n the body of this Article I have made two fundamental points. First, I have argued that just as members of societies having little or no experience with writing ("performance cultures") communicate significant information through media embracing the entire sensory spectrum, they express their legal meanings in myriad permutations of sound, gesture, touch, and savor. Resisting the temptations of "graphocentrism" on the one hand and the siren song of orality on the other, we need to reorient our study of preliterate and marginally literate legal expression to take all these forms of communication into account. Second, I have suggested that just as considerations of convenience, psychology, and memory encourage members of these cultures to transmit significant information by several media simultaneously, the law of such societies is not so much proclaimed, gestured, or otherwise manifested in a single medium as it is holistically performed. Because this practice enables legal meaning to be distributed among different media instead of being concentrated in a single channel, we must take care to consider the totality of verbal and nonverbal information in any given performative legal transaction.
[4.2] To have considered the media and modes of communication and legal expression favored in performance cultures is to have confronted a world that is both strange and vaguely familiar. That world is strange because members of performance cultures routinely employ and indeed prefer media and combinations of media that we have largely rejected - in some instances, even ridiculed or forgotten - as carriers of important cultural and legal information. It is nonetheless vaguely familiar because, even in the face of our own rejection of nonwritten (and largely nonverbal) channels for formal intellectual communication, we still use them and indeed depend on them in our daily, ordinary intercourse with one another. At least to this extent, we are all performers of a sort.
[4.3] Our limited familiarity with performative media and even performance itself indicates that we can be open to performative meanings if we choose. Although our own culture has trained us not to expect important messages - in particular, legal messages - to be transmitted in certain ways, we can still receive them by making a special effort to actually or figuratively listen, look, feel, and so on. In a manner of speaking, this Article has been an appeal for us to do just that - to "come to our senses" long enough to transcend our writing-induced prejudices and experience general and legal meaning on another culture’s terms. Achieving these goals may become easier as our own culture begins to change and new audio and video technologies reacclimate us to nonwritten ways of knowing and telling.
[4.4] Adjusting our agenda of communicative relevance is nonetheless only a first - albeit necessary - step towards understanding life and law in performance-based societies. As the reader may recall from the introduction, a variety of media theorists have argued that because communication is essential to the survival of any community, societies tend to favor behavior and beliefs compatible with the characteristics of the media they depend upon. If these theorists are right, then the societies and, by implication, the legal systems I have described as relying on performance should reflect the substantive characteristics of performance.
[4.5] Identifying the characteristics of performance and exploring their possible manifestations in culture and law are obviously major undertakings that require consideration in a separate paper. In order to whet the reader’s appetite, however, and in order to show just where the present work has led us, let me briefly outline what I believe some of these characteristics and their manifestations to be.
[4.6] First of all, performance is personal. Unlike writing, which can exist apart from the writer, performance that depends on the use and synthesis of such media as speech, gesture, and touch requires the ongoing, live participation of a human actor. In a culture where little if anything can be looked up in written words, no significant knowledge passes without personal action. Without the performer, there is no performance. In this environment, individuals quickly come to associate what is performed with who is performing. Information cannot exist independent of the status or reputation of the human individual presenting it. The objective appreciation of a message is inevitably entangled with a subjective appreciation of its messenger.
[4.7] As a result, the performative understanding of law differs profoundly from our own. In a writing culture that can physically separate contracts, judgments, and statutes from their proponents, we consider law to exist apart from, and indeed above, human individuals. This attitude is perhaps best captured in the aspirational phrase "a government of laws and not of men."323 In performance cultures, however, laws and men are virtually coincident.324 Finding the law generally means finding someone who can perform or remember it. Disputes are resolved not by appealing to texts, but rather by questioning live witnesses and invoking personal authorities. In the absence of dispositive evidence, legal rights may depend not on argument, but on comparative calculations of personal honor and status. The oath of a nobleman may trump the oath of a slave.
[4.8] Besides being personal, performance is also social. Communicative success depends on the live performer actually appearing before a live audience. This continually forces would-be tellers and knowers into social situations. What a contrast with the proverbial image of a writer scribbling alone in a garret, or a reader poring over a book in the solitude of a carrel! In the short term, the social aspect of performance encourages members of performance cultures to be responsive to the needs and desires of their present interlocutors, and equally encourages those interlocutors to make their preferences known to physically accesible performers. Performances, unlike writings, are thus products of spontaneous action and reaction. Ultimately, performances unburdened by permanent physical form may be modified to suit different audiences on different occasions. In performance cultures, there is therefore no standard performance - no perfect, original epic poem for example - only variations on a theme.
[4.9] In the long term, the social aspect of performance creates a cultural atmosphere in which sociable behavior is greatly prized. The more sociable people are, the more likely they are to communicate, and the more likely it is their cultural corpus will be preserved. Individuals in performance-based societies become so accustomed to and dependent upon contact with one another that they tend to conceive of the very idea of "self" in social terms, identifying themselves primarily by their social relationships and the opinion that others have of them. This encourages the development of outwardly oriented "shame cultures" as opposed to inwardly oriented "guilt cultures."325
[4.10] The social nature of performance means that performative law must be presented in front of others. The identities or predilections of those others may affect the content of the law performed, even as it is being performed. Lacking the writer’s luxury of formulating decisions in private, performative judges making public pronouncements must be both socially sensitive and socially persuasive. Furthermore, what is presented as law on one occasion before one group may not correspond exactly to what is presented as law on another occasion before another group. Performative law thus tends to be open-textured.
[4.11] The general importance of social contact in performance cultures encourages performative "lawmakers" to make special efforts to preserve the human relationships that make socialization (and thus communication) possible and pleasurable. In the event of a conflict between individuals, performative authorities tend to prefer arbitration and compromise to adjudication because the former techniques bring parties together and help sustain relationships and dialogue while the latter process creates competition and conflict that inhibits dialogue, strains relationships, and may ultimately endanger the cultural corpus. Performative law even defines many wrongs in relational rather than in purely physical or economic terms. Disloyal acts, or acts that socially separate an individual from the communication or company of others by shaming him, are particularly odious.
[4.12] Additionally, performance is dynamic. Unlike writing, it expresses meaning by action, not stasis. It lives in energetic and frequently mobile combinations of sensory media and not in physically fixed words. By virtue of being dynamic, performance is most effective at communicating meanings that are themselves dynamic. In other words, because it is action, it is better at describing and depicting action than it is at describing and depicting inaction. In this sense performance has much in common with television, a modern dynamic medium. Just as thought, as a static abstraction, makes bad television, it makes bad performance. A story, on the other hand, makes good television and good performance. Because of this, actions quickly become the primary type - even the measure - of performative reality, to the extent that concepts and situations that we would consider inherently inactive (such as contemplation) are in performance often translated into action (such as a conversation between a hero and his spirit).326 Intellectually, performance cultures revolve around "becomings" rather than "beings,"327 what happens as opposed to what is.
[4.13] The dynamism of performance is arguably reflected in the performative inclination to think of law not as things but as acts, not as rules or agreements, but as processes constituting rule or agreement. A performative contract, for instance, is not an object, but a routine of words and gestures. A witness to a contract testifies not to the identity or correctness of a piece of paper, but to phenomena seen and heard. Likewise, members of performance cultures tend to think of justice not as something that simply is, but rather as something that is done. This may help to explain why the legal systems of performance cultures seem more concerned with matters of procedure than matters of substance, to the point where "substantive law has at first the look of being . . . secreted in the interstices of procedure."328
[4.14] Finally, lacking any permanent record, performance is ephemeral. Because it exists in time, it is constantly coming into and going out of existence. This is somewhat ironic, given that performance itself is - at least in part - calculated to mitigate the inherent ephemerality of its sensory components. Obviously, mitigating the problem does not eliminate it. The ephemerality of performance makes the cultural corpus of performance based societies exceedingly vulnerable both to intentional and unintentional change. Such changes cannot readily be detected where no fixed physical records of lore and learning exist. At the same time, the ephemerality of performance encourages members of performance cultures to organize and orchestrate performance to maximize memorability and minimize the likelihood of change. In many performance cultures, these goals are accomplished by a combination of publicization, concretization, and stylization. Performance is publicized by being presented in front of many people rather than in front of few, the theory being that in such a setting more people are likely to remember it. Performance is concretized not only by having a physical reality, but by evoking ideas and experiences which themselves can be imagined as having physical reality, and are therefore more amenable to memory. Performance is stylized by being cast in formats that are easily recalled by reference to a recurrent sound, pattern, or brief formula.
[4.15] Each of these mnemonic strategies has a legal counterpart. In a sense, ephemerality is the greatest enemy of law in any society. The very concept of law implies the continuing existence of standards. To the extent that law mandates the application of yesterday’s rule today, it requires first that yesterday’s rule survive, mnemonically if not physically. Performative contracts are therefore performed in front of many witnesses rather than few; performative disputes are resolved in public rather than in private; performative legislation is announced on the village common rather than solely in the king’s chamber. For the convenience of memory, performative legal rules are expressed not in the abstract, but in stories and tales that evoke the concrete images of actors doing right or wrong. Performative legal ceremonies rely heavily on memorable aural and visual patterns, on repetition, on pithy expressions and compact, sometimes exaggerated actions. To the extent that these techniques are successful, performative law can legitimately claim to be custom, understood as "what was done and always has been done." Without generally accessible written records safe from memory’s failings, the meanings and messages of performative law are nonetheless condemned to change gradually over time.329
[4.16] For the moment, of course, all these observations and contentions - even when cast in their strongest, most provocative forms - are but hypotheses that must eventually be tested according to anthropological and historical evidence. Unfortunately, such testing is outside the scope of this Article. If, however, the reader now has a better understanding of (and feeling for) communication and legal expression in performance cultures, and in particular has a sense of how vitally important the phenomenon of performance is to cultural and legal life in these societies, then the Article will have accomplished its limited purposes. The rest can be left for another day.