;		larceny of tree-fruit;
mormain mrugrechto:		the great substance of land-law:
mrogad coicrich,		marking out fresh boundaries,
cor culane,		planting of stakes,
corus rinde,		the law as to points [of stakes],
rann eter comorbu,		partition among co-heirs,
comaithig do garmaim,		summoning of neighbors,
gaill comlainn,		stone pillars of contest
caithigthi astado. . . .		fighters who fasten title. . . .104

[2.22] Reflecting the communicative characteristics of its cultural environment, performative law occasionally finds aural expression in music and song as well as speech. Music, for instance, may mark the beginning or ending of a legal procedure. In Africa, extended drumming may announce a legal complaint or the opening and closing of indigenous courts.¹⁰⁵ Song may even play a part in litigation. Among the Mbala people of the Congo, opponents intersperse their speeches with snatches of allegorical singing in which their supporters join by voice and drum. This is an excerpt from one case:

1st Party (speaking): I was in my house and would have liked to stay. But he has come and wants to discuss the matter in public. So I have left my house and that is why you see me here.
(singing): I am like a cricket. I would like to sing, but the wall of earth that surrounds me prevents me. Someone has forced me to come out of my hole, so I will sing.
(speaking): Let us debate the things, slowly, otherwise we will have to go before the [writing-oriented] tribunal of the white people. You have forced me to come. When the sun has set, we shall still be here debating.
(singing): I am like the dog that stays before the door until he gets a bone.
2nd Party (speaking): Nobody goes both ways at the same time. You have told this and that. One of the two must be wrong. That is why I am attacking you.
(singing): A thief speaks with another thief. It is because you are bad that I attack you.¹⁰⁶

Lest this practice be regarded as unduly alien and far-fetched, the reader might consider that in the thirteenth century - reflecting, perhaps, an even earlier tradition - English legal representatives were described by the French term, conteurs, the same word used to describe early medieval minstrels, or "singers of tales."¹⁰⁷ If not actually sung, legal pleadings of this period may still have been chanted in a formalized tonal variant of ordinary speech that would have emphasized their significance by associating them with the musical-poetic foundations of the cultural corpus.

[2.23] In some performance cultures with simple law codes, music may also be employed to announce or teach the written law to a population that is generally illiterate. Not only can music make law pleasing to the ear, but it also can provide a melodic framework within which legal content may be readily recalled. Some evidence indicates that the laws of Charondas, the Greek Ionian lawgiver, were sung.¹⁰⁸ In this context, it may be no coincidence that the classical Greek word for statute law, nomos, could also mean "tune."¹⁰⁹ In his Problems, Aristotle actually speculated that the single term carried both meanings "because before men could write, they sang their laws to avoid forgetting them, as they still do among the Agathyrsi."¹¹⁰ As late as the first century B.C., Cicero referred to the Twelve Tables that every school child memorized as a carmen necessarium, literally a "necessary song."¹¹¹

[2.24] Legal meaning in performance cultures may even reside in the miscellaneous sounds mentioned earlier.¹¹² For instance, sounds as well as speech can summon people to court. In early medieval London, the ringing of a bell served this purpose. If someone claimed not to have been summoned, it was said that "the beadle has no other witness, nor ought to have, than the great bell which is rung for the folkmoot at St. Paul's."¹¹³ Members of performance cultures may alternatively or additionally use a sharp, loud, or piercing noise to announce legal transfers or transitions. In traditional Roman law, both the mancipatio conveyance ceremony and the testementum per aes et libram (which was merely its testamentary variant) required that a set of scales be struck with a piece of bronze.¹¹⁴ Early medieval contracts were often made by the buyer slapping the palm of the seller, an action that seems to have been calculated for aural as much as physical effect.¹¹⁵ In central Africa, a death sentence may be pronounced by a stroke on the royal drum.¹¹⁶ In another part of Africa, land transfers in the mid-twentieth century required the discharge of three gunshots over the property conveyed.¹¹⁷ In this last instance, modern technology obviously provided the gun, but cultural aurality encouraged making the noise.¹¹⁸

B. Visual Communication and Legal Expression

   1. The Cultural Significance of Sight

[2.25] Almost from the moment we are born into a writing culture, we are trained to be visually oriented.¹¹⁹ Our education is almost entirely dedicated to teaching us how to understand and to communicate visually through reading and writing. In such an environment, our basic thoughts and values quickly come to be expressed in visual terms and metaphors. We have already encountered the ubiquitous modern expression "I see." To this might be added "seeing is believing," "I know it when I see it," and "what you see is what you get."¹²⁰ Our opinion frequently is our "point of view." We conceive of knowledge as "enlightenment." We call intelligent people "bright" and deride the not-so-bright as "dimwits."¹²¹

[2.26] In preliterate or marginally literate societies, this obsession with the visual dimension of experience is absent. In the African Hausa language, for instance, the verb "to see" (gani) is virtually never used to communicate understanding.¹²² In a cultural environment that is not dependent upon reading and writing, the sensory focus is elsewhere. As the Hausa proverb says, "seeing is not eating."¹²³ Some performance cultures are even suspicious of vision. In Suya Indian society, the eye is "the locus of the dangerous and anti-social,"¹²⁴ and persons of extraordinary vision are feared as witches.¹²⁵ Perhaps it is because of this somewhat negative attitude to seeing that so many wise or knowing men are depicted in performative myth and tradition as being or becoming blind.¹²⁶ In early Greek culture, Homer, Oedipus, and the prophet Tireseus were all reputed either to have been blind from birth or to have lost their sight at a moment of personal truth.¹²⁷ In Norse mythology, Odin likewise gave up his left eye in exchange for wisdom.¹²⁸

[2.27] Performative visual expression differs from visual expression in writing cultures not only in having less stature, but also in having different form. First, most performative visual expression is nontextual. Little if any information is communicated through the visual depiction of words. Second, visual information in performance cultures tends to be three-dimensional and kinetic rather than two-dimensional and static; the use of writing has not yet accustomed performative individuals to expressing themselves on immobile, flat surfaces.¹²⁹

[2.28] The most common type of three-dimensional kinetic visual expression in any performance culture is gesture - expressive movements of the whole body, the head, the limbs, or the hand. Gestures may be both natural (instinctive) and conventional (cultural). In both forms, they can communicate many emotions and experiences. Stretching out the arms may express welcome; kneeling may express submission; offering or giving a gift may express friendship. Linking a number of gestures in series creates ceremony. Accelerating their rate of execution creates dance.

[2.29] Obviously, gestures are not alien to writing cultures. Members of writing cultures are nonetheless likely to demean them as not being carriers of serious information, and individuals in such societies may even constrain their use in conversation. In this context, it is clear that the predominant "visualism" of writing cultures, as a byproduct of writing, does not favor all visual media equally. The sixteenth century Protestant assault on liturgical gesture is too well known to need recounting here.¹³⁰ In mid-eighteenth century England, Samuel Johnson's aversion to gesticulating in company was so strong that when one of his interlocutors (presumably someone less writing-oriented than the famous lexicographer) sought to "giv[e] additional force to what he uttered, by expressive movements of his hands, Johnson fairly seized them, and held them down."¹³¹ By 1878, the anthropologist E.B. Tylor felt able to suggest (albeit in a somewhat jingoistic tone) that:

We English are perhaps poorer in the gesture-language than any other people in the world. We use a form of words to denote what a gesture . . . would express. Perhaps it is because we read and write so much, and have come to think and talk as we should write, and so let fall those aids to speech which cannot be carried into the written language.¹³²

[2.30] In performance cultures, by contrast, gestures literally occupy center stage. Western scholars observing native poets in Niger and other areas of Africa have noted the frequent use of gestures in the recitation of traditional tales and songs.¹³³ Their photographs reveal that these gestures are hardly incidental or subtle visual asides:¹³⁴ African storytellers actually stand up, move around, and sometimes even mime their narratives.¹³⁵ Gestures play a similarly striking role in everyday conversation. Thus, a French anthropologist has noted that among the west African Bambara people,

while a man talks, his hands react like antennae trying to direct the speech or to encircle it to put it where it is necessary . . . . They follow closely the intonations of the voice, the affirmation, the interrogation, and the exclamations. Defenses and desires pass through them, as if the verb becomes more efficacious when carried by the ends of the fingers.¹³⁶

[2.31] The prominence that gesture enjoys in African performance cultures is reminiscent of its historical role in several preliterate and marginally literate European societies. For instance, judging from the art and literature that has survived them, the preclassical Greeks were highly gestural. On one archaic Greek vase, a woman touches her head to express mourning; on another, an old man touches the chin of a warrior brandishing a sword and thereby pleads for his life.¹³⁷ In the Iliad, Homer's heroes routinely communicate their elite status to onlookers by taking long strides into battle. Thus, Ajax at one point rushes forward "with a smile on his grim face, and with his feet below he went with long strides, brandishing his far-shadowing lance." On another occasion, "the Trojans pressed forward together and Hector led them on with long strides."¹³⁸ In the same poem, the great god Zeus gives his assent to a supplicant's request not by words, but by the more powerful gesture of bowing his head: "For this among the immortal gods is the mightiest witness I can give, and nothing I do shall be vain nor revocable nor a thing unfulfilled when I bend my head in assent to it."¹³⁹

[2.32] Medieval civilization was similarly accustomed to gestural communication. As historian Jacques Le Goff has so eloquently and persuasively noted,

Gestures had meaning and committed people . . . . Signs of the cross were gestures of faith; joined hands, raised hands, hands outstretched in a cross, veiled hands were gestures of prayer. Beating one's breast was a gesture of penitence. The laying on of hands and signs of the cross were gestures of benediction. Censing was a gesture of exorcism. The ministration of sacraments culminated in a few gestures. The celebration of mass was a series of gestures. The pre-eminent literary genre of feudal society was the chanson de geste . . . .¹⁴⁰

Again, contemporary gestural practices were reflected in art. One of the most common subjects in medieval painting and illumination is the figure of Christ raising his hand, keeping the index and middle fingers straight and the ring and little fingers bent in a very precise sign of benediction.¹⁴¹ Other figures use their hands or arms to beckon, admonish, express resignation, or proclaim victory.¹⁴² Ultimately, such gestures "gave [medieval art] life, made it expressive, and gave it a sense of line and movement."¹⁴³

   2. The Sight of Law

[2.33] In keeping with its overall communicative environment, performative law has significant visual aspects, even if its visualism is not as all-embracing as that of law in our own writing culture. Performative law further reflects its cultural norms in preferring kinetic over static visual forms. In the absence or social insignificance of writing, its visual messages are primarily passed in gesture and ceremony. As the great English legal historian Frederic Maitland once commented, "So long as law is unwritten, it must be dramatized and acted. Justice must assume a picturesque garb or she will not be seen."¹⁴⁴ In our modern writing culture we have almost entirely "lost sight" of this kind of visual legal expression. One historian of gesture recently admitted, "We would scarcely imagine today that a simple gesture could possess legal power or could commit people more efficiently than a written form drawn up by a notary and signed by both parties."¹⁴⁵ We therefore need to be reminded of the legal role visual signs had (and have) in performance cultures, and how those signs appear to observers.

[2.34] In many performance cultures, visual signs communicate the creation of legal relationships. In ancient Mesopotamian law, for instance, a dying man wishing to designate an heir or legatee took that person by the hand.¹⁴⁶ Among the Dusun people of contemporary Borneo, a deathbed donor of property awards his legacy in a similar visual fashion.¹⁴⁷ In early medieval Europe, a vassal's placing of his folded hands within the hands of his lord was a visual sign of his submission to feudal authority (see Figure 2).¹⁴⁸ A medieval marriage routinely involved a joining of right hands. In thirteenth century France, a priest joined the hands of the bride and groom (see Figure 3).¹⁴⁹ In northern England and Scotland, the traditional "handfast" was between the groom and the father of the bride (for a depiction of an analogous legal gesture from early medieval Spain also implicating a transfer of land, see Figure 4).¹⁵⁰

[2.35] Many legal relationships are premised upon agreement; it is therefore not surprising that gestures signaling agreement should resemble those signaling relationship. In early medieval Welsh, English, French, and Spanish law, a handclasp indicated the making of a contract.¹⁵¹ Alternatively, early medieval Germans making an agreement could lay the palms of their hands together as they held them over their heads (presumably to maximize visibility).¹⁵² Saxon practice permitted a raising of the hands, with two or four fingers extended, without actual touching.¹⁵³ In some African societies, buyer and seller communicate agreement by "waving their right hands up and down and then touching each other's palms with the fingers stretched away."¹⁵⁴

[2.36] Performative agreements and contracts may also be communicated by visible delivery or acceptance of some (frequently personal) item in a pledge of alliance, agreement, or performance. Of course, a material cipher is not necessary if the object of a transaction is handy and can be passed and received. If that object is not handy, or if the agreement does not require or involve transfer of goods, the use of a suitable symbol may be convenient to visually mark the transaction. A Mesopotamian debtor could seal a loan agreement by publicly delivering his garment (or, according to some sources, the hem of his garment) to his creditor.¹⁵⁵ In the early Middle Ages, straws, gloves, arrows, and staffs were popular for similar purposes of pledge.¹⁵⁶ In southern France and Italy, the gift of "God's penny" - a small coin - was a popular medieval mark of accord between buyer and seller.¹⁵⁷ In Ghanian society, it is still important to transfer some material token to "stamp" or "seal" a bargain visually.¹⁵⁸ In African Shona law, a prospective groom must offer the family of the prospective bride a "proposal token" (traditionally a hoe, bracelet, or anklet); acceptance of this token communicates the family's agreement to the proposal.¹⁵⁹

[2.37] Members of performance cultures may conversely communicate the dissolution or destruction of legal relationships and accords by visual means. The Mesopotamian son who wished legally to disown his parents abandoned his garment at the entrance of his former home. The Mesopotamian father who wished to disown his son broke a clod of earth between his fingers.¹⁶⁰ A Mesopotamian slave owner seeking to free a slave smashed the slave's ceramic pot (presumably by dropping it on the floor or dashing it against a wall).¹⁶¹ Among the Salian Franks, an individual's legal abandonment of his family could be visually announced by breaking four staffs and throwing them to the four corners of his house.¹⁶² The late twelfth century chanson de geste known as Raoul de Cambrai describes a breaking of feudal homage in similarly visual terms: an estranged vassal took "three hairs from the ermine he ha[d] on, pulling them through the links of his burnished hauberk, and hurled them at Raoul."¹⁶³ An early thirteenth century text depicts essentially the same procedure in a story that describes a young knight denying his homage to God "by throwing straw with his hand."¹⁶⁴ Contemporary manuscripts routinely depicted the dissolution of a marriage as a physical, visual separation of husband and wife by a judge or bishop (see Figure 5). In traditional South African black communities, a husband who wishes to divorce his wife presents her with a small coin or other object which visually indicates his wish to have nothing more to do with her.¹⁶⁵

[2.38] In performance cultures, visual gestures, acts, and ceremonies also publicize legal claims to property, especially land. In ancient Jewish law, for example, a land-claimant had to perform a visible hazakah act, generally considered to be "locking, fencing . . . [or] effecting . . . an opening [in the property]."¹⁶⁶ In early Icelandic law, a land-claimant had to spend a day on the land from sunrise to sunset, walking around and lighting fires on the tract at prescribed distances.¹⁶⁷ In early medieval French law, the land-claimant had a variety of options. He could make a formal entrance onto the property on horseback or in a cart; he could make symbolic use of the land by cutting some turf and twigs from it; he could welcome guests to it; or he could sit down in a chair set upon it.¹⁶⁸ Early Irish law obliged a claimant to make three separate entries on disputed land: the first time with two horses and a witness; the second with four horses and two witnesses; and the third with eight horses and three witnesses. If no one objected to this high-visibility procedure, the claimant acquired ownership of the land. The claimant then had to demonstrate his right to the community at large by spending the night on the property, kindling a fire, and tending to animals.¹⁶⁹

[2.39] Property rights may also be visibly abandoned or terminated in performance cultures. An Anglo-Saxon landowner could legally quit his estate by jumping or climbing over a hedge.¹⁷⁰ A similar practice existed among the Salian Franks¹⁷¹ and may even have existed in ancient Mesopotamian jurisprudence.¹⁷² In medieval German law, the creditor of an insolvent debtor could signal the debtor's forthcoming eviction from his house or land by setting the debtor's stool or chair before the debtor's door.¹⁷³

[2.40] Performative gestures and visual actions can additionally communicate formal conveyances. In ancient Mesopotamian law, a vendor could transfer land to a purchaser by lifting his own foot off it and putting the purchaser's foot in his place¹⁷⁴ This physically demonstrated the cessation of the old owner's control over the property and the commencement of control by a new owner. The Old Testament tells us that in ancient Israel, a land transfer could be similarly communicated by the vendor passing a sandal to the purchaser, metaphorically giving the latter the right to walk over (to possess) the property.¹⁷⁵ Early Greek, Roman, German, and English law recognized handing over a clod of earth as a sign of conveyance.¹⁷⁶ Subtle variants of this gesture involved certain items either taken from the land (sticks, grass, or straw) or representing power over the land (an arrow or glove, see Figure 6).¹⁷⁷In one eleventh century French cartulary, gifts of land to a chapter house are recorded as having been made per baculum (a staff), per clochear de turribulo (a censer bell, which may additionally have been shaken and rung in the process of transfer), per cultellum (a knife), per candalabrum (a candlestick), per denarium (a penny), per furcam (a fork), and per malleolum (a hammer).¹⁷⁸ In the thirteenth century, Bracton recorded that in England, livery of seisin for a house "ought to be made by the door and its hasp and key."¹⁷⁹ In every one of these cases, it was contemplated that the object transferred would survive as a visual reminder of conveyance. Thus, an English chronicler writing circa 1100 noted that a cup given to Durham Cathedral on the occasion of a gift of land "is preserved in the church and retains the memory of that deed for ever."¹⁸⁰

[2.41] Besides communicating the fact of conveyance, visual gestures and acts may indicate to members of performance cultures the extent of property being conveyed. Boundaries can be pointed out to witnesses; larger properties may actually be perambulated. Both of these techniques appear to have been employed in early medieval European law, although there is some dispute as to their continued popularity once written charters regularly recorded elaborate land descriptions.¹⁸¹ The record of one eleventh century Norman conveyance nonetheless refers to the conveyed property as "three gardens in front of the same Monville, as was shown from the public road to the brook."¹⁸² Another charter indicates that the grantor of property "demonstrated the measurements and boundaries by showing [them] to Prior Geoffrey and Ernuceus the monk."¹⁸³ In Africa, conveyances may similarly include a visual demonstration of limits. Among the Kamba people, for instance, conveyancing involves pointing out boundaries, generally in the form of straight lines between such permanent or semi-permanent natural objects as large trees, stones, or ant hills.¹⁸⁴

[2.42] In performance cultures, visual communication of legal meaning is not, however, confined to simple transactions between individuals. Litigants and witnesses in performative disputes use visual cues, gestures, and movements to communicate their positions, their stories, their wishes, and their reactions. Few of these actions survive in the judicial routine of modern writing cultures (one exception is our habit of raising the right hand to take an oath). Instead, our primary memory of the visual aspect of performative procedure is metaphorical: in proposing something to a court, a litigant or lawyer still "makes a motion."

[2.43] In performance-based legal systems, motions are visually concrete. In early Roman law, each party making a claim to an item of personal property would place a hand (or a staff) on it, in turn, to indicate his position. The judge would then intervene and decide the matter (legis actio per sacramentum in rem).¹⁸⁵ If the dispute were over land, the parties had to bring a clod of earth into court in order to make their claims.¹⁸⁶ In early medieval German law (if we believe the fourteenth century illuminators of the early thirteenth century German legal manuscript called the Sachsenspiegel, or "Mirror of the Saxons"),¹⁸⁷ a witness could indicate his support of a party by grasping that party's arm or shoulder. By crossing his hands, a witness indicated a refusal (or an incapacity) to give evidence or swear (see Figure 7). In thirteenth century England, a litigant could avow the right of another person to plead for him by raising his hand and that of his "attorney" together. A variant of this gesture involved the designated pleader holding up his hand in the other party's direction as if to swear. His client would then place his hand on the pleader's hand.¹⁸⁸

[2.44] Where there are no witnesses to an act, or where an accused person is not deemed worthy to swear an oath, some performance cultures may demand that the accused perform some dangerous, visible gesture to communicate guilt or innocence. In early medieval Europe, for example, accused persons were often asked to carry a hot iron several paces. Providing the iron was not dropped, a finding of guilt depended on whether the burn festered. Alternatively, an accused might be ordered to retrieve a stone from a cauldron of hot water; again, any subsequent sign of infection was taken as a sign of guilt.¹⁸⁹ Similar feats are sometimes demanded of accused individuals in indigenous African societies.¹⁹⁰

[2.45] Unlike the other legal gestures considered in this section, the ordeal is not (at least in theory) a voluntary visual communication of meaning from one human person to another. Rather, the ordeal provides a sign of the will of God (or of spirits) revealed to the community through the gestures of an individual whose actions are, for this purpose, divinely determined. Traditionally, most scholars have emphasized the "strangeness" or "irrationality" of this kind of divine adjudication; it is perhaps just as significant, however, that societies whose members communicate with gestures equally expect that God or other spiritual agents will use gestures (or their physical byproducts) to communicate with them. To this extent, the decline of the ordeal in later medieval Europe (and its retreat in contemporary Africa) may be partially explained not only by concerns about the rationality or theological propriety of asking God to intercede in human disputes, but also by the general decline in the social and intellectual status of gesture that accompanies a significant rise in cultural literacy.

C. Tactile Communication and Legal Expression

   1. The Cultural Significance of Touch

[2.46] Having considered the role of aural and visual media in performative communication and legal expression, we now move into the less familiar territory of tactile communication. The reader may understandably feel some unease at this juncture. Most members of modern writing cultures are even more suspicious of touch as a carrier of important information than they are of sound or gesture. We have largely struck touch from our cultural canon.¹⁹¹ It is noteworthy that the original English form of the contemporary visual idiom "seeing is believing" seems to have been "seeing is believing, but feeling’s the truth."¹⁹² The new form suggests that sight has displaced touch as a preferred arbiter of knowledge.¹⁹³ From a slightly different perspective, a person considered "touchy" in our society is not as respected or admired as the "seer" or "visionary." Indeed, people do not like to have the touchy person around.¹⁹⁴

[2.47] Such attitudes are alien to most performance cultures. Their members live and think in a highly tactile universe. The Hellenic Greeks, for instance, considered geometry to be about "the way the various shapes felt (they tended to imagine themselves fingering their way around a geometric figure), whereas modern geometricians think more about the way the various shapes look."¹⁹⁵ Touch likewise dominated the perceptions of early medieval Europeans.¹⁹⁶ In discussing the various human senses in his commentary on Aristotle’s De Anima, St. Thomas Aquinas gave touch the most attention: it was the most fundamental sense, and functioned as a mirror of the mind. Aquinas believed that a light touch denoted intelligence and nobility of nature, while a heavy touch communicated the opposite qualities.¹⁹⁷ The concept of touching was so powerful that it served as a basis for other senses. Even seeing was understood as a form of touching, either of the eyes by rays emitted from objects ("intromission" theory), or of objects by rays sent forth from the eyes ("extramission" theory).¹⁹⁸

[2.48] The prevalence of touching as a legitimate medium of telling - and knowing - in performance-based societies has been frequently noted by outsiders from less tactile writing cultures. In 1913, for instance, the head of a Norwegian expedition to the Arctic reported that in his first contact with Eskimos, "Little children jumped up so as to be able to touch our shoulders and men and women stroked and handled us in a very friendly way."¹⁹⁹ Touching nonetheless transcends performative greeting rituals. Two North or West Africans may hold hands or otherwise continue physical contact throughout an encounter or conversation. As a general matter,

Arms are continually reaching out to encircle children and to press them hard against an adult’s body. . . . Men and women sit and walk with their arms round one another’s shoulders. . . . [T]he continual attempt to make physical contact - to touch, to hold or to caress . . . - is one of the most noticeable elements in inter-personal relationships.²⁰⁰

In writing societies, such habits are likely to be regarded either as vulgar or as breaches of etiquette. For instance, antitactile prejudices were at least partly responsible for a contemporary English dockworker’s comment regarding male workers from far less literate Pakistan: "They’re not natural . . . look at the way they hold hands."²⁰¹

[2.49] Even when members of performance cultures are not actually engaged in tactile contact, they frequently position themselves so as to facilitate tactile communication.²⁰² Conversations are typically held at close range, and individuals in groups tend to stand or sit very near each other. People literally wish to "stay in touch" (a modern idiom that may unwittingly recall an ancient cultural habit). As one anthropologist has written of the Wolof people of Senegal, "close physical proximity [is] . . . not only tolerated but sought out."²⁰³ To sit or stand at a distance would make no more sense to a member of such a tactilely oriented society than for a member of a modern writing culture to stand or sit where eye contact is awkward. In this context, the pictures that have survived of huddled groups of early medieval people may not reflect "primitive" or poor living conditions - or even a certain artistic economy - as much as a natural tendency toward physical proximity among members of a performative society that still believed in the importance of tactile communication.²⁰⁴

[2.50] Art-forms provide further evidence of the significance of tactile communication and expression in performance-based societies. There, sculpture and the other plastic arts take cultural priority over drawing and painting. Anthropologists have indeed discovered that many preliterate societies "lack any tradition of . . . two-dimensional representation."²⁰⁵ Of course, three-dimensional sculptures and carvings can be handled as well as shaped²⁰⁶ so as to provide tactile information lacking in "flat" two-dimensional art. Members of performance cultures actually do handle three-dimensional art objects: Australian aborigines, for instance, experience the carvings on wooden and stone churingas not merely by viewing them, but by touching them and even butting them against their stomachs.²⁰⁷ Similarly, early medieval pilgrims touched religious statues and reliquaries, in many cases wearing them smooth with adoration. As one student of the early Middle Ages has noted, "the religion of the relic was a tactile religion."²⁰⁸ Only in the later medieval period, as writing and literacy became more common and tactile communication less valued, did the practice of touching relics and statues decline.²⁰⁹ Since then, Western statuary has become "painterly."²¹⁰ Informed by visual rather than tactile prejudices, it has become something to view rather than touch. This purpose is at once acknowledged and reinforced by the regulations of modern art galleries and museums.

   2. The Feel of Law

[2.51] Performance cultures whose members communicate important meanings through touch generally do not hesitate to enlist that medium in support of legal expression. To some extent, the tactile communication of legal meaning may be considered a byproduct of its visual communication. A legal signal or gesture seen by witnesses may sometimes be directly felt by the parties themselves. Given that members of performance cultures are relatively restrained in their enthusiasm for visual expression, however, it seems unlikely that they regard touching in this merely incidental fashion. Indeed, one suspects that as between seeing and touching, they consider touching to be the primary carrier of legal meaning, at least for the parties touching or being touched, with the visible gesture being the byproduct of the transaction.

[2.52] However characterized, the tactile communication of legal meaning in performance cultures tends to assume four basic forms. The first of these, gentle touching, can be either mutual or unilateral. In its mutual variety, gentle touching involves both parties making active, voluntary physical contact with one another, thereby communicating agreement or association. The several handclasps and handfasts described earlier²¹¹ perfectly exemplify this type. The modern handshake may admittedly communicate similar ideas, but unlike its counterparts in performance cultures, it frequently operates as a mere ceremonial reflection of agreement legally made and communicated by other means (that is, by writing).

[2.53] Unilateral gentle touching involves one party making unilateral physical contact either with an object or with a passive person. On many occasions, this communicates the making of a promise to the party represented by an object, or a promise made in relation to an object. In early Greek and Roman culture, for example, a legal promise could be made or an oath could be sworn by touching an altar or other object of religious significance.²¹² Similar practices were common in the early Middle Ages. In Anglo-Saxon England, for example, Aethelred's Laws mandated that a witness swearing an oath hold relics in his hand.²¹³ In the late eleventh century, the Bayeux tapestry analogously depicted Harold Godwinson touching reliquaries, thereby swearing to support the claims of William of Normandy to the English throne (see Figure 8).²¹⁴ In a somewhat different context, witnesses of medieval land transactions could endorse a transfer they had heard and seen by touching the charter that sometimes recorded the transfer and their names.²¹⁵ This practice was reflected in the common Anglo-Saxon formula "the witnesses are written and their hands touched."²¹⁶

[2.54] Alternatively, unilateral gentle touching can communicate the assertion of legal authority over another person or thing. For instance, the early Roman procedure for claiming property, the legis actio sacramentum, enabled one person to claim another person as a slave by touching him with a ceremonial rod. The legal importance of this touching was reflected in the verbal declaration that accompanied it: "I affirm that this man is mine by Quiritary right according to his proper title. As I have declared, so, look you, I have laid my staff on him."²¹⁷ The traditional Roman mancipatio ceremony also involved a claim-touch. Gaius tells us that "the taker by the mancipation must grasp the thing which is being mancipated to him, which is why the ceremony is called mancipatio, the thing being taken with the hand."²¹⁸ In early medieval German law, the procedure for reclaiming a serf who had renounced his lord in favor of another analogously required the first lord to touch and take hold of the serf's coattail (see Figure 9).²¹⁹

[2.55] Finally, unilateral gentle touching in certain performance-based societies may indicate a legal claim against a person or signal his legal culpability pursuant to a claim. In Mesopotamian law, grasping a person's hem, under appropriate circumstances, constituted a formal complaint.²²⁰ Under the Roman Twelve Tables, a judgment creditor claimed against a delinquent debtor by taking hold of "some part of the debtor's body."²²¹ In ancient Hebrew law, the individuals who testified against any man who was later condemned to stoning were required to "lay their hands upon his head" to indicate that he was guilty.²²²

[2.56] The second broad type of tactile legal communication common in performance cultures involves forceful touching, a physically more powerful and potentially more painful form of contact generally designed to emphasize the seriousness of a claim, relationship, or transaction. Thus, one Mesopotamian could announce a legal accusation against another by hitting him on the forehead.²²³ A Mesopotamian surety could legally guarantee a debt by striking or slapping the forehead of a debtor.²²⁴ One interpretation of the earliest form of the Roman stipulatio procedure maintains that after going through the question-and-answer, the promisor bound the promisee by striking him with a ceremonial staff.²²⁵ In eleventh and twelfth century Europe, a knight could legally confer knighthood on a squire by hitting him on the face or neck with the flat of his hand; this blow (the "colée") was later commuted to a gentler dubbing by the sword.²²⁶ Perhaps it was familiarity with the use and mnemonic efficacy of this somewhat painful procedure that once prompted William of Normandy to joke that he should drive a symbolic knife through an abbot's hand instead of simply giving the knife to him as a token of conveyance: "That's the way to give land."²²⁷ According to French feudal law, a purchaser of goods could analogously conclude a legal agreement with a vendor by striking the palm of the vendor's hand with his own.²²⁸ The same practice was known in early medieval Germany, where it was termed Handschlag.²²⁹ To this day, African Shona women may legally allege adultery or seduction by striking an offending man with an under-apron.²³⁰

[2.57] In a related vein, members of performance cultures may use forceful touching to communicate legal meaning and significance to witnesses of transactions or claims. Children attending important legal ceremonies in performance cultures may be struck to focus their attention on a certain time and place of legal consequence. In early medieval France, child witnesses had their ears boxed or tweaked.²³¹ Violence of this kind was occasionally recorded in contemporary writings. One eleventh century Norman charter notes the presence at a transaction of "William, infant, son of Fulk Moirus, who on account of the memory of this thing received a blow at the altar in the sight of many."²³² As the last phrase of this record suggests, such a striking would not only have had a tactile effect on the child, but also a profound visual impact on other witnesses.

[2.58] The third basic method by which legal meanings may be tactilely conveyed in performance cultures is by kissing, a specific form of touching that appears to mark the creation or recognition of a particularly close and intimate bond. In the early Middle Ages, a kiss (osculum) signaled the establishment of a feudal relationship between lord and vassal. The kiss was so central a part of the process of paying homage that the procedure became known in some quarters as "a kissing."²³³ The lord generally kissed the vassal full on the mouth, literally making him (in incidental reference to the hand gestures of fealty described earlier) a "man of mouth and hands."²³⁴ In eleventh century Normandy - outside the context of vassalage - an alienor might kiss a recipient of land to mark the transfer of property between them.²³⁵ Kisses were similarly bestowed on new knights and people taking legal office.²³⁶ Kissing could also communicate the resolution of a legal dispute.²³⁷ In this context it may be that the ritual kiss of bride and groom at the end of the modern Western marriage ceremony originally had little or no romantic purpose, being but one application of a common technique of tactilely (and visually) communicating the creation, existence, or reanimation of a legal relationship. In the words of one scholar, "[It] recalls old laws and customs which considered it a formal promise of marriage, or even, in Roman law, a legal bond making the future bride a quasi uxor."²³⁸ A somewhat more marginal use of kissing in the law of our own writing culture is the requirement that individuals swearing on the Bible "kiss the book."²³⁹

[2.59] The fourth way in which members of performance cultures can express legal meanings in tactile form is by transfer, that is, the practice of one party handing something over to another as a token of conveyance, pledge, or performance. Transfer obviously has a visual dimension (one sees an object being passed), and in that sense it has already been considered, but its tactile aspect is also significant. After all, holding and letting go of objects are among the most fundamental of tactile experiences. The performative grantor - say, the early medieval European - who during a conveyance ceremony holds a clod of earth, tactilely communicates to himself his possession of land. Instead of merely declaring his possession in words, he literally feels the damp or dry soil in his hand. It is an unmistakable tactile reminder of his association with it. When the conveyance is made and the clod is passed, the grantee of the land knows what he has acquired by feeling the dirt that has been given to him. Even when members of performance cultures use more indirectly symbolic objects to signify conveyance or pledge, they are still engaged in tactile communication. The grantor or pledgor knows he is giving something up because he loses a tactile stimulus. He no longer feels anything in his hand. At the same time, the person receiving property or gaining the benefit of a pledge knows he has acquired something because he can feel an object he could not feel before.

[2.60] In addition to these four forms of tactile legal expression used by or between individuals in most performance cultures, members of a number of performance-based societies believe that their guiding divinities or spirits can communicate the legal guilt or innocence of accused persons by touching them, or causing them to be touched, in certain ways. This type of tactile communication is facilitated and indeed called for in the ordeals I briefly described in considering "The Sight of Law." In an ordeal, the implicated divinity or spirit may not personally and directly touch the proband, but the proband is frequently commanded to touch or to otherwise come in contact with a substance that somehow represents or has been associated with the entity (through consecration, perhaps). If the proband can sustain the touch without injury - if he can carry the hot iron, or immerse his arms in the hot water - it signifies his innocence, and he is freed. If he cannot sustain the touch - if it is too painful for him, or too damaging to him - that signifies his guilt. The judgment is interpreted visually by witnesses, but the ceremony of the ordeal is calculated so that the accused man does not merely see, but also physically feels a divine sign of his guilt or innocence. His reaction to this touch of the gods seals his legal fate. Indeed, that touch may be the ultimate form of tactile legal communication.

D. Smell and Taste: Savory-Sense Communication and Legal Expression

   1. The Cultural Significance of Savor

[2.61] The associated savory media of smell and taste play less obvious roles than sound, sight, and touch in the communication of significant meaning in performance cultures. Even so, their performative significance far exceeds the minimal relevance and role we commonly ascribe to them.²⁴⁰ In the first place, performance-based societies tend to be highly olfactory. The habit of reading and writing has not yet encouraged performative individuals to ignore, and even suppress, information received through their noses as opposed to their eyes.²⁴¹ Indeed, from the perspective of modern America, with its personal deodorants, air fresheners, and complex public sanitation systems,²⁴² it is almost impossible to appreciate how simultaneously rich and oppressive performative olfactory experience is. As pleasant and unpleasant odors envelop members of performance cultures at every turn - in the fields, in the home, and in the marketplace - it is only natural that such individuals should use smells and scents both to communicate and to understand.

[2.62] In ancient Near Eastern culture, sweet smells of perfume, incense, and sacrificial smoke indicated both divine presence and divine approval; they were therefore common features in religious and political ritual.²⁴³ The Hebrew prophet Isaiah foretold that God would communicate his displeasure with men by a changing odor: "instead of sweet smell, there shall be stink."²⁴⁴ Homer's Greeks similarly believed that their gods signified anger by leaving burnt offerings "charred in acrid smoke."²⁴⁵ The early medieval Church not only employed incense to communicate with God, but additionally regarded sweet smells as God's way of communicating the holiness of his ministers. This was the famous "odor of sanctity," which was invariably supposed to issue from the exhumed remains of any saint.²⁴⁶

[2.63] The acknowledged value of communication and comprehension through smell in performance cultures incidentally adds a further dimension to what I have identified as a cultural tendency towards physical closeness and proximity.²⁴⁷ Like touch, smell is in most cases only employable and understandable at close physical range. Thus, members of traditional Arab cultures prefer to stand close to one another so that they may literally be in the other's breathing space, the smell of breath supposedly being very communicative of a person's character and disposition.²⁴⁸ The fact that we are so literally and metaphorically protective of our "breathing space" indicates how far our writing culture has backed away from olfactory communication.

[2.64] The sense of smell is inherently linked with the sense of taste. Without a sense of smell, taste is robbed of most of its meaning. Conversely, sensitivity to smell in most instances promises sensitivity to taste and, by implication, the habits of eating and drinking. In performance cultures, the general sharing of taste through food and drink routinely communicates friendship, approval, agreement, or transition. For instance, in the language of the Luba people of Zaire the verb "to eat" denotes new access to power. One "eats the office of chief" (becomes chief).²⁴⁹ Members of performance cultures may consciously manipulate individual tastes to emphasize, or even to alter, the basic meanings of ingestion. African Songhay culture thus holds that respect can be communicated to visitors by the preparation of savory sauces; contempt or disapproval may be signaled by the preparation and serving of a "bad sauce."²⁵⁰ In Hausa society, the cultural and communicative significance of tasting and eating is emphasized by the prominence of these activities in folktales, a majority of which "centre around food, tasting, eating or swallowing."²⁵¹ In one remarkable Hausa tale, all the actors in the story are foods and tastes: Salt, Pepper, Nari (a peanut-based sauce), Onion Leaves, and Daudawar Batso (a strong-smelling sauce).²⁵²

   2. The Savor of Law

[2.65] Just as the law of performance cultures has a sound, a look, and a feel, it has a savor. Failure to recognize this fact can cause members of writing cultures to overlook or misinterpret important forms of performative legal expression. For instance, members of writing cultures may not immediately appreciate that in a performance culture, the release of scent can communicate significant changes in an individual's legal condition, relationships, or obligations.²⁵³ In ancient Mesopotamia, many such changes were marked by anointing individuals with the scented oil ubiquitous in Near Eastern cultures. We know that anointing played a part in the conveyance of land, although we do not know whether this anointing was of the parties by each other, of the parties by themselves, or of witnesses by the parties.²⁵⁴ Anointing could also announce a Mesopotamian betrothal or, according to some scholars, a marriage.²⁵⁵ It could similarly be used in freeing a slave, provided it was done in the early morning, with the slave facing the rising sun.²⁵⁶ This orientation may itself have been aromatically significant. In the first place, the heat of the sun can enhance the scent of certain oils. In the second place, if the oil poured on the head were mixed with fat (as was sometimes done in the Near East), the heat of the sun would eventually cause the fat to melt, gradually releasing the scented unguents over the body:²⁵⁷ the higher the sun rose in the sky, the easier perhaps it became for the former slave (and others) literally to sniff the scent of freedom.

[2.66] Evidence for the use of scent in the legal transactions of performance cultures outside the Near East is far less common, but occasionally one finds a legal event that has either an overt or an incidental aromatic aspect. Here the point is not that olfactory communication of legal meanings is commonplace, but that it occurs at all. In early medieval Europe, for instance, the ultimate legal act of royal coronation reached its climax not when the king took his verbal oath or assumed the visual symbols of his office, but at the unction, when the officiating cleric poured aromatic oil over the king's shoulders and head, formally and mystically communicating his ascension to both him and the assembled throng.²⁵⁸

[2.67] In performance cultures, tasting, eating, and drinking may similarly communicate a legal transaction or event to immediate parties or to witnesses. The meaning of these acts nonetheless varies from culture to culture. In the ancient Near East, taking a meal together could communicate the establishment of a binding agreement. A Hebrew tradition notably regards the Old Covenant with Yahweh as a meal taken together in his presence.²⁵⁹ In Exodus, God moreover says to Moses that through the eating of unleavened bread at Passover, "it shall be to you as a sign on your hand and a memorial between your eyes, that the law of God may be in your mouth."²⁶⁰ In the Middle Ages, a couple ate together to signal their marriage (which may be the source of the modern practice of watching the bride and groom as they eat the first slice of wedding cake).²⁶¹ Among the Anglo-Saxons, a ritual meal or feast could also communicate the revival of a relationship after a dispute.²⁶² A similar custom is still common in parts of Africa. Among the Ibo people, the party judged to be at fault is required to take food to the other party so that the two can eat together, thereby communicating their new-found peace to themselves and to observers.²⁶³ It has also been asserted that the early medieval quitclaim originally involved a formal dinner representing the end of contention over land.²⁶⁴

[2.68] On occasion, meals marking a legal transaction may be shared with witnesses. This practice serves both as an advance gesture of thanks to the witnesses for supporting the transaction afterwards and as a means of communicating the nature and importance of the legal event. In Mesopotamian law, for instance, parties and witnesses to a land transaction were required to "eat the ram and drink the cup"²⁶⁵ before their dealings were legally complete and valid. In African Kamba society, food and drink are still provided to witnesses to a property transaction.²⁶⁶ Similar practices are known to Ghanian Akan law and to the law of the Philippine Nabaloi people.²⁶⁷

[2.69] Although drinking often accompanies eating on legal occasions, drinking may mark a transaction on its own. In Homeric Greece, for instance, contracting parties poured wine into a bowl and shared the contents to communicate the mixing of their wills and fates.²⁶⁸ The mythic Argonauts marked their mutual compact by drinking a mixture of "barley, bull's blood, and seawater."²⁶⁹ Herodotus reported that Greek mercenaries once indicated their agreement to serve by drinking a mixture of wine, water, and the blood of a human sacrifice.²⁷⁰ Continuing an ancient Teutonic tradition, bargains in early medieval Germany and central Europe were also sealed by drinking together.²⁷¹ In traditional Zulu culture, drinking beer from the same vessel formally communicated reconciliation.²⁷² In native Fijian society, drinking from the same dish communicates the completion of a legal marriage.²⁷³ This practice survives as an archaism in many writing cultures, with bride and groom drinking from the same wedding- or loving-cup. The modern habit of toasting someone or something may faintly echo these performative procedures.²⁷⁴