Better a Good Ear than a Good Law
It is a hoary saw of common law, and forgive the rhyme, that arguments from precedent should sound. Like most oracular juridical pronouncements this invocation of a syntonics of casuistry, a euphony of edicts, is somewhat opaque. Judges will often intone that an argument sounds in law, that it is on all fours with prior decisions, and this appears to mean that it rings, chimes, or tinkles like a clashing of cymbals or roll of drums announcing the onward march of the legion of legists or the achievement of a perfect pitch such that harmonizes with the choir of juristic precedents. The sounding, however, goes unexamined, the word astray as if a mere metaphor or esoteric reference, some croaking divinity or old-fashioned idol lost now in the mists of the immemorial and time, as they say, out of mind.
I confess, and idols are best for public confessions, that I am a little in love with our “Ladie Philologie,” as the antiquaries liked to name the study of linguistic morphology and the eristics of etymology. The vestiges and residues, footprints and patterns, the lays, leys, lores and laws that phonemes harbor and hide are technically fascinating—they capture, hold, enchant—and if attended, listened to, and given time can render a different ilk of justice, another form of judgement, an emergency of meaning and yet one that is still present and dimly audible in the extant language of law. It may be carried in lost words, fallen signs, forgotten signatures, by enigma or chance, and yet present in the panoply of proleptic possibilities that the past provides, a will to song, to voice and dance, that paromoion supports, and that phonetics can proffer to incantation and recitation.
What do we sound when we say that law sounds, that it is sound and presumably, by extension, sounded? What melody or rhythm, verse or lyric is it that is being whispered and, because for lawyers rules matter, what chord, concordance, and accord has purchase and hold? There is the obvious point that our engagement with the sound of sounding is an excursion into the resonance of idols in the music of nature and the keys of the mind. To sound, sonum and sounen (I am borrowing from Skeate’s etymologies) is to undulate and sounder, to roll and sway as if law could dance and this is the legal equivalent of idolatry: the attention to chance, moving to the rhythm of a tune we cannot any longer hear, is to shift audition outside of law, to unhinge the lexicon, the lex-icon that wants to be read, seen, quieted on the page so as to pass unheard—only a fool, says Saint Augustine, moves their lips while reading. Against such abstraction and iconicity we pitch the uncanny or weird tintinnabulations of an acoustic past of heralds and criers, of oyez, oyez, the being of edicts and other lectoral performances, of crowded hearings, of loud promulgations. To sound is the act of the pilot measuring the watery depths that the ship must navigate, a sounding-plummet is a mariner’s instrument to know how deep and what lies under the waves, sub umbra, below the spume and shadow. To logic there is only darkness but for the idolater, full forty fathoms deep lies the debris of poetry, the rhyming sounds of profound currents that map our oceanic feelings and they too are part of our alluvial inhabitation, glob, globe and earth.
It is easy to remark that these are aphotic times, harbingers of deaf memories, shattered symbols, collapsing laws. An apt occasion then, a habile moment to obey the ear and rest with the leys and the lores that languish unattended in the sonorous relics of legal harmonics, the reverberations of jurisprudence. An urgent question, a dull sound. Where in the world are we—ubinam gentium sumus? in the old language—is a question that only the idols answer because it is a matter of auricular placement, of tonal affect, of minor keys. To sound the idols is here to tap into the timbre of lores, the paradoxically ergodic manifestations of non-gods, of profane things, of currents and oceans that constitute a prior order and force of the commonality of law.
Legal logic, in sum and sonorousness, ignores community and is oblivious to other species as also to the community of all organic life, from rock to rust, cabbage to the cursorial cassowary. The idols, of the tribe, of the theatre, are the profane existents of the community that have to be sounded in full and ungodly fashion to determine, like the pilot, the gubernator, the judge, where in the world, in nature, on earth, we are passing. It may be juristically unthinkable, legally a matter of tin ears, a failure of audition but in sonic and loreful forms it is time to expand, to follow the auricular path, the fluid melody from which method derives its rhythm and mores their folds. Sounding the idols, earning our Bacon, is to lend an ear, to give time to sound and recall the old juristic definition of words, provided by the plodder Plowden, that the words of the law are but “the verberation del ayer” by the tongue creating “solement le image del Statute” and thence the sound of lore.