This article examines one of the unexamined "texts" of law: legal
gesture, by which is meant any purposive bodily motion (especially,
but not exclusively, of the arms or hands) that by convention
signifies a legal change, condition or relation. The
article surveys the functions of legal gesture, dividing those into
eight distinguishable, but necessarily overlapping categories labeled
"indicative", "ordinative", "evidentiary", "demonstrative",
"communal", "mnemonic", "regulatory" and "psychological". Within each
category, the author identifies and reviews particular functions which
legal gesture has historically served and/or continues to serve in our
legal system. The article concludes by suggesting that far from being
a primitive or naive modality inherently inferior to writing, legal
gesture is a sophisticated and powerful medium possessing a uniqued
capacity to foster community, concreteness and bodily empowerment. To
the extent that these ends and values are deemed worthy in a
postmodern era, it may be appropriate to reform law by literally
re-membering it.
Published in 6 Journal of Contemporary Legal Issues 51 (1995).
A copy of the full text of this article is available upon
request.