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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III. The Phenomenon of Performance

'Tis all in pieces, all coherence gone,
All just supply and all relation.
John Donne280

I n our own culture, we are accustomed to communicating and assimilating most of our important intellectual information through individual and isolated media. Our most powerful expressive form, the written word, has effectively monopolized its contexts. It has generally excluded "lesser" forms of aural, tactile, and savory communication from its sensory space. Writers communicate by manipulating words and letters, not sounds, touches, scents, or flavors. Under the impetus of print technology, writing has even displaced other kinds of visual expression with which it is more theoretically compatible. Thus, our serious treatises usually have either very few pictures (frequently segregated from the text in a collection of "plates") or no pictures at all.

[3.2] Our culture’s reliance on writing has also influenced the ways in which we experience nonwritten media. When engaged in serious cultural communication, we are inclined to isolate specific nonwritten forms of expression from each other, just as we routinely isolate our writing from those forms. We therefore separate music (aural) from painting (visual), and dance (visual) from sculpture (tactile).281 We perceive each of these products as fundamentally different. Even on those rare occasions when we unite two or more sensory elements, we still try to separate creative responsibility for each of them. We divide the labor of creating a ballet between the composer (who deals in what is heard) and the choreographer (who deals in what is seen).282 We may even take steps to ensure that information that is capable of being transmitted and appreciated through several senses simultaneously is only transmitted and appreciated through one. For instance, the rules of most art galleries not only forbid visitors from touching sculpture, but they also discourage talking, just as we discourage talking in a library. This coincidence underlines the constraining influence writing has had on our general behavior, even where writing itself is not involved.

[3.3] Our law has hardly been immune from these efforts at sensory dissociation. For example, the parol evidence rule dictates that if parties make an agreement in writing, that writing, if unambiguous, becomes legally definitive. All prior or contemporaneous utterances of the parties become immaterial. Instead of being considered as parts of a single expressive event, "relevant" writing is separated from "irrelevant" speech. Within the ranks of the legal profession, we have similarly come to regard legal speaking and legal writing as separate tasks. The former is the special province of the litigator who spends his or her professional life going to court and arguing cases. In England, the distinction between legal speaking and legal writing has actually been institutionalized, with barristers doing oral advocacy while solicitors draft most of the legal documents. Even within the realm of visual communication, the law is almost entirely a matter of written words. When an American or English appellate court reviews a trial court decision, it reviews the written record of what was said without asking to see living witnesses or inquiring about their demeanor while testifying. By virtue of the same understanding, our law reports, statute books, and texts rarely include illustrations.

[3.4] In performance cultures, the basic communicative idiom is very different. Instead of suppressing certain media or keeping them separate, members of preliterate or marginally literate societies continually combine media. In their highest forms of cultural and intellectual expression, speech routinely gives voice to gesture and gesture gives shape to speech; music gives sound to sculpture, while sculpture gives substance to music. Law is simultaneously heard, seen, and sometimes even felt and savored. Ultimately, the meaning of significant cultural and legal messages resides less in the individual components of communication (although these must be recognized) than in their synthesis, performance.

[3.5] In the first part of this section, I will review how different media work together in performance cultures to transmit lore and law. In the second part of this section, I will consider the circumstances contributing to the popularity of performance as a cultural and legal "meta-medium." In the third and final part of this section, I will discuss the distribution of information among the various sensory components of performance and ponder the pitfalls that distribution presents for our evaluation of cultural and legal meaning in performance-based societies.

A. Performing Lore and Law

[3.6] In performance cultures, performances characterize innumerable social and intellectual events that members of our writing culture would regard as implicating only a single medium, and frequently only a single aspect of that medium. For instance, we commonly characterize the recitation of poetry as a form of aural communication, relying on the speaking and hearing of words. In a performance culture, the recitation of poetry involves much more. In ancient Greece, for example, the poet’s words were delivered as part of a larger aural-visual-tactile complex of music and dance.283 In this context, it is no accident that the single word mousiké, which denoted "the art of the Muses," referred to words, music, and dance equally.284 Anthropologists have noted similar sensory associations in traditional African societies. Here, the roles of words, music, gesture, and dance are so inextricably mixed that one anthropologist has suggested that "not just the tape recorder or bound volume which records the sound alone, but perhaps a full-length color film appears to be the one medium that can catch and convey something of the complete, complex and magnificent texture that is the [Ozidi] epic."285 Words and music in particular are so interdependent that African performers have difficulty dictating the text of a poem without musical accompaniment.286

[3.7] The same general points might be made about the exhibition of sculpture and carving. Largely because of the constraints we have imposed on aural and tactile expression, we tend to conceive of such exhibition as a visual event. Members of performance cultures, however, rarely separate the experience of seeing sculptures and carvings from touching them and/or singing about them. When the medieval supplicant saw the religious image and felt it, it became a visual-tactile presence. When the Australian aborigine sees the churinga and sings, it is a visual-aural presence.287 Even the narrowly visual experience of sculpture in performance cultures tends to be much more complex than it is in our own. Frequently, performative sculptures are exhibited in the midst of dances or processions, making them part of a broader kinetic display. The image is carried; the carving is worn. Analogously, members of performance cultures treat sculptures as creatures of color as well as form. In our sensorially subdivided universe, statues generally have no color except that given them by their material, such as marble white and metal gray. In many performance cultures, sculpture and painting merge with striking results. Even the Hellenic Greeks, whose sculptures we experience today as pristinely white, enthusiastically painted their works.288

[3.8] The sensory interdependence of performance cultures, as evidenced by these and other communicative practices, is matched by the sensory interdependence of performative law. Just as members of performance cultures simultaneously use different media to recite poetry and exhibit sculpture, they frequently combine different channels of communication in legal expression. Law is not so much said, sung, gestured, or felt as it is holistically performed. This performance involves far more than surrounding a single legally efficacious medium (such as speech) with spectacular sensory supports. On the contrary, performative legality tends to reside in the unity of sensory expression to the point where a fault of words or acts may be equally fatal to the legality of a transaction.289

[3.9] Of course, just as contemporary Anglo-American law retains certain aural, gestural, and tactile features, it is not altogether unfamiliar with the orchestration of several sensory elements in performance. For instance, it has been suggested that "performance" properly describes a modern trial, considered as a work of legal theater simultaneously implicating and relying on both verbal and nonverbal forms of expression.290 Such legal ceremonies as the signing and witnessing of wills are perhaps performances of a less ambitious sort. In our own writing culture, these multisensory legal routines are nonetheless the exception rather than the rule. Moreover, they either depend for their validity on strict adherence to written directions (will execution), or they are subject to written control and correction on the basis of their written records (trials). Performance may therefore not have disappeared from our legal universe, but it has certainly been marginalized. Our law is considered to reside primarily in documents, not doings.

[3.10] The same cannot be said of law in performance cultures. In societies with little or no access to writing, law that cannot be inscribed is constantly being performed. Many of the specific aural, visual, tactile, and savory legal acts highlighted so far are ultimately parts of larger performative wholes. However useful and even analytically necessary it has been to isolate them according to sensory category (in order to demonstrate the range of media put to legal purposes in performance cultures), at least some must be put back in context if the reader is to understand how most performative legal transactions are actually executed and experienced.

[3.11] Consider, for instance, the biblical transfer of a sandal (denoting the transfer of land) that we incidentally encountered in "The Sight of Law."291 In practice, this was only one component of a conveyancing procedure that depended on a subtle interweaving of aural, visual and tactile elements. The Book of Ruth gives us a good sense of what usually occurred. According to Scripture, Naomi wished to sell land acquired from her deceased husband Elimelech. The sale took place at the town gate, with Naomi’s relative Boaz acting as her agent. Boaz explained before "ten men of the elders of the city"292 that if an unnamed man who was the closest blood relative of Naomi’s husband wished to buy the land, he had to do so then, or otherwise the right of purchase would fall to Boaz himself in his own capacity as a relative. The man initially agreed to buy the land, but then he reconsidered, saying to Boaz, "Buy it for yourself."293 At the same time, the man took off his sandal and gave it to Boaz, for "it used to be the custom in Israel that, to make binding a contract of redemption or exchange, one party would take off his sandal and give it to the other."294 After receiving the sandal, Boaz turned to the witnesses and declared,

You are witnesses this day that I have bought from the hand of Naomi [albeit through the unnamed man] all that belonged to Elimelech. . . . Also Ruth the Moabitess, the widow of Mahlon, I have bought to be my wife, to perpetuate the name of the dead in his inheritance. . . . [Y]ou are witnesses this day.295

The witnesses then acknowledged their role by replying, "We are witnesses."296 The formal conveyance had been aurally explained and acknowledged. It had been visually manifested in the passing of the sandal. It had even been felt by the parties who gave away the sandal and acquired it. This was more than merely law for the ears, the eyes, or even the hands. This was law for the whole body.

[3.12] The ancient Roman transaction of transfer called mancipatio (parts of which we have already encountered piecemeal) was also a performance. The transaction required the presence of the immediate parties, at least five Roman citizens of legal age, a bronze ingot, a set of scales, and a person (librapens) to carry the objects. Mancipatio officially began when the transferee grasped the object of transfer and said (in the case of a slave), "I declare that this slave is mine according to Quiritary right, and be he purchased to me with this bronze ingot and bronze scale."297 At this point, the transferee struck the scales with the bronze, and then passed the bronze to the transferor.298 Again, the event was multisensory: a synthesis of aural communication (the words and the sound of the bronze striking the scale), visual communication (the grasping of the claimed object in the view of the parties and of witnesses), and tactile communication (the grasping of the claimed object by the transferee). A person who either could not hear, see, or feel did not get the full sensory benefit of the transaction.

[3.13] Finally for present purposes, consider the performative dimensions of the homage and investiture ceremony of the early Middle Ages. The procedure’s gestural and tactile aspects appear nicely integrated with aural elements in this unusually-complete description from 1127:

[The vassal] did homage in this way. The count asked [the vassal] if he wished to become his man without reserve, and the latter answered: "I do." Then joining his hands together, he placed them in the hands of the count, and they bound themselves together by a kiss. In the second place, the man who had just done homage pledged fidelity . . . to the count in these words: "I promise on my faith to be faithful from now on to count William and to observe [the obligations of] my homage completely, in good faith, and without deceit, against all men," and this he swore on the relics of the saints. . . . Finally, with a little stick which he held in his hand, the count gave investiture [of fiefs] to all who had . . . promised security, done homage, and taken the oath.299

A busier scene would be hard to imagine. The vassal spoke and heard the words of his lord. He performed and saw various gestures. He was directly touched by his lord in the handclasp and in the kiss of homage, and he felt the stick transferred to him upon investiture. A variety of senses simultaneously informed him that he had acquired rights and obligations. Neither he nor his witnesses could deny their combined evidence.

B. Foundations of Performance

[3.14] Why do members of performance cultures perform? Why do they insist on communicating significant cultural and legal meanings through several media to several senses simultaneously? Prosaic as it sounds, one reason is surely sheer convenience. Most of the media used in performance cultures rely on immediate, face-to-face contact between individuals. Effective speech requires a speaker and a present listener; meaningful gesture needs a gesturer and a present observer; touch needs a toucher and a person present to be touched. Once any one medium forces a communicator into face-to-face contact, other media immediately become accessible and useable to supplement or reinforce the communicator’s message. It is therefore convenient for a speaker to make a gesture or to extend a touch. The performative individual who announces a legal accusation or makes a legal contract may additionally strike the defendant or shake the other party’s hand, if for no other reason than because they are there.

[3.15] Contrast this with the situation of a writer in a writing culture. One of the greatest strengths of writing as a medium is its technological capacity physically to separate the sender of a message from its recipient. Unlike speech, gesture, and so forth, writing can function totally apart from the immediate presence of another person; the writer and the reader need never meet. In order to take advantage of this feature, however, a writer must put everything down on paper. What is not actually written (or, sometimes, what is expressed by other means) will not be communicated. Writing thus discourages simultaneous reliance on speech, gesture, touch, and savor. Even when members of writing cultures engage in other forms of communication (aural, visual, or face-to-face), many frequently act as writing has socialized them to act, that is to say, they draw minimal support from other media, no matter how physically convenient those media may be.300 In the legal communities of some writing cultures, this behavior is a point of professional pride. The quintessential English barrister never moves and rarely gestures in oral argument.

[3.16] The convenience and popularity of performance in performance cultures is both reflected and reinforced by a belief that all forms of expression and sensory experience are somehow united. This belief is frequently manifested in a tendency to describe - and even to react to - one medium in terms of another, a phenomenon known as synesthesia.301 In the midst of a writing culture that insists on separating and classifying media and sensory experience, modern American English preserves a limited number of synesthetic expressions. Some colors are "loud" (sight described in terms of sound); some smells are "sweet" (smell described in terms of taste); some notes are "sour" (sound described in terms of taste).302 In early Greek culture, these constructions occurred so often that they exceeded the boundaries of simple poetic license or artistic metaphor. Rather, they reflected a fundamental habit of thought. Homer frequently used visual imagery to describe aural communication. In the great Greek epics, the voice of goddesses is "lily-like" and hymns "blaze-up" to heaven. The Greek tragedian Aeschylus likewise reported that "the trumpet set the shores ablaze." Other Greek writers assimilated touch and sight, describing "smoothness" and "whiteness" interchangeably.303 The lyric poet Simonides is said to have declared, in a famous synesthetic turn of phrase, that "[p]ainting is silent poetry, poetry is painting that speaks."304 The language of the Old Testament reflects the power of synesthesia in Hebrew tradition. One striking passage from the Book of Exodus, correctly translated, reads: "And all the people saw the thunderings, and the lightning, and the voice of the shofar, and the mountain smoking."305 "Seeing" here has a distinctly aural as well as visual dimension. Today, members of South American Andean cultures share a similar perspective on sense-expression and experience. One language group uses a single word to describe pleasant speech (sound), the sweetness of dried fruit (taste), and a soft tactile sensation (touch).306 From such easy associations it is but a very short step to the conclusion that all media are naturally associated. There is, in other words, no bright-line distinction between the so-called "different" media or senses, and any conscious preference for communicating through a single sense, as opposed to a combination of senses simultaneously, has no basis.

[3.17] If we adopt this perspective on performance, we need to reinterpret some of the legal transactions we have encountered. In synesthetic performance cultures, a legal act we would associate with one sense may be understood to also exist in another sensory dimension. For instance, a tactile transfer within a performance may be understood as having an aural aspect. Passing an object to another person may be literally understood as giving that person not just the property or a symbol of it, but one’s word (in practice, the words of conveyance or pledge spoken on transfer of the object; the modern expression "to give one’s word" may preserve this synesthetic conception). Some scholars have suggested that the Mesopotamian practice of striking someone on the forehead to make an accusation against him was considered not just a forceful way of making a legal claim, but a literal placing of the spoken charges upon the accused’s head.307 Here the spoken word was presumed to have a tactile side. Taking an oath by taking a drink (or eating food) might similarly be seen as "swallowing" the vow, causing it to become literally a part of the oath-taker and thus a physical danger to him should it ever be dishonored.308 This synesthetic belief was made explicit in early Hebrew culture, which had to accommodate it to the circumstances of a marginally literate society. The Book of Numbers declared that if a woman were accused of adultery, she would have to swear an oath that was structured to bring curses down on her if she falsely claimed she was innocent. The officiating priest was required to "write these curses in a book, and wash them off in to the water of bitterness; and he shall make the woman drink the water of bitterness."309 It has recently been suggested that the South American Incas understood their oath-taking ceremonies in very much the same way.310

[3.18] A third reason for the popularity of performance in cultures with little or no experience with writing has to do with the ephemerality of most nonwritten media. The spoken word is fleeting, as is the gesture, the touch, the smell, and the taste. In one instant, they can be heard, seen, felt, and so on, and in the next instant they vanish. Even the material props of performance - objects such as sculptures, carvings, or paintings - may be relatively rare and are frequently perishable.311 This creates a fundamental problem for a preliterate or marginally literate society. How can it preserve its core cultural and legal information over time? It must preserve this information in order to survive and grow; if it fails it will forever be reinventing its own traditions, potentially at great social cost.

[3.19] In this context, the secret of social survival is memory. Information must be remembered by the individuals who hear, see, feel, or savor it, so that they can retell it or recreate it later, and thereby pass it on to others and to the next generation. This overwhelming need to remember makes performance highly attractive as a strategy of communication. When information is performed, it is spread across the sensory spectrum. In part it may be heard, in another part seen, in yet another part felt, and so on. This has two consequences. First, every medium implicated becomes a hook from which the thread of memory can hang. Someone might not immediately remember hearing something, but they might remember seeing it or feeling it. Second, if several different media are used to transmit exactly the same message, the power of that message as a whole is reinforced to the point where the audience may be overwhelmed with sensory input (making distraction or passivity, and hence forgetting, impossible).312 In both cases, each additional medium employed in the transmission of important cultural or legal information serves as additional insurance that the information will survive.313

[3.20] This observation may go far to explain why primary cultural and legal transactions in performance cultures involve so many senses. It may explain, for instance, why the medieval Mass (much of which endures in modern Catholic practice) summoned every sense to the knowledge and love of God,314 and why the homage ceremony that established the central legal relationships of feudalism transcended simple speech to embrace visual and tactile communication.315 The inherent memorability of performance also helps to explain why performance becomes less popular in writing cultures. Given the possibility of recording information physically in such societies, remembering is less important, and performance is less necessary.316 Indeed, because of the time and energy performance requires and the opportunity cost it represents in information not inscribed, it may become culturally and legally inefficient.

C. Performance and the Sensory Distribution of Meaning

[3.21] The phenomenon of performance, whether explained on grounds of convenience, psychology, or mnemonics, has important implications for our understanding of performative cultural and legal meanings. In our own writing culture, we expect each individual medium to be definitive. A writing, painting, or sculpture should be self-contained and self-explanatory. If a work is not self-contained and self-explanatory, its meaning is jeopardized as soon as it stands alone. In a performance culture, however, a single medium never has to bear the entire communicative burden of a message. Speech, for instance, need not be definitive where performers can gesture. Showing can supplement telling. The sociologist Basil Bernstein has in fact argued that, because of this constant interaction between media, societies or subcultures with less experience in writing need only employ a "restricted," as opposed to an "elaborated," code of verbal communication.317

[3.22] Failing to recognize that particular performative media appear in the context of other media may be both unfortunate and misleading. Anthropologist Sam Gill has suggested that trying to understand a performance by means of, say, spoken language alone

is something akin to trying to appreciate a ballet by reading the musical score of the violin in the orchestra. If we know the ballet, we might well see that the violin carries one of the major themes, but what an enormous loss to our eyes, ears and hearts if this is all we are ever permitted to see.318

Another anthropologist, Ruth Finnegan, has taken "oralists" such as Walter Ong to task for concluding from the written record of performative speech that the heroes of most performative epics are type-characters with little individual personality:319 "Characterization . . . need not be expressed directly in words when it can be as clearly and as subtlely portrayed through the performer’s face and gestures . . . ."320

[3.23] Studying any medium of performative law (especially language, as actually spoken or as occasionally recorded in writing) only in isolation is clearly unwise. Doing so may encourage the incorrect belief that performative law is either limited or operates haphazardly. To take a simple example, a performative contract may not verbally identify its object. In the Roman mancipatio, the parties referred to the slave in question only as "this man," a generality that would be anathema in any modern contract. The visual and tactile acts of touching or grasping settled the slave’s identity. Someone who merely heard the words of conveyance would be ignorant of its substance, but someone who heard and saw would understand. Likewise, a valid performative conveyance may not define the bounds of a conveyed property, or it may define them in the loosest of terms. An English charter from around 1209 thus recorded the grant of half an acre in Dunfurlong without recording anything more.321 Another English charter from about the same period described a grant of land as extending "in length from a certain oak towards Hedislethe, which has been uprooted there."322 Here the writing may not have fully captured what was said, but even the absence of further speech would not necessarily have meant that bounds were left uncommunicated and unknown. Verbal vagueness may have been mitigated by a conveyancing procedure that gave witnesses the opportunity of perambulating or viewing the boundaries or which presumed a preexisting visual familiarity with territory. There was, therefore, little need to include lengthy and difficult boundary descriptions, either in an oral conveyancing formula or in any document recording the conveyance. Transactions such as these remind us that because members of performance cultures perform their legal meanings, they deploy legal information in different patterns and sensory ratios than we do. Failing to recognize this would reveal an intellectual weakness that is less theirs than ours.

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