This paper discusses the increasing presence and significance of imagery and imagistic discourse in contemporary American legal culture [delivered at the Annual Meeting of the College Art Association, Boston, MA, February 1996].
Art scholars and lawyers may not seem to have much in common, but both groups are familiar with the emblematic figure of Justice. In her right hand she holds a sword, in her left hand, a set of scales. But most important for present purposes, the figure of Justice is blindfolded.
The blindfolding of Justice reminds us that modern law is a primarily a matter of words rather than images. Justice hears words spoken or words read to her, but Justice does not see. Today, however, there are numerous signs that under the pressure of technological, economic and cultural change, the law which Justice applies is departing from recent tradition and is taking what W.J.T. Mitchell would call a "pictorial turn".
Some of the manifestations of law's pictorial turn are obvious. Thanks to courtroom television, law has lately become a visual drama regularly enacted in the living rooms of millions. We're also very much aware of the growing visuality of trial evidence: contemporary lawyers make their points not merely with words supported by the traditional "real" exhibits - the murder weapon, the hair sample, the bloody glove - but with many types of so-called "demonstrative evidence" - elaborate charts, graphs and photo montages - intended to summarize and frame complex information for juries in a cogent and ultimately persuasive fashion. At times, attorneys even offer animated visual recreations of crimes or situations, using television, computer graphics and, to a limited but increasing degree, the technology of virtual reality.
Other indications of law's pictorial turn are less obvious, but equally important. A growing number of judges and lawyers are using videotape to record legal procedures and transactions. The state of Kentucky, for instance, recently made the videotapes of trials in its state courts the sole offical version of those proceedings for the purpose of appeal. Courts in the state of Indiana are now admiting videotapes of will execution ceremonies as evidence of proper execution procedure, above and beyond what may be suggested by written wills themselves. A few attorneys are even beginning to contemplate the possibility of fully-fledged video wills, where videotape does not merely record and provide evidence of the will-signing, but actually replaces the written will altogether.
Most notably from my own perspective, law's pictorial turn is evident in the law schools. A growing number of law professors are supplementing the logocentric "Socratic method" of classroom instruction with visual materials such as charts, slides and films. One has actually authored a brief manual on using legal graphics as legal teaching tools. As scholars, law professors are analogously beginning to study law's visual environment and visual history. Imagistic subjects which formerly were ignored or denigrated in the Anglo-American legal academy - legal iconography, legal gesture, legal performance and ceremony, even law's depiction in the contemporary visual media of film and television - are now receiving our attention. A few of us are even beginning to use images as part of our legal scholarship. Photographs have started to show up in legal texts in significant numbers - the 1995 edition of the text I use to teach the law of wills and trusts includes, for what is probably the first time in the history of academic legal publishing, a color photo. Our academic journals, the law reviews, are also using photographs, not merely as illustrations of points, but as integral parts of academic arguments. This trend is likely to continue as new communications technologies make it easier and cheaper for legal academics and legal publishers to use, duplicate and manipulate images. Finally, to take the pictorial turn one step further than is perhaps appropriate in this forum, it's worth noting that even insofar as law remains rooted in the verbal, the language of law is becoming more pictorially-evocative, with law review articles featuring a greater number of stories and metaphors that prompt the generation of images in the mind's eye. Putting the point another way, law's words, rather than successfully resisting law's larger pictorial turn, are themselves reflecting and propelling that.
Having said all this, I don't mean to imply that many lawyers or even legal academics are aware of law's pictorial turn as such. The natures of legal practice and legal academia being what they are, individual lawyers and legal scholars are generally conscious only of what is happening in their immediate intellectual or professional vicinities, and are slow to make broader connections which might suggest that a general transformation is taking place. Thus, despite all the manifestations of the pictorial turn which I have just discussed, there has been little comprehensive consideration of law's newfound visuality. What we have had, rather, are piecemeal - albeit suggestive - articles and conference panels on courtroom TV, demonstrative evidence, wills and video technology, visual legal pedagogy, legal gesture, legal iconography, and legal metaphor and storytelling.
The absence of much general discussion regarding law's pictorial turn may ultimately be the byproduct of fear and uncertainty as much as ignorance. As a class, lawyers tend to be wary of the pictorial and the imagistic. There are a number of reasons for this. First, traditional legal education has not prepared lawyers to deal in these visual forms, but rather in words - indeed, one scholar has recently labelled legal education little more than an advanced (if, perhaps, a somewhat perverse) form of "literacy training". For many lawyers, the pictorial turn therefore means a turn towards the unknown and the unfamiliar.
Second, most lawyers regard law as the province of reason, abstraction and objectivity. They often suspect pictures and images because of their profound capacity for enflaming emotions which can distract people (and especially juries) from the pursuit of truth and justice. Lawyers are concerned that exposing appellate courts in particular to the visual record of trial proceedings might lure them into ruling on concrete questions of fact, not just rarified questions of legal doctrine. At some level, lawyers may also be concerned about of the impact that pictures and images will have on their own cognitive practices. The exercise of "thinking like a lawyer"- often presented as the ultimate goal of legal education, and highlighted in such popular films as The Paperchase - involves processes of analysis and abstract linear reasoning which are often assumed to reflect and reinforce verbal rather than pictorial proficiency. This is not just professional puffing. Experiments conducted by psychologist Robert Ornstein in the 1970s suggested that because of their reliance on the verbal, lawyers may think differently than architects and artists having more pictorially- or spatially-based skills. The pictorial turn therefore appears to present a profound intellectual challenge to members of the legal community.
Third and somewhat more concretely, lawyers in the United States operate in what still might be called a Protestant legal culture - that is to say, a legal culture that has traditionally been dominated by either persons raised in, or strongly influenced by, the Protestant tradition. The link between Protestantism and anti-pictorialism requires no extended discussion here. The fact that well into this century, most American lawyers - and almost all of the most prominent ones - came from Protestant backgrounds meant that they had a cultural aversion to the imagistic in addition to any formal bias they might have developed in the course of their professional education and intellectual indoctrination. Of course, Protestants are significantly less dominant in today's multicultural American bar, but American legal culture as a whole has incidentally, if not always intentionally, preserved much of the Protestant legacy. The law's pictorial turn might therefore appear to have corrosive cultural consequences.
Finally, and perhaps most significantly, many lawyers are wary of pictures and images because of the challenge which greater reliance on those media would likely present to established hierarchies both inside and outside the legal community. Inside the legal community, making more use of pictures and images would seem to favor supposedly "second-class" professional groups which are less verbally- or textually-oriented, or whose members have resisted full indoctrination into logocentrism. For example, trial attorneys whose visual antics and exhibits make good television stand to gain professional stature in an imagistic legal culture, while the current high priests of thje bar - appellate lawyers who deal in written briefs, make very limited oral presentations, and do not deal in visual evidence - stand to lose status in that process. Women and minority attorneys might similarly stand to gain from a pictorial turn, as they come from gender and ethnic cultures which have historically been prevented from privileging the textual as much as have the gender and ethnic cultures from which most American white male attorneys hail. In this context, it's interesting to note that women and minority law professors have already shown themselves to be relatively more open to the experimental use of pictures and images in legal scholarship, making those part of a broader "counter-hegemonic" legal discourse. Outside the legal community, using more pictures and images might alter the traditional im-balance of power between professional lawyers on the one hand, and clients and lay people on the other. Law presented by visual means will likely be more understandable and accessible - not only to persons with limited textual skills, or persons with a limited ability to interpret legal verbiage, but to the public as a whole. In a more imagistic environment, lawyers may find not only that they retain less of a monopoly on legal information, but that they have less social power as the verbal base of their authority is eroded.
Law's pictorial turn, however, need not be construed so negatively. Indeed, I prefer to approach it as more of an opportunity than a danger. The terms of the opportunity are in some ways apparent from what I've already said about some of the changes that the pictorial turn would appear to involve. A change of communicative habits, for instance, may cause legal professionals to re-evaluate the dubious premises of their traditional logocentric training. Are words always the best way to explain or persuade, especially when one is communicating with jurors, clients or, for that matter, law students who may learn better visually than verbally? If words are an appropriate medium, should they necessarily be shorn of the pictorial and the imagistic - is there not a useful place in legal discourse for the figural and the metaphoric? Similarly, putting greater reliance on the pictorial, far from undermining justice, may actually assist it. First, pictures and images can be a useful part of rational explanation and argument. Second, pictures and images may help legal decision-makers to appreciate the human and concrete contexts of wrongs committed; the law may be significantly humanized as a result. Third, having a visual record of a trial may actually make the appellate process more effective by giving appellate judges a more complete and more objective sense of what happened in the initial proceeding. If using more pictures and images changes how lawyers think, so much the better perhaps, for surely lawyers should develop the skill to look at problems in multiple ways. This is especially true when lawyers have to deal with clients who - especially these days - are less textually-biased and more pictorially-oriented than themselves. The putative cultural and political implications of the pictorial turn that I identified can also be construed positively. The pictorial turn may make the bar a more welcoming and more comfortable place for formerly-marginalized persons whose gender, ethnic or other backgrounds have sensitized them to the relevance and power of images. The pictorial turn may also help to reconnect the legal community to the general public, which has felt increasingly alienated from lawyers as lawyers have increasingly focussed their attention on the fine print of the law instead of on the faces and visible predicaments of people. For most people, law grounded in pictures and images would also be more alive, more interesting and more memorable, allowing individuals to more effectively retain and internalize the law, making it their own instead of something that exists apart from them on a shelf. Acknowledging and accentuating law's pictorial aspects would be particularly empowering for individuals involved in the legal system as testators, as contractees or as witnesses. Permitting someone to make a video will, for example, would literally set them on the center stage of the law, instead of relegating them to the bit-part of subscriber to a written document drafted by someone else. The recorded image of the living testator personally favoring some beneficiaries and not others might even help to reduce the number of wills contests animated by the alleged uncertainty of the testator's intent as represented in writing.
If the pictorial turn is to have these positive consequences, however, lawyers and other members of the legal community need to act now to make the transition more palatable and ultimately, more useful. In the first place, we need to educate ourselves about the pictorial so that we can appreciate its possibilities and potential as much as its dangers. This education might plausibly be pursued in co-operation with groups of art scholars and art historians such as yourselves. With your help, lawyers and legal scholars could be made more aware of what the pictorial is, and would be more likely to take it in stride rather than simply fear it. You in turn could discover a new application for your expertise which might, over time, have important political and legal payoffs as you develop closer ties with a professional group with which artists have historically had a somewhat strained relationship. But co-operation may not come easily. At the most mundane level, arts scholars and lawyers will probably have to get out their campus maps to locate each others' schools. Even assuming that art scholars are willing to take up the challenge of instruction, lawyers and legal academics - perhaps partly because of their status as independent "professionals" - can be notoriously close-minded to outside guidance.
In the second place, we lawyers need to learn how to actively use pictures and images to attain our legal goals. Drawing on our own textual heritage, we should remember that true literacy involves not merely the ability to read, but the ability to write. True pictorial literacy, if you'll allow me to use that problematic metaphor, therefore involves learning to depict and present as well as learning to see and interpret. The literacy metaphor also suggests that this type of learning, while it may be done at any time, is better done early, and is perhaps best done when would-be lawyers are still in law school. Training law students in the selection and deployment of visual media may be especially appropriate if we wish to ensure that practising lawyers use pictures and images in an ethical and responsible fashion. Again, artists and art historians could do much to help us take some first steps in the direction of comprehensive visual education.
On a more abstract level, lawyers need to remember that both as a matter of practice and as a matter of history, law is not as exclusively-textual as many of us have traditionally presumed. Even today, law lives in a real, if rarely a formal sense in the architecture of the courthouse, in the iconography of the courtroom, in the gestures of lawyers and in the dress of judges. Moreover, law has a rich imagistic history, the manifestations of which range from ancient dramatizations of contract and conveyance, through the gesture manuals of the classical juristic orators, all the way to illuminated medieval legal manuscripts and the "Last Judgment" paintings which hung in Renaissance courtrooms. This truth is conveniently represented in the figure of Justice with which I began this talk. Justice is blindfolded, but she is not blind. Physically, she can see the pictorial and the imagistic, and indeed, prior to the seventeenth century, she did see those things. It was only the anti-imagistic biases of post-Reformation iconography that created the blindfold and stopped her sight. Restoring Justice's vision does not require radical surgery; rather, it merely requires removing the blindfold.
Finally, lawyers need to recognize that for all the differences there may be between word and image, those forms are not necessarily antithetical. In the first place, the pictorial turn that will not result in the supplanting of words by images. Words and images in law - as elsewhere - will appear together in many documents and contexts, enabling their proponents to draw on the strengths -and compensate for the weaknesses - of both forms. Ultimately, this union of word and image may turn out to be much more than simply the sum of its parts. In the second place, just as advocates of "visual literacy" have likened images to words in an effort to construct a familiar visual rhetoric, lawyers need to understand that the word itself - especially the written, textualized word on which they so much reply - is in some sense an image. It is an image literally, in that it is a representation seen. It is an image emotionally, in that it is something we can fall into idolizing. Historically, it may even be argued that it is our emphasis on the image of the written word that has indirectly drawn law towards the imagistically-evocative metaphors - seamless web, body of law, wall of separation, penumbra of constitutionality, etc. - that have dominated Anglo-American legal discourse for centuries.
In light particularly of these latter points stressing the ties between law and image, and between word and image, we should reconsider the nature and impact of law's pictorial turn. Thanks to the new prominence of images and image-based technologies in our society, the law is changing in important and striking ways. We must act in the face of those changes if they are not to bypass, overwhelm or demoralize us. Ultimately, however, I do not consider the pictorial turn in contemporary American legal culture a "revolution", with all the connotations of danger, disruption and radical transformation that that term inevitably implies. Somewhat more optimistically and less drastically, I consider it a "re-vision" of law that embraces both the promise of change and the reassurance of continuity.
© Bernard J. Hibbitts, 1996