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.



[1] A longer, more developed version of the argument in this presentation will be published under the title ‘The Soundscape of Justice’ in the Griffith Law Review: Vol 2011 20(3).

[3] John Cage, Silence (1968), p 8.

[4] Richard Sherwin, Visualizing Law in the Age of the Digital Baroque (2011), p 2.

[5] Robert Cover, ‘Violence and the Word’ Yale Law Journal (1986), 1601, p 1605.

[6] Cover, p 1601.

[7] Cover, p 1601 at footnote 1.

[8] Prosecutor v Bikindi (Judgment) (International Criminal Tribunal for Rwanda), Trial Chamber III, Case No. ICTR-01-72-T, 2 December 2008.

[9] The term ‘soundscape’ will be unfamiliar to many jurists. It was first coined by R Murray Schafer in a series of booklets and articles around thirty years ago which were then soon followed by his more famous book length treatment The Soundscape: Our Sonic Environment and the Tuning of the World in 1976. Therein Schafer offered the following definition. The soundscape, he said, was our sonic environment, or ‘technically, any portion of the sonic environment regarded as a field for study.’ While such a definition certainly has the advantage of succinctness, following Alain Corbin and Emily Thompson I use the term slightly differently here to incorporate not just the Tribunal’s acoustic environment itself, but also the way in which that environment is constructed, understood and perceived. ‘Like a landscape’, writes Thompson, ‘a soundscape is simultaneously a physical environment and a way of perceiving that environment; it is both a world and a culture constructed to make sense of that world.’ It is a combination both of the sounds themselves and the set of listening practices developed to make sense of them, of the acoustic ecology and what Jonathan Sterne has termed ‘audile technique’.

[10] Francesca Gaiba, The Origins of Simultaneous Interpretation: The Nuremberg Trial (1998), p 11.

[11] Cicero, De Oratore (2001) p 142: Book II, para 73.

[12] Transcript of Proceedings, Prosecutor v Bikindi (ICTR, 27 September 2006), p 35.

[13] Gaiba, p 102.

[14] Jonathan Sterne, The Audible Past: Cultural Origins of Sound Reproduction (2005), p 165.

[15] Sterne, p 163.

[16] Sean Cubitt, Digital Aesthetics (1998), p 103.

[17] Mark Katz, Capturing Sound: How Technology Has Changed Music (2010), p 2.

[18] Katz, p 46.

[19] Sterne, p 235.

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  1 comment for “Towards an Acoustic Jurisprudence

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