This is the approved final manuscript of “Law’s Sensorium: On the Media of Law and the Evidence of the Senses in Historical and Cross-Cultural Perspective,” which appeared in Sheryl Hamilton, Diana Majury, Dawn Moore, Neil Sargent and Christiane Wilke, eds., Sensing Law (a GlassHouse book) published by Routlede, 2017 (pp. 53-72)
https://www.routledge.com/Sensing-Law/Hamilton-Majury-Moore-Sargent-Wilke/p/book/9781138188761
Law’s Sensorium: On the Media of Law and the Evidence of the Senses in Historical and Cross-Cultural Perspective
David Howes
This chapter opens with an account of the “sensory turn” in the humanities and social sciences. This approach to sociocultural analysis has eclipsed the purely linguistic and pictorial paradigms that formerly prevailed, and brought the senses from the margins to the centre of contemporary scholarship. Our account focusses on the evolution of the anthropology of the senses, and makes reference to parallel developments in the history of the senses, before moving on to explore the relevance of the sensory turn to socio-legal studies. It is shown that media of legal presentation and representation are deeply imbued with sensory values and how the social life of the senses differs significantly across cultures and historical periods. This can result in sharp conflicts over the evidence of the senses when, for example, oral and literate legal traditions intersect. A case in point to be considered here is the institution of the feast or “potlatch” among First Nations peoples of British Columbia, Canada, and the role it played both in the Indigenous socio-legal order and in the landmark Aboriginal title case known as Delgamuukw v. British Columbia. The chapter goes on to investigate the sensory, social and cross-cultural implications of the increasing importance of video and digital evidence both in the courtroom proper and the court of public opinion. Throughout, the emphasis is on the mediatory role played by the senses and their extensions in the form of diverse media on the judicial process.
The Sensory Turn
“Sensuous scholarship” is the term Paul Stoller (1997) coined to denote the intense new focus on the senses and sensations that has come to inform much contemporary research in the humanities and social sciences. The sensory turn was preceded by a number of other revolutionary paradigms for sociocultural analysis. The most influential of these was the linguistic turn of the 1960s and ‘70s, which privileged language and linguistics as models for understanding society and culture. Societies came to be understood as “structured like a language,” and cultures came to be seen as “discursive formations” or “as texts.” Within the discipline of anthropology, for example, Claude Lévi-Strauss extended the methods of Saussurian (structural) linguistics to the analysis of kinship systems and myth. Clifford Geertz, in a more literary vein, proposed that the culture of a people be regarded as “an ensemble of texts, themselves ensembles, which the anthropologist strains to read over the shoulders of those to whom they properly belong” (Geertz 1973: 452).
The notion of “reading culture,” which was central to the practice of “interpretive anthropology” à la Geertz, gradually transformed into the idea of ethnography as the product of a conversation between anthropologist and informant, which gave shape to the field of “dialogical anthropology.” By the mid-1980s, it had transformed yet again into the paradigm of “writing culture” (Clifford and Marcus 1986), or “textual anthropology.” That is, both the notion of interpretation and its successor notion, conversation, came to be eclipsed by the idea of “textualization.”
The idea of anthropology as a “process of textualization” is, of course, true to the extent that anthropological field research normally culminates in the production of an ethnographic monograph or text. However, the model of the text so captivated the anthropological imagination that some theorists started thinking and writing as if il n’y a pas de hors-texte (“there is no outside-text”)! Thus, in “Post-modern Ethnography,” Stephen Tyler proclaimed that “Perception has nothing to do with it” (the “it” being ethnography):
An ethnography is no account of a rationalized movement from percept to concept. It begins and ends in concepts. There is no origin in perception, no priority of vision, and no data of observation …
[An ethnography] is not a record of experience at all; it is the means of experience. That experience became experience only in the writing of the ethnography. Before that it was only a disconnected array of chance happenings (Tyler 1986: 138).
The extreme logocentrism (or textual fetishism) of this position was bound to precipitate a counter-reaction, and did, in the form of the “pictorial turn.” In addition to questioning the hypostatization of language, the pictorial turn took cognizance of the increasing salience of visuality and image-based communication in the contemporary Western “civilization of the image.”
From its origins in the discipline of art history, the notion of “visual culture” caught on and spread to the disciplines of film and media studies, cultural studies and architecture. Within anthropology, the pictorial turn was abetted by the advent of a range of highly versatile technologies of visual registration – most notably, the handheld video camcorder. Ethnographic film started to rival the ethnographic monograph as the medium of choice for the dissemination of anthropological findings, and the model of the screen as well as various filmic techniques, such as montage, began to edge out the model of the text (Taylor 1994). This led to the redefinition of anthropology as a “process of visualization.” One of those to develop this idea furthest was Anna Grimshaw. In The Ethnographer’s Eye: Ways of Seeing in Modern Anthropology, she suggested that: “anthropology has been much discussed as a particular kind of literary endeavour [referring to the text Writing Culture (1986)]. What if we imagine it differently – as a form of art or cinema?” (Grimshaw 2001: 9). Grimshaw went on to analyze the distinctive “visions” of the founders of modern anthropology, from W.H.R. Rivers and Bronislaw Malinowski to A.R. Radcliffe-Brown, which she related to different trends in Modernist art and cinema. In the latter half of the book, she discusses the cinematic and epistemological breakthroughs made by a series of ethnographic filmmakers from Jean Rouch to the team of Judith and David MacDougall. In this way, visual anthropology came to stand for more than simply using photography or film to document social life: it became its own way of knowing.
As in the case of the linguistic turn, the pictorial turn occasionally got swallowed up in the fetishization of its subject matter. For example, W.J.T. Mitchell came out with What Do Pictures Want? The Lives and Loves of Images (2004), which argued that paintings could have will and desires of their own, independent of the those who create and interpret them. Such an exaltation of the power of visual imagery left little room for the investigation of other sensory dimensions. So too with the assimilation of architecture, which has important haptic dimensions (Palasmaa 1996), to visual culture. As regards anthropology, even those cultures which did not share the contemporary West’s fascination with images came to be understood and represented by some ethnographers as “world views,” “perspectival regimes,” etc. This hypertrophy of the visual in ethnographic writing could be considered a logical complement to the transformation of elements of non-Western material culture into purely visual artifacts within the display cases of ethnographic museums (Classen and Howes 2006).
The sensory turn, which commenced in the 1990s, was prompted in part by a reaction against the tendency in the social sciences and humanities to reduce culture to words and pictures. It sought to counteract the essentialisms of the earlier turns (i.e. the logocentrism of the linguistic turn, the visualism of the pictorial turn) by taking a relational approach, which encompassed all the faculties (Howes 1991, 2003). However, in order to redirect attention to the full range of sensory experience and expression, and bring this within the purview of the social sciences, it first had to pry the senses and sensations loose from the discipline of psychology, which had long been considered to have a monopoly on their study. The psychological understanding of sensation as the product of physiological and mental processing paid scant attention to the influence of cultural factors. Fundamental to the sensory turn, however, is the recognition that not only what we perceive, but also how we perceive, is shaped by culture. Furthermore, perception does not just go on in the head. Rather it is distributed across all the techniques of the senses and technologies of communication, from incense rites to the Internet, that mediate our experience of the world. For this reason, it was argued, the study of the senses should not be confined to the artificial context of the psychology laboratory. It needed to be extended to encompass the life of the senses in society, and the differential elaboration of the senses across cultures.
The new “sensory” approach to cultural studies – or “sensory studies” for short – was first elaborated largely within the field of anthropology because cross-cultural research exposed the limitations of Western interpretive paradigms. The latter could not make sense of such practices as olfactory religious rituals or tactile aesthetics, and therefore tended to ignore their existence no matter what their saliences in their Indigenous cultural contexts (see Classen 1993; Taussig 1993). In her programmatic essay entitled “Foundations for an Anthropology of the Senses” (1997), Constance Classen underlined the importance of approaching cultures on their own sensory terms through attending to how the senses are valued and used, and how the sensations they deliver are invested with meaning. These uses and meanings together form “the sensory model espoused by a society, according to which the members of that society ‘make sense’ of the world”; Classen also emphasized that “there will likely be challenges to this model from within the society – persons and groups who differ on certain sensory values – yet this model will provide the basic perceptual paradigm to be followed or resisted” (Classen 1997: 402). It became apparent that the standard ethnographic practice of “participant observation”, which involves learning about a culture by living it, could be greatly enhanced if anthropologists were to tune their attention to the sensory modalities and values of the people with whom they interacted, and that this would result in more informative and nuanced cultural accounts (see e.g. Geurts 2002; Howes 2003).
By the beginning of the twenty-first century, interest in the sensory study of culture had spread across the humanities and social sciences. Numerous historians, in particular, had come to focus their attention on the sensate in an effort to provide both more evocative accounts of the past and to acquire a fuller understanding of the social worlds of antecedent eras. Work was done, for example, on how sensory values promoted tropes of gender difference in early modernity (Classen 1998) and racial hierarchies in the nineteenth century (Smith 2006). Scholars in cognate fields, from geography and sociology to law and literature, also began exploring how a range of sensory media and symbols are employed to construct social and aesthetic worlds (see e.g. Rodaway 1994; Synnott 1993; Bently and Flynn; Hertel 2005). The launch of the influential Sensory Formations series of anthologies (see e.g. Bull and Back 2003; Korsmeyer 2005) confirmed the value both of an interdisciplinary approach to the study of the senses and a multidisciplinary, multisensory approach to the study of culture.
Sensational Jurisprudence: Understanding Law as Sense-Making Activity
Sensori-legal studies is the name that we propose be given to the branch of legal studies that centres on law’s sensorium. Fundamental to sensori-legal studies is the understanding that law is a sense-making activity,1 and that every normative or legal order is expressed in terms of a particular ordering of the senses and sensations. By foregrounding the senses of and in law this approach deflects attention from the conventional focus within legal studies on law as text or law as literature to uncover the rootedness of law in the body. Consider handedness, for example. In a classic essay entitled “The Pre-eminence of the Right Hand” (1973), Robert Hertz wrote:
What resemblance more perfect than that between our two hands! And yet what a striking inequality there is! To the right hand go honours, flattering designations, prerogatives. … The left hand on the contrary is despised and reduced to the role of a humble helper (Hertz 1973: 3)
The two hands, apparently so alike, are made to symbolize the perceived duality of the universe. In many European languages, for example, the word for “right” refers to the side of the body, the direction “right”, that which is “correct” or “proper”, and even “law” itself (French droit; German Recht ) while the word for “left,” in addition to referring to side of the body and direction, connotes not only “awkwardness” (French gauche) but that which is downright “evil” (sinister in English as in Latin). In this way, the hands incarnate social order. The right hand embodies not only that which is right but that which feels right. Such cultural favouring of the right hand, while common, is not universal, however. In China the left hand has been traditionally considered to be superior to the right and associated with practices and metaphors of social and moral “rectitude” (Granet 1973). To speak of the corporeal underpinnings of the law, therefore, does not imply a purely physiological basis, but rather an interaction of bodily experience with social values which can differ across cultures and historical periods (Geurts 2002; Classen 1998).
When we turn to consider the sensorium as a whole, we see that much the same holds true. For example, there are many scholars of a psychological and/or neuroscientific persuasion who consider there to be a natural hierarchy of the senses and that the order of the senses can be determined by counting the number of nerve fibres dedicated to each sense, or using imaging technology to find out how much of the brain is devoted to visual processing compared to auditory processing, olfactory processing and so forth (Bross 1992). Sensory hierarchies and orders cannot, however, be reduced to brain physiology because sensation is itself culturally structured. The senses are distinguished and classified along many different lines: distance/proximity, objective/subjective, high/low, intellectual/emotional, mechanical/chemical, masculine/feminine, social/anti-social, civilized/animal. Cultural values inevitably enter into the categorizing process and there is no guarantee that such valuations will hold across cultures (Howes 1991; Classen 1993). There is not even a consensus across cultures as to the number of the senses (Howes 2009). A sensory approach to the study of law, hence, must be attentive to the fact that sensory codes, like legal codes, are shaped by particular social ideologies.
Mediations of Legality
Given the centrality of media of communication to the transmission of law, the media theory of Marshall McLuhan (1964) and Walter Ong (1982) can provide a helpful framework for advancing sensori-legal studies. This body of theory is noteworthy for the attention it pays to the sensory underpinnings and biases of different media – speech (oral and multisensory), writing and print (visual), electronic (hypervisual, audio-visual and haptic as well). One legal scholar to make use of this framework is Bernard Hibbitts. In “’Coming to Our Senses’: Communication and Legal Expression in Performance Cultures” (1992), Hibbitts followed McLuhan and Ong in distinguishing between “writing cultures” and “oral” or “performance cultures.” Performance cultures are predicated on immediate, face-to-face contact between individuals, and there is simultaneous reliance on speech, sight, gesture, touch and other modalities to communicate legal meanings. For example, one who announces a legal accusation or makes a legal contract may, in addition to uttering a particular verbal formula, strike the defendant on the forehead or shake the other party’s hand; an oath may be drunk as well as sworn. The engagement of multiple senses adds to the memorability of an act, according to Hibbitts.
In writing cultures, by contrast, there is a tendency to “put things down on paper”: a transfer of property is effected by drawing up a deed, an accusation is laid by issuing a summons or writ. This is a function of the technological capacity of the medium of writing “to separate the sender of a message from its recipient,” and to compartmentalize communication along sensory lines:
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. In the legal communities of some writing cultures, this behaviour is a matter of professional pride. The quintessential English barrister never moves and rarely gestures in oral argument (Hibbitts 1992: 949).
The parol evidence rule is perhaps the most explicit and far-reaching manifestation of the separation and hierarchization of the senses in writing cultures:
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 (1992: 942; see further Wierzbicka 2010)
Hibbitts’ survey piece is helpful for highlighting the multiple modalities of legal expression potentially to be found in the world’s cultures, and for bringing out the shift from (oral) memory to written record in Western legal history, following Clanchy (1979). However, there were many more sensory dimensions and nuances to the shift from oral to written than is commonly recognized by those who take their cue from McLuhan and Ong (i.e.the historical process cannot be reduced to the substitution of an eye for an ear), and Hibbitts’ overview of the anthropological literature should also have been more attuned to the interplay or articulation of the senses in different cultures.
To flesh out the first point, in medieval Europe, words and actions impressed more than texts, which, not only could not be read by a largely non-literate population, but also seemed silent, passive and impersonal compared to dynamic and direct verbal utterances and corporeal acts. Among the latter was the use of handclasps and kisses to seal contracts, whether of vassalage, marriage or sale. In an era when concrete signs were highly valued, these were considered to give a tangible form to social compacts and physically impress participants with a sense of their commitment to each other. Another medieval legal rite consisted of grasping a festuca or stick to signify the transfer of property or the acceptance of a court’s decision: the festuca served as a tangible memorial (Howes and Classen 2014: 102). Oath-taking, in turn, was customarily accompanied by touching or kissing a sacred object, often a saintly relic, with the notion that a false oath would incur divine wrath. The medieval trial by ordeal, which involved such actions as walking on hot coals or picking a stone out of boiling water, was intended to elicit truths from the body of the accused when confessions or evidence was lacking. The judicial trial by combat required two parties in a dispute to literally fight it out, with the winner of the combat winning the case. In all these trials it was presumed that God would protect the innocent from harm.
The judicial role of tactile acts declined in the late Middle Ages at the same time as written documents became increasingly important in legal processes, heralding a new social order undergirded by disembodied texts (see Classen 2012). One tactile legal act that lingered into modernity, however, was that of touching a sacred object when swearing an oath. The object now used for this purpose was, however, a Bible: itself a symbol of the power of the written word.
Not only in Western history but in many non-Western cultures can we find multiple examples of diverse sensory media serving to communicate legal traditions and determining legal outcomes. The Indigenous cultures of North America offer a particularly rich range of such examples. Among the Inuit, a singing duel traditionally provided an opportunity for two opponents (or their representatives) to air and often resolve their complaints in public assembly (Pagliai 2009). Among the Iroquois, burying weapons signalled a cessation of hostilities, hence the expression “burying the hatchet”. In 1680, for example, Massachusetts judge Samuel Sewall described how local Mohawks signified their willingness to stop attacking settlers by burying two axes, one for the English and one for themselves: “which ceremony to them is more significant & binding than all Articles of Peace” (quoted in Waters 1870: 121). A ceremonial “wampum belt” decorated with symbolic designs in beads was also a common means of communicating and recording alliances among Aboriginal peoples of the Eastern Woodlands and Great Lakes. This belt had to be touched, as well as seen, by the parties involved for the alliance to be formally ratified. Ritual speech and singing formed an essential part of the process: “In Iroquois tradition the ‘word’, the essence of oral tradition and of wampum, had a life to it that paper (written documents) just did not have, regardless of its assumed durability” (Druke 1985: 92; see also Rath 2014). Various North American Indigenous peoples had the tradition of smoking a ceremonial “peace pipe” to seal an alliance. In this ceremony putting the pipe to one’s lips and inhaling the smoke signified one’s commitment. In Cree tradition, “promises were made with the smoking of the pipe … If one puts a pipe stem to his lips, that was a highly honoured agreement” (cited in Venne 1997: 188). As the smoke was believed to ascend to the Creator, the ritual also had an important sacred dimension.
Of particular interest to the scholar of multisensory legal traditions is the “potlatch” ceremony of the Pacific Northwest Coast. This ceremony was an important means for forging alliances and affirming social standing as well as for distributing wealth, and resolving conflicts. The potlatch was an occasion for members of a clan and their neighbours to join in marking an important event through communal feasting. During the potlatch speeches would be made concerning territorial rights and clan histories, and gifts would be given to the guests. Dances and songs were central means of expressing and experiencing social authority and unity. A chief of the Wet’suwet’en summed up the way the feast works with these words:
My power is carried in my House’s histories, songs, dances and crests. It is recreated at the Feast when the histories are told, the songs and dances are performed, and the crests are displayed. With the wealth that comes from respectful use of the territory, the House feeds the name of the Chief in the Feast Hall. In this way, the law, the Chief, the territory, and the Feast become one (Wa and Uukw 1992:7).
Participating in the feast — eating, drinking, dancing, hearing the speeches and songs, seeing the hereditary symbols and accepting the gifts — was deemed to obligate the guests to respect the traditions and uphold the rights of their hosts. The potlatch was a legal, as well as social and aesthetic, ceremony in which people experienced the ordering of society through all of their senses. It was a a total sensory phenomenon as well as a “total social phenomenon” (Mauss 1967).
From the point of view of the Canadian government, however, potlatches encouraged wasteful spending. They were therefore outlawed from the late-nineteenth to the mid-twentieth centuries. The protest of one First Nation chief at this stifling of traditional practices was recorded by an anthropologist:
We want to know whether you have come to stop our dances and feasts… Is this the white man’s land? We are told it is the Queen’s land; but no! It is mine!… We will dance when our laws command us to dance, and we will feast when our hearts desire to feast… It is a strict law that bids us dance. It is a strict law that bids us distribute our property among our friends and neighbors. It is a good law. Let the white man observe his law, we shall observe ours (quoted in Trosper 2009: 2).
In order to understand a legal system which can be eaten or danced, such as we encounter in the potlatch, a sensory approach to law is obviously essential. It is also key to understanding the dynamics of the judicial process in situations of cultural contact, as we shall see in the next section.
Sensory Media and Cross-Cultural Relations
When convenient, European and colonial governments did at times partially admit the practice of other legal traditions within a Western legal context. European courts, for example, occasionally allowed non-Christians to take an oath holding something more meaningful to them than the Bible. In early nineteenth-century England, for example, a Chinese man solemnized his oath by holding a saucer in his hand and then smashing it, the form that was said to prevail in Chinese courts. English magistrates in India, in turn, sometimes allowed oaths to be sworn with a traditional swallow of holy Ganges water (Howes and Classen 2014: 104).
In the context of Indigenous North America, colonial officials might participate in “peace pipe” smoking rituals and exchanges of wampum belts when making pacts and treaties with tribal groups. In fact, government and military officers would even themselves initiate ceremonies of pipe-smoking and offer wampum belts to Aboriginal leaders as a sign of their own good faith and to better ensure their compliance. This approach can be seen, for example, in the address made to Blackfoot Chief Crowfoot by the Ottawa City Council in 1866. The address strings together Indigenous sensory symbols in an attempt to maximize the impact of the message: “We present you with the wampum belt of friendship. We offer you the pipe of peace. Our hearts are glad when we see your face for we know that should the hatchet ever be dug up, the voice of Crowfoot will not be heard in the ranks of our enemies” (cited in Smith 2014: 77). An earlier instance occurred in the 1851 Fort Laramie Treaty Council which involved ten bands of Sioux as well as numerous other tribes. The Chief Commissioner told the gathered Aboriginal leaders:
I am sent here to transact business with you. Before commencing that I propose to smoke all around with you. The ceremony of smoking I regard as an important and solemn one, and I believe you all so regard it. When white men meet to transact important business, and they desire to test their truth and sincerity, they lay their hands on the Bible, the Book of the Great Spirit – their Great Medicine – and take an oath. When the red man intends to tell the truth, and faithfully fulfil his promises, he takes an oath by smoking to the Great Spirit. The Great Spirit sees it all and knows it. Now I do not wish any Indian to smoke with me that has any deceit or lies in his heart … All such will let the pipe pass. I don’t want them to touch it (cited in de Mallie 2009: 174-5).
By presenting the Bible as a powerful ritual tactile object, or even “medicine for white men”, the Commissioner was evidently trying to locate it within the Aboriginal hearers’ own sensory and social traditions. However, the underlying message was that “white men” act with integrity when they perform sensory acts of allegiance and truth-telling, and so should the gathered “red men”.
Alongside such Aboriginal sensory rites there were always written treaties to be ratified. Indigenous peoples were often suspicious of written documents which they could not understand and which seemed unnatural in the way they transformed dynamic oral and multisensory exchanges into static, visual markings. “Pen-and-ink witchcraft” was how the Ottawa chief Egushawa termed the textual treaty-making process in 1791 — a striking reversal of the customary European classification of Western texts as rational and objective compared to the “irrationality” of Indigenous beliefs and practices. While colonial officials paid lip service to Indigenous symbols and rituals of accord, however, in the end it was the written document that carried legal weight as far as they were concerned.
Myth and Media in the Delgamuukw Affair
The resilience of the potlatch was crucial to the late twentieth century Aboriginal title case known as Delgamuukw v The Queen. In 1984, the hereditary chiefs of the Gitskan and Wet’suwet’en brought a suit for “ownership and jurisdiction”, which is to say unextinguished Aboriginal title and entitlement to govern by Aboriginal laws, over an assortment of territories in northwest British Columbia, which totalled 58,000 square kilometres. Unlike in other parts of Canada, the colonial administration had never bothered to treat with the Indigenous inhabitants of the region to secure the extinguishment of their title. The case was heard by Allan McEachern, Chief Justice of the B.C. Supreme Court, in both the town of Smithers and the provincial capital, Victoria, over 369 days between 1987 and 1991, and generated reams and reams of transcripts, in addition to a 760-page decision.
In accordance with precedents, the plaintiffs had to establish that they and their ancestors constituted an “organized society” which had occupied the disputed territory continuously and exclusively since before the declaration of British sovereignty (circa. 1870). The Wet’suwet’en chiefs (like their Gitskan counterparts) supported their claim with direct testimony of their connection to the land as evidenced by their sacred oral tradition –the kungax, or spiritual songs and stories that formed the basis of their authority over specific territories and people. They also engaged a number of expert witnesses, including the anthropologists Antonia Mills and Richard Daly, to document their tradition and explain to the court the workings of the Feast Hall.
In her expert opinion report, later published as Eagle Down is Our Law (1994), Mills, who spent three years gathering material, described the feasts she had been permitted to attend: “One by one, [the head chiefs] stood up, donned the ceremonial robes that they had been given when they took their respective [titles], and talked about their territory, its location and boundaries, and how it is associated with the title and the robes, songs and crests” (Mills 1994: 47). At the end of each feast, after any boundary disputes had been resolved through consensus and gifts had been distributed to the guests, the assembled company would be sprinkled with eagle down, symbolizing peace, and the end of discussion.
So intimate is the Wet’suwet’en connection with the land that, in the words of Johnny David, the first Wet’suwet’en chief to give testimony on behalf of the plaintiffs: “If you know the territory well, it is like your own skin. Sometimes you can feel the animals moving on your body as they are on the land, the fish swimming in your bloodstream … If you know the territory well enough, you can feel the animals” (Mills 2005: 3). Significantly, in the lead-up to the deposition, the chief had gone out and walked his clan territory, naming each of its distinctive features and recounting the stories associated with each one, and his words were recorded on an audiocassette. When Johnny David was subsequently shown archival photographs of key village sites, he complained that the light and his poor eyesight prevented him from “see[ing] the pictures clearly,” and he frequently could not identify them. Mills surmises that this was due to the disjuncture between the medium of photography and the physical presence of the landmarks (Mills 2005: 30), since Johnny David’s eyesight was otherwise fine. Also significant is the fact that, when Johnny David occasionally performed a song, the transcript simply reads: “THE WITNESS SINGS THE SONG AND PLAYS DRUM” (24, 269)
The elision of the songs was symptomatic of the clash of media and knowledge systems that underlay the court proceedings. According to Brian Thom, “oral histories must be seen as ‘cultural forms that organize perceptions about the world,’ not merely containers of brute facts which may be laid on the table for judges to interpret in a ‘common-sense’ way” (2001: 10). There is a world of difference between traditions that are handed down by word of mouth (and literally ingested in the context of the feast) and those which rely on writing as their means of transmission. The former are adjudged to constitute hearsay from the viewpoint of the latter (see Mills 2005: 30-35). This view fails to recognize that, in the case of the Wet’suwet’en, the narratives would have been “authenticated” each time they were performed in the Feast Hall.
Chief Justice McEachern relaxed the hearsay rule to some extent by allowing the narratives to be introduced into court, instead of excluding them outright, but in the end he discounted the direct testimony of the Gitskan-Wet’suwet’en chiefs on account of the allegedly indeterminate and putatively self-serving nature of this testimony. The Chief Justice went on to point out that “much of the plaintiffs historical evidence is not literally true” because the narratives included elements of myth (Delgamuukw 1991: 49). Then, in a blatant example of the scriptocentrism of the Western legal profession (and the conventional Western understanding of history as written record) he concluded that the Gitskan-Wet’suwet’en had “some minimal levels of social organization, but the primitive condition of the natives described by early observers is not impressive” (Delgamuukw 1991: 24). The observers in question included traders and colonial administrators who had kept journals. The journals were introduced into court by the historians hired by the defense. Of the latter, McEachern wrote: “Generally speaking, I accept just about everything they put before me because they were largely collectors of archival, historical documents … [which] largely spoke for themselves” (Delgamuukw 1991: 52).
It did not perturb the Chief Justice that these writings were often laced with stereotypes and racial slurs. For example, at one point in the proceedings McEachern put to Mills the question: “Are you surprised to find so many like Ogden writing that the masses came out of their huts naked? Had their level of civilization not progressed beyond that at or just after the time of contact?” (quoted in Mills 1994: 28-9). Mills responded that the people did wear clothes – the men loincloths and the women skirts or aprons. Upon reflection, she wished that she had gone further and made the point that “the people were not wearing clothing that passed [Ogden’s] 1822, pre-Victorian conception of decorum” on account of the men’s exposed buttocks and women’s bare breasts. This would have highlighted the cultural contingency of Ogden’s “factual” observation and the ethnocentrism implicit in McEachern’s notion of “progress”. The “fact” of the people’s nakedness was only visible to the outsider from a heavily-clad culture.
Hence, the historical documents could not be said to “speak for themselves” and they obscured more than they revealed about the Indigenous reality. The Chief Justice was incognizant of this because he failed to read between the lines and seek to understand the texts from a Western and Wet’suwet’en cultural viewpoint at the same time, the way an anthropologist would. Reading between the lines, or cultivating the capacity to “listen across cultural boundaries” (Mills 1994) was alien to McEachern because of his “common-sense” approach to judging. He did not appreciate the way the anthropologists challenged common-sense assumptions and sought to discredit the whole discipline by characterizing Mills and Daly as “more advocate than witness” (Delgamuukw 1991: 50; see Mills 1994: 19-24).
McEachern’s blindspot becomes glaringly apparent in the following quote from his Reasons for Judgment: “the plaintiffs’ ancestors had no written language, no horses or wheeled vehicles, slavery and starvation was not uncommon, and there is no doubt, to quote Hobbs [sic] that aboriginal life in the territory was, at best ‘nasty, brutish and short’” (Delgamuukw 1991: 13). This statement interpellates a Western myth concerning the so-called state of nature as envisioned by Thomas Hobbes (how ironic that McEachern got the spelling of Hobbes’ name wrong!), and conveniently overlooks the fact that slavery and starvation were just as common in European history. It also assumes that what are taken to be key elements of Western civilization – writing, horses and wheeled vehicles – are necessary to civilization everywhere, regardless of the fact that, for example, there were no horses to be found in the Americas, and there were no draft animals to make the invention of wheeled vehicles useful. The lack of writing, one suspects, was particularly damming to a man who was ready to accept the biases of colonial documents without question but found the oral testimony of the Aboriginal witnesses to be self-serving and unreliable.
By admitting cultural evidence, but then privileging the written record over Gitskan-Wetsuwet’en oral tradition, the court (effectively) heard only one side of the case. Not surprisingly, McEachern went on to dismiss the claim. He found that the Gitskan-Wet’suwet’en did not use the territories (except in the vicinity of their villages, which were already identified as reserved lands) sufficiently intensively or uninterruptedly to establish any more than use rights to the broader territory, and certainly not the proprietary rights that were claimed.
McEachern’s decision, which provoked great consternation among First Nations, was appealed to the B.C. Court of Appeal and appealed again to the Supreme Court of Canada. There, it intersected with a current of jurisprudence articulated by Chief Justice Antonio Lamer that had emerged since the beginnings of the proceedings in Delgamuukw – most notably Lamer’s decision in Van der Peet (1996) and the report of the Royal Commission on Aboriginal Peoples entitled Looking Forward, Looking Back (1996). The latter report made five key points concerning Aboriginal oral history: first, that the Aboriginal tradition in the recording of history is “neither linear nor steeped in the same notions of social progress and evolution” as in the non-Aboriginal tradition; second, that the Aboriginal tradition is “an oral one, involving legends, stories and accounts handed down through the generations” with its own standards of truthing; third, that the Aboriginal tradition has many features that are tangential to the ultimate purpose of the fact-finding trial yet essential to the “distinctness” of the tradition, such as “to educate the listener, to communicate aspects of culture, to socialize people into a cultural tradition, or to validate the claims of a particular family to authority and prestige”; fourth, that oral accounts of the past “include a good deal of subjective experience … [t]hey are not simply a detached recounting of factual events, but, rather, are ‘facts enmeshed in the stories of a lifetime’” (Royal Commission 1996: 33). All this contributed to the Commission’s final point, or rather “sense” – namely, “a sense that there are many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people” (ibid.)
This “sense” that there are “many histories” flew in the face of McEachern’s common-sense approach to judging and opened the door to “cross-cultural jurisprudence,” or “culturally-reflexive legal reasoning” (Howes 2005: 15-21). Cross-cultural jurisprudence looks at the law from both sides: within and without, written and oral, common and “unique” (i.e., attuned to the specificities of the un-common law of the Indigenous tradition).
Lamer quoted the above excerpts from Looking Forward, Looking Back with approval, for they dovetailed with the “special approach” to the assessment of aboriginal rights that he had just laid down in Van der Peet. Quoting himself he wrote: “a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of Aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records.” The justification for this “special approach,” he goes on to state, is to be found:
in the nature of aboriginal rights themselves. I explained in Van der Peet that those rights are aimed at the reconciliation of the prior occupation of North America by distinctive aboriginal societies with the assertion of Crown sovereignty over Canadian territory. They attempt to achieve that reconciliation by ‘their bridging of aboriginal and non-aboriginal cultures’ (at para 42), Accordingly, ‘a court must take into account the perspective of the aboriginal people claiming the right … while at the same time taking into account the perspective of the common law’ such that ‘[t]rue reconciliation will, equally, place weight on each (at paras. 49 and 50) (Delganmuukw 1997: 1065-1066)
In the result, on the principle that “[t]he laws of evidence must be adapted in order that this type of evidence [i.e., Aboriginal oral testimony] can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents” (Delgamuukw 1997: 1069), Lamer set aside McEachern’s findings of fact and ordered a retrial.2 What is more, Lamer held that McEachern misconstrued the nature of Aboriginal title. Such title is not held “at the pleasure of the Crown,” to be ignored or overridden at will (as McEachern surmised from the facts). Rather, “the honour of the Crown” demands that government recognize and negotiate the extinguishment of Aboriginal title, and do so in good faith.
The Supreme Court of Canada decision in the Delgamuukw affair ushered in a highly creative and volatile period in Canadian jurisprudence regarding the legal definition of Aboriginal rights and title — a period in which orality became the new medium and occasionally buried the parol evidence rule. In the 1999 Marshall decision, for example, which concerned the proper construction to be placed on the terms of a 1760-61 treaty between the Mi’kmaq and the British, it was held that treaty arrangements “must be interpreted in a manner which gives meaning and substance to the oral promises made by the Crown during the treaty negotiations,” and that what the Mi’kmaq heard in 1760-61 and passed on, could trump what the British negotiators wrote down (Marshall 1997: 537) As a result, the court found that the Mi’kmaq had a constitutionally protected treaty right to fish for commercial purposes, as opposed to mere subsistence. Here, the spoken word prevailed over the written word.
Hypervisual Jurisprudence: New Media, Law and the Sensate
We have seen how “the facts” do not speak for themselves but have always to be interpreted in light of the law’s sensorium, a complex task when there is more than one law in place – that is, in situations of legal pluralism. Hibbitts’ distinction between “performance” and “writing cultures” helped bring us to this recognition. However, we cannot allow our analysis to rest on this simple dichotomy, because, in the case of the Western legal system and culture generally, the techno-epistemology of writing and print has been unsettled by the advent of diverse “new media,” most notably digital technologies (much as in the case of visual anthropology supplanting textual anthropology analysed earlier).
The hypervisuality of contemporary Western culture has had a significant impact on evidentiary procedures (see Feigenson this volume). As described by Richard Sherwin in his article “Visual Jurisprudence” (2012b), the omnipresence of cameras in urban settings means that a crime which would once have left few visual traces might well today be visually captured by a surveillance camera or a bystander with a camera phone. A video may even have been made by the perpetrators, desirous of retaining a visual record of their exploits. Indeed some criminal acts, such as in the phenomenon of “happy-slapping” (where an assault is filmed and broadcast using mobile phones), are committed primarily for the purpose of being transformed into video documents. New media evidence may also enter the courtroom in the form of videotaped statements and images produced by computer modeling and simulations, which can illustrate how a crime or accident might have occurred (Feigenson this volume; Sherwin 2011).
The conventional association of the sense of sight with rationality and objectivity in Western culture, along with the apparently direct and unmediated nature of photographic imagery, makes such visual presentations deeply compelling. Everyone looking at them seems to become an eye-witness of an event (while the role of the eye-witness of old keeps receding). Sherwin points out that “studies have shown that the mere presence of a photograph at trial (even a neutral one) significantly increases the conviction rate” (2012b: 156). Advertisers have long been aware of the persuasive power of visual imagery. Now, legal scholars must turn their attention to the psychological, cultural and judicial effects of the prevalence of new media imagery in the contemporary courtroom. Sherwin calls for the development of “visual literacy” skills.
New media may also affect the interactions of Indigenous peoples with Western law. Here too one has to take into account the cultural impact of such media and how they relate to traditional sensory values. On the one hand, a video can seem to be an extension of Indigenous practices of dynamic visual display and dramatic oral narrative (the hallmarks of “performance culture”) in a way that static, faceless and voiceless written texts cannot. The practice of videotaping itself requires minimal training compared to the arduous years of study that go into learning to read and write, and thus seems less culturally and cognitively invasive.”The availability and accessibility of video make it an ideal technology for cultural preservation,” Steven Leuthold writes in his book Indigenous Aesthetics: Native Art, Media, and Identity (1998: 75). He goes on to say that: “Native ways of seeing may be expressed in the new technology as well as in the old, and many Indians see no conflict in using technology as a form of aesthetic communication to integrate communal values” (Leuthold 1998: 75; see further Loft 2014).
On the other hand, while they can have a powerful visual and auditory impact, videos suppress other sensory information which may play a vital role in Aboriginal traditions. The feeling of satiety and the experience of being sprinkled with eagledown at the close of a Wet’suwet’en potlatch is a case in point. Other problems may arise when Indigenous customs are contravened by aspects of video recording. For example, in certain Australian Aboriginal cultures, it is forbidden to say the name of a person who has died. If someone named in a video afterwards dies, therefore, their name must be edited out, not always an easy process — especially if a video is widely distributed. Among other peoples there are particular myths or rituals that can only be heard or seen by adults or by men or at certain times of the year. Once filmed it is virtually impossible to ensure that these restrictions will be upheld.
Yet, within the context of Western judicial systems, films and videos of Indigenous practices and statements can play a significant role in supporting claims. In the Australian Murray Island Land Case of 1992 (which laid the ground for the 1993 Native Title Act), a film by a British anthropologist of Murray Islanders performing dances in situ in 1898 helped to prove continuity of land tenure (see further Burke 2011: ch. 2). In the Apsassin v Canada case of 1987, videotaped testimonies of elderly witnesses were used. In that case, however, the judge apparently found that the testimony appeared more authoritative when presented in the form of a written transcript, than when it was seen in its video format with all the hesitations and facial expressions of the witnesses exposed.
Perhaps the best-known example of Indigenous peoples making use of videos to support claims to territorial rights is that of the Kayapo of Brazil, who used video camcorders to document their protest against the construction of a dam. It was the hope of the Kayapo that their videos would be “sent far away to the lands of the whites, so our [white] relatives can see how we truly are”, and thus show greater understanding and respect (cited in Turner 1992: 8). However, the Kayapo filmmakers themselves caught the attention of television crews, who were struck by the sight of “primitive” Aboriginal peoples using “modern” media technology. These televised images made their way around the world and the Kayapo quickly realized that the spectacle of them dressed in the traditional style was another and perhaps even more potent way to be seen by their “white relatives” and to generate support (Turner 1992). This case vividly illustrates how previously largely unseen and unheard peoples could suddenly acquire a viewership of millions thanks to the power of new media — so long as they can capture public attention. The risk, of course, is that of the people represented themselves being “swallowed up” by their image and coming to identify with and seek self-worth in the visual projections of their culture on the screen.
In the twenty-first century, the use of videoconferencing for administering justice in remote Aboriginal communities is on the rise (Wallace 2008), mainly because of its cost-effectiveness compared to the expense of moving people over long distances. Videoconferencing promises to give remote Indigenous peoples more access to justice; however, it may also create a sense of alienation among people already marginalized by mainstream society. The challenge, as a Canadian First Nations telecommunications network puts it, is one of finding “a balance between the personal touch of [the traditional courtroom] and the efficacy of the virtual courtroom” (Wallace 2008), between the corporeal presence which has been fundamental to Aboriginal notions of justice and the audiovisual representations which are a normative part of contemporary modes of communication.
Conclusion
Law, through its conventional association with reason, has traditionally been seen as opposed to, or at least situated outside, the realm of the senses, though involved in its regulation (e.g. the law of nuisance). The sensory turn in the humanities and social sciences, as it has spread to legal studies in recent years, has challenged this separation and resulted in a quickening of attention to the multiple sensory dimensions of law and legal institutions. To date, with the exception of Bernard Hibbitts’ work, most of that attention has focussed on the visual: for example, Law and the Image (Douzanias and Nead 1993), and Visualizing Law and Authority (Dahlberg 2012). These works in “legal aesthetics” contain many insightful analyses, but remain limited by their focus on the image and their fealty to the standard definition of the aesthetic as having to do with art.
The term aesthetic derives from the Greek aisthēsis, which means “perception through the senses” without specification as to modality nor limitation to the domain of art. This chapter, consistent with the original meaning of the term aesthetic,3 has taken a broader approach to understanding the interrelation of law and aesthetics, and advocated a multisensory approach to the study of law and experience of justice. On this view, “visual jurisprudence” (Sherwin) needs to be supplemented by acoustic jurisprudence and olfactory jurisprudence and tactile jurisprudence, and so forth. The present volume contains many brilliant forays into these emergent fields of study. It also points to the need for more attention to be paid to the interplay of the senses, or “multisensory jurisprudence.” It is not only “visual literacy” that legal scholars and practitioners lack, or have only tentatively begun to acquire (following Richard Sherwin’s lead), but also “sensory literacy” (Howes 2015). Understanding the mediatory role of the senses and their extensions in the form of diverse media on the judicial process is a socio-legal imperative..
As we have seen, the Wet’suwet’en institution of the potlatch as a total sensory and social phenomenon, and the Wet’suwet’en definition of law as “the way the feast works,” challenge the scriptocentric common-sense of the Western legal tradition. The only way that justice could be served in the Gitskan-Wet’suwet’en Aboriginal title case was through the cultivation of what could be called “oral literacy” where the term “oral” stands not only for speech and song (i.e. oral tradition) but also the ingestion of a meal, a feast. Chief Justice Lamer grasped certain aspects of the sensori-legal complex of the Wet’suwet’en understanding of justice and gave effect to those aspects in his decision in Delgamuukw by repositioning Aboriginal oral history on a par with the written record. Ideally and tactically, from the cross-cultural jurisprudential perspective advocated here, that legal process would not have been limited to a hearing but also involved a holding a feast at which which the demands of all of the senses of all of the parties could be satisfied.4
Once sensitized to “the way the feast works” in Wet’suwet’en society, the aesthetic or sensory atmosphere of the conventional Western courtroom no longer seems so neutral, the role of different media – old and new – in court procedures no longer appear so transparent, and the quest for justice can at last be seen as totally imbricated in and contingent upon a given culture or jurisdiction’s ways of sensing the world (Howes and Classen 2014: ch. 4)
Acknowledgments
This essay is a product of an on-going program of research into the social life of the senses funded by the Social Sciences and Humanities Research Council of Canada and the Fonds de Recherche du Québec – Société et culture. I wish to thank the editorial collective and the other participants in the Workshop for their many helpful comments on earlier drafts of this essay.
Notes
1. Conceptualizing law as “sense-making activity” builds on the account of law (both formal or “offficial law” and informal, or “everyday law”) as “meaning-making activity” in the late Rod Macdonald’s theory of “critical legal pluralism” (Kleinhans and Macdonal 1997). The principal changes introduced by incorporating a sensory studies approach into socio-legal studies involve supplementing Macdonald’s concern with subjectivity with a focus on sensibility, and his interest in internormativity with a focus on intersensoriality. This move is consistent with the multiple meanings of the word “sense” itself, which includes both sensation and signification (e.g. the “sense” of a word), feeling and meaning, in its spectrum of referents.
2. No retrial has taken place, but the Gitskan-Wet’suwt’en were able to use the decision to strengthen their position in the land claims negotiations that followed.
3. This expanded (multisensory) definition of the aesthetic is also more consonant across cultures (see Howes and Classen 2014: ch. 1)
4. Arguably, this is more the purview of the trial judge (than an apellate court). Significantly, the Wet’suwet’en did contemplate inviting the lawyers for the opposition and Chief Justice McEachern to a feast but were advised that such an invitation would be considered “inappropriate” (Mills 2005: 39; see also 22-4).
