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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Professor Bernard J. Hibbitts *
University of Pittsburgh School of Law
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Notes - Part III

280. An Anatomy of the World (facsimile of first edition, Cambridge 1951) (1611).

281. On the separation of the arts in modern Western society, see Edmund R. Leach, Aesthetics, in The Institutions of Primitive Society 27 (Edward E. Evans-Pritchard ed., 1956). For a brief discussion of the particular impact of print on the process of sensory separation, see McLuhan, supra note 17, at 159.

282. Having said this, it must be acknowledged that largely under the influence of modern audiovisual technology, avant-garde post-modernist artists are increasingly rejecting the standard separation of art forms in favor of a more integrated approach. In the context of this paper, it is significant that one of these new integrated art forms has actually been termed "performance art." See Jessica Prinz, Art Discourse/Discourse in Art 1-42 (1992). My thanks to Marc Silverman for reminding me of this point.

283. Bruno Gentili, Poetry and Its Public in Ancient Greece 24 (1988). Early in the fifth century B.C., the lyric poet Pindar acknowledged the sensory complexity of Greek poetic performance in these terms: "The garlands placed like a yoke upon the hair exact from me payment of this sacred debt: to blend together properly the lyre with her intricate voice, and the shout of oboes, and the placing of words." Thomas, supra note 100, at 118 (quoting Pindar, Olympian Odes 3.6-.9).

284. Id.; see also Giovanni Comotti, Music in Greek and Roman Culture 3 (Rosaria V. Munson trans., 1989); Havelock, supra note 20, at 150-51.

285. Okpewho, supra note 61, at 52 (quoting J.P. Clark, The Azudu Saga, 1 Afr. Notes 9 (1963)); see also Vansina, supra note 135, at 34; Daniel P. Biebuyck, The African Heroic Epic, in Heroic Epic and Saga 336 (Felix J. Oinas ed., 1978).

286. Okpewho, supra note 61, at 59.

287. Howes, supra note 44, at 63. Likewise, in Africa, "music is usually performed whenever masks are displayed." Akin Euba, Introduction to Music in Africa, in African History and Culture 225 (Richard Olaniyan ed., 1982); see also Paul S. Wingert, Primitive Art: Its Traditions and Styles 160 (1965) ("Not only the masks but many of the figures were intended to be used and/or viewed with the accompaniment of drum rhythms, vocal chants or songs.").

288. Gisela M. Richter, A Handbook of Greek Art 46 (1959). The paint has worn off over the years.

289. The formalism of performative law has been exaggerated in most of the literature, but the point that significant errors of either saying or doing can vitiate a proceeding is probably correct. See, e.g., Robert W. Millar, Civil Procedure of the Trial Court in Historical Perspective 14 (1952) (speaking of Anglo-Saxon law: "Any stumbling or stammering, any variation from what has been ordained as to gesture or bodily position, is fatal.").

290. Milner S. Ball, The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, 28 Stan. L. Rev. 81 (1975).

291. See supra note 175 and accompanying text.

292. Ruth 4:2. (Revised Standard Version).

293. Ruth 4:6.

294. Ruth 4:7 (New American Bible). The Revised Standard translation of this verse inaccurately refers to the transfer as merely "confirming" a transaction.

295. Ruth 4:9-10 (Revised Standard Version).

296. Ruth 4:11.

297. Institutes, supra note 176, at 1.119.

298. Id.

299. Joseph R. Strayer, Feudalism 122 (Louis L. Snyder ed., 1965) (alteration in original) (quoting Galbert of Bruges, De Multro . . . Karoli Comitis Flandiarum 89 (Henri Pirenne ed., 1891)).

300. See Tylor, supra note 132.

301. On synesthesia generally, see Lawrence E. Marks, The Unity of the Senses: Interrelations Among the Modalities (1978). On the comparative prominence of synesthesia among "primitive and archaic" peoples, see Heinz Werner, Comparative Psychology of Mental Development 86-88 (1948).

302. Chidester, supra note 198, at 15-16.

303. Irwin, supra note 129, at 19-21, 209-13 passim.

304. Cecil M. Bowra, The Greek Experience 155 (1985) (citing Plutarch, De Gloria Atheniensium).

305. Lawrence E. Marks et al., Perceiving Similarity and Comprehending Metaphor, 52 Monographs of the Society for Research in Child Development 2 (1987) (quoting Exodus 20:18).

306. Constance Classen, Sweet Color, Fragrant Songs: Sensory Models of the Andes and the Amazon, 17 Am. Ethnologist 722, 727 (1990).

307. Malul, supra note 155, at 581-82.

308. Robert R. Marett, Sacraments of Simple Folk 172 (1933); see also Thundyil, supra note 259, at 12 & nn.45, 48.

309. Numbers 5:23-24 (Revised Standard Version).

310. Classen, supra note 306, at 727.

311. In some performance cultures, these objects may even be intentionally discarded after use. See Suzanne Küchler, Malangan: Art and Memory in a Melanesian Society, 22 Man 238 (1987).

312. See for instance the discussion of flow elaborated in Victor Turner, From Ritual to Theatre: The Human Seriousness of Play 55-59 (1982).

313. On the mnemonic superiority of multi-sensory over single-sense communication, see the numerous scientific studies cited and discussed in Khosrow Jahandarie, The Modality Effect 323, 380 (1987) (unpublished Ph.D. dissertation, Stanford University). The greater mnemonic value of multisensory communication may indirectly help to explain the popularity of synesthesia in performance cultures. See supra notes 301-10 and accompanying text. Meaning that is mentally understood and experienced (if not always physically deployed) in what we would regard as several sensory channels may be more accessible to the memory than meaning experienced as "just sound" or "just touch," etc. On the general association between synesthesia and memory, see A.R. Luria, The Mind of a Mnemonist 21-29 (Lynn Solotaroff trans., 1968).

314. Chidester, supra note 198, at 92.

315. In the words of one medieval scholar, "Word and gesture complemented each other; and, when combined, they impressed themselves even more forcefully on the participants than either would have done alone." von Rautenfeld, supra note 237, at 86.

316. It is particularly interesting that in the transition from performance to writing culture, the more mnemonically effective media are the first to fall from social favor. For instance, active gesture is eclipsed in culture and law before static pictures. Pictures, in turn, are culturally eclipsed before texts. It is as if these various media go into decline as soon as the availability, popularity, and permanence of written forms (script, and later print) makes them mnemonically redundant. On the mnemonic superiority of action over stasis and pictures over text, see the numerous studies cited in Jahandarie, supra note 313, at 362-64, 379.

317. Basil Bernstem, Elaborated and Restricted Codes: Their Social Origins and Some Consequences, in The Ethnography of Communication (John J. Gumperz & Deil Hymes eds., 1964).

318. Sam Gill, Beyond "The Primitive": The Religions of Nonliterate Peoples 57 (1982); see also Fine, supra note 31, at 133.

319. Ong, supra note 12, at 70.

320. Ruth Finnegan, Literacy Versus Alon-Literacy: The Great Divide, in Modes of Thought: Essays on Thinking in Western and Non-Western Societies 112, 137-38 (Robin Horton & Ruth Finnegan eds., 1973).

321. Memory, supra note 2, at 64-65.

322. Id. at 64.