Making Sense of Metaphors: Visuality,

Aurality, and the Reconfiguration of American Legal Discourse
16 Cardozo Law Review 229 (1994); reprinted by permission of the Cardozo Law Review
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Professor Bernard J. Hibbitts *
University of Pittsburgh School of Law
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"As our age translates itself back into the oral and auditory modes...we become sharply aware of the uncritical acceptance of visual metaphors and models by many past centuries."

Marshall McLuhan, The Gutenberg Galaxy

Also on law and the senses by Bernard J. Hibbitts...

Abstract | Reviews | Contents | Text | E-mail


The Abstract
Building on the work of Marshall McLuhan, Walter Ong, David Howes and other scholars of the senses, this article examines the reconfiguration of contemporary American legal discourse represented by the apparent shift from mostly visually-evocative metaphors for law and legal practice (judicial "review", "bright-line" distinctions, "penumbras" of authority, "observing" the law, "squaring" precedents, etc.) towards a greater number of aurally-evocative figures of speech (law as "dialogue", "conversation", "polyphony", etc.).

Part I of the article establishes the importance of examining this reconfiguration in light of the nature of metaphor and its central role in thought and legal reasoning.

Part II explores the techno-cultural, sociological and phenomenological roots of American jurists' traditional preference for visual legal metaphors. It argues that visualist legal language has both reflected and reinforced three fundamental circumstances: first, Americans' long-standing technological and cultural prejudice in favor of visual expression and experience; second, the legal and political power of certain gender, racial, ethnic and religious groups which at least in the American context have demonstrated a particular respect for visuality; and third, the corespondence between traditional American legal values and the values supposedly supported by vision itself.

Part III of the article investigates the multiple factors behind the growing vogue of aural metaphors in American legal discourse, especially among critical theorists seeking liberation from orthodox outlooks and values. It attributes the new figurative aurality to three factors: first, American culture's technologically-stimulated interest in aural expression and experience; second, the new and self-assured "turn towards experience" being taken by a growing number of legal scholars from previously marginalized gender, racial, ethnic and religious groups which at least in the American context have demonstrated a particular respect for aurality; and third, the existence of a "fit" between the central tenets of critical jurisprudence and the supposed phenomenological biases of sound and hearing.

The Conclusion of the article returns to the theme of reconfiguration and considers the future of both aural and visual legal metaphors in American legal discourse.


The Reviews

"Splendid....The article is one of the most comprehensive, thoroughly documented, imaginative and rigorously conclusive that I have ever read concerning the present-day visual-to-oral shift in our modes of conceptualization."

Walter J. Ong, S.J.
University Professor Emeritus of Humanities
St. Louis University
Author, Orality and Literacy: The Technologizing of the Word


"'Making Sense of Metaphors' is among our most insightful writings about the impact of media on law. If you are interested in why law is changing and in how deep change is likely to be, you will be awed by what Professor Hibbitts has written."

Ethan Katsh
Professor of Legal Studies
University of Massachusetts at Amherst
Author, Law in a Digital World and The Electronic Media and the Transformation of Law


"An altogether fascinating study, brilliant in its analysis of visuality and aurality in the domain of legal studies, and constantly suggestive and inspiring to a reader, like myself, outside legal studies but interested in questions of visuality."

Norman Bryson
Professor of Fine Arts
Harvard University
Author, Vision and Painting: The Logic of the Gaze


"'Making Sense of Metaphors' is a masterful treatment -- including one of the best bibliographies on the subject I have seen -- of the eye and the ear as root metaphors of knowledge. These questions are at the heart of current anthropological debates on the nature of ethnography. I highly recommend it to my colleagues in anthropology, cultural studies, and philosophy of science."

Johannes Fabian
Professor of Anthropology
University of Amsterdam, THE NETHERLANDS
Author, Time and the Other: How Anthropology Makes Its Object


"In 'Making Sense of Metaphors', Professor Bernard Hibbitts mines the richest possible vein of understanding, one that leads directly to the heart of the transformations affecting not just contemporary legal discourse but also the nature and structure of our entire legal system. Words and language are not a mere assemblage of cliches or conceptual archetypes: they serve as an organ of collective perception. And metaphor is the matrix of all verbal activity. The media of the last century and a half have rendered written codes obsolete: the electronic word is oral and kinesthetic and invested with a paradoxical permanence far more stable than that which writing can confer. In this provocative analysis of the medium, Professor Hibbitts uncovers the patterns of change that inform present events and will continue to do so for generations to come."

Eric McLuhan
Co-author (with Marshall McLuhan), The Laws of Media; co-editor (with Frank Zingrone), The Essential McLuhan


"A truly astonishing article...surely one of the most significant of contributions to the relative role of the senses in social life."

John Urry
Professor of Sociology
Lancaster University, Lancaster, UK
Author, The Tourist Gaze


The Table of Contents
Introduction: "An Ear for an Eye"

I. Metaphors in Life and Law

II. "Mirrors of Justice": Visuality in Legal Discourse

A. Seeing Culture
B. Visuality and Power
C. Law and the Phenomenology of Sight

III. "Fair Hearings": Aurality and the New Legal Language

A. Hearing Culture
B. Aurality and Diversity
C. Law and the Phenomenology of Sound

Conclusion: Law Re-viewed


The Text

Introduction: "An Ear for an Eye"1

hile American legal discourse has embraced a range of figurative expressions evoking all sorts of sensory experience,2 it has long favored visual metaphors. We frequently consider law as a matter of looking: we "observe" it; we evaluate claims "in the eye of the law";3 our high courts "review" the decisions of inferior tribunals. Alternatively, we speak of law as something one would usually look at: it is a "body," a "text," a "structure," a "bulwark of freedom,"4 a "seamless web,"5 and even a "magic mirror."6 We identify particular legal concepts with striking visual images: property rights are a "bundle of sticks";7 a long-standing constitutional principle is a "fixed star";8 a sequence of ownership is a "chain of title."9 We associate legal reasoning with the manipulation of visible geometric forms: we try to "square" precedents with one another;10 we repeatedly agonize over "where the line [between different doctrines and situations] can be drawn."11 We discuss legality in terms of light and darkness: we search for "bright-line"12 tests; we consider an area of concurrent jurisdiction to be a "zone of twilight";13 we seek to extend constitutional protections by probing the shadowy "penumbras"14 of well-known guarantees. With the aid of metaphor, we go so far as to give law the visual quality of hue: we may make a property claim under "color of title";15 we discourage "yellow dog" contracts 16 and make securities trading subject to "blue sky" laws;17 for good or ill, we frequently adhere to "black letter" rules.18

[i.2] This visual language has become far too well-entrenched and is far too convenient to be universally or summarily abandoned. In recent years, however, a noteworthy number of legal scholars (if not yet many judges or practitioners) have cast some of their best writing in aural metaphors. Most of these individuals subscribe to a broadly "critical" legal philosophy; many are exponents of distinctively feminist, African American, Hispanic, or Jewish approaches to jurisprudence. Their work characterizes law as a matter of "voice":19 a figurative "speaking," and even, on occasion, a "singing"20 in which institutions, groups, and individuals should all be articulate participants. Some voices are strong, some are weak, and some-generally those of the oppressed or the marginalized-must first be freed from the shackles of "silence."21 Fairness demands "hearing" and carefully "listening" to all of these voices.22 The new legal literature's metaphorical emphasis on the complementary exercises of speaking and listening simultaneously reflects and fosters a tendency to regard law, rights, legal reasoning, legal writing, legal language, legal doctrine, judicial review, constitutional federalism, the judicial process, and the attorney-client relation as so many forms of "rhetoric,"23 "discourse,"24 "storytelling,"25 "talk,"26 "dialogue,"27 or "conversation."28 Ultimately, the interplay of multiple voices in multiple settings is supposed to produce a legal pluralism that some have lyrically termed "polyphony."29

[i.3] I believe that this jurisprudential turn from metaphoric visuality towards metaphoric aurality represents not a passing semantic fad, but a significant - if still nascent - reconfiguration of American legal discourse. The purpose of this Article is to analyze this reconfiguration and ultimately offer some explanations for it. In Part I, I briefly establish the importance of these undertakings in light of the nature of metaphor and its central role in thought and legal reasoning. In Part II, I explore the cultural, sociological, and phenomenological roots of American jurists' traditional preference for visual legal metaphors. I show how visualist legal language has both reflected and reinforced three fundamental circumstances: first, Americans' long-standing cultural prejudice in favor of visual expression and experience; second, the legal and political power of certain gender, racial, ethnic, and religious groups which at least in the American context have demonstrated a particular respect for visuality; and third, the correspondence between traditional American legal values and the values supposedly supported by vision itself. In Part III, I investigate the multiple factors behind the growing vogue of aural metaphors in American legal discourse, especially among critical theorists seeking liberation from orthodox outlooks, elites, and values. I attribute the new figurative aurality to three factors: first, American culture's increasing interest in aural expression and experience; second, the novel and self-assured "turn towards experience" being taken by a growing number of legal scholars from previously marginalized gender, racial, ethnic, and religious groups which at least in the American context have demonstrated a particular respect for aurality; and third, the existence of a "fit" between the central tenets of critical jurisprudence and the supposed phenomenological biases of sound and hearing. In the Conclusion of the Article, I return to the theme of reconfiguration and consider the future of both aural and visual legal metaphors in American legal discourse.


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