Making Sense of Metaphors: Visuality,
Aurality, and the Reconfiguration of American Legal Discourse
16 Cardozo Law Review 241 (1994); reprinted by permission of the Cardozo Law Review

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Conclusion: Law Re-viewed

began this Article with the proposition that the growing recourse to aural as opposed to visual metaphors as a means of communicating legal ideas represents a significant-if nascentreconfiguration of American legal discourse. After devoting Part II that the traditional prominence of visual metaphors in American jurisprudence has been a product of three factors: first, the traditional, largely writing-induced visuality of American culture as a whole; second, the historical domination of the American legal community by members of American gender, racial, ethnic, and religious groups which have been more writing-dependent and hence more respectful of visual expression and experience; and third, the perceived "fit" between the values of traditional legal theory and the values said to be supported by visual phenomenology. In Part III of the Article, I suggested that there are three complementary reasons for the turn towards aural legal metaphors which has recently become so evident in the academy, if not yet in the profession. First, under the impetus of new communications technologies, American culture as a whole is turning away from its traditional visual bias and is becoming much more aurally oriented. Second, a growing number of American law professors from formerly marginalized, relatively less writing-dependent, and therefore more aurally oriented gender, racial, ethnic, and religious groups are increasingly willing, able, and even eager to plumb their own experiences - and, in the process, their aural traditions - for scholarly inspiration. Third, there appears to be a significant and convenient overlap between the substantive values embraced by exponents of critical legal theory and the values we perceive to be encouraged by sound.

[c.2] If American legal language is being reconfigured today, however, what is to prevent it from being transformed tomorrow? Why should the incipient trend I have here identified and discussed not continue to the point where, in the future, the domination of aural legal metaphors becomes as overwhelming as the domination of visual legal metaphors was yesterday?

[c.3] Here, one might offer several answers. First, it may be argued that insofar as legal metaphors are shaped by circumstance, neither American culture nor American law will probably be able to sustain a complete or near-complete transition to aurally based legal language.715 Aural technology may have surged in the last century or so, but as I have repeatedly noted in this Article, visual technology has hardly stood still for it. The same age which has given us the telephone, the radio, and the tape recorder has also given us inexpensive photography, motion pictures, television, and the computer. The last three of these "visual" technologies have actually joined sound to sight, promoting a trend towards sensory synthesis that has culminated in today's "multimedia" technology. In this new environment, American culture is likely to embrace both sight and sound rather than encourage a definitive turn from one sense to the other. By the same token, it is not likely to generate or support a legal discourse that would consistently prefer aural over visual metaphors. The likelihood of metaphoric transformation is decreased even further by the certainty that the composition of the American legal academy (not to mention the American legal profession) will in the foreseeable future remain mixed along a variety of gender, racial, ethnic, and religious lines, thereby ensuring the continued participation in American legal discourse of individuals coming from a variety of relatively more visual and relatively more aural traditions. Insofar as individuals of all backgrounds remain willing and able to draw consciously or subconsciously on their own historical experiences for intellectual inspiration, it is likely that some will continue to favor visual legal metaphors, while others will turn to aural legal language. Diversity will allow for difference.

[c.4] Apart from what is likely to happen, one might argue that a complete shift from visual to aural figures of legal speech in American legal discourse would be inadvisable, even for those persons who have thus far gained or been empowered by the increased popularity of aural legal metaphors. In the guise of liberating and validating the relatively more aural experiences of individuals from traditionally marginalized American gender, racial, ethnic, and religious groups, such a transformation might ironically do much to legitimate and validate the circumstances of their marginalization. For instance, when feminist legal scholars embrace aural metaphors such as "dialogue" and "conversation," are they not coining a legal language in large part born of the very conditions of subordination and oppression that they seek to challenge and change? Do not their words-for all their obvious appeal-at some level accept and endorse the sensory limitations that others (in this instance, men) have traditionally imposed on them?716 In this context, the true liberation of individuals from marginalized backgrounds arguably requires that they not arbitrarily limit themselves to-or preemptively define themselves by-aural metaphors that others have in some sense chosen for them.717

[c.5] Undue reliance on aural metaphors might even distance outsider legal theorists from other important aspects of their own cultural histories and experiences. No human culture-however constituted-is ever completely visual or aural, and we all run the risk of misunderstanding and distorting ourselves if we try to redefine the world-or law-along a single sensory line. Here, the historical experience of male, white, Anglo, and Protestant Americans may serve as both a lesson and a warning: in allowing themselves to have been drawn so strongly to visuality, many individuals from these backgrounds have largely forgotten or failed to appreciate the not-insignificant degrees of aurality inherent in their own traditions-an aurality which they are only now rediscovering in an increasingly aural age. Their extreme indulgence of the visual has thus come at a critical cost not only to others, but to themselves.

[c.6] A complete shift from visual to aural legal metaphors is moreover unnecessary, even to accomplish or propel the value changes that exponents of critical legal theory in particular may desire. It is true that we have traditionally regarded the values associated with sound as more compatible with critical legal theory than the values associated with sight. This would seem to suggest that visual legal metaphors are almost by definition inadequately expressive of critical ideas and therefore deserve rejection by critical theorists. One must wonder, however, whether the perceived shortcomings of visual legal metaphors are due to some inherent "essence" of visuality or whether they are simply a function of how we have traditionally understood sight. Perhaps sight does not have a phenomenological essence.718 Perhaps it embraces a multiplicity of contradictory values - values which are brought out by different visual media. For instance, perhaps it is our dependence on the visual medium of writing that encourages us (although it certainly does not force us) to believe that sight abstracts, disengages, and objectifies. Writing tends to cut us off from the physical world; traditionally conceived, it facilitates the separation and mutual noninvolvement of writer and reader, and it enables the reader to assess visual information without being burdened by the presence and personality of the writer. But what if - perhaps under the impetus of television, film, and video technology - one were to understand sight more through the lens, say, of gesture?719 In those circumstances, might not "sight" be considered to favor dynamism, multivariance, relation, and subjectivism?720 Would not a focus on gesture give vision a meaning in time? Would not the visual perception and interpretation of movement facilitate the recognition of multiple "truths"?721 Would not its personalized energy and power invite reciprocation?722 Would it not facilitate the association of message and messenger?723 If these things are so, then perhaps sight and, by implication, visual legal metaphors, are in the abstract potentially compatible with critical theory.

[c.7] By the same token, a total embrace of aural legal metaphor might not be sufficient to the purpose of promoting the aims of critical legal theory. Perhaps sound too is ultimately without a phenomenological essence, regardless of the values that we currently associate with it. For instance, we regard sound as concrete, relational, subjective, and dynamic, but we may do so because we still envisage ourselves experiencing sound in the context of face-to-face encounters. What would happen, however, if we ceased thinking of sound in this traditional fashion, and under the influence of ongoing technological change began to view it (as we are increasingly coming to experience it) as a product of technology - a product of the radio, the television, the telephone, the tape recorder, and the computer.724 It could be argued that this technologically based sound could easily embrace and implicitly support values very different from those that we have hitherto associated with the aural.725 For instance, relative to face-to-face conversation, technologically based discourse radically distances and decontextualizes those who are party to it. Insofar as it can be unyielding, technological sound can cut off or preempt interaction rather than facilitate it.726 In the same vein, technological sound is not necessarily subjectifying: indeed, the power of its electronic amplification can make it brutally objectifying.727 Finally, instead of being dynamic, technological sound can be static-something that can be frozen in time, manipulated, and transferred for replay. In this context, prominent aural legal metaphors such as "voice," "speaking," and "listening" (and even "dialogue" and "conversation") that now seem unequivocally positive and supportive of the critical agenda may prove capable of evoking ambivalent or even negative values which would be fatal to their critical purpose. Arbitrarily limiting ourselves to aural figures of legal speech would therefore be as inadvisable as rejecting visual legal metaphors out of hand.

[c.8] It seems that into the foreseeable future, American legal discourse will - and, to avoid being painted into a cultural, sociological, or phenomenological corner, probably should - continue to embrace metaphors evoking sight as well as metaphors evoking sound. While we listen with new attention to the "voice" and "conversation" of the law, we can still "observe" and "review" it. In the long run, such an inclusive and potentially synergistic reconfiguration of American legal discourse will help to ensure that, in a new era, American law remains figuratively and literally sensible.