Hands in Cont(R)Act: the Resiliency of Business Handshakes in Pandemic Culture

Hands in Cont(r)act: The Resiliency of Business Handshakes in Pandemic Culture

Sheryl N. Hamilton*

Abstract This article examines the persistence of the handshake in business circles despite its implication in the spread of communicable disease in contemporary pandemic culture. An examination of business etiquette discourse suggests that even during disease outbreaks or flu season, the business handshake remains an important visual and haptic legal gesture. While it may no longer produce a binding legal contract, it stages the parties as contractable subjects, as claiming the status of autonomous individuals committed to defining their intersubjective relationship through the norms of contract. The business handshake thus operates as a cultural site for the complex interaction of bodies and law, and the production of masculine, haptic-legal subjectivity.

Keywords: haptics, law and touch, contract law, law and the senses, pandemic culture

Résumé Cet article examine la persistance de la pratique de la poignée de main dans les milieux d’affaires malgré son implication dans la propagation des maladies trans- missibles dans la culture pandémique contemporaine. Un examen du discours sur l’étiquette des affaires suggère que même au plus fort des épidémies ou pendant la saison de la grippe, la poignée de main commerciale demeure un geste juridique visuel et haptique important. Bien que la poignée de main ne produise plus de contrat juridiquement contraignant, elle présente les parties en tant que sujets contractuels qui revendiquent le statut d’individus autonomes engagés à définir leur relation intersubjective à travers les normes du contrat. La poignée de main dans les milieux d’affaires opère comme un espace culturel pour l’interaction com- plexe des corps et du droit ainsi que pour la production d’une subjectivité masculine et hapto-juridique.

Mots clés : haptique, droit et toucher, droit contractuel, droit et les sens, culture pandémique

* This analysis benefitted immensely from the thoughtful and generous remarks of Sean Mulcahy, as well as from the feedback and suggestions of all participants in the Social Sciences and Humanities Research Council of Canada funded workshop, The Othered Senses, held May 1–3, 2018. The suggestions and critiques of the anonymous reviewers also enhanced the clarity of the analysis. Any remaining limitations are my own. Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2019, Volume 34, no. 2, pp. 343–360. doi:10.1017/cls.2019.26

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 344 Sheryl N. Hamilton The handshake seals the contract From the contract there’s no turning back The turning point of a career In Korea being insincere The holiday was fun-packed The contract, still intact (“Everything Counts,” Martin Gore, Depeche Mode) The handshake as a social ritual and Western conceptions of contract have a long, entangled history. The contemporary historical moment is a particularly interesting one in which to explore the cultural and legal effects and affects of the business handshake because, in Canada and the United States, we live in a social environment in which we are regularly cautioned by public health officials and popular culture producers alike that the next pandemic looms. We are told that the surfaces with which we have quotidian contact—animate and inanimate—are teeming with viruses and bacteria, and as a result, our hands are always dirty. They require con- tinual cleansing. This new promotional culture of hygiene everywhere frames us as simultaneously at risk and risky, contaminable and contaminating. Although the medical occurrence of pandemic is rare, pandemic threat increasingly shapes many aspects of current American and Canadian life. The list of “almost pandemics,” or what Mika Aaltola (2012) calls “pandemic scares” or “duds” is familiar: Ebola, Severe Acute Respiratory Syndrome (SARS), H1N1/Swine Flu, H5N1/Avian Flu, West Nile Virus, Middle East Respiratory Syndrome (MERS), Zika Virus, measles, and the annual flu, each more volatile than the last.1 And these scares matter, even when they do not reach pandemic proportions. As Aaltola suggests, “[w]aking up to a world that is experiencing a mysterious disease said to be extremely serious and deadly, instantiates a relationship of worry that is bound to have more than a fleeting influence” (2012, 5; see also Slovic 1987; Wald 2008; Levina 2014). Neil Gerlach and I label this cultural imaginary “pandemic culture” (Gerlach and Hamilton 2014; see also Mitchell and Hamilton, 2018). Pandemic culture is produced, circulated, and its traces made visible in an array of cultural, medical, governmental, and commercial practices notable both for their banality and ubiquity. From pharmacy advertisements for annual flu shots, to news stories featuring celebrity anti-vaxxers, to Hollywood zombie plague blockbusters, to public health poster campaigns to wash our hands, to hand-sanitizer dispensers in many of our public spaces, the sense of our selves and our world as diseased increasingly impacts our biosubjectivity.2 Living in pandemic culture, we sense our bodies differently. In particular, I am interested in the ways in which we come to touch differently in a pandemic culture that tells us our hands are media of disease spread and our environment is irremediably contaminated. The haptic repertoires

1 I am deliberately using the disease names which circulate in wider public discourse, as often vari- ants of the same virus get treated as distinct disease events. While I have included those diseases which have received the most protracted public health and media attention, I also note the regular popular and public invocations of the return of “older” diseases such as tuberculosis, bubonic plague, polio, and others. 2 For an elaborated theorization and discussion of biosubjectivity, please see Neil Gerlach et al. (2011).

3 While I am focused on the volatility of touch in relation to communicable disease in this paper, it is important to note that the unequal and gendered power dynamics inherent to touch that get socially coded as “everyday” are being recognized in the context of the #metoo and #timesup movements. It is important to consider all varieties of touch in this context, including deceptively banal touch such as the handshake. It would be particularly interesting to examine the ritual nature of the handshake as a socially “mandatory” form of touch that removes the agency of someone desiring to opt out and the ways in which the handshake as a mode of touch and its visual appearance may be at odds. 4 The fist bump is a complex, culturally specific, gesture which does some similar work to the handshake but with important differences. I am not able to do it any justice in this analysis given my focus. Throughout this analysis, I draw on it only when it works as a substitute for the handshake. While I am not asserting this substitution is seamless, my primary claim is that it maintains the haptic encounter; it remains a form of business touch. 5 I argue that it is only with the advent of a particular flavour of concerns about communicable disease—pandemic culture—that we have seen the emergence of “flu season” as a recognizable and regular periodization of disease risk outside of medical circles. There are many other examples of changes to handshake practice. Churches engaging in the “sign of the peace,” the end-of-game handshake in amateur team sports, and congratulatory hand-clasping at the end of graduation ceremonies at schools and universities have all come under regulatory scrutiny. There is even a movement in American hospitals to make them “handshake free zones” in order to control for the spread of hospital-acquired infections. 6 See Hamilton 2019 for a discussion of these changes through a notion of a shifting habitus of hygiene. Our contemporary habitus of hygiene comprises the gestures, rituals, norms, practices, sensual habits, values, and sensational frames through which we live our lives as diseaseable subjects— anticipating, enacting, and managing our dual status as contaminated and contaminable. While this includes practices such as cleansing, it also includes the production and modification of a variety of intersubjective haptic rituals—sneezing into our elbows, staying away from workplaces when ill, getting flu shots annually, both carrying hand sanitizer on our person and offering it to others, using covered body parts to touch public surfaces, and so on.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 346 Sheryl N. Hamilton and visual, deliberate and habitual, intimate and casually public—is a site of inter- vention in public health efforts to manage communicable disease. In the United States and Canada, we increasingly see both formal and informal regulation of this particular type of “handwork” (Schiffrin 1974) in various social locations where its practice is common. Business is, not surprisingly, one such site. The business handshake is particularly interesting as it is a haptic gesture which asserts legal status. Therefore, my analysis is guided by the following larger questions. In pandemic culture, how do the ways that we touch ourselves, each other, and the material world around us become objects of public health attention, moral scrutiny, and bodily regulation? What does this mean for the haptic rituals that seek to suture daily social life? In particular, what does this increased attention to contaminated touch mean for culturally embedded haptic practices that have legal import? The business handshake offers a compelling entry point into these questions given its ubiquity in business culture, its iconic cultural status as representative of contract, and its haptic-legal performativity. My research reveals that public health efforts to rewrite the haptic etiquette of the business handshake have met with resistance.7 Unlike other contexts where the handshake has been more easily disrupted in the name of disease prevention (see Hamilton 2017), the business handshake has proven particularly resilient, prevailing as an enactment of the contractability of its participants. In the analysis that follows, I briefly demonstrate the status of the business handshake as a signifier of contract in contemporary culture. I then pull back to situate the business handshake in broader discussions of the handshake as an oft-underestimated social ritual, noting its particularly gendered nature. From this, I move on to theorize the handshake as a performative haptic-legal gesture, one thoroughly embedded in unequal power relations. Finally, I examine the business handshake in the specific cultural moment of pandemic culture, arguing that its volatility articulates a multi-layered sensori-legal encounter. Ultimately, even in pandemic culture, the business handshake persists to stage the embodied assertion of an ideal(ized) contractual subjectivity. In this way, it is both a means for informal but powerful legal-regulatory apparatuses to act on our bodies through the senses, and an important way that our senses perform legally.

Handshakes in Business Touch and business have long been partners. More specifically, handshakes and contracts have intertwining histories that are both largely assumed and undocu- mented. Anthropological scholarship lends credence to this synergy with evidence garnered from a variety of cultural contexts. Yet there is no intensive study of the ritual of the handshake as a legal or specifically contractual gesture in the West. Legal scholars, while acknowledging that handshakes often occur in the context of legal contract formation, have been both persistent and consistent in arguing that text should trump touch, that a written contract is always preferable to a “handshake

7 My notion of public health is expansive and includes private sector and popular culture communication practices that speak to our hands as disease media, drawing us into the emergent habitus of hygiene. Each of these, whether directly authored by the state or not, offers a self-consciously public message seeking to improve health.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 Hands in Cont(r)act 347 contract” (e.g., Murray 2005). Here, I am less concerned with whether or not a handshake can achieve a legally binding contract than I am in the myriad ways that handshakes and contracts are co-articulated in cultural representations both within and outside of formal law. More specifically, I am interested in the common stories we tell ourselves about handshakes and contracts and how they set us up as particular types of legal subjects through our bodies and our sensual actions. One of the most common discursive sites for the formal linking of handshakes and contracts is the pedagogical genre of business writing aimed at grooming what I call the haptic etiquette of entrepreneurial subjects, guiding businessmen—and, in very different ways, businesswomen—in the practices and norms governing proper bodily gesture and contact in business settings.8 We can see the repeated articulation of the handshake as essential to business in advice columns in the business press giving guidance on appropriate bodily comportment. Examples abound: “7 tips on proper handshake etiquette” (Mayne 2018); “How to shake hands with confidence” (Wolfe 2018); and “How to shake hands like you mean business” (Shandrow 2016). Martin and Chaney state in their intercultural communication textbook, “Building a business relationship has a lot to do with the first impression you make,” and this first impression is shaped, among other things by “how you shake hands” (2006, 23). Business etiquette author Ann Marie Sabath (2002) is even more express: “A limp handshake can tag you as someone who is hesitant or lacking in resolution. An overpowering shake can brand you as a manipulator. A sincere, confident grip conveys confidence and authority” (24). GTS Learning, in its 2013 guide, Business Etiquette: Gaining That Extra Edge, agrees: “Knowing how to shake hands well is essential for people who want that upper hand.” The handshake is a particular focus of international and intercultural business texts (e.g., Gibson 2008; Martin and Chaney 2006), which detail different styles of haptic encounter that are appropriate in business settings in different regions of the global economy. The successful business handshake is both latently and expressly gendered. In its prioritizing of firmness, confidence, and forthrightness, it privileges masculine gestural traits. Within the haptic etiquette literature, there is nothing worse than a “limp” handshake—a castigation which openly traffics in a well-entrenched homo- phobic slur. However, women in business are specifically targeted by etiquette coaches as in need of particular somatic guidance. In an advice column on the Forbes business site which is exemplary of its genre, Carol Kinsey Goman (2013) encourages women to shake hands rather than hug. She notes: “People with ‘good’ handshakes (firm, web-to-web, palm-to-palm) are evaluated as being extroverted and emotionally expressive. And this is especially important for females in the workplace—because women with firm handshakes are evaluated as positively as men” (emphasis in original). She notes that the handshake can be used to close a deal and provides eleven tips for women to execute it successfully. Tip number

8 The history of modern genres of text grooming the handshake with the goal of increasing one’s social capital likely begins with early books of social etiquette. For example, Emily Post notes, “The proper handshake is made briefly, but there should be a feeling of strength and warmth in the clasp” (1922, 23).

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 348 Sheryl N. Hamilton eight is telling: “Shake hands firmly. Women with a firm handshake make a more favourable impression and are judged to be confident and assertive” (Goman 2013). At numerous points, she cautions against different gestures or ways of touching that might be misread as submissive. This advice column and others like it, targeting women as particularly at risk of failing at the handshake, highlight that the business handshake is thoroughly masculinized and that women as particularly embodied business subjects must do more work to inhabit contractual subjectivity, as I discuss in more detail below. The assumption in many of these texts is that in addition to opening or closing a business relationship, handshakes are connected specifically with contractual relations. Law schools, legal texts, and legal histories alike tell us that a contract is a legally enforceable promise. “A handshake is the meeting of two bodies to represent or enact the meeting of the minds of two people entering an agreement” (Ertman 2006, 285). These texts recognize implicitly, and often explicitly, that in addition to its function of greeting, or “access ritual,” as Erving Goffman (1971) would describe it, the handshake also forms the basis for a binding legal contract (GTS Learning 2013). This recognition echoes in broader U.S. culture. American talent agent and dealmaker Irving Paul Lazar famously remarked, “I have no contracts with my clients; just a handshake is enough” (Flint 1994). Ted advises Don in Mad Men, “This is not a handshake of gratitude; this is a binding contract” (Mad Men 2013). These hard-headed businessmen express what I suggest is a common cultural trope that one’s hand is one’s bond. The “Leadership” column in the May 2013 issue of Forbes encouraged, “The thing to keep in mind is that the purpose of a handshake is to greet someone or say good-bye or express congratulations or to signal agreement on a deal. As such, it should be perceived as warm, friendly, and sincere. So, if you are going to shake hands, here are 11 tips to make the best of it” (Goman 2013). In many ways, in North American culture, the handshake operates as synecdoche for the legally binding contract, an imagined illocutionary legal gesture. As a result, any embodied enactment of a handshake in a business context occurs in inevitable conversation with this relatively unquestioned cultural claim, the already fused ideas of contracts and hands in touch as co-constitutive. However, this too-often- assumed relation bears further critical reflection. More specifically, if we are to unpack the cultural spectre of the business handshake as contract in order to understand its legal affect and effect in a more complex manner, I argue that we need to examine its specificity as an embodied ritual gesture which stages particular kinds of legal identity claims. Thinking About Handshakes Handshakes are a common gesture in many cultures. They often comprise part of greeting and parting rituals, and in the United States and Canada, they are a ubiquitous part of everyday life. Yet their banality in no way renders handshakes benign. I suggest they are an important intersubjective and social action, communicating not insignificant amounts of information about and between participants and their contexts, and are therefore both governed by, and reproduce, a variety of social norms. I begin from the position that the

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 Hands in Cont(r)act 349 handshake, while common and necessarily dyadic, is thoroughly polysemic. As David Howes and Constance Classen state, “Even sensory acts that have recognized social functions have many shades of meaning. A handshake may be variously interpreted as a gesture of friendliness, an attempt to dominate, an act of condescension, an invitation to intimacy, a show of equality, a bridging of differences, the sealing of a contract, or a breach of etiquette” (2014). Indeed, the same handshake can enact a number of those meanings at the same time and may well mean differently for the two participants, and for participants and observers. When defining the handshake, some scholars focus on its physical attributes: the reaching out, the grasping of the hand of the other, and the mutual movement up and down of clasped hands (e.g., Gove 1971, 1028). Others focus on the handshake as non-verbal communication, as an action generative of social relations. “The handshake is a social act wherein we have a combination of contact experi- ence between two hands of different persons that communicates the degree of mutual physical resistance as well as the exchange of social identities and the beginning and ending of social activity” (Hall and Hall 1983, 249). Drawing upon Goffman (1971), Schiffrin suggests the handshake is a form of handwork implicated in intersubjective access rituals and, when correctly executed, productive of social solidarity: “In a handshake, a single initiating action contains both a request for access into another and an offer from that same initiator of access to the self. Thus there is a double presentation in one move. Not only is a request for something being made, but simultaneously, through the same action, an offer of something is being made” (1974, 192). Four central attributes repeat across the anthropological and social semiotic lines of inquiry into the handshake. First, the handshake is communicative action (e.g., Wierzbicka 1995; Goffman 1971; Malinowski 1923); second, it is central to a number of Western social rituals such as greeting, parting, or congratulating (Scheflen and Ashcraft 1976; Harrison 1974; Scheflen and Scheflen 1972; Morris 1977; Firth 1972; Goffman 1971; Schiffrin 1974). Third, it is a quotidian gesture, often enacted unconsciously, albeit deliberately (Rothenbuhler 1998; Mauss 1973). Fourth, the handshake is understood as thoroughly conventional. It is common and routine, thus often going unnoticed; at the same time, it is historically, culturally, and situationally contingent. The performativity of the handshake depends upon the manner of presentation of self of the respective parties, the understanding of each by the other, and the boundaries and norms of the social setting. Further, I would add, it must always be assessed in interaction with the range of other gestures, modes of touching, sensorial meetings, and speech acts in which it is embedded and with which it is always bound. While useful, the early scholarship is limited by its functionalist orienta- tion, its almost exclusive focus on greeting rituals, its emphasis on successful execution, its lack of attention to the specific haptic and other sensorial qualities of the handshake, and a notable absence of curiosity about the handshake’s legal consequence. While greeting rituals are indeed important, they are often interpreted as a prelude to other, more significant and chronologically subsequent, social activities between participants. This frames the tactile encounter of the

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 350 Sheryl N. Hamilton handshake as both serial and teleological. Further, handshakes on parting or handshakes that have other ritual and semiotic content are understudied. Handshakes are read as a form of social glue, binding their participants in shared intention and typically productive of smoothed social relations. Handshakes which are “unsuccessful” are both understudied and under-valued, read as a failure of social solidarity rather than as productive activity in their own right. The haptic aspects of the handshake, and specifically its proprioceptive, tactile, cutaneous, and gestural characteristics are often taken for granted. This precludes understanding the ritual as one loaded with “haptic possibility,” to borrow from Sean Mulcahy (n.d.). Sarah Hillewaert, too, notes the first four of these concerns. In her study of how Muslim women in Lamu use the handshake, she focuses on the ways in which handshakes are “social performances subject to intentional strategic manipulation and on the significance of the felt bodily contact associated with these gestures that contributes to the intersubjective construction of meaning” (2016, 49). She draws particular attention to the ways in which the handshake is simultaneously visual and tactile; it can be seen one way and felt another.9 I agree with her assertion that the handshake is a site for the negotiation of status and inter-personal and social power relations.10 Her research also draws important attention to the ways in which women, here in religious and intergenerational community, deploy the handshake. Hillewaert’s invocation to consider what she calls the tactile and thus powerful aspects of the handshake is important.11 The handshake is fundamentally a gesture that touches. “Handshakes enact their intersubjectivity through the touch of another” (Paterson, Dodge, and MacKian 2012, 9, my emphasis). Touch can be “palliative … attractive, magical, destructive, a means of manipulation and control, or a means of contamination. … It can mobilise allure, or aversion, or both” (Grabham 2009, 345; see also Howes 2005; Classen 2005; 2012). Touch is productive of its own rationalities (Grabham 2009, 345). As I have noted elsewhere (Hamilton 2017), a handshake is a thoroughly haptic social encounter, often between strangers, or at least non-intimates. It encompasses extensive contact between the skin of our palms and the inner surfaces of our fingers with those of another for an extended period of time. It is simultaneously physical and communicative (Paterson 2007; Paterson, Dodge, and MacKian 2012; Hall and Hall 1983; Classen 2012). Our palms and fingertips are highly sensate and are central to many of our embodied sense-making activities.12 There are few, if any, other body parts of a stranger upon which we could lay our hands for such a period of time without drawing disapprobation. The handshake is thus also an intimate gesture, yet in many of its culturally iconic instances, it is a gesture between masculine subjects.

9 Howes (2005) encourages us to understand the complex ways in which many actions and activities are in fact, not merely sensorial, but more accurately, intersensorial. 10 She draws upon sensorial anthropology to focus attention on the ways in which gesture and touch, among other sensorial activity, can be used to reinforce, disrupt and transform conventionalized social rituals. See Braddick 2009. 11 While her work is extremely important for adding the dimension of the tactile and the visual, she does overlook other dimensions of the haptic in her analysis. 12 As Nick Crossley notes, the handshake is “knowledge in the hands” (2004, 7).

Handshakes as Legal Gesture I argue that it is specifically the haptic and public-intimate qualities of the business handshake that invite its encounter with the law and enable both its specific legal performativity and its articulation of legal subjectivity. Tactile communication, Ruth Finnegan (2005) tells us, is powerful in large part because it “crosses over the bubble of privacy in which people surround themselves in public” (18). “Touch,” she writes, “is also used for ratifying contracts or relationships, both a direct performative sign in itself and with the potential for transcending linguistic and other barriers. The act of sealing a bargain is frequently communicated by a handshake” (21). And while a handshake may no longer produce a binding contract in the eyes of the law, I suggest that the handshake remains a central legal gesture.15 Bernard J. Hibbitts defines legal gesture as “any purposive bodily motion (especially, but not exclusively, of the arm or hands) that by convention signifies a specific legal change, condition or relation” (1995, 53). His examples include the raising of a hand to take an oath (often while the other hand touches a sacred object, such as a bible) and the handing off of an elemental object (straw, wood, or earth) from one person to another to signify the transfer of legal title. While he is not studying the handshake per se, he refers to handshakes as a mode of making legal contracts at several points in his essay. Hibbitts’s work reproduces the Western fascination with the social rituals of the Other, shares some of the functionalist limitations of earlier anthropological and nonverbal communications scholarship, takes little account of gender norms, and does not offer the more complex and multivalent engagement with law and tactility that Howes and Classen (2014) provide. However, it offers some useful language for interrogating how legal gestures function that I find useful as a starting point for thinking through the “work” of the business handshake. Hibbitts offers

13 She was seeking with the notion of homosociality to capture the ways in which our society is structured by relations between men. There is an inherent tension in these relations whereby while these relationships are revered, they must not tip over into desire. Homosexual desire must be controlled. At the same time, the resulting masculine solidarity and interdependence works to enable and sustain structures and relations of patriarchy. 14 “Palm to palm is holy palmer’s kiss” (Romeo and Juliet I v.99). I am grateful to Sean Mulcahy for reminding me of this passage and for pushing me further on this line of thinking. It seems to me that the haptic, particularly in the dyadic mode, invites interrogation as a mode of intimate, often same-sex touch, but one that would rarely be the preferred gesture to demonstrate sexual desire. Obviously these ideas bear even further development at a future point. 15 Howes and Classen (2014) note that, in Medieval Europe, the handshake was a more powerful manifestation of contract than written contracts.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 352 Sheryl N. Hamilton an eight-part typology of the “general functions of legal gesture as a modality”: indicative, ordinative, evidentiary, demonstrative, communal, mnemonic, regulatory, and psychological (56).16 Below, I use this typology to briefly explore the indicative, ordinative, evidentiary, demonstrative, and regulatory functions of the business handshake. Handshakes are indicative in that they are “a physical and corporeal sign which can indicate that a legal change or relation is being effected” (Hibbitts 1995, 57). The inherent ambiguity of the gesture is anchored in its context, such as a business meeting or the conclusion of a set of contractual negotiations. So, rather than the contract itself, the business handshake suggests that two contracting minds are meeting, that the conditions are ripe for a legally binding contract to be formed. It operates as a “semiotic shorthand” (Hibbitts 1995, 57) signifying both a willing- ness and desire, but also a warrant of capacity, to “do business.”17 The ordinative function of legal gesture “order[s] and organize[s] … the deployment and perception of legal meaning” (Hibbitts 1995, 60) in that it high- lights certain events or relationships as significant and serves as a frame, marking a beginning and end of a transaction which can be coded as legal. The handshake at the end of a contractual negotiation signifies. It puts boundaries around relations that can be read as contractual. This is related to the evidentiary function of a legal gesture, which Hibbitts suggests both consolidates the meaning of a period of speaking and suggests that the participants are autonomous, namely not under duress.18 Legal gestures are also demonstrative in their physical representational capacity. They make it easier for participants and witnesses to recognize the legal activity at issue. This is particularly enhanced by the regularity and repetition of the business handshake both within and without legal contexts. Finally, the business handshake, as legal gesture, can perform a regulatory function, leading participants to adopt certain courses of behaviour. When a person takes on an obligation or assumes a relation in the public and corporeal way mandated by legal gesture, society … associates him with the obligation or relation in an intimate, unavoidably personal way. In the face of such association, a person’s subsequent adherence to his per- sonally assumed obligation or promise is likely to give him a positive social reputation (e.g., in honoring his contract, he brings honor to himself). (Hibbitts 1995, 70) Any sense of obligation to honour the contract is, I argue, always intersubjective and is often public, depending upon the context of the business handshake.19

16 He fully acknowledges that his categories, while distinct, necessarily overlap. 17 I am not suggesting that the handshake guarantees that the parties are legally able to contract, rather that they are presenting themselves as such. It is a performance of potential legal agency, which may well be undone by subsequent information. 18 It is important to note that not only may the parties well be under a form of duress, but they are almost never economic equals. 19 Although I do not have the space to discuss the issue more fully here, it bears noting that the regulatory function of the business handshake is culturally entangled with notions of masculine honour and economic virility. Hibbitts also notes that the failure to honour the contract produces shame (1995, 70).

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 Hands in Cont(r)act 353 Hibbitts recognizes the handshake as having aspects of a performance but deliberately stops short of framing it as performative. While Hillewaert is not concerned with the handshake as a specifically legal gesture, she goes further than Hibbitts in her theorization of its performativity:20 Precisely in this intersubjective and embodied nature lies the potential for the handshake to be not just a performance … but also a performative—a form of social action that enables the individual to receive social recognition through the body (Butler 1988) and thus effectively establish a public persona, negotiate social relations, and potentially redefine social norms that regulate its use. (2016, 54) Her argument can be extended to the mode of legal performativity I am develop- ing here. Rather than performative of law itself or mere legal performances, I argue handshakes are performative of sensory legal relationality and embodied legal subjectivity. Business handshakes, in particular, produce their participants as contract-able subjects, subjects willing to structure their most meaningful encounter through the technology of the contract and its attendant mythos. The pressing of hands, im-presses the body of the business person with the calculus of individual autonomy, authority, and intentionality. Roy Kreitner troubles the normative effect of contract’s own functionalist and teleological history—in which the handshake is a central figure—arguing it produces a frame he calls the “private ordering paradigm.” “Within the frame of private ordering, individuals are preexisting entities with preexisting preferences or desires. They use contract as a means to achieve their preexisting ends by exchanging their entitlements. The development of modern contract law, according to the teleological pictures, goes hand in hand with the expansion of the free market” (Kreitner 2007, 3). He specifically links the emergence of the modern contract with a particular image of the individual subject, arguing that the contract marks the centrality of the “calculable” individual (6): Whereas the dominant story is one in which expanding contractual freedom makes room for the preexisting individual, I argue instead that a particular view of contract (as individual-centred) and a particular view of the individual (as calculating, calculable and autonomous) are actually mutually reinforcing effects of historical processes that came to a head in the late nineteenth century. (Kreitner 2007, 6; see also p. 12) I argue the parties to a contract are making legal relations and identities by and for themselves, and thus the handshake is the enactment and representation of that normative frame. Handshakes rely upon and reproduce both subjects as “possessive individuals” (see Macpherson 1962), as propertied subjects and subjects of property, autonomous individuals expressing specifically economic agency through their hands. The contracting subject—the highest form of legal person (see Naffine 2003)—is

20 Hibbitts is concerned that legal gestures rarely, on their own, make law. It is true that a handshake does not often make a legally binding contract. Yet I agree with Hillewaert that handshakes are performative and would suggest that Hibbitts’s concern is misplaced in its focus on outcome and his too-narrow conception of law.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 354 Sheryl N. Hamilton thus always abstracted from embodiment and thus pretends at sex neutrality. “The concept of personhood invites us to abstract our identity from those very narrative resources—birth, growth and development, sexuality, procreation, friendship, decay, death—which we require to make sense of our lives” (Poole 1996, 50). Yet bodies matter in sensual encounters, and the legal person is a deeply gendered figure. Ngaire Naffine notes, “[s]exing and personification would seem therefore to be inextricably linked and yet fundamentally in tension. Both are elementary to our social and legal thinking about what and who we are and why we have moral and legal status and yet they co-exist unhappily” (2004, 638). This is precisely why women are “problems” for contractual personhood. As non-normative legal subjects who are always embodied and thus structurally excluded from the dream of sex neutrality proffered and preferred by the legal (fiction of the) person, women must always do more work to count legally (Hamilton 2009; see also Davies and Naffine 2001). Therefore, in an embodied legal performative moment such as the business handshake, their haptic repertoires require specific guidance. However, if they can “pass” as contractual agents, the rewards are significant. The handshake’s promise is powerful. Regardless of the subjects’ prior (or actual) status, the business handshake’s illocutionary effect, rather than producing legally binding relations, renders its participants bounded, intentional agents—the meeting of palms enacts the meeting of minds, (re)producing the contracting legal person. The handshake shifts attention from speech acts to body acts.21 In this way, it grounds contract’s fantasy, writing its subjects as law’s favoured actors, liberal autonomous agents. But what happens to this dream when the touch of contract also contracts disease?

Business Handshakes in Pandemic Culture In pandemic culture, we are told our “skinscape”22 is thoroughly and irredeemably contaminated, and thus our every touch is volatile, even dangerous. Risky or dangerous touch has always invited law’s attention. The handshake may never have been quite as stable an activity as the bulk of scholarly inquiry suggests, but in the contemporary moment, as I alluded to at the outset of this analysis, handshakes are particularly unstable, socially contested, and increasingly regulated. Business, as a social site, has not been immune from these concerns. Indeed, business journalists, business etiquette experts, and public health officials have all been talking about dirty hands in business (e.g., Gottsman 2013. Here I will highlight a few examples of the current volatility of the business handshake from a much wider corpus of materials exploring hands, touch, and handwork in the public health discourse of pandemic culture.23

21 I am indebted to Sean Mulcahy for this observation. 22 This is Howes’ evocative term (2005). 23 The corpus consists of over 400 public health posters focused on hands and the transmission of disease, key documents from the World Health Organization and the Centers for Disease Control and Prevention on hands and disease over a fifty-year period, print and video advertising for bodily and home hygiene from the late 1800s until the present, extensive writing about hands, handshakes and communicable disease in both business and sports (including business textbooks, the post-SARS business press, and specialty business etiquette texts), and post-SARS media and popular culture treatments of hands, handshakes, and pandemics.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 Hands in Cont(r)act 355 A public health campaign that ran in Canada in the 2010s features a poster that appeared on buses, in pharmacies, and in print media promoting the flu shot and questioning the business handshake.24 The format was a wide thin rectangle with an image of two disembodied hands, in what was signalled as work attire, shaking hands. The tagline read, “Got the Business. Gave them the Flu.” An advertisement for FluMist shows two male hands clad in business wear shaking hands. It reads: “Because shaking hands is your business, protecting you from the flu virus is ours.” Another common trope in the public health envisioning of hands in business is a close shot of a contaminated businessman’s hand reaching out toward the viewer for a handshake. Often the manual contagion is invisible, denoted by words or textual suggestion (rather than imagery), making it even more anxiety-inducing as you can’t see the risk. The organization HandwashingforLife goes so far as to offer the message that shaking hands is “unwashed,” “unkind,” and “unprofessional.” An image from the magazine Men’s Health suggests the handshake as the “surest way of spreading viruses and germs” and shows another white, disembodied male hand in black suit and white cuffs, this time shaking hands with an abject, dripping, almost zombie-like filthy hand, notably brown. Public health agencies and private sector companies are clearly characterizing the handshake as dirty, attempting to discourage businessmen from engaging in the practice. The handshake is represented as old-fashioned and misguided at best, and aggressive and even horrifying at worst. Yet, as I demonstrated above, it is a practice central to the formation of business relationality and to the constitution of contractable subjects, those presenting as willing and able to form contracts and be governed by the mutually reinforcing imperatives of law, masculinity, whiteness, and the market. My research suggests that business experts are aware of, and accept, the implication of the handshake as a medium in the spread of communicable disease. Yet, at the same time, this gesture is so thoroughly implicated in business culture, so fundamental to stabilizing business subjectivity, it cannot be abandoned. Many of law’s central fictions are enacted in this seemingly benign, quotidian gesture, and law does not abandon its myths easily. In an interview for her book, The Essentials of Business Etiquette, career coach Barbara Pachter gives the following advice: “The handshake is still the business greeting in the United States, and people expect a handshake … [if you don’t shake someone’s hand] you are cutting yourself off from them.” Instead, she recommends using medication to suppress the signs of illness before the meeting or event and “discreetly” using hand sanitizer before shaking someone’s hand. She goes so far as to state that if you witness someone sneeze into their hand and then reach out for a handshake, as a prudent business person, you should take their hand and then immediately go to the washroom and sanitize (in Giang 2014). Other experts agree. An advisor for Simon Fraser University students as they participate in job inter- views suggests that the handshake is still the best way to make a strong impression in a business and employment setting. He advocates its continued performance, even in the face of certain germ spread (Peeriodical 2010). There are many other

24 Business wear is signified almost exclusively by cuffed sleeves and jackets, and the hands are almost always coded as male and white.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 356 Sheryl N. Hamilton examples of similar advice columns encouraging the retention of the business handshake and the liberal application of sanitizer. The already inherent risk of femininity that sticks to the handshake is now coupled with the “new” risk of contamination. In a public health-informed social context where the handshake is being challenged as an unhealthy ritual, business handshakes are specifically sin- gled out for special treatment: the deal before the disease. A 2016 billboard advertisement for Bow Valley College’s Chiu School of Business, which ran, among other locations, at the Calgary International Airport in Canada, is the logical outcome of the tensions posed by the imperative for touch to signify contractual subjectivity and the simultaneous instability of the handshake in pandemic culture. Targeting those aspiring to participate in business culture and deploying the generic conceit of numbered “Rules of Business,” we see that Rule Number 45 is the “Explosion.” The text reminds us that, in business, “A proper introduction begins with a handshake,” and then clearly instructs us on how to do this properly.

1. Make Fist: Rotate knuckles and confidently extend arm. 2. Pound It: Assertively connect with opposing fist. Don’t linger, it could get weird. 3. Explode: Pull arm back, and launch open hand skyward

While clearly tongue-in-cheek, the advertisement nonetheless emphasizes the importance of the business handshake to the identity of businessmen. It makes literal the masculine nature of that subjectivity and the homosocial nature of business touch which, as always, risks being read as homoerotic and thus must be self- regulated through violence and brevity. The fist bump is the “new” handshake; the two gestures are conflated in a celebration of masculine contractability and Kreitner’s calculating subject. Viewers’ broader cultural literacy is assumed. We live in pandemic culture and we know the fist bump is both cleaner and cooler than the traditional handshake.25 Yet despite this, touch is prioritized. Manual contact is fundamentally necessary to asserting autonomy and individuality upon meeting in business. Business bonding is an aggressive activity best performed by men: assertive, confident, oppositional, and even explosive. Even in pandemic culture, two agents, two contracting minds must meet in hand-to-hand cont(r)act.

Conclusion Across the production of cultural anxiety about dirty hands in business and the volatility of touch in pandemic culture, I want to draw out two key dimensions which mark this particular domain of haptic-legal activity. First, there is clearly increased concern with the handshake as a medium of contagion, and this is tied to the temporal patterns of disease outbreak (whether actual outbreaks, fictional outbreaks, or flu season as an always possible outbreak). This concern infiltrates business as a social site, primarily through the interlinked didactic genres of etiquette

25 Again, as I noted earlier, the fist bump merits much more scholarly attention. Here it is notable that the poster labels it a handshake and moves seamlessly between the two.

Downloaded from https://www.cambridge.org/core. University of Athens, on 26 Sep 2021 at 15:49:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2019.26 Hands in Cont(r)act 357 and aspirational training. Contemporary business practice in pandemic culture presents participants with uncertainty about the handshake: a familiar icon is dirtied and destabilized. This instability disrupts the smooth operation of legal-performative expectations. There is concern that the refusal of the handshake on the grounds of disease worry will make the offerer “an outsider, a threat to the community, with whom one would be contaminated by touch, and to whom a handshake would have granted legitimacy and access” (Hall and Hall 1983, 257). Advice must be sought about how to navigate this changed and changing social context, and guidance is duly offered by an industry of “experts.” Women and gender non-normative people in business are in a particular double bind, under additional scrutiny in the execution of the masculine (business) handshake and, like all of us, likely contagious. Yet it is notable in the business literature that the primary risk of concern to most of these business counsellors is that posed to the status of the parties as contracting agents, rather than that posed by contracting illness. Further, the framing of the “problem” as one of etiquette invites consideration of the boundaries of the proper. As Grabham reminds us, “touch embeds itself into the normative fabric of the law, creating and maintaining expectations around what is proper, decent and safe” (2009, 350). In fact, she argues, “touch is one of the main routes through which propriety is organized and mobilized” (2009, 344). Thus, these texts and images of business handshakes, of haptic encounters in business culture, reproduce and recirculate business values and norms at the same time that they actively work to bolster our new habitus of hygiene. We know that the normal business hand is white, masculine, and wears a suit. But the claim to cleanliness that historically differentiated the hands of the working classes from those of the business elite (see Stallybrass and White 2005) is disrupted in pandemic culture. Experts in the haptic economy of business identity formation rarely advocate for the complete elimination of the business handshake. They seek to retain at least the touching of hands. To advocate the business handshake’s rejection would be to eliminate a ritual that does more than merely represent the contract; it renders its participants actors in a contractual imaginary. It is a site for the performativity of specific, autonomous legal subjectivity. It bonds two legal persons. It doesn’t matter whether the contract will hold in court or not; it rarely has. This is not where the legal force of the business handshake lies. Rather it lies in multi-sensorial, embodied, contact. Business experts thus seek ways to obtain the unquestioned benefits of the handshake while guarding against disease spread. There are suggestions of targeted hygiene practices—washing hands immediately before and after the sensual contact. Unlike various other social locations where the handshake as an enduring symbol and practice has been more directly regulated and even pro- hibited, in the face of the identification of it as a risky disease-spreading practice, the handshake between business agents is much more resilient. Its legal vitality persists. Even at the height of flu season or other pandemic threat, the handshake is too essential to the legal performativity undergirding successful business relations to be regulated away. Touch endures. Appearances matter. And the claim to agency and autonomy must be staked, despite the increased risks of contamination. Even in pandemic culture, a businessman’s (dirty) hand remains his bond.

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Sheryl N. Hamilton Department of Law and Legal Studies and School of Journalism and Communication Carleton University [email protected]