Towards an Acoustic Jurisprudence

In the same build­ing in which Bob Dylan recor­ded much of his sem­inal album Blood on the Tracks, there is a room within a room within a room.[1] The out­er­most of these is lined with foot-​thick con­crete, the inner two have double walls of insu­lated steel. The cent­ral cav­ity floats on I-​beams and springs and is lined with fibre­glass acous­tic wedges more than three foot thick. This is the anechoic cham­ber at Orfield Labor­at­or­ies in south­ern Min­nesota. With back­ground noise levels at –9.4dBA (nine point four decibels below the nor­mal range of human audi­tion), it is offi­cially the quietest place on earth. If you were to spend any time in it, how­ever, you would prob­ably be sur­prised by what you heard. ‘The total absence of sound out­side your body’, Patri­cia Kelly explains, ‘makes you keenly aware of what’s going on inside your body.’ Your heart pumps. Your lungs inflate and deflate. Your ears buzz. Your blood pulses aud­ibly. In an anechoic cham­ber, she writes, ‘you are one noisy organ­ism.’[2] Fol­low­ing his own exper­i­ence in a sim­ilar cham­ber in the 1950s, Amer­ican com­poser John Cage put it like this. ‘Try as we may to make a silence,’ he wrote, ‘we can­not.’[3] Sound, it seems, is a fact of life.

It is not a fact, how­ever, which con­tem­por­ary legal thought has made any par­tic­u­lar efforts to acknow­ledge, let alone to inter­rog­ate in any depth. Jur­ists never tire, it seems, of pro­claim­ing law’s spe­cific­ally scrip­tural qual­it­ies, or its alleged priv­ileging of sight. ‘We live’, appar­ently, in a ‘visual cul­ture’. And ‘in a visual cul­ture law, too, oper­ates visu­ally.’[4] Maybe so; although there is good reason, I think, to treat such total­ising claims with a healthy dose of scep­ti­cism. And besides, whether or not one accepts the pro­pos­i­tion that law in the West is fun­da­ment­ally ocu­lar­centric, the spe­cific­ally aud­it­ory dimen­sions of legal exper­i­ence and prac­tice are surely worth con­sid­er­ing any­way. If life and law are neces­sar­ily lived in sound, we would do well to pay attention.

The stakes, after all, are high. Law, we know, ‘is never just a men­tal or spir­itual act.’ It exists ‘only to the extent that there are com­mit­ments that place bod­ies on the line.’[5] It takes place, as Robert Cover has fam­ously argued, ‘in a field of pain and death.’[6] As jur­ists, we are not sep­ar­ate from all this. The viol­ence which judges deploy neces­sar­ily engages any­one who inter­prets or thinks about the law in a course of con­duct that entails either the per­pet­ra­tion or the suf­fer­ing of this viol­ence.[7] The ques­tion of justice, there­fore, is always also a ques­tion of respons­ib­il­ity. As a com­munity of jur­ists, we must begin to take respons­ib­il­ity for a dimen­sion of legal exper­i­ence which is no less real or sig­ni­fic­ant simply because we barely attend to it. We need to begin to ima­gine a spe­cific­ally acous­tic jur­is­pru­dence.

The task of delin­eat­ing such a jur­is­pru­dence is a large and dif­fi­cult one and, as such, it is not some­thing I will be attempt­ing here. I will say this how­ever. An acous­tic jur­is­pru­dence would be con­cerned with how law is lived both in sound and by vir­tue of it. It would address the ways in which legal thought and prac­tice have both atten­ded to the ques­tion of sound, on the one hand, and neg­lected it, on the other. It would be inter­ested too in the rela­tion­ship between audi­tion and the other senses: in how they inter­act and fail to, and whether claims about law’s priv­ileging of one over the other are indeed borne out. Them­at­ic­ally, an acous­tic jur­is­pru­dence would be con­cerned both with more famil­iar jur­idical top­ics such as the rela­tions between speech, author­ity, jur­is­dic­tion and reason, and less famil­iar ones such as music, song, voice and affect. It would address the acous­tic dimen­sions of legal tech­no­lo­gies and archi­tec­ture, as well as the notions of both hear­ing and listen­ing. And it would be con­cerned with these ques­tions, moreover, in their meta­phys­ical as well their mater­ial, tech­no­lo­gical, phe­nomen­o­lo­gical and aes­thetic dimensions.

Too much to cover here, in other words. In terms of expos­i­tion at least, the aims of this present­a­tion are more mod­est. At the level of per­form­ance, how­ever, it does attempt to do some­thing import­ant. Rather than fur­nish a com­plete account of what an acous­tic jur­is­pru­dence entails, what I hope to do is con­vince you by demon­stra­tion rather than argu­ment that the ques­tion of sound is worth attend­ing to, that it bears an import­ant rela­tion to ques­tions of justice and that it is very much cap­able of influ­en­cing insti­tu­tional out­comes. If this present­a­tion has a gram­mar, in other words, it is the imper­at­ive. It is an appeal to jur­ists: to pay atten­tion; to listen bet­ter; to prick up your jur­idical ears! Sound, after all, is both a fact of life and a con­di­tion of the admin­is­tra­tion of justice, an inali­en­able part of our legal worlds.

One more brief note before I begin. My doc­toral thesis takes the form of a case study. The case is that of Simon Bikindi – accused by the Inter­na­tional Crim­inal Tribunal for Rwanda of incit­ing gen­o­cide with his songs and speech.[8] It’s an inter­est­ing case from the per­spect­ive of an acous­tic jur­is­pru­dence because it involves so many dif­fer­ent issues in rela­tion to the ques­tion of sound so dir­ectly. And moreover both as a mat­ter of form and sub­stance. In what fol­lows I won’t be talk­ing much about the Bikindi case dir­ectly (though that is where all of my tran­scrip­tual and audio examples come from). Nev­er­the­less, the Bikindi case does provide an import­ant back­drop to what fol­lows. It serves as a reminder of just how high the stakes can be where sound is con­cerned. It was not just that Bikindi’s own body ‘on the line’ after all. The court was being asked to adju­dic­ate in rela­tion to a gen­o­cide in which many more than 500,000 people were killed and in which ques­tions of sound were very dir­ectly implic­ated. Both in and out of the courtroom, in other words, what the trial of Simon Bikindi sug­gests is that the use and abuse of sound is cap­able of hav­ing real, determ­in­ate and poten­tially severe consequences.

Try to keep that in mind then in rela­tion to what fol­lows. As I say, this present­a­tion is not about the Bikindi case, or at least not dir­ectly any­way. It’s about how the tech­nical, tech­no­lo­gical and pro­fes­sional prac­tice of so-​called ‘sim­ul­tan­eous inter­pret­a­tion’ has com­pletely revolu­tion­ised the prac­tice and phe­nomen­o­logy of inter­na­tional law and, along with it, both the nature of legal elo­quence and the sound­scape of justice.[9]

Sim­ul­tan­eous Inter­pret­a­tion: (i) the child of inter­na­tional law

The sys­tem of sim­ul­tan­eous inter­pret­a­tion employed by the ICTR today was craf­ted, accord­ing to Francesca Gaiba, ‘by trial and error in an attic room of the Nurem­berg Palace of Justice.’[10] This was in 1945, in pre­par­a­tion for the fam­ous Nurem­berg Trial. Today, the trial is most often remembered for its influ­ence on the then nas­cent norms of Inter­na­tional Human­it­arian, Crim­inal and Human Rights Law. But it was cru­cial for another less well-​known reason too, par­tic­u­larly if one is look­ing at it from the per­spect­ive of an acous­tic jur­is­pru­dence: Nurem­berg was the first trial ever to be con­duc­ted mul­ti­lin­gually, that is in sev­eral lan­guages at the same time. In this case: Eng­lish, French, Rus­sian and German.

The mul­ti­lin­gual trial has since become the stand­ard mech­an­ism of inter­na­tional justice, but in 1945 it was unheard of: a com­pletely novel jur­idical form. And the sys­tem which made it feas­ible, by means of a mar­riage between recent tech­no­lo­gical devel­op­ments and an estab­lished but excep­tion­ally dif­fi­cult form of inter­pret­at­ive prac­tice, is quite pos­sibly the unsung hero of inter­na­tional justice I would argue, espe­cially in tech­nical or phe­nomen­o­lo­gical terms.

It is not just that without it ‘the Nurem­berg Trial would not have been pos­sible’ as Gaiba puts it. None of the Tribunals estab­lished to mete out inter­na­tional justice since then would have been pos­sible either. Includ­ing, of course, the ICTR. This is Col­onel Léon Dostert, the system’s inventor, on how it works:

watch?v=564W493M7eU

So that’s sim­ul­tan­eous inter­pret­a­tion in a very small nut­shell. There’s a lot more that could be said about it. But my ques­tion this morn­ing is this. Now that the sys­tem has become so thor­oughly embed­ded in the prac­tice of inter­na­tional law, what impact has it had on the way inter­na­tional legal dis­course actu­ally sounds?

Sim­ul­tan­eous Inter­pret­a­tion: (ii) justice has a rhythm and a tempo

Today, pro­ceed­ings at the ICTR move almost pain­fully slowly. The word ‘sim­ul­tan­eous’, it turns out, is mis­lead­ing to say the least. Inter­pret­ers, obvi­ously, must under­stand a min­imum of inform­a­tion before they can begin their trans­la­tion. The lag between the ori­ginal and inter­preted ver­sion is called décalage. It var­ies between inter­pret­ers, but it can eas­ily be as much as about seven or eight seconds. What this means in prac­tice is that every­one is con­stantly wait­ing for the inter­pret­a­tion to fil­ter through on their head­phones before pro­ceed­ings can move on. And as a res­ult, the kind of speech pat­terns that emerge at trial are incred­ibly frag­men­ted. Sim­ul­tan­eous inter­pret­a­tion, that is, rad­ic­ally changes the nature of legal elo­quence. Inside a courtroom at the Tribunal, speech has its own unique rhythm and tempo.

This is Cicero in De Oratore some two thou­sand years ago. ‘Every thought must have weight,’ he writes, ‘every word must be impress­ive. To this must be joined a deliv­ery that is var­ied, vehe­ment, full or ardour and energy, full of real emo­tion.’[11] Well not at the ICTR. Oratory at the ICTR sounds pos­it­ively slug­gish. It is slow and dis­join­ted and, what’s more, not at all easy to mas­ter. It requires an extraordin­ary amount of patience both on the part of the per­son speak­ing and the listener. Judges and inter­pret­ers are con­stantly put­ting the breaks on speak­ers who lapse into their pre­ferred metre. This sort of thing, for instance, was abso­lutely typ­ical in the Bikindi case.

MADAM PRESIDENT:

Mr. Wit­ness, please give us a short answer and speak more slowly. It’s very dif­fi­cult for the inter­pret­ers when you speak so quickly. So speak slowly, make pauses, and stop after giv­ing a short answer so that Pro­sec­u­tion can tell you whether they want you to con­tinue with what you are say­ing or want you to go in a dif­fer­ent dir­ec­tion. Please answer the ques­tions. Don’t repeat what you want to say. But, first, listen to the ques­tion.[12]

In this example, Presid­ing Judge Wein­berg de Roca actu­ally per­forms the very rhythm and tempo of speech that she wants the wit­ness to imit­ate. Her speech here is so frag­men­ted, so broken up with pauses, that in any other con­text it would sound noth­ing short of comedic. Although it prob­ably took you only about fif­teen or twenty seconds to read, at trial the short pas­sage above lasts for over a minute.

One thing is abund­antly clear then. As far as the tempo of inter­na­tional justice is con­cerned, sim­ul­tan­eous inter­pret­a­tion rep­res­ents a com­prom­ise. Its great achieve­ment – and it is a great one, I think – is to render inter­na­tional justice lento ma non troppo: slow, but not too slow. As David Maxwell-​Fyfe, the Brit­ish pro­sec­utor at Nurem­berg put it, the slow pace of exam­in­a­tion was ‘not a high price to pay for…justice in four voices.’[13] At the ICTR, we get it in three. Eng­lish and French – the two offi­cial lan­guages of the UN – and Kinyarwanda.

***

There is more that could be said about sim­ul­tan­eous inter­pret­a­tion from an acous­tic per­spect­ive. About the way that that inter­preted speech flat­tens speech pat­terns, for instance, about how it cre­ates a strange kind of tone­less speech, how it fre­quently alters the gender of the speaker’s voice, and the inev­it­able viol­ences that these subtle but per­sist­ent modi­fic­a­tions enact. But what I want to do move on while there is still time to con­sider briefly some of the other less dir­ect effects of sim­ul­tan­eous inter­pret­a­tion which arise from the tech­no­lo­gical innov­a­tions which it brought about in inter­na­tional legal prac­tice. How does the phe­nomen­o­logy of legal prac­tice change, in other words, when the courtroom is wired for sound?

Wired for Sound: (i) listen­ing alone together

What sim­ul­tan­eous inter­pret­a­tion means in prac­tice, is that there is not one sound­scape at the ICTR but many. Acous­tic exper­i­ence at the tribunal is heav­ily indi­vidu­ated. At the ICTR, in fact, the word ‘courtroom’ is some­thing of a mis­nomer. Each courtroom at the ICTR com­prises six dis­crete and rel­at­ively well sound­proofed spaces. First, and most obvi­ously, there is the cent­ral cham­ber where the defend­ant, judges and law­yers sit along with vari­ous admin­is­trat­ive per­son­nel for the Registry and wit­nesses whenever they are called. The long wall opens onto the pub­lic ‘gal­lery’ which, unlike in many domestic courts in the West, is both phys­ic­ally and acous­tic­ally sep­ar­ated from the cent­ral judi­cial space. If one sits right up against the bullet-​proof glass, it is just about pos­sible to make out the mur­mur of con­ver­sa­tion on the other side. But oth­er­wise it is neces­sary to ‘tune in’ via an infrared receiver and head­phones which will have been handed to you by the secur­ity guard at the gallery’s entrance Behind coun­sel for the pro­sec­u­tion, are the three inter­pret­a­tion booths: one for the Eng­lish, one for the French and one for the Kin­yar­wanda inter­pret­ers (which is out of shot here). Again, each booth is acous­tic­ally sep­ar­ate from the cent­ral space, but this time, as in the main cham­ber itself, they are equipped with micro­phones for the trans­mis­sion as well as head­phones for the recep­tion of audio-​signals. And finally, behind coun­sel for the defence, is the audio-​visual (AV) booth from where the sound– and video­scapes of the rest are mon­itored and controlled.

There are four audio-​channels to choose from on the little black infrared receiv­ers attached to your head­set: one cor­res­pond­ing to each of the three lan­guages in which the trial is oper­at­ing, and one, referred to as the ‘floor chan­nel’, which allows you to hear whatever is being picked up by the micro­phones in the cent­ral cham­ber regard­less of the lan­guage being spoken. Each and every per­son present at trial is not only able but act­ively required to organ­ise their own listen­ing exper­i­ence. Head­phones off or head­phones on, volume up or down, Eng­lish, French or Kin­yar­wanda: cocooned in their ‘Cartesian head­sets’, par­ti­cipants in the jur­idical sound­scape must both occupy and arrange their own private acous­tic worlds.

What is inter­est­ing about the acous­tic indi­vidu­ation at trial, how­ever, is just how social it is. This is not the kind of head­phone usage one sees on buses and air­planes for example. In such cases, the listen­ing is spe­cific­ally inten­ded to pro­duce a cer­tain kind of isol­a­tion from the imme­di­ate sonic and social envir­on­ment: a kind of cloistered or reclus­ive listen­ing if you like. Dur­ing a trial at the ICTR, how­ever, although every­one present may be listen­ing dif­fer­ently, they are nev­er­the­less all listen­ing together. Sound and media the­or­ist Jonathan Sterne has cap­tured the appar­ently para­dox­ical nature of this mode of listen­ing nicely in his dis­cus­sion of cer­tain forms of the emer­gent ‘head­set cul­ture’ towards the end of the nine­teenth cen­tury. In Sterne’s terms, the exper­i­ence of listen­ing to a trial at the ICTR is, ‘highly indi­vidu­ated, stand­ard­ized, yet also col­lect­iv­ized.’[14] Par­ti­cipants, that is, must listen ‘alone together.’[15] Their isol­a­tion is col­lect­ive. What that means in prac­tice is that listen­ing at trial is fre­quently under­stood as a col­lab­or­at­ive enter­prise. Judges share tips with law­yers and, most fre­quently, with wit­nesses who are unac­cus­tomed to the pecu­liar listen­ing prac­tices that par­ti­cip­a­tion in a trial at the ICTR requires.

But the (col­lect­ive) indi­vidu­ation of acous­tic space at trial pro­duces another import­ant aes­thetic effect too. ‘Trans­mit­ted through air,’ media the­or­ist Sean Cubitt explains, ‘sound occu­pies and cre­ates an envir­on­ment.’[16] This is the sound of the archetyp­ical ‘cav­ernous courtroom’ – London’s his­tor­ic­ally high ceilinged Old Bailey per­haps or the Inter­na­tional Court of Justice’s so-​called Great Hall at the Peace Palace in the Hague – where the res­on­ance of the space, in col­lab­or­a­tion with the scale of the archi­tec­ture that is required to pro­duce it, com­mu­nic­ates its very pomp and ser­i­ous­ness: one might even be temp­ted to say its aura. In acous­tic terms, the sim­il­ar­ity to a Church or other sac­red loc­a­tion is unmis­tak­able. Speech, songs and gavels resound and echo. Sound sur­rounds and envel­opes you.

Not only are the courtrooms at the ICTR con­struc­ted spe­cific­ally to muffle sounds rather than to let them res­on­ate, how­ever, head­phones pro­duce a com­pletely dif­fer­ent kind of listen­ing exper­i­ence. ‘Trans­mit­ted dir­ectly to the ear with whatever pur­ity of repro­duc­tion, [acous­tic] space is reduced to an optimal (and ima­gin­ary) point mid­way between the ears.’ The moment you put on head­phones, that is, archi­tec­tural becomes punc­tual space. Exper­i­enced through head­phones at the ICTR, the courtroom sounds far more bur­eau­cratic than sac­red. It is less cav­ernous, more cellular.

Wired for Sound: (ii) the ‘phono­graph effect’

If these are some of the gen­eral effects pro­duced by the intro­duc­tion of sound-​reproduction tech­no­lo­gies into the jur­idical envir­on­ment, there are many spe­cific ones too. One thing that is abund­antly clear from the tran­scripts and audio-​record at the ICTR as well as from my own obser­va­tions of ongo­ing tri­als is that head­sets and micro­phones are never very far from the fore­front of peoples’ minds.

At the mundane level, par­ti­cipants are con­stantly fid­dling with their head­sets, switch­ing between audio-​channels and com­plain­ing about tech­nical hitches. Effect­ive micro­phone usage, in fact, is an ongo­ing struggle at the Tribunal, par­tic­u­larly – though far from exclus­ively – where untutored wit­nesses are con­cerned. It is not just that people for­get to turn them on, and are there­fore both inaud­ible and unin­ter­pretable as a res­ult. Par­ti­cipants need to learn to ‘play’ their micro­phones prop­erly as the fol­low­ing examples demon­strate. Some­times it is a ques­tion of effi­ciency: ‘Mr. Wit­ness, don’t switch your micro­phone off. Just leave it on. Then it is not a prob­lem every time you have to answer.’ Some­times prox­im­ity: ‘Madam Wit­ness, if you can please sit straight so that your mouth is nearer the micro­phone.’ And con­versely ‘Madam Pres­id­ent, if the wit­ness could be advised to sit back from the micro­phone. He is breath­ing into the micro­phone.’ Some­times it is a mat­ter of volume: ‘Please make sure that you speak loudly enough that it comes through on the earphones, right, madam?’ Or again, ‘Mes­sage to Madam Pres­id­ent from the Eng­lish booth. I do not believe she has her head­phones on. Could the wit­ness please be reques­ted to speak clearly and loudly?’ And on another occa­sion the reverse, ‘Mr. Wit­ness, please speak more softly because if you answer in a loud voice, we can­not hear the interpretation.’

What each of these examples evid­ence is the obvi­ous fact that sound-​reproduction tech­no­lo­gies do more than simply record and repro­duce the sounds of the jur­idical envir­on­ment. They change them. They alter how people at the ICTR speak and listen.

Mark Katz, in his study of the effects of tech­no­logy on music mak­ing prac­tices in the twen­ti­eth cen­tury, has referred to this phe­nomenon as the ‘phono­graph effect’: ‘any observ­able mani­fest­a­tion’, that is, ‘of recording’s influ­ence.’[17] He gives the example of ‘croon­ing’, the ‘soft, restrained vocal style pop­u­lar form the 1920s to the 1950s, heard in the singing of Bing Crosby and Frank Sinatra.’ Croon­ing, Katz argues, was made pos­sible ‘only with the micro­phone, because without amp­li­fic­a­tion such singing would be express­ively flat and nearly inaud­ible. Yet the tech­nique achieved a remark­able effect. Croon­ing is akin to whis­per­ing, which under nor­mal cir­cum­stances can be heard only when one is phys­ic­ally very close to the speaker; croon­ing thus provides a sense of intim­acy between artist and audi­ence, col­lapsing the tech­no­lo­gic­ally imposed dis­tance that would seem to pre­clude such a rela­tion­ship.’[18] The prac­tice of con­tem­por­ary inter­na­tional crim­inal justice, it turns out, is a lot like croon­ing then. It too was made pos­sible only with the microphone.

Like Bing Crosby and Frank Sinatra before them, every law­yer, judge and wit­ness who wishes to par­ti­cip­ate in a trial at the ICTR must learn to use this instru­ment cor­rectly. Jonathan Sterne puts it like this. As long as sound-​reproduction tech­no­lo­gies have exis­ted, he says, people have always ‘per­formed for the machines; machines [do] not simply ‘cap­ture’ sounds that already exis­ted in the world…recording has always been a stu­dio art.’[19] Today, thanks par­tic­u­larly to sim­ul­tan­eous inter­pret­a­tion in the inter­na­tional con­text, courtrooms are increas­ingly stu­dios too. As a com­munity of jur­ists, we would be well advised to pay attention.

This entry was posted on 27 September 2011 at 7:21 am and is filed under Critical Legal Conference 2011, Critical Legal Theory, Jurisprudence. Published under Creative Commons (CC) Attribution-NonCommercial-ShareAlike 3.0 Unported License: You are welcome to share and remix this content for non-commercial purposes. Kindly acknowledge and hyperlink the source.