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 correspondence 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.
Bernard J. Hibbitts,
Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse,
Cardozo Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/122