Bernard J. Hibbitts; Assoc. Dean for 

Comm. & Info. Tech.; U. Pgh. School of Law
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Papers: Re-membering Law: Legal Gesture in the Past, Present and Future
This paper surveys the history of legal gesture and speculates on its future application in virtual environments [delivered at the workshop on 'Gesture at the User Interface', 1995 Conference on Human Factors in Computing Systems (CHI-95), Denver, CO, May 1995)]. A longer version of this presentation has been published as Making Motions: The Embodiment of Law in Gesture.

Together with most members of the public, most American lawyers and law professors identify law with verbal language. For them, law is a matter of words: words heard in the courtroom and in the legislature, words found (often as "fine print") in the pages of case reporters, statute books, contracts and wills.

In truth, however, law is more than words. In a less obvious but also very real sense, law is also non-verbal. It lives and is given meaning through the physical buildings and settings in which it is created and applied. It is given form and force through the dress and deportment of those who create and apply it. Most important for present purposes, it is made and literally embodied in the physical actions of diverse legal agents and actors. It works in movement, posture and especially gesture.

By "gesture" I mean, in this legal context, any purposive bodily motion or symbolic action (especially, but not exclusively, of the arms or hands) that by convention signifies a legal change or condition. An obvious contemporary example of a "legal gesture" is the physical movement a potential witness must perform before swearing an oath to tell the truth in court: he or she is initially instructed "Raise your right hand."

Largely because of the prominence of writing in our society, the place that gesture occupies in modern American law is marginal compared to the place it has occupied in the legal systems and practices of other less writing-dependent cultures. In ancient and medieval societies in particular, gesture figured prominently in virtually all basic legal events and transactions.

First, gesture marked the creation and dissolution of legal relationships. In ancient Mesopotamian law, for instance, a dying man wishing to formally designate an heir or legatee took that person by the hand. In early medieval Europe, a man became the man of a feudal lord by, inter alia, placing his folded hands in the his lord's hands. A vassal could ultimately break a feudal bond in a ceremony that involved throwing straws at his erstwhile lord.

Second, gestures communicated the making and breaking of legal agreements. These gestures tended to resemble those marking relationship insofar as many legal relationships are obviously premised upon agreement. For instance, in medieval Welsh, English, French and Spanish law, a handclasp or its variant, a hand-slap, indicated the making of a contract. Alternatively, early medieval Germans could express legal agreement by pressing the palms of their hands together as they held them over their heads.

Third, gestures signified the transfer of property, particularly land. In ancient Mesopotamian law, a vendor tranfering land to a purchaser might lift his own foot off it and put the purchaser's foot in his place. Somewhat analogously, the Old Testament suggests that in ancient Israel, a land transfer could be communicated by the vendor passing a sandal to the purchaser. Early Greek, Roman, German and English law recognized handing over a clod of earth as a sign of conveyance from one person to another. Variants of this gesture involved certain items either taken from the land (sticks, grass, straw) or representing power over the land (an arrow, or glove).

Fourth, gestures characterized the swearing of oaths. In early Greek and Roman law, an oath-swearer touched an altar or other object of religious significance. The same practice was known in early medieval England. In thirteenth century Germany, a witness swearing an oath might present his hand with two fingers extended ( a gestural "shorthand" for reaching out to touch a sacred relic guaranteeing the oath).

Fifth, gestures manifested the intent or will of parties in litigation. In early medieval German law, a witness could formally indicate his support or endorsement of another party by grasping that party's arm or shoulder. By crossing his hands, a witness indicated a refusal (or incapacity) to give evidence or swear. In thirteenth century England, a litigant could formally acknowledge the right of another person to plaed for him in court by raising his hand and that of his "attorney" together.

Having surveyed the range of legal circumstances in which, historically, gestures have figured, one might consider the general functions which legal gestures serve as a genre. Certainly they can signify the making or breaking of agreements, the transfer of land and so on, but what do they do in a more general phenomenological sense?

I would suggest that legal gesture - as a phenomenon - serves at least eight broad types of function (although I should emphasize that not all individual legal gestures perform all sorts of function). Somewhat arbitrarily, I have designated these function-types as "indicative", "ordinative", "evidentiary", "demonstrative", "communal", "mnemonic", "regulatory", and "psychological." There is, of course, overlap between these functional categories.

Legal gesture is indicative insofar as it can indicate or identify particular aspects or elements of legal transactions. Most fundamentally, a legal gesture such as raising one's right hand can, in appropraite circumstances, serve as a public signal that a legal change is taking place. This sort of signal is especially useful in noisy social environments - the market place, or the public square where, traditionally, justice is often meted out. More specifically, legal gestures can indicate the party or parties to a legal transaction. Legal gestures can even indicate the witnesses guaranteeing legal acts. Finally, legal gestures can literally or metaphorically indicate the object of a legal transaction: for example, the person or property against which a claim is directed.

Legal gesture is "ordinative" insofar as it can order and organize meaning within a broader legal ceremony. It can, for instance, "highlight" especially important legal information (such is who is giving and receiving land). It can frame a legal transaction by marking its beginning and/or ending: today raising one's hand in court signals the beginning of the oath, lowering it marks the end of the procedure. Legal gesture can additionally punctuate a legal performance by physically and semoitically dividing it into individual "bits" or "chunks" of information that are easier to understand and assimilate.

Legal gesture is "evidentiary" insofar as it manifests and communicates "intent": the intellectual willingness of a party or parties to undertake a legal change or relation. The performance of a calculated, perhaps even complicated gesture suggests that a gesturor genuinely wishes to accomplish a conveyance, a sale, etc. The gesture simultaneously supports and confirms words spoken. Legal gesture can also evidence or express emotions which accompany or are occasioned by a legal change or relation. Legal transactions are generally "liminal" events that involve transitions from one social state to another. Such events are frequently occasions for the experience of strong feelings. Performing a gesture may provide a legal actor with a critical catharsis, an opportunity to release and display emotions attendent upon change in a structured way that consolidates that change and supports its long-term success.

Legal gesture can be demonstrative in two ways. First, it can symbolically demonstrate the nature of a legal agreement or relation so as to make it more comprehensible. Passing a clod of earth from one person to another demonstrates, for instance, a transfer of land that is simultaneously being described verbally. Second, legal gesture can demonstrate the sanction supporting a legal transaction or relation so as to make the transaction or relation more compelling. Knifing an animal, for instance, can effectively dramatize what will happen to one of the parties to a transaction or promise if that transaction or promise is not honored.

Legal gesture can serve various "communal" functions. Most obviously, it promotes community by physically creating community in space. Legal gestures have traditionally required physically-present witnesses to ensure their efficacy. Unwitnessed gestures leave no record. People therefore have to come together if gesture-based law is to "work." This is especially true if a legal gesture - such as a hand-shake or hand-clasp - is inherently co-operative. Legal gesture also creates community in time. As conventionalized forms, legal gestures are necessarily re-enactments and re-endorsements of the past. They create resonances with past practice. Lastly, legal gesture creates community by presenting law in a form which all members of the community can use and understand - the law is not locked up in a complex code, such as writing, which takes years to learn and then is only learned by some.

Legal gesture has a number of mnemonic functions which, although especially important in societies with little or no experience with writing, are also useful (even if less necessary) in other cultural environments. Most basically, gesture provides participants and witnesses with a dynamic visual image to support their recall of legal transactions. Being dynamic, gesture also attracts public attention to a transaction, which broadens the latter's mnemonic base within a society. Finally, legal gesture supports memory by its relative simplicity and its aforementioned ability to separate complex transactions or procedures into more mnemonically-manageable "bits."

Legal gesture regulates the behavior of individuals by implicitly discouraging people from entering into certain types of socially-undesirable transactions. Insofar as legal gestures are public and highly personal acts, gesturors are directly exposed to public view and, potentially, direct public censure. There is arguably a greater discincentive to accomplishing an unpopular legal change by public gesture than by more private (if more permanent) writing. Legal gesture also regulates individual behavior by channeling the actions and reactions of parties to a legal event into conventionalized actions which structure conduct and in that process reduce both uncertainty and violence.

Finally, legal gesture performs psychological functions. It not only affects the body, but also the mind. Legal gesture may sub-consciously help to overcome public or individual resistance to a legal transaction by explicitly showing and emphasizing the physical power or grandeur of the gesturor, or his superiority over others. Performing a legal gesture may also help put a gesturor in a frame of mind appropriate to the success of an agreement or relationship. Grasping someone's hand, for instance, may subtlely put one in a more co-operative frame of mind. Somewhat more generally, legal gesture can create a unique feeling of personal empowerment in its performer - through gesture, law is literally incorporated into personal experience in a way which transcends the limited physicality of handwriting.

Legal gesture emerges from this analysis as a powerful and sophisticated modality. It is true that gesture has been largely displaced in the legal systems of contemporary writing and print-based cultures which are less interested in its mnemonic potential in particular, but, as in indicated earlier by reference to American oath-swearing procedures, but gesture has not disappeared altogether. Its survival in the law is a testament not merely to the power of tradition, but to the fundamental "humanity" of gesture - the modality's capacity to serve certain human physical, social and emotional needs, in some instances perhaps better than either writing or print.

My work on legal gesture - and what I have thusfar seen and heard at this workshop - leads me to suspect that legal gesture may, in the future, make a comeback of sorts. With television and video acting as midwives, we are witnessing the birth of an age in which visual, image-based media are challenging the traditional dominance of written text in our culture. Already, in law, our understandings of legal process are being re-shaped by images from courtroom television (certainly a gestural medium, in multiple senses); legal academics are also debating the validity of video wills. The rise of visual media not only permits and encourages contemporary academics to study legal gesture as a serious discursive phenomenon, but actually creates a forum in which legal gesture can once again prosper, propelled by at least some of its traditional communicative and psychological attractions. To put it more bluntly, gestures make good TV, and good video.

Contemporary computer technology could accelerate this (re)turn to gesture. The development of gestural interfaces which allow computers to recognize human gestures broadens the permissible spectrum of our communication with the machines that will eventually become the primary recorders and depositories of American law. In theory, gestural interfaces could allow us to indicate our agreement to a contract or other transaction by something as simple, as fast, as direct and as intuitive as a particular motion of the hand. The development of virtual reality technology as I've heard that described at this workshop may present even more opportunities for literally re-animating law through gesture. A virtual reality environment, especially one which joins individuals in mutual telepresence, is an unprecedented invitation to gestural activity, extending even to the manipulation of symbolic virtual objects by parties who would not normally enjoy the benefit of face-to-face interaction in the real world. The legal gestures of a virtual environment, moreover, need not be duplicative of actual physical gestures; they could be designed in whichever way was most conceptually and socially appropriate, notwithstanding the physical limitations of the particular parties or their physical universe. The possibilities border on the mind-boggling.

Far from being fantasy, what I am predicting may already have started to happen. In August, 1994, Monika Liston, an executive assistant to the President of CyberMind, a San Francisco virtual reality company, was married to Hugh Jo in a ceremony performed by the attending minister and the parties within a virtual reality environment. Standing twelve feet apart from one another, the couple maneuvered through (at least most) of the pointedly-spectacular wedding ceremony - traditionally an amalgam of words, gestures and other physical actions - using special "vision immersion" headsets and hand-held movement controllers. At least one guest - an editor for Bride Magazine - witnessed the marriage at long distance via an AT&T videophone.

I am not suggesting by any of this that gesture will soon replace writing as the dominant legal instrumentality, or that we will someday start mutely gesturing our legal meanings to one another in some sort of legal sign language. I am suggesting, however, that for reasons having to do with both our growing technological capacities and the inherent qualities and capacities of gesture itself, gesture may become significantly more important in the law's future than it is in the law's present. In the short term, writing and gesture may well be joined, with gesture (probably along with speech) being used as a legally-relevant means of indicating assent to otherwise-written agreements, just as written charters and deeds authenticated the performance of legal gestures and the speaking of legal formulas when European literacy initially increased in the twelfth and thirteenth centuries. This limited revival of legal gesture should not necessarily be feared. It might present problems of its own, but we may ultimately find that one of the most powerful ways of re-humanizing and reforming the law is to re-member it.

© Bernard J. Hibbitts, 1996

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