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


C. Tactile Communication and Legal Expression

   1. The Cultural Significance of Touch

[2.46] Having considered the role of aural and visual media in performative communication and legal expression, we now move into the less familiar territory of tactile communication. The reader may understandably feel some unease at this juncture. Most members of modern writing cultures are even more suspicious of touch as a carrier of important information than they are of sound or gesture. We have largely struck touch from our cultural canon.191 It is noteworthy that the original English form of the contemporary visual idiom "seeing is believing" seems to have been "seeing is believing, but feelingís the truth."192 The new form suggests that sight has displaced touch as a preferred arbiter of knowledge.193 From a slightly different perspective, a person considered "touchy" in our society is not as respected or admired as the "seer" or "visionary." Indeed, people do not like to have the touchy person around.194

[2.47] Such attitudes are alien to most performance cultures. Their members live and think in a highly tactile universe. The Hellenic Greeks, for instance, considered geometry to be about "the way the various shapes felt (they tended to imagine themselves fingering their way around a geometric figure), whereas modern geometricians think more about the way the various shapes look."195 Touch likewise dominated the perceptions of early medieval Europeans.196 In discussing the various human senses in his commentary on Aristotleís De Anima, St. Thomas Aquinas gave touch the most attention: it was the most fundamental sense, and functioned as a mirror of the mind. Aquinas believed that a light touch denoted intelligence and nobility of nature, while a heavy touch communicated the opposite qualities.197 The concept of touching was so powerful that it served as a basis for other senses. Even seeing was understood as a form of touching, either of the eyes by rays emitted from objects ("intromission" theory), or of objects by rays sent forth from the eyes ("extramission" theory).198

[2.48] The prevalence of touching as a legitimate medium of telling - and knowing - in performance-based societies has been frequently noted by outsiders from less tactile writing cultures. In 1913, for instance, the head of a Norwegian expedition to the Arctic reported that in his first contact with Eskimos, "Little children jumped up so as to be able to touch our shoulders and men and women stroked and handled us in a very friendly way."199 Touching nonetheless transcends performative greeting rituals. Two North or West Africans may hold hands or otherwise continue physical contact throughout an encounter or conversation. As a general matter,

Arms are continually reaching out to encircle children and to press them hard against an adultís body. . . . Men and women sit and walk with their arms round one anotherís shoulders. . . . [T]he continual attempt to make physical contact - to touch, to hold or to caress . . . - is one of the most noticeable elements in inter-personal relationships.200

In writing societies, such habits are likely to be regarded either as vulgar or as breaches of etiquette. For instance, antitactile prejudices were at least partly responsible for a contemporary English dockworkerís comment regarding male workers from far less literate Pakistan: "Theyíre not natural . . . look at the way they hold hands."201

[2.49] Even when members of performance cultures are not actually engaged in tactile contact, they frequently position themselves so as to facilitate tactile communication.202 Conversations are typically held at close range, and individuals in groups tend to stand or sit very near each other. People literally wish to "stay in touch" (a modern idiom that may unwittingly recall an ancient cultural habit). As one anthropologist has written of the Wolof people of Senegal, "close physical proximity [is] . . . not only tolerated but sought out."203 To sit or stand at a distance would make no more sense to a member of such a tactilely oriented society than for a member of a modern writing culture to stand or sit where eye contact is awkward. In this context, the pictures that have survived of huddled groups of early medieval people may not reflect "primitive" or poor living conditions - or even a certain artistic economy - as much as a natural tendency toward physical proximity among members of a performative society that still believed in the importance of tactile communication.204

[2.50] Art-forms provide further evidence of the significance of tactile communication and expression in performance-based societies. There, sculpture and the other plastic arts take cultural priority over drawing and painting. Anthropologists have indeed discovered that many preliterate societies "lack any tradition of . . . two-dimensional representation."205 Of course, three-dimensional sculptures and carvings can be handled as well as shaped206 so as to provide tactile information lacking in "flat" two-dimensional art. Members of performance cultures actually do handle three-dimensional art objects: Australian aborigines, for instance, experience the carvings on wooden and stone churingas not merely by viewing them, but by touching them and even butting them against their stomachs.207 Similarly, early medieval pilgrims touched religious statues and reliquaries, in many cases wearing them smooth with adoration. As one student of the early Middle Ages has noted, "the religion of the relic was a tactile religion."208 Only in the later medieval period, as writing and literacy became more common and tactile communication less valued, did the practice of touching relics and statues decline.209 Since then, Western statuary has become "painterly."210 Informed by visual rather than tactile prejudices, it has become something to view rather than touch. This purpose is at once acknowledged and reinforced by the regulations of modern art galleries and museums.

   2. The Feel of Law

[2.51] Performance cultures whose members communicate important meanings through touch generally do not hesitate to enlist that medium in support of legal expression. To some extent, the tactile communication of legal meaning may be considered a byproduct of its visual communication. A legal signal or gesture seen by witnesses may sometimes be directly felt by the parties themselves. Given that members of performance cultures are relatively restrained in their enthusiasm for visual expression, however, it seems unlikely that they regard touching in this merely incidental fashion. Indeed, one suspects that as between seeing and touching, they consider touching to be the primary carrier of legal meaning, at least for the parties touching or being touched, with the visible gesture being the byproduct of the transaction.

[2.52] However characterized, the tactile communication of legal meaning in performance cultures tends to assume four basic forms. The first of these, gentle touching, can be either mutual or unilateral. In its mutual variety, gentle touching involves both parties making active, voluntary physical contact with one another, thereby communicating agreement or association. The several handclasps and handfasts described earlier211 perfectly exemplify this type. The modern handshake may admittedly communicate similar ideas, but unlike its counterparts in performance cultures, it frequently operates as a mere ceremonial reflection of agreement legally made and communicated by other means (that is, by writing).

[2.53] Unilateral gentle touching involves one party making unilateral physical contact either with an object or with a passive person. On many occasions, this communicates the making of a promise to the party represented by an object, or a promise made in relation to an object. In early Greek and Roman culture, for example, a legal promise could be made or an oath could be sworn by touching an altar or other object of religious significance.212 Similar practices were common in the early Middle Ages.Figure 8 In Anglo-Saxon England, for example, Aethelredís Laws mandated that a witness swearing an oath hold relics in his hand.213 In the late eleventh century, the Bayeux tapestry analogously depicted Harold Godwinson touching reliquaries, thereby swearing to support the claims of William of Normandy to the English throne (see Figure 8).214 In a somewhat different context, witnesses of medieval land transactions could endorse a transfer they had heard and seen by touching the charter that sometimes recorded the transfer and their names.215 This practice was reflected in the common Anglo-Saxon formula "the witnesses are written and their hands touched."216

[2.54] Alternatively, unilateral gentle touching can communicate the assertion of legal authority over another person or thing. For instance, the early Roman procedure for claiming property, the legis actio sacramentum, enabled one person to claim another person as a slave by touching him with a ceremonial rod. The legal importance of this touching was reflected in the verbal declaration that accompanied it: "I affirm that this man is mine by Quiritary right according to his proper title. As I have declared, so, look you, I have laid my staff on him."217 The traditional Roman mancipatio ceremony also involved a claim-touch. Gaius tells us that "the taker by the mancipation must grasp the thing which is being mancipated to him, which is why the ceremony is called mancipatio, the thing being taken with the hand."218 In early medieval German law, the procedure for reclaiming a serf who had renounced his lord in favor of another analogously required the first lord to touch and take hold of the serfís coattail (see Figure 9).219

[2.55] Finally, unilateral gentle touching in certain performance-based societies may indicate a legal claim against a person or signal his legal culpability pursuant to a claim.Figure 9 In Mesopotamian law, grasping a personís hem, under appropriate circumstances, constituted a formal complaint.220 Under the Roman Twelve Tables, a judgment creditor claimed against a delinquent debtor by taking hold of "some part of the debtorís body."221 In ancient Hebrew law, the individuals who testified against any man who was later condemned to stoning were required to "lay their hands upon his head" to indicate that he was guilty.222

[2.56] The second broad type of tactile legal communication common in performance cultures involves forceful touching, a physically more powerful and potentially more painful form of contact generally designed to emphasize the seriousness of a claim, relationship, or transaction. Thus, one Mesopotamian could announce a legal accusation against another by hitting him on the forehead.223 A Mesopotamian surety could legally guarantee a debt by striking or slapping the forehead of a debtor.224 One interpretation of the earliest form of the Roman stipulatio procedure maintains that after going through the question-and-answer, the promisor bound the promisee by striking him with a ceremonial staff.225 In eleventh and twelfth century Europe, a knight could legally confer knighthood on a squire by hitting him on the face or neck with the flat of his hand; this blow (the "colťe") was later commuted to a gentler dubbing by the sword.226 Perhaps it was familiarity with the use and mnemonic efficacy of this somewhat painful procedure that once prompted William of Normandy to joke that he should drive a symbolic knife through an abbotís hand instead of simply giving the knife to him as a token of conveyance: "Thatís the way to give land."227 According to French feudal law, a purchaser of goods could analogously conclude a legal agreement with a vendor by striking the palm of the vendorís hand with his own.228 The same practice was known in early medieval Germany, where it was termed Handschlag.229 To this day, African Shona women may legally allege adultery or seduction by striking an offending man with an under-apron.230

[2.57] In a related vein, members of performance cultures may use forceful touching to communicate legal meaning and significance to witnesses of transactions or claims. Children attending important legal ceremonies in performance cultures may be struck to focus their attention on a certain time and place of legal consequence. In early medieval France, child witnesses had their ears boxed or tweaked.231 Violence of this kind was occasionally recorded in contemporary writings. One eleventh century Norman charter notes the presence at a transaction of "William, infant, son of Fulk Moirus, who on account of the memory of this thing received a blow at the altar in the sight of many."232 As the last phrase of this record suggests, such a striking would not only have had a tactile effect on the child, but also a profound visual impact on other witnesses.

[2.58] The third basic method by which legal meanings may be tactilely conveyed in performance cultures is by kissing, a specific form of touching that appears to mark the creation or recognition of a particularly close and intimate bond. In the early Middle Ages, a kiss (osculum) signaled the establishment of a feudal relationship between lord and vassal. The kiss was so central a part of the process of paying homage that the procedure became known in some quarters as "a kissing."233 The lord generally kissed the vassal full on the mouth, literally making him (in incidental reference to the hand gestures of fealty described earlier) a "man of mouth and hands."234 In eleventh century Normandy - outside the context of vassalage - an alienor might kiss a recipient of land to mark the transfer of property between them.235 Kisses were similarly bestowed on new knights and people taking legal office.236 Kissing could also communicate the resolution of a legal dispute.237 In this context it may be that the ritual kiss of bride and groom at the end of the modern Western marriage ceremony originally had little or no romantic purpose, being but one application of a common technique of tactilely (and visually) communicating the creation, existence, or reanimation of a legal relationship. In the words of one scholar, "[It] recalls old laws and customs which considered it a formal promise of marriage, or even, in Roman law, a legal bond making the future bride a quasi uxor."238 A somewhat more marginal use of kissing in the law of our own writing culture is the requirement that individuals swearing on the Bible "kiss the book."239

[2.59] The fourth way in which members of performance cultures can express legal meanings in tactile form is by transfer, that is, the practice of one party handing something over to another as a token of conveyance, pledge, or performance. Transfer obviously has a visual dimension (one sees an object being passed), and in that sense it has already been considered, but its tactile aspect is also significant. After all, holding and letting go of objects are among the most fundamental of tactile experiences. The performative grantor - say, the early medieval European - who during a conveyance ceremony holds a clod of earth, tactilely communicates to himself his possession of land. Instead of merely declaring his possession in words, he literally feels the damp or dry soil in his hand. It is an unmistakable tactile reminder of his association with it. When the conveyance is made and the clod is passed, the grantee of the land knows what he has acquired by feeling the dirt that has been given to him. Even when members of performance cultures use more indirectly symbolic objects to signify conveyance or pledge, they are still engaged in tactile communication. The grantor or pledgor knows he is giving something up because he loses a tactile stimulus. He no longer feels anything in his hand. At the same time, the person receiving property or gaining the benefit of a pledge knows he has acquired something because he can feel an object he could not feel before.

[2.60] In addition to these four forms of tactile legal expression used by or between individuals in most performance cultures, members of a number of performance-based societies believe that their guiding divinities or spirits can communicate the legal guilt or innocence of accused persons by touching them, or causing them to be touched, in certain ways. This type of tactile communication is facilitated and indeed called for in the ordeals I briefly described in considering "The Sight of Law." In an ordeal, the implicated divinity or spirit may not personally and directly touch the proband, but the proband is frequently commanded to touch or to otherwise come in contact with a substance that somehow represents or has been associated with the entity (through consecration, perhaps). If the proband can sustain the touch without injury - if he can carry the hot iron, or immerse his arms in the hot water - it signifies his innocence, and he is freed. If he cannot sustain the touch - if it is too painful for him, or too damaging to him - that signifies his guilt. The judgment is interpreted visually by witnesses, but the ceremony of the ordeal is calculated so that the accused man does not merely see, but also physically feels a divine sign of his guilt or innocence. His reaction to this touch of the gods seals his legal fate. Indeed, that touch may be the ultimate form of tactile legal communication.

D. Smell and Taste: Savory-Sense Communication and Legal Expression

   1. The Cultural Significance of Savor

[2.61] The associated savory media of smell and taste play less obvious roles than sound, sight, and touch in the communication of significant meaning in performance cultures. Even so, their performative significance far exceeds the minimal relevance and role we commonly ascribe to them.240 In the first place, performance-based societies tend to be highly olfactory. The habit of reading and writing has not yet encouraged performative individuals to ignore, and even suppress, information received through their noses as opposed to their eyes.241 Indeed, from the perspective of modern America, with its personal deodorants, air fresheners, and complex public sanitation systems,242 it is almost impossible to appreciate how simultaneously rich and oppressive performative olfactory experience is. As pleasant and unpleasant odors envelop members of performance cultures at every turn - in the fields, in the home, and in the marketplace - it is only natural that such individuals should use smells and scents both to communicate and to understand.

[2.62] In ancient Near Eastern culture, sweet smells of perfume, incense, and sacrificial smoke indicated both divine presence and divine approval; they were therefore common features in religious and political ritual.243 The Hebrew prophet Isaiah foretold that God would communicate his displeasure with men by a changing odor: "instead of sweet smell, there shall be stink."244 Homerís Greeks similarly believed that their gods signified anger by leaving burnt offerings "charred in acrid smoke."245 The early medieval Church not only employed incense to communicate with God, but additionally regarded sweet smells as Godís way of communicating the holiness of his ministers. This was the famous "odor of sanctity," which was invariably supposed to issue from the exhumed remains of any saint.246

[2.63] The acknowledged value of communication and comprehension through smell in performance cultures incidentally adds a further dimension to what I have identified as a cultural tendency towards physical closeness and proximity.247 Like touch, smell is in most cases only employable and understandable at close physical range. Thus, members of traditional Arab cultures prefer to stand close to one another so that they may literally be in the otherís breathing space, the smell of breath supposedly being very communicative of a personís character and disposition.248 The fact that we are so literally and metaphorically protective of our "breathing space" indicates how far our writing culture has backed away from olfactory communication.

[2.64] The sense of smell is inherently linked with the sense of taste. Without a sense of smell, taste is robbed of most of its meaning. Conversely, sensitivity to smell in most instances promises sensitivity to taste and, by implication, the habits of eating and drinking. In performance cultures, the general sharing of taste through food and drink routinely communicates friendship, approval, agreement, or transition. For instance, in the language of the Luba people of Zaire the verb "to eat" denotes new access to power. One "eats the office of chief" (becomes chief).249 Members of performance cultures may consciously manipulate individual tastes to emphasize, or even to alter, the basic meanings of ingestion. African Songhay culture thus holds that respect can be communicated to visitors by the preparation of savory sauces; contempt or disapproval may be signaled by the preparation and serving of a "bad sauce."250 In Hausa society, the cultural and communicative significance of tasting and eating is emphasized by the prominence of these activities in folktales, a majority of which "centre around food, tasting, eating or swallowing."251 In one remarkable Hausa tale, all the actors in the story are foods and tastes: Salt, Pepper, Nari (a peanut-based sauce), Onion Leaves, and Daudawar Batso (a strong-smelling sauce).252

   2. The Savor of Law

[2.65] Just as the law of performance cultures has a sound, a look, and a feel, it has a savor. Failure to recognize this fact can cause members of writing cultures to overlook or misinterpret important forms of performative legal expression. For instance, members of writing cultures may not immediately appreciate that in a performance culture, the release of scent can communicate significant changes in an individualís legal condition, relationships, or obligations.253 In ancient Mesopotamia, many such changes were marked by anointing individuals with the scented oil ubiquitous in Near Eastern cultures. We know that anointing played a part in the conveyance of land, although we do not know whether this anointing was of the parties by each other, of the parties by themselves, or of witnesses by the parties.254 Anointing could also announce a Mesopotamian betrothal or, according to some scholars, a marriage.255 It could similarly be used in freeing a slave, provided it was done in the early morning, with the slave facing the rising sun.256 This orientation may itself have been aromatically significant. In the first place, the heat of the sun can enhance the scent of certain oils. In the second place, if the oil poured on the head were mixed with fat (as was sometimes done in the Near East), the heat of the sun would eventually cause the fat to melt, gradually releasing the scented unguents over the body:257 the higher the sun rose in the sky, the easier perhaps it became for the former slave (and others) literally to sniff the scent of freedom.

[2.66] Evidence for the use of scent in the legal transactions of performance cultures outside the Near East is far less common, but occasionally one finds a legal event that has either an overt or an incidental aromatic aspect. Here the point is not that olfactory communication of legal meanings is commonplace, but that it occurs at all. In early medieval Europe, for instance, the ultimate legal act of royal coronation reached its climax not when the king took his verbal oath or assumed the visual symbols of his office, but at the unction, when the officiating cleric poured aromatic oil over the kingís shoulders and head, formally and mystically communicating his ascension to both him and the assembled throng.258

[2.67] In performance cultures, tasting, eating, and drinking may similarly communicate a legal transaction or event to immediate parties or to witnesses. The meaning of these acts nonetheless varies from culture to culture. In the ancient Near East, taking a meal together could communicate the establishment of a binding agreement. A Hebrew tradition notably regards the Old Covenant with Yahweh as a meal taken together in his presence.259 In Exodus, God moreover says to Moses that through the eating of unleavened bread at Passover, "it shall be to you as a sign on your hand and a memorial between your eyes, that the law of God may be in your mouth."260 In the Middle Ages, a couple ate together to signal their marriage (which may be the source of the modern practice of watching the bride and groom as they eat the first slice of wedding cake).261 Among the Anglo-Saxons, a ritual meal or feast could also communicate the revival of a relationship after a dispute.262 A similar custom is still common in parts of Africa. Among the Ibo people, the party judged to be at fault is required to take food to the other party so that the two can eat together, thereby communicating their new-found peace to themselves and to observers.263 It has also been asserted that the early medieval quitclaim originally involved a formal dinner representing the end of contention over land.264

[2.68] On occasion, meals marking a legal transaction may be shared with witnesses. This practice serves both as an advance gesture of thanks to the witnesses for supporting the transaction afterwards and as a means of communicating the nature and importance of the legal event. In Mesopotamian law, for instance, parties and witnesses to a land transaction were required to "eat the ram and drink the cup"265 before their dealings were legally complete and valid. In African Kamba society, food and drink are still provided to witnesses to a property transaction.266 Similar practices are known to Ghanian Akan law and to the law of the Philippine Nabaloi people.267

[2.69] Although drinking often accompanies eating on legal occasions, drinking may mark a transaction on its own. In Homeric Greece, for instance, contracting parties poured wine into a bowl and shared the contents to communicate the mixing of their wills and fates.268 The mythic Argonauts marked their mutual compact by drinking a mixture of "barley, bullís blood, and seawater."269 Herodotus reported that Greek mercenaries once indicated their agreement to serve by drinking a mixture of wine, water, and the blood of a human sacrifice.270 Continuing an ancient Teutonic tradition, bargains in early medieval Germany and central Europe were also sealed by drinking together.271 In traditional Zulu culture, drinking beer from the same vessel formally communicated reconciliation.272 In native Fijian society, drinking from the same dish communicates the completion of a legal marriage.273 This practice survives as an archaism in many writing cultures, with bride and groom drinking from the same wedding- or loving-cup. The modern habit of toasting someone or something may faintly echo these performative procedures.274

[2.70] From time to time, drinking for legal purposes may be unilateral. In this situation, taste communicates legal meaning or change to only one party, although the consumption of the drink may provide a convenient visual sign for witnesses. The record of one Anglo-Saxon conveyance thus reads:

[O]ne Ulphus, the son of Toraldus, turned aside into York, and filled the horn he was wont to drink out of with wine; and before the altar, upon his bended knee, drinking it, gave away to God and to St. Peter, the prince of the apostles, all his lands and revenues.275

It is reasonable to conclude that the cups and drinking horns that rested in so many medieval muniment rooms as physical records of land transfers either were used in a similar way or materially recalled an earlier tradition.276

[2.71] In a performance culture, drinking to transfer property may also constitute an oath to make good the transfer. Both eating and drinking are directly associated with oath-taking in many performance-based societies. Frequently, the food and drink consumed are seen as divinely blessed or of divine origin, and are thus regarded as vehicles through which the gods or spirits can communicate legal meanings to the participants. This makes them particularly attractive tools in oath-based ordeals. In the early Middle Ages, clerics were subjected to "the ordeal of the sacred morsel." If a cleric were innocent and swore truly, God would enable him to swallow a morsel of consecrated bread or cheese; if the cleric were guilty and swore falsely, God would prevent him from swallowing.277 Among the Mabulu people of Nigeria, a person may analogously swear to his ownership of land by swallowing a piece of earth and saying, "if this is not my earth, may I never eat the fruits thereof and live,"278 under the belief that gods or spirits acting through the eaten earth will kill the oath-swearer if the claim is legally false.

[2.72] If the gods can convey legal meaning to man through eating and drinking, it stands to reason that man can convey legally significant meanings to the gods by offering them food and drink. This is attempted in many performance cultures by a variety of techniques. Libation, for instance, involves offering a liquid (generally blood or water) to a deity by pouring it over an object associated with the deity. Libations were legally significant in early Greek and Roman law where they generally denoted agreements or promises. In Rome, the act of libation was implicated in the words of the ancient stipulatio contract, the contracteeís answer of "spondeo" coming from a Greek word meaning "drink-offering." This suggests that it may once have been customary to make such an offering before an agreement could be concluded.279

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