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

B 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).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 rofessorIf thou be a king thou shouldst know
recht flathothe prerogative of a ruler,
fothuth iar miad,refection according to rank,
mesbada slogcontentions of hostings,
sabaid cuirmthigesticks (quarrels) in an ale-house
cuir mescaecontracts 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, pseudo-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,Figure 2 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;Figure 3 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,Figure 4 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,Figure 5 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).177Figure 6In 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 witnessFigure 7 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.

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