Professor Bernard J. Hibbitts
University of Pittsburgh School of Law
*. Associate Professor, University of Pittsburgh School of Law. Special thanks must go to Charles Donahue, Harry Flechtner, and several anonymous tenure evaluators for reviewing either drafts of this Article or the manuscript from which it is drawn. I am also greatly indebted to David Pontzer and Brian Malkin, two extraordinary research assistants who made my work both possible and pleasurable. A third research assistant, Scott Etter, did yeoman service as a proofreader in the Article’s final stages. Responsibility for any errors or misinterpretations contained herein is, of course, mine alone.
1. Revised Standard Version.
2. For discussions of writing’s growing use and impact during this period, see Michael T. Clanchy, From Memory to Written Record: England 1066-1307 (1979) [hereinafter Memory]; Brian Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (1983); James W. Thompson, The Literacy of the Laity in the Middle Ages (1963). Recent scholarship has emphasized that some medieval European groups used writing for important public and private purposes prior to the twelfth century. See, e.g., Rosamond McKitterick, The Carolingians and the Written Word (1989); The Uses of Literacy in Early Medieval Europe (Rosamond McKitterick ed., 1990). The twelfth and thirteenth centuries nonetheless constitute a watershed during which the general incidence and influence of writing increased dramatically.
3. The classic introductions to the subject of print’s impact are Elizabeth L. Eisenstein, The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early Modern Europe (1979); Marshall McLuhan, The Gutenberg Galaxy: The Making of Typographic Man (1962).
4. See, e.g., Barbara J. Shapiro, Probability and Certainty in Seventeenth Century England 227-66 (1983); Hugh M. Davidson, The Decline of Rhetoric in Seventeenth Century France, in 1 The History and Philosophy of Rhetoric and Political Discourse (Kenneth W. Thompson ed., 1987).
5. One sixteenth century Protestant commentator thus wrote: "Some foolishly imagine that praier [sic] is made either better or worse by the jesture [sic] of our bodyes [sic]." Keith Thomas, Introduction to A Cultural History of Gesture 6 (Jan Bremmer & Herman Roodenberg eds., 1992).
6. See, e.g., Michael O’Connell, The Idolatrous Eye: Iconoclasm, Anti-Theatricalism and the Image of the Elizabethan Theater, 52 Eng. Literary Hist. 279 (1985).
7. See, e.g., John Phillips, The Reformation of Images: Destruction of Art in England 1535-1660 (1973).
8. See Lucien Febvre, The Problem of Unbelief in the Sixteenth Century: The Religion of Rabelais 423-32 (Beatrice Gottlieb trans., 1982); Robert Mandrou, Introduction to Modern France, 1500-1640: An Essay in Historical Psychology 56-57 (R.E. Hallmark trans., 1976).
9. On the eventual rejection of traditional media within European baroque cultures, see, for instance, James van Horn Melton, From Image to Word: Cultural Reform and the Rise of Literate Culture in Eighteenth Century Austria, 58 J. Modern Hist. 95 (1986).
10. For true bibliophiles, these sensory experiences may nonetheless be the source of some pleasure. Thus, the comment of nineteenth century English essayist William Hazlitt: "Oh, delightful! . . . to cut open the leaves [of a book], to inhale the fragrancy of the scarcely dried paper." William Hazlitt, On Reading New Books, Monthly Mag. , July 1827, quoted in Holbrook Jackson, The Anatomy of Bibliomania 608 (1981).
11. To most people in our society, these scripts are more "real" than the religious services or performed plays based on them. This fact may help to explain why, for instance, we study Shakespeare on the page instead of on the stage.
12. See, e.g., Milman Parry, L’Epithete Traditionnelle dans Homere (1928), translated in The Making of Homeric Verse 1 (Adam Perry ed., 1971); H. Munro Chadwick & N. Kershaw Chadwick, The Growth of Literature (1932); Harold A. Innis, Empire and Communication (1950); Harold A. Innis, The Bias of Communication (1951). For the most elaborate and detailed version of this proposition see Walter J. Ong, Orality and Literacy: The Technologizing of the Word (1982).
13. On the modern "aural revolution," see Cynthia Ozick, The Question of Our Speech: The Return to Aural Culture, in Metaphor and Memory (1991); Frank A. Biocca, The Pursuit of Sound: Radio, Perception and Utopia in the Early Twentieth Century, 10 Media, Culture & Soc’y 61 (1988).
14. For a rare acknowledgment of the intellectual impact of radio on scholars writing as late as the early 1960s, see Eric A. Havelock, The Muse Learns to Write: Reflections on Orality and Literacy from Antiquity to the Present 30 (1986) ("Why, in particular, this focus on the spoken language in contrast to the written? . . . We had all been listening to the radio, a voice of incessant utterance, orally communicating fact and intention and persuasion, borne on the airwaves to our ears.").
15. James Carrier & Achsah Carrier, Every Picture Tells a Story: Visual Alternatives to Oral Tradition in Ponam Society, 5 Oral Tradition 354, 354 (1990).
16. A good example of this heightened awareness is the recent admission of one expert in "oral history" that "for . . . peasants, the quintessential ‘unheard’ people, the visual dimension is absolutely crucial to their stories." Dan Sipe, The Future of Oral History and Moving Images, 19 Oral History Rev. 75, 84 (1991); see also Francois Garnier, Le Langage de l‘Image au Moyen Age (1982); Judith L. Hanna, To Dance is Human: A Theory of Non-Verbal Communication (1979); Karl F. Morrison, History as a Visual Art in the Twelfth Century Renaissance (1990); A Cultural History of Gesture, supra note 5; Carrier & Carrier, supra note 15; Harold Scheub, Body and Image in Oral Narrative Performance, 8 New Literary Hist. 345 (1977). Prior to the late 1970s, scholars such as Marshall McLuhan and Walter Ong had written about nonverbal media and their impact on present and, to some extent, past societies, but neither had used his observations to formally rework the prevailing speech-oriented concept of "oral culture."
17. McLuhan recognized early on that "TV has opened the doors of . . . perception . . . to the non-visual world," Marshall McLuhan, Understanding Media 54 (1964), but most scholarly progress in this area is of much more recent vintage. See, e.g., Paul Stoller, The Taste of Ethnographic Things: The Senses in Anthropology (1989); The Varieties of Sensory Experience: A Sourcebook in the Anthropology of the Senses (David Howes ed., 1991) [hereinafter Varieties].
18. Anthropologist Ruth Finnegan has recently made a similar point in the rather more limited context of "oral poetry," the dominant literary genre of most oral cultures: "it is emerging more and more that when we speak of ‘oral poetry’ . . . we need to take account of more than just the words . . . . [T]he analysis of oral poetry now really has to be extended into the spheres of kinesics, visual expression, and communication media or symbols more generally." Ruth Finnegan, Oral Poetry: Its Nature, Significance and Social Context xi-xii (1992) (italics in original).
19. Thus, McLuhan’s famous aphorism, "The medium is the message."
20. See Eric A. Havelock, Preface to Plato (1963); Walter J. Ong, The Presence of the Word: Some Prolegomena for Cultural and Religious History (1967); Ong, supra note 12.
21. Continental legal scholars have notably shown some interest in the subject since the early nineteenth century. See, e.g., Jacob Grimm, Von der Poesie im Recht , in 6 Jacob Grimm, Kleinere Schriften 152-91 (1882); Jacob Grimm, Deutsche Rechtsalterhümer (1828); Jules Michelet, Origines du Droit Francais Cherchees dans les Symboles et Formules du Droit Universel (1837), in Jules Michelet, 3 Oeuvres Completes (1973); Joseph-Pierre Chassan, Essai sur la Symbolique du Droit Primitif (1847). Unfortunately, very little of this pathbreaking work and the scholarship it has inspired has been translated into English.
22. Note, for instance, the leadership of French scholars in chronicling and analyzing the history of gesture. Garnier, supra note 16; Jean-Claude Schmitt, La Raison des Gestes dans l’Occident Medieval (1990); Jacques Le Goff, Gestures in Purgatory, in The Medieval Imagination 86 (Arthur Goldhammer trans., 1988).
23. See supra note 2.
24. M. Ethan Katsh, The Electronic Media and the Transformation of Law (1989). For a recent article developing Katsh’s analysis in the realm of audio-video technology, see Ronald K. Collins & David M. Skover, Paratexts, 44 Stan. L. Rev. 509 (1992).
25. Katsh, supra note 24, at 60-63.
26. Relying heavily on Katsh (and, ultimately, Ong), Collins and Skover are guilty of the same oversight when they purport to describe the law of preliterate and marginally literate societies solely under the heading of "Law and the Spoken Word." Subsequently, however, they reveal the limitations of both their subtitle and their overarching cultural model by spending several paragraphs talking about the ritual and "visual drama" of law in oral societies. Collins & Skover, supra note 24, at 516-18.
27. See supra notes 16-17.
28. This point was not entirely lost on such pioneering media theorists as Innis and McLuhan. In 1951, Innis observed, "In oral intercourse the eye, ear, and brain, the senses and the faculties acted together in busy co-operation and rivalry each eliciting, stimulating and supplementing the other." Innis, supra note 12, at 105. McLuhan occasionally spoke of "audile-tactile" man and offered such mysterious pronouncements as "speech is an outering (utterance) of all of our senses at once." McLuhan, supra note 3, at 43, 93. Neither scholar, however, was willing to concede the inadequacy of his "oral" terminology for describing sensory phenomena far more complex than the terms "oral intercourse" or "speech" would properly admit.
29. The suggested chronological termini for the performance cultures identified here are, of course, approximate; in each instance, individual scholars differ slightly on when writing became a significant social force.
30. It is currently unfashionable to generalize across so many societies. It must be acknowledged, however, that in this age of academic super-specialization most historians and anthropologists "have a vested interest in the particularity of the individual culture that they have taken such pains to understand." Richard Posner, Medieval Iceland and Modern Legal Scholarship, 90 Mich. L. Rev. 1495, 1501 (1992). What is more, if societies are allowed to defy comparison by virtue of their supposed uniqueness, "then one is condemning research in the human sciences . . . to a singular impoverishment." Jacques Le Goff, Time, Work and Culture in the Middle Ages 365 n.l09 (Arthur Goldhammer trans., 1980).
31. See, e.g., Richard Bauman, Verbal Art as Performance (1977); Stuart H. Blackburn, Singing of Birth and Death: Text in Performance (1988); Johannes Fabian, Power and Performance: Ethnographic Explorations Through Proverbial Wisdom and Theater in Shaba, Zaire (1990); Elizabeth Fine, The Folklore Text: From Performance to Print (1984); Richard Bauman & Charles L. Briggs, Poetics and Performance as Critical Perspectives on Language and Social Life, 19 Ann. Rev. Anthropology 59 (1990); John M. Foley, Word-Power, Performance, and Tradition, 105 J. Am. Folklore 275 (1992); Scheub, supra note 16.
32. Julia M. Smith, Oral and Written: Saints, Miracles and Relics in Brittany, c. 850-1250, 65 Speculum 309, 311 (1990). The latter quality would also distinguish biblical Israel.
33. In this Article, I reluctantly use the term "writing culture" as the most convenient shorthand label for societies that have had enough experience with writing to significantly and perhaps even profoundly alter their preliterate habits of expression and thought. In this context, it should be apparent that a "writing culture" is not simply a culture that possesses the technology of writing, but rather is one that has significantly assimilated or "interiorized" that medium. Ancient Mesopotamia and Hellenic Greece cannot, therefore, be classified as "writing cultures," despite the fact that a good number of individuals within those societies could write. It should also be noted that in this Article, "writing" in the context of the term "writing culture" refers to an intellectual skill (in the sense of the general ability to "read and write"), as opposed to physical "handwriting" or "script." Thus, although the culture of Hellenistic Greece was largely based on manuscripts and the culture of modern America is based on printed books, both societies are, broadly speaking, "writing cultures." Having said this, I would agree that the technological and intellectual impact of print is different from that of script, to the point where one might draw a useful distinction between "script" and "print" cultures or, perhaps more accurately, between "graphic" and "text" cultures. See infra note 36. For present purposes, however, the distinction between script/graphic and print/text societies is less important than the basic discontinuity between performance-based societies and "writing cultures" as a whole.
34. On the rise of writing and the concomitant decline in the autonomy and importance of traditional media in Hellenistic Greece, see Peter Bing, The Well-Read Muse: Present and Past in Callimachus and the Hellenistic Poets (1988); William V. Harris, Ancient Literacy 116-46 (1989); Eric Havelock, The Literate Revolution in Greece and Its Cultural Consequences (1982). For late republican and Imperial Rome, see Harris, supra, at 175-284. For late medieval Europe, see Margaret Aston, Lollards and Reformers: Images and Literacy in Late Medieval Religion (1984); Janet Coleman, Medieval Readers and Writers, 1350-1400 (1981); Harvey J. Graff, The Legacies of Literacy 75-106 (1987); Paul Saenger, Books of Hours and the Reading Habits of the Later Middle Ages, in The Culture of Print: Power and the Uses of Print in Early Modern Europe (Roger Chartier ed., 1988).
35. One classical scholar has, for instance, commented that "the Greek and Roman worlds always remained highly dependent, by modern standards, on oral communication; this was true . . . even in the cities of . . . Hellenistic Greece and . . . the high Roman Empire." Harris, supra note 34, at 29. The difference between these cultures and their performative predecessors, therefore, is not that the former suppressed nonwritten forms, but rather that they no longer depended on those forms to carry the full weight of social and legal messages. Thus, while oral communication survived as an important medium, it lost a significant measure of its autonomy and authority, being increasingly used for dictating or reading written documents.
36. It is this phenomenon that prompts me to prefer the term "graphic culture" to "script culture" as a specific characterization of such early writing cultures as Hellenistic Greece and late medieval Europe. See supra note 33. "Graphic" potentially denotes both chirographic (written) and iconographic (painted or drawn) representation and takes account of the intimate and fertile relationship that historically has existed between these forms, and which becomes especially powerful in societies that are just becoming familiar with writing (to appreciate this point, simply consider the splendid synthesis of chirography and iconography that is the medieval illuminated manuscript). "Script," on the other hand, denotes writing only and misleadingly suggests that early writing cultures are solely oriented towards the written word. Taking this analysis a step further, using the term "text culture" to specifically describe the writing culture of, say, nineteenth century Europe is preferable to using the term "print culture" because it more accurately communicates the cultural focus on written words - at the expense of pictures - that the technological and chromatic limitations of print have historically encouraged. I hope to elaborate on these distinctions and their social and legal implications in later papers.
37. Because it is easier to produce and easier and cheaper to duplicate than script, print greatly facilitates the spread of written materials and literacy. Moreover, it is only under the impetus of print technology that a society can become so familiar and so suffused with the written word that its high literates can truly "afford" to challenge the authority of nonwritten media without fear of destroying the cultural corpus. Thus, the chronological coincidence between the growth of printing and the sensory upheavals that marked the Reformation. See supra notes 3-8 and accompanying text.
38. Of course, writing is not about to disappear. In the short term, at least, it will simply take new, more overtly graphic forms and will be used in new, less autonomous ways. On the future of writing in our society, see Jay D. Bolter, Writing Space: The Computer, Hypertext, and the History of Writing (1991); Myron C. Tuman, Word Perfect: Literacy in the Computer Age (1992); Richard A. Lanham, The Electronic Word: Literary Study and the Digital Revolution, 20 New Literary Hist. 265 (1989). For a tantalizing glimpse into the world of "virtual reality," a computer-generated sensory cocoon in which the status and utility of writing will be far more problematic, see Benjamin Woolley, Virtual Worlds: A Journey in Hype and Hyperreality (1992).