Coming to Our Senses: Communication and Legal Expression in Performance Cultures
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
Hibbitts' Home Page

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

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The Abstract
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.

The Reviews
"'Coming to Our Senses' a truly major piece of reinterpretation. It rests on a formidable range of reading and offers a wonderfully comprehensive survey of the relevant literature. It also abounds in insights and penetrating suggestions...Professor Hibbitts is introducing a new dimension into legal studies...".

Sir Keith Thomas
President, Corpus Christi College
Oxford University, UK
Author, Man and the Natural World: A History of the Modern Sensibility

"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
Author, Cities of the Dead: Circum-Atlantic Performance

"Hibbitts's emphasis on learning through all our senses - and especially through physical things rather than through reading - is all the more important now that the Internet makes the medium of knowledge less tangible and more transitory than printed books ever did. 'Coming to Our Senses' is a fundamental and timely contribution to what communication means in past cultures and in our computer culture today."

Michael Clanchy
Institute of Historical Research
University College, London, UK
Author, From Memory to Written Record: England 1066-1307

"'Coming to Our Senses' is a tour de force....It reminds scholars of ancient Near Eastern cultures (including scholars of the Old Testament) of the important distinction between various kinds of 'texts', particularly between the kind making use of the mode of writing and other kinds which make use of the mode of performance - gestures, sounds, smells, etc. It shows that, although the mode of writing occupies a central place in modern man's outlook (even to the point of dictating our mode of thinking), there have been times in human history when other modes occupied a more central place....Professor Hibbitts' study has made it clear that those of us wishing to decipher the code of the ancient documents of the Old Testament and the ancient Near East must approach those documents with conceptual tools taken from a performance frame of reference and not with tools taken from a writing frame of reference. After all, the ancient writers were bred in cultures based on performance, not writing."

Meir Malul
Professor of Biblical Studies
University of Haifa, Israel
Author, Studies of Legal Symbolic Acts in Mesopotamian Law

"'Coming to Our Senses' assists us in doing precisely that - becoming more aware of our common senses and how they shape our understanding of life and law. This is a well-researched and well-developed work; it directs our attention to the various forms of legal expression and how they have operated over the ages of legal history. Professor Hibbitts ably charts the law's many movements from orality to text to paratexts. His insights are especially relevant to our rapidly changing communications environment -- one destined to change the law's landscape."

Ronald Collins and David Skover
Visiting Professor, Seattle University School of Law;
Professor, Seattle University School of Law
Authors, The Death of Discourse

"Bernard Hibbitts' 'Coming to Our Senses' is a powerful, pioneering and well-informed study of a previously-neglected aspect of medieval culture - the expression of 'legal meanings in myriad permutations of sound, gesture, touch and savor.' Furthering the recent emphases of French 'annaliste' scholars such as Jean-Claude Schmitt and Jacques LeGoff, Hibbitts opens up a valuable middle landscape between orality and literacy that will undoubtedly cause us all to deepen our understanding of the functioning of law and communication in pre-modern cultures."

John Ward
Professor of Medieval History
University of Sydney, Australia
Editor, Feudalism: Comparative Studies

"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
Author, Conversational Organization: Interaction Between Speakers and Hearers

"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

The Table of Contents
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

The Text

I. Introduction

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

Although 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 a 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.

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